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State v. Cleary2/7/2003
was a good idea and proceeded to ask defendant a series of questions. The court also asked questions of its own. Following the colloquy, the court expressed its satisfaction, based on defendant's demeanor and his periodic conferences with his counsel, that defendant understood the terms and consequences of his plea.
8. The sentencing hearing was held approximately six months later, on May 14, 2001. At the hearing, the court sentenced defendant to a term of ten-to-twenty years for sexual assault, and four-to-five years, to be served concurrently, for the lewd and lascivious conduct. Defendant filed an appeal within thirty days of the sentencing decision.
I.
9. Defendant first argues on appeal that the district court erred by finding him competent to stand trial contingent upon him receiving the assistance of a cognitive facilitator. The State denies that the district court made its finding of competency contingent upon the assistance of a cognitive facilitator, but contends, in any event, that defendant's unconditional guilty plea waived his right to any direct appeal of the competency determination.
10. We first consider the State's latter contention. It is generally true, as the State notes, that a voluntary guilty plea waives all non-jurisdictional defects in the proceedings leading up to the plea. State v. Armstrong, 148 Vt. 344, 346, 533 A.2d 1183, 1184 (1987). There are, however, exceptions to this general proposition. See, e.g., United States v. Muench, 694 F.2d 28, 34 (2d Cir. 1982) (allowing direct appeal challenging effective assistance of counsel, notwithstanding usual waiver rule). Several courts have specifically held that a "defendant's plea of guilty or no contest does not preclude the defendant from raising on direct appeal the issue of competency to plead or stand trial." Nebraska v. Wead, 609 N.W.2d 64, 68 (Neb. Ct. App. 2000); see also Michigan v. Parney, 253 N.W.2d 698, 700 (Mich. Ct. App. 1977) ("defendant's later guilty plea did not waive the alleged error arising from the prior competency determination"); People v. Armlin, 332 N.E.2d 870, 874 (N.Y. 1975) (holding that guilty plea did not waive defendant's right to challenge his competency to stand trial on direct appeal). In a different context, the United States Supreme Court observed that "it is contradictory to argue that a defendant may be incompetent, and yet knowingly or intelligently 'waive' his right to have a court determine his capacity to stand trial." Pate v. Robinson, 383 U.S. 375, 384 (1966) (holding in habeas proceeding that defendant did not waive issue of competence to stand trial by failing to demand competency determination at trial court level). We agree, and thus will treat appeals of competency determinations as an exception to the waiver rule.
11. We now return to the merits of defendant's competency argument. The test of competency to stand trial is whether the defendant "has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding - and whether he has a rational as well as factual understanding of the proceedings against him." Dusky v. United States, 362 U.S. 402, 402 (1960) (per curiam); accord State v. Bean, 171 Vt. 290, 294, 762 A.2d 1259, 1262 (2000). The standard of competency required to plead guilty is the same as the standard required to stand trial. Godinez v. Moran, 509 U.S. 389, 398 (1993); State v. Lockwood, 160 Vt. 547, 554, 632 A.2d 655, 660 (1993).
12. The crux of defendant's argument is that, instead of determining whether defendant was competent at that time to stand trial, the court made a prediction that with accommodation he would be competent to stand trial. Defendant
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