Opinion
No. 51127-1-I.
Filed: March 22, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 02-1-01439-5. Judgment or order under review. Date filed: 09/13/2002. Judge signing: Hon. Michael Heavey.
Counsel for Appellant(s), Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Jennifer K. Ryan Gilman, Barrett Gilman Ziker, 1000 2nd Ave Ste 3500, Seattle, WA 98104-1063.
David Bruce Koch, Attorney at Law, 1908 E Madison St. Seattle, WA 98122.
Wentling — Informational Only (Appearing Pro Se), Doc # 842666, Wa. State Pententiary, 1313 North 13th Ave, Walla, WA 99362.
Counsel for Respondent(s), E Bradford Bales, King Co Pros Aty Ofc, 516 3rd Ave, Seattle, WA 98104-2390.
Prosecuting Atty King County, King County Prosecutor/appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.
A court in a criminal prosecution must order a competency evaluation if there is "reason to doubt" the defendant's competency. After observing Marcus Wentling in court and considering evidence that he is mildly retarded, the court in this case ultimately found no reason to doubt his competency. Wentling appeals his convictions for first degree robbery, first degree kidnapping, and first degree burglary, arguing that the court abused its discretion in declining to order a competency evaluation. He also contends the court erred in ordering him to register as a kidnapping offender.
Because we conclude the court's ruling on the evaluation was not an abuse of discretion, we affirm the convictions. The court erred, however, in requiring Wentling to register as a kidnapping offender. We therefore remand for the court to strike the registration requirement from the judgment and sentence.
FACTS
Prior to his trial, Wentling testified at a CrR 3.5 hearing. Two days later, as trial was about to commence, Wentling's counsel told the court she was having "serious doubts" about Wentling's competency. She said he had a low IQ and had given her somewhat vague responses when asked whether he understood the proceedings. She also said that Wentling's family had been "really pushing this issue," and that Wentling's grandmother, who had been his guardian, wanted to testify regarding his mental capacity. The court asked where Wentling's grandmother was. Defense counsel said she believed she was on her way to court. The court then inquired about Wentling's conduct during the CrR 3.5 hearing. Defense counsel said she had conferred with Wentling prior to his testimony, that he answered her questions, and that he made what counsel felt was the correct choice in deciding to testify. The court noted that Wentling appeared to be "focused right now and understanding what is going on." The court also noted that Wentling was focused during his testimony at the CrR 3.5 hearing, that he passed notes to his counsel, and that he withstood a rigorous cross-examination. Recalling specific portions of Wentling's testimony, the court observed that he clearly understood the gravity of his situation and the importance of certain testimony.
The court ultimately concluded there was no doubt as to Wentling's competency. The court acknowledged that a four-year-old evaluation indicated Wentling was mildly retarded, but concluded it was not dispositive. The court also indicated that it would have heard from Wentling's grandmother had she been present, but added that her testimony would not likely have affected the court's decision since the court had "seen him on the stand."
DECISION
An "incompetent person" may not be tried, convicted, or sentenced for an offense so long as their incapacity continues. A defendant is incompetent if he or she "lacks the capacity to understand the nature of the proceedings against him or her or to assist in his or her own defense as a result of mental disease or defect." A competency evaluation is required whenever "there is reason to doubt" the defendant's competency. The defense bears the threshold burden of establishing a reason to doubt the defendant's competency. A motion to determine competency must be supported by facts and will not be granted merely because it was filed. We review a trial court's decision on a request for a competency evaluation for abuse of discretion.
RCW 10.77.010(14); see also In re Fleming, 142 Wn.2d 853, 861-62, 16 P.3d 610 (2001); State v. Lord, 117 Wn.2d 829, 900, 822 P.2d 177 (1991).
Lord, 117 Wn.2d at 903; State v. Woods, 143 Wn.2d 561, 604, 23 P.3d 1046, cert. denied, 534 U.S. 964 (2001).
Lord, 117 Wn.2d at 901.
Fleming, 142 Wn.2d at 863; State v. Ortiz, 104 Wn.2d 479, 482, 706 P.2d 1069 (1985).
Wentling contends the trial court abused its discretion in declining to order an evaluation. He argues that there were clear reasons to doubt his competency, including defense counsel's concerns, a psychological evaluation indicating mild retardation, and his personal and family history. He points out that courts are to give counsel's opinion "considerable weight" and may consider the defendant's appearance, demeanor, past behavior, and medical reports. He contends the court in this case failed to properly weigh these factors. We find no abuse of discretion.
Lord, 117 Wn.2d at 901.
Fleming, 142 Wn.2d at 863; State v. Higa, 38 Wn. App. 522, 525, 685 P.2d 1117 (1984).
A defense attorney's opinion regarding the competency of a client, while entitled to considerable weight, is not controlling. In this case, there were reasons to discount counsel's doubts about her client. Her concerns, and the factual basis for those concerns, were vague. She expressed doubts about Wentling's competency but offered few supporting facts and relied largely on a nearly four-year-old psychological evaluation. The evaluation indicated that Wentling had an IQ consistent with mild retardation. But that conclusion was based on preliminary testing and the report expressly called for a more thorough evaluation to determine whether Wentling in fact met the criteria for mental retardation. Moreover, as the trial court correctly noted, a showing of mental retardation does not demonstrate incompetency. Finally, the fact that counsel did not raise the competency issue during preliminary proceedings and was under ongoing pressure from Wentling's family to raise it casts doubt on whether "a legitimate question of competency" existed.
State v. Woods, 143 Wn.2d at 605; Lord, 117 Wn.2d at 901.
During the argument below, the court referred to briefs submitted by the parties on this issue. Because the briefs are not part of the record before us, our analysis is based solely on the parties' oral arguments.
Wentling's IQ measured 67. Mental retardation exists when an IQ is 70 or less. RCW 10.95.030(2)(a), (c).
State v. Lawrence, 108 Wn. App. 226, 232, 31 P.3d 1198 (2001); State v. Minnix, 63 Wn. App. 494, 497, 820 P.2d 956 (1991); Ortiz, 104 Wn.2d at 482.
State v. Marshall, 144 Wn.2d 266, 279, 27 P.3d 192 (2001) (competency hearing is required whenever "a legitimate question of competency arises.").
Wentling also contends the court did not consider his personal and family history and should have questioned him and heard from his grandmother. It is clear from the record, however, that the court considered all the evidence presented to it regarding Wentling's history. If there was additional history the defense wanted the court to consider, it was the defense's burden to provide it. In any event, given that the court had recently observed Wentling testify at the CrR 3.5 hearing, we cannot say it abused its discretion in failing to question him before ruling on the motion. The court's decision to proceed without hearing from Wentling's grandmother was also well within its discretion. She was not present in court and counsel made no offer of proof as to what she would say.
Lord, 117 Wn.2d at 903-04.
Last, Wentling argues that the court erroneously relied on its observations of him during the CrR 3.5 hearing. But our courts have repeatedly stated that a defendant's demeanor and actions in court are relevant to whether there is reason to doubt his or her competency. While courts in certain instances have held that a court may not rely on its observations of the defendant to rebut strong evidence demonstrating a reason to doubt the defendant's competence, those cases rest on very different facts and are not germane here.
See Pate v. Robinson, 383 U.S. 375, 386, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966) (holding that lower court erred in declining to order a competency hearing and in finding defendant's behavior in court dispositive where there was an uncontradicted history of "pronounced irrational behavior"); Marshall, 144 Wn.2d at 280-82 (trial court erred when it relied exclusively on observations of the defendant and discounted ample evidence calling the defendant's competence into question, including expert testimony, extensive evidence of serious brain damage affecting his ability to think and reason, and evidence of bipolar disorder, manic depressive disorder, and paranoid schizophrenia).
In conclusion, given the circumstances in which the competency issue arose below, the weak factual basis presented by the defense, and the trial court's opportunity to observe Wentling in court and on the stand, we cannot say the court abused its discretion in declining to order a competency evaluation.
Wentling next contends, and the State concedes, that the court erred in ordering him to register as a kidnapping offender. We agree.
Kidnapping offenses subject to the registration requirement are defined in RCW 9A.44,130(9)(b)(i) as follows:
The crimes of kidnapping in the first degree, kidnapping in the second degree, and unlawful imprisonment, as defined in 9A.40 RCW, where the victim is a minor and the offender is not the minor's parent.
The statute requires that the victim of a qualifying offense be a minor. It is undisputed that Wentling's victim was not a minor. The court therefore erred in ordering Wentling to register as a kidnapping offender. Wentling's statement of additional grounds for review contains nothing of debatable merit.
The convictions are affirmed but the matter is remanded for the court to strike the registration requirement from the judgment and sentence.
SCHINDLER and BECKER, JJ., concur.