Opinion
C. A. PM-2020-05786
08-02-2022
ANDREW McLEAN v. STATE OF RHODE ISLAND
For Petitioner Andrew McLean: Kathleen A. Nee, Esq. For Respondent State of R.I.: Joseph J. McBurney, Esq., Jeffrey Q. Morin, Esq. For Plaintiff: Joseph J. McBurney, Esq., Jeffrey Q. Morin, Esq. For Defendant: Robert Kando, Esq.
For Petitioner Andrew McLean: Kathleen A. Nee, Esq.
For Respondent State of R.I.: Joseph J. McBurney, Esq., Jeffrey Q. Morin, Esq.
DECISION DENYING POSTCONVICTION RELIEF
KRAUSE, J.
In this postconviction-relief application Andrew McLean says that because of his mildly diminished mental acuity, his fourth (and final) defense attorney allegedly coaxed and pressured him into pleading guilty to armed robbery and other serious criminal offenses, even though he harbored a desire to go to trial. He contends that he received deficient representation, that his guilty pleas were invalid, and that his convictions should be vacated.
The Court disagrees.
McLean's Competency
Andrew McLean has been diagnosed with a Mild Intellectual Disability Disorder and a full-scale IQ of about 69. That determination was made after a March 2018 mental competency examination which was requested by Attorney Robert Kando, who replaced three prior attorneys, all of whom McLean had fired. That diagnosis generated a dispute as to whether McLean was competent to stand trial, and a competency hearing was convened.
Under Rhode Island law a defendant is statutorily presumed competent and has the burden of proving by a fair preponderance evidence that he is not. G.L. 1956 § 40.1-5.3-3(b). McLean was thus obliged to demonstrate that he was "unable to understand the character and consequences of the proceedings against him" and that he was also "unable properly to assist" in his defense. Id. at (a)(5). Addressing an accused's trial incompetency, our Supreme Court identified three areas which a defendant must surmount:
"For a court to permit an accused to be prosecuted criminally, 'three things must be found: first, that defendant understands the nature of the charges brought against him; second, that defendant appreciates the purpose and object of the trial proceedings based thereon; and third, that defendant has the mental capacity to assist reasonably and rationally his counsel in preparing and putting forth a defense to the criminal charges of which he stands accused."" State v. Owen, 693 A.2d 670, 671 (R.I. 1997) (quoting State v. Cook, 104 R.I. 442,447, 244 A.2d 833, 835-36 (1968)) (emphasis added).
The state and McLean's psychiatric experts (Drs. Barry Wall and Wade C. Myers, respectively) agreed that McLean understood the charges, the trial process, and the roles of the various participants (i. e., the judge, the prosecutor, defense counsel, and the jury). The competency hearing therefore focused on Cook's third element, namely, whether McLean had the mental capacity to assist counsel. On March 28, 2019, this Court issued a Decision finding that McLean was, in fact, competent and capable of assisting Mr. Kando to prepare a defense to the charges (hereafter the Competency Decision).
In this postconviction-relief (PCR) action, McLean unsuccessfully attempts to rekindle his incompetency claim. Although portions and excerpts from the Competency Decision are cited and reiterated herein, the Court's observations and findings recounted throughout the Competency Decision are so interwoven in the instant PCR Decision that it is included as an Appendix herewith for the reader's ready reference.
The March 28, 2019 Competency Decision was designated "Amended" simply to reflect emendation of minor errata.
Postconviction Relief Actions - Petitioner's Burden of Proof
A PCR applicant is entitled to relief if his conviction or sentence contravened his state or federal constitutional rights. G.L. 1956 chapter 9.1 of title 10; Torres v. State, 19 A.3d 71, 77 (R.I. 2011). A petitioner bears the burden of proving by a preponderance of the evidence that postconviction relief is warranted. Anderson v. State, 45 A.3d 594, 601 (R.I. 2012); Rice v. State, 38 A.3d 9, 16 (R.I. 2012).
Effective Assistance of Counsel - Strickland
PCR applications which target a petitioner' s trial counsel invite application of the "exacting standard" delivered in Strickland v. Washington, 466 U.S. 668 (1984) by which to measure the adequacy of a lawyer's performance. Perkins v. State, 78 A.3d 764, 767 (R.I. 2013); LaChappelle v. State, 686 A.2d 924, 926 (R.I. 1996).
Under Strickland's two-part test, an applicant must first demonstrate that counsel's performance was "deficient," which requires showing that his lawyer made errors so serious that he was "not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment" Strickland, 466 U.S. at 687; Powers v. State, 734 A.2d 508, 521 (R.I. 1999). Secondly, even if the petitioner can establish that deficiency, he must also show that his attorney's shortcomings "prejudiced" his defense, such that a reasonable probability exists that but for counsel's unprofessional errors, a different outcome would have resulted. Strickland, 466 U.S. at 687, 694; Crombe v. State, 607 A.2d 877, 878 (R.I. 1992). Both of Strickland's requirements must be satisfied to mount a successful ineffectiveness claim. Hazard v. State, 968 A.2d 886, 892 (R.I. 2009).
The Sixth Amendment standard for effective assistance of counsel, however, is '"very forgiving,'" United States v. Theodore, 468 F.3d 52, 57 (1st Cir. 2006) (quoting Delgado v. Lewis, 223 F.3d 976, 981 (9th Cir. 2000)), and "a defendant must overcome a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance and sound trial strategy." Hughes v. State, 656 A.2d 971, 972 (R.I. 1995), Gonder v. State, 935 A.2d 82, 86 (R.I. 2007).
Additionally, counsel's tactical or strategic selections generally do not amount to defective representation, even if retrospection proves them improvidently chosen. "As the Strickland Court cautioned, a reviewing court should strive 'to eliminate the distorting effects of hindsight."' Clark v. Ellerthorpe, 552 A.2d 1186, 1189 (RJ. 1989) (quoting Strickland, 466 U.S. at 689). See Knight v. Spencer, AA1 F.3d 6, 15 (1st Cir. 2006) ("[C]ourts should avoid second-guessing counsel's performance with the use of hindsight."). "Thus, a choice between trial tactics, which appears unwise only in hindsight, does not constitute constitutionally-deficient representation under the reasonably competent assistance standard." United States v. Bosch, 584 F.2d 1113,1121 (1st Cir. 1978); accord Linde v. State, 78 A.3d 738, 747 (R.I. 2013); Rivera v. State, 58 A.3d 171, 180-81 (R.I. 2013); and Rice, 38 A.3d at 18.
Guilty Pleas-Rule 11
The Court is mindful of the gravity of a defendant's decision to plead guilty, as it obliges a defendant to forego fundamental trial and appellate rights. To ensure the validity of those waivers, a trial justice cannot accept a proffered guilty plea unless, as prescribed by Rule 11 of the Superior Court Rules of Criminal Procedure, the court addresses the defendant directly and determines that the plea is offered voluntarily, with an understanding of the nature of the charges and the consequences of acknowledging his guilt.
Rule 11, in its entirety, provides:
"A defendant may plead not guilty, guilty or, with the consent of the court, nolo contendere. The court may refuse to accept a plea of guilty, and shall not accept such plea or a plea of nolo contendere without first addressing the defendant personally and determining that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea. If a defendant refuses to plead or if the court refuses to accept a plea of guilty or if a defendant corporation fails to appear, the court shall enter a plea of not guilty. The court shall not enter a judgment upon a plea of guilty or nolo contendere unless it is satisfied that there is a factual basis for the plea."
Hence, after completing the proceedings "the trial justice should be able to say with assurance that the accused is fully aware of the nature of the charge and the consequences of the plea." Camacho v. State, 58 A.3d 182, 186-87 (R.I. 2013) (internal citations omitted). That objective may be met in three ways: (1) by the judge explaining the essential elements of the offense to the defendant; (2) by defense counsel's representing that he or she had explained the elements to the client; and (3) by the defendant himself acknowledging the facts constituting the elements of the alleged crime. Id. at 186. The test is not whether the trial court adequately explained the charges in detail, "element by element, and fact by fact, but, more importantly, whether the defendant understood them, [a] finding [which] may be based on the 'record viewed in its totality.'" Id. (internal citations omitted).
PCR applicants bear the onus of proving by a preponderance of the evidence that they did not intelligently and understandingly waive their rights. Id. at 186-87; State v. Figueroa, 639 A.2d 495, 498 (R.1.1994).
The Criminal Offenses - The Pawnshop Robbery
The underlying criminal offenses arise from an October 23, 2015 robbery of a Providence pawnshop by McLean, Reginald Isom, and Leroy Dorsey. During that robbery, McLean deliberately shot owner/operator Justin Kemp in the head and left him for dead after completing the robbery.
When they entered the pawnshop, McLean openly carried a loaded handgun, and Isom had a knife. Dorsey was unarmed and was supposed to act as a lookout. The venture didn't start as planned. Kemp, alone in the store and sensing danger, immediately grabbed his own pistol and pointed it at the three intruders. McLean dropped his weapon, and Kemp momentarily held the three men at bay. Undeterred and intent on carrying out their planned robbery, Isom attacked Kemp with his knife, and the robbery was on.
While Kemp and Isom were wrestling, Kemp managed to fire a few shots, striking McLean in his belly and hitting Dorsey's leg. Isom eventually pulled Kemp to the floor. McLean retrieved his weapon and shot Kemp in the head at close range. After Isom scooped up Kemp's gun, Dorsey took it and tied. McLean, a big person with a large girth, was not hampered or slowed by his belly wound, and he and Isom ransacked the pawnshop.
Eventually, McLain and Isom fled, stealing electronic equipment, Kemp's cell phone, and other items, ignoring the unconscious Kemp, who lay bleeding from the gunshot wound inflicted by McLean. The entire episode was recorded from various angles by surveillance cameras in the pawnshop.
After McLean and Isom escaped, a passing postman viewed the scene through the shop's window and saw Kemp lying in a pool of blood, and emergency medical assistance and the police shortly responded to 911 calls. Kemp survived but suffered permanent and significant injury.
McLean and Dorsey were arrested within hours, but Isom was not apprehended until November 2016. Dorsey agreed to cooperate with the prosecution and pled guilty in July 2017 to first-degree robbery, conspiracy to commit robbery, felony assault, and a firearm offense. He was sentenced to serve thirty years in prison, followed by multiple suspended/probationary terms.
Isom opted for a trial, during which Dorsey testified, and in June 2018 a jury convicted Isom of the same charges to which Dorsey had pled, along with multiple firearm offenses. He was sentenced to a life term for the robbery, ten consecutive non-parolable years, and several more years with suspended/probationary terms. He was also adjudged a violator of his probation in other cases and ordered to serve sixty-six months concurrently with the pawnshop sentences. Isom's convictions have been affirmed. State v. Isom, 251 A.3d 1 (R.I. 2021).
The records of this case inconsistently spell Isom's name as "Isom" and "Eisom." This Court has referred to him as "Isom" throughout, as that is the spelling in the Supreme Court's affirmance. On November 29, 2021, his ten-year nonparolable jail term was recalibrated to suspended time, and Dorsey's term of incarceration was adjusted on January 28, 2022 to nineteen years.
After numerous stops and starts, along with four changes of attorneys, McLean's criminal case finally concluded on June 10, 2019, when he pled guilty to first-degree robbery, conspiracy to commit first-degree robbery, discharging a firearm during a crime of violence resulting in injury to Justin Kemp, and unlawfully carrying a pistol without a license. On July 31, 2019, he was sentenced, in aggregate, to a sixty-year term, ordered to serve forty years in jail (twenty without parole), and the remaining twenty years were suspended, with probation. His sentence reduction motion was denied after a hearing on February 10, 2020.
The PCR Contentions
This is McLean's second PCR application. On March 22, 2016, McLean entered guilty pleas to the same charges to which he later pled guilty on June 10, 2019. In 2016, he had agreed to serve a life sentence for the robbery and accepted suspended/probationary terms for all of the other offenses. However, because McLean later learned that his retained trial attorney had mistakenly advised him of his parole eligibility date, he filed his first PCR application on
September 6, 2019, asserting ineffective representation. That petition was granted on March 24, 2017 without objection by the state.
McLean now claims that his June 10, 2019 guilty pleas were neither knowingly nor voluntarily offered and that he was denied effective assistance of counsel because Mr. Kando pressured him into pleading guilty and substituted his own judgment for that of McLean's, who purportedly wanted to proceed to trial at the time he pled guilty. Those claims were tested at a June 23, 2022 hearing, during which Attorney Kando and McLean testified.
For the reasons set forth in the Competency Decision and for the additional reasons discussed hereafter, the Court finds that McLean's entreaties are without merit.
Oral arguments were not presented after the evidence at the PCR hearing had been completed. Although the Court subsequently offered that opportunity to counsel, neither party requested it, and the Court is satisfied that argument would not aid the decisional process. The facts and legal contentions were adequately presented during the hearing, and the issues have been amply briefed by the parties. Accordingly, the Court has made its findings and conclusions based upon the relevant record, the parties' written submissions, and other pertinent materials. See Ryan v. Roman Catholic Bishop of Providence, 941 A.2d 174, 187-88 (R.I. 2008).
Analysis
After issuing the March 28,2019 Competency Decision, the Court scheduled a trial for the second week of June. McLean, however, as was his wont regarding his previous attorneys on the brink of trial, filed a complaint with the Office of Disciplinary Counsel, criticizing Mr. Kando and requesting his removal. Pursuant to ethical standards, Mr. Kando moved to withdraw from the case. On April 11, 2019, after a hearing, this Court denied the motion and directed Mr. Kando to remain in the case. (Mot. to Withdraw Hr'g Tr. 8-15, Apr. 11, 2019.)
Rule 1.16(c), R.I. Rules of Prof. Conduct, provides: "When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation." See Mot. to Withdraw Hr'g Tr. 8-15, Apr. 11, 2019; Rules 1.16(a)(3) and (c), and ABA Criminal Justice Standards, 107D, 4-1.7.
The Court's reasons for denying the withdrawal motion are fully set forth at pages 8-15 of the April 11, 2019 hearing transcript. In essence, the Court concluded that McLean's desire to jettison Mr. Kando - just like he had forced his two prior court-appointed attorneys to withdraw -was a contrived artifice, and not at all based upon his attorney's lack of effort or their proficiency, but, instead, was motivated by McLean's persistent resolve to avoid a trial at all costs. In its ruling, the Court noted that McLean was so intent on manipulating the circumstances in any way he could to derail a looming trial, that - as was recorded from one of his ACI telephone calls - "if necessary he would attempt to sabotage the trial or extend it ad infinitum." (Mot. to Withdraw Hr'g Tr. 11, Apr. 11,2019.)
The Plea and PCR Hearings
The extensive plea colloquy on Monday, June 10, 2019 covers almost forty pages. The Court began the dialogue by reminding McLean of his misguided effort to recuse the Court, his deplorable court conduct and the venom which he directed at the Court and the prosecutors, and his dislike of Mr. Kando as well as his prior attorneys, all of whom he had branded as incompetent in his complaints to the Disciplinary Counsel. The Court asked McLean if he still maintained those hostile feelings, or whether he had decided to put all of it behind him, avoid a trial, and go forward with a disposition of the case. (Plea Tr. 3-7, June 10, 2019.) After McLean apologized for those imprecations, the following exchange ensued:
See Rule 35 Hr'g Tr. 18, 27-29, Feb. 10, 2020.
"COURT: But this begs the question, Mr. Mclean, as to whether I should really go through with this process this morning and take a plea from you, if you're willing to offer one, because you're sitting next to a lawyer that you have wanted to fire for weeks and months. You're facing a judge whom you have announced you despise. You're sitting across the table from prosecutors that you can't stand. So before I even consider going through the process with you, I have to be assured, it has to be made clear to me that from the get-go this morning you are prepared, if I can use the term, to let bygones be bygones, that you are prepared to push all that stuff aside
and that you really have a sincere, genuine interest in resolving this case along the lines that have been discussed when I first came out here and sat down. And only you can tell me that. I can't put words in your mouth. Mr. Kando can't twist your arm. You're the only one who can tell me whether all that stuff in the past is truly in the past and is not in any way affecting your desire and willingness to resolve this case without a trial. You tell me.
"DEFENDANT: Yes, Your Honor -
"COURT: Pull the microphone a little closer.
"DEFENDANT: Yes, Your Honor. I'm willing to put this behind me and I want to move forward with my life. And I know I did some things under anger and said things under anger in this courtroom, but where I've been at Eleanor Slater, the doctor has helped me get by that anger part and start looking at things and to my anger, thinking everybody is against me. So I've been trying to do better at that with the doctor that has been working on it with me, and I just thought everybody in this courtroom was against me, and the doctor is helping me to see that everybody is not. So, yes, I'm willing to put everything behind me.. . . I'm certain. So, yeah, I'm willing to put everything behind me and move forward." (Plea Tr. 7-8, June 10, 2019) (emphasis added).
The Court next reminded McLean that he had typically paid close attention to court proceedings and had even interrupted testimony during the competency hearing to ensure that he understood an issue. The Court then alerted him that prosecutor McBurney was about to recite the facts that he would prove if there were to be a trial, and that Mr. McBurney would say that McLean had entered the pawnshop intending to rob the shopkeeper at gunpoint. The Court advised McLean that he would be asked if he agreed with that incriminating recitation, or whether he intended, instead, to revert to what he had recounted to the psychiatrists and to prior counsel; namely, that he had gone to the pawnshop intending to sell the gun, not to use it in a robbery, and that he shot Mr. Kemp in self-defense. Id. at 12-14. The dialogue continued:
"COURT: But I need honest answers. I don't need you to simply go along to get along. I need honest answers. I'm not going to accept answers from you that are not true, and I'm certainly not going to take a plea when you are actually secretly harboring unto yourself and saying to yourself,
"You know what, I'll go through with this charade, but six months from now or a year from now or some other time in the future, if I don't like the sentence that Krause gives me, I'm going to say I didn't understand a thing that was going on; that I was under the influence of drugs, or I just lied to make everybody happy, or they just put words in my mouth.
"If that's what's going on in your mind, we're not going to make any headway at all. So you tell me where you're at with this whole thing.
"DEFENDANT: What do you mean by that, Your Honor?
"COURT: I want to know what's going to happen when I ask you, when Mr. McBurney gets done reading this document and says, among other things, that you deliberately and intentionally went into that pawn shop to rob the place, and you had a gun with you to help you use to commit that robbery. Is that true?
"DEFENDANT: Yes, Your Honor.
"COURT: I don't want to hear later on that you just made that up and just said it to get out of going to trial and get this thing over with:
"It really wasn't true. I didn't know what I was doing. What I was saying. I'm a dumb kid. I don't have enough information. I don't have enough intelligence. I didn't understand.
"Is that what's going on in your mind?
"DEFENDANT: No, Your Honor." (Plea Tr. 14-15, June 10, 2019.)
Next, McLean told the Court that although he had spoken with his parents and fiance, and that although not all of them agreed with his decision to plead guilty, McLean insisted and stressed to the Court that pleading guilty was his decision, not theirs, and that Mr. Kando had given him sufficient time to make that decision. At the hearing, the following was said:
"COURT: Other than Mr. Kando, who else did you tell that you were going to do this?
"DEFENDANT: My fiancee, my mom, and my father.
"COURT: When did you tell them?
"DEFENDANT: That-
"COURT: When? Not what. When.
"DEFENDANT: Oh. I want to say when Mr. Kando came to see me on Friday, I think that was. If I'm not mistaken, I think it was Friday.
"COURT: And when did you talk to your family members about this? After he left?
"DEFENDANT: Yes. After he came to me, and when he left, I called and, yes, it was after he left.
"COURT: Did they try and talk you out of it?
"DEFENDANT: A couple of them didn't agree with it, but it's not their decision, it's mine.
"COURT: That's my next question. Is this decision you're making this morning your decision, or is it being pushed on you by somebody else?
"DEFENDANT: It's my decision, Your Honor.
"COURT: You've had enough time to think about it?
"DEFENDANT: Yes. I slept on it. I slept on it. I prayed on it. He gave me a couple of— pretty nice amount of time.
"COURT: But you have had time to do this and think about it?
"DEFENDANT: Yes.
"COURT: Any question about that!
"DEFENDANT: No." (Plea Tr. 16-17, June 10, 2019) (emphasis added).
The Court also emphasized more than once in the plea colloquy with McLean that he was expressly giving up his right to a trial if he pled guilty, as well as appellate rights:
"COURT: You know, Mr. McLean, that you have an absolute right to trial on these charges. You know that.
"DEFENDANT: Yes. ***
"COURT: If I accept your guilty plea to these charges, there's not going to be any trial You understand that?
"DEFENDANT: Yes, sir, I understand that.
"COURT: And you also understand that there's not going to be any appeal either?
"DEFENDANT: Yes, I understand that, Your Honor.
"COURT: All of those rights that Mr. Kando explained to you, all of those rights that are in this plea form, all of the rights that are with any defendant at the trial, all the rights that are with any defendant on appeal, they're gone. They disappear. They're waived. You understand that?
"DEFENDANT: Yes, Your Honor'."(Plea Tr. 28,31-32, June 10,2019) (emphasis added).
And, reassuring itself that McLean was making the decision to plead guilty of his own free will, without coercion or overreaching of any kind from anyone, the Court reiterated its earlier inquiry.
"COURT: Now, here is a very important question, not that my other questions weren't important, but here is a very important question to you. I asked you whether you spoke to your grandfather. I asked if you spoke with your cousin Chill Will, you said no, about this plea. You said you did speak to other people, friends and family. And you've said that this is your decision, the one you want to make. My question now is has anybody forced you or coerced you, or cornered you, or pushed you to make this decision other than yourself?
"DEFENDANT: No.
"COURT: Are you making this decision of your own free will?
"DEFENDANT: Yes, Your Honor." Id. at 33 (emphasis added).
All of the foregoing excerpts are more than ample grounds to confirm that McLean's guilty pleas were the product of a knowing and voluntary waiver of his right to trial, as well as a waiver of all of the other rights enjoyed by an accused, and that McLean's will was in no manner overborne, or that he somehow harbored an intention to go to trial. The Court, however, rang the closing bell one more time:
"COURT: Well, this is the last call, Mr. Mclean. If you're comfortable with everything we've done here today and my acceptance of your pleas, if there's no
second thoughts in your mind, that's going to he the end of it Are you okay with all of this?
"DEFENDANT: Yes, Your Honor.
"COURT: Any questions at all?
"DEFENDANT: No. Not at this time, Your Honor.
"COURT: Well, now is the time.
"DEFENDANT: I don't have no questions." (Plea Tr. 36, June 10, 2019.)
At the conclusion of the June 10, 2019 hearing, the Court, in anticipation of the sentencing proceedings, admonished counsel:
"COURT: All right. If anything happens between now and the 24th of July that I need to know about, counsel, please alert me with dispatch." Id. at 39.
Thereafter, neither Mr. Kando nor anyone else on McLean's behalf even hinted to the Court that McLean had a desire to go to trial instead of pleading guilty. In fact, everything subsequently submitted to the Court unmistakably demonstrated that McLean was comfortable with his decision to enter a plea.
The only materials furnished to the Court between the June 10, 2019 plea and the July 31, 2019 sentencing hearing (which had been postponed a week to accommodate scheduling conflicts) were the attorneys' sentencing memoranda and a presentence report (PSR). Notably, McLean told the probation officer who prepared the PSR: "I did go in there committing something bad ... I'm not saying I'm not guilty. I know I'm guilty." (PSR 2.) There is nothing whatsoever in the PSR which suggests that McLean had any desire to take the case to trial. And, as noted supra, McLean had been conspicuously determined since 2016 to avoid or impede a trial in every way possible -by firing his trial attorneys and telling his girlfriend that if necessary, he would attempt to sabotage any trial.
Nothing in Mr. Kando's sentencing memorandum suggested that McLean regretted pleading guilty. Instead, Mr. Kando recounted McLean's acceptance of the disposition, and he wrote that the plea proceedings reflected a "thorough examination" of McLean's guilty plea. (Sent. Mem. 2.) He also noted that McLean was "remorseful" and "strongly repentant" for having shot Mr. Kemp and involving himself in the robbery plan, that McLean "is in a good place mentally" and that McLean had told him that whatever sentence is ultimately imposed, he "will be good with it" Id. at 10, 14, 15 (emphasis added).
Mr. Kando's sentencing memorandum firmly confirmed the conclusions he had expressed at the June 10, 2019 plea proceedings, when he explicitly said that he was convinced and fully confident that notwithstanding McLean's limitations he fully understood the import of the proceedings, as well as the prosecutor's prepared statement of facts underlying the criminal offenses detailing McLean's complicity:
"COURT: Mr. Kando, you've had an opportunity to speak to Mr. Mclean a couple of times over the last few days, as well as this morning. I take it you've spent a considerable amount of time with him.
"MR. KANDO: I have, Your Honor.
"COURT: What's your assessment of his mental acuity as to understanding what we're doing here this morning, and whether or not he has been under any kind of influence of medication when you were speaking with him and the decision-making that has occurred?
"MR. KANDO: Judge, I know he has - his IQ is lowish and as a result of that I've spent a great deal of time with him going over not only the plea form and all its components, but about things in general, and I'm confident that he understands just what is contained within the plea form, as well as the rights that he'll be giving up as a result of signing that plea form.
"COURT: How about the preliminary statement that the State's attorney is going to submit to the Court?
"MR. KANDO: Judge, the State's attorney gave me the preliminary statement this morning. Immediately after receiving that statement, I went down and spoke with
Mr. Mclean in the cellblock. We went over the statement slowly, I stopped after many portions of the statement to make sure that he - if he had any questions. At no time after I asked him if he had any questions, did he say to me that anything was not clear to him. So I believe that going through it slowly and explaining it to him as I went along, that he fully comprehended what was within the statement presented by the prosecution." (Plea Tr. 10-11, June 10, 2019) (emphasis added).
Shortly thereafter, Mr. McBurney likewise recited the statement of facts, paragraph by paragraph, so that the Court was completely assured that McLean had followed, understood, and agreed with each segment. At the conclusion of each portion, McLean expressed agreement with the prosecutor's statements. Id. at 23-28.
After completing the plea hearing, and having offered McLean a "last call" if he had any lingering second thoughts about pleading guilty, the Court also asked Mr. Kando if anything had been left undone:
"COURT: Are you satisfied, Mr. Kando, that we have covered everything that we need to cover?
"MR. KANDO: I am satisfied, Judge, and I would like to note my appreciation for both the Court and the prosecution for working this out." Id. at 36.
* * *
McLean asserts that there was "pressure exerted on McLean by Attorney Kando and at the request of the Court" to plead guilty. (PCR Mem. 6.) McLean misinterprets the record. In misplaced support for his asseveration that the Court purportedly urged Mr. Kando to pressure McLean to plead guilty, McLean has severed from the transcript the Court's opening observation at the commencement of the June 10, 2019 plea proceedings: "In the meantime, I had further conversation with counsel and a request was made that Mr. Kando try and persuade Mr. McLean to accept a disposition offer the state carved out." (PCR Mem. 6) (italics added by counsel, not the Court). That comment is inappropriately extracted from the transcript without contextual reference. The Court's remarks, in their entirety, were as follows:
"COURT: Mr. Kando has requested that we convene this morning. The matter was to be reached for trial today. Counsel advised me that because of witness unavailability that they would prefer to start empanelment on Wednesday, and I agreed to that.
"In the meantime, I had further conversations with counsel, and a request was made that Mr. Kando try and persuade Mr. McLean to accept a disposition offer that the stale had carved out, and one which I have relented and softened my earlier position to abide by, if it were offered and if the defendant acquiesced in.
"It is not a disposition that binds me to a particular sentence. It is a disposition that is suggested, which would offer the Court the discretion to reach a sentence for incarceration purposes of up to 50 years. Of those 50 years, 20 would include non-parolable time, and then there would be suspended time, probationary time thereafter.
"I told Mr. Kando that if that was set forth upon the table and if the defendant wanted to enter into that kind of a disposition, I would consider doing that, but that I would not bind myself to anything other than not to exceed a 50-year sentence, with the 20-year non-parolable time included." (Plea Tr. 2, June 10, 2019) (emphasis added).
At the PCR hearing, the Court said that the italicized request in the quoted passage was not made by the Court, but by counsel, and Mr. Kando concurred. (PCR Tr. 20, June 23, 2022.)
McLean's allegation that Mr. Kando pressured him to plead guilty is also unfounded. When asked at the PCR hearing whether in conferences with the prosecutors and the Court he had ever "felt any pressure to encourage Mr. McLean to accept a plea," Mr. Kando unequivocally said, "No." Id. at 18. He testified that he had discussed with McLean the option of going to trial "quite a lot." Id. at 15. After he received the state's offer, he met with McLean on three consecutive days and carefully explained to him in detail the proposed disposition, suggesting but never pressing him to accept it. Id. at 17-18, 31-32.
At the PCR hearing Mr. Kando testified that at no time had he pressured McLean to plead guilty; rather, he had merely explained to McLean his options and advised him that a trial would likely result in a guilty verdict, subjecting him to extremely lengthy prison sentences, including a life term, along with a lengthy statutorily mandated consecutive non-parolable sentence, as well as exposure to additional imprisonment for the remaining charges, all of which would far exceed the period of incarceration of the "capped" plea disposition.
Mr. Kando's advice was well founded. Not only was he fully aware of all of the incriminating evidence, particularly the striking surveillance videos and Dorsey's incriminating testimony, Mr. Kando had, after all, attended Isom's trial and was able to gauge all of the formidable evidence. Rodrigues v. State, 985 A.2d 311, 316 (R.I. 2009) (noting that "counsel clearly was aware of the strength of the state's evidence"). And, of course, contemplating McLean's grim sentencing prospects after trial, Mr. Kando must have been keenly aware that it was McLean, not Isom, who had shot Kemp.
Mr. Kando testified that he therefore recommended to McLean that acknowledging his guilt was a better option than going to trial. (PCR Tr. 15-16, 28-30, June 23, 2022.) That advice was professionally informative, entirely sensible, and most certainly not a pressure tactic. See State v. Pelletier, 966 A.2d 1237, 1241-42 (R.I. 2009) (heeding an attorney's advice to enter a plea resulting in a shorter sentence than the defendant could otherwise receive was not ineffective assistance); Gonder, 935 A.2d at 88 (observing that if the defendant failed to follow lawyer's advice to accept a plea, he risked receiving a much more severe sentence; and, thus, counsel's performance was not deficient); Hassett v. State, 899 A.2d 430,433 (R.I. 2006) (same); Rodrigues, 985 A.2d at 317 (same).
Frankly, given the overwhelming evidence of guilt, it is the view here that if Mr. Kando had recommended that McLean proceed to trial and decline the disposition offer, such advice would have constituted prejudicially deficient representation, and not at all protected by Stricklands gracious presumptive scope of "reasonable professional assistance and sound trial strategy." Hughes, 656 A.2d at 972. See Anderson v. State, 878 A.2d 1049, 1050 (R.L 2005) (observing that petitioner's guilt "was not a result of petitioner's attorney but, rather, the weight of the credible evidence against [him]").
Moreover, McLean did not plead guilty in a vacuum. Not only had Mr. Kando spent considerable time explaining the plea process in detail to McLean, the procedure and the plea form were not new or novel concepts to McLean. Long before his June 10, 2019 guilty pleas, he had previously admitted his guilt in three other felony cases (see PSR 4), and he had also entered guilty pleas to the same pawnshop charges three years earlier on March 22, 2016.
The March 2016 plea was later vacated, but it was set aside not because McLean failed to comprehend the guilty plea process, nor because he was denied his desire to proceed to trial. That PCR application was granted only because he had been mistakenly advised of the parole eligibility date for the life sentence he had agreed to accept. In his 2016 PCR petition, McLean never suggested that he hadn't understood or appreciated the plea process or the plea form, which was identical to the one he had executed and submitted to the Court on June 10, 2019. Further, in all of his prior cases, McLean fully understood that by admitting his guilt he would forfeit his right to trial. And at the June 23, 2022 PCR hearing, McLean conceded that both Mr. Kando and Mr. Cicilline, in 2016 when McLean initially pled guilty to the pawnshop charges, had told him that if he pled guilty, he would thereby relinquish his right to trial. (PCR Hr'g Tr. 51, 59, June 23,2022.)
The March 27, 2017 Judgment granting McLean's PCR petition explicitly provided that "the application is hereby granted, but solely on the grounds that his prior counsel failed to advise him of the date of his parole eligibility." (Emphasis added.)
Significantly, notwithstanding McLean's Mild Intellectual Disability Disorder, he is, as Dr. Wall concluded, "street smart." (Competency Decision 18.) Especially instructive is Dr. Wall's explanation that individuals like McLean, who have a mental disability but have experienced prior criminal prosecution, may actually comprehend court proceedings better than those who, although they suffer no such disability, have never had to deal with criminal court matters:
"It is important to assess a person's ability to stand trial based on what they know about what could happen in court. A person with a lot of experience in the criminal justice system who has a lower IQ may actually be competent or capable in some ways that a person with a higher IQ with no experience in the court might not have." Mat 10.
Adding to what Dr. Wall had labeled McLean's "street smarts," both he and Dr. Myers agreed that a person like McLean, with an IQ hovering between 60 and 70 and a mild intellectual disability, can nevertheless function in society and is capable of learning, although at a slower rate. Dr. Myers testified that "[h]avmg an intellectual disability doesn't equate with a person being" competent or incompetent. Id. at 9-10.
The Court is aware that Mr. Kando has lingering concerns about McLean's competency. (PCR Tr. 21, June 23, 2022.) From the outset, Mr. Kando questioned McLean's competency because he believed McLean lacked the ability to assist him in preparing a defense. His belief generally stemmed from McLean's refusal to discuss the case with him. However, as held in its Competency Decision, the Court readily found that McLean's antipathy to Mr. Kando's overtures was not at all a result of McLean's inability to consult and rationally converse with him. Instead, McLean had decided to obtain guidance and direction from sources other than Mr. Kando. Dr. Myers, McLean's own expert, acknowledged that McLean preferred to seek advice from his fellow inmates, "as opposed to lawyers who tell him things he doesn't like to hear," and McLean "was giving more credence to some of the jailhouse attorneys, that is, inmates and family members who were in prison, than his own attorneys," because McLean "value [s] legal guidance from inmates over his own attorney." (Competency Decision 24.)
In fact, McLean had participated in discussions about the case with his three prior attorneys. (See Competency Decision 20-23.)
McLean was unquestionably capable of rationally conferring with Mr. Kando, but he had simply, albeit ill-advisedly, chosen not to. That may have made McLean a difficult client, but not an incompetent one. "A defendant who has it 'within his voluntary control to ... cooperat[e],' is not incompetent merely because he refuses to cooperate." United States v. Simpson, 645 F.3d 300, 306 (5th Cir. 2011) (citation omitted); Ferry v. State, 453 N.E.2d 207, 212 (Ind. 1983) (emphasis added) ("The test of competency to stand trial, however, is whether the defendant has the ability to assist in the preparation of his defense. . . This is quite different than whether the defendant is willing to assist in the preparation of his defense."). (See Competency Decision 17-27.)
In any event, notwithstanding Mr. Kando's recurrent concerns about McLean's supposed incompetency because of his prior disinclination to discuss the case with him, that landscape changed dramatically on Friday, June 7,2019, when Mr. Kando secured from the state the capped plea proposal. On Monday, June 10,2019, Mr. Kando reported that McLean had been willing and able to discuss the proposed disposition with him.
And, as pointed out earlier, Mr. Kando acknowledged on multiple occasions - at the June 10, 2019 plea hearing, in his sentencing memorandum, and under oath at the June 23, 2022 PCR hearing - that from his perspective, after having gone over the entire process "in detail" with him, McLean folly understood the plea process and its import, and that he was willing to voluntarily waive his right to trial, plead guilty, and accept the offer.
Moreover, McLean has on other occasions demonstrated that his capacity to overcome his limitations extend beyond the narrow margins limned by Mr. Kando. For example, Mr. Kando wrote in his sentencing memorandum that McLean "is unable to read or write." (Sentencing Mem. 4.) However, in exercising his allocution opportunity at the July 31, 2019 sentencing hearing, McLean read, without a misstep, a letter of remorse and apology, including some personal comments directed to the Court. (Sentencing Tr. 40-41, July 31, 2019.) Noting that proficiency, the Court said:
"And this afternoon, Mr. McLean's comments and those during the plea colloquy reflect a clear ability, despite the mild intellectual disorder, to express himself rationally, and he was reading to me from a document as he exercised his right of allocution, something that you [Mr. Kando] have been telling me for quite some time that has been one of his serious limitations. His inability to read." Id.
McLean had also sought law books while housed at the Eleanor Slater Hospital because he wanted to study plea bargaining and sentencing issues. (Competency Decision 24, n.8.) Additionally, even though McLean did not complete high school, his mental acuity is not so impaired that he feels educationally blocked. He told the probation officer that he wanted to take some classes while at the ACI and eventually obtain his GED. (PSR 4.) Furthermore, it was apparent at the PCR hearing that McLean was able to read and follow several portions of the plea transcript. He even noticed during the hearing that the copy of the transcript furnished to him was missing some pages that he had been asked to review. (PCR Tr. 92, June 23, 2022.)
Showcasing his capacity to consider issues far removed from his criminal case, in a March 21, 2018 ACI recorded telephone conversation with his girlfriend, McLean accurately explained to her that the statute of limitations prevented the commencement of a lawsuit for personal injuries in a traffic accident after three years had elapsed. (Competency Decision 25, n.9.) And during the June 10, 2019 plea proceedings, when the Court recited the obligatory immigration admonitions and asked McLean if he understood the potential deportation consequences which would jeopardize a noncitizen, McLean said he understood and gratuitously offered: "Yes, President Trump made that very clear." (Plea Hr'g Tr. 23, June 10, 2019.)
During that phone conversation McLean told her: "[Y]ou only got three years to sue, though. Any.. .civil action, you got up to three years. So this October's the, the deadline." ACI telephone call, Mar. 21, 2018, Tr. at 3. See United States v. Shenghur, 734 F.Supp.2d 552, 555 (S.D.N.Y. 2010) (noting that defendant's taped phone calls reflected a rational understanding of his circumstances and rejecting a claim of incompetency).
McLean's protestations at the PCR hearing that he was coerced, coaxed, or somehow beguiled into involuntarily pleading guilty and surrendering his right to trial are decidedly bogus. He testified at the PCR hearing that "I wanted to go to trial," and he said that "to my understanding I didn't know [on June 10, 2019] I could back out of the plea at that time." (PCR Hr'g Tr. 70, June 23, 2022.) To the contrary, as extensively set forth earlier, the Court had offered him that very option multiple times during the June 10,2019 proceedings. Indeed, McLean overlooks the Court's "last call," inviting him to change his mind about the disposition. McLean declined and said that he had no questions. (Plea Tr. 36, June 10, 2019, supra, at pages 13-14 herein.)
The Court also rejects McLean's specious assertion at the PCR hearing that Mr. Kando instructed him to say "yes" to all of the Court's questions and just agree with everything during the plea proceedings "to make Krause happy" to ensure that his guilty pleas would be accepted. (PCR Tr. 60, June 23, 2022.) In the first place, it is plain from the plea hearing that McLean did not simply say "yes" throughout the proceeding; he made responsive comments and asked relevant questions when unsure or unclear about something. Certainly, Mr. Kando never so testified nor did he ever intimate that he had given McLean such bizarre advice. The Court also entirely discounts and finds no value in the odd message McLean "dictated" on June 8,2019 to Mr. Kando prior to his guilty plea (and not produced until the PCR hearing), professing McLean's purported desire for a trial. The Court views this as a transparently delusive ploy, likely born of McLean's street-smart manipulation to extricate himself from his circumstances, especially given McLean's resolute intent to avoid a trial at any costs and to "sabotage" it if necessary.
Among McLean's obvious dissembling was his response to Mr. McBurney at the PCR hearing when asked if he had ever told Mr. Kando that the statement of facts was inaccurate. McLain untruthfully said, "Yeah. I told you, the Judge. Everybody knows. I said I'm innocent. I told you I didn't do it. I told the doctor. Everybody knows." Id. at 63. On the contrary, not only did he freely confess his guilt at the June 10, 2019 plea hearing, he also confessed to the author of the Presentence Report: "I'm not saying I'm not guilty. I know I'm guilty." (PSR 2.)
Moreover, as discussed in the Competency Decision, this Court's own observations and perceptions of McLean established his ability to understand and comprehend court proceedings. (Competency Decision 27-29.) There, the Court concluded that "[i]n every instance" - from his initial March 22,2016 guilty pleas, during his initial March 24,2017 PCR hearing, and throughout other court proceedings "McLean has displayed unfailing attention, answered questions responsively, and sought further explanation from the Court to ensure that he understood matters." Id. at 28. In addition to the several authorities discussed at pages 27-29 of the Competency Decision which underscore the relevance of a court's personal observations of a defendant in order to assess competency, see State v. Rego, 264 A.3d 840, 846 (R.I. 2021) (crediting a trial court's front-row observation post from which to evaluate not only the credibility of witnesses, but also to "account for 'other realities'" not discernible from a cold record) (quoting State v. Greenslit, 135 A.3d 1192,1198 (R.I. 2016) and State v. Hie, 93 A.3d 963, 975 (R.I. 2014) (noting the trial court's observations of the "the human drama that is part and parcel" of the proceedings before the trial justice)).
Withal, the Court has had myriad opportunities to closely observe and assess McLean's capacity to comprehend court proceedings and to appreciate their significance. As McLean himself remarked during his allocution message at sentencing: "Your Honor, I want to say I feel like me and you have been on a journey together. The last four years of my life I've been in front of you[.]" (Sentencing Tr. 40, July 31, 2019.)
From all of the foregoing, and with unreserved and renewed emphasis on the findings and conclusions in the Court's Competency Decision, it is abundantly clear that rather than simply nod his head or recite a mantra of submissive responses to the Court's inquiries during the plea hearing, McLean maintained a steadfast intention to fully understand all of the proceedings, asking questions or seeking clarification. Not by the most elastic stretch of the most fertile imagination does this Court harbor a scintilla of doubt that McLean comprehended and appreciated the plea process.
Most certainly, McLean was not shy to spew vile and craven insults at the Court and the prosecutors. See Rule 35 Hr'g Tr. 28, Feb. 10, 2020.
Assigning to McLean the "street smarts" which Dr. Wall attributed to him, coupled with its own close observations of McLean on numerous occasions, this Court unreservedly concludes that McLean's self-serving testimony - that he always wanted to proceed to trial - is entirely fabricated. He never wanted to go to trial, and he vowed to disrupt or sabotage one if it ever commenced. All he ever wanted was a plea bargain to his liking, and Mr. Kando secured it for him.
Conclusion
Mr. Kando's efforts, rather than doing McLean a disservice, resulted in sparing him a life sentence and consecutive decades of jail time, many of which would have been statutorily mandated without parole, had he been convicted at trial, a virtual certainty. See Perkins, 78 A.3d at 769 ("Indeed, there is nothing on which this Court could base a conclusion that a different outcome would have resulted from a trial." (citing Figueroa, 639 A.2d at 500-01 (noting the absence of anything that might show an applicant's innocence and concluding that a trial "most probabl[y]" would have led to a conviction).)
As the Supreme Court has stated on multiple occasions, "[w]e have held that when counsel has secured a shorter sentence than what the defendant could have received had he gone to trial, the defendant has an almost insurmountable burden to establish prejudice." Neufville v. State, 13 A.3d 607, 614 (R.I. 2011) (citing Rodrigues, 985 A.2d at 317; accord, Perkins, 78 A.3d at 769). Notably, this Court ultimately sentenced McLean to ten years less than the fifty-year term of imprisonment demanded by the prosecution. (Sentencing Tr. 14-15, 41-47, July 31, 2019.)
In no way were the strictures of Strickland and its prolific progeny transgressed in this case. Mr. Kando most assuredly did not render deficient or substandard assistance to McLean, who has utterly failed in every way to demonstrate that he is entitled to postconviction relief. This Court is unreservedly "able to say with assurance that [McLean was] fully aware of the nature of the charge and the consequences of the plea." Camacho, 58 A.3d at 186-87; Plea Tr. 35, June 10, 2019.
The within PCR application is hereby denied. Judgment shall enter in favor of the State of Rhode Island.
No. P1/2015-3840AG
AMENDED COMPETENCY DECISION
KRAUSE, J.
Andrew McLean's current (now fourth) attorney and the chief forensic psychiatrist at Rhode Island Hospital say that McLean is not competent to stand trial. McLean's three prior defense attorneys and the director of forensic psychiatry at Eleanor Slater Hospital say that he is. So does this Court.
* * *
On November 24,2015, a grand jury returned an indictment charging Andrew McLean and two others with first degree robbery of a pawnshop, assault with a dangerous weapon (shooting the pawnbroker in the head), conspiracy, and ancillary firearm offenses. On March 22, 2016, assisted by retained (and his first) attorney John M. Cicilline, McLean pled guilty to first degree robbery in exchange for a parolable life sentence and concurrent ten-year terms for other charges. He also received a mandatory consecutive, non-parolable twenty-year term, which was suspended with probation, for discharging a firearm and injuring the shopkeeper during the robbery.
The entire episode was recorded by video cameras in the pawnshop, and it is not disputed that McLean shot the shopkeeper, who survived but sustained permanent brain injuries. The co-defendants' cases have been completed. On July 20, 2016, Leroy Dorsey pled guilty and was sentenced to serve thirty years of a fifty year sentence. Reginald Isom was convicted on all counts by a jury on June 12, 2018, and was ordered to serve a parolable life term, followed by ten additional non-parolable, consecutive years of incarceration.
Some months later, McLean learned from ACI inmates that Mr. Cicilline had mistakenly told him, prior to the guilty plea, that his initial parole eligibility date would be in ten years, instead of the twenty years which the Legislature had recently decreed for a life term on a first degree robbery charge. With the assistance an of an ACI inmate librarian, McLean filed a pro se postconviction relief (PCR) application based upon ineffective assistance of counsel and asked that his guilty plea be vacated. Since he could no longer afford counsel, the Court appointed Glenn Sparr, an experienced criminal defense attorney, to represent him in his pursuit of the PCR petition. At the March 24, 2017 PCR hearing, Mr. Cicilline readily acknowledged that he had erred, and the prosecutor also admitted that he, too, had been unaware that the ten-year parole eligibility had been extended to twenty years and that he had misinformed Mr. Cicilline of the ten-year period. PCR Hr'g. at 5, Mar. 24, 2017.
The Court, with Mr. Sparr's participation, thoroughly and carefully explained to McLean that if his PCR application were granted, all of the original counts in the indictment would be restored and that this Court would no longer engage in any binding plea negations. That colloquy included the following dialog, during which McLean was under oath:
MR. SPARR: I have met with Andrew three times about this since I've been appointed, and I indicated to him that I was going to find merit in one of his contentions. I will also put on the record that in my opinion he is making this request of this Court knowing and voluntary [sic],
I have discussed with him the ramifications of making this request to the Court, that he obviously doesn't have to do this. That if he wanted to, he could withdraw his request and his application and could leave well enough alone, so to speak, but I believe, based on my conversations with him, that this is what he does want to do. I know the Court will address him, but I do believe that he is making this request, if this is what he still wants to do, knowing and voluntary [sic] and intelligently. ***
THE COURT: Mr. McLean, I want to be sure that I have your assent to the application that has been filed and the comments that Mr. Sparr has made, that you
are in full agreement with his representations to the Court, that you are in full agreement with that which he seeks from the Court, namely, essentially to have your guilty pleas vacated, and that the matter would thus be back in the process as if you had never pled guilty to this case, the matter would simply be pending and it would be back to, if I can use the vernacular, square one.
Is that your desire, sir?
MR. MCLEAN: Yes.
Q. You understand that if this post-conviction petition for relief is granted, not only are you back to square one, but I would advise you that this Court will in no way in the future engage in any binding plea negotiations or discussions with counsel for you or counsel for the state, and only one of two things will happen, or possibly three things: The matter will go to trial on all counts, we understand that; or the state will dismiss the case. I don't know that that's very likely; or thirdly, you may later decide to change your mind and plead to some or all of the counts, but if the third option occurs, this Court will not bind itself in any way to any sentence that would be imposed under those circumstances.
Do you understand all three of those?
A. The last one -
Q. I can't hear you.
A. I said the last one I kind of don't understand. The third one.
Q. What part did you not understand, sir?
A. The third one.
Q. That is, if you went to trial or that if you plead guilty later on?
A. Yeah.
Q. If you plead guilty later on, I'm telling you after today, if I grant this petition, I'm not binding myself to any kind of sentence that will ever be imposed in this case. You're back to square one. I am not going to get involved and get involved in any binding plea agreements whatsoever.
A. Oh.
Q. Do you understand that?
A. Yes.
Q. Do you agree to that?
A. Yes.
Q. Okay. Very well. The state not voicing any objection to the particular circumstances present in this case, and the defendant—excuse me—the applicant being insistent on pursuing this application, knowing full well the consequences and ramifications, the petition is granted. Unless there's something else you want to add [addressing the prosecutor].
PROSECUTOR ROKLAN: *** I just want to make it clear, though, the dismissed counts in exchange for the plea come back.
THE COURT: Everything is back to square one. Every count in this indictment is right back in play. Do you understand that? MR. MCLEAN: Yes. PCR Hr'g. at 4; 8, Mar. 24, 2017.
Appendix
COMPETENCY DECISION
DATE DECISION FILED: March 28, 2019
For Plaintiff: Joseph J. McBurney, Esq., Jeffrey Q. Morin, Esq.
For Defendant: Robert Kando, Esq.
Thereafter, the Court granted the PCR application and also installed Mr. Sparr as trial counsel. Within a few months, however, McLean began to disparage Mr. Sparr's efforts, filed a disciplinary complaint against him, and demanded to be separated from him. Because of the disciplinary complaint, Mr. Sparr also requested that he be allowed to withdraw. On September 6, 2017, Mr. Sparr was released from the case, and attorney Jay Canham, another veteran criminal defense attorney, was appointed to represent McLean, with this Court's admonition that no additional court-appointed attorneys would be furnished if McLean also failed to get along with Mr. Canham. McLean voiced his understanding and said he had no questions. Tr. 3-5, Sept. 6, 2017.
On January 8,2018, Mr. Canham, at McLean's request, moved for a grant of bail and a bill of particulars. Both motions were denied. Mr. Canham, also at McLean's request, asked the Court to disqualify itself. The recusal motion was also denied. McLean again, notwithstanding this Court's prior admonitions, expressed dissatisfaction with Mr. Canham in a fashion similar to the criticism he had leveled at Mr. Sparr, and he asked that Mr. Canham also be relieved as counsel.
For all of his imprecations, aimed first at Mr. Sparr and then at Mr. Canham—and in each instance with trial looming closer—McLean nonetheless continued to lament his inability to proceed without the help of a lawyer. Accordingly, this Court, after extensive dialog with McLean, relented and appointed yet another attorney, Robert Kando (current counsel), to represent him. McLean has since complained about Mr. Kando, too; and he has filed a disciplinary complaint against him, as well. Tr. passim, Jan. 8, 2018.
McLean, at least to date, has not requested separation from Mr. Kando, who, to his credit, has maintained his willingness to represent him. He has, however, expressed a concern that McLean is not competent to proceed to trial because, according to Mr. Kando, McLean refuses to confer with him, engages in protracted monologues complaining about the court system, and is allegedly unable to assist in his defense. On March 15, 2018, at Mr. Kando's request, this Court ordered a competency evaluation pursuant to G.L. 1956 § 40.1-5.3-3(c).
Within a few days, McLean was interviewed at the Adult Correctional Institutions (ACI) by Dr. Barry W. Wall, Director of Forensic Psychiatry at Eleanor Slater Hospital (ESH), and his colleague Dr. Michael J. Byrne, a psychiatrist and a Fellow at ESH. They also administered what Dr. Wall referred to as a Competence Assessment Screening Tool for Persons with Mental Retardation (CAST-MR), a standardized psychological test which assists in determining competency to stand trial. Thereafter, Drs. Wall and Byrne prepared a Competency Report as well as a Risk Assessment Evaluation. Neither document was intended to be discursive nor conclusive of McLean's mental condition; rather, the March 28, 2018 "competency" report was prepared in order "to trigger hospitalization so that we could do a more in-depth analysis of his intellectual capabilities.... It was a provisional assessment at the time. We wanted more testing which needed to occur in the hospital, and observation." Comp. Tr. at 105, 106, 107 (emphasis added). As Dr. Wall explained:
Also known as the Competence Assessment for Standing Trial for Defendants with Mental Retardation. When initially created, the CAST-MR included the words "mental retardation," a term then used in clinical psychiatry. It has since been replaced in texts and publications with "intellectual disability" or "Intellectual Disability Disorder," but the CAST-MR has retained that original term.
"[T]he first [March 28, 2018] examination is just a snapshot without really getting to know him, and the second examination is more in-depth, after the hospital has had the opportunity examine him 24 hours a day, seven days a week, to get an idea of what his capacities are, what his limitations are. And we've had a chance by that point to really observe him, to see if he has any symptoms of mental illness that might account for things or symptoms of drug use that might account for problems of intellectual disability. So it's more in-depth analysis because our entire team has had a chance to observe him round the clock for a long time in the hospital." Comp. Tr. at 121-22.
The Risk Assessment Evaluation was created principally to determine whether McLean was likely to endanger the ESH populace or himself. McLean's risk was deemed "high," not because of any psychiatric reason, but because he had a "history of assaultive behavior (his current charges aside) and antisocial personality traits[.] . . . The relationship, if any, between possible Intellectual Disability Disorder and risk will be assessed during his inpatient psychiatric hospitalization." Risk Assessment Evaluation at 5 (emphasis added).
At ESH, a neuropsychologist administered a battery of tests to assess McLean's mental functioning and to determine his IQ (69). He was further evaluated by Dr. Wall and Dr. Byrne on May 3, 2018; and, after further reviewing his progress, they presented their June 4, 2018 Competency Report, concluding that McLean was competent to stand trial.
For ease of reference, as was done at the Competency Hearing, the June 4, 2018 Wall/Byrne Competency Report will simply be cited as the "Wall Rep.2."
Dr. Wade C. Myers, Director of Forensic Psychiatry at Rhode Island Hospital, who was engaged as an expert by the defendant, met with McLean on August 7, 2018. Subsequently, in his October 12, 2018 report, Dr. Myers opined that McLean was not competent to go to trial.
At a four-day competency hearing during the week of January 28, 2019 (the Competency Hearing), Dr. Wall and Dr. Myers testified, as did all four of McLean's attorneys. Also presented were transcripts of prior court proceedings before this Court in which McLean participated, as well as some of McLean's recorded (and transcribed) ACI telephone calls, and some other written materials.
The Competency Standard
The United States Supreme Court has long made clear that "[a] criminal defendant may not be tried unless he is competent... This requirement 'has a modest aim: It seeks to ensure that [the defendant] has the capacity to understand the proceedings and to assist counsel.'" United States v. Kenney, 756 F.3d 36, 43 (1st Cir. 2014) (quoting Godinez v. Moran, 509 U.S. 389, 402 (1993); see also Dusky v. United States, 362 U.S. 402 (1960) (other internal cites omitted). "The 'understanding' required [of the defendant] is of the essentials—for example, the charges, basic procedure, possible defenses—but not of legal sophistication." United States v. Brown, 669 F.3d 10, 17 (1st Cir. 2012) (quoting Robidoux v. O'Brien, 643 F.3d 334, 339 (1st Cir. 2011)).
Under Rhode Island law, McLean is statutorily presumed competent, and he shoulders the burden to prove, by a fair preponderance of the evidence, that he is incompetent. Sec. 40.1-5.3-3(3)(b). He must thus demonstrate that he is "unable to understand the character and consequences of the proceedings against him" and that he is also "unable properly to assist" in his defense. Id. at 3(a)(5). As stated in State v. Owen, 693 A.2d 670, 671 (R.I. 1997) (quoting State v. Cook, 104 R.I. 442, 447, 244 A.2d 833, 835-36 (1968)):
"For a court to permit an accused to be prosecuted criminally, 'three things must be found: first, that defendant understands the nature of the charges brought against him; second, that defendant appreciates the purpose and object of the trial proceedings based thereon; and third, that defendant has the mental capacity to assist reasonably and rationally his counsel in preparing and putting forth a defense to the criminal charges of which he stands accused.'"
Competency decisions, like insanity trials, are typically balanced on a fulcrum of expert testimony. "Ideally, psychiatrists—much like experts in other fields—should provide grist for the legal mill, should furnish the raw data upon which the legal judgment is based. It is the psychiatrist who informs as to the mental state of the accused—his characteristics, his potentialities, his capabilities." State v. Gardner, 616 A.2d 1124,1127 (R.I. 1992) (citations omitted.)
In the end, however, it is a legal not a medical decision, and the trial justice is free to choose between expert opinions so long as he does so "not from mere whim or fleeting caprice, but with reasonable justification." Cook, 104 R.I. at 449, 244 A.2d at 836. "While judges may rely heavily upon the advice of mental health professionals in assessing a defendant's competency, it is the judge, not the mental health professionals, who must make the final call and who bears the weight of the final decision on his or her shoulders." In re Tavares, 885 A.2d 139, 150 (R.I. 2005).
The focus of the Competency Hearing was narrow, as both Dr. Myers and Dr. Wall agree that McLean understands the charges, the trial process, and the roles of the various parties (i.e., the judge, the prosecutor, defense counsel, and the jury). Comp. Tr. at 10-11, 59-61, 123, 292. In addition, both Dr. Myers and Dr. Wall agree that McLean has a Mild Intellectual Disability Disorder and a full scale IQ of 69. Thus, the only issue to be decided by the Court is whether McLean has the mental capacity to assist counsel.
Dr. Wall further explained that McLean's full scale IQ is "low in terms of standard deviations from the main," and that it is "about 69" but not necessarily fixed at that number. It could fluctuate by a few points lower or higher if he were tested at different times. Comp. Tr. at 116-19.
The parties have waived oral argument and have submitted the matter to this Court for a decision based upon the record, the pleadings, and the exhibits.
Dr. Myers believes that McLean's low intellectual capacity, when coupled with what he perceives as McLean's Oppositional Defiant Disorder (ODD), renders McLean without the mental capacity to assist Mr. Kando. He believes, however, that McLean's present "inability to properly assist in his defense could be treated through a combination of brief, focused psychotherapy (geared at a basic, problem-solving level) in tandem with psychotropic medication to target his underlying ODD symptoms (e.g., anger, oppositionality, resentfulness, suspiciousness [sic])." Myers Rep. at 11.
Dr. Wall disagrees. He has concluded that McLean does not suffer from ODD and that irrespective of his Mild Intellectual Disability Disorder, McLean is nonetheless able to rationally confer with his lawyer. Wall Rep.2 at 9; Comp. Tr. at 261-62. All three of McLean's prior attorneys testified that they conferred with McLean about the case without his resistance and that he never exhibited any sign that he was incompetent to stand trial. Mr. Kando offered a different scenario, testifying that McLean has resisted his efforts to discuss the case, has engaged in protracted rebukes of the criminal judicial system and has sought advice from prison inmates rather than from him.
Dr. Wall
As noted above, there is no disagreement between Dr. Wall and Dr. Myers that McLean demonstrates Mild Intellectual Disability Disorder, a debility which, as explained by Dr. Wall, is a neurodevelopmental condition reflecting low cognitive/intellectual function. However, a person who has a mild intellectual disability (typically with an IQ which hovers in the 60's to about 70) can usually function in society. Notwithstanding a substantially low IQ, he or she is capable of learning, albeit at a slower rate. Comp. Tr. at 117-120. Dr. Myers similarly testified, "Having an intellectual disability doesn't equate with a person being competent to stand trial or incompetent to stand trial." Comp. Tr. at 93.
In May and June of 2013, Dr. Wall and Dr. Byrne again met with McLean and reviewed all of the test results and his progress at ESH. They also reviewed other pertinent materials such as court transcripts, McLean's written materials, and previously recorded ACI telephone calls. By that time McLean had also decided to engage in weekly one-on-one competency restoration classes with a psychologist and had voluntarily enrolled in GED, social studies, and life skill classes. Additionally, according to ESH staff observations, he had displayed a daily ability to conduct himself independently without any symptoms of mental illness, and, importantly, without behavioral outbursts and with no need for medication. Wall Rep. 2 at 3; Comp. Tr. at 110-111,113.
Dr. Myers also testified that after eight to twelve classes, he expected that McLean's competency would likely have improved. Comp. Tr. at 81. He also noted that by the spring of 2018, McLean had "improved with one-on-one counseling. For example, his original CAST-MR score was 32.5 and his most recent was 38.5. So he now tests pretty much within the range of people recommended to courts as competent even though they have an intellectual disability." Comp. Tr. at 317; Wall Rep.2 at 9 ("While he still has a Mild Intellectual Disability Disorder . . . competency education has mitigated his previous deficits.").
Notably, Dr. Myers has acknowledged that McLean himself told him during his August 7, 2018 interview that "the competency classes have been helpful." Myers Rep. at 6. Mr. Kando, too, has accepted that "McLean has learned to adapt to his handicap." McLean Supp. Mem. at 9.
Moreover, Dr. Wall testified that those who, like McLean, have a mental disability but have experienced prior criminal prosecution, may actually better comprehend court proceedings and the importance of conferring with counsel than those who, although they suffer no such disability, have never had to deal with criminal court matters:
"It is important to assess a person's ability to stand trial based on what they know about what could happen in court. A person with a lot of experience in the criminal justice system who has a lower IQ may actually be competent or capable in some ways that a person with a higher IQ with no experience in the court might not have. So that's why the examination of competence to stand trial is separate from the examination of diagnosing an intellectual disorder. And that's why we look at both the CAST-MR, as well as the face-to-face interview to help us assess a person's ability to stand trial." Comp. Tr. at 120.
Dr. Myers
When Dr. Myers met with McLean at ESH on August 7, 2018, he had reviewed various source materials similar to those considered by Dr. Wall, as well as Dr. Wall's June 4,2018 report. He also was cognizant of McLean's test results, including his IQ of 69 and low academic skills. Like Dr. Wall, he knew that McLean had not progressed beyond the ninth grade, had quit school with failing grades and had amassed a history of suspensions and abused drugs, and had demonstrated antisocial tendencies. He had also considered Mr. Kando's reported difficulties communicating with McLean, as well as Mr. Kando's concern that McLean was relying on "jailhouse notions" of other ACI inmates, particularly his incarcerated grandfather.
All of the collateral materials considered by Dr. Myers and Dr. Wall are listed in their respective reports. Prior to preparing his evaluation, Dr. Myers had not been provided with several court transcripts spanning the past two years in which the Court engaged in dialog with McLean. He indicated at the Competency Hearing, however, that he later reviewed those transcripts and that they do not alter his opinion. Comp. Tr. at 83. Significantly, however, Dr. Myers has conceded that he never reviewed McLean's ACI telephone calls, which are important and relevant to this Court's Decision. Comp. Tr. at 80. See, e.g., n.9 at 26 infra.
As noted earlier, Dr. Myers, like Dr. Wall, also acknowledged at the competency hearing that McLean's mental disability, particularly his low IQ, does not, by itself, render McLean incompetent. His opinion that McLean is nonetheless incompetent is based on McLean's intellectual disability coupled with his belief that McLean also suffers from ODD. Myers Rep. at 11; Comp. Tr. at 93-94.
In making that ODD diagnosis, Dr. Myers relied upon the Diagnostic and Statistical Manual of Mental Disorders, published by the American Psychiatric Association (5th ed. 2013) (the DSM-5), the principal authority for diagnosing mental disorders. Dr. Myers opined in his report and at the competency hearing:
"[McLean] also meets the criteria for Oppositional Defiant Disorder, which is a pattern of an angry/irritable mood, argumentative/defiant behavior, and/or vindictiveness lasting at least six months, and that occurs during interactions with at least one other person who is not a sibling. Mr. McLean has the necessary four symptoms needed for this diagnosis, and they include being touchy or easily annoyed, being angry and resentful, arguing with authority figures, and refusing to comply with authority figures." Myers Rep. at 11, Comp. Tr. at 73-76.
The DSM-5 criteria underpinning a finding of ODD consist of the following factors and accompanying
Oppositional Defiant Disorder
Diagnostic Criteria 313.81 (F91.3)
A. A pattern of angry/irritable mood, argumentative/defiant behavior, or vindictiveness lasting at least 6 months as evidenced by at least four symptoms from any of the following categories, and exhibited during interaction with at least one individual who is not a sibling.
Angry/Irritable Mood
1. Often loses temper.
2. Is often touchy or easily annoyed.
3. Is often angry or resentful.
Argumentative/Defiant Behavior
4. Often argues with authority figures or, for children and adolescents, with adults.
5. Often actively defies or refuses to comply with requests from authority figures or with rules.
6. Often deliberately annoys others.
7. Often blames others for his or her mistakes or misbehavior. (Emphasis added throughout to the word "often.")
Vindictiveness
8. Has been spiteful or vindictive at least twice within the past 6 months.
Note: The persistence and frequency of these behaviors should be used to distinguish a behavior that is within normal limits from a behavior that is symptomatic. For children younger than 5 years, the behavior should occur on most days for a period of at least 6 months unless otherwise noted (Criterion A8). For individuals 5 years or older, the behavior should occur at least once per week for at least 6 months, unless otherwise noted (Criterion A8). While these frequency criteria provide guidance on a minimal level of frequency to define symptoms, other factors should also be considered, such as whether the frequency and intensity of the behaviors are outside a range that is normative for the individual's developmental level, gender, and culture.
B. The disturbance in behavior is associated with distress in the individual or others in his or her immediate social context (e.g., family, peer group, work colleagues), or it impacts negatively on social, educational, occupational, or other important areas of functioning.
C. The behaviors do not occur exclusively during the course of a psychotic, substance use, depressive, or bipolar disorder. Also, the criteria are not met for disruptive mood dysregulation disorder.
Significantly, the DSM-5 note following those first seven criteria also provides, among other things, that in a person of McLean's age "the behavior should occur at least once per week for at least 6 months" and that the behavioral disturbance "is associated with distress in the individual ... or other important areas of functioning." DSM-5 at 462. In addition to the requisite presence of at least four of the eight predicate conditions, the DSM-5 also obliges the clinician to specify whether the ODD is "Mild" (symptoms confined to only one setting (e.g., home, school, work, with peers)); "Moderate" (some symptoms present in at least two settings); or "Severe" (some symptoms present on three or more settings). Nowhere in his report or in his testimony does Dr. Myers identify the level of ODD which he ascribes to McLean.
With respect to specifying one of those three levels, however, the DSM-5 states that "the pervasiveness of the symptoms is an indicator of the severity of the disorder." DSM-5 at 462-63. Among the "Diagnostic Features" identified in the DSM-5 for ODD, the manual emphatically states: "The essential feature of oppositional defiant disorder is a frequent and persistent pattern of angry/irritable mood, argumentative/defiant behavior, or vindictiveness. . . . Given that the pervasiveness of symptoms is an indicator of the severity of the disorder, it is critical that the individual's behavior be assessed across multiple settings and relationships [and] they must be observed during interactions with persons other than siblings." Id. at 463. First among the "key considerations" is that "the diagnostic threshold of four or more symptoms within the preceding 6 months must be met." Id. (emphasis added throughout as noted).
The record before this Court does not, in this Court's view, reflect sufficient credible evidence which, as prescribed by the DSM-5 ODD criteria 1 through 7, demonstrates that McLean often engages in such behavior across multiple settings and relationships. Indeed, nowhere in the record is there any report of a disciplinary infraction or a suggestion of misconduct or disruptive behavior by McLean either at the ACI or ESH, and through the January 2019 Competency Hearing, a total of three years and three months. Indeed, Dr. Wall writes:
"Mr. McLean has appeared comfortable and has posed no management problem [at ESH]. He has no symptoms of mental illness. He requires no treatment with medications. He has not displayed any behavioral outbursts or required restraints. He follows directions. He is sociable. He performs his activities of daily living independently with minimal prompting." Wall Rep.2 at 3.
When confronted with those observations, which this Court frankly finds probative and supportive of McLean's competency, Dr. Myers skeptically discounts them. While acknowledging, as he must, that McLean's behavior has been appropriate, he nonetheless depreciates it, suggesting that although McLean didn't have any outbursts or require restraints, "that's a pretty high bar contained in the meaning of that sentence." Comp. Tr. at 79. That assertion is more than puzzling.
No such "high bar" is chronicled by Dr. Wall. He merely reports that McLean's conduct at ESH reflected not a single outburst, much less one which would necessitate restraints. That account, on its face, presents neither a psychiatric nor a medical finding. It is basically an unvarnished and unembellished observation of McLean's behavior. Considered in the context of that quoted paragraph, Dr. Wall simply relates that while at ESH, McLean's deportment has been commendable, without any misbehavior and, indeed, with no sign of mental illness and without any need for medication. Accordingly, this Court declines to accept Dr. Myers' proffer that this passage somehow sets a "high bar" of comportment. It does not.
Mr. Kando, too, attempts to minimize McLean's commendable deportment and the absence of ODD symptoms at ESH because that facility is "conducive to one being comfortable and not being put into positions of having to go into a defiant or oppositional type of response to the people you're being supervised by and to the people in authority or... provoke[d] into] any confrontations with the residents." Comp. Tr. at 351; McLean Supp. Mem. at 6. This disbranched argument fails to take into account that while at the ACI for two and a half years, three times longer than his ten-month stay at ESH, McLean displayed no behavioral problems in a truculent environment generally consisting of innumerable angry and argumentative prisoners, supervised by stressed correctional officers who recurrently become enmeshed in verbal as well as physical confrontations. Yet McLean, who had few ACI confidants (principally his grandfather, a "cousin," and a couple of prison librarians), and without the generous ESH friendly flow of visitors, apparently still maintains a desire to return to the ACI, and, indeed, to one of the most undesirable sections of the prison, telling Dr. Wall: "Things are 'OK' here, but [I] would prefer to be at [ACI] Maximum Security." Wall Rep.2 at 3.
According to Mr. Kando, McLean becomes highly animated about the legal system, particularly the prospects of a lengthy prison sentence and the lack of a favorable plea bargain. However, apart from McLean's isolated "tirade" about an allegedly unfair legal system, Dr. Myers recounts a relaxed session with McLean. His report is replete with pleasant modifiers which include McLean's satisfactory attention and concentration during the interview, his cooperative and respectful attitude, a foil range of appropriate facial expressions, and even flashes of humor. Dr. Myers also reported that McLean was soft-spoken and that his answers to questions were logical and relevant, albeit simplistically expressed and without any delusional thinking. Myers Rep. at 8-10. McLean displayed similar decorum with Dr. Wall: "He remained seated calmly throughout the entire interview. He appeared forthcoming and engaged as well." Wall Rep.2 at 7.
Dr. Myers assigns "vindictive" behavior to the two disciplinary complaints which McLean filed against Mr. Sparr and Mr. Kando. The Court is not entirely inclined to accept that conclusion. If McLean were truly "vindictive," one would think he would have filed complaints against all of his lawyers, as his criticism of each of them is similar. Even if there were some dependable evidence that McLean's conduct somehow reflects vindictiveness, any such evocation falls well short of the DSM-5's yardstick, which requires "frequent and persistent pattern[s]" of other criteria to certify ODD. More applicable, in this Court's view, is the Diagnostic Features section of the DSM-5 which provides: "The symptoms of oppositional defiant disorder can occur to some degree in individuals without this disorder." Id. at 463 (emphasis added).
In any event, the more persuasive evidence is that those two written complaints are but a small part of McLean's general suspicion of what he perceives as an unfair criminal justice system, consisting of misguided defense attorneys, judges, and prosecutors, all of which spawn his objurgations and extended remonstrations with Mr. Kando. Put plainly, those subjects simply set him off. They are, as Dr. Myers testified, the "emotional fuel" which ignites him. Comp. Tr. at 88-91.
Whatever may be the precipitating factor(s) of McLean's behavior, Dr. Wall is convinced that it is not ODD and that it is not born of a psychiatric or mental health reason. Instead, in his opinion, it relates to McLean's "general personality structure," i.e., his "antisocial traits." Comp. Tr. at 123-24, 262, 288, 294, 300-301, 310; Risk Assessment Evaluation at 5. It also reflects prevarication by McLean, which Dr. Wall discerned in prior court proceedings. Comp. Tr. at 297-98.
When asked to describe the basis of his disagreement with Dr. Myers' ODD diagnosis, Dr. Wall explained:
"Again, we are looking at an ongoing pattern of argumentative or defiant, angry or vindictive behavior. Usually you would see this develop in a person who's at about age six, seven, eight years old, and then you would see it with some regularity over the course of one's lifetime. We didn't really get any of that in terms of taking [McLean's] history. We didn't have any reports of him being oppositional or defiant or disruptive when he was at the Adult Correctional Institutions. We've not had the experience of him being that way both with our [ESH] staff, with his peers in our hospital, or with any of his visitors." Comp. Tr. at 261.
Having considered all of the evidence, this Court finds, unhesitatingly, that there is insufficient basis in the record to support the conclusion that McLean suffers from ODD. The Court finds, instead, that there is persuasive and compelling evidence to the contrary, and it accepts Dr. Wall's determination that McLean does not suffer from that debility.
McLean's Ability to Assist Counsel - His Attorneys (Real and Mythical)
Having found that McLean is not afflicted with ODD, the Court remains cognizant that McLean does function at a lower than normal intelligence level which reflects Mild Intellectual Disability Disorder. Both experts agree, however, that McLean's low intelligence level, by itself, does not equate with incompetency to stand trial, and courts have also addressed and accepted that notion. Kg., Commonwealth v. Chatman, 473 Mass. 840, 851, 46 N.E.3d 1010,1021 (Mass. 2016) ("One can both have a mental disease or deficiency and still be competent to stand trial; the two are not mutually exclusive. The same is true about a defendant with a low intelligence quotient.") (citation omitted); Kenney, 756 F.3d at 44 ("A defendant may have a serious mental illness while still being able to understand the proceedings and rationally assist his counsel."); United States v. Bernard, 708 F.3d 583, 593 (4th Cir. 2013) (quoting Burket v. Angehne, 208 F.3d 172, 192 (4th Cir. 2000) (observing that '"neither low intelligence, mental deficiency, nor bizarre, volatile, and irrational behavior can be equated with mental incompetence to stand trial'") (citations omitted)); United States v. Turner, 644 F.3d 713,725 (8th Cir. 2011) (same); Dolchok v. State, 639 P.2d 277, 293 n.34 (Alaska 1982) (quoting Schade v. State, 512 P.2d 907, 914 (Alaska 1973) ('"Numerous persons are subjected to criminal prosecution, and properly so, even though they are of relatively low intelligence or are suffering from some significant emotional or physical impairment.'") (citations omitted)).
Even if McLean needs to have some things explained to him in simpler terms, he is, as Dr. Wall observes, "street smart," and, as earlier noted, because of his prior criminal history and exposure to the court process, McLean may even better understand his circumstances than those who, without a mental disability, have never dealt with such criminal court issues. Supra at 10-11; Wall Rep.2 at 7. Further, explaining matters to McLean in simple language does not have a tendency to make it more probable that he is incompetent to stand trial. Simple explanations may actually make it more probable that McLean is competent, because it demonstrates that he will better comprehend what his attorney tells him. See State v. Hamlin, 156 Idaho 307, 312, 324 P.3d 1006, 1011 (Idaho 2014) (finding defendant with IQ of 62 competent, notwithstanding legitimate concerns that the defendant's disability might make certain portions of the trial process more difficult).
Given the foregoing authorities, and in view of Dr. Wall and Dr. Myers' agreement that Mild Intellectual Disorder does not by itself preclude competency to stand trial, one might well propose that further examination of the competency issue is unnecessary. Although that suggestion may be superficially appealing, Mr. Kando's concerns that McLean cannot properly assist him should be more fully addressed.
It has been said that a defendant's attorney may be in a unique position to address the competency of his client, Brown, 669 F.3d at 17. Counsel's opinion, however, "certainly is not determinative." Hernandez v. Ylst, 930 F.2d 714, 718 (9th Cir. 1991). The Rhode Island Supreme Court has adopted that latter notion and stated in State v. Buxton, 643 A.2d 172, 176 (R.I. 1994):
"Although we understand defense counsel's concerns and uneasiness with the situation, defense counsel's claims of a client's competence are not determinative '[A] defendant's bizarre actions or statements, or counsel's statement that the defendant is incapable of cooperating in his [or her] own defense, or even psychiatric testimony need not alone raise sufficient doubt [of his or her competence].' Consequently we cannot rest our decision on the assertions of trial counsel alone." (Emphasis in original) (citing Hernandez, 930 F.2d at 718).
Our Supreme Court and other courts have emphasized that, in determining competency, a defendant's relationship with his lawyer must be tested by the client's ability to assist his lawyer, not his willingness to do so:
'"Lack of cooperation and the failure to heed counsel's advice and/or the failure to agree with counsel's strategy are certainly not to be equated with and do not establish legal incompetency. The issue is the [d]efendant's ability to cooperate and not whether he [or she] is actually cooperating . . . [T]here is a factual and a legal distinction between inability to assist and being unwilling to assist.'" Buxton, 643 A.2d at 176-77 (quoting Commonwealth v. Banks, 513 Pa. 318, 343, 521 A.2d 1,13, cert, denied, 484 U.S. 873 (1987) (emphasis in the original).
"A defendant who has it 'within his voluntary control to... cooperat[e],' is not incompetent merely because he refuses to cooperate." United States v. Simpson, 645 F.3d 300, 306 (5th Cir. 2011) (citation omitted); Ferry v. State, 453 N.E.2d 207, 212 (Ind. 1983):
"[Defendant's] attorney stated to the trial judge . . . that he had difficulty in communicating with [defendant] and that this made it difficult to prepare for trial. The test of competency to stand trial, however, is whether the defendant has the ability to assist in the preparation of his defense (and also to understand the nature of the proceedings). .. This is quite different than whether the defendant is willing to assist in the preparation of his defense." Id., (citations omitted; emphasis added).McLean has had four attorneys, and he still seeks one who will do his bidding. Except for Mr. Kando, McLean's other three lawyers all testified that McLean was appropriately responsive in their conversations; that he was typically calm, save for his complaints, especially at length to Mr. Kando, about a lack of an acceptable plea bargain and his concern over a lengthy j ail sentence (commonplace apprehensions in every criminal defendant's circumstances). All of his past attorneys were aware that McLean had significant limited reading and writing capability, but they testified that he was able to focus his thoughts and conversation on the case, and he even offered a theory of self-defense to Mr. Canham, which he also repeated to Mr. Kando and to Dr. Myers and Dr. Wall.
Lawyers who represent a defendant may permissibly testify as to their observations of a client's competency without violating the attorney-client privilege. See Clanton v. United States, 488 F.2d 1069(5thCir. 1974); People v. Kinder, 126 A.D.2d60, 512N.Y.S.2d597 (N.Y.App.Div. 1987).
Although his exchanges and diatribes with Mr. Kando were often flavored by news reports and by ACI inmates from whom he sought advice, McLean, consistently and with appropriate focus, conferred with all of his past attorneys about the case. All of them are seasoned criminal defense attorneys who testified that they are always alert for any signs of incompetency in their clients. They said that despite McLean's limited academic abilities, he displayed absolutely no trace of incompetency and, had they observed such a signal, they would have unhesitatingly brought it to the Court's attention and sought a competency evaluation. Below are some of the relevant comments offered by those attorneys (all page references are to the Competency Hearing transcript):
John M. Cicilline, Esq.
Q. Did you ask Mr. McLean any questions?
A. We talked about his case. We talked about the potential defenses. Talked about the problems with the video. What it showed. He was charged with robbery. We discussed all that. Tr. 183
Q. Was Mr. McLean responsive to all of the questions you asked him?
A. Yeah. My memory is yes. Tr. 183
Q. You mentioned that you discussed any possible defenses with the case. Did it seem to you like Mr. McLean understood what you were telling him?
A. Yes.Tr. 184.
Q. Was he logical in his reasoning and in his conversation with you?
A. He knew he didn't like the numbers that were being given to him. You know, based on the evidence we had, I thought he was being very logical, that the disposition was appropriate and even though he didn't like it, I didn't see that we had much choice. Tr. 184.
Q. Would you have let Mr. McLean plead guilty if you thought he was not competent?
A. I could not do that, no. I did not do that. Tr. 187.
Q. BY THE COURT: And at any time during your representation of Andrew McLean from January 2016 to March of 2016, did you have any belief that he was not competent to stand trial?
A. No. Tr. 190.
Glenn Sparr, Esq.
Q. Did he answer all of your questions?
A. Yes. Tr. 214.
Q. Did Mr. McLean cooperate with your inquiry during the pendency of that postconviction relief application?
A. Yes. Very much so.
Q. Did you discuss with Mr. McLean what would happen if he vacated his plea?
A. I did.
Q. And based on your conversations with him, did you believe that he understood what his options were?
A. I did. Tr. 214.
Q. Did he review the evidence and the discovery with you?
A. Yes.
Q. Was he responsive to your questions?
A. Yes.
Q. Did he supply you with the facts of the case as he saw them?
A. Yes, he did. Tr. 222.
Q. Did you discuss with him any defenses to the case?
A. Yes.
Q. Did you discuss with him any motions you could file?
A. Yes.
Q. Do you believe that he understood everything you were saying to him?
A. I believed so, yes.
Q. Did he assist you in discussing any possible defenses?
A. He did.
Q. Was he logical in his reasoning and his conversation?
A. Appeared to be to me. ***
Q. At any time during your representation from January 2017 to September 2017, did you have any belief that Mr. McLean was not competent to stand trial?
A. I did not, no. Tr. 222-223.
Q. BY THE COURT: The fact that Mr. McLean was unable to read or write very well, if at all, did that in any way inhibit your ability to converse with him and make yourself understood to him and his ability to make himself understood to you?
A. Not at all. ***
Q. If you had received any response, any indication whatsoever from Mr. McLean that he did not understand what you were telling him, would you have taken great pains to make sure that, as best you could, he understood and would not leave the subject until you were satisfied that he did?
A. Absolutely. There was never a time during my conversations with him that gave me cause to walk away from the conversation that what I was discussing with him was not understood. Tr. 228-29.
Jay Canham, Esq.
Q. And did it seem like Mr. McLean understood what you were telling him about the case?
A. Absolutely. By the time he had looked at the video with me, I had been representing him for over a couple of months. We had discussed the facts many times and I believe [] he said he had already seen the video, but I wanted to make sure that he and I could discuss it, analyze it, and look at it. So it was a very [] smooth process.
Q. And after watching the video, was he able to discuss the facts of this case?
A. Absolutely. Tr. 236.
Q. Although he wasn't the most educated client you had, were you concerned that he was not competent to stand trial?
A. No. No. I never reached the opinion that he was not competent to stand trial.
Q. And did Mr. McLean answer all the questions you had of him?
A. Yes. As a matter of fact, not only did he answer my questions, he would raise topics, issues and so, yes, he answered my questions and he would ask me a lot of questions. Tr. 237.
Q. And you mentioned back and forth and discussing of defenses or possible defenses. Did Mr. McLean understand the possible defenses he could raise?
A. Yes. He [] had a family member that was at the prison. He also had a number of friends that were helping him go to the law library. So when you bring up the issue of defenses, yes, I would talk about defenses, but he would also initiate the various defenses to include the differences between robbery and larceny, the abandonment, self-defense. These were items not only I talked about, but he also raised. And so it was a back and forth between the two of us. Tr. 238-39.
Q. And during your 12 meetings with Mr. McLean and your interactions here at the courthouse, at any time did you have a belief that Mr. McLean was not competent to stand trial?***
A. During my representation, I felt that Mr. McLean was always competent. Tr. 245-46.
Mr. Kando dismisses, as inconsequential, the opinions of McLean's three prior attorneys because, he says, (1) they did not have sufficient interaction with McLean, and (2) they do not account for what he professes is McLean's current inability to confer with him. The Court disagrees. McLean's intellectual disorder did not suddenly manifest itself in 2018, after laying dormant in 2016 and 2017. As Dr. Wall testified, that disability is life-long and manifested itself years ago. Dr. Meyers also rejected the notion that McLean's mental restrictions were of recent vintage. Comp. Tr. at 92-93.
Further, a review of the testimony of prior counsel discloses that they spent ample time discussing the case with McLean. Notably, Mr. Canham, McLean's third attorney, testified that he met with McLean as many as a dozen times and that McLean himself raised various theories of defense, including the distinction between robbery and larceny, a defense of abandonment, and self-defense. Comp. Tr. at 238-39. While two of their discussions became heated over potential sentencing, those instances were short lived. Their conferences thereafter continued cordially, and by December "we were preparing for trial and they were collegiate meetings." Comp. Tr. at 250. Indeed, Mr. Canham was taken aback when, with the trial only a few weeks away, McLean demanded his dismissal: "Through all December and up until the 8th [of January], he and I had been working together preparing for trial and at that point I thought our relationship was very good. So I was somewhat surprised when he said he wanted to fire me." Comp. Tr. at 240.
It is this Court's unreserved view that McLean's strained relationship with Mr. Kando and what led him to report to Dr. Myers that he suspected McLean was relying on ACI inmates and "jailhouse notions" instead of his advisements, does not at all result from McLean's inability to assist counsel in the defense of the case; rather, it stems from McLean's volitional unwillingness to confer with him. See, Buxton, Simpson, and Ferry; supra at 19-20; see Brown, 669 F.3d at 18 (noting that defendant's overall distrust of the legal system and suspicion of the judiciary, as well as his relationship with his attorney which was not "genial," did not render him incompetent).
McLean, as Dr. Myers acknowledges, simply prefers to seek advice elsewhere, namely from other prisoners, "as opposed to lawyers who tell him things he doesn't like to hear," and "he was giving more credence to some of the jailhouse attorneys, that is, inmates and family members who were in prison, than his own attorneys." Comp. Tr. at 13; 372. Dr. Myers concluded that McLean "value[s] legal guidance from inmates over his own attorney," and Dr. Wall testified that "[h]e asks for help [in the ACI library] and he seems to avail himself of it." Myers Rep. at 11; Comp. Tr. at 280-81.
Not only has McLean spurned the advice of counsel in exchange for that of "jailhouse lawyers," he is currently seeking, despite his reading disability, law books at ESH because "[h]e wants to work on his case, relative to the issue of sentencing and plea bargaining." Comp. Tr. at 280.
McLean's distrust of the legal system, his disdain for counsel (both past and current), and his reliance on prison confidants have not, however, deterred him from making considered comparisons about his case, or from articulating theories of defense to the charges. Comp. Tr. at 90-92. As Dr. Wall wrote at page 9 of his report: "Although Mr. McLean has a history of disagreeing with his lawyers, he demonstrates an ability to give information that could help his defense." Showcasing that ability, he explained to Dr. Myers: "I will do my time for shooting the man in the head but he shot me first and I should not have to do [a] life sentence." ... I was trying to sell him a weapon, not rob the place. ... I had my hands up when he shot me." Myers Rep. at 5-6; Comp. Tr. at 61. In further explication of that self-defense theory, Dr. Myers testified:
THE COURT: And as I recall from your report, and I can't find the page precisely at the moment, McLean said that he had gone in there, at least what he told you, to sell a firearm and that he had been accosted, is that correct?
DR. MYERS: Yes. In so many words, yes.
Q. And I take it that what he was trying to explain to you was that he had gone in there with a rather benign and innocent purpose and ended up defending himself.
A. Yes.
Q. So his claim to you was self-defense, in so many words.
A. He accepted responsibility for shooting the man, but he said, He shot me first.
So he's not denying that he did shoot him.
Q. And I take it that he was saying that to you in an effort to explain the reaction that he felt was justified.
A. In a sense, yes.Comp. Tr. at 94-95.
McLean's ability to consider legal issues extends well beyond his criminal case. For example, during an ACI telephone call, McLean explained to his girlfriend, with obvious awareness of the statute of limitations, that she could not timely sue for injuries in a traffic accident after three years had elapsed: "[Y]ou only got three years to sue, though. Any . . . civil action, you got up to three years. So this October's the, the deadline." ACI telephone call, Mar. 21, 2018; Tr. at 3. See United States v. Shenghur, 734 F.Supp.2d 552, 555 (S.D.N.Y. 2010) (noting that defendant's taped phone calls reflected a rational understanding of his circumstances and rejecting a claim of incompetency).
Similarly, Dr. Wall writes: "Mr. McLean wants to have a jury trial so that they can hear that 'I was not there to rob anybody...went to sell a weapon ... I surrendered . . . gave up ... I dropped my weapon because I wasn't there to hurt anybody.'" Wall Rep.2 at 8. Indeed, Dr. Myers himself has concluded that McLean "has the capacity to testify relevantly and is willing to do it.. . Mr. McLean is open to the idea of testifying and he wants his side of the story to be communicated clearly. He acknowledged that it may or may not help if he testified but he wants the opportunity to air his side." Myers Rep. at 6.
And, reprising the "I-was-only-a-customer" theme, McLean explained to Dr. Wall that "his attorneys should focus on using the videotape to demonstrate that he entered the pawnshop as a customer intending to sell a weapon" and that his defense attorney "should argue that he was locked in the store (by codefendants) even though he was merely a customer. He thinks this approach could help with plea negotiations." Wall Rep.2 at 8.
These are coherent, cognitive musings, and they fit precisely within Dr. Wall's conclusion that "[although Mr. McLean has a history of disagreeing with his lawyers, he demonstrates an ability to give information that could help in his defense." Wall Rep.2 at 9 (emphasis added). He has simply, albeit ill-advisedly and imprudently, chosen not to. That may make McLean a difficult client, but not an incompetent one. See Buxton, 643 A.2d at 176; Ferry, 453 N.E.2d at 212 ("The defendant who declines to help his attorney in the preparation of his defense is perhaps unwise, or even foolish, but he is not necessarily on that basis incompetent to stand trial."); State v. Amaya-Ruiz, 166 Ariz. 152, 162, 800 P.2d 1260, 1270 (Ariz. 1990) (en banc) (noting a psychiatrist's opinion that "defendant's uncooperative attitude" and his refusal to speak to counsel "might be the result of advice from other inmates, rather than psychological problems"). Manifestly, McLean has demonstrated the ability to confer rationally with his three previous attorneys, and it is this Court's firm belief that he clearly has the same and present ability to do so with Mr. Kando.
Dr. Wall also testified that McLean "indicated that if he were in court and a witness for the other side is telling lies about him, he would tell his lawyer." Comp. Tr. at 314.
Moreover, irrespective of McLean's distrust or disappointment with his prior and present attorneys, it certainly has not chilled his desire for a lawyer's support in this case. It is manifestly clear that McLean very much wants an attorney. As Dr. Myers said:
Q. THE COURT: You're not suggesting that he wanted to represent himself in these matters, are you, without counsel? When I say "counsel," I mean a member of the bar.
A. DR. MYERS: No, I'm not saying that
Q. He wanted a lawyer, didn't he?
A. Yes. Comp. Tr. at 375.
Hence, McLean's keen and abiding interest in an "ongoing search for a great attorney," one whom Dr. Myers has denominated the "mythical" fifth attorney who "will ultimately fix his legal troubles" and one who "is smart enough or competent enough to make sense and set the system back into order." Myers Rep. at 9-10; Comp. Tr. at 13. As Dr. Myers related at the hearing:
Q. THE COURT: Did you get the impression from Mr. McLean that the legal advice that he was relying upon, if I may phrase it and construe it as legal advice, was from his grandfather, other inmates and, indeed, television, rather than his lawyers?
A. Yes.
Q. And he kept searching for a lawyer, I take it, from your report, that would concur with his own understanding, beliefs and hopes of how the legal system treated him, am I correct?
A. How the legal system would what?
Q. Would treat him.
A. Yeah. Could treat him. Should treat him.
Q. He was searching, was he not, effectively, if I could call it so, the Holy Grail?
He wanted a lawyer that would concur with his conclusions that he had reached either on his own or by consultation with his grandfather, other inmates and television reports that he had seen?
A. Yes. That he believes that there is a solution, and he hasn't had the proper attorney to get to that solution. Comp. Tr. at 90.
Attorneys Sparr and Canham recounted past experiences with clients who fired them as trial was approaching in order to delay the trial or the progress of the case because those clients disliked the plea offer. In response to Mr. Kando's objection to those accounts, this Court allowed that testimony but agreed, at least at that time, to limit it to their other clients and not necessarily attribute it to McLean's motivations when he jettisoned counsel shortly before trial. Comp. Tr. at 217, 244. That limitation, however, may no longer obtain, because even Mr. Kando now acknowledges that McLean's dismissive attitude toward counsel and firing them may, after all, be based on his intention "to delay the trial process." McLean Supp. Mem. at 9.
The Court's Observations
In determining that McLean can properly assist counsel and is competent to stand trial, this Court has not restricted its examination to the experts' opinions and the accounts and opinions of the defense attorneys. The within Decision is also based upon this Court's own considerations, from the vantage point of a front row observer who has had several opportunities to closely assess McLean during court proceedings in which he was fully engaged.
"A district court can consider several factors in evaluating competency, including, but not limited to, its own observations of the defendant's demeanor and behavior; medical testimony; and the observations of other individuals that have interacted with the defendant." Simpson, 645 F.3d at 306 (citation omitted). See Owen, 693 A.2d at 672 (noting that the trial justice permissibly relied upon audible conversations the defendant had with his attorney and the judge which reflected his intelligent and appropriate comments); Amaya-Ruiz, 166 Ariz, at 163, 800 P.2d at 1271 (trial judge's decision finding defendant competent "was aided by its observation of defendant's courtroom behavior"); Edwards v. State, 200 S.W.3d 500, 520 (Mo. 2006) (observing that when the trial judge "personally addressed [defendant], he did not appear confused, unresponsive, or disconnected"); People v. Brown, 4 A.D.3d 886, 887, 772 N.Y.S.2d 143 (N.Y.App.Div. 2004) (noting "court's own opportunity to observe defendant during the judicial proceedings"); Clanton, 488 F.2d at 1071 (noting that the judge in the federal postconviction proceedings had also presided over previous proceedings with the defendant, including his guilty plea).
In every instance—from his initial guilty pleas on March 22, 2016, during his subsequent PCR hearing, and throughout other court proceedings, McLean has displayed unfailing attention, answered questions responsively, and sought further explanation from the Court to ensure that he understood matters. Indeed, even during the Competency Hearing it was clear that McLean was paying careful attention, as he sua sponte interrupted testimony to request clarification of a ruling the Court had made. Comp. Tr. at 151.
In Banks, 513 Pa. at 341, 521 A.2d at 13, which our Supreme Court has quoted with approval, the Pennsylvania Supreme Court noted that the trial court, aside from experts and lay witnesses, also had many opportunities personally to observe the defendant not only at the competency hearing, but also during hearings and pretrial motions. Upholding the competency finding, the Pennsylvania Supreme Court cited with approbation the trial court's following commentary:
"As the trial Judge, I would also note at this time I had the opportunity to observe Banks' demeanor and participation during the course of the proceedings, and I found nothing to indicate or cast any doubt on his competency to stand trial. His behavior, demeanor and presentations throughout these proceedings corroborated rather than contradicted the finding of competency."
As a percipient observer of McLean in similar circumstances, this Court renews that same sentiment.
This Court finds unavailing Mr. Kando's contention that McLean simply "parrots," without comprehension, legal propositions and phrases which he has heard from his prison inmates. In the first place, Dr. Myers declined to subscribe to that assertion. Comp. Tr. at 95-96. Secondly, as noted earlier, it is clear from the ACI telephone calls, which Dr. Myers has never considered, that McLean's comprehension of the Court process and legal principles goes far beyond mere rote repetition. Supra at 26 n.9.
This Court is satisfied from all of the reliable evidence presented that Andrew McLean is competent to stand trial. The Court further orders, consistent with both Dr. Wall and Dr. Myers' belief that competency counseling classes significantly assist McLean, that he shall remain at ESH and shall continue with such classes (be they one-on-one or in group fashion). See In re Tavares, 885A.2datl50.
Indeed, by the time the matter is reached for trial, it may well be that Dr. Myers will also agree that McLean is competent. After all, he has prophesied that McLean's competency would likely improve with some psychotherapy or about eight to twelve competency counseling classes. Comp. Tr. at 81. By the time this case is tried, McLean will have already attended dozens of such counseling sessions.
The motion to find Andrew McLean incompetent to stand trial is denied.