A defendant may not be criminally prosecuted while s/he is mentally incompetent, and the state must give him or her access to procedures for determining his competency.[420]  If the court in which the conviction was rendered had reason to believe that the client was not mentally competent to plead guilty, waive counsel, or proceed to trial, but failed to inquire further into defendant’s competency or to conduct a competency hearing, the plea is invalid.[421]  Merely suffering from mental illness, however, is not alone sufficient to establish the invalidity of the plea on this ground.[422]

 

            There are two distinct arguments with respect to competency.  First is a claim of substantive incompetency, where because of the defendant’s mental condition at the time of the plea, s/he did not in fact enter a free and voluntary, knowing and intelligent plea.  Second, the court may have violated the defendant’s procedural due process right to a competency hearing where sufficient facts give rise to a sua sponte duty on the part of the court to hold a competency hearing before accepting the guilty plea, which the court failed to hold.[423]

 

            The federal constitutional test for the competency of a defendant to enter a plea of guilty is identical to the test for competency to stand trial under the due process clauses of the Fifth and Fourteenth Amendments.[424]  That test requires the defendant to have the “‘sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding . . . [and] a rational as well as factual understanding of the proceedings against him.’”[425]

 

            Procedural due process requires a court to conduct a competency hearing on its own motion, before permitting a defendant to waive constitutional rights, whenever a reasonable judge would be expected to have a bona fide doubt as to the defendant’s competence.[426]  A bona fide doubt should exist when there is substantial evidence of incompetence.[427]  Although no particular facts signal incompetence, suggestive evidence includes a defendant’s demeanor before the trial court, previous irrational behavior, and available medical evaluations.[428]

 

            Examples of error in this regard abound.  On remand from the United States Supreme Court, the Ninth Circuit held on the facts of the Moran case that a reasonable jurist should have entertained a good faith doubt as to defendant’s competence during the change of plea proceeding, so that the trial court’s failure to hold a competency hearing was a violation of due process.[429]  Upon learning that the defendant was under the influence of anti-depressant medication at the time of the plea, the district court violated its duty to ensure the defendant was mentally competent to enter the plea by failing to inquire into the effects of the drug.[430]  In Odle v. Woodford,[431] the court remanded the case for a competency hearing where the defendant had suffered massive brain trauma and subsequently exhibited psychotic behavior, even though he appeared calm in court.

 

            When a court has reason to doubt a defendant’s competence, in addition to the competency inquiry, the court “must satisfy itself that the waiver of his constitutional rights is knowing and voluntary.”[432]  The court indicated that whereas competency involves a defendant’s general ability to understand the proceedings against him, “[t]he purpose of the ‘knowing and voluntary’ inquiry, by contrast, is to determine whether the defendant actually does understand the significance and consequences of a particular decision.”[433] 

 

            In United States v. Christensen,[434] the court reversed a conviction after court trial based upon a perfunctory jury waiver, finding that where the defendant’s cognitive or emotional condition has been called into question, the usual presumption that a jury waiver is knowing, voluntary, and intelligent does not operate, and a jury waiver may not be accepted without a more extensive colloquy establishing its voluntariness.

 

Because the federal Constitution forbids criminal proceedings against one who is incompetent, neither defense counsel nor the appellant may waive this claim.[435]  As the Supreme Court has explained, “it is contradictory to argue that a defendant may be incompetent, and yet knowingly or intelligently ‘waive’ his right to have the court determine his capacity to stand trial.”[436] 

 

Where a claim of ineffective counsel is grounded on failure to raise a claim of incompetency, the defendant must establish a probability that he was in fact incompetent at the time in question.[437]

 

Under the California statutes, the test for incompetency is whether a defendant “is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner.”[438]  A defendant is presumed mentally competent to stand trial “unless it is proved by a preponderance of the evidence that the defendant is mentally incompetent.”[439]  Whenever the trial court has an actual doubt concerning the defendant’s competence, or substantial evidence exists giving rise to reasonable grounds to doubt the defendant’s competence, the court must suspend criminal proceedings and conduct a competency hearing.[440]  The failure to conduct a hearing when such evidence exists cannot be cured by a nunc pro tunc finding of competence.[441]

 

            Giving improper psychotropic medications, or failing to administer necessary ones, can result in an invalid plea if the defendant’s mental competence is lost.[442]

[420] See Medina v. California, 505 U.S. 437, 449 (1992), citing Drope v. Missouri, 420 U.S. 162, 172-73 (1975); Pate v. Robinson, 383 U.S. 375, 386 (1966); United States v. Timmins, 301 F.3d 974 (9th Cir. July 17, 2002) (district court erred in disregarding expert opinions that defendant’s mental illness prevented him from rationally weighing evidence against him and deciding whether to accept a plea bargain rather than go to trial).

[421] Miles v. Stainer, 108 F.3d 1109 (9th Cir. 1997); Nicks v. United States, 955 F.2d 161, 166-168 (2d Cir. 1992); United States v. Christensen, 18 F.3d 822, 826 (9th Cir. 1994); Godinez v. Moran, 509 U.S. 389, 125 L.Ed.2d 321, 113 S.Ct. 2680 (1993); Pate v. Robinson, 383 U.S. 375, 385, 15 L.Ed.2d 815, 86 S.Ct. 836 (1966); Blazak v. Ricketts, 1 F.3d 891 (9th Cir. 1993), cert. denied, 511 U.S. 1097 (1994) (trial court failed to conduct competency hearing despite petitioner’s history of mental illness and incompetency finding in prior case); Lafferty v. Cook, 949 F.2d 1546 (10th Cir. 1991), cert. denied, 504 U.S. 911 (1992) (trial court’s finding of competency based on legal standard inconsistent with due process, and record contained evidence that would have permitted finding of incompetency under proper standard); Wallace v. Kemp, 757 F.2d 1102 (11th Cir. 1985) (petitioner tried while incompetent); Strickland v. Francis, 738 F.2d 1542 (11th Cir. 1984) (evidence did not support special jury’s finding that petitioner was competent to stand trial).

[422] Wilson v. Ozmint, 352 F.3d 847 (4th Cir. 2003) (fact of mental illness alone insufficient to render guilty plea involuntary).

[423] Patton v. United States, 281 U.S. 276, 312-313 (1930); United States v. Christensen, 18 F.3d 822 (9th Cir. 1994); United States v. Cochran, 770 F.2d 850, 851 (9th Cir. 1985); see Godinez v. Moran, 113 S.Ct. 2680, 2687 (1993).

[424] Godinez v. Moran, 509 U.S. 389, 113 S.Ct. 2680, 2686 (1993).

[425] Dusky v. United States, 362 U.S. 402, 402  (1960) (per curiam).

[426] United States v. Lewis, 991 F.2d 524, 527 (9th Cir.) (competence to plead guilty), cert. denied, 114 S.Ct. 216, 126 L.Ed.2d 172 (1993); Chavez v. United States, 656 F.2d 512, 515-516 (9th Cir. 1981) (same).

[427] Lewis, 991 F.2d at 527; Harding v. Lewis, 834 F.2d 853, 856 (9th Cir. 1987); Chavez, 656 F.2d at 517; Torres v. Prunty, 223 F.3d 1103 (9th Cir. 2000) (state court decision denying hearing upon trial counsel’s expression of doubt concerning his client’s mental competence held unreasonable in view of evidence including psychologist’s pre-trial report that petitioner suffered from paranoid delusions and was not deceptive, petitioner’s bizarre conduct in court, and trial counsel representation that petitioner had come to believe that trial counsel and judge were involved in conspiracy against him).

[428] Drope v. Missouri, 420 U.S. 162, 180, 95 S.Ct. 896, 908 (1975); Lewis, 991 F.2d at 527; Harding, 834 F.2d at 856; Moran v. Godinez, 40 F.3d 1567, 1572 (9th Cir. 1994) (court was aware defendant was on medications and had suicidal tendencies should have formed a good faith doubt whether he was competent to plead guilty).

[429] Moran v. Godinez, 40 F.3d 1567 (9th Cir. 1994).

[430] United States v. Damon, 191 F.3d 561 (4th Cir. 1999); see United States v. Parra-Ibanez, 936 F.2d 588 (1st Cir. 1991); United States v. Cole, 813 F.2d 43 (3d Cir. 1987).

[431] Odle v. Woodford, 238 F.3d 1084 (9th Cir. 2001).

[432] Godinez v. Moran, 509 U.S. 389, 113 S.Ct. 2680, 2687 (1993).

[433] Id. at p. 2687 n.12 [emphasis in original].

[434] United States v. Christensen, 18 F.3d 822 (9th Cir. 1994).

[435] Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836 (1966); Miles v. Stainer, 108 F.3d 1109 (9th Cir. 1997) (counsel’s failure to raise competency hearing issue does not render it waived); People v. Hale, 44 Cal.3d 531, 541, 244 Cal.Rptr. 114, 119 (1988).

[436] Pate, 383 U.S. at 384.

[437] Theriot v. Whitley, 18 F.3d 311 (5th Cir. 1994); Zapata v. Estelle, 558 F.2d 1017 (5th Cir. 1979); Wilcoxson v. State, 66 Cr.L.Rptr. 81 (Tenn.Crim.App. 1999).

[438] California Penal Code § 1367.

[439] California Penal Code § 1369, subd. (f); People v. Medina, 51 Cal.3d 870 , 881-886, 274 Cal.Rptr. 849, 799 P.2d 1282 (1990).

[440] People v. Marks, 45 Cal.3d 1335 (1988); People v. Pennington, 66 Cal.2d 508 (1967).

[441] People v. Hale, 44 Cal.3d 531, 541 (1988); People v. Pennington, 66 Cal.2d 508 (1967).

[442] Benson v. Terhune, 304 F.3d 874 (9th Cir. September 11, 2002) (due process not violated when petitioner requested psychotropic medication, was not coerced, was informed and knew of side effects, and trial transcript shows petitioner was coherent and capable of logical thought, distinguished from Riggins v. Nevada, 504 U.S. 127 (1992)).

Ninth Circuit

POST CON RELIEF - GROUNDS - MENTAL INCOMPETENCE
Allen v. Calderon, ___ F.3d ___ (9th Cir. May 3, 2005) (district court erred in dismissing habeas petition without appointing a guardian ad litem and counsel to assist the court in evaluating petitioner's mental competence).
http://caselaw.lp.findlaw.com/data2/circs/9th/0216917p.pdf

POST CON - GROUNDS - COMPETENCY TO STAND TRIAL - STANDARD OF REVIEW OF COURT'S DECISION
Davis v. Woodford, ___ F.3d ___ (9th Cir. September 21, 2004) (fact that some of defendant's actions were eccentric not substantial evidence of incompetency; standard is whether reasonable judge would have experienced doubt with respect to defendant's competency to stand trial); De Kaplany v. Enomoto, 540 F.2d 975, 983 (9th Cir.1976) (en banc).

Tenth Circuit

POST CONVICTION RELIEF - GROUNDS - MENTAL COMPETENCE - INVOLUNTARY MEDICATION
United States v. Valenzuela-Puentes, ___ F.3d ___ (10th Cir. March 15, 2007) (court order allowing involuntary medication of illegal reentry defendant so as to render him competent to stand trial is reversed where record did not contain evidence from which a conclusion of a substantial likelihood of restoring competency was unavoidable, the district court provided no explanation as to whether or why it had become clearly convinced that defendant could be rendered competent through medication despite his exceptionally low IQ, and it was unclear whether the district court applied the appropriate burden of proof). http://laws.lp.findlaw.com/10th/042283.html

Other

CAL POST CON " SENTENCE " GROUNDS " PROBATION CONDITION UNCONSTITUTIONALLY VAGUE
In In re E.O. 188 Cal.App.4th 1149 (6th Dist. Ct. App. 2010), the Sixth District held that a probation condition restricting the minor's freedom to approach or enter a courthouse was unconstitutionally vague.

CAL POST CON " GROUNDS " STATE ADVISAL STATUTE PRACTICE ADVISORY " POST CON RELIEF " GROUNDS " READABILITY
In doing so, it stressed the need for precise and comprehensible probation conditions, especially in juvenile cases. It analyzed the text of the probation condition in question using an "online readability tester," which showed it would take over 28 years of education to comprehend the condition as written. (Id. at p. 1157.) Counsel can use this type of readability argument to argue that the language in which a defendant was advised of a right, orally or in a prepared form, was inadequate to produce a knowing and intelligent waiver, since in many cases, these advisements are prepared using complicated text that an average person, much less a criminal defendant in a time of high anxiety, would find difficult to comprehend. E.g., California Penal Code 1016.5(a). Readability tests are designed to measure comprehension difficulty when reading a passage of contemporary English. One test, the Flesch-Kinkaid Grade Level test, indicates the number of years of education a person needs to be able to understand the text easily, after the first reading. The fairly recent CALCRIM jury instructions were a product of a task force appointed by Chief Justice George after a study revealed that jurors could not understand and therefore could not properly apply the earlier standard instructions as written. Justice Corrigan in her Preface to CALCRIM acknowledged the earlier instructions were "impenetrable" and a product of statutes and case law written by and for a specialized legal audience and expressed in terms of art that have evolved over several centuries. She emphasized that jurors must be able to understand the instructions they are asked to follow, and the instructions should be drafted in a way that takes the audience into account. The same is certainly true of legal advisements given to criminal defendants, and yet in many cases, the text is almost incomprehensible to regular people charged with crimes. For example, the Penal Code section 1016.5 advisal given before a guilty plea explains the immigration consequences of the conviction in text the Flesch Kinkaid readability study shows would require over 23 years of education " the equivalent of a graduate degree. Very few people advised of that right before pleading guilty probably understood it, but it is routinely used against defendants seeking to withdraw pleas based on a claim that they were unaware of the consequences. The Lopez waiver form used in many courts to advise potential pro per defendants of the dangers of self-representation requires almost 13 years of education according to the Flesch-Kinkaid test. Under that test, the Penal Code 977 waiver of presence advisement requires over 28 years of education to understand a form that simply needs to say "I don't need to be present for these proceedings." Compare this with the standard Miranda advisement which requires only a 6th grade education and was suggested by a court that was genuinely concerned that the suspect understand the warning. Our clients' cognitive levels can be easily tested by a psychologist, and the results of this testing can be measured against the readability studies to show they did not understand a particular advisement. Counsel should be on the lookout for opportunities to make use of the readability studies as the court did in In re E.O. Thanks to Pat Ford.

POST CON RELIEF - FEDERAL - GROUNDS - MENTAL COMPETENCY
Willstatter, The Federal Criminal Competency System, 30 THE CHAMPION 16 (Jun., 2006).