In re Hanson

IN_RE_HANSON.91-066; 160 Vt. 111; 623 A.2d 466



[Filed 26-Feb-1993]

 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. 91-066


 In re Kent Hanson                            Supreme Court

                                              On Appeal from
                                              Franklin Superior Court

                                              November Term, 1993


 John P. Meaker, J.

 Todd Taylor and Nancy M. Parmalee, Law Clerk (On the Brief), Burlington, for
    petitioner-appellant

 Howard E. Van Benthuysen, Franklin County State's Attorney, St. Albans, for
    respondent-appellee




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



      MORSE, J.   In 1987, the Chittenden District Court convicted petitioner
 of murder, and he collaterally attacked the conviction seeking post-
 conviction relief (PCR) in Franklin Superior Court.  Petitioner claimed that
 the district court erred in failing to conduct a competency hearing before
 accepting his change of plea from not guilty of first-degree murder to
 guilty of second-degree murder and that he received ineffective assistance
 of counsel.  We affirm.
      In 1963, when petitioner was twenty years old, a ruptured aneurysm in
 his brain caused him to suffer frontal lobe damage and post-traumatic grand
 mal seizures.  In 1964, following a finding of insanity in a murder case,
 petitioner was committed to Vermont State Hospital, and he returned to that
 institution frequently between 1970 and 1980.  In 1965, the Windham Probate
 Court issued a letter of guardianship to petitioner's stepfather on grounds
 that petitioner was mentally incapable of caring for himself and his
 property.
      At the arraignment in Franklin District Court, in light of petitioner's
 significant history of mental problems, the State requested, and the court
 ordered, a psychiatric examination under 13 V.S.A. {{ 4814, 4817(b).  Dr.
 John Ives, a psychiatrist appointed by the court, evaluated petitioner and
 found him competent to stand trial.  However, Dr. Ives did not report to the
 court his opinion and the bases for it.
      Later, the murder case was moved to Chittenden District Court after
 petitioner had moved for a change in venue.  Petitioner pled guilty in that
 court after an examination by the court under V.R.Cr.P. 11(c)(advice to
 defendant before acceptance of plea).  The court, however, did not conduct
 an evidentiary hearing on the question of petitioner's competency to change
 his plea.  He was sentenced to the bargained-for sentence of 20-30 years to
 serve.
      Initially, petitioner contends that the Franklin Superior Court lacked
 subject-matter jurisdiction over the PCR petition, because petitioner was
 convicted and sentenced in Chittenden County.  An inmate "may at any time
 move the [superior] court of the county where the sentence was imposed to
 vacate, set aside or correct the sentence." 13 V.S.A. { 7131 (emphasis
 added).  Section 7131, however, does not concern subject-matter
 jurisdiction of the court in which the PCR petition is heard.  The statute
 indicating the county where the PCR should be brought was enacted "to
 simplify the often cumbersome procedures associated with habeas corpus."  In
 re Stewart, 140 Vt. 351, 356, 438 A.2d 1106, 1107 (1981).  Requiring the
 superior court of the county of sentencing to hear the PCR petition was
 designed "to provide a more convenient forum for obtaining relevant records
 and witnesses."  Id. at 356, 438 A.2d  at 1107-08.  As a venue provision, the
 statute does not purport to limit subject-matter jurisdiction.  In the
 present case, it was petitioner who chose Franklin County rather than
 Chittenden, and he can hardly complain about an inconvenient forum.  In any
 event, since no issue of subject-matter jurisdiction is involved, peti-
 tioner's failure to raise the issue at trial bars its consideration on
 appeal.  State v. Mace, 154 Vt. 430, 436, 578 A.2d 104, 108 (1990).
      On the merits, petitioner contends first that the district court had a
 duty to hold a competency hearing under 13 V.S.A. { 4817(b), which provides
 that the court must order an evaluation and then hold a hearing if it has
 reason to believe a defendant may not be competent to stand trial.  State v.
 Welch, 3 Vt. L.W. 321, 322 (Oct. 2, 1992).   Petitioner's institutionaliza-
 tions, the ongoing nature of his condition, and a prior successful insanity
 plea were documented and well known to the parties and the court. Petitioner
 argues that this body of knowledge should have triggered a hearing on the
 question of his competency before he entered a change of plea.
      We held in  State v. O'Connell, 149 Vt. 114, 117, 540 A.2d 1030, 1032
 (1987) that
           at least under the following conditions, an evidentiary
           hearing on competency is not required: (1) the initial
           doubt as to competency arises with the trial court
           itself; (2) the order for a psychiatric report is
           initiated by the trial court based on its own doubt; (3)
           the report concludes that the defendant is competent to
           stand trial; (4) the issue of competency is not raised
           by either party prior to final judgment.

 Petitioner points out that in this case, it was the State, not the court,
 that had "the initial doubt" about defendant's competency, and argues that
 the O'Connell exception to the requirement of a competency hearing should
 not apply.  This distinction, however, does not support a different result
 here.  The manifest purpose of { 4817(b) is to prevent the trial of a
 defendant who is not competent to stand trial, and in carrying out that
 purpose, to resolve any disputes about competency through an adversarial
 hearing.  The keystone is the court's responsiveness to the competency
 question, whenever and however it is raised.  When a party raises competency
 and then fails to pursue the issue, the court must conduct a hearing only if
 it is not satisfied that the issue about defendant's competency to stand
 trial was adequately resolved.  There is no question on the present record
 that neither petitioner nor the State wanted to pursue the competency
 question after Dr. Ives had performed his examination.  Throughout the
 change of plea hearing, petitioner and his counsel advised the court that
 the best option was to change the plea.  If the right to counsel means
 anything, the court was not required by statute to hold a competency hearing
 when defendant waived it by not asking for one.  See State v. Williams, 154
 Vt. 76, 79-80, 574 A.2d 1264, 1265-66 (1990) (parties' voluntary agreement
 that defendant is competent obviated need for competency hearing and
 determination).
      Petitioner also contends that despite his wishes and advice of
 counsel, the trial court should have, on the basis of its own observations
 and knowledge of the medical record, conducted a hearing on competency to
 change his plea.  The superior court properly concluded that the trial
 court's failure to conduct a competency hearing sua sponte was not error,
 because the record belies this claim.  Petitioner's responses at the Rule 11
 hearing and the representations of counsel indicated that he was competent
 at that time.  In addition, the superior court determined that petitioner's
 plea had been "knowingly and intelligently" entered, a finding that is
 supported by the evidence.
      Finally, petitioner argues that the conclusion that he had received
 effective assistance of counsel was clearly erroneous.  State v. Bristol, 3
 Vt. L.W. 280, 280 (Aug. 21, 1992) (review of PCR governed by "clearly
 erroneous standard").  A claim of ineffective assistance of counsel is met
 when a preponderance of the evidence shows that "counsel's performance fell
 below an objective standard of reasonableness informed by prevailing
 professional norms" and the result would have been different had counsel
 done an adequate job.  Id. at 280-81.
      Petitioner asserts that his attorney, Daniel Albert, provided
 ineffective counsel by failing to pursue the competency issue, in failing to
 explain and advise him about involuntary hospital commitment in the event he
 was found incompetent to stand trial or not guilty by reason of insanity,
 and by failing to urge him to go to trial and raise insanity and diminished
 capacity defenses.   The record indicates, however, that defense counsel, an
 experienced public defender, gave good advice, and on each of the three
 points of challenge, his decision, explanation and advice were well within
 the prevailing professional standards of practice.
      While petitioner had been adjudicated insane in an earlier case, he was
 found competent to stand trial at that time.  He also had been found com-
 petent to stand trial by his own psychiatrist, Dr. Ives, in the case in
 question.  Albert's purported failure to explain the consequences of
 involuntary commitment to petitioner is not supported by the record either.
 Mr. Albert specifically discussed the consequences of, and procedures for,
 hospitalization.
      In sum, defense counsel weighed all the information about his client,
 including the opinion of Dr. Ives and other doctors, as well as his own
 experience with his client, and concluded that the likely success of an
 incompetency argument and the consequences of a finding of incompetency
 outweighed the consequences of the plea bargain in light of the risks of
 going to trial.  He so advised his client who was a well-informed and
 active participant in the plea bargaining negotiations.
      Finally, petitioner argues that the superior court did not indicate in
 its findings what weight, if any, it accorded the testimony of his expert
 witness.  Charles Martin, an experienced criminal defense lawyer, testified
 that in his opinion Mr. Albert did not render effective assistance in
 petitioner's defense.  Essentially, Mr. Martin believed that when competency
 is raised, a second opinion must be obtained if the initial opinion by an
 expert is that defendant is competent to stand trial.  We know of no
 standard of practice that would require a second opinion in every such case,
 and the superior court's findings implicitly rejected that opinion.  Mr.
 Martin's other observations were simply not based on the facts in the
 record.  No error was committed.
      Affirmed.




                                    FOR THE COURT:


                                    ________________________________
                                    Associate Justice