¶ 1. Jimmiе Lee Smith appeals the judgment of conviction, following a jury trial, of one count of second-degree sexual assault. Smith also appeals the order denying his postconviction motion for relief. Specifically, Smith contends that the postconviction court erred when, at the conclusion of a postconviction competency hearing, it found that Smith was competent at the time of trial and sentencing. We conclude that the record, including the postconviction testimony of two mental health experts that Smith was incompetent at trial and sentencing, establishes a reason to doubt his competence at trial and sentencing. Consequently, we vacate the conviction and remand for a new trial.
BACKGROUND
¶ 2. In October 2009, a jury found Smith guilty of one count of second-degree sexual assault. In December 2009, Smith was sentenced to forty years' imprisonment, consisting of twenty-five years of initial confinement and fifteen years of extended supervision.
Today I want to say in court that I have been through a lot in my life. I help peoples and I got - -1 got this. I bail peoples out of jail, I got this. I let peoples stay in my house, I got this. I let peoples eat at my house, I got this.
*586 Today [the victim], I don't know what she lookin' for out of me and why is she cornin' to court like this? What it is that she want from me? She in love with me or something? Sayin' that she haven't took a shower since this happened to her? What is wrong with her? I let bygones be bygones. Peoples done throw salt on me every day, every day out there on the street. Peoples took money from me аt the court sale, at the courthouse. But I let it ride, they wouldn't even give it back. I let it go.
I sit up North, did time behind bailin' this girl, [Y.C.], out of jail in Chicago, Illinois for child neglect, because I went to court the day that she was - - she was in court, and I went and bailed her out of jail. And then I hear all of this about me? And she supposed to have been back in court. She never go back. She never go back for her - - for - - to get her bail back. But I'm the one who had to sign her bail as being right to this day.
I am very, very sorry that I even helped this lady. But these ladies are sayin' things like this about me. And she ain't white like her, the lady that - - that I bailed out of jail, she's black. And hеr daughter, I looked out for them when they was starvin' to death, livin' out on the street corner. I'm out here tryin' to make a living every day at my job workin', lost my job behind all of that, feedin' them, lettin' them stay in the house, ended up getting' in trouble with my landlord by buyin' air-conditionin' and things without asking his permission, could I have it in my apartment with the rent and - - and included with the lights.
And this is the thanks I get out of it? 12 years like I murdered someone out there on the street? I sat in there 12 years for bailin' her out of jail. I didn't see all these troubles until I bailed her out of jail. Helped her and her family.
And then my brothers, them too, I even brought them to my house and helped them. When I lived with*587 them, they couldn't even pay the light bill. Wouldn't even pay the light bill. The landlord was lettin' them work off his job to pay the rent. And told him to switch the lights in his name. He didn't even do it.
So by me handin' over parts of my Quest card, because I never gained footage after being locked up after bailing [Y.C.] out of jail for being convicted of child neglect, for $200 I had to put my name to that, and now she's on the run and I get all of this out of that? She never - - She ain't - - wouldn't go back to court because I just see her last year. She worked at the same company as I did, I see her there on the 27th and National. She there.
And then this other lady back in - - [L.E.W], she don't evеn know her name. She callin' me every day. I'm over by my - - my - - my livin' relatives after I got out of jail, never gained footage, never got a job, never got back to my feet. I know nobody in this courtroom don't care.
And - - And at that one time I didn't care about my $40 that I gave away to the courthouse, I gave away $40 for a marriage license fee and I couldn't even get it back from the courts. And this happened before all of this stuff about hailin' [Y.C.] out of jail. And the courts seemed like this is all my fault? This is not all my fault.
I also talked to [L.E.W], I sent her a letter last year. And then [Y.C.], I went back to her house after I got out of jail and she still wasn't wоrkin' out right. And then we - - I ended up getting' shot behind all this. I got a bullet hole through my body and laid up at Froedtert Hospital for almost six months out there fightin' for my life because of these people that hates on me.
I can prove it to you that I got the shot, it is right here in my stomach. I got shot, laid up almost 90 days, I was fightin' for my life at Froedtert because I bailed her out.
[Defense counsel]: Excuse me, your Honor. (Brief discussion off the record.)
[Smith]: It's got to be out there. I need to put this out there on the table.
[The Cоurt]: Well, we're going to have to put an end to this because none of this really has a whole lot to do - -
[Smith]: I know it don't have a whole lot, but, here, I didn't set up in jail and then I got out and then I couldn' even stay on my money, and then I get on SSI and stay on it for like four or five checks and then they cut it off. I get these lawyers $2,300 to represent me. They - - I still ain't on for all of this pain and sufferin' that I'm goin' through for not lookin' out for my life after I got my finger injured by my family work helpin' this guy getting' on the job there. And he didn't even have the decency enough to say I will invite you out to dinner for lookin' out for me. He didn't even have the decency to do that fоr me.
And then [L.E.W], she come over to my house, I got the settlement from the - - from the gunshot, I buy a car, I take her down there to see her family, she want to run both of us off the highway, kill us both.
¶ 4. The court unsuccessfully warned Smith to "get to the point":
[The Court]: All right. Well, Mr. Smith, none of this really has anything to do with - -
[Smith]: But this has got a lot to do with this case.
[The Court]: It really doesn't. So we're going to cut it off if you are not going to get to the point.
*589 [Smith]: The point is, if you want to hear what my goal are, my goal is to get out of here to get back to work and to get my Social Security. That's it. You don't want to hear what I gotta say but you want to sentence me, though. You want to give me the maximum time, say that I'm а mean person. But I'm not mean. This place is mean. They took money from me here. And then when I write a letter to my family about it back in Chicago telling them how could I stay in Wisconsin with a stolen car from Chicago here, how could I stay here, how could 1 stay here, I had to sign my letters that I written to them because these peoples here took my - - took my marriage license fee and then they took my adoption fee. Now, that is not fair to me. You guys are not being fair.
¶ 5. The court eventually stopped the allocution, and finally imposed sentence.
[The Court]: We're done.
[Smith]: I'm done but y'all - -1 just want to address - - When I want to tаlk, y'all don't want to hear the truth.
¶ 6. On June 16, 2010, Smith's postconviction counsel filed a motion to determine Smith's competency to assist in postconviction proceedings. Smith appeared before the postconviction court
Mr. Smith repeatedly digressed to circumstantial ramblings intermittent to some moments of productive contributions to the interview ... [a]s the contact progressed, Smith's verbal remarks became increasingly bizarre аnd [included] evident delusional material regarding case specific information and his identity and circumstances. He appears actively symptomatic within the course of a psychotic disorder at this time.
Dr. Collins also noted that Smith was twice previously treated at the WRC, which Dr. Collins described as a "facility providing] mental health services to inmates due to . . . psychiatric problems."
¶ 7. In August 2010, Smith appeared before the postconviction court via video and told the postconviction court that he was competent. The court scheduled the matter for an evidentiary competency hearing. At the hearing,
¶ 8. Prior to the December 2010 hearing, Dr. John Pankiewicz, also of the Wisconsin Forensic Unit, conducted a three-month review of competency restoration
The primary difficulty with Mr. Smith was a recurring reference to his original criminal trial, his claims of miscarriage of justice, false accusations and wrongful prosecution. In the context of discussing his reasoning regarding these issues, he presented delusions with a particular theme. He expressed the belief that a woman with whom he had a car accident with approximately ten years ago, had somehow conspired with various individuals and agencies to get Mr. Smith falsely accused and convicted of sexual assault. It was notable that Mr. Smith would become particularly animated whenever discussing issues of his case. He would often jump to that topic without prompting.
¶ 9. Dr. Pankiewicz concluded that despite some improvement, Smith "continues to suffer from delusions affecting his rational understanding of possible court proceedings. He also continues to suffer some impairment in communication style that would significantly affect his capacity to communicate with. . . counsel or to make rational decisions regarding possible proceedings." Based on the noted improvements, Dr.
¶ 10. Dr. Pankiewicz submitted another progress report to the postconviction court in March 2011. The report indicated that Dr. Pankiewicz again interviewed Smith and again reported that Smith could answer some questions in a clear and coherent manner, but was "remarkably delusional" when discussing anything relevant to his criminal case. Dr. Pankiewicz explained this сonclusion and provided examples of Smith's delusions:
As before, Mr. Smith was categorically unable to organize himself with respect to the circumstances he is facing. He has a continued fixed delusion regarding a woman with whom he had a car accident in 1999. He described in disorganized and tangential detail how that accident and some kind of financial award were instrumental in his future prosecution for sexual assault ....
[Smith] stated his conviction was a consequence of not seeing his probation officer. He then launched into a long and complicated delusional description оf a car accident in 1999 in which an unknown woman received $30,000 from [his] employer. [He said] his driver's license [was] put on hold for 20 years.
[He believes] that he is incarcerated 'because I used a method of getting my money back'. .. [and] he is*593 unable to get his driver's license back until he settles his rape charge and some financial requirement.
(Some formatting altered.)
¶ 11. Dr. Pankiewicz diagnosed Smith as suffering from schizophrenia and polysubstance dependence in remission in a contained environment. He concluded "to a reasonable degree of medical certainty[,]" that Smith had shown virtually no progress in responsе to education and psychotropic medication, "continues to lack substantial capacity to understand proceedings or assist his attorney in . . . post conviction relief," and was not "likely to regain competency." Dr. Pankiewicz testified consistent with his report at a competency hearing held on March 31, 2011. Dr. Pankiewicz stated that Smith remained fixated on delusions involving an auto accident, $300, an unknown woman, and a driver's license revocation from twenty years past. The postconviction court found Smith remained incompetent to assist in postconviction proceedings, and was unlikely to regain competence in a reasonable time. The court appointed a guardian ad litem for purposes of postconviction relief.
¶ 12. In September 2011, Smith's postconviction counsel filed a motion to vacate Smith's judgment of conviction, arguing that Smith was not mentally competent at the time of his trial or sentencing. A report from Dr. Collins dated September 16, 2011, was attached to the motion. In the report, Dr. Collins indicated that she reviewed multiple records, including three competency evaluation reports (one authored by herself and two authored by Dr. Pankiewicz), Smith's available WRC records, Smith's medicаl records with the Milwaukee County Correctional Facility, the criminal complaint, the sentencing hearing transcript, rel
• A finding that Smith had a well-documented history of mental illness dating to at least 1993.
• Smith was described in the DOC records as having a "substantial disorder of thought mood perception [which] grossly impairs his judgment, behavior, capacity to recognize reality, and meet the ordinary demands of life."
• Civil Commitment proceedings were initiated by DOC cliniсal staff.
• Smith had periods of incarceration over the years which provided regular contact with DOC clinical staff. During that time, he was diagnosed with a disorder described as either a "Delusional Disorder" or "Schizophrenia."
• Medical records from the Milwaukee County jail beginning in January 2009, reflect that Smith was exhibiting bizarre behaviors and psychotic symptoms.
• Medical records from the Milwaukee County jail show that on October 25, 2009, Smith was "rambling," appeared " 'out of touch with reality,'" and was physically restrained for exhibiting threatening behaviors towards a corrections officer. Dr. Collins explained in her report that Smith's "evident delusional beliefs were intertwined with his understanding of case related information at the time."
• On October 26, 2009, jail staff noted that Smith was " 'confusing past cases with current,'" "talking to himself," and acting "confrontational."
• Department of Corrections records from January 6, 2010, less than one month after sentencing, show that Smith was "actively psychotic."
*595 • When Smith arrived at the Dodge Correctional Institution after sentencing in this case, records demonstrate that he refused medication for his diabetes because of his fear that nursing staff would "kill him" with shots and hy feeding him "whole foods."
• Smith's "thoughts were impenetrable to rational information."
¶ 13. At a hearing on the postconviction motion, the postconviction court
¶ 14. Both Drs. Collins and Pankiewicz testified at the evidentiary hearing. Consistent with her report, Dr. Collins stated that she interviewed Smith six months after his sentencing and that she found him
¶ 15. Dr. Pankiewicz reviewed substantially the same records considered by Dr. Collins, but he did not review Dr. Collins' report before reaching his own conclusions. He did not interview Smith. Consistent with his report, Dr. Pankiewicz testified that Smith had a documented history of mental illness going back at least twenty years. Dr. Pankiewicz testified that Smith's jail records "were a major component in making an assessment... of Mr. Smith's state of mind in the fall and winter of 2009." He also said that observations by clinical jail staff and correctional officers "helped to determine that Mr. Smith was suffering symptoms of psychosis at the time of his trial and sentencing." However, Dr. Pаnkiewicz said an evaluation of the "whole picture," which also included substantial evidence that Smith suffered from mental illness before, during and after his trial, along with Smith's refusal to take medications, and his rambling, disorganized and disturbed speech and thoughts, led to Dr. Pankiewicz's conclusion that Smith was not competent at his trial or sentencing.
¶ 16. Dr. Pankiewicz emphatically rejected the possibility that Smith was faking or exaggerating symptoms of mental illness. He reported that: "There is no
¶ 17. The postconviction court denied Smith's postconviction motion on the grounds that defense counsel's belief that Smith was competent was more persuasive than the experts' postconviction evaluations that he was incompetent because neither expert "interviewed the defendant at trial or at sentencing in this matter." The court noted that those who did interact with Smith at the relevant times — namely, Smith's defense counsel and the trial court — did not raise competency concerns and that believing that "people who were not present at the relevant time know more than the people who were present" was the wrong approach to deciding Smith's motion. Because both experts agreed with the court that evaluations contemporaneous with Smith's trial and sentencing would have yielded more "solid" opinions as to Smith's competency, and because no one who interacted with Smith during those times raised a concern, the postconviction cоurt found Smith competent during both trial and sentencing. The postconviction court thus denied Smith's postconviction motion. This appeal follows.
DISCUSSION
¶ 18. On appeal, Smith argues that the postconviction court erred in finding that Smith was competent during his trial and sentencing. Specifically, Smith raises three separate competency claims: (1) substan
Standard of Review.
¶ 19. In Wisconsin, "[n]o person who lacks substantial mental capacity to understand the proceedings or assist in his or her own defense may be tried, convicted or sentenced for the commission of an offense so long as the incapacity endures." Wis. Stat. § 971.13(1) (2011-12).
Law on Competency.
¶ 20. " '[T]he criminal trial of an incоmpetent defendant violates due process.'" Cooper v. Oklahoma,
¶ 21. Whenever there is reason to doubt a defendant's competency to proceed, the court must proceed under Wis. Stat. § 971.14(lr)(a). See id. If a competency concern is raised by a defendant, the State bears the burden of proving competency by a greater weight of the credible evidence. See Garfoot,
¶ 22. Wisconsin has long recognized the occasional need for mental competency evaluations that must be done after the relevant time frame. Although it is recognized that a nunc pro tunc determination of a defendant's competency is inherently difficult,
¶ 24. Despite acknowledging the expertisе 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 thе 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,
¶ 25. There was no evidence that either Smith's defense counsel or the trial and sentencing judges were aware of the jail records demonstrating what both experts characterized as psychotic and bizarre behavior
¶ 26. Here, the experts' reports and testimony and the DOC and jail records all furnish ample evidence that there is reason to doubt Smith's competence at the time of trial and sentencing. For the forgoing reasons, we reverse the postconviction court, vacate the conviction, and remand for a new trial.
By the Court. — Judgment and order reversed and cause remanded.
Notes
The Honorable Jeffrey A. Conen presided over the jury trial and sentencing.
The Honorable Jeffrey A. Conen presided over the post-conviction proceedings at this point.
The Honorable Jean DiMotto presided over the evidentiary hearing.
The Honorable David Borowski now presided over Smith's postconviction matters.
All references to the Wisconsin Statutes are to the 2011-12 version unless otherwise noted.
See Pate v. Robinson,
The postconviction court followed the procedures laid out in State v. Debra A.E.,