Opinion
NO. 2016-CA-000190-MR
06-09-2017
BRANDON WALTERS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Sara Zeurcher Assistant Public Advocate Department of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Thomas Van De Rostyne Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM MADISON CIRCUIT COURT
HONORABLE JEAN CHENAULT LOGUE, JUDGE
ACTION NO. 14-CR-00530 OPINION
AFFIRMING
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BEFORE: CLAYTON, DIXON, AND THOMPSON, JUDGES. DIXON, JUDGE: Brandon Walters appeals from a judgment of the Madison Circuit Court convicting him of criminal attempt to manufacture methamphetamine and imposing a five-year prison sentence, probated for four years. On appeal, Walters argues the circuit court erroneously found him competent to stand trial, and administered an inadequate plea colloquy. After reviewing the record, we conclude that the circuit court did not abuse its discretion when it found Walters competent to stand trial. We further conclude that the plea colloquy satisfied the requirements of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and was therefore adequate. Hence, we affirm.
In October 2014, Walters unlawfully entered a shed and was discovered by its owner shaking a twenty-ounce bottle containing a liquid that was later determined to be methamphetamine. Walters was subsequently indicted for manufacturing methamphetamine and third-degree burglary. Prior to Walters' conviction, two hearings were held to determine whether he was competent to stand trial. At the first hearing, the Commonwealth presented testimony from Dr. John Ranseen, a clinical psychologist charged with performing competency evaluations for the Kentucky Correctional Psychiatric Center (KCPC). At the second hearing, Walters presented testimony from Dr. Paul Ebben, a licensed clinical psychologist. Based on their independent evaluations, both evaluators agreed that Walters' cognitive functioning was well below average. However, the evaluators' opinions differed as to whether Walters was competent to stand trial: Dr. Ranseen concluded that Walters was competent and Dr. Ebben concluded that he was not. After considering the testimony of the experts and reviewing their respective reports, the circuit court ultimately found Walters competent to stand trial.
Shortly after the court's competency finding, Walters entered into a plea agreement with the Commonwealth. In exchange for Walters' plea of guilty, the Commonwealth agreed to amend his manufacturing methamphetamine charge to criminal attempt to manufacture methamphetamine, dismiss his third-degree burglary charge, and recommend a sentence of five years' imprisonment. The circuit court conducted an extensive colloquy to determine whether Walters' guilty plea was entered voluntarily. At the conclusion of the colloquy, the court accepted Walters' guilty plea as voluntary and intelligent. The court sentenced Walters in accordance with the plea agreement, probating his five-year sentence for four years. Walters reserved the right to appeal the circuit court's finding of competence and this appeal followed.
Walters first argues that the trial court abused its discretion when it found him competent to stand trial. In support of his argument, Walters contends that the preponderance of the evidence leans towards incompetence because he has been found incompetent on three prior occasions and has a low Intelligence Quotient (IQ). He further asserts that, in reaching its conclusion, the circuit court erroneously relied on the expert with weaker credentials, less experience, and inferior test instruments, and also relied on its own unsupported Daubert determination regarding the validity of the testing performed by that expert. We disagree.
Daubert v. Merrell Dow Pharm., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).
A defendant who is deemed incompetent may not stand trial as a matter of due process under the United States Constitution. Woolfolk v. Commonwealth, 339 S.W.3d 411, 421 (Ky. 2011) (citing Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975)). A trial court's determination of competency must be based on the preponderance of the evidence. Chapman v. Commonwealth, 265 S.W.3d 156, 174 (Ky. 2007). The test for whether a defendant is competent to stand trial is whether he has "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding" and "a rational as well as factual understanding of the proceedings against him." Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 789, 4 L.Ed.2d 824 (1960); see also Thompson v. Commonwealth, 147 S.W.3d 22, 32 (Ky. 2004). The trial court is in the best position to determine whether a defendant is competent to plead guilty. Centers v. Commonwealth, 799 S.W.2d 51, 54 (Ky. App. 1990).
Competency determinations are findings of fact. Chapman, 265 S.W.3d at 157, n.52. Accordingly, we review a trial court's competency determination for clear error, and will reverse only when that finding is not supported by substantial evidence. Jackson v. Commonwealth, 319 S.W.3d 347, 349 (Ky. 2010) (citing Chapman, 265 S.W.3d at 174). Substantial evidence is such relevant evidence as a "reasonable mind would accept as adequate to support a conclusion." Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003). A trial court's decision regarding competency will stand absent a showing that the trial court abused its discretion. See Commonwealth v. Wooten, 269 S.W.3d 857, 865 (Ky. 2008). Here, because a mental health expert testified that Walters was competent to stand trial, the trial court's finding that Walters was indeed competent is supported by substantial evidence. Therefore, the trial court did not abuse its discretion in finding Walters competent.
The KCPC expert, Dr. Ranseen, testified that he had previously evaluated Walters in 2013 and found him incompetent to stand trial. Before conducting that evaluation, he reviewed records indicating that Walters attended special education classes throughout high school and showed that several IQ scores placed Walters in the upper end of the intellectually disabled range. While administering the 2013 evaluation, Dr. Ranseen suspected Walters of not putting forth his best effort based on the results of a test developed to detect malingering. However, because of Walters' intellectual deficiencies, he gave Walters the benefit of the doubt.
Walters' 2013 arrest was also for manufacturing methamphetamine.
In his latest evaluation, Dr. Ranseen felt as though Walters was "doubling down" on his strategy of acting impaired. He testified that in the 2013 evaluation, Walters was able to answer some questions regarding the court and proceeding and had some notion of the roles of courtroom personnel. This time, however, Walters "didn't know anything." He did not know what day it was, what time it was, who the judges were, his attorney, or the charges against him. Dr. Ranseen stated that Walters was administered another IQ test and scored a forty-four, whereas he had previously consistently scored in the sixties. Walters also again failed the test designed to detect malingering. Dr. Ranseen testified that based on Walters' drastic decline in test scores and clear malingering, he did not give Walters the "benefit of the doubt" this time. He believed that Walters had learned a strategy of feigning incompetency as a way to deal with his legal problems. Dr. Ranseen ultimately concluded to a reasonable scientific certainty that Walters was competent to stand trial, although not by a great degree.
Walters' expert, Dr. Ebben, testified that he had previously evaluated Walters in 2008 and in 2011. Both times he found Walters to be incompetent, intellectually deficient, and developmentally immature. Dr. Ebben stated that in his most recent evaluation of Walters, conducted shortly before the hearing, Walters continued to show mental deficiency and intellectual immaturity. He concluded that based on his test results, it did not appear that Walters was malingering.
On cross-examination, the Commonwealth pointed out that Dr. Ebben's evaluation report showed that he tested Walters in three areas. The tests results indicate that Walters was not impaired in his ability to consult with counsel or rationally understand courtroom proceedings, and only slightly impaired with regards to Walter's factual understanding of courtroom proceedings. Despite the close results, Dr. Ebben testified that, while Walters was on the "cusps of competency," he was not presently competent to stand trial.
The circuit court found that based on the two most recent reports, the preponderance of the evidence pointed towards competency. The court pointed out that Walters' test scores in Dr. Ebben's report showed that he was able to consult with counsel and able to understand courtroom procedures. It found that Dr. Ebben's report indicating that Walters was on the "cusps of competence," coupled with Dr. Ranseen's finding of competence, supported its decision that Walters is competent to stand trial and could rationally participate in his defense. After reviewing the evidence and the hearings, we believe the circuit court's conclusion is adequately supported. Dr. Ranseen's testimony that he believed Walters competent to stand trial is by itself substantial evidence to support the circuit court's conclusion. Absent an abuse of discretion, we will not disturb the trial court's conclusion on this matter.
Walters' argument that the circuit court erroneously relied on the expert with weaker credentials, less experience, and inferior test instruments, is meritless. Walters did not object to Dr. Ranseen's qualifications as an expert, therefore, there was no question that he was qualified to offer his opinion regarding Walters' competency to stand trial. "The trier of fact has the right to believe the evidence presented by one litigant in preference to another[,]" Bissell v. Baumgardener, 236 S.W.3d 24, 29-30 (Ky. 2007), and "the authority to accept the medical evidence that [it] believed was most credible and convincing." Alley v. Commonwealth, 160 S.W.3d 736, 739 (Ky. 2005). In this case, the circuit court clearly found that Dr. Ebben's testimony was not as credible as Dr. Ranseen's testimony. The trial court acted within its discretion in reaching this conclusion.
In his brief, Walter focuses on the fact that Dr. Ranseen has a Masters and PhD in "political psychology" to argue that Dr. Ebben is the superior expert and that his conclusion should have been accepted by the court. However, Dr. Ranseen never stated that he has a Masters and PhD in "political psychology" as Walters contends. Dr. Ranseen testified that he has a Masters and PhD in clinical psychology with specialized advanced degree in neuropsychology. He testified that he has received training in the law of psychology and public policy.
Walters' assertion that the circuit court made a finding that Dr. Ebben's testing method was unreliable and thus was required to conduct a Daubert hearing is equally without merit. A review of the record shows that the trial court did not question the reliability of Dr. Ebben's testing method, but questioned the conclusions reached by Dr. Ebben based on Walters' answers. For example, when asked whose advice he would rely on when considering whether to accept a plea offer, Walters stated that he would rely on his parents' advice. Dr. Ebben believed this answer to be indicative of poor decision making and incompetence. The circuit court, in its oral finding, simply opined that many competent defendants rely on the advice of their parents when deciding whether to accept a plea offer. The court stated it found interesting Dr. Ebben's "view of [Walters'] answers." The court, however, did not question Dr. Ebben's testing method and even relied on some of his test results in finding Walters competent. Walters' assertion that the court made a finding that Dr. Ebben's testing method was unreliable is not supported by the record. Therefore, his argument fails.
Walters next argues that his plea was not knowing, voluntary, or intelligent because the circuit court administered an inadequate plea colloquy. Walters asks for palpable error review because he waived his right of appeal and failed to preserve the issue. However, a waiver of the right to appeal in a guilty plea does not extinguish all appealable issues. Windsor v. Commonwealth, 250 S.W.3d 306, 307 (Ky. 2008) (citing Roe v. Flores-Ortega, 528 U.S. 470, 480, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000)). Rather, some issues "survive an express waiver of the right to appeal," including "whether the plea complied with the requirements of Boykin." Id.; see also Grigsby v. Commonwealth, 302 S.W.3d 52 (Ky. 2010). The substance of Walters' argument is that his plea was unknowing under Boykin. Therefore, we may reach the merits of his appeal regarding this issue.
In Boykin, the United States Supreme Court recognized that a defendant pleading guilty waives an assortment of rights afforded by the United States Constitution. For a guilty plea to be valid, it must be accompanied by an "intentional relinquishment or abandonment of a known right or privilege." Boykin, 395 U.S. at 243 n.5, 89 S.Ct. 1709. In other words, the court accepting the guilty plea must determine, and the record must reflect, that the plea was entered intelligently and voluntarily. Id. at 242, 89 S.Ct. 1709.
During Walters' plea colloquy, the trial judge asked Walters to tell her what happened. Walters began explaining that he was "located somewhere that had a meth lab going on." Before Walters could finish, the court asked him, "had you been participating in that meth lab?" to which Walters replied in the affirmative. Walters contends that this dialogue clearly shows that he was confused about the elements of the offense he was pleading to. Therefore, he asserts, the court accepted his plea without satisfying itself that the plea was being entered into knowingly and voluntarily. We disagree.
In Walters brief to this Court, he contends that he stated "I was. . . . Someone used to have a meth lab." However, after reviewing of the plea colloquy we believe the above statement is more accurate. --------
First, we do not agree that Walters' explanation of the events shows that he was confused about the elements of manufacturing methamphetamine. Under KRS 218A.1432 "[a] person is guilty of manufacturing methamphetamine when he knowingly and unlawfully . . . [m]anufactures methamphetamine[.]" Walters stated that he was in a location with a meth lab and affirmed that he "participated" in that meth lab. Walters' description of his actions are consistent with the elements of manufacturing methamphetamine and does not "clearly" show that he was confused.
Second, a review of Walters' entire plea colloquy confirms that his plea was made knowingly, and voluntarily, which is what Boykin requires. During the plea colloquy Walters acknowledged that he went over his indictment with his attorney who explained to him the charges and all possible defenses. The court made sure Walters understood all of his constitutional rights and further understood that by pleading guilty he was waiving those rights. When the court asked Walters if he knew the maximum penalty he faced if he were found guilty of manufacturing methamphetamine and burglary in the third-degree, Walters correctly replied twenty-five years. When asked how much time the Commonwealth had offered, Walters correctly replied five years. Walter acknowledged that the circumstances being as they were, it was in his best interest to plead guilty. He further acknowledged that no one had threatened, coerced, tricked, or made him any special promises in order to get him to plead guilty. Walters affirmed that he was pleading guilty because he was guilty.
Walters' answers to the circuit court's questions during the plea colloquy support its conclusion that Walters understood the consequences of his plea and accepted the plea agreement as in his best interest. Walters has not alleged any facts that would controvert the veracity of his answers given during the colloquy. Nor has he refuted the inference drawn from those answers, that the plea was knowing and voluntary.
For the foregoing reasons, the judgment of the Madison Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Sara Zeurcher
Assistant Public Advocate
Department of Public Advocacy
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Thomas Van De Rostyne
Assistant Attorney General
Frankfort, Kentucky