Opinion
No. 59996-8-I.
July 28, 2008.
Appeal from a judgment of the Superior Court for Snohomish County, No. 06-1-02822-2, Michael T. Downes, J., entered April 5, 2007.
Affirmed by unpublished per curiam opinion.
Based on its view of the comparative persuasiveness and credibility of expert witnesses and its own observations, the trial court found Anthony Viscussi competent to assist in his own defense. The trial court did not abuse its discretion because the disputed evidence provided a reasoned basis to support the court's finding. The court also properly ensured that Viscussi's ensuing guilty plea was knowing, voluntary and intelligent. We affirm.
FACTS
Anthony Viscussi assaulted a neighbor by striking her in her front yard with a metal bar from his oven. He left the scene when observers shouted at him. Police found him and arrested him. Viscussi spat on the arresting officer who described Viscussi as having a look of anger and hatred on his face.
The State charged Viscussi with one count of second-degree assault and one count of third degree assault. The State gave notice that it sought to sentence Viscussi as a persistent offender because of his prior convictions of first-degree burglary and second-degree assault. Before Viscussi was arraigned, the court ordered the case stayed for a competency evaluation.
The court conducted a competency hearing over four days from March 21 through March 28, 2007. The defense called Dr. Thomas Greisamer, a navy psychiatrist who also provides contract treatment services to the Snohomish County jail, forensic psychologist Dr. Kenneth Muscatel and corrections officer Rick Hecht. The State called, from Western State Hospital, forensic psychiatrists Dr. Sarah Leisenring and Dr. Margaret Dean and forensic psychologist Dr. Marilyn Ronnei.
Throughout the hearings, Viscussi engaged in disruptive behavior, which repeatedly resulted in the court ordering the application of restraints and Viscussi's removal to an adjacent secure room connected to the courtroom by audio and video. Viscussi's behavior included talking out of turn, spitting on jail guards, twice appearing with feces on his person, and mocking, insulting and demeaning guards, the prosecutor and his counsel. The court periodically revisited the issue of Viscussi's behavior, and several times attempted to return him physically into the courtroom and reduce the level of his restraint. The experts observed Viscussi's disruptive courtroom behavior and addressed it in their testimony.
Dr. Greisamer diagnosed Viscussi as suffering from paranoid schizophrenia, and believed Viscussi required forced medication to achieve competence. Dr. Muscatel was unable to reach a specific diagnosis but also believed Viscussi was incompetent. The State's experts disagreed with Dr. Greisamer's diagnosis and believed Viscussi suffered from a personality disorder that did not render him incompetent. They explained Viscussi's history of psychotic episodes as resulting from his long-term abuse of multiple illegal drugs, which they found in remission due to the unavailability of such substances while he was incarcerated. They also noted his documented history of drug-seeking behavior that included malingering while in custody to attempt to receive medication he desired rather than what was prescribed. All experts considered the records regarding Viscussi's two prior determinations of competency in 2001 and 2002 and his treatment history in and out of custody dating back to his teen years when he was first convicted of serious criminal offenses.
After considering the testimony of the witnesses, the documentary evidence of Viscussi's mental health history, defense counsel's opinion and Viscussi's behavior during the proceedings, the court entered a finding that Viscussi was competent. Viscussi's counsel immediately moved to withdraw from the case under RPC 1.16(a)(1) and (b)(4), asserting that he could not in good conscience advocate for Viscussi's desire to enter a guilty plea because he believed Viscussi had a valid mental defense to the charge, which he forbade counsel from raising. The court found the legal basis for the motion lacking, but approved substitution by another attorney from counsel's office.
Approximately a week later, the court conducted a plea hearing with Viscussi and his new attorney after the State amended the information to remove the third-degree assault allegation. Finding from Viscussi's answers during the initial colloquy, it appeared Viscussi was not taking the process seriously, the court recessed the hearing stating that it would enter a not guilty plea on his behalf. Viscussi communicated that he did very much wish to enter a plea of guilty. The court reconvened later the same day and accepted Viscussi's plea, finding the plea was voluntary, that a factual basis for the plea existed and that Viscussi understood the only sentence he could receive was life without parole.
The court sentenced Viscussi as a persistent offender.
This appeal follows.
1. Competence
It is a fundamental requirement of constitutional and statutory law that no incompetent person can be tried while his or her incapacity exists. RCW 10.77.050; In re Pers. Restraint of Fleming, 142 Wn.2d 853, 862, 16 P.3d 610 (2001). "Incompetency" is defined as lacking the "capacity to understand the nature of the proceedings against him or her or to assist in his or her own defense as a result of mental disease or defect." RCW 10.77.010(14). The "ability to assist" requirement of competency is minimal. State v. Harris, 114 Wn.2d 419, 429, 789 P.2d 60 (1990). A defendant need not be able to suggest a trial strategy, help to formulate defenses, or even be able to recall past events. Harris, 114 Wn.2d at 428; State v. Ortiz, 104 Wn.2d 479, 482, 706 P.2d 1069 (1985), cert. denied, 476 U.S. 1144, 106 S. Ct. 2255, 90 L. Ed. 2d 700 (1986); State v. Hahn, 106 Wn.2d 885, 894, 726 P.2d 25 (1986). In determining competency, the trial court considers the "defendant's appearance, demeanor, conduct, personal and family history, past behavior, medical and psychiatric reports and the statements of counsel." State v. Dodd, 70 Wn.2d 513, 514, 424 P.2d 302 (1967). In reviewing a trial court's decision on competency, we grant the trial court great deference. Dodd, 70 Wn.2d at 519-20.
Viscussi first contends that the trial court erred by failing to give adequate weight to his trial counsel's assessment of his mental state. But while a trial court must give considerable weight to defense counsel's opinion regarding a defendant's competence, such an opinion is not determinative. State v. Woods, 143 Wn.2d 561, 605, 23 P.3d 1046 (2001); State v. Swain, 93 Wn. App. 1, 10, 968 P.2d 412 (1998). It was reasonable here for the trial court to consider counsel's opinion and observations within the context of counsel's strong disagreement with Viscussi's emphatically expressed choice to forgo any mental defense, enter a guilty plea and stipulate to his prior convictions. The court's detailed oral findings demonstrate that the court did indeed give counsel's views considerable weight, but justifiably found them unpersuasive.
Viscussi also contends that the court failed to consider the importance of prior medical assessments of Viscussi as psychotic. Viscussi argues that the great weight of medical evidence indicated he required medication to be competent. In making this argument, Viscussi simply fails to consider the evidence and opinions relied on by the State's expert witnesses who considered Viscussi's history of psychoses in the context of his personality disorder and long history of pervasive polysubstance abuse.
Next, Viscussi contends that the trial court failed to resolve critical factual disputes. His argument in this regard is primarily a challenge to the court's reliance on its own observations of Viscussi's behavior during the competency proceedings. Viscussi cites the majority opinion in Lafferty v. Cook, 949 F.2d 1546, 1555 (10th Cir. 1991), for the holding that when the weight of medical testimony explains periodic apparent lucidity as consistent with an underlying paranoid delusional system, a judge's personal observations of a defendant's appropriate courtroom behavior are insufficient to counter such evidence.
But Viscussi's argument depends on accepting the defense experts' analysis, which the State's experts provided a reasoned basis to disagree with.
Unlike in Lafferty, the expert evidence here was in conflict and the trial court appropriately applied its own, detailed observation of Viscussi's changing behavior in response to the proceedings in the courtroom in determining the persuasiveness and credibility of the experts. Viscussi fails to acknowledge either the sophistication of the trial court's analysis or the totality of the evidence in this record, both of which distinguish Lafferty. And to the degree Viscussi claims the trial court simply ignored some of the evidence produced at the hearing, we are satisfied that the court's lengthy oral findings demonstrate otherwise.
In sum, the trial court did not abuse its discretion in making the difficult decision it was required to make. The court accordingly did not err in finding Viscussi met the constitutional and statutory requirements of competency.
2. Guilty Plea
Viscussi next challenges the court's acceptance of his guilty plea. He contends that his responses during the plea colloquy were equivocal as to his admission of guilt and failed to demonstrate adequately that he understood his plea would result in a sentence of life without parole.
As for the admission of guilt, Viscussi's written statement on plea of guilty recited, without equivocation, that Viscussi pleaded guilty to the amended information and provided a factual basis for the plea. Viscussi nonetheless contends statements he made during the colloquy show that his plea was equivocal. See State v. Durham, 16 Wn. App. 648, 652-53, 559 P.2d 567 (1977) (a guilty plea coupled with protestations of innocence or "laced about with excuses or claims in mitigation" may indicate the defendant does not fully understand the charges or is not voluntarily and intelligently entering his plea).
Viscussi points to individual portions of the lengthy colloquy in which some of his responses to the court's questions appear nonsensical or nonresponsive. At one point, he described the relevant events as an "altercation" in which one of the parties was "slightly damaged, according to their property." In answering the court's question about whether his acts were intentional, he volunteered information about the medication he was taking. When later asked whether anyone had made any threats or promises to get him to enter his plea he responded, "[p]romised she was going to stab me through the heart with a magic sword." After the court recessed and reconvened upon Viscussi's repeated protestations that he wanted to enter a guilty plea and understood what he was doing, Viscussi said his plea was "Guilty. That is smilty. Posmilty."
Record of Proceedings (April 5, 2007) at 437.
Record of Proceedings (April 5, 2007) at 440.
Record of Proceedings (April 5, 2007) at 446.
Viscussi contends that his statements affirming his guilty plea after he made these remarks are insufficient. He cites cases in which it appeared that defendants were pleading only reluctantly, or without a full understanding of the charges or the nature of their guilty plea, and the trial courts failed to resolve inherent ambiguities raised by their statements. See Durham, 16 Wn. App. 648, 653-54, (trial court did not investigate defendant's statement that appeared to endorse a theory of self-defense); State v. Stacey, 43 Wn.2d 358, 360, 261 P.2d 400 (1953) (the court failed to resolve the apparent ambiguity in defendant saying his plea was "a lie"); State v. Holley, 75 Wn. App. 191, 201, 876 P.2d 973 (1994) (defendant contended in a motion for new trial that his attorney told him to skip language in the written plea statement regarding potential deportation consequence).
These cases do not help Viscussi. First, the comments that Viscussi refers to, when viewed in the context of the whole record, do not suggest that he believed he had acted in self-defense, did not understand the charges, or had skipped any part of the language in the written plea statement. Rather, Viscussi maintained that he fully understood his rights and it was his strong desire to plead guilty and proceed immediately to sentencing.
Second, unlike in Durham, Stacey and Holley, the trial court here followed up with additional questioning when Viscussi made questionable comments or responses. For example, it appears from the record that Viscussi's description of the charged incident as an "altercation" was actually an accurate reference to the language in his written plea statement, and not a suggestion that the circumstances here involved mutual combat or self-defense.
In accepting the plea, the court made special findings regarding Viscussi's demeanor during the hearing and reaction to the court's indication before the recess that it would not accept his plea. The court expressly related Viscussi's behavior during the plea hearing to his mental condition and behavior during the competency evaluation process. The court also explained that it had engaged in a lengthier plea colloquy than normal because of Viscussi's history, and having done so, was convinced that Viscussi's plea was knowing, voluntary and intelligent despite particular answers that appeared to reflect Viscussi's frustration with a hearing that was taking longer than Viscussi wanted.
Viscussi alternatively contends that even if sufficient in other respects, his plea was not knowing and voluntary because it did not show he understood the sentencing consequences. A defendant's guilty plea is not voluntary if it was based on misinformation about sentencing consequences. State v. Mendoza, 157 Wn.2d 582, 591, 141 P.3d 49 (2006).
During the colloquy, when discussing the applicable sentence, Viscussi appeared at times to suggest the possibility of a standard range sentence or release at some undetermined future date. Viscussi contends that his ensuing agreement that his sentence had to be life without parole constituted no more than a cursory answer insufficient to demonstrate real understanding. See State v. Elmore, 36 Wn. App. 38, 671 P.2d 292 (1983) (simple yes and no answers to cursory questions alone are insufficient to support a guilty plea).
We note first that it is clear from the record of the competency proceedings that Viscussi personally understood he was facing a sentence of life without parole even before those hearings began, and that the experts were in agreement that Viscussi understood his legal peril. As for the record of the plea colloquy, some of the statements that Viscussi points to are merely reflective of his written plea statement that accurately recited that the standard range for Viscussi's offense would normally be 15 to 20 months, but that on a finding that he was a persistent offender, he would be sentenced to life without parole. Other such comments suggest that, as Viscussi had discussed during the competency review process, he was aware of pending constitutional challenges to the persistent offender law that he might attempt to benefit from in the future. In any event, we are satisfied that, consistent with its overall consideration of Viscussi's plea, the trial court took sufficient pains to make certain that Viscussi fully understood the applicable sentence in his case. The court did so even to the point of indicating during sentencing that if Viscussi did not fully understand his sentence, the court would reconsider accepting his plea, at which time Viscussi once again reaffirmed that he understood the only sentence he could receive was lifetime incarceration without the possibility of parole.
The trial court did not err in finding Viscussi competent and did not err in accepting his plea of guilt. We accordingly affirm.