*1 Plaintiff-Respondent, Wisconsin, State Jeramey Defendant-Appellant-Petitioner. J. Byrge,
Supreme Court
1, 2000.
argument
No. 97-3217-CR. Oral
March
Decided
July
For the attorney general, by Sally Wellman, with L. assistant Doyle, attorney E. was James whom on brief general. Jeramey Byrge PROSSER, J. T. J. 1. DAVID
(Byrge) published of a decision of the seeks review Byrge, appeals, 2d State Wis. (Ct. 1999), affirming App. a decision N.W.2d 388 County, Darryl Deets, Court for Calumet W. Circuit Judge. The circuit court determined charges stemming competent stand trial for from including first-degree felony intentional offenses, five hiding corpse. denying Byrge's After homicide and permitting pleas motion to withdraw his no contest but *7 by guilty pleas reason of him withdraw the of not to (NGI), Byrge guilty and mental defect the court found parole imprisonment eligi- a him to life with sentenced bility July 2, of 2095. date unsuccessfully Byrge motioned the circuit post-conviction subsequently
court for relief and sought appeals. of the court of The court review appeals that, standard of held under the deferential by this court in State v. Garfoot, articulated review (1997), appellate court N.W.2d 626 an Wis. 2d upset competency determina- will not a circuit court's clearly The court then tion unless it is erroneous. Byrge finding competent pro- that was affirmed Byrge's pleas held were not ceed. The court also that sentencing required not because a court is defective Finally, eligibility. parole inform defendants about Byrge appeals that had not received court of concluded ineffective assistance counsel. First, three We frame issues in this case. we holding our
revisit in and discuss the standard Garfoot applies of review that determinations. Byrge Second, issue, we address related whether competent Third, was to stand trial. we examine Byrge's sentencing contention that the court was obli- gated parole eligibility to inform him about before it accepted plea. his appellate reviewing
¶ 4. hold an We that a methodology determination must use the findings set forth in a of circuit court Garfoot. competency to trial stand determination will be upset they clearly unless are erroneous a com- because petency hearing presents unique category inquiry position apply in which the circuit court is in the best the law to the facts. We find circuit court's Byrge competent decision that to stand trial was clearly testimony compe- not tency erroneous because Byrge
hearing indicated was able to understand proceedings and assist in his defense. We conclude statutory option that when a circuit court exercises its parole eligibility date, to fix a that date has direct range punishment. automatic effect on the In this parole eligibility circumstance, is a information direct consequence Although plea. the circuit court had duty Byrge parole eligibility to inform about the accepted plea, information it before his the State has prove met its burden to nonetheless entered knowingly, voluntarily, plea intelligently. Accordingly, we affirm the decision of the court of *8 appeals.
FACTS Friday evening, August ¶ 19, 1994, 5. On Joan Wagner (Wagner) called her husband and that told.him p.m. her shift ended at 11:00
she would see him after Wag- Foley Company Chilton, in Wisconsin. the Mirro expressed about the new home on excitement ner day. couple that did not had closed When she which Wag- p.m., her retraced arrive home 11:30 husband to locate her or her vehicle. ner's route but was unable Foley Wagner ¶ A6. Mirro co-worker observed facility leaving p.m. a male at 11:15 He noticed that parking approached sitting lot had been near who Wagner Wagner began talking her. and the with Wagner's blue-over-gray 1989 male walked towards passenger's Am, and she unlocked the Pontiac Grand off.The co-worker side for the male. The two then drove person accompanied Byrge as who later identified Wagner. p.m., At a Town of Rantoul resi- about 11:45 (Kopecky), Kopecky he dent, Chris heard what presumed coming from the near screams woods be Am near the his home. He also saw a blue Grand remembered the first let- entrance to those woods and days plates. later, ter and number of the license Kopecky's Two description realized that his mother newspa- in a Am matched the vehicle discussed Grand per detailing Wagner's disappearance. Kopecky article August 23, 1994, On then decided to check woods. just puddle off a he and two friends saw leading of blood trail body feet into the The shoes and woods. away. enforcement authorities rested 500 feet Law clothing body arrived and discovered that the Wagner autopsy positively what had worn. An matched body Wagner had been identified and revealed stabbed four times. Byrge, 19-year old next door to who lived August
Wagner, Chilton area was not seen after week, 19,1994. Earlier in the had indicated *9 planned trip he to take a bus to Colorado to visit a August woman with whom he had a child. On 23,1994, Jerry Pagel County Detective of the Calumet Sheriffs Department, They contacted Colorado authorities. Byrge Highlands arrested Ranch, in Colorado. At the Byrge operating arrest, time of his' was a blue plates. silver Pontiac Grand Am that bore Wisconsin registered Wagner The vehicle was and her hus- During band. a search of Am, the Grand Colorado hunting curved, authorities found knife with a four- inch blade under the front driver's seat. The knife appeared body to have blood and on tissue it.
PROCEDURAL HISTORY August County 25, 9. On 1994, the Calumet Attorney complaint alleging Byrge District filed a Wagner's complaint caused death. The stated that Byrge first-degree committed the intentional homicide 940.01(1) Wagner, contrary § to Wis. Stat. (1991-92),1 felony punishable by imprisonment. life complaint alleged Byrge responsible The also (1) hiding corpse contrary for four other crimes: (2) 940.11(2), imprisonment contrary § Wis. Stat. false (3) contrary jumping § 940.30, Stat. bail Wis. to Wis. (4) 946.49(l)(b), operating § Stat. motor vehicle contrary without the owner's consent to Wis. Stat. 943.23(2). County ¶ 10. The Circuit Court for Calumet con- preliminary hearing September 1994, ducted a on and the court for bound over trial on all counts. prosecution day, filed an Information that same subsequent All references to the Wisconsin Statutes are to the 1991—92 volumes unless indicated otherwise. charges
alleging as those set forth the same complaint. criminal charges Byrge pled guilty Sep- to all later, 24,1994, *10 23,1994. month on October
tember Byrge One pleas pleas to the amended his to include NGI charges. Byrge pleas 15,1994, entered of On November charges except imprison- the false no contest to all the charge. not These modifications were the result of ment plea agreement. pleas as remained intact to NGI charges. all five psychiatrists Byrge
¶ examined 12. Three reports pleas.2 respect to A court- filed with the NGI expert, Byrge appointed Ralph Baker, K. examined Dr. psychiatrist Lorenz, 16. Dr. A.A. the on December by Byrge, 3, him on March 1995. selected evaluated expert, Fosdal, Dr. Frederick interviewed The state's Byrge on March 13. Byrge's Joseph counsel, On trial March
Norby (Norby), competency requesting a filed a motion days appointed the evaluation. Nine later circuit Byrge Dr. Baker to examine for to stand psychiatry in and neurol- trial.3 Board certified both ogy, 1,000 more Baker had evaluated than individuals 971.16(3), report
2 Under Wis. Stat. the examiner's must address: wrongfulness ability appreciate [T]he the defendant to defendant's conduct or to conform defendant's conduct with
requirements of law at the time of the commission the criminal charged and,.. the defendant needs medication or offense .whether competent to refuse treatment whether defendant medication or treatment for the defendant's mental condition. 3 competency proceed report "[t]he A forth exam sets opinion present regarding iner's the defendant's mental capacity or proceedings to understand the and assist his her 971.14(3)(c). defense." Wis. Stat. § competency by Byrge's hearing. for Byrge the time of Both placed
and the State had Baker on their lists of psychiatrists acceptable experts. as Byrge 14. Baker evaluated for proceed April During Byrge on examination, this first remained silent. Baker concluded this silence product Byrge was not the of mental illness because agreed, reluctantly, speak albeit Baker after with consulting Norby. Baker later testified that his find- ings from both this examination and the evaluation he respect pleas helped had conducted with NGI many Baker determine factors about that bore competency. on compe-
¶ 15. The circuit court commenced the tency hearing Friday, April postponed but proceeding Monday following until because Dr. hearing Baker was unavailable. When the reconvened *11 April attorney the district informed the court Byrge glass that had cut himself with earlier in the morning might Byrge glass and that still have in his Norby Byrge mouth. indicated that he and had had day, culminating physical that differences in a and ver- Norby bal confrontation. informed the court that he before," "never had faced like been with situation this proceed." and that "at a he was loss as to how attorneys agreed bring Byrge court and into the courtroom under restraints and shackled to a wheel- - protect personnel Norby. chair to courtroom and Byrge. Byrge ¶ 16. The court first addressed did respond Judge inquired not when Deets whether he competent incompetent. Following proce- was or 971.14(4)(b), dure set forth in Stat. Wis. the court and parties agreed Byrge's that decision to stand mute require Byrge incompetent would the court to find proved unless the State otherwise. only
¶ that testi- 17. Dr. Baker was witness explained hearing. competency Baker that a fied at the determines whether defen- evaluation attorney cooperating capable of with an and dant is assisting Byrge defense. Baker found that was with the proceedings and assist his able to understand mentally attorney. Byrge, observed, Baker "was not ill simply malingering, he was distressed at the num- or jail things possibility occurred in and the ber of Byrge aware of both the trial." Baker found that against charges many him and the factors involved legal process. in the Byrge had suicidal 18. Baker noted that
thoughts might indicated he and that his actions Byrge happened care what to him. He observed "great anxiety depres- and and has a deal of frustration sion." But Baker also testified that this condition did Byrge not affect because was not "unable cooperate attorney any way with or in function at his the trial." testimony, Following Dr. Baker's Norby present
asked if he additional evi- wished Norby dence. stated:
I am in a situation where I—if other counsel were Byrge, may Mr. he have to call representing wanted witness, myself I I me as a can't call can't testify. violating privilege . .without that Mr. me, hamstrung, really has I am I can't with say asking So if the court if is anything. there offer, I yes. like to But additional evidence would *12 I I point? can it at I think can. offer this don't Norby did not ask the court to call Dr. Lorenz or Dr. he witnesses, Fosdal as and did not call the court's reports psychiatrists. from those two attention reports The of Drs. Lorenz and Fosdal were not entered competency hearing, as exhibits at the were later but received into evidence on the State's motion. Byrge competent
¶ 20. The court found that was proceed. Byrge sought Thereafter, to withdraw his pleas no offenses, contest to four and the court Byrge sought denied the motion. also his to withdraw conducting colloquy pleas. Byrge, a NGI After with pleas. court allowed the withdrawal of the Four NGI charges Byrge pled thus remained to had no which namely first-degree contest, homicide, hid- intentional ing corpse, operating jumping, bail and a motor Byrge guilty vehicle without consent. The court found on all four counts. 21, 1995, 21. On June the court sentenced
Byrge imprisonment first-degree to life on the inten- setting parole eligibility conviction, tional homicide July imposed 2,2095.4 date court also consecu- five-year hiding Byrge's tive term on conviction in the corpse five-year offense and concurrent terms on jumping operating bail and without consent convictions. post-conviction Byrge motion, filed a essen-
tially presenting Byrge First, four bases of relief. challenged finding compe- trial court's that he was proceed. Second, had tent he claimed that he respect received ineffective assistance of counsel with competency proceeding both the withdrawal pleas. Byrge Third, of the no contest contended that knowingly, pleas no contest were not entered volunta- rily, intelligently. Fourth, claimed that plea colloquy was defective because the court never Byrge on advised the record that the maximum sen- 2,1975. 4 Byrge July born *13 parole. prison possibility life in without tence was rejected Byrge's circuit court claims. The appealed, arguing appellate . Byrge ¶ an 23. independent utilize an standard when court should challeng- reviewing a determination ing he court's determination that was the circuit competent to maintained that a stand trial. He also sentencing required court should be to inform defen- accepting plea. parole eligibility dant before about Finally, Byrge appeals the court of to his asked review that his trial counsel was ineffective. contention appeals 24. The court of certified the case Byrge court, n.2, Wis. 2d at 711 but we this appeals the certification. The court of then declined holding court, that, affirmed the decision of the circuit by precedent Garfoot, under the established Wis. employ clearly appeals 2d a court of is bound methodology reviewing erroneous competency circuit court's Byrge,
determination. 225 Wis. 2d at standard, that deferential the court of 711-12. Under appeals compe- its of the confined review to record tency hearing finding and affirmed the the circuit competent to court that stand trial. Id. at appeals also held that a sentenc- 713-14. court notify ing obligated is a defendant about eligibility parole eligibility parole information because consequence plea. collateral, direct, not a Id. Finally, Byrge had failed at 716-17. the court held that a claim for ineffective assistance of coun- to establish Id. sel. accepting Byrge's petition review, In for
this court declined address the ineffective assistance at 2. 15,1999, of counsel claim. Order dated June COMPETENCY DETERMINATIONS IN GENERAL begin addressing purpose
¶ 26. We
of com-
petency
Competence
determinations.
to stand trial is a
*14
justice system. Drope
of
cornerstone
our criminal
v.
(1975). Anglo-Ameri-
162,
Missouri, 420 U.S.
171-72
long
recognized
incompetent
can law
has
compelled
"[0]nly
defendants cannot be
to stand trial.5
mentally competent
where a defendant
hewill
be
effectively
rights
society
able to exercise
which this
persons charged
committing
extends to
a
with
crime."
State
Schubert,
315, 322,
ex rel. Matalik v.
57 Wis. 2d
(internal
(1973)
omitted).
quotations
to a trial. U.S. at Pate v. 420 5 Schubert, generally See State rel. v. ex Matalik 57 Wis. 2d (1973) 315, 321, 204 Commen Blackstone, 4 (quoting N.W.2d 13 Oklahoma, Cooper taries v. *24, (1897)); 348, *25 U.S. 517 (1996). 356-57 6 See Vadas, Casenote, also Godinez Stephen Luke Competency?, Moran: An Insane Rule 903, Loy. 39 Rev. L. for (1994). 906
213 (1966). Consequently, 375, 378, Robinson, 383 U.S. suspension permit courts both federal state against incompetent proceeding an accused criminal person. federal Matalik, Wis. 2d at-321-22. Under compe- determining process for law, case the due test (1) tency the defendant: "has considers whether ability present consult" with his or her sufficient lawyer degree of rational under- "with reasonable (2) standing;" and "has rational as well as factual Dusky understanding proceedings." v. United (1960) curiam). (per Thus, a States, 362 U.S. capacity incompetent he or lacks the defendant is if she object proceedings, nature and understand the preparation counsel, in the to consult with and to assist Drope, 420 of his or her defense. U.S. at incompetent Wisconsin, In an the trial of Stat. defendant also violates state law.7 Wisconsin *15 971.13(1) process § the test set forth in codifies due Dusky, providing person that, substan- "No who lacks capacity proceedings to the or tial mental understand may tried, convicted, assist in his or her defense be or long sentenced for the of an offense so as commission incapacity the 207 2d at Garfoot, endures." See Wis. two-part test consti- This "understand-and-assist" competency-to-stand-trial tutes the core of the analysis. amplifies § Stat. 971.14 the basic Wisconsin by setting forth
rule of the understand-and-assist
test
7
incompetent
right
an
to stand
Because
defendant's
not
is
deeply
principles,
trial
rooted
in constitutional
individual
may
procedural
incompati
impose
states
burdens
are
protections
by
the
the Due Process
of the
ble with
offered
Clause
517
at
Cooper,
United States Constitution.
U.S.
367-69.
214
procedures
competency
for a
determination. A
proceed
[the
971.14]
provisions
§
court "shall
under
compe-
whenever there is
tency
to
reason
doubt a defendant's
971.14(1).
proceed."
§
to
Stat.
A
Wis.
reason to
competency
doubt
can arise
from
defendant's
colloquies
courtroom,
in the
court,
demeanor
with the
party.
or
a motion from either
v.
A.E.,
State Debra
(1994);
2d 111, 131,
188 Wis.
523
727
N.W.2d
see also
Johnson,
State
207, 220,
v.
133 Wis. 2d
STANDARD OF REVIEW FOR COMPETENCY
HEARINGS
compe-
Having
purpose
addressed
of
tency
trial, we now turn to the first issue in
to stand
appel-
namely
case,
this
which standard of review an
employ
reviewing
when
late
court must
competency determination of a circuit court.
adopt
position
asks this court to
of
concurrence
(Abrahamson, C.J.,
2d
con-
in
at 229
Garfoot, Wis.
curring), arguing
issue
is a
question
question
fact, or mixed
of constitutional
subject
partially
independent
law,
fact
least
The State maintains
determina-
review.
questions
fact
tions
be reviewed as
under the
should
clearly
majority
erroneous standard endorsed
opinion in
deferential erroneous standard. Garfoot determinations approached as function- ally Garfoot, factual 207 Wis. 2d at inquiries. of fact set are not aside unless are
Findings they clearly erroneous, and courts due to a appellate give regard circuit the credibility court's to assess opportunity 805.17(2). Wis. witnesses. Stat. We reasoned that competency determinations merit this level defer- ence because the circuit court can balance witness and demeanor: credibility position
The trial court is the best to decide competence whether the evidence of the outweighs Although of incompetence. evidence the court could precise findings make of fact the about skills possess, abilities defendant does and does not ultimately must determine whether evi- competent dence that the defendant is more is convincing than the evidence that he or she not. is The trial court in the deci- position best make require sions that be conflicting evidence to weighed. Although ultimately apply court must test, fac- legal functionally its determination is tual either state one: has convinced the court that the defendant has the skills and to be abilities "competent," or it not. considered has ability superior The trial court's observe presented defendant the other evidence requires deference to trial court's decision that Only competent defendant is or is not to stand trial. credibility judge the trial court can of witnesses testify competency hearing. Thus, only who at the accurately court can determine the trail whether sufficiently presented evidencethat was state convincing proving to meet its that the burden competent defendantis to stand trial. at 222-23. 207 Wis. 2d
Garfoot,
*18
Shirley
¶
Abrahamson,
S.
34. Chief Justice
joined by
Bradley
Justice Ann
and Justice
Walsh
Emphasizing
Geske,
in
Janine P.
concurred Garfoot.
hearing,
competency
a
the
the constitutional basis of
competency
concurrence maintained that
determina-
implicates
question
fact,
of constitutional
tion
question
subject
law,
to a
mixed
of fact and
two-tier
at
Wis. 2d
Garfoot,
standard of review.
(Abrahamson,
concurring).
C.J.,
Under this
231-32.
applies
methodology,
appellate
an
court
the defer-
first
clearly
its
the
ential,
erroneous standard in
review of
reviewing
evidentiary
Id. at 234. The
historical,
facts.
analyzes
independently
application
the
then
principles
the
Id. at 234-35.
constitutional
facts.
sep-
¶ 35. Justice William A. Bablitch concurred
arately
finding
by
Garfoot,
in
the concurrence authored
"fairly persuasive"
Chief Justice Abrahamson
but con-
cluding
briefed
court should await
better
actually
in
is
at
case which
standard ofreview
issue
rejecting
clearly
at
before
erroneous standard. Id.
(Bablitch,
concurring).
J.,
¶
36. The standard of
issue in this
review
parties
case, have briefed the issue thor-
both
holding
oughly. We
revisit our
in
We
therefore
Garfoot.
by
Supreme
begin
considering how the United States
in
Court treats
standard of review
sought uniformity
hearings.
frequently
This court
has
following
by
Supreme
in the law
Court
constitu-
interpretation.
tional
See Isiah
State,
B. v.
176 Wis. 2d
(1993).
639, 646,
leads us to consider the manner in which the
appellate
Court classifies
review of
deter-
Although
certainly categorizes
minations.
the Court
*19
some issues as constitutional facts, it does not treat all
questions
identically.
constitutional
approach
The Court's
competency
unique
reveals that
falls within a
sphere
inquiry,
sphere
of
a
in which the issue turns on
requires
more than historical facts but nonetheless
8
Supreme
The
following
Court treats the
as constitutional
facts,
in
application
situations
which the Court reviews the
of
principles
constitutional
to the
independently:
historical facts
confession,
Fenton,
Voluntariness of a
Miller v.
mixed questions fuzzy simply fact, of "often at best."9 Corp. Bd., 159, v. Tax 463 U.S. Container Franchise (1983). acknowledges Supreme itself 176 The Court entirely clear in the that it "has not charted an course" legal distinguishing fac arena of between elusive questions. 474 106 Fenton, tual Miller v. U.S. (1985); Corp., 496 see also Cooter & Fell v. Hartmarx (1990). "ques 384, 401 an a U.S. Whether to label issue "question question law," of of fact," tion of or "mixed of than law and fact" often is more a matter allocation analysis, recognizes an allocation the Court which judicial positioned one actor is another better than Miller, to decide matter. 474 U.S. 113-14. Initially, Supreme suggested ¶ 40. Court comprise that reviews of determinations questions mixed ogy of fact and law. Under that methodol- findings the Court first the trial court's examined deferentially historical facts then inde- of but reviewed pendently question competency. ultimate of competency implicates Because the determination of suggested process protections, it due the Court indepen- appropriate for it to its undertake own application dent review of constitutional principles. Drope, n.10; Robinson, at 175 383 U.S. U.S. at 385-86. Supreme
¶ 41. has its Court retooled approach and now treats determinations Maggio questions more like In Fulford, fact. (1983) curiam), majority (per the Court U.S. *20 9 Christie, Essay Discretion, generally George See C. An (1986). 747, Duke 1986 L.J. 772
220 competency held that its of a review determination clearly must be confined to the erroneous standard.10 corpus proceeding. was the result of a habeas A Fulford Louisiana trial court refused to order examination competency assessing testimony commission after psychiatrist of a who interviewed the defendant for day hearing. about one hour the before the Id. at 113. In Appeals review, its the United States Court of for the Fifth Circuit held that the decision of the trial court supported by Supreme was not the record. Id. The concluding appellate reversed, Court "erroneously judgment substituted its own as to the credibility of witnesses for that of the Louisiana finding posi- courts." Id. In that a trial court is better competency tioned reach ultimate determination, the Court reasoned:
Face to face with living witnesses original trier of the facts a position holds of advantage from which appellate judges are excluded. In doubtful cases the exercise of power his of observation often proves the most accurate method of ascertaining truth. . can say .how we the judge wrong? We never saw the witnesses.... (citations omitted).
Id. at 118 product ¶ 42. was the of a divided Fulford Court.11 Since Fulford, however, the Court has not
10In
2254(d)(8),
line with 28 U.S.C.
Supreme
Court
phrase
'fairly
used the
supported by
"not
Maggio
the record.'"
(1983)
curiam).
Fulford,
462 U.S.
(per
justices suggested
Four
majority
overruling
those cases in which the Court had held that
the review of a
presents
determination
question
a mixed
of fact
and law: Justice
judgment
White concurred in the
disagreed
but
majority's
with the
question
conclusion "that
ais
*21
departed
the ultimate deci-
to allocate
from its decision
years
after
the trial court. Two
sion of
writing
majority in
for the
O'Connor,
Justice
Fulford,
findings,
trial court
that certain
Miller, concluded
including competency
trial, should be afforded
to stand
hinges on witness
their resolution
deference because
credibility,
demeanor. 474
hence, evaluation of
and
compelling
inquiry offer
areas of
112-13. Such
U.S.
leaving
process
applying
justifications
law to
"for
Subsequently, Justice
at 114.
trial court." Id.
fact to the
Ginsburg
she authored
this view when
reiterated
Thompson.
majority opinion
She noted
including competency
although
deter-
issues,
certain
embody
facts,
basic,
than
historical
minations,
they
more
genre
of decisions
fall within
nonetheless
516 U.S.
as "factual issues."
the court classifies
111.12
Many
Miller,
Fulford,
federal courts follow
treating
corpus proceedings,
Thompson in habeas
left to the
as factual issues
determinations
(1983) (White, J., con-
Fulford,
historical fact." that, dissented, finding "Our curring). Justice Marshall hearing competence clearly establish that whether decisions and fact which question a mixed of law should have been held is (Marshall, J., dis- Id. at 120 subject to full federal review." is joined, Brennan, Justice Stevens senting). with whom Justice on the Justice Marshall's views agreed He with also dissented. disagreed with him about whether of review but standard (Brennan, argument. Id. for oral should schedule case Court J., dissenting). 735, Baal, 495 U.S.
12 Seealso Demosthenes (under (1990) curiam) conclusion Fulford, state court's (per binding on a federal competency is regarding a defendant's personally appeals did not noting that court habeas court to overturn had no reason defendant and therefore observe the determination). essentially a factual what discretion of state trial courts.13 Deference to trial Miller, practical "After govern. considerations A court whether, should determine as a matter of the sound administra justice, judicial tion of one actor is in a apply better situation to historical facts a 'pristine' legal Dugger, standard." Martin v. (S.D. 1988). Supp. 1523, 1556 686 F. Fla. See also United States *22 (2d 1990) Villegas, 1324, 1341 v. 899 F.2d (citing Cir. for Fulford proposition that competence "[a] defendant's to stand trial is a question fact"); Gold, of 235, United States v. 790 F.2d 239-40 (2d (3d 1986); Freeman, 331, Cir. Smith v. 892 F.2d 341 Cir. 1989) (competence fact); to stand trial question is a of Fields v. (4th 1995) Murray, 1024, 49 F.3d 1030-31 (discussing Cir. questions, which Miller, after Supreme and Court Fulford questions treats as of fact questions law, or mixed of fact and noting and that competency to stand question fact); trial is a of (5th 1987) Williams, United States v. 605, 819 F.2d 607 Cir. (after Fulford, question "the competency defendant's ais question of fact opposed as to a mixed question of law and fact or law"); (7th a question Ray Duckworth, of 512, v. 881 F.2d 516 1989) ("we Cir. give must regard be careful to due to the trial superior ability court's the appropriate draw inferences from its observation of the expert witnesses"); defendant and Estock (7th 1988) Lane, 184, 186 v. (reviewing 842 F.2d Cir. court owes deference to state trial court ability because of its to observe the witnesses); demeanor of Greer, United State ex rel. Mireles v. (7th 1984) 1160, 736 F.2d 1167 (acknowledging Cir. that reshaped Court what was "heretofore considered at Fulford question least a mixed respect of law and fact with to the issue (7th competency"); Johns, 953, United States 728 F.2d 956 1984) (overruling previous Cir. standard of mixed determina holding tion of law and fact and "clearly that erroneous" applies appeal standard findings compe to trial court's in a (9th tency determination); Page, 677, 682 Tolbert v. 182 F.3d n.8 1999) Cir. (distinguishing which determinations under Supreme precedent Court independently are reviewed and Raines, which deferentially); 884, are treated Evans v. 800 F.2d (9th 1986) (finding Miller, 886 Cir. that after trial court's corn-
223 corpus however, limited to federal habeas not, courts A of state court decisions. number reviews state appellate apply cases line of courts Fulford afforded even petency determination should be deference law); might question fact Oats v. though it a mixed and be 1998) (11th 1018, 1025 (observing Cir. Singletary, 141 F.3d Fulford, competency court's determination of under a state clearly under errone finding trial is a of fact reviewed stand 1364, standard); Hogan, ous United States v. 986 F.2d 13 71-72 1993) (11th Baal, (noting interpreted in Cir. that "as for proposition decision stands Supreme Court's [.Fulford] competent that a state court's conclusion that defendant is factfinding" overruling trial is Eleventh Circuit's stand competency question mixed of fact and prior treatment of as a law). spoken Appeals
The Court of for the Fifth Circuit has not In the court with one voice on the issue. cited Fulford question Miller for the is a (5th of fact. proposition 1997). Johnson, F.3d n.13 One Carter v. Cir. earlier, year ques had a mixed the court treated as fact, suggested appellate tion of law and which it that an *23 competency "hard court should take a look" at the ultimate (5th finding. Washington Johnson, 945, F.3d Cir. v. 90 951 (M.D. 1996). Bell, 922, 89 Term. Supp. See Coe v. F. 2d 926 also 2000) (noting that standard review in Sixth Circuit of law, though "[s]ince of question remains mixed fact and even it ruling [Fulford], Supreme Court. . .confirmed question competency to has as a factual issue the classified (8th 1996) trial"); Reynolds Norris, v. 796 Cir. stand 86 F.3d appellate gives def (implementing standard under which finding competence, erence to state trial court's factual but question presumption of correctness does not extend whether Cook, process); Lafferty due v. F.2d defendant was denied 949 (10th 1991) (court 1546, 1558-59 reviews of due application Cir. protections independently). process
224 competency proceedings.14 review of implicitly acknowledge These courts methodology that the is Fulford appropriate competency for determinations because of qualitatively inquiry, factual nature of the particular posture because of a federal habeas corpus proceeding.15 courts, Like federal these state recognize judges positioned courts that trial are better appellate judges than observe defendant's conduct gauge credibility and to and demeanor of witnesses.16
14
(Tenn. 1999)
State,
257,
(citing
Van Tran v.
6 S.W.3d
271
proposition that, "Although likely
upon expert
for
based
Fulford
testimony,
question
medical and mental health
the ultimate
as
prisoner
competent
question
fact");
to whether
is
is a
1999)
(Ohio
Cowans,
298, 313
State v.
717 N.E.2d
illus
{Fulford
principle
trates
a factual
determination best
judge's
conduct);
left to the trial
observations of the defendant's
(S.D. 1997)
Edwards,
113,
State
(relying
572 N.W.2d
117
finding
and
that "a trial court is better able than we are
Fulford
accused").
judge
Harris,
the demeanor of the
See also State v.
(Wash. 1990) (en
60,
banc);
State,
789 P.2d
72
Brooks v.
882
(Mo.
281,
App. 1994);
Morino,
S.W.2d
283
Ct.
People v.
743 P.2d
(Colo.
1987).
49,
App.
52
Ct.
corpus review,
factors,
In a habeas
other
such as the
federalism,
comity
interests of
provide
also
reasons for
deferring
findings
Estock,
to the factual
of a state court. See
concerns,
F.2d at 187 n.2. But federalism
Garfoot,
see State v.
(1997)
(Abrahamson, C.J.,
207 Wis. 2d
237 n.14
concur
ring), are not
what
led the Court
to review
deferential,
"question
determinations under
of fact" standard.
successors,
In
important
its
factor
Fulford
ability of the trial court to have face-to-face contact with wit
Fulford,
nesses.
(Mass. ("we 2000) give weight judge's opportunity must to the demeanor”); Cowans, the defendant's State v. observe *24 (Ohio 1999) (trial 298, judge's N.E.2d 313 observations of defen-
225 analysis of the case law since Based on our Supreme Court classifies conclude that we Fulford, category competency trial a discrete to stand within legal left to issue is better the resolution which Thompson, Miller, at 111; 516 U.S. the trial court.17 Although more than the "what at 112-13. 474 U.S. happened" compe types arise in a of historical facts only pivots tency determination, the decision on factors Thompson, appraise. 516 U.S. at trial court can competency proceeding, of the ultimate resolution In a legal the court's observation of wit issue rests on credibility "An issue does not and demeanor.18 ness conclusion that defendant's provided support for dant's conduct Edwards, inquiry); further State v. competence not warrant did (S.D. 1997) (facts 113, and circumstances 117-18 572 N.W.2d deny indicated that trial court's decision to the trial court before process defendant's due hearing did not violate (Haw. 1999) (over- Janto, 306, rights); v. 986 P.2d 315-16 State adopting fact standard and ruling question mixed of law and 855, standard); Heger, State v. 326 N.W.2d "abuse of discretion" ("Whether (N.D. 1982) competent to or not a defendant is 858 judge"); People v. fact for the trial question stand trial is a 2000) (Cal. 770, (recogniz- Castro, App. Ct. Rptr. 93 Cal. 2d 781 finding competence to appeal [ ] that a ing "general rule on State, 438, disturbed"); 14 Reed v. S.W.3d stand trial cannot be (Tex. 2000) (issue incompetency is left exists App. 441 whether Zorzy, judge). See also State v. 622 A.2d to the discretion of trial (N.H. Danielson, 729, 1993); 1217, People v. 838 P.2d 1219-20 1987). (Colo. (Cal. Morino, 1992);People App. Ct. 749 v. 17 following also has found that the Supreme Court only: guilty plea, of a fact Voluntariness questions constitute bias, (1983), juror 422 Lonberger, 459 U.S. Marshall (1985), Witt, and Patton v. 469 U.S. Wainwright v. (1984). Yount, 1025, 1034-40 467 U.S. unique vantage from which to judge has a The circuit judge signif- has because the make a determination *25 merely lose its factual character because its resolution dispositive challenge." is ultimate constitutional persuaded Miller, U.S. at We therefore are judicial posi- the circuit court is the actor best apply legal tioned a to standard to the facts of a competency decision. uniformity
¶ 45. In the interest of and consis- tency making, in constitutional decision we follow the Supreme interpretation of the Court and allocate the application compe- of law to fact to the circuit court in tency proceedings. competency Because depends ability determination appraise the circuit court's credibility demeanor, witness and "there are justifications compelling leaving and familiar for the process applying to fact to the trial law court." Id. at holding 114. We therefore do not disturb our Garfoot clearly and adhere to the erroneous standard for reviewing circuit court determinations in proceedings. personal exposure judge
icant to the The is defendant. better time, able to place, per- assess defendant's orientation appellate Only reviewing paper sons than an record. judge can a question evaluate whether defendant answers haltingly, thereby quickly showing or whether the defendant inquiry. grasps Only judge can hear the inflection and volume of the defendant's voice and observe the defendant's eye contact, posture, span, attention focus on witness. Only reaction, judge can including watch defendant's body language, judge in the courtroom. The events also can performing determine the appel- whether defendant for late record. judge can note whether the defendant confers with
counsel while seated at the defense Such communication table. ability ais direct reflection of the defendant's to understand the proceedings lawyer. and assist his or her OF
CIRCUIT COURT'S DETERMINATION COMPETENCY Having issue, examined the threshold stan- review, dard of we now turn to second issue examining the circuit court's determination that competent Under to stand trial. the standard applies determinations, we will *26 clearly it the circuit court's decision unless was reverse 2d at Garfoot, 207 Wis. 223-24. erroneous. testify Byrge's only The to at hear- witness court-appointed psychiatrist
ing Baker, Dr. the was competency Byrge.19 the evaluation of who conducted Byrge, however, the asks this court also to review reports by Lorenz and Fosdal. We submitted Drs. Lorenz con- decline to do so. Both Drs. and Fosdal they pleas; ducted for the NGI did not their evaluations purposes competency a the deter- examine for purposes An examination for of NGI mination.20 ability appreciate the of the "defendant to the considers wrongfulness of to the defendant's conduct or conform requirements law the defendant's conduct with the at the of the offense." time of the commission criminal 971.16(3). competency § An Wis. Stat. for to evaluation present "the mental stand trial assesses defendant's capacity proceedings to understand assist 971.14(3)(c). his or her defense." Wis. Stat.
19 gave Byrge's attorney opportunity call The court witnesses, not other but he did call Drs. Lorenz and Fosdal. Drs. Lorenz, Fosdal, testify all and Baker were scheduled to during trial. The State entered two exhibits discussion Byrge's pleas. of his withdrawal NGI 20Moreover, reports Drs. Lorenz and Fosdal were not competency entered as until had been determined. exhibits Hence, apparently the circuit court did not utilize them in mak ing its determination. competency hearing aims of mod- are seeking verify satisfy
est,
that
defendant can
Moran,
test.
understand-and-assist
See
509 U.S. at
hearing
psychiatric
402. The
need not
establish
clas-
sification
defendant's
Section
condition. Id.
971.13(1)
judicial,
contemplates
clinical,
not a
inquiry,21
and our courts treat
to stand
legal standard,
trial as a
not a medical determination.
psychiatric
Haskins,
See
2d at
Wis.
265. Elaborate
diagnosis
evaluations
sometimes introduce
clinical
may
speak
proceed.
that
Id. at
history
prior
A
264-65.
of irrational
behavior
med-
opinions
ical
about a defendant's
like a
condition,
demeanor,
defendant's
can serve as indicia in the com-
petency
Drope,
determination.
¶ Even if a defendant has suffered episodes, may chiatric he or she nonetheless evince present ability proceed. sufficient Haskins, See 402). Dusky, (quoting Wis. 2d at 263 U.S. at Conse- quently, "present a court looks at the defendant's capacity" proceedings mental to understand the and to proceedings. assist counsel at the time of the Wis. Stat. 21"Competency judicial is a rather than a determi medical every mentally nation. Not disordered defendant incompetent; degree the court must consider the of impairment capacity in the defendant's to assist counsel and make decisions which counsel cannot make for him or her." Judicial Council Note, 1981, 971.13(1), Committee Stats. § 971.14(3)(c); McKnight, also 595; 65 Wis. 2d at see 2d 222-23. 207 Wis. at Garfoot, essentially Byrge ¶ this In this asks case legal inject into a medical determination the argues have He that the circuit court should standard. incompetent proceed he suffered found him because psychological, psychiatric problems. mental, and from recognized so. Baker the distinc- decline to do Dr. We legal tion between medical classification Byrge proceed. He interviewed and later for com- twice—once for NGI evaluation petency He to stand trial. differentiated between types noted that his first two of evaluations when he responsibility," examination measured "mental determined if evaluation whereas Byrge cooperate his could counsel and assist with with own defense. Byrge able to 51. Baker concluded that was proceedings and in the
understand the assist defense. mentally malingering, Byrge ill or He found "was not simply things that he at number of was distressed jail possibility Baker in and the of the trial." occurred Byrge charges testified that aware of both the was many legal against him and factors involved Although agreed Byrge might process. sui- Baker be depressed, did cidal or he testified that condition Byrge legal competency not affect because was attorney any way cooperate "unable to his or in with function the trial." 52. The circuit court concluded the State proven competent had
had because he proceedings capacity "substantial to understand the in his own The court addressed the assist defense." credibility and and of the demeanor the witness Emphasizing its confidence in Baker's abili- defendant. *28 testimony past ties, cases, his in numerous and his credentials, circuit court stated that it could listen telephone testimony to Baker's and make a determina- "look[ing] eyes." Byrge present tion without in his was hearing, at the shackled to a wheelchair. The court Byrge's physical liberty noted the constraints and did not discount them in its determination. Byrge agi- The record makes no indication that was disruptive during proceeding. tated or findings sup- of the circuit court are ported by testimony of Dr. Baker and the circuit Byrge's observation of demeanor. Based on the .court's us, record before we find that the trial court did not erroneously Byrge exercise its when discretion it found competent to stand trial. We therefore decline sec- ond-guess the factual determination of the circuit court.
PAROLE ELIGIBILITY INFORMATION Having ¶ 54. affirmed the circuit determi- court's Byrge competent trial, nation that was stand we namely issue, next address third whether circuit accepting plea guilty court, contest, before or no possesses must inform defendant that it the author- ity parole eligibility to fix the date. contends that pleas knowingly intelligently his were not entered because the circuit court did not warn him that penalty merely sentence, maximum a life but a was possibility parole. life sentence without the begin noting ¶ 55. We the standard of review for this issue differs from the standard that we plea applied have thus far in this case. Whether a knowingly, intelligently voluntarily, entered question presents State of constitutional fact. *29 (1986) Bangert, 12 283, 246, 131 2d 389 N.W.2d Wis. 104). (citing a Miller, 474 U.S. We will not disturb evidentiary findings historical, facts circuit of court's Bollig, they clearly State 2000 are erroneous. unless However, ¶ 13, 561, 605 WI 6, 232 Wis. 2d N.W.2d application of the law the historical we review the appel independently. standard, an Under this facts Id. may in the of late look the entire record course court Bangert, 131 at 283. its review. Wis. 2d a defendant 56. When a circuit court sentences parole eligibility imprisonment, to life it must make Byrge, applied it determination. As Wis. Stat. required sentencing § court to exercise one 973.014 1) options by: determining of that the defendant two 2) eligible parole § 304.06, or for under Wis. Stat. set- ting parole eligibility date. Stat. Wis. 973.014(l)-(2).22 § In this case the circuit court exer- cised the second alternative § under Wis. Stat.
973.014(2) Byrge's parole eligibility date at and set July Byrge date, 2, 2095. The court noted that on that Although years would 120 old.23 the circuit court be 22 provides the The current version of Wis. Stat. 973.014 namely option, person a third to determine that the with eligible parole. Although the has is not for statute been amended, analysis. change not affect our does 23Judge Deets remarked: people maybe I live to with the am aware that some be science, you capability might have the of advances medical side, my living But to on the safe and for to 110.1 have doubts. be stated, parole
the reasons that this court has I believe that July 2, 2095, you eligibility be for when would be date should set years 120 old. beyond eligibility may impose parole A court date Setagord, 211 2d expected of a defendant. State v. Wis. lifetime (1997). 397, 414, 565 N.W.2d engaged colloquy Byrge plea anin extensive with at the hearing, options it did not inform about its regarding setting parole eligibility or its author- ity parole eligibility to fix a date. It is well established that a defen criminal plea guilty
dant
enter
must
or no contest
knowingly,
intelligently. Bollig,
voluntarily, and
*30
poten
¶WI 6, 15. When a defendant is not aware of the
punishment,
plea
knowingly,
tial
the
is not entered
voluntarily,
intelligently,
and
the
a
and
result is mani
injustice.
fest
State
rel.
Schwarz,
ex Warren v.
219 Wis.
(1998).
2d 615, 635-36,
¶ 59. The here issue us to parole eligibility directly decide whether a reflects 971.08(l)(a). potential punishment under Stat. Wis. If does, it then the circuit court should have addressed parole eligibility plea colloquy Byrge. in its with When prima showing a defendant makes a facie that the cir- statutory cuit court did not conform with procedures alleges §of 971.08, and the defendant he or she not or did understand the information know provided plea that the court should have at the hear- ing, prove by shifts and burden State to clear convincing evidence defendant nonetheless plea knowingly, voluntarily, and intelli-
entered the
Bangert,
gently.
quences"
plea,
prerequisite
not a
contrast,
knowing
plea.
entering
intelligent
Warren, 219
consequences are
Wis. 2d at 636. Collateral
indirect
example,
from
conviction.
col
and do not flow
For
may
contingent
consequences
be
on a future
lateral
proceeding
subsequent
which defendant's
behavior
Warren,
219 Wis. 2d at
affects
determination.
(citing
James,
230, 243-44,
637-38
State
176 Wis. 2d
*31
(Ct.
1993)).
App.
234 parole eligibility range pun- date affected the of his consequence ishment and a direct therefore constituted pleas. of his The State maintains the circuit power parole eligibility repre- court's to set date only consequence plea, sents a collateral 971.08(l)(a) obligate § therefore Wis. Stat. did not notify Byrge. circuit to court
¶ 63.
In
case,
its review of this
the court of
appeals held that the circuit court's failure to inform
parole eligibility
plea
about
did not render the
Byrge,
defective.
part
at
225 Wis. 2d
718. The court relied in
State,
on Birts v.
389, 398-99,
68 Wis. 2d
228
(1975), in
N.W.2d 351
which we held that a circuit
required
notify
parole
court is
defendants about
rights. Byrge,
reliance on State v. 195 Wis. 2d (Ct. 1995), App. grounds, N.W.2d 202 rev'd other on July 24 Wisconsin Stat. 973.014 became effective 1988, and or applies to crimes committed on after that date.
235 (1996). case, 50 In that Wis. 2d 548 N.W.2d parole eligibility appeals suggested consti- court of consequence collateral, of the direct, tutes a not a (citing Bentley, Byrge, Wis. 2d at 717 195 sentence. 590). noting While that this court reversed Wis. 2d only grounds, Bentley the court concluded that on other govern Bentley here because it was decided in does not claim. ineffective assistance of counsel the context an agree appeals with the court its 65. We Bentley germane not to this case. The core decision in Bentley eligibility parole discussion centered context, in the ineffective assistance on "misadvice" namely, the defense counsel's failure to advise client Bentley, eligibility. parole 2d 195 Wis. at 589-90. about Bentley did not address whether Wis. Stat. 971.08(l)(a) sentencing obligates § court to inform eligibility parole as a direct conse- defendants about Bentley quence plea. Moreover, of the we reversed grounds, not and, we do address an inef- other because case, assistance of counsel claim in this we fective Bentley here. decline reassess appeals, it Like the court of we also find significant and Hill were decided before that Birts Wis. sentencing § court to take Stat. 973.014 authorized parole Byrge, part in the decision. See threshold Although § 2d at 716. 973.014 does "mandate" Wis. sentencing parole eligibility date, court to fix the 973.014(2) authority. grants If the the court that cir- option cuit court declines to exercise the and allows the right parole parole date, set the becomes board to subject proceeding, contingent to a determi- on a future government agency. The decision nation different may parole turn on the defendant's board then impractical behavior, a for future factor that would be *33 Warren, the circuit court to divine. See 219 Wis. 2d at parole eligibility 638-39. When a board makes an sentencing a order, determination at date after the parole eligibility largely is not an immediate and auto matic of Hence, result the conviction. if the circuit court agency, eligi parole leaves the decision another bility consequence is information a collateral of the notify plea, parole and failure to the defendant about eligibility compromise plea. does not find, however, 67. We that a different set considerations arises in the limited in circumstances sentencing parole eligibil- which a ity court itself sets the If date. a circuit court elects to exercise the statutory option 973.014(2), § in set forth Wis. Stat. as parole eligibility it matically case, did this date links auto- period incarceration, to the which in turn range pun- has direct and automatic effect Byrge's plea hearing, ishment. At the circuit court acknowledged reality expressly this when it selected a parole eligibility Byrge's date that exceeded antici- pated span. life
¶ 68. We therefore hold that in the narrow cir- statutory cumstance in which circuit court has 973.014(2) authority parole § under Wis. Stat. to fix the eligibility obligated provide date, circuit parole eligibility the defendant with information before accepting plea. eligibility Parole in this discrete situ- implicates punishment ation and constitutes direct consequence plea. Because the circuit court did Byrge potential consequence not inform about a direct Byrge conviction, of his prima we conclude that has made a showing plea knowing, that facie was not voluntary, intelligent according require- to the 971.08(l)(a). ments outlined in Wis. Stat. Having Byrge has made a found showing plea colloquy defective, was that the
threshold has whether the State nonetheless we now examine Byrge convincing proven evidence that clear and voluntarily, knowingly, plea entered the nonetheless intelligently. Bangert, 2d 274. If we See 131 Wis. by showing this find that the State has met burden parole eligibility possibilities, aware of the pleas Byrge entered. See id. at *34 we not disturb the will 274-75. showing, may rely making its In the State testimony any including evidence, from defense possessed requi- prove
counsel, a the to that defendant voluntary, plea knowing, to make site information intelligent. Id. offers the In this case the State testimony Byrge's provided Norby, counsel, that trial hearing. Although post-conviction a motion rec- at we Norby ognize that made his observations in context defending of of himself an ineffective assistance testimony perti- claim, counsel nonetheless find his we plea, reviewing burden. When we nent to the State's litany' of do "not focus on 'ritualistic formal elements" instead consider whether the defendant received but implications plea. Bangert, of real notice about (internal omitted). quotations 2d at 282-83 Wis. Norby Byrge appeared ¶ 71. testified that to options plea what his were before the understand explained Byrge entered, that a conviction for he first-degree mandatory intentional homicide carried a Norby Byrge life said that understood that sentence. eligibility sufficiently parole the court could set date enough Byrge far the future that would have no into being during opportunity realistic of released his life- Norby, any According Byrge expressed time. never knowledge plea confusion or of lack about the or the likely penalties. Byrge change plea told the court at his
hearing charge that he understood that of first- degree punishment intentional homicide carries imprisonment. post-convic- life He also testified hearing. Norby tion motion if When asked discussed parole eligibility Byrge him, date said, with "He never going prison talked Byrge, me about at all for that." eligi- parole however, added that he knew what bility recognized by entering meant. He also plea, guilty first-degree the court would find him Moreover, intentional homicide. he stated that penalty understood that mandatory for the crime awas prison. sentence of life in ¶ 73. The circuit court a written issued decision denying Byrge's post-conviction for motion relief. The finding: following court made the [T]he Defendant was he advised that faced life as imprisonment punishment for crime his and the Defendant testified that he Trial coun- understood. sel discussed with the Defendant the court *35 parole eligibility could set so far into the future that he during would not be released lifetime and his that the possibility. Defendant understood that circumstances, Under these this court finds that the Defendant was of penalty advised the maximum possibility and that he faced life without the of parole. finding do this of
We not disturb fact because we con- clude that the circuit court's determination was not clearly testimony Norby supported erroneous. of Byrge the court's decision that and knew understood parole eligibility possibilities the at the time he entered plea. his We therefore conclude that the State has met Byrge prove the had real notice about its burden to implications plea. of the although had the circuit court 74. We hold that eligibility parole duty Byrge the to inform about accepted plea, it his the State has
information before deficiency despite prove the that, met its burden to plea plea colloquy, Byrge the nonetheless entered the voluntarily, knowingly, intelligently. and
CONCLUSION reviewing appellate an 75. We hold that clearly competency must utilize the determination Supreme Court, Like the we rec- erroneous standard. hearing presents unique ognize that a category inquiry in the circuit court is the which credibility appraise position best witness apply to the facts. demeanor and therefore law review, we affirm Under this deferential standard of Byrge com- the circuit determination that was court's testimony petent trial. The at the stand hearing finding Byrge supported able to proceedings his and assist in defense. understand court exercises its also conclude that when a circuit We statutory eligibility option parole date, fix the date impacts potential punishment. In this limited cir- eligibility parole is a direct cumstance the information consequence plea. case, however, this of the In prove despite that, State has met its burden to deficiency plea colloquy, nonetheless plea knowingly, voluntarily, entered intelligently. appeals By of the court Court.—The decision is affirmed.
240
¶ 76. SHIRLEY S. ABRAHAMSON, CHIEF
(concurring).
granted
JUSTICE
We
review in this case
to reconsider the standard of
review of circuit court's
determination of
announced in
State
(1997).1
Garfoot,
214,
207 Wis. 2d
626
my
On
N.W.2d
conclude,
reconsideration I
as I did in
concurrence
competency,
in Garfoot, that "a determination
of
determination
fact,
of constitutional
should be decided
by
independently
this court
of
the decisions of circuit
appeals, yet benefiting
analy-
court or court of
from the
advantage
of
ses
those courts and the
observational
the circuit
Garfoot,
court."
whether the court bound the rules published announced in own its decision when this published unrelated, court has reversed the decision independent grounds. lasting effect, Also unclear is the any, part appeals if of all or of a court of decision that by been has reviewed this court and affirmed. A deci- sion this court on these issues will have await rule-making procedure. another cáse or a join ¶ 78. For the set forth I reasons the mandate separately. but write (concurring). J. I BRADLEY, 79. ANN WALSH
agree with the standard of review set forth in the con-
curring opinion Chief
I
Justice Abrahamson. write
separately,
express my
however, concern with that
majority opinion
1 For
the reasons that
Garfoot
being
jeopardy,
Byrge,
viewed as
see State v.
225 Wis. 2d
(Ct.
1999).
n.2,
App.