State v. Lockwood

Annotate this Case
STATE_V_LOCKWOOD.90-067; 160 Vt. 547; 632 A.2d 655


    NOTICE:  This opinion is subject to motions for reargument under
    V.R.A.P. 40 as well as formal revision before publication in the
    Vermont Reports.  Readers are requested to notify the Reporter of
    Decisions, Vermont Supreme Court, 109 State Street, Montpelier, Vermont
    05609-0801 of any errors in order that corrections may be made before
    this opinion goes to press.

                                  No. 90-067

    State of Vermont                        Supreme Court

                                            On Appeal from
         v.                                 District Court of Vermont,
                                            Unit No. 1, Rutland Circuit

    Gerald A. Lockwood                      March Term, 1992


    Paul F. Hudson, J.

    Peter R. Neary, Rutland County Deputy State's Attorney, Rutland, for
      plaintiff-appellee

    E.M. Allen, Defender General, and Anna Saxman, Appellate Attorney,
      Montpelier, for defendant-appellant


    PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


         ALLEN, C.J.   Defendant, a mildly retarded adult, appeals from an
    order of the district court revoking his probation.  He claims that (1)
    his probation warrant should be declared void because he lacked the
    capacity to sign it, or that it not be enforced because of the doctrine
    of impossibility, (2) the court erred by revoking probation without
    holding an additional competency hearing and without notifying
    defendant's protective services guardian, (3) warrantless searches of
    his living quarters and person by probation officers violated his
    constitutional privacy rights, and (4) a probation condition
    prohibiting possession of photographs of children violated his freedoms
    of speech and religion.  We affirm.

 

         In 1986, defendant was charged with sexually assaulting a four-
    year-old girl.  In February 1987, after evaluation and hearing, he was
    found competent to stand trial.  After additional evaluation and a
    hearing in December 1987, the court again found defendant competent to
    stand trial.  The court concluded that defendant had a firm knowledge
    of the facts concerning his actions and whereabouts, that he was able
    to assist his attorney in locating and examining witnesses, that he was
    able to discern distortions and misstatements in testimony, that he
    could make decisions in response to carefully explained alternatives
    concerning his defense, that his comprehension improved with
    explanation, and that there was no indication that his condition would
    worsen under the stress of trial.
         Prior to the second competency proceeding, the court granted
    defendant's petition for protective services pursuant to 18 V.S.A. {{
    9301-9317.  The court found that he was unable to provide for his own
    needs and appointed a protective services worker.  The court further
    found that defendant had "no understanding of the concept of a contract
    or any of the implications involved in entering into a contract."
         In January 1988, pursuant to a plea agreement, defendant pled nolo
    contendere and was sentenced to serve three-to-eight years.  The court
    suspended all but 153 days and placed defendant on probation with
    special conditions that prohibited him from possessing dolls, dolls' or
    children's clothing, and pictures of children.  In February 1989,
    probation officers and a state police officer searched defendant's room
    and workshop at his supervised residence and found a knife, dolls,
    children's clothing, and hundreds of pictures of children.  In March

  

    1989, while the resulting violation of probation was pending, defendant
    pled nolo contendere to a charge of lewd and lascivious conduct for
    exposing himself to young girls.  For that offense, he received a
    sentence of zero-to-four years, all suspended.  For the violation of
    probation, he was sentenced to serve the original underlying term of
    three-to-eight years, all suspended but 161 days with credit awarded
    for 153 days already served.  New conditions were added to defendant's
    probation warrant, including that he not possess any firearm or other
    deadly weapon and that he submit to a "body, clothing, [and]
    residential search as required."
         Defendant signed his probation warrants after both sentencings and
    initialed each condition following explanation by a probation officer.
    His protective services worker was not present when he signed the
    warrant.  The court found that defendant understood his probation
    conditions when imposed and that those conditions were given
    significant attention during the pendency of his probation.  For
    example, at all weekly meetings with defendant, his probation officers
    read each special condition, explained its meaning, and discussed it
    with him.  On each visit, they required him to write out his "rules"
    until they were committed to memory.  Once defendant was placed in a
    private residential setting in early 1989, his supervisor, who has a
    master's degree in education and counseling, reviewed defendant's
    special conditions with him daily and emphasized that his living
    quarters and workshop area were subject to frequent, unannounced
    searches.
         After defendant displayed symptoms similar to those exhibited

  

    prior to his earlier violation of probation -- refusing to perform
    tasks, complaining about restrictions, and displaying general agitation
    -- his supervisor searched defendant's workshop area looking for
    pictures of children.  In defendant's file cabinet, the supervisor
    found a fully operational pistol with clips and ammunition, which had
    been left elsewhere in the residence a year earlier by an acquaintance
    of the supervisor.  Probation officers then searched defendant's living
    quarters and workshop area.  They found photographs of female children,
    magazines and newspapers with pictures of young children, a child's T-
    shirt, a doll's cap, children's records, a wrench, a chain, a hand
    gardening tool, a ten-inch drill bit, a plastic covered braided wire,
    and single-edged razor blades.  A probation officer strip-searched
    defendant but found nothing.
         In connection with his revocation hearing, defendant moved to
    suppress introduction of physical evidence, arguing that the
    warrantless searches violated his constitutional privacy rights.  He
    also moved to suppress statements he made, arguing that he had not
    waived his right to remain silent and to consult with an attorney.  The
    court denied these motions, concluding that the state's interest in
    protecting the community permitted a degree of encroachment on
    defendant's privacy rights, that defendant had consented to the search
    when he signed his probation warrant, and that he had not been in
    custody when the statements were made.  In December 1989, the court
    found that defendant had violated three conditions of his probation and
    later sentenced him to serve both underlying sentences of three-to-
    eight and zero-to-four years consecutively.


 
                                      I.
         Defendant raises two contract-based challenges to the validity of
    his probation warrant.  Defendant first argues that a probation warrant
    is a contract, which in this case was void and unenforceable because it
    was not signed by the protective services worker to whom the court had
    delegated defendant's power to contract.  We disagree.
         The provisions of 18 V.S.A { 9310(a)(2), which grant a guardian
    "power to approve or withhold approval of any contract . . . which the
    retarded person wishes to make," do not require the guardian's
    signature on a defendant's probation warrant.  Although we have termed
    probation warrants "contracts," State v. Whitchurch, 155 Vt. 134, 139,
    577 A.2d 690, 693 (1990), the purposes of a probation warrant
    illustrate its difference from an ordinary contract.  A probation
    warrant serves to give a defendant fair notice of what conduct may
    constitute a probation violation, thereby resulting in defendant's loss
    of liberty.  State v. Peck, 149 Vt. 617, 619, 547 A.2d 1329, 1331
    (1988).  Section 9310(a)(2), however, refers to contracts that "the
    retarded person wishes to make."  Here, defendant chose to plead guilty
    and accept probation to avoid possible incarceration.  Although
    defendant may have "wished" to make the probation contract with the
    court, his choice was forced and the result of his criminal conduct.
    We conclude that a probation warrant is not the type of contract
    contemplated by { 9310(a)(2).
         Second, defendant argues that he lacked the ability to comprehend
    or comply with his conditions of probation; therefore, performance of
    the probation warrant was impossible from the outset, and this Court

 

    should not enforce the contract. (FN1) As stated above, a probation warrant
    differs from an ordinary contract.  Moreover, the evidence does not
    support defendant's argument that the performance of the warrant was
    impossible.  Instead, the court took pains to fashion unique probation
    conditions that were suited to defendant's particular situation in
    order to create the best chance for his rehabilitation.  Moreover, as
    previously noted, the probation officers repeatedly discussed these
    conditions with defendant and helped him commit them to memory.
         Nor does defendant's alleged inability to comply with the
    conditions at the time of the violation bar revocation of his
    probation.  Probation is intended to allow a defendant an opportunity
    for rehabilitation at the same time it protects society.  See United
    States v. O'Sullivan, 421 F. Supp. 300, 302 (S.D.N.Y. 1976) (despite
    rehabilitative purposes of probation, it will be revoked if defendant
    is a danger to society).  The purpose of a revocation hearing is not to
    determine defendant's culpability, but rather to decide "whether the
    alternatives to incarceration which have been made available to a
    defendant remain viable for him."  People ex rel. Gallagher v. District
    Court, 591 P.2d 1015, 1017 (Colo. 1978) (en banc).  Revocation will

 

    result when the continuation of probation conditions would be at odds
    with the need to protect the public and society's interest in
    rehabilitation -- in other words, when the rehabilitative purposes of
    probation have failed and defendant is a threat to society.  Trumbly v.
    State, 515 P.2d 707, 709 (Alaska 1973); People v. Allegri, 487 N.E.2d 606, 607 (Ill. 1985); State v. Hutchison, 580 N.E.2d 34, 36 (Ohio Ct.
    App. 1989); see 28 V.S.A. { 303 (stating grounds for revocation).
    Thus, many courts have ruled that a plea of not guilty by reason of
    insanity is not a defense in probation revocation hearings because
    defendant's personal culpability is not at issue.  See, e.g.,  Trumbly,
    515 P.2d  at 708-09 (insanity defense irrelevant in probation
    revocation hearing); People v. Breaux, 161 Cal. Rptr. 653, 657 (Ct.
    App. 1980) (insanity not a defense to probation violation, but relevant
    to probation revocation or modification); People ex rel. Gallagher, 591 P.2d  at 1017 (sanity a factor only in determining continued
    availability of probation); Allegri, 487 N.E.2d  at 608 (insanity
    defense has no bearing on relevant issue of whether defendant a danger
    to society); Hutchison, 580 N.E.2d  at 36 (issue in revocation hearing
    is whether probation should remain available, not whether defendant
    responsible for acts alleged).  If a defendant's subsequent inability
    to comply with a probation condition barred revocation, this
    effectively would limit a sentencing court's flexibility to fashion
    appropriate probation conditions.  Courts would sentence defendants to
    unnecessary periods of imprisonment whenever there appeared to be a
    risk of violation because of questionable ability to comply.  Allegri,
    487 N.E.2d  at 609.

 

         Although defendant's alleged inability to comply with the
    conditions at the time of violation does not bar revocation, his mental
    ability is a relevant factor in deciding whether the continuation of
    his probation will be at odds with the need to protect society.  See
    State v. O'Meal, 569 P.2d 249, 251 (Ariz. Ct. App. 1977) (time of
    probation violation relevant to viability of continued probation);
    Breaux, 161 Cal. Rptr.  at 657; People ex rel. Gallagher, 591 P.2d  at
    1017.  In this case, the court took defendant's mental capacity into
    consideration at the revocation hearing.  The court's decision was not
    an abuse of discretion.  See State v. Therrien, 140 Vt. 625, 627, 442 A.2d 1299, 1301 (1982) (if violation is established, court has
    discretion to revoke probation and impose original sentence under 28
    V.S.A. { 304).
                                      II.
         Defendant raises two issues regarding the revocation hearing.
    First, he argues that the trial court erred by subjecting him to
    revocation proceedings without notice to, or the presence of, his
    protective services worker.
         A judge found defendant competent to stand trial in December 1987
    following extensive evaluation and a contested hearing.  At the time of
    that hearing, the judge was fully aware of defendant's need for
    protective services because he himself had appointed a protective
    services worker in May 1987 after concluding that defendant was unable
    to provide for his own needs.  We agree with the judge's implicit
    conclusion that defendant's need for protective services, as determined
    pursuant to 18 V.S.A. { 9309, could not bar his full participation in

 

    criminal proceedings when, as here, a defendant is subsequently found
    competent to stand trial.
         Once defendant was found competent to stand trial and face
    criminal consequences for his conduct, due process considerations
    precluded the involvement of his protective services worker.  See State
    v. Ladd, 139 Vt. 642, 644, 433 A.2d 294, 295 (1981) (retention of
    guardian ad litem for competent adult violates defendant's due process
    rights).  The protective services proceedings did not alter the finding
    of competency because the two proceedings relied on distinct criteria.
    Protective services focus on a mentally retarded person's need for
    supervision and protection. 18 V.S.A. { 9309(e)(4).  In contrast, a
    competency determination measures whether a defendant is capable of
    understanding the criminal proceedings and consulting with an attorney.
    Godinez v. Moran, 113 S. Ct. 2680, 2685 (1993).  Moreover, a criminal
    proceeding, including a revocation hearing, is not the type of
    "judicial action" which a guardian may "commence or defend" under 18
    V.S.A. { 9310(a)(3), and consequently, the statute does not provide
    for the guardian's participation in defendant's criminal proceeding.
    There was no error.
         Second, defendant argues that the trial court erred by failing to
    conduct a new competency hearing before commencing the revocation
    proceeding.  We find no error in the court's decision to rely on the
    prior finding of competency because the court had no indication of the
    need for a new determination.
         The trial court has a duty to order a psychiatric examination and
    conduct a competency hearing if there is "reason to believe that [the

 

    defendant] may be incompetent to stand trial."  13 V.S.A. { 4817(b).
    Moreover, the same standard of competency applies to defendants who
    stand trial as to those who plead guilty.  Moran, 113 S. Ct.  at 2686.
    Once a defendant has been found competent, the trial court must be
    alert to changed circumstances that would indicate the need for a new
    determination of competency.  Drope v. Missouri, 420 U.S. 162, 181
    (1975).
         Here, the court had no indication before it of any change
    warranting a new competency hearing.  The court considered the issue
    and concluded that it would leave the earlier determination of
    competency in place "absent something more than [defense counsel's]
    feeling about it."  In finding defendant competent in December 1987,
    the court concluded that his comprehension improved with explanation.
    The evidence demonstrated that between 1987 and the revocation
    proceeding defendant received extensive explanation regarding his
    conditions and the consequences for violating them.  Although defense
    counsel told the court that she had trouble communicating with
    defendant, she did not point to any changed circumstances that would
    have indicated to the court the need for a new inquiry into
    defendant's competence, and we can find no such indication in the
    record.  Cf. State v. Pierce, 569 P.2d 865, 869 (Ariz. Ct. App. 1977)
    (nothing in record to support need for second competency inquiry prior
    to sentencing); State v. Heral, 342 N.E.2d 34, 38 (Ill. 1976) (record
    did not reflect changed circumstances that would have alerted trial
    judge to need for new competency hearing).  Moreover, defense counsel
    never requested a new competency hearing prior to the revocation

 

    proceedings.  We conclude that the court did not err when it decided
    not to order a third competency hearing prior to commencing revocation
    proceedings.
                                     III.
         Defendant claims that the warrantless searches of his living
    quarters and person violated rights guaranteed by the Fourth Amendment
    to the United States Constitution (FN2) and Chapter I, Article 11 of the
    Vermont Constitution.(FN3)  Preliminarily, defendant argues that he was not
    competent to waive his privacy rights when he signed his probation
    warrant.  We need not rule on this issue because, unlike the trial
    court, we do not rely on defendant's consent to his probation terms.
    Even when a probationer signs a blanket condition agreeing to future
    searches, he may continue to enjoy residual privacy rights deserving
    some constitutional protection.  Cf. State v. Emery, 156 Vt. 364, 369,
    593 A.2d 77, 79 (1991) (probationers are subject to restrictions not
    imposed on ordinary persons, but only to the extent they serve the
    ends of probation).
         The United States Supreme Court has held that searches of
    probationers' homes pursuant to a state regulation are permissible
    under the Fourth Amendment where the officer possesses "reasonable
    grounds" for the search.  Griffin v. Wisconsin, 483 U.S. 868, 872

 

    (1987).  In such situations, the search need not satisfy the higher
    probable cause standard. (FN4) Id. at 873.  The Court applied this lesser
    standard because it acknowledged that the special needs of the state in
    administering probation require balancing the rehabilitative needs of
    probationers against concerns for protection of the community.  Id. at
    873-74.
         Here, probation officers acted pursuant to a condition of
    probation rather than a state regulation.  As this Court has noted,
    however, when probation conditions are "supported by the findings and
    are narrowly tailored to fit the circumstances of the individual
    probationer. . . . probation searches based on reasonable suspicion can
    have the same indicia of reasonableness as the search upheld in
    Griffin."  State v. Moses, __ Vt. __, __, 618 A.2d 478, 484 (1992)
    (citations omitted).  Such specific and narrowly tailored probation
    conditions provide guidance to probation officers similar to that
    provided by the regulatory scheme in Griffin.  United States v.
    Giannetta, 909 F.2d 571, 575 (1st Cir. 1990).
         Ideally, the probation condition itself will limit the search to
    the specific requirements for the supervision of the particular
    defendant.  See United States v. Schoenrock, 868 F.2d 289, 291-92 (8th
    Cir. 1989) (where defendants pled guilty to conspiracy to distribute

 

    cocaine, probation condition allowing warrantless searches was limited
    to submission to chemical testing for drugs and random searches for
    alcohol and controlled substances).  In some instances, however, such
    narrow probation conditions are not appropriate or possible.  The
    United States Court of Appeals for the First Circuit upheld a search
    based on a probation term that required that the defendant "at all
    times during his period of probation, readily submit to a search of his
    residence . . . by his supervising probation officer, upon the
    officer's request."  Giannetta, 909 F.2d  at 573.  The court held that
    the defendant's guilty plea to the complex offense of drug trafficking
    and his admitted strong attraction to the excitement of crime posed
    "more than an average risk that [the defendant] would revert to his
    prior criminal ways."  Id. at 575-76.  Because of this high risk of
    recidivism, the trial court had expressed concern that the defendant be
    subject to rigorous scrutiny when it imposed the probation condition.
         As in Giannetta, in this case there was ample evidence that
    defendant posed "more than an average risk" of repeating his offense.
    The court emphasized that defendant's chance for repeating his offense
    was high because of the dual nature of his condition:  mental
    retardation and sexual deviancy.  The combination of these two factors
    resulted in compulsive sexual behavior without awareness of the
    consequences of this behavior.  Moreover, defendant had been sexually
    abused as a child.
         The plea agreement hearing focused on defendant's need for a
    special rehabilitation program in the absence of an appropriate program
    for mentally retarded sex offenders.  All of the witnesses at the

 

    hearing noted the concern of protecting society from the high risk that
    defendant would repeat the offense.  As one witness stated,
    "[Defendant] will be aroused by children the rest of his life . . . .
    [W]e do not expect to cure his compulsive behavior."  Instead, the
    focus of the rehabilitation would be to teach defendant to control his
    compulsive urges.  The court stated:  "The Department of Corrections is
    going to be asked to supervise this defendant.  It seems to me that
    we're putting the department in an extremely difficult position to ask
    them to supervise someone who has a definite need and yet not to give
    them the resources."  Thus, the evidence of the high risk that
    defendant would repeat his offense supported the condition allowing a
    search by the probation officer.
         Moreover, the court's expressed concerns regarding defendant's
    compulsive sexual urges provided guidance to the probation officer as
    to the purposes of any search that would be conducted.  See Giannetta,
    909 F.2d  at 575-76.  These findings provided sufficient guidance to the
    officers conducting the search to meet the test set forth in Moses that
    the condition be narrowly tailored to fit the circumstances of the
    individual probationer.
         The probation condition, however, on its face allowed a search by
    the probation officer with or without reasonable suspicion.  This error
    could invalidate the probation term under Griffin.  The same flaw in
    the probation condition was present in Giannetta.  Id. at 576.  This
    Court adopts the holding in Giannetta, which states:  "Although this
    flaw theoretically renders the probation search condition overbroad,
    the absence of a reasonableness limitation is not objectionable so long

 

    as the decision to search was in fact narrowly and properly made on the
    basis of reasonable suspicion . . . ."  Id.  Under Griffin, the
    officers must have had "reasonable grounds" to conduct the searches.
    Griffin, 483 U.S.  at 872.  In the present case, defendant's agitation
    -- similar to behavior he exhibited prior to his earlier probation
    violation -- triggered the initial search by his supervisor.  Once she
    found the gun, which defendant subsequently denied having, the
    probation officers had more than reasonable grounds to conduct a
    thorough search of his living quarters.  Thus, although the probation
    condition in this case is flawed, this error was overcome because the
    officers had reasonable suspicion to conduct the search, and these
    searches did not violate defendant's Fourth Amendment rights.
         Defendant also argues that his Fourth Amendment rights were
    violated by the officers' strip search of his person.  We need not
    reach this issue as no evidence was produced from this search.
         Defendant asks this Court to construe Chapter I, Article 11 of the
    Vermont Constitution to require a warrant for the searches of his home
    and person.  Although we are mindful that limits must be placed on such
    searches and that consent to future searches "as required" does not
    permit unfettered intrusions into the private lives of probationers, we
    find that the "reasonable grounds" standard establishes the proper
    safeguard.  We are persuaded by the reasoning of Griffin:  that the
    special needs of the state in administering its probation program
    creates an exception to the warrant requirement and permits a degree of
    "impingement upon privacy that would not be constitutional if applied
    to the public at large."  483 U.S.  at 875.

 

         Despite the absence of the word "unreasonable" from the text of
    Article 11, it has been construed consistently to forbid only
    unreasonable searches and seizures; reasonable searches are
    constitutionally permissible.  State v. Record, 150 Vt. 84, 85-86, 548 A.2d 422, 423 (1988).  A warrantless search may be reasonable:
    "Article Eleven does not mandate an absolute prohibition against
    searches and seizures undertaken without a proper warrant."  Id.  We
    apply the reasonableness standard here, but decline to require a
    warrant because the terms of probation and the court's expressed
    concerns provided sufficient guidance to the probation officers
    regarding the purposes and parameters of allowable searches.
         We have previously held that in the prison setting, in which
    special needs of the state make the warrant and probable cause standard
    impracticable, the state must adhere to certain administrative
    safeguards to protect the residuum of inmate privacy.  State v. Berard,
    154 Vt. 306, 314, 576 A.2d 118, 122-23 (1990) (mandating administrative
    guidelines to govern routine, random, warrantless searches of inmates).
    While the privacy rights of probationers are arguably greater than
    those of inmates, the needs of the state in administering probation, as
    opposed to a correctional facility, remain strong.  Without walls, the
    probation system strives to protect the public while it attempts to
    rehabilitate its participants.  We hold that, if a probation term
    provides for warrantless searches and the terms of probation are
    narrowly tailored to fit the circumstances of the individual proba-
    tioner, the Griffin "reasonable grounds" standard strikes the proper
    balance between probationer privacy rights and public protection

 

    concerns.  If officers have reasonable grounds, as they did here, to
    conduct a search under the authority of a condition of probation,
    Article 11 does not require a search warrant.

                                      IV.
         Defendant argues for the first time on appeal that the condition
    of probation that prohibited him from possessing "any photographs of
    children under the age of 18" violated his freedoms of speech and
    religion guaranteed by the First Amendment to the United States
    Constitution and Chapter I, Article 13 of the Vermont Constitution.
    Because defendant failed to raise this issue below, we confine our
    analysis to plain error.  State v. Mace, 154 Vt. 430, 436, 578 A.2d 104, 108 (1990) (absent plain error, this Court will not consider
    probationer's constitutional claims raised for the first time on
    appeal).  We find none.
         "Probation conditions may impact upon a probationer's First
    Amendment rights so long as the conditions have a reasonable nexus with
    rehabilitation of the defendant and protection of the public."  Id.
    The court has broad discretion in setting conditions of probation, 28
    V.S.A. { 252(a), and may require a probationer to satisfy "any . . .
    conditions reasonably related to his rehabilitation," Id. { 252(b)(13).
    Here, an expert testified that people with defendant's problems often
    collect pictures of children because they are "extremely important to
    what sexually turns them on."  He further testified that defendant had
    "extreme difficulty" controlling his sexual behavior relative to
    children.  We find the disputed condition reasonably related both to
    defendant's rehabilitation and protection of the public.  Moreover, the

 

    condition was not "unduly restrictive of [defendant's] liberty or
    autonomy," Whitchurch, 155 Vt. at 137, 577 A.2d  at 692, as we can find
    no evidence that he retained the pictures for religious or expressive
    purposes.
         Affirmed.

                                            FOR THE COURT:



                                            Chief Justice

FN1.    The dissent states that this opinion "glosses over the real
 issue presented -- whether defendant was competent to enter into guilty
 pleas and probation warrants."  The United States Supreme Court has
 recently decided that the competency standard for pleading guilty is
 the same as the competency standard for standing trial.  See Godinez v.
 Moran, 113 S. Ct. 2680, 2686 (1993).  Defendant has not provided any
 reasons why the Vermont Constitution's due process protections would
 guarantee a higher standard of competency; therefore, defendant has
 waived the issue because it has not been squarely raised before this
 Court.  See R. Brown & Sons, Inc. v. International Harvester Corp., 142
 Vt. 140, 142, 453 A.2d 83, 84 (1982) (issues not briefed on appeal are
 waived).

FN2.    The Fourth Amendment states, in part:  "The right of the people
 to be secure in their persons, houses, papers, and effects, against
 unreasonable searches and seizures, shall not be violated, and no
 Warrants shall issue, but upon probable cause."

FN3.    Article Eleven states: "That the people have a right to hold
 themselves, their houses, papers, and possessions, free from search and
 seizure; and therefore warrants, without oath or affirmation . . .
 ought not to be granted."

FN4.    In Vermont, the standard for probable cause resembles the
 reasonable grounds test adopted here.  State v. Towne, __ Vt. __, __,
 615 A.2d 484, 488-89 (1992) (rejecting "more likely than not" standard
 and holding that probable cause can be based on the reasonable
 inference of criminal behavior).  The important inquiry is whether the
 determination of reasonable grounds should have been made by the
 officers who searched, or rather by a "neutral and detached
 magistrate."  Johnson v. United States, 333 U.S. 10, 15 (1948).


-------------------------------------------------------------------------------
                                Dissenting
 

 NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
 as well as formal revision before publication in the Vermont Reports.
 Readers are requested to notify the Reporter of Decisions, Vermont Supreme
 Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.

                                 No. 90-067

 State of Vermont                             Supreme Court

                                              On Appeal from
      v.                                      District Court of Vermont,
                                              Unit No. 1, Rutland Circuit

 Gerald A. Lockwood                           March Term, 1992


 Paul F. Hudson, J.

 Peter R. Neary, Rutland County Deputy State's Attorney, Rutland, for
   plaintiff-appellee

 E.M. Allen, Defender General, and Anna Saxman, Appellate Attorney,
   Montpelier, for defendant-appellant


 PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


      JOHNSON, J., dissenting.  Although one may question whether judicial
 institutions are always the most appropriate or effective ones for dealing
 with society's most intractable problems, for better or for worse, that is
 where many of them come for resolution.  If we are to have any success at
 all in such cases, we need, at a minimum, to bring a perspective whose
 breadth is equal to the scope of the problem.  In this case, which concerns
 a mentally retarded sex offender, the majority has applied a narrowly
 focused analysis that glosses over the real issue presented -- whether
 defendant was competent to enter into guilty pleas and probation warrants
 that imposed specific, highly restrictive conditions.  In my view, the
 majority's approach dooms us to the perpetuation of antiquated, illogical

 

 and ultimately, unjust modes of treatment for individuals whose problems
 demand solutions that are uniquely sensitive to their special needs.
      A year before the guilty plea underlying the current probation
 warrant, and two years before the probation revocation hearing, defendant
 had been found, at best, marginally competent to stand trial on unrelated
 charges.  This marginal competence decision is now held to validate all
 further judicial proceedings with respect to this defendant.  In my opinion,
 a very different process should have occurred in this case, one that
 included a context-specific inquiry directed at defendant's competence to
 plead guilty, enter into a probation agreement and understand its
 conditions.  Because no such inquiry took place, the probation warrant
 underlying the revocation should be found invalid and unenforceable.  The
 fact that compliance with the probation warrant was not "facially
 impossible" is simply irrelevant if defendant lacked competence to enter
 into its terms.  In addition, defendant's competence should have been
 reconsidered before his trial on the probation violations that are the
 subject of this appeal.
                                     I.
      In order to appreciate fully the issues presented by this case, a more
 thorough explication of the facts than appears in the majority opinion is
 necessary.
                                     A.
      First, the procedural history is complex.  Defendant committed a sexual
 assault on a minor.  He was found competent to stand trial.(FN1) Later, a plea

 

 agreement was negotiated on this charge, but defense counsel questioned
 whether defendant was competent to enter a plea.  Another competence hearing
 was held, and in December, 1987, defendant was found competent to stand
 trial and permitted to enter a plea of guilty in January, 1988.  He received
 a split sentence, with a very short jail term and a long period of probation
 in a closely supervised residential setting.  Commencement of the sentence
 was delayed a few weeks and, shortly before he was to begin his jail time,
 defendant committed lewd and lascivious conduct.  He pled guilty to this
 offense, but not until a year later, in March, 1989.  At that time, he also
 pled guilty to a violation of probation based on possession of a knife.  On
 the basis of these pleas, he received another sentence, consecutive to the
 earlier sentence, but suspended, and he entered into a new probation
 warrant that incorporated the old conditions and added numerous, and much
 more specific conditions, including the prohibition that he not possess
 pictures of children, dolls and doll's clothing.  In April, 1989, within a
 month after entry of the conditions, he was found in "possession" of a gun,
 tools that were considered "deadly weapons," dolls (the kind of action
 figures so popular with defendant's mental age group), see part I.B. infra,
 and magazines and newspapers with children's pictures in them, all in
 violation of probation.  After a hearing, he was found in violation of his
 probation and sentenced to serve the remainder of the two consecutive
 sentences.  It is from this conviction that defendant appeals.
                                     B.
      The critical facts in this case concern defendant's ability to
 understand the proceedings against him.  Defendant is mentally retarded.
 His I.Q. has been tested at 66, which is described as "mildly, mentally

 

 retarded" or "educable."  These terms, however, belie defendant's ability to
 function in society.  He cannot read.  His ability to reason abstractly is
 severely impaired.  As an examining psychiatrist put it, defendant's under-
 standing of words is "almost totally concrete."  He probably functions below
 a third grade level.  In practical terms, he is only minimally able to care
 for his personal needs; he does not engage in regular grooming tasks, and
 does not understand his basic health needs.  He cannot handle his own
 finances.  Although he has received considerable assistance from mental
 health services organizations, he does not have the ability to maintain and
 follow up on these services when necessary.  As found by the trial court
 that granted his petition for a protective services worker, he has "no
 understanding of the concept of a contract or any of the implications
 involved in entering into a contract."(FN2)
                                     C.
      As previously noted, defendant's competence was determined twice, with
 both hearings taking place before his plea to the original sexual assault
 charge.  The second hearing, held in November and December, 1987, purported
 to consider whether he was competent to enter a plea; but the court, in
 accordance with the prevailing law at the time, assessed defendant's
 competence as if he were to stand trial.  The court heard some testimony
 from defendant on his understanding of the choices between trial and plea,
 but it is fair to say that the inquiry revolved around the usual questions--
 whether defendant had a firm knowledge of the facts concerning his actions

 

 and whereabouts, whether he was able to assist his attorney in locating and
 examining witnesses, and whether he could make decisions about his defense
 in response to carefully explained alternatives.  Whether defendant had the
 capacity to understand and comply with the conditions ultimately imposed on
 him was not an issue at this or any other hearing.
      Defendant's testimony in the second competence hearing reveals the
 depth of his difficulties in understanding the proceedings in which he was
 involved.  He was unable to answer any truly nonleading basic question about
 the judicial system and the operation of a trial.  He thought a trial is
 when "everybody gets together."  He could parrot what others told him, but
 it was momentary.  When asked follow-up questions that would have demon-
 strated an understanding of the subjects just discussed with him, he could
 not respond.  He could not answer why he had been evaluated by one of the
 psychiatrists, Dr. Payson.  He had virtually no concept of time, especially
 as related to his probable sentence.  He thought three to eight was the same
 as thirty-eight.  The only definite conclusion that one could draw from
 defendant's testimony was that he was terrified of going to jail.
      Complicating the competence issue for the trial court was the fact that
 three examining psychiatrists largely agreed on defendant's functional prob-
 lems, but used different standards to translate those problems into a legal
 conclusion.  On one end of the spectrum, Dr. Kron considered the issue of
 competence as a fairly straightforward, uncomplicated matter that consisted
 of asking people "what they're being charged with, are they able to
 cooperate with counsel, and [do] they understand the procedures, the
 mechanics of the courtroom."  On the other, Dr. Payson, the only
 psychiatrist to recommend that defendant be found incompetent, viewed legal

 

 competence as more in the nature of the standard enunciated in Dusky v.
 United States, 362 U.S. 402 (1960).  Dr. Payson stated the "information
 available to me and the other experts does not support a decision that
 [defendant] can communicate meaningfully with his lawyer so as to be able to
 make informed choices regarding trial strategy.  [He does not have] capacity
 for rational . . . understanding of the proceedings against him."  Only Dr.
 Taylor was candid about the uneasy intersection of law and psychiatry.  As
 he pointed out, "I regret being ordered to be conclusory in cases which are
 so clearly in the gray area.  I have little way of knowing how courts
 balance the privilege of trial against fairness doctrines.  My knowledge of
 law is irrelevant and incompetent.  The disagreeing evaluators are using the
 same observations, and surely the disagreement is not in psychiatry but
 rather in the imprecise definition of competency, which is a legal matter."
      Upon this evidence, defendant was found competent to "stand trial,"
 although he intended to plead guilty.  At the plea hearing, a cursory
 V.R.Cr.P. 11 colloquy was held in which defendant answered that he
 "understood" the meaning of pleading guilty.  The competence decision, as
 the trial judge acknowledged, was a difficult one, given the conflicting
 evidence and at least one previous finding of incompetence.(FN3) But it is

 

 this borderline decision that was relied on by the trial court, and now the
 majority, to support a plea of guilty to new charges, a probation violation
 a year later, and a hearing on new probation violations two years later.
                                     II.
                                     A.
      In an adversary system of justice, it is fundamental that the
 conviction of a mentally incompetent person is a violation of due process.
 Drope v. Missouri, 420 U.S. 162, 171-72 (1974); Pate v. Robinson, 383 U.S. 375, 378 (1966).  The test for assessing competence originated in the common
 law and is now codified in federal and state statutes.  See generally, Note,
 Incompetency to Stand Trial, 81 Harv. L. Rev. 454, 457-59 (1967).  Vermont
 statutes do not set forth any particular test for determining competence,(FN4)
 but the test approved by the United States Supreme Court is whether a defen-
 dant "has sufficient present ability to consult with his lawyer with a
 reasonable degree of rational understanding--and whether he has a rational
 as well as factual understanding of the proceedings against him."  Dusky,
 362 U.S.  at 402.  It is not enough that a defendant is oriented to time and

 

 place and has some recollection of the events.  Id.  The focus is on a
 defendant's capacity to understand the nature of the proceedings against him
 so that he may make a rational defense.  Note, Incompetence to Stand Trial,
 supra, at 457.
      Today, the majority implicitly adopts the prevailing view, recently
 endorsed by the United States Supreme Court in Godinez v. Moran, 113 S. Ct. 2680 (1993), that a defendant found competent to stand trial is competent
 for all other judicial proceedings, including the entry of guilty pleas.(FN5)
 Id. at 2686.  The rationale for this view is that during trial defendant may
 be required to waive important constitutional rights and that these rights
 are similar to the rights a defendant waives in pleading guilty.  Therefore,
 the argument goes, once a defendant is found competent to stand trial--a
 conclusion that is formulated largely by finding out if defendant has a
 knowledge of the facts, can assist his attorney in locating and examining
 witnesses, and can make decisions in response to carefully explained
 alternatives -- he is, ipso facto, able to understand the significance and
 consequences of a guilty plea, and enter into a probation warrant.  The
 Supreme Court in Moran then requires, after a finding of competence to stand
 trial, a "second-tier" inquiry for the entering of a guilty plea: whether
 the waiver of defendant's constitutional right to trial is intelligent and

 

 voluntary. Id. at 2687.(FN6) According to the Moran majority, "[in] this sense
 there is a 'heightened' standard for pleading guilty . . . but it is not a
 heightened standard of competence." Id. (emphasis in original).
      Moran deals with a mentally ill, not a mentally retarded, defendant.
 It is not clear whether the standard it adopts would also be applied by the
 United States Supreme Court in cases concerning the competence of defendants
 who are mentally retarded.  In any case, for reasons set forth below, I find
 the logic of its argument fatally flawed, and I would reach a different
 result in this case, analyzing defendant's due process rights under the
 Vermont constitution.(FN7)

 

      Even prior to Moran, a few courts had challenged the prevailing view
 that competence to stand trial is sufficient to support a guilty plea.
 United States v. Masthers, 539 F.2d 721, 726 (D.C. Cir. 1976); Sieling v.
 Eyman, 478 F.2d 211, 214 (9th Cir. 1973).  This minority view was concerned
 with the finality of the guilty plea and its attendant consequences.  See
 Masthers, 539 F.2d  at 725 (guilty plea is a conviction and as conclusive as
 a jury verdict).  Implicit in their argument was that, if there is not to be
 a fair trial of the issues, then courts must assure themselves, by some
 degree of heightened scrutiny regarding competence, that the defendant who
 pleads guilty is making a "reasoned choice."  Sieling, 478 F.2d  at 215; see
 also Schoeller v. Dunbar, 423 F.2d 1183, 1194 (9th Cir.) (Hufstedler, J.,
 dissenting) (defendant is not competent to plead guilty if mental illness
 has impaired his ability to make a reasoned choice), cert. denied, 400 U.S. 834 (1970).  In effect, the minority view raised the level of scrutiny by
 elevating the level of competence required to plead guilty.  This approach
 raised concern among courts that defendants incompetent to plead guilty, but
 competent to stand trial, would be excluded from the advantages of plea
 bargaining, although commentators argue that lenient sentencing of persons
 with diminished competence could have the same result as a plea.  Ellis &
 Luckasson, Mentally Retarded Criminal Defendants, 53 Geo. Wash. L. Rev. 414,
 464 (1985).
                                            B.
      In my view, both the Moran holding and the former minority view miss
 the mark.  I agree with Sieling that heightened scrutiny of a guilty plea is

 

 necessary when a mentally retarded defendant is before the court, but I
 disagree that the competence problem is resolved by adopting a higher
 standard of competence to plead guilty.  I also disagree that the problem is
 resolved by a uniform minimum finding of competence, applicable to all
 judicial proceedings, to be followed when the waiving of a constitutional
 right is at issue by an inquiry into the voluntariness of that waiver,
 outside the arena of competence.  I think we have to recognize the special
 needs of mentally retarded offenders and devise a solution that is relevant
 both to their disabilities and to the needs of society at large.
      Although it is true that a defendant may be incompetent to stand trial
 because of mental illness, as in Pate, or because of mental retardation, as
 in Masthers, the law does not differentiate--as I believe it should--between
 these forms of mental disability when dealing with competence.(FN8) The
 mentally ill suffer disturbances in their thought processes and emotions,
 but the mentally retarded have deficits in their ability to learn.  Ellis &
 Luckasson, supra, at 424.  Despite this major difference, the legal rules
 appropriate to determine competence "have become, at best, an afterthought
 to the fervent battles involving criminal defendants who are mentally ill."
 Id. at 415.
      A discussion of common characteristics associated with mental retarda-
 tion (FN9) demonstrates how certain learning deficits substantially affect

 

 the criminal legal proceedings in which the retarded find themselves.  For
 example, mentally retarded people have limited communication skills and
 have difficulty in both expressing thoughts and receiving and understanding
 them from others.  To overcome this deficit, they may engage in "biased
 responding," that is, answering yes when they think the questioner is
 looking for a yes.  Id. at 428.  Thus, the form of the questions asked may
 cause unreliable answers.  They may provide responses that appear to be
 based on their memory of events when, in fact, they have no memory of these
 events.  Id.  Moreover, they may deny their disability by overrating their
 own physical or mental skills, or "masking" their handicap by indicating an
 understanding of events when they have none.  Id. at 430.
      Mentally retarded people also have problems in attention span, focus
 and selectivity in the attention process.  This characteristic may affect
 trial preparation if a defendant is unable to focus on what counsel consider
 is a relevant incident; or under questioning, a defendant may appear to be
 "steering deviously" away from critical events, when it is actually the
 disability that is preventing defendant from responding appropriately.  Id.
 at 429.
      Finally, studies on moral development in the mentally retarded
 indicate that some have "incomplete or immature concepts of blameworthiness
 and causation."  Id.  They may not be able to distinguish events that are
 accidents for which they are truly blameless from events they have caused.
 Id. at 429-30.  They may even plead guilty to crimes they did not commit
 because they believe "someone" should be blamed, and they do not understand

 

 the concept of causation.  Id. at 430.  Coupled with a desire to please
 authority figures, such "outer-directed" behavior indicates that some
 mentally retarded persons will be highly vulnerable to suggestions of
 authority figures.  Id. at 432.
      Thus, mentally retarded individuals, who may possess some or all of the
 characteristics outlined above, present unique problems for the judicial
 system.  The critical problem, as demonstrated by this case, is that the
 inability to understand abstractions and to communicate effectively, with
 its accompanying compensating behaviors, is so marked in some mentally
 retarded offenders that it undermines the whole truth-seeking function of
 the court.  Yet, despite our theoretical concern with due process for the
 mentally retarded, the American judicial system is convicting mentally
 retarded defendants who are either misdiagnosed or underdiagnosed on a
 frequent basis as to their degree of mental retardation.  Studies consis-
 tently show that pretrial diagnosis of mental retardation in defendants is
 only between two and seven percent, whereas some ten percent of the
 correctional population actually suffer from mental retardation.  Bonnie,
 The Competence of Criminal Defendants with Mental Retardation to Participate
 in Their Own Defense, 81 J. of Crim. L. & Criminology 419, 419-21 (1990).
 Clearly, we are doing something wrong.
      A reasoned and practical approach to competence decisions is offered by
 Richard J. Bonnie in the work just cited.  Bonnie concludes that the most
 effective method of protecting the interests of both the mentally retarded
 offender and the state is to use the current standard of competence to stand
 trial as a base-line competence standard, but to conduct an individualized
 and contextualized inquiry into a defendant's competence to make individual

 

 decisions or types of decisions.  If the competence inquiry is decision
 specific, it will protect defendants during all phases of the criminal
 proceeding.
      In support of his conclusion, Bonnie argues that the competence
 construct utilized by courts is based on three important reasons why we view
 the trial of an incompetent person as inconsistent with due process.  He
 labels these reasons as dignity, reliability and autonomy.  The dignity of
 the state is offended if it subjects to criminal prosecution a person who
 lacks a meaningful moral understanding of wrongdoing and punishment.   We
 are concerned with reliability of the proceedings because proceeding
 against a defendant who lacks capacity to recall relevant information and
 assist an attorney undermines society's interest in the integrity of its
 criminal process.  We are also concerned with autonomy, which is derived
 from legal rules that establish that certain decisions regarding the defense
 or disposition of the case are within the prerogative of the defendant.
 These include decisions regarding the plea, and if the case is to be tried,
 whether the defendant will be present and will testify.  Id. at 428.
      Aside from the preserving the dignity rationale, which must be present
 in every competence decision, the other elements of the construct may or may
 not be relevant, depending on the context.  If a defendant is facing a
 decision at trial that may be made by counsel, then decisional competence is
 less important than when defendant must make a decision on a plea bargain,
 even though we may consider decisions at trial to be just as "weighty" as
 whether to plead guilty. See Moran, 113 S. Ct.  at 2694 (Blackmun, J.,
 dissenting) (whether defendant is competent to stand trial with assistance
 of counsel is a different question from whether defendant can proceed

 

 alone).  To stand trial, then, the emphasis is quite properly on the
 defendant's ability to recall the facts and participate in the defense of
 the case.
      On a guilty plea, however, the entire construct is important.  There
 must be a reliable factual basis for the plea, V.R.Cr.P. 11(f), and to the
 extent the defendant is found competent to assist counsel at trial with
 adequate recall of the facts and participate in the defense, this capacity
 enhances the reliability of a plea.  But this level of competence does not
 tell us anything about the mentally retarded defendant's ability to under-
 stand the significance and consequence of pleading guilty.  Instead, the
 competence inquiry on a guilty plea should be directed specifically at the
 capacities required to make the decision facing the defendant.
      The key question is what level of decisional competence should be
 required.  The "reasoned choice" standard, as had been adopted by the
 Sieling and Masthers courts, may be too demanding because it is at odds with
 a realistic understanding of the attorney-client relationship in criminal
 defense.  This is a relationship in which most clients, retarded or not,
 rely on the advice of counsel.  See Allard v. Helgemoe, 572 F.2d 1, 26 (1st
 Cir.) (failure to understand the intent element of burglary did not render
 plea unconstitutional where counsel provided defendant with full
 information prior to plea), cert. denied, 439 U.S. 858 (1978).  If we accept
 a realistic theory of autonomy that permits defendants to act upon the
 advice of counsel, on less than a complete understanding of all of the
 relevant considerations, in areas where they retain the prerogative to
 decide, then we should focus less on the "correct" test for decisional

 

 competence and more on facilitating an appropriate relationship between
 attorney and mentally retarded client.  Bonnie, supra, at 426.
      To that end, we should encourage, not bar, the involvement of
 surrogates such as guardians, protective service workers, family or others
 who know the defendant's capabilities and who can improve communication and
 understanding between the defendant and counsel.  I, therefore, disagree
 with the majority's holding, based on State v. Ladd, 139 Vt. 642, 644, 433 A.2d 294, 295 (1981), that it would have been a violation of due process in
 this case to involve defendant's protective services worker in the judicial
 proceedings, once defendant was found competent to stand trial.  With
 respect to mentally retarded defendants, such due process concerns are, at
 best, insubstantial and at worst, a charade used to avoid the difficult and
 sensitive task of devising procedures that realistically address the special
 needs of this class of defendants.  See Masthers, 539 F.2d  at 727 n.39
 (preserving efforts at "normalizing" treatment of retarded requires good
 offices of nonretarded to safeguard welfare of retarded and improve their
 understanding of complex constitutional rights).
      We should not continue to view the question of competence for the
 mentally retarded as a black or white issue.  Rather, we should see it, as
 Dr. Taylor described it, as one that is full of gray.  By taking care not to
 regard a competence decision as one made for all time, courts will be able
 to make more informed decisions about competence for particular proceedings.
 The gravity and complexity of the proceedings at issue may then be taken
 into account in determining whether defendant is competent to participate.
 In that sense, the standard of competence above the base-line standard can
 be flexible; different standards of competence may be required depending on

 

 the issues and decisions facing the defendant and the degree to which the
 defendant's understanding may or may not be enhanced by surrogates and
 counsel.  Even with help, some defendants will be excluded from pleading
 guilty, and the state will be put to its proof.  So be it.  It is more
 consistent with due process to have a fair trial precede incarceration than
 an unknowing plea and violation of probation conditions.
      Here, the only competence hearing that was held was directed at
 defendant's competence to stand trial, and no hearing was held prior to the
 guilty plea and probation warrant that underlies the probation revocation
 proceedings.   Therefore, I cannot accept, as consistent with due process,
 the majority's holding that the trial court's finding of competence to
 stand trial is sufficient to support the plea and probation warrant that now
 forms the basis for the current violations, (FN10) and I respectfully dissent.
      Defendant's due process rights would not be adequately protected by
 remanding the case for a psychiatric examination to determine whether he was
 competent to enter a plea of guilty and comprehend the resulting conditions
 imposed on him in 1989.  Nor would defendant's due process rights be
 protected by remanding the case for determination of whether defendant
 "voluntarily and intelligently" waived his constitutional right to trial
 when he entered the plea, which would be the "second tier" of the Moran
 inquiry, once the first-tier finding of competence to stand trial has been
 made.  See Moran, 113 S. Ct.  at 2685-87.  He should be released from custody

 

 and the State given the option to retry him on the charges underlying the
 1989 pleas.  See Drope v. Missouri, 420 U.S. 162, 183 (1974) (it would be
 inadequate to attempt to determine defendant's competence at time of trial,
 but State may retry defendant if he is found competent); Pate v. Robinson,
 383 U.S. 375, 386-87 (1966) (failure to conduct competence hearing required
 petitioner's release, but State was free to retry if petitioner found
 competent).
                                    III.
      I also dissent from the majority's holding that the trial court was not
 required to hold a new competence hearing prior to the probation revocation
 hearing.  I believe this to have been error for two reasons.  The first is
 that competence should be a context-specific inquiry.  See part II, supra;
 see also Moran, 113 S. Ct.  at 2696 (Blackmun, J., dissenting) (defendant's
 competence to waive counsel and represent himself should have been assessed
 separately from his competence to stand trial with assistance of counsel).
 Whereas a mentally retarded defendant may be competent to assist counsel in
 a simple proceeding, a more complex one may be beyond the same defendant's
 cognitive abilities.  Therefore, even base-line competence to stand trial
 should be redetermined when the factual context changes.  See United States
 v. Vamos, 797 F.2d 1146, 1150 (2d Cir. 1986) (the competence inquiry is
 limited to defendant's abilities at the time of trial), cert. denied, 479 U.S. 1036 (1987).
      The second reason is that, under our own statutes, and as a matter of
 due process, the court was obligated to hold a hearing when it had reason to
 believe that defendant was not competent to participate in the probation
 revocation hearing.  13 V.S.A. { 4817(b); Drope, 420 U.S. at 178-81; Pate,

 

 383 U.S.  at 385-86.  Even when there is a finding of competence to stand
 trial, the court must be alert during the trial to changed circumstances
 that shed doubt on defendant's competence, and that may require a new
 hearing.  See Drope, 420 U.S.  at 181 (holding that it was a violation of
 due process not to redetermine the competence of a mentally ill defendant
 during the course of the trial after he attempted to commit suicide); see
 also Moran, 113 S. Ct.  at 2696 (Blackmun, J., dissenting) (based upon
 defendant's behavior during course of proceedings, and his own testimony
 regarding four medications he was being administered, "there can be no doubt
 that the trial judge should have conducted another competency evaluation").
      The majority states that no changed circumstances were before the
 court.  The issue, however, is not changed circumstances, but whether the
 facts in front of the trial court were sufficient under the statute, and the
 due process clause, to cast doubt on defendant's competence to stand trial.
 The facts available to the trial judge, who was not the same judge who had
 held the competence hearing in 1988, were that a) defendant was mentally
 retarded; b) the last competence hearing had been held approximately two
 years earlier on a different matter; c) the 1988 competence decision, as
 noted supra, can only be characterized as a borderline finding of com-
 petence; d) there was at least one previous, judicial finding of incom-
 petence to stand trial; and e) most significantly, defense counsel had
 expressed her inability to work with defendant in formulating a defense
 because of his cognitive deficiencies.  Counsel stated to the court that she
 had difficulty understanding defendant and making herself understood, and
 that, on the eve of trial, she had been unable to work with defendant to
 formulate a rational defense.  She had not worked with a mentally retarded

 

 defendant before and had no knowledge of how to do so.  She was struggling
 to find an expert in mental retardation who had not been involved with the
 prior cases, just to bridge the communication gap between her and her
 client.  Under these circumstances, it can hardly be said, as the majority
 does, that the only evidence supporting a new competence hearing was
 "[defense counsel's] feeling about it."
      The court's response to counsel's statements regarding her
 difficulties with her client was to continue the hearing, but after
 presentation of the State's case, so that defense counsel could find an
 expert.  The defense ultimately presented was that defendant's mental
 retardation prevented him from understanding and complying with the
 conditions.  Particularly with reference to "possession" of the gun, the
 defense contended that defendant might not have understood the meaning of
 "possess."  Defendant found the gun on the premises of where he had been
 living.  It was undisputed that it had been left there by a friend of
 defendant's supervisor at least a year before it was discovered.   After the
 gun was found, defendant was confronted about it obliquely by the probation
 officer, who questioned whether defendant was in violation of his "rules."
 Defendant denied that he was.  At a later time, when asked very directly
 about the gun, he answered without hesitation that he knew right where it
 was, and that he would take his probation officer to it.  He told her it was
 not his gun.  These seemingly inconsistent responses appeared evasive to his
 confronters.  Because none of the people who worked with defendant had been
 trained to work with the mentally retarded, they tended to take defendant's
 responses at face value, and drew inferences of guilt from his actions and
 responses as they would from a person of average intelligence.

 

      Defendant's expert described defendant's concrete thinking this way:
 "If you say do you know where the gun is, [defendant] would say yes.  He's
 answering the question.  He can't abstract that out to mean yes, I know
 where the gun is.  Do you mean I should take you to it, or do you mean I
 should bring it to you.  He can only answer very concretely that question
 that's asked."  The expert explained that when defendant found the gun, he
 must have faced a dilemma as to what to do with it, and solved it by hiding
 it away in a file cabinet, "out of sight, out of mind."
      Defendant's expert's testimony was juxtaposed with that of the
 probation officer.  The probation officer was sure defendant understood his
 conditions because they had been read to him repeatedly and he had been made
 to recite them.  But even if defendant understood them at the time they were
 communicated to him, the "reading" could not solve the abstract thinking
 problem presented for defendant when he found the gun on the premises of his
 residential placement.
      The competence problem was not solved by permitting defendant to use
 his mental retardation as a defense to the charges.  Lack of competence is
 not a defense; it deprives the entire proceeding of due process.  As the
 United States Supreme Court stated in Drope v. Missouri:
         The import of our decision in Pate v. Robinson is that
         evidence of a defendant's irrational behavior, his
         demeanor at trial, and any prior medical opinion on
         competence to stand trial are all relevant in
         determining whether further inquiry is required, but
         that even one of these factors, standing alone may, in
         some circumstances, be sufficient.  There are, of
         course, no fixed or immutable signs which invariably
         indicate the need for further inquiry to determine
         fitness to proceed; the question is often a difficult
         one in which a wide range of manifestations and subtle
         nuances are implicated.

 

 Drope, 420 U.S.  at 180.  Further inquiry was compelled by the facts of this
 case.  Failure to conduct an inquiry violated defendant's right to due
 process.  See id. at 181.
      Finally, defense counsel's failure to request a new competence hearing
 does not bar relief.  The transcript shows that counsel did raise the issue
 with the court and was so quickly cut off that further requests would have
 been futile.  But even if counsel was required to do more, defendant cannot
 waive this right.  See Pate, 383 U.S.  at 384 (incompetent defendant cannot
 knowingly and intelligently waive his right to have the court determine his
 capacity to stand trial, so that failure to demand sanity hearing did not
 amount to deliberate waiver.)  Competence may be raised and determined at
 any time when sufficient facts are before the court to compel a hearing, and
 may even be the subject of a post-conviction collateral attack.  See id. at
 385-86.
                                     IV.
      The relationship between criminal law and the mentally retarded has had
 a difficult and contentious history.  Ellis & Luckasson, supra, at 414-21.
 I would venture to say that few serious observers have been satisfied with
 the course of the law's development.  Despite the growing recognition in the
 1960s and 1970s that the mentally retarded were not treated well by the
 criminal justice system, and some sporadic efforts at reform, the current
 problem is a lack of attention to the unique needs of mentally retarded
 defendants.  Id.  This case amply demonstrates, in my view, that legal
 doctrine is not yet equal to the challenges posed by persons with serious
 mental disabilities.  Perhaps, given the complexities and subtleties
 involved, and the individual differences of each new case, it will ever be

 

 so.  I am not content, nonetheless, to take false refuge in excessive
 literalism, cold logic or a crimped perspective.  As judges, we must uphold
 the law.  We must also do justice.  I am not persuaded that the decision in
 this case does either.




                                         ____________________________________
                                         Denise R. Johnson, Associate Justice




FN1.   Defendant had previously been found incompetent to stand trial in
 unrelated proceedings.

FN2.   I agree with the majority that it is inappropriate to use contract
 theories to analyze the legal incidents of a probation warrant.  The ability
 of defendant to understand the concept of a contract is relevant here,
 however, because a probation warrant, like a contract, is essentially a
 statement of a legally enforceable obligation.

FN3.   By finding defendant competent to stand trial, the court was able to
 impose a split sentence with a short period of incarceration, followed by
 probation in a private, residential setting with conditions directed at some
 rehabilitation.  In hearings related to this matter, the court expressed
 concern that jail was an inappropriate setting for defendant, in part
 because of the potential victimization by others, but also because
 defendant's cognitive deficiencies would preclude his participation in sex-
 offender treatment programs operated by the Department of Corrections.  In
 fashioning its own disposition, the court here acted in default of the
 Commissioner of Mental Health, and, in my view, reached an erroneous
 competence decision to do so.  It is the Commissioner who is charged by the
 statutes to provide appropriate custody, care and habilitation to mentally
 retarded individuals who are a danger to others, as long as the Commissioner
 has a designated program.  18 V.S.A. {{ 8839, 8843(c).  The Commissioner
 has no program for mentally retarded sex offenders, and in a recent case,
 claimed it is too expensive to provide individual programs.  In re D.C.,
 ___ Vt. ___, ___, 618 A.2d 1325, 1328 (1992).  I do not fault the court for
 its efforts in crafting a creative solution, but given defendant's cognitive
 difficulties, the ultimate and certain result was defendant's incarceration
 for the majority of two consecutive sentences.

FN4.   Few Vermont cases have actually stated a standard for competence.  In
 In re Russell, 126 Vt. 240, 243, 227 A.2d 289, 290 (1967), the court noted
 that a defendant with a mental disability must be found by the court to
 "comprehend the nature of the proceedings against him and participate
 rationally in the decisions relating to his own defense."  See also State
 v. Williams, 154 Vt. 76, 79, 574 A.2d 1264, 1265-66 (1990) (defendant was
 competent if he could understand the nature of the charges against him and
 was able to assist intelligently in his defense).

FN5.   The majority's explicit holding is that compliance with the warrant
 is not facially impossible.  This implies the intermediate, but unstated,
 holding that a finding of competence to stand trial presumes that defendant
 is competent to participate in all other stages of the judicial process, and
 will be able to comprehend and comply with the conditions imposed upon him,
 as long as they are not facially impossible.

FN6.    The Court in Moran distinguishes a finding of competence to stand
 trial, which it defines as the defendant's ability to understand the
 proceedings, from a finding that a voluntary and intelligent waiver of
 constitutional rights was made, for which inquiry as to whether "the
 defendant actually does understand the significance and consequences of a
 particular decision" is required.  Moran, 113 S. Ct.  at 2687 n.12.


FN7.    The majority states that it does not reach the competence issue
 under our state constitution because defendant "waived the issue because it
 was not squarely raised before this Court."  Defendant did raise competence
 issues under the Vermont constitution in his original brief, albeit in a
 cursory fashion.  His shortcoming, if any, is inadequate briefing.  Although
 we have sometimes declined to reach issues for that reason, I believe that
 it cannot be justified in this case.  In State v. Jewett, 146 Vt. 221, 500 A.2d 233 (1985), we recognized that we have an obligation "when state
 constitutional questions of possible merit have been raised, to address them
 or order that they be rebriefed when the briefs do not pass muster."  Id. at
 229, 500 A.2d  at 238 (emphasis added).  At a minimum then, this Court always
 has discretion to reach state constitutional issues that are squarely
 raised.
     Moreover, even taking a narrower view, it is particularly inappropriate
 to decline to reach the state constitutional issue in this case.  After
 defendant raised competence issues under both the federal and state
 constitutions, we ordered additional briefing specifically to address
 whether the standard of competence to stand trial is the same as the
 standard of competence to plead guilty and whether a finding of competence
 to stand trial may support, without further inquiry, a plea of guilty.  We
 did not specifically direct the parties to brief this question under the
 Vermont constitution, but having made the request as we did, if the majority
 is dissatisfied with the response, it should not now simply ignore the
 question.  At the least, the court should order additional briefing and meet
 headlong the issue it has defined.  For myself, I am satisfied that the
 record and the briefing allow us to address the matter without further
 proceedings.

FN8.    The Supreme Court recently addressed the differences between mental
 illness and mental retardation with regard to involuntary commitment
 procedures in Heller v. Doe, 113 S. Ct. 2637 (1993), but it has not
 addressed these distinctions with regard to the issue of competence to stand
 trial or plead guilty.

FN9.   As Ellis and Luckasson are careful to emphasize, retarded people are
 individuals and are just as easily regarded in stereotypical terms as
 persons of a particular race or gender; however, some characteristics occur
 with such frequency as to warrant certain limited generalizations.  Ellis &
 Luckasson, supra, at 427.

FN10.     Although I do not agree that the two-part inquiry laid out in Moran
 resolves the issue of determining competence to enter a guilty plea, even
 under the Moran test the trial court's finding of competence to stand trial
 is insufficient to support the acceptance of defendant's plea as the second
 part of the inquiry, whether there was a "voluntary and intelligent" waiver,
 was not made.