Case Information
*1 Before E ASTERBROOK R IPPLE , W ILLIAMS , Circuit Judges . W ILLIAMS Circuit Judge
. Defendant Carol Woodard, managing director non profit organization, indicted one count care fraud collecting $8.9 million Medicaid based submissions phony healthcare claims. As first trial date approached, filed first many motions change counsel. After appointed third attorney, sua sponte ordered undergo examina *2 tion because it felt that might not understand the nature of the proceedings against her. After a doctor concluded that Woodard competent stand trial knew and understood charges against and able sist defense, court found legally compe tent trial. Nearly two years later, after several more delays and new attorneys, asked second competency evaluation, which court denied. pled guilty and sentenced months’ imprisonment.
On appeal, argues district abused its discretion by not ordering second evalua tion. Because district reached reasonable conclu sion reviewed previous psychological evaluation, considered advice two professionals, considered interactions with attorney, we conclude district did abuse discretion. In addition, although did knowingly voluntarily plead guilty during Rule colloquy, review record shows no red flags were raised would alert contrary. Finally, we agree last argument violated Ex Post Facto Clause sentencing sentencing wrong version Sentencing Guidelines. Therefore, we remand this case resentencing, but affirm court’s judgment all other respects.
I. BACKGROUND
Carol operator managing director non profit grant organization, Gideon’s Gate, which provided educational tutoring services children indigent families. In January Department Educa tion satisfied Gideon’s performance *3 ‐ stopped providing funding services. In order to make up for loss of funding, Woodard enrolled Gideon as an authorized Indiana Medicaid provider could provide outpatient health services. But, provided no med ical services continued to operate as an educational service provider.
In order to fraudulently bill Medicaid, from January through December 2007, illegally obtained clients’ personal information from a welfare work provider operated a friend, Rita Nigaya. Nigaya gave access clients’ files repayment for a loan Woodard. Without informing Nigaya’s clients, used their social security Medicaid numbers bill Medicaid for services never provided. In total, 2,437 false claims were submitted Medicaid $8.9 million worth of phony services patients. After an investiga tion, federal grand jury indicted one count care fraud, violation U.S.C. § 1347.
After several delays, bench trial scheduled July 2009. Four days trial, counsel moved withdraw because fundamental difference opinion regarding how trial should conducted. granted his motion second attorney appointed. only disagreed second counsel regarding trial strategy, but accused him feloni ous conduct. On March appointed third counsel, sua sponte ordered go psychiatric evaluation concerns about “inability understand exactly what charges [were], … [her] inability understand how proceed,” *4 inability “realistically look at circumstances before her.”
On May 18, 2010, appeared a competency examination, but she refused participate, so a few months later district again ordered examination. On September 28, 2010, Dr. Philip M. Coons evaluated Woodard, diagnosed with “multiple adjustment reac tions with depressed mood, remission,” and concluded was competent stand trial because knew and understood charges against and able assist defense. On January 13, 2011, district held competency hearing found competent trial.
On June 6, 2012, five days trial, volun tarily committed herself Community North Hospital for psychological evaluation inpatient treatment. Commu nity North diagnosed major depressive dis order psychiatric episodes prescribed medication help control symptoms illness. On June 8, Woodard’s attorney filed, denied, mo tion for continuance based hospital admission.
On June held status hearing for an update how commitment affected trial. Because still committed unit, unable attend hearing. Her coun sel asked postpone trial heavily medicated treating doctor Community North felt “clinically ready discharge.” next day, considered motion second examination testi *5 ‐ mony two doctors. The defense witness, Dr. Elizabeth Cunningham, forensic psychiatrist, had examined and evaluated Woodard hospital’s request. She concluded that Woodard’s new medication would not affect factual understanding legal proceedings even taking medication was oriented, able to con ‐ verse people, and over ‐ sedated. However, she also stated that she concerned Woodard’s ability to assist defense counsel and later faxed letter stating that felt that lacked ability assist counsel defense. government’s expert, Dr. Celes tine DeTrana, reviewed Woodard’s treatment records from Community North Hospital, visitation records from outpa tient facilities, Dr. Coons’s determination, several documents. Even though review Dr. Cunningham’s evaluation, she, too, concluded none new medications would affect standing legal proceedings. Although Dr. Cunning ham felt lacked ability assist counsel defense, Dr. DeTrana thought could. After re viewing Dr. Coons’s report listening testimony Drs. Cunningham DeTrana, found no reasona ble grounds order another full blown evaluation, denied motion, found competent trial. So trial reset July 16, 2012.
Five days trial, July 2012, filed another motion continue review competency. She presented letter Community North Hospital stated mentally stable enough adequately assist or participate defense if tempted sign herself out hospital, would seek hour commitment order. On July relying *6 decision from previous ruling, assistance her defense four years, and the fact she took several
II. ANALYSIS makes three arguments. First, argues that district court abused its discretion not ordering a sec ‐
ond competency evaluation. Second, contends that knowingly voluntarily plead guilty during Rule colloquy. Finally, asserts that district violated Ex Post Facto Clause sentencing. We address each argument below.
A. No Abuse Discretion in Denial Second Compe ‐ tency Evaluation Request abused discre tion when refused order a second competency evalua tion in July despite evidence continued deteriorate weeks preceding guilty plea. relies on: (1) fact competency questioned once before 2010; (2) hospital records; (3) evidence “irrational behavior” support claim there existed bona fide doubt as compe tency trial. We disagree.
This reviews court’s decision or der second competency evaluation abuse discretion. United Andrews F.3d (7th Cir. 2006). A dis trict is required order an examination or com petency hearing unless there bona fide doubt arises defendant’s competency trial. Id . us es an objective test determine whether reasonable doubt raised. Collins 1991). cannot successfully claim questioned serious doubts *8 3363
arose as her competency in 2012. The test whether a defendant is competent stand trial focuses on “whether [the defendant] has sufficient present ability consult with his lawyer a reasonable degree rational understand ‐ ing whether he has a rational as well as factual ‐ standing proceedings against him.” Ross 2004) (quoting Dusky Unit ‐ ed U.S. (1960)) (emphasis added). Here, was deemed competent by a doctor in and, based finding, found her legally competent stand trial.
The key our analysis is whether defendant current ly suffers, time motion competency evalua tion is made, malady would render defendant in competent, whether malady affected defendant years in past. Simply had ordered competency evaluation in was diagnosed mental illness is evidence was unable assist her attorney in 2012. argument further weakened fact deemed both medically legally competent in stand trial in spite malady. Dr. Coons, who evaluation, believed both competent trial since knew understood charges against her, able assist defense. The agreed so evaluation has lit tle bearing competency motion filed 2012.
Second, maintains de clined first evaluation September completed. She subsequent medical records raised doubt competency, but record does support argument. con *9 cerned with Woodard’s mental health, so it asked two men tal professionals who recently evaluated Woodard, or her medical files, comment Woodard’s state. asked them determine: (1) if medication was recently prescribed prevented her from un derstanding proceedings; (2) whether her illness or medication prevented her from assisting in her defense. As first question, both doctors agreed that was able understand court’s proceedings. Where they differed was second question whether was able assist in her own defense.
Drs. Cunningham DeTrana’s evaluations went a long way in eliminating any doubt that raised Woodard’s voluntary commitment. While two doctors disagreed about whether Woodard’s paranoia prevented her from assisting her attorney, felt that important issue whether paranoia so great it interfered ability assist in her defense. While close call, ultimately chose follow Dr. DeTrana’s opinion Dr. Cunningham said although paranoia concern, state such degree would able participate own defense.
Nearly month after denied request for second competency evaluation, made another re quest second evaluation, arguing once again medication prevented participating defense. Yet, record shows almost four years, interacted attorneys partici pated defense. In fact, some former attorneys might argue participated too much. Even *10 was provided medication her paranoia, claims that was unable assist her defense of her medi ‐ cation, still appeared assist her attorney. On June while Woodard was medication that allegedly prevented her from effectively assisting counsel, government ob *11 11 12 3363
B. Woodard’s Guilty Plea Was Knowing Voluntary guilty plea not knowing voluntary district court failed appropri ately address plead guilty change plea hearing she preserved issue for appeal when she raised issue district court after sen tencing. However, government counters we should review issue plain error since did not time ly raise issue below.
While filed motion withdraw guilty plea sentencing, did do so filed notice appeal. When filed notice appeal, this had jurisdiction over case lost its ability vacate judgment. “There general rule an appeal suspends power below proceed further cause, except take such steps will assist appellate determination.” United States v. O’Connor , F.2d 483, (7th Cir. 1989) (quoting United States v. Bastanipour , F.2d (7th Cir. 1982)). Be cause did seek withdraw guilty plea prior reaching this court, properly raise issue below. We review Woodard’s claim Rule viola tion plain error. See United Vonn , U.S. (2002); Burnside F.3d 2009). Under this standard, we review claim determine whether: (1) an error has occurred; (2) it plain; (3) affected substantial rights; (4) it seriously affected fairness, integrity, or public reputation judicial proceedings. See Burnside 520.
To ensure guilty pleas are knowing voluntary, must determine defendant *12 12 12 ‐ 3363 stands her rights pleading guilty. Fed. R. Crim. P. 11(c). The validity of Rule colloquy based the total ity of the circumstances. United Pineda ‐ Buenaventura , F.3d (7th Cir. 2010); Blalock F.3d 2003). To determine whether the de fendant understands the nature of charge, “we consider: (1) the complexity of the charge; (2) the defendant’s level of intelligence, age, and education; (3) whether defendant represented by counsel; (4) judge’s inquiry during plea hearing and defendant’s statements; and (5) evidence proffered government.” Blalock .
Judge Lawrence conducted thorough and valid Rule colloquy. Before any questioning began, told she allowed take “as much time as necessary” discuss procedure attorney throughout hearing. The then asked background questions about personal and educational background. explained she years old, graduated high school, finished four years college, and took post graduate cours es. To questions regarding whether attor ney reviewed petition enter plea guilty, plea agreement, indictment, responded read, understood, certified documents. then re viewed each document asked series ques tions designed ensure aware charge against her, understood consequences charges, voluntarily pleading guilty. “ignored” red flags incompetency voluntarily knowingly plead guilty, such diagnosis, prescription medi *13 cation their impact ability plead guilty. But, record does not support argument. also asked Woodard if she was taking medication that she felt terfered with ability understand legal process. She responded that she felt that medication did not affect ability understand what going on. Finally, asked whether any medical, mental, physical or emotional conditions interfered ability participate or court’s proceedings. Woodard again answered that she understood what going on.
It is true simply answering court’s question is not itself dispositive competent plead guilty. See Hardimon 2012) (stating “the fact defendant seems competent when answering court’s questions plea hearing should conclusive whether defend ant competent plead; mental diseases, or mental im pairments brought by psychotropic drugs, might alter premises person’s thinking rather than articulation his thoughts or his outward appearance or manner”). Here, court’s questions observations while answered questions regarding medical condition clearly demonstrate did “ignore” medical state.
Finally, points moment when mo mentarily confused question judge asked her. asked whether suffered condition interfered ability understand participate proceeding. understand question judge asked needed attorney rephrase question so could understand it. *14 this red flag the court should have noted. However, defendant’s reliance on counsel’s explanation does necessarily vitiate the validity the Rule collo quy. See United States v. Hernandez , 2013) (holding plea colloquy sufficient thor ough even though the defendant expressed confusion re garding the proceedings the district allowed the defendant speak counsel). reliance attorney rephrase single question did raise red flags at the plea hearing or negate the collo quy’s thoroughness. Based totality the circumstanc es, no plain errors were present knowingly voluntarily pled guilty.
C. Sentence Violated Ex Post Facto Clause sentence should vacated remanded resentencing because district violat ed Ex Post Facto Clause. Because raise this argument district court, our review is plain error. Henderson United S. Ct. (2013). Under plain error review, defendant must show that: (1) there error; (2) it plain; (3) it affected his substantial rights; (4) should exercise discretion correct error seriously affected fairness, integrity or public reputation judicial proceedings . Olano U.S. (1993). correct violated Ex
Post Facto Clause utilizing version Sentencing Guidelines effect time sentencing rather than Guidelines effect time committed crime. Although correctly sentenced then controlling Seventh Circuit precedent, subse *15 15 12 ‐ 3363 quent change in the law mandates Woodard’s sentence vacated case remanded resentencing. committed crime between January 2006 December 2007. However, due numerous delays sentenced until October 5, 2012. In sentencing Woodard, the district followed then ‐ controlling Sev enth Circuit precedent, which held the Ex Post Facto Clause prohibit sentencing defendant under the version the Guidelines in effect at the time of sentencing. See generally United States v. Demaree , 459 791, 793 95 2006).
After Woodard’s sentencing, the Supreme Court, in Peugh United , S. Ct. (2013), reversed Demaree . In Peugh , the Supreme Court held the Ex Post Facto Clause is violated when defendant is sentenced under Guidelines were promulgated the commission the crime when use those Guidelines results higher sentenc ing range than one calculated under Guidelines effect at time offense committed. Id . at 2088. Peugh applies Woodard’s case. Although sentenced under then controlling Seventh Circuit precedent, it plain time our review Peugh committed an error. See Johnson U.S. (1997).
When utilized version Sentenc ing Guidelines, calculated total offense level making applicable Guidelines range months. If version Sentencing Guidelines had been applied, total offense level would have been making applicable Guidelines range months. Such disparity Guidelines range impacted integ *16 No. rity judicial proceedings. See United Jaimes– Jaimes 845, (7th Cir. 2005). Because chose sentence while considering improper Guidelines, violated Ex Post Facto Clause. As result, we discussed recently Williams sentence must vacated remanded re sentencing. See WL * Feb. 2014) (per curiam).
III. CONCLUSION
We A FFIRM judgment court, V ACATE sentence, R EMAND resentencing. notes at the recent deposition of witness who going testify her trial, court denied motion. Following court’s denial of her motion, Woodard filed petition enter plea guilty. Because Judge McKinney out town, pled guilty Judge Lawrence. During Rule colloquy, explained finished four years college took some graduate courses, commented com munication counsel, expressed current standing plea agreement indictment. In addition, responded medication affect ability understand what going on. also asked if suffered condition im paired ability understand court’s proceedings. responded understood what happen ing colloquy over, accepted guilty plea. On October Judge McKinney sentenced months’ imprisonment, utilizing version Sentencing Guidelines. Relying then controlling Seventh Circuit case law, applied Sentencing Guidelines range months. Had applied Guide lines were effect time committed fraud, Guidelines range sentence would have been tween months. After sentencing, moved withdraw guilty plea, denied motion this appeal followed.
served Woodard taking several notes deposition witness that was going testify her trial. Moreover, appeared be conversing with, being helpful to, counsel. The government argues, Woodard does not contest, that this demonstrates that capable assist ing counsel. June episode is significant evidence that shows that capable assisting own defense. also points “irrational behavior” con tinuously firing counsel, filing pro se motions that appear relevant case, checking herself into mental unit evidence sufficient raise doubt competent trial. While such ac tions could bear whether incompetent, they are dispositive. This has said “the articu lation unusual legal beliefs is far cry from incompe tence.” Alden 2008). “Persons unquestioned competence have espoused ludicrous legal positions.” Id . Although is clear suffers from mental illness, record does conclusively show illness prevented fully participating defense preparation. There fore, we believe court’s conclusion reasonable no bona fide doubt raised suggest should have received second evaluation.