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State v. Cleary2/7/2003
1. Defendant Donald Cleary appeals following his guilty plea to charges of attempted sexual assault and lewd and lascivious conduct. He argues that the district court erred by finding him competent to stand trial contingent upon his receiving the aid of a cognitive facilitator. He also argues that the trial court violated V.R.Cr.P. 11 during the plea hearing by failing to personally address him, establish his knowing and intelligent waiver of his rights, and elicit his acknowledgment of a factual basis for the charges. We conclude that the record supports the district court's competency finding, and that defendant has failed to demonstrate that any Rule 11 deficiencies amounted to plain error. Accordingly, we affirm.
2. Defendant is a mentally retarded, thirty-six-year-old resident of Hyde Park with an IQ (intelligence quotient) between sixty-five and seventy. While his IQ has remained constant over time, his functional abilities have improved. Defendant lives independently and is employed as a logger.
3. On three occasions prior to 1991, defendant was charged with criminal offenses but found incompetent to stand trial. Since then, however, he has twice been found competent to stand trial. In 1991, he pled guilty to charges of unlawful trespass, simple assault, and attempted sexual assault. In 1999, he pled guilty to a charge of unlawful trespass based on an incident in which he entered a woman's home. The present charges stem from an alleged sexual assault against his mother.
4. In connection with those charges, defendant was evaluated by two experts, Dr. Cotton and Dr. Kinsler. Both experts initially found defendant incompetent to stand trial and agreed that the determination was a "close call." Dr. Cotton later changed his opinion and found defendant competent based on material that neither he nor Dr. Kinsler had reviewed before making their initial determinations, including depositions by mental health workers who had supervised defendant and a 1998 competency evaluation by another expert. Dr. Cotton's revised opinion was based on information suggesting that defendant could communicate and cooperate with his mental health supervisors, plan and accomplish goals, and live independently. Dr. Cotton also considered evidence that defendant had willfully manipulated his capacities over time to satisfy his needs.
5. In a lengthy decision filed on October 16, 2000, the district court found defendant competent to stand trial, noting, among other things, that (1) he had the mental capacity to communicate with counsel and make choices after weighing the risks and benefits of the various options; (2) he had considerable experience with the criminal justice system; (3) he had a basic understanding of his Fifth and Sixth Amendment rights; and (4) he knew the roles and functions of his attorney, the prosecutor and the judge. 6. The court cautioned, however, that defendant did not fully understand the function and role of the jury because he had never gone to trial. Nevertheless, the court concluded that, with careful explanation and accommodation, defendant could develop a sufficient understanding of the jury's role at trial, and that with such support he would be competent to stand trial.
7. Following the competency decision, defendant elected to plead guilty to the charges with the understanding that the State would propose a ten-to-twenty-year sentence. At the November 20, 2000 change-of-plea hearing, the trial court suggested that, given defendant's limitations, the Rule 11 colloquy might be more effective if defense counsel asked the questions, with the court assuring itself that the plea was knowing and intelligent. Defense counsel indicated it
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