State v. Ploof

STATE_V_PLOOF.92-276; 162 Vt. 560; 649 A.2d 774


 [Filed 16-Sep-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. 92-276


 State of Vermont                          Supreme Court

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

 Richard Ploof                             June Term, 1994


 Edward J. Cashman, J.

 Howard E. VanBenthuysen, Franklin County State's Attorney, St. Albans, for 
  plaintiff-appellee

 Dori Jones, Burlington, for defendant-appellant


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


     ALLEN, C.J.   Defendant appeals from an order of the Franklin District
 Court denying his motion to strike his sentence, following his conviction of
 second degree murder.  We affirm. 

     Defendant was accused of stabbing and killing Timothy Papineau, following
 a failed marijuana transaction, and was charged with second-degree murder in
 September 1990.  He immediately moved for a competency evaluation, which was
 completed about a month later by psychiatrist William Woodruff, who reported
 to the court and the parties that he believed defendant was competent to stand
 trial.  Dr. Woodruff examined defendant again prior to a status conference in
 March 1991, and a third time in June 1991. 

      Defendant represented himself from the middle of April to the middle of
 June, 1991, at which time the court ruled that he was not competent to
 represent himself.  The court stated: 

         After much consideration of the facts and issues, the Court
         concludes that the Defendant should be represented by a public
         defender.  This action will protect the Defendant and utilize the
         legal safeguards available to him.  Moreover, there is enough in
         the Court's eyes to question his competency to conduct a

 

         reasonable defense.  Therefore, the Court reappoints the Public
         Defender until the Court is satisfied that he is sufficiently
         competent to represent himself.

     In November 1991, defendant changed his plea to guilty, pursuant to a
 plea agreement, but no claim of incompetency was then raised by defendant or
 his attorney, or by the State or the court.      

     Still represented, defendant was sentenced in December 1991.  At the
 sentencing hearing, the State revealed two incident reports it had received a
 short time earlier concerning defendant. The following colloquy ensued: 

       [State's Attorney]:  Just to indicate to The Court at least so the
     record is clear that upon information and belief, the State had
     received information that Mr. Ploof might be contemplating some
     kind of outburst or demonstration or something even more sinister
     for his appearance, either for the visitation or for the court
     appearance. Our concern is the safety of everyone here, that we
     wanted to alert The Court and Mr. Dunham to that possibility, in
     light of the fact that the sheriff may have to adjust to some more
     stringent controls.

        THE COURT: Well, you are not required to make any
      comments, but certainly we will give you that opportunity.

        [Defendant's Counsel]:  Well, Your Honor, my client is
      expecting that he would of course have his leg shackles on during
      his visit this morning, but not to be restrained as he is currently,
      at least during the visit. We have no concerns that he has anything
      in mind other than having the best possible visit with the family .
       . . .

      The sentencing proceeding occurred without incident, and defendant was
 given a sentence  consistent with the plea agreement of twenty years to life,
 split to serve twenty-five years. 

      Defendant moved twelve days thereafter to strike the sentence, on
 grounds that he had  been incompetent at the time of sentencing.  His motion
 stated, in relevant part, with respect to  defendant's state on the date of
 sentencing: 

            1. At the time of sentencing, Richard Ploof's sole goal was to
         be sentenced so that his life was in order so that he could promptly
         commit suicide.  He planned to end his life in open court as soon
         as sentence was pronounced.  However, in order to secure his last
         visits, he had to promise to abandon the plan.  This left Richard
         Ploof in a total state of mental confusion.

 

            2. During the two weeks prior to sentencing, Richard Ploof was
         suicidal and injured himself on several occasions, including
         Thanksgiving.

            3. Richard Ploof was not competent at sentencing.

     The trial court rejected defendant's assertion that he had been suicidal
 on the date of sentencing, finding instead that the defendant intended to
 obtain further concessions from the state in the plea bargaining that
 continued right up to sentencing.  The court also found that just prior to the
 sentencing hearing, the court specifically asked defendant and the State
 whether either had any concern about defendant's competency, and neither side
 indicated any such concern. 

     The court concluded that defendant had waived his rights to assert
 incompetency at the sentencing hearing by not raising the issue and that
 during sentencing, the trial court did not have reason to believe that
 defendant may not be competent to stand trial within the meaning 13 V.S.A. 
 4817.  The present appeal followed. 

     Defendant contends first that the court violated V.R.Cr.P. 11(c) and his
 due process rights by accepting his guilty plea without determining that he
 understood the nature of the charges and the minimum and maximum penalties, in
 violation of V.R.Cr.P. 11(c)(1) and (2). Defendant did not raise this issue at
 sentencing, nor did he raise it in his post-sentencing motion, supplemental
 motion, or proposed findings.  It is therefore understandable that the trial
 court did not rule on the issue in the decision from which the present appeal
 has been taken.  We held in State v. Thompson, No. 92-036 (Vt. June 3, 1994)
 that "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."  See also State v.
 Doleszney, 139 Vt. 80, 81, 422 A.2d 931, 932 (1980) (an appeal challenging the
 voluntariness of a plea is appropriate only upon the trial court's denial of a
 timely motion to withdraw a guilty plea). 

     The first mention of this issue is in defendant's brief before this
 Court, which does not discuss the question of plain error.  Upon our own
 examination of the record, the case against 

 

 plain error is strong.  As his own brief states, defendant conceded on the
 record that he knew that he was charged with second-degree murder and that the
 potential penalty was not less than ten (10) years and not more than Life. 
 Defendant conducted the early stages of his plea bargain negotiations pro se,
 and was made aware of both the nature of the offense charged and the potential
 penalties.  The State placed clear and adequate information about the nature
 of the offense on the record, in the presence of defendant.  See In re Kivela,
 145 Vt. 454, 457-58, 494 A.2d 126, 128-29 (1985). 

     Moreover, we have always required a practical and functional application
 of V.R.Cr.P. 11 -- not as a technical formula, but rather as a guideline to
 insure fairness to a defendant in the taking of a plea.  See In re Hall, 143
 Vt. 590, 594-95, 469 A.2d 756, 758 (1983) ("It is enough that the court
 engages in an open dialogue with the defendant involving  . . .  the Rule
 11(c) elements to the end that the court is satisfied, and the record
 substantiates, that the defendant knows and understands the full array of
 legal consequences that attach to a guilty plea."). 

     Defendant next argues that defendant was incompetent at the time he pled
 guilty and that the plea should therefore be stricken.  Defendant emphasizes
 the absence of a competency hearing at any stage of the proceedings, though
 conceding that he was examined and found to be competent on at least three
 occasions.  Defendant, however, never requested a competency hearing, and
 given the number and consistency of the competency examinations, it is clear
 that the issue of competency was not raised until after the sentencing
 hearing.  We held in In re Hanson, ___ Vt. ___, ___, 623 A.2d 466, 476-68
 (1993): 

         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 [the examining physician] had performed his examination.

 In like manner, there is no question that neither defendant nor the State
 sought to pursue the 

 

 issue of competency after the series of examinations by Dr. Woodruff.

     Defendant next contends that in ruling that defendant was not competent
 to represent himself, the court effectively concluded that he was incompetent
 to stand trial.  On June 20, 1991, the court conducted a hearing with respect
 to defendant's pro se status.  The court thereafter found that "[t]he
 defendant was angry and uncooperative during the hearing.  He has a
 well-documented history of anger."  The court also noted that "Defendant is
 charged with a serious crime with a range of allowable punishment from 20
 years to life depending upon the aggravating and mitigating circumstances." 
 The court concluded that defendant should be represented by the public
 defender: 

         This action will protect the Defendant and utilize the legal
         safeguards available to him.  Moreover, there is enough in the
         Court's eyes to question his competency to conduct a reasonable
         defense.  Therefore, the Court reappoints the Public Defender to
         represent the Defendant until the Court is satisfied that he is
         sufficiently competent to represent himself.

     It is clear that the court's ruling was limited to defendant's capacity
 to represent himself in a murder trial, not his competency to stand trial. 
 Defendant never argued at trial that the determination with respect to pro se
 representation amounted to a finding of incompetency to stand trial.  The plea
 bargaining, change of plea, and sentencing all followed the ruling on the need
 for counsel, without any suggestion that the matter of competency had been
 effectively determined by the court.  Indeed, the plea bargain and change of
 plea would have made no sense in the context of a positive ruling on
 competency.  Nor does defendant cite any precedent for the proposition that
 competence to stand trial necessarily implies competence to defend oneself
 against serious felony charges. 

     Finally, defendant contends that the existence of the two incident
 reports suggesting that defendant might attempt disruptive actions at
 sentencing gave the court reason to believe that defendant may not be
 competent to stand trial within the meaning of 13 V.S.A.  4817(b).  The
 trial court, however, specifically found that none of his actions or his
 statements to the court during the proceedings suggests he would take his life
 or act out inappropriately. 

 

     Defendant argues that he presented evidence at the motion to strike that
 he had been suicidal and injured himself during the two weeks before
 sentencing, was not taking his medications, and was unable to think or act
 rationally in his own best interests.  Defendant treats these assertions as
 revelations, but the record clearly indicates they were not matters unknown to
 defendant's examining physician or the court.  The court sua sponte ordered a
 competency evaluation after receiving an unsubstantiated report of the
 defendant's attempted suicide.  Dr. Woodruff's assessments were directed at
 defendant's mental status generally, and not the impression generated by any
 specific event.  Bizarre behavior, even including suicide attempts, are
 factors suggesting a state of mind and not ipso facto indicators of any
 particular mental state. See Boag v. Raines, 769 F.2d 1341, 1343 (9th Cir.
 1985), cert. denied, 474 U.S. 1085 (1985) (prior suicide attempts, head
 injuries, bizarre behavior, and alcoholism did not raise new doubts about
 competency and did not require competency hearing); People v. Holman, 450 N.E.2d 432, 435 (Ill. App. Ct. 1983) (even evidence of established history of
 neurological problems does not by itself require competency hearing). 

     In sum, even without reference to the trial court's suggestion that
 defendant's claims of incompetency and the conduct on which they rested were
 an exercise in gamesmanship, defendant's allegedly suicidal conduct was fairly
 and thoroughly considered by the court, which found it unconvincing.  There is
 no basis to question the court's acceptance of Dr. Woodruff's evaluations
 finding defendant competent to stand trial. 

     Affirmed.

                                   FOR THE COURT:



                                            _____________________________
                                            Chief Justice