Opinion
SC: 163686 COA: 352179
07-08-2022
PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James Bryan KUHNS, Defendant-Appellant.
Order
On order of the Court, the application for leave to appeal the September 16, 2021 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.
McCormack, C.J. (concurring).
I concur in the Court's denial but write separately because I believe that had the defendant raised a challenge to his competency at sentencing , he may have been entitled to resentencing.
The defendant, James Kuhns, admitted to the police that he murdered Leonard Hempel and was charged with open murder. He was originally represented by attorney Louis Willford. The parties agreed that Kuhns's competency should be evaluated, and he was found to be competent. Shortly after, Willford moved to withdraw as counsel and the defendant was represented by attorney Dwight Carpenter moving forward.
Eleven months after the competency evaluation, Kuhns pled guilty to the open-murder charge. The record from the plea hearing suggests that Kuhns understood what was happening. He stated his name clearly and indicated that he understood the charge and the possible penalties associated with it. And after the judge described each of the rights Kuhns was giving up, Kuhns again said he understood. Kuhns's responses suggested he pled guilty to open murder knowingly and voluntarily. The only possible indication that Kuhns didn't appreciate the rights he was waiving was the plea deal itself, which wasn't much of a deal at all. Kuhns pled guilty to the charge of open murder, with no benefit in exchange for the rights he was waiving. At a later evidentiary hearing to determine the degree of murder, the court found Kuhns guilty of first-degree murder.
Almost a year after the plea hearing, Kuhns was sentenced to life in prison without the possibility of parole. At the sentencing hearing, it appears Kuhns's mental state had deteriorated significantly. He was confused about who his lawyer was and asked what his own name was. Speaking to the judge, he said: "I have a good deal of research. I'm trying my best to control my Wi-Fi and people keep packing my system. I do not feel completely safe, because I have not been seeing things step-by-step, in a way that is completely sealing my defense, in a way that is one hundred percent trustworthy." But the judge was unconcerned, and accused Kuhns of putting on an act: he told Kuhns he was "not going to go through theatrics here where you pretend not to understand what is going on."
With the aid of appellate counsel, Kuhns filed a motion to withdraw his plea, hold a second competency evaluation, and conduct a Ginther hearing. His appellate counsel attached an "offer of proof" to the motion, which was unsworn. In the offer of proof, appellate counsel describes a meeting with Kuhns from about five months after the sentencing hearing where his speech was nonsensical. She also spoke to both of his trial attorneys, Willford and Carpenter, and learned that they had been concerned about Kuhns's mental state but failed to take action. Carpenter, who represented the defendant from before the plea hearing through sentencing, recalled asking the prosecutor for a second competency evaluation at some unspecified point. But Kuhns's appellate counsel also spoke with the prosecutor and she had no memory of this. In fact, she said she would have supported a second evaluation if asked. The "offer of proof" also mentioned letters Kuhns sent to the sheriff and to Willford—one sent before the plea hearing, another sent after the sentencing hearing—both containing erratic statements indicative of declining mental health.
The trial court denied the motion, including the requests for a new competency evaluation and Ginther hearing. The defendant appealed; the Court of Appeals affirmed. People v Kuhns , unpublished per curiam opinion of the Court of Appeals, issued September 16, 2021 (Docket No. 352179), 2021 WL 4238026.
On appeal, Kuhns raised two arguments about his competency. First, his plea wasn't knowing and voluntary because he wasn't competent at the plea hearing. Second, his two trial attorneys provided ineffective assistance of counsel by failing to request a new competency evaluation before his plea hearing.
Because his appellate counsel framed both arguments around Kuhns's plea, I agree with the Court of Appeals that his arguments lack merit. The record of the plea hearing indicates that Kuhns understood the charge against him, the possible penalties, and the rights he was waiving. I agree with the Court of Appeals that his plea was "understanding and voluntary" and therefore "no error in the plea-taking process" can be shown. Kuhns , unpub. op. at 5. The transcript of this hearing doesn't indicate a lack of understanding. And therefore, even if his trial attorneys were objectively unreasonable for failing to request a reevaluation before his plea hearing, I also agree with the Court of Appeals that the defendant hasn't demonstrated prejudice from such an error.
In contrast, at the sentencing hearing, the record suggests that Kuhns's mental state had declined significantly. A claim that Kuhns was not competent at sentencing would warrant factual development at an evidentiary hearing.
If Kuhns was incompetent at sentencing, I believe this would have entitled him to resentencing. The United States Court of Appeals for the Second Circuit has held that if the trial court "has reasonable grounds to believe that the defendant may not have a level of awareness sufficient to understand the nature of the proceeding or to exercise his right of allocution, the judge should not proceed...." Saddler v United States , 531 F.2d 83, 86 (CA 2, 1976). Our court rules provide an analogous allocution right: a court must "give the defendant ... an opportunity to advise the court of any circumstances they believe the court should consider in imposing sentence[.]" MCR 6.425(D)(1)(c). This opportunity is meaningless if a defendant is incompetent.
If a trial court fails to provide an opportunity for allocution, resentencing is required. People v Wells , 238 Mich App 383, 392, 605 NW2d 374 (1999), citing People v Berry , 409 Mich 774, 781, 298 NW2d 434 (1980), overruled on other grounds by People v Petit , 466 Mich 624, 633, 648 NW2d 193 (2002). And that opportunity must be "meaningful." People v Bailey , 330 Mich App 41, 67, 944 NW2d 370 (2019) (trial court's interruption of the defendant at sentencing deprived the defendant of a meaningful opportunity for allocution). If a defendant is incompetent at sentencing, they do not have a meaningful opportunity for allocution.
Because Kuhns has not argued that he is entitled to resentencing, I can't say that the Court of Appeals erred.
Cavanagh, J. (dissenting).
I dissent from the Court's denial order because I believe the trial court erred by denying defendant's motion for an evidentiary hearing pursuant to People v Ginther , 390 Mich 436, 212 NW2d 922 (1973).
If defendant's representations are accurate, a lot seems to have gone wrong in this case. After defendant was charged with open murder, defense counsel and the prosecution stipulated to the need for a forensic examination. On August 8, 2017, the trial court entered an order, finding defendant competent to stand trial. Defendant, however, did not plead guilty until almost a year later in June 2018. I agree with Chief Justice MCCORMACK in her concurring statement that, on its face, the transcript of the plea hearing does not reveal that defendant was incompetent. However, defendant's appellate attorney now claims that defendant's trial attorneys have expressed to her that defendant was showing signs of serious mental illness between the competency finding and the plea proceeding. The record does not suggest that the trial court was made privy to this information, and therefore the trial court did not abuse its discretion by not further inquiring into defendant's competence. People v Kammeraad , 307 Mich App 98, 138, 858 NW2d 490 (2014). Further, I agree with the Court of Appeals that the trial court did not abuse its discretion by denying defendant's request for a second competency examination. That request was not made until August 2019 as part of defendant's attempt to withdraw his plea. Any information about defendant's competency at that point in time would have little bearing on the state of defendant's competency 14 months earlier because competency is not a static state of being. See Drope v Missouri , 420 U.S. 162, 181, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975) ; People v Blocker , 393 Mich 501, 510, 227 NW2d 767 (1975).
As Chief Justice McCormack remarks, defendant's plea to open murder does not appear to be "much of a deal at all" given that defendant received no discernible benefit in exchange for the rights he was waiving. While I recognize that this procedure is authorized by statute, see MCL 750.318 and People v Watkins , 468 Mich 233, 661 NW2d 553 (2003), I question whether advising a client to take such a plea might by itself constitute ineffective assistance of counsel in some cases. Defendant, however, does not make this argument.
But see People v Matheson , 70 Mich App 172, 245 NW2d 551 (1976) (noting that analyzing competency at a plea hearing may be different than competency during a trial because a plea-taking "is, effectively, a trial compressed into a few moments," and is "in an environment which may lend itself to a rote procedure").
That said, while there may be no apparent trial court error as it relates to defendant's purported incompetency, whether defendant's trial attorneys were ineffective for not requesting a second competency exam is a closer question and, importantly, one which an evidentiary hearing may be able to help answer. The inquiry is whether counsel's performance was deficient and, if so, whether that deficient performance prejudiced defendant. To show prejudice, a defendant must demonstrate "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v Washington , 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). If the representations made by appellate counsel are accurate, I find compelling defendant's argument that the performance of his trial attorneys was objectively unreasonable. According to appellate counsel's affidavit, defendant's first attorney, Louis Willford, noticed that defendant demonstrated an "inability to clearly communicate" and "that [defendant's] mental health steadily declined while incarcerated...." Further, appellate counsel states that attorney Willford said, "It became impossible to represent [defendant] because of [defendant's] inability to clearly communicate," which led to attorney Willford withdrawing from the case. Defendant's second attorney, Dwight Carpenter, found it "extremely difficult to communicate with [defendant because] he lacked focus and would often talk about issues completely unrelated to the case," including "speaking about experiments being done on him while at the jail." Attorney Carpenter indicated to appellate counsel that he thought a second referral for a competency examination was appropriate, but he never filed a request because he believed the prosecutor would object. In my view, this information would tend to suggest that the failure to at least request a second referral was objectively unreasonable.
I do not suggest that any person exhibiting signs of mental illness is legally incompetent, but I find these assertions concerning enough that it appears a second competency examination should have at least been requested.
Even if the performance of one or both of defendant's trial attorneys was objectively unreasonable, proving prejudice is tricky. To establish prejudice, defendant must demonstrate a reasonable probability that the outcome of the proceeding would have been different. Here, I believe that would be a demonstration that he was incompetent and unable to voluntarily, knowingly, and intelligently accept the plea to open murder. A defendant is presumed competent but must be deemed incompetent if they are incapable because of their mental condition of understanding the nature and object of the proceedings or of assisting in their defense in a rational manner. MCL 330.2020(1). Because no second competency examination took place and a competency examination performed now would not help answer whether defendant was competent in June 2018, that tool is unavailable to the trial court. But based on appellate counsel's offer of proof, testimony from trial counsel could be sufficient to make this determination.
The trial court clearly erred by denying the motion for a Ginther hearing. The trial court noted some of the statements in the offer of proof from appellate counsel but concluded that
there's nothing in the offer of proof to the effect that either attorney was concerned that the defendant might not be competent to stand trial or competent to enter a plea, and nor is there anything of any detail in the offer of proof to support any such finding.
But there was. Again, appellate counsel's affidavit asserted that attorney Willford told her that "[i]t became impossible to represent [defendant] because of [defendant's] inability to clearly communicate with Attorney Willford, which led to Attorney Willford's Motion to Withdraw." Further, appellate counsel's affidavit asserts attorney Carpenter believed a second competency examination was necessary but that Carpenter failed to seek it only because he thought the prosecutor would object. The offer of proof asserts that both attorneys thought defendant was not competent to enter a plea. Without a Ginther hearing, it is impossible to say if defendant can establish prejudice entitling him to plea withdrawal. However, I believe defendant has made a sufficient offer of proof to obtain a Ginther hearing, so I would remand for such a hearing, and I respectfully dissent from the order denying leave to appeal.
Although not raised, I also note that the trial court accepted defendant's plea while his interlocutory appeal was pending. It is, therefore, at least questionable whether the trial court had subject-matter jurisdiction over the case at that time. See People v Washington , 508 Mich 107, 972 NW2d 767 (2021) ; People v Scott , 509 Mich ––––, 973 NW2d 306 (2022) (remanding for the Court of Appeals to apply Washington in the context of an interlocutory proceeding).