DORRIS (CHARLIE) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: FEBRUARY 26, 2010; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-001351-MR
CHARLIE DORRIS
v.
APPELLANT
APPEAL FROM OHIO CIRCUIT COURT
HONORABLE RONNIE C. DORTCH, JUDGE
ACTION NOS. 07-CR-00058, 07-CR-00112 & 07-CR-00113
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION REMANDING
** ** ** ** **
BEFORE: KELLER AND WINE, JUDGES; LAMBERT, SENIOR JUDGE.
WINE, JUDGE: Appellant, Charlie Dorris (“Dorris”), pro se, appeals from the
Ohio Circuit Court’s order denying his motion for post-conviction relief under
Kentucky Rule of Civil Procedure (“CR”) 60.02. Dorris argues that the trial court
erred by failing to conduct a competency hearing. Upon a review of the record, we
remand for a determination of whether a retroactive competency hearing is
permissible.
Factual History
On January 24, 2008, Dorris appeared in court and entered pleas of
guilty to a variety of offenses in five separate criminal cases in the Ohio Circuit
Court, including first-degree fleeing and evading, first-degree terroristic
threatening, first-degree possession of a controlled substance, first-degree criminal
mischief, third-degree terroristic threatening, and possession of drug paraphernalia,
first offense. Counsel who represented Dorris on the first indictment, as well as his
subsequently court-appointed counsel, were both present during the plea colloquy.
Before Dorris’s plea was accepted, the trial court asked him whether
he suffered from any mental disease or defect.1 Dorris and his appointed counsel
indicated in response to the court’s questions that Dorris suffered from no mental
disease or defect and that he was otherwise competent to enter into the agreement.
However, Dorris, through his first counsel, had previously requested a
psychological evaluation, which was ordered by the court. Although the
evaluation was conducted and a report was issued, the court accepted Dorris’s plea
without a hearing. Dorris waived filing of a pre-sentence investigation report and
was sentenced, in accordance with his plea, to a term of fifteen years’
imprisonment. This term was set to run consecutively with a sentence he was
already serving in another county for nonpayment of child support.
On April 3, 2008, Dorris filed a CR 60.02 motion for post-conviction
relief, requesting that the court set aside the judgment on the basis that the trial
1
The plea colloquy took place with multiple other defendants, each of whom was asked in turn to
respond as the questions were asked.
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court should have held a competency hearing. The trial court denied his motion on
June 18, 2008. Dorris now appeals from the denial of his CR 60.02 motion.
Analysis
Dorris argues on appeal that his plea is invalid and that he is entitled
to a remand for a competency hearing. In support thereof, he states that he has an
IQ of 59 and that he is essentially illiterate. He argues that he was denied his
constitutional right to due process of law when the trial court accepted his plea
agreement without holding a competency hearing pursuant to Kentucky Revised
Statute (“KRS”) 504.100.
KRS 504.100 provides as follows:
(1) If upon arraignment, or during any stage of the
proceedings, the court has reasonable grounds to believe
the defendant is incompetent to stand trial, the court shall
appoint at least one (1) psychologist or psychiatrist to
examine, treat and report on the defendant’s mental
condition.
(2) The report of the psychologist or psychiatrist shall
state whether or not he finds the defendant incompetent
to stand trial. If he finds the defendant is incompetent,
the report shall state:
(a) Whether there is a substantial probability of his
attaining competency in the foreseeable future; and
(b) What type of treatment and what type treatment
facility the examiner recommends.
(3) After the filing of a report (or reports), the court shall
hold a hearing to determine whether or not the defendant
is competent to stand trial.
(Emphasis added.) Dorris claims that the trial court erred by failing to hold a
competency hearing under KRS 504.100(3) after it ordered a comprehensive
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psychiatric evaluation pursuant to KRS 504.100(1) and received the psychiatric
report and recommendation under KRS 504.100(2).
The record reveals that Dorris moved the court for a psychiatric
examination on August 31, 2007, which was ordered by the court on September
11, 2007. Dorris underwent a psychological evaluation on December 11, 2007.
The report stated that Dorris was “currently functioning in the upper part of the
mildly mentally retarded range (50-69).” The report further stated that his scores
were “consistent with very severe depression.” However, the examiner also noted
that Dorris’s scores showed signs of malingering,2 suggesting that he portrayed
himself as more psychologically impaired than he actually was. Nevertheless, the
examiner concluded his report by finding that Mr. Dorris had “an adequate
understanding of legal issues . . . and [was] capable of participating rationally in
his own defense.” Although KRS 504.100(3) mandates that a court shall hold a
hearing after the filing of a report under KRS 504.100(2), for reasons unknown to
this Court, a hearing was never held.
Criminal prosecution of a defendant who is incompetent to stand trial
is a violation of that criminal defendant’s constitutional right to due process of law
under the Fourteenth Amendment. Medina v. California, 505 U.S. 437, 439; 112
S.Ct. 2572, 2574; 120 L.Ed.2d 353 (1992). Our Supreme Court has held that
Section (3) to KRS 504.100 is mandatory and cannot be waived by a defendant.
Thompson v. Commonwealth, 56 S.W.3d 406, 408 (Ky. 2001). See also, Mills v.
2
Dorris scored a 17 on the M-FAST screening test. A score of above 6 is “highly suggestive of
malingered psychopathology”, according to the December 11, 2007 evaluation report.
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Commonwealth, 996 S.W.2d 473, 486 (Ky. 1999). Indeed, “once facts known to a
trial court are sufficient to place a defendant’s competence to stand trial in
question, the trial court must hold an evidentiary hearing to determine the
question.” Mills v. Commonwealth, 996 S.W.2d at 486. See also, Pate v.
Robinson, 383 U.S. 375, 385-86; 86 S.Ct. 836, 842; 15 L.Ed.2d 815 (1966).
When a trial court fails to hold a competency hearing, the standard of
review is whether a reasonable judge in a similar situation would have experienced
doubt with respect to the defendant’s competency to stand trial. Bray v.
Commonwealth, 177 S.W.3d 741 (Ky. 2005), citing Williams v. Bordenkircher,
696 F.2d. 464, 467 (6th Cir. 1983). Some decisions of our courts have indicated
that failure to follow the mandatory language of KRS 504.100(3) may be
considered harmless error. See, e.g., Mills v. Commonwealth, supra, and West v.
Commonwealth, 161 S.W.3d 331 (Ky. App. 2004).
In Graves v. Commonwealth, 283 S.W.3d 252 (Ky. App. 2009), this
Court affirmed the trial court’s denial of a CR 60.02 motion filed on nearly
identical grounds as those raised by Dorris. Just as in the case sub judice, a
competency evaluation had been ordered, the evaluator found Graves to be
competent to stand trial, and the court accepted a plea of guilty without conducting
a hearing. Just as in Graves, if the trial judge in Dorris had any personal doubt
about the defendant’s sanity, it was reasonably removed by the facts presented in
the report and by the conclusions in the report. Dorris himself refers to those
findings; however, he attempts to reinterpret them to support his conclusions that
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he was not competent. The distinguishing difference between Graves and the case
sub judice is that, unlike Graves, Dorris provided this Court with a complete record
of the proceedings below. Unlike in Graves, we are not compelled to guess what
might have happened.
However, the Supreme Court’s holding in Thompson, supra, suggests
that failure to hold such a hearing once competency has been brought into issue
under KRS 504.100(1) and (2) cannot be harmless.
In Mills, supra, the trial court only ordered a psychiatric evaluation in
response to a notice filed by defense counsel that the defense intended to introduce
evidence of mental illness, insanity, or mental defect at trial. The report indicated
the defendant was competent to stand trial. Further, there was no behavior
exhibited by the defendant or other information which would have caused the trial
court to experience doubt as to his competency. Consequently, the Kentucky
Supreme Court concluded that the failure to hold a competency hearing was
harmless error. Id. at 486. The Thompson Court distinguished the situation in
Mills, supra, because it was apparent in that case, from the trial court’s own order,
that there must have been at least some level of doubt as to the defendant’s
competence. Id. at 408. In 2006, the Supreme Court revisited Mills, supra and
Thompson, supra in Gibbs v. Commonwealth, 208 S.W.3d 848 (Ky. 2006), holding
that the requirement set forth in KRS 504.100(3) is a mandatory requirement which
cannot be harmless on review. Nevertheless, it is difficult to ignore what appears
to be a mandatory hearing requirement in KRS 504.100(3).
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The hearing need not be complex, but the
Commonwealth and the defendant must be given an
opportunity to present evidence on the issue of
competency and an opportunity to cross-examine the
psychologist or psychiatrist who prepared the report.
While better practice is to hold such a hearing prior to
trial, a retrospective competency hearing is permissible
when circumstances with respect to time and witness
availability are adequate to arrive at an assessment that
could be labeled as more than mere speculation.
Gibbs, supra. at 853, n.13.
In the present case, the motion for psychiatric testing stated that
Dorris had undergone psychiatric treatment and counseling since his childhood and
that he continued to be treated for those conditions. The trial court’s order for
psychiatric examination stated as follows:
This case came on for hearing and it appearing that there
is reason to believe that the above Defendant is not
mentally capable of understanding the charges against
her/him, or aiding her/his counsel in the trial of said case.
IT IS HEREBY ORDERED . . . that the Defendant
[undergo a psychological evaluation].
By the language of the order, it appears that the court had some reason to believe
the Defendant may have been incompetent. Further, Dorris avers that an
evidentiary hearing was scheduled but never commenced before the plea was
entered.3 Finally, we observe that upon reviewing the record of the plea colloquy,
Dorris was unable to remember the name of his own attorney, stating “I don’t
know her name –[she’s a] short lady.” Additionally, we note that the trial court
recommended mental health counseling for Dorris in its sentencing orders. Given
3
However, we are unable to ascertain the veracity of this statement from the record.
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these combination of factors, and given the Supreme Court’s holding in Gibbs,
supra, we are unwilling to say that failure to hold the hearing was harmless error.
The next question is what relief may be afforded Dorris on remand.
In Thompson, the Court noted the perplexing nature of the remedy to be afforded a
defendant in cases where it is determined that a competency hearing should have
been held. Id. at 409. The Thompson Court, in keeping with the position of many
of the federal circuits, held that retrospective competency hearings are disfavored,
but that reversal is not always required. Id. Rather, retrospective competency
hearings are permissible where the hearing will not violate a defendant’s due
process rights. Id. Some of the factors to consider in determining whether a
retrospective competency hearing will satisfy the requirements of due process
include:
(1) the length of time between the retrospective hearing
and the trial;
(2) the availability of transcript or video record of the
relevant proceedings;
(3) the existence of mental examinations conducted close
in time to the trial date; and
(4) the availability of the recollections of non-experts,
including counsel and the trial judge, who had the ability
to observe and interact with the defendant during trial.
Id., citing United States v. Makris, 535 F.2d 899, 904 (5th Cir. 1976). This list is
not exhaustive, however, and the question is necessarily determined on a case-bycase basis. Id. Additionally, the passage of time alone is not an “insurmountable
obstacle.” Id. See also, Cremeans v. Chapleau, 62 F.3d 167, 170 (6th Cir. 1995)
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(Passage of nearly nine years’ time did not violate criminal defendant’s due
process rights).
The premier question is whether the quality and quantity of the
available evidence is such that an assessment as to the defendant’s competency
could be made which is more than mere speculation. Id. On remand, the
Commonwealth bears the burden of showing “that a retrospective competency
hearing is permissible.” Id. Our case law dictates that such a determination should
be left to the trial court. Id. However, just as in Gibbs, supra, we are unaware of
any reason that a proper hearing could not be held.
Conclusion
As such, we remand this case to the Ohio Circuit Court for a
determination of whether a retrospective competency hearing is permissible.
If a retroactive hearing is deemed permissible, the court shall
hold such a hearing. If the hearing demonstrates that Dorris was, indeed,
competent to plead guilty, then the Ohio Circuit Court shall enter an order with
findings of fact in support of its conclusion. Such order shall be appealable by
Dorris.
Absent a showing by the Commonwealth that a retroactive hearing is
permissible, or if a retrospective hearing is held and it is determined from that
hearing that Dorris was not competent to plead guilty pursuant to Kentucky Rules
of Criminal Procedure (“RCr”) 8.06, the trial court shall follow the procedures set
out in KRS 504.110 and KRS 202A or 202B, as may be appropriate.
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ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Charlie Dorris, pro se
LaGrange, Kentucky 40032
Jack Conway
Attorney General of Kentucky
Julie Scott Jernigan
Assistant Attorney General
Frankfort, Kentucky 40601
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