State v. Thompson

STATE_V_THOMPSON.92-036; 162 Vt. 532; 650 A.2d 139

[Opinion Filed June 3, 1994]

[Motion for Reargument Denied September 6, 1994]

 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. 92-036


 State of Vermont                             Supreme Court

                                              On Appeal from
      v.                                      District Court of Vermont,
                                              Unit No. 2, Chittenden District

 Warren Thompson                              December Term, 1993



 Matthew I. Katz, J.

 Scot Kline, Chittenden County State's Attorney, and Pamela Hall Johnson,
  Deputy State's Attorney, Burlington, for plaintiff-appellee

 Robert Appel, Defender General, William A. Nelson, Appellate Attorney, and
  Brad Powers (Law Clerk), Montpelier, for defendant-appellant



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



      MORSE, J.    Defendant pled nolo contendere to two counts of sexual
 assault, 13 V.S.A. {{ 3252(a)(1)(A), 3253(a)(7) (aggravated), reserving the
 right to appeal the court's denial of his motion to determine his competency
 to stand trial.  V.R.Cr.P. 11(a)(2) (conditional plea).  He also claims on
 appeal, for the first time in these proceedings, that his pleas were
 accepted in violation of V.R.Cr.P. 11(c)(1) and (2) because he was not
 informed of, nor did the court determine whether he understood, the nature
 of the crimes charged and their penalties.  We do not reach the merits of
 defendant's unpreserved claim of error.  We hold the competency

 

 determination was supported by the evidence.  Accordingly, the judgment of
 conviction is affirmed.
                                     I.
      In State v. Doleszney, 139 Vt. 80, 81, 422 A.2d 931, 932 (1980), a
 direct appeal from a judgment of misdemeanor conviction based on a claimed
 faulty plea of guilty under V.R.Cr.P. 11(c)(4), we stated:
             No ruling of the trial court is being appealed from.
           The defendant made no objection below to the plea taking
           procedure, and did not move for any other relief below
           until filing the notice of appeal.  The lower court
           therefore had no opportunity to correct any claimed
           shortcomings by further examination under V.R.Cr.P. 11,
           nor does this Court have the benefit of having what
           allegedly transpired expressed in findings based on an
           evidentiary hearing.

 We held that the issue over the propriety of the plea must first be raised
 in the trial court before it can be properly addressed in this Court and
 dismissed the direct appeal.  Id.  Similarly, defendant here did not raise
 his Rule 11(c) claim in the trial court.
      First, defendant argues that Doleszney has not been followed and should
 not govern.  After Doleszney, the only case that has decided a claimed Rule
 11 defect on direct appeal did not involve preservation of the issue because
 the State failed to raise lack of preservation as dispositive of the appeal
 and we did not consider the issue, one way or the other, sua sponte.  See
 State v. Gabert, 152 Vt. 83, 84-90, 564 A.2d 1356, 1357-60 (1989) (rejecting
 defendant's claim that an element of the offense was not explained).
      Second, defendant argues that a direct appeal should be available
 since he was forbidden by rule from moving to withdraw his plea in district
 court because he had been given a prison term and therefore was "in custody
 under sentence."  V.R.Cr.P. 32(d), which requires that a defendant asking to

 

 withdraw a plea not be "in custody under sentence," is no hindrance to
 relief in superior court, because, assuming that circumstances left the
 district court without authority to entertain his motion to withdraw his
 plea, post-conviction relief was still available.  13 V.S.A. {{ 7131-7137;
 see Reporter's Notes to 1980 Amendment, V.R.Cr.P. 32(d).
      In sum, an issue under Rule 11(c), alleging violations in taking a
 plea, absent plain error, demands a factual record and opportunity for the
 trial court to grant relief before this Court may properly review it.  We do
 not find plain error.(FN1)
                                     II.
      The issue on appeal properly before us is whether the trial court's
 determination that defendant was competent to stand trial was wrong as a
 matter of law.  The test for competency is "whether a defendant is capable
 of understanding the criminal proceedings and consulting with an attorney."
 State v. Lockwood, ___ Vt. ___, ___, 632 A.2d 655, 660 (1993).  Defendant
 phrases the issue this way:
             Whether a criminal defendant who believes that the
           judge, the prosecutor, his defense attorneys, and the
           examining psychiatrists are part of a satanic cult whose
           object is to do him harm, lacks a rational understanding
           of the proceedings against him.

 


      The findings by the court may be summarized as follows:  Defendant, who
 was 34 years old, had an I.Q. of 83 ("low normal range") and a criminal
 record.  Defendant purported to believe, which the trial court accepted at
 face value, that the critical "players" in the criminal proceedings (judge
 and lawyers) were "all part of a demonic cult . . . possessed by demons," a
 belief he began to develop in late 1990.  One psychiatrist testified
 defendant was delusional and in a psychotic state.  The other psychiatric
 witness disagreed, stating that defendant's demonic beliefs were "too
 convenient to constitute delusions."   The court observed, "[w]hile
 [defendant's] view may somewhat distort reality, it does not obliterate it
 [and] . . . provides [him] with a sense of comfort and freedom from personal
 responsibility."
      The court concluded defendant was competent.  13 V.S.A. { 4817(b)
 directs the the trial court to hold a competency hearing under certain
 circumstances and to make a finding "regarding [defendant's] competency to
 stand trial."  As we have frequently held, this Court will not overturn
 findings of the trial court if they are supported by credible evidence and
 are not clearly erroneous.  State v. Gallagher, 150 Vt. 341, 348, 554 A.2d 221, 225 (1988), cert. denied, 488 U.S. 995 (1988).  Here, the court found
 during the competency hearing that defendant could adequately consult with
 others, knew the names and functions of those involved in his case,
 reasonably understood the rules, and was aware of the specific charges, the
 potential penalties, and the potential consequences of the proceedings.
 During the court's colloquy in the competency hearing, the court observed
 defendant conferring with his attorney.  He took notes and his demeanor

 

 during the three-day hearing was appropriate.  The court's findings are
 supported.
      Affirmed.



                                    FOR THE COURT:



                                    ___________________________
                                    Associate Justice



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                                 Footnotes

FN1.    Defendant also claims the court erred by not appointing him a
 guardian ad litem (GAL).  The request for a GAL arose when the defense
 sought to call an attorney who had represented defendant in another case to
 testify about difficulty in communicating with, and adequately representing,
 defendant in the other case.  The State raised the attorney-client privilege
 and argued that defendant, if incompetent to stand trial as the defense
 claimed, was incompetent also to waive the attorney-client privilege.  The
 defense then suggested appointment of a GAL.  This issue was also not
 preserved.  The Conditional Plea stated only:  "The defendant . . .
 specifically reserves the right to appeal from the denial of his pre-trial
 motion to determine his competency to stand trial."  Accordingly, the issue
 about failure to appoint a GAL was waived.  V.R.Cr.P. 11(a)(2) (issue on
 appeal must be specified in conditional plea).