State v. Jimmie Lee Smith, 2013AP1228-CR, petition for review granted 6/12/16

Review of a published court of appeals decision; case activity (including briefs)

Issue (composed by On Point)

Did the evidence presented at Smith’s postconviction hearing establish reason to doubt that Smith was competent at the time of his trial and sentencing under the standard for retrospective determinations of competency established by State v. Johnson, 133 Wis. 2d 207, 395 N.W.2d 176 (1986)?

As explained in our post on the court of appeals decision, no one raised the question of whether Smith was competent before or during his trial or sentencing hearing (even though, as the court of appeals described it, Smith’s sentencing allocution was “bizarre, bordering on incoherent” (¶2)). But during postconviction proceedings Smith was found to be incompetent, and postconviction counsel ultimately challenged Smith’s competency at the time of trial. The postconviction motion cited information that was available at time of trial (but that Smith’s trial counsel had not discovered), along with the opinions of two experts who evaluated Smith postconviction and did a retrospective competency assessment. But the circuit court was skeptical of retrospective competency determinations, and thus of the two experts’ opinions, and found Smith was competent at trial because neither Smith’s trial lawyer nor the trial judge (who was not the postconviction judge) raised concerns about his competence.

The court of appeals reversed because the circuit court applied the wrong standard when it discounted the expert opinions. (¶23). The standard is whether the whole record reveals a reason to doubt Smith’s competence at trial and sentencing, not whether people interacting with him at trial doubted his competence. Moreover:

¶24    Despite acknowledging the expertise of the medical experts multiple times by offering glowing praise, the postconviction court still rejected the experts’ reports and testimony because neither the trial court nor Smith’s defense counsel raised competency concerns. The postconviction court’s rationale is not supported by Johnson. Johnson does not stand for the proposition that an otherwise competent retrospective evaluation should be rejected simply because experts expressing the present opinion about a defendant’s past competency did not interview the defendant during that past time. If the opinion of experts can be rejected because neither expert interviewed the defendant contemporaneously with the time in question, then there could never be a retrospective determination of incompetence. That is not the law. See Johnson, 133 Wis. 2d at 225.

By all appearances, then, the court of appeals decision is a straightforward application of the standard established in Johnson. No novel issues of statewide concern appear to be raised in the case. Yet the state petitions for review—and its petition is granted. One might ask, “Why?” Not because the case meets any of the usual criteria for granting review under under § 809.62(1r). Not because it presents an issue appropriate for the court’s law development function, State v. Mosley, 102 Wis. 2d 636, 665-66, 307 N.W.2d 200 (1980), as the state is not apparently asking the court to revisit Johnson. Instead, the state is complaining about the court of appeals’ application of Johnson and suggesting that the court went beyond the purview of an appellate court by engaging in fact-finding and/or weighing of the evidence. In other words, the state doesn’t like the result but it can’t find a real issue that meets the criteria for review. Perhaps the supreme court sees this case as a chance to clarify how Johnson is supposed to work; perhaps they’re engaging in mere error correction. We’ll see when we get the decision next term.