Competency – Retrospective Determination
State v. Smith, 2016 WI 23 (filed 7 April 2016)
HOLDING: A postconviction finding that the defendant was competent to stand trial and be sentenced was not clearly erroneous.
SUMMARY: Smith was convicted by a jury and sentenced to prison for sexual assault. In postconviction motions, he contended that he was incompetent to stand trial and his conviction was invalid. The circuit court held a retrospective competency hearing and, based on the evidence, found Smith was competent when convicted and sentenced. In a published decision, the court of appeals reversed. See 2014 WI App 98.
Prof. Daniel D. Blinka, U.W. 1978, is a professor of law at Marquette University Law School, Milwaukee.
Prof. Thomas J. Hammer, Marquette 1975, is a law professor and Director of Clinical Education at Marquette University Law School, Milwaukee.
The supreme court reversed the court of appeals in an opinion authored by Chief Justice Roggensack. It held that the court of appeals failed to apply properly the clearly erroneous standard of review to the circuit court’s competency determination. Applying the “proper” standard, the supreme court found that the retrospective competency finding was not clearly erroneous (see ¶ 4).
The opinion reviews the competency doctrine, including procedures and standards of review. Smith raised three different competency theories before the postconviction court – “procedural” (the circuit court had reason to doubt), ineffective assistance (his lawyer had reason to doubt), and “substantive” (he was, in fact, incompetent). The remedy for violations of the first two claims is to conduct a retrospective competency determination, as happened here (see ¶¶ 45, 47). Moreover, the record showed that the circuit court properly exercised its discretion when finding Smith was competent at trial; the court of appeals had improperly weighed the evidence (see ¶ 55).
Justice Ziegler concurred; she found it unnecessary for the court to decide “the question of the proper formulation of the clearly erroneous standard” in cases “involving review of retrospective competency determinations” (¶ 61).
Justice Abrahamson, joined by Justice Ann Walsh Bradley, dissented on grounds that the majority opinion presents a “new articulation” of the clearly erroneous standard, namely, whether the finding is “totally unsupported by facts in the record” (¶ 70), a formulation that conflicts with precedent (see ¶ 67).
Justice Rebecca G. Bradley did not participate in this decision.
Plea of Not Guilty by Reason of Mental Disease or Defect – Right-to-Testify Colloquy in Responsibility Phase of Bifurcated Trial
State v. Lagrone, 2016 WI 26 (filed 22 April 2016)
HOLDING: When a defendant has pleaded not guilty by reason of mental disease or defect (NGI), the circuit court is not required to conduct a right-to-testify colloquy during the responsibility phase of the trial, although the “better practice” is to do so.
SUMMARY: Lagrone was charged with sexual assault and strangulation. He entered an NGI plea, pleading guilty in the guilt phase (phase 1) of the bifurcated proceeding and going to trial in the responsibility phase (phase 2). Lagrone presented evidence bearing on his mental responsibility but did not testify. At no point was he advised of his right to testify or asked if he was waiving it.
The court rejected Lagrone’s mental-responsibility defense. In postconviction motions, Lagrone contended that the circuit court should have explicitly advised him of his right to testify in phase 2 and demonstrated a waiver of the right. The circuit court and the court of appeals rejected this position.
The supreme court affirmed in a majority opinion authored by Justice Ziegler. The opinion compares and contrasts the defendant’s right to testify in a criminal trial (phase 1) with that in phase 2, which melds criminal and civil procedure (see ¶ 36). It was undisputed that Lagrone had validly waived his right to testify when pleading guilty in phase 1.
The court held that a defendant’s fundamental right to testify applied only in the criminal trial (phase 1), not in phase 2 (see ¶ 46). “At most, Lagrone possessed a general due process right to be heard and offer testimony during the responsibility phase” (¶ 51).
“With regard to the strategic decision of the specific evidence a defendant will pre-sent during the responsibility phase in order to meet his or her burden, ‘the decision whether to testify should be made by the defendant after consulting with counsel,’ but ‘counsel, in the absence of the express disapproval of the defendant on the record during the pretrial or trial proceedings, may waive’ any right to testify that a defendant possesses at that hearing” (¶ 55).
Nothing in the record showed that Lagrone “voiced a wish” to testify in phase 2 or was prevented from doing so (¶ 56). The court observed, however, “a better practice” is for the circuit court to conduct a right-to-testify colloquy in phase 2 as well as in phase 1 (¶ 57).
Justice Ann Walsh Bradley, joined by Justice Abrahamson, dissented. The dissent contended that case law mandates that the case be remanded for an evidentiary hearing in light of the absence of a demonstrated waiver of the right to testify.
Condominium Policy Forbidding New Owners of Unit from Using Recreational Facilities If Outstanding Assessments Are Attributable to the Unit – Effect of Prior Foreclosure Judgment on Unit
Walworth State Bank v. Abbey Springs Condo. Ass’n, 2016 WI 30 (filed 29 April 2016)
HOLDING: Abbey Springs Condominium Association’s membership and guest policy, which forbids both current and subsequent condominium unit owners from using recreational facilities until unpaid condominium assessments are paid in full, violates well-established foreclosure law and the foreclosure judgment entered against Abbey Springs with respect to a particular unit. The policy does so by tethering unpaid condominium assessments to the unit, which effectively results in Abbey Springs asserting a right against the property that the foreclosure judgment eliminated.
SUMMARY: Abbey Springs Condominium Association Inc. and Abbey Springs Inc. (Abbey Springs) have a membership and guest policy that forbids both current and subsequent unit owners from using recreational facilities until unpaid condominium assessments are paid in full. In other words, the policy forbids new owners of a particular unit from using recreational facilities if outstanding assessments are attributable to the unit.
After a foreclosure action and sheriff’s sale of an Abbey Springs condominium unit to Walworth State Bank (the Bank), the Bank paid the former owner’s outstanding assessments under protest. It then filed suit against Abbey Springs, asserting that the Abbey Springs policy violates Wisconsin law because it impermissibly revives a lien on the condominium unit that was eliminated by the foreclosure action. The Walworth County Circuit Court agreed with the Bank and granted it summary judgment. In an unpublished decision, the court of appeals reversed the decision of the circuit court.
In a majority opinion authored by Justice Rebecca G. Bradley, the supreme court reversed the court of appeals. It held that “Abbey Springs’s Membership and Guest Policy effectively revived the lien against the property that the Order for Judgment on Foreclosure and Judgment (hereinafter Foreclosure Judgment) entered against Abbey Springs and the former unit owners had extinguished” (¶ 2).
“Although Abbey Springs concedes that Walworth State Bank had no legal obligation to pay the former owners’ unpaid assessments following foreclosure, the policy dictates that any unpaid assessments stay with the unit and transfer to the new owners rather than travel with the former unit’s owner who actually incurred the debt. The policy does so by preventing a new purchaser of any unit, whose only connection to the unpaid assessments is through the unit itself, from accessing the recreational facilities if the prior owner failed to pay his or her assessments” (id.).
“As a result, the policy effectively allows Abbey Springs to assert a right against the property for the prior owner’s unpaid assessments in violation of well-established foreclosure law. Furthermore, the policy violates the Foreclosure Judgment that eliminated ‘all right, title, interest, lien or equity of redemption of Abbey Springs in and to the foreclosed units’” (id.).
Justice Abrahamson filed a dissenting opinion that was joined in by Justice Ann Walsh Bradley.