State v. Merchant

State v. Merchant  (2000-417); 173 Vt. 249; 790 A.2d 386

[Filed 21-Dec-2001]


       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal  revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of  Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any  errors in order that corrections may be made before this opinion goes
  to press.


                                No. 2000-417


State of Vermont                               Supreme Court

                                               On Appeal from
   v.                                          District Court of Vermont,
                                               Unit No. 1, Windsor Circuit

David Lawrence Merchant	                       June Term, 2001 



Theresa S. DiMauro, J.

William H. Sorrell, Attorney General, and David Tartter, Assistant
  Attorney General,     Montpelier, for Plaintiff-Appellee.

Robert Appel, Defender General, and Anna Saxman, Deputy Defender
  General, Montpelier, for   Defendant-Appellant.


PRESENT:  Amestoy, C.J., Dooley, Morse, and Johnson, JJ., and Cook,
  D.J., Specially Assigned


       AMESTOY, C.J., Defendant pled guilty to felony lewd and lascivious
  conduct and violation  of conditions of release.  He appeals the Windsor
  District Court's denial of his motion for a mental  health screening and
  motion for a competency evaluation arguing that the court was required to
  order  a mental health screening at defense counsel's request pursuant to
  13 V.S.A. § 4815(d), and that the  court should have ordered a competency
  evaluation because there was reason to believe the  defendant may have been
  incompetent.  Defendant further appeals the trial court's denial of his 
  motion to withdraw the plea and finally argues the trial court violated
  defendant's  federal and constitutional rights against self-incrimination
  by forcing him to testify about the  underlying crime.  We affirm.

 

       On December 11, 1998, defendant was charged with felony lewd and
  lascivious conduct for  kissing and touching the breast of an elderly
  patient in the nursing home where he was working as an  x-ray technician. 
  Defendant was subsequently charged with one count of violation of
  conditions of  release for moving to New Hampshire without notifying his
  probation officer.  On April 6, 2000,  defendant entered into a plea
  agreement, pursuant to which he pled guilty to felony lewd and  lascivious
  conduct and to the violation of conditions of release.  The prosecution
  agreed to  recommend no more than three to five years to serve; defendant
  was free to argue for less.  The trial  court accepted the plea following a
  Rule 11 hearing, at which defendant admitted to the violations  and waived
  his right to a trial.

       On June 29, 2000, defendant filed a motion to withdraw his plea,
  claiming that at the time of  the Rule 11 hearing he did not have
  sufficient present ability to make a voluntary plea.  Defendant  also filed
  a motion for a competency evaluation pursuant to 13 V.S.A. § 4814(a)(2). 
  The motions  were heard on August 22, 2000, at which time defendant also
  filed a third motion for a mental health  screening pursuant to 13 V.S.A. §
  4815(d).

       Defendant testified at the hearing that he had gone into a state of
  "shock" following his  arrival at the courthouse on April 6, 2000, when he
  learned that the State had refused to reduce the  felony charge of lewd and
  lascivious conduct to a misdemeanor charge, and that his options were to 
  plead guilty to the felony charge and to the violation of conditions of
  release, or to go to trial as  scheduled.  Defendant testified that, as a
  result of this "shock," he had no recollection of discussing  the plea
  agreement with, or obtaining advice from, his attorney.  Defendant also
  testified that he  "sometimes" goes into shock "when there is an affront or
  an assault meant to cause serious harm to  him."  When this occurs,
  according to defendant, he is "robotic," or like an "automaton," and it 

 

  interferes with his ability to comprehend information and to make
  decisions.  He explained that he  pled guilty out of panic and his need to
  escape from the courtroom.  In addition, defendant testified  that while in
  this psychological state, he is able to sign his name, drive a car and do
  "all kinds of  things."

       Defendant acknowledged that he had kept his tendency to go into shock,
  and the fact that he  did go into shock on April 6, hidden from his
  attorney.  Defendant further stated that he recalled the  hearing on April
  6, who the judge and the prosecutor were, and that he changed his plea.  In
  addition,  he recalled that on that day he went to the Windsor police
  station to sign in as required by his  conditions of release, that in the
  afternoon he saw his employer and spoke with him about the court 
  proceedings, and that he drove 30 miles back to his home without
  difficulty.  He further recalls  calling his girlfriend and expressing
  disbelief over the court proceedings and the fact that the state  had not
  offered to reduce the charge.

       Defendant also testified at the hearing that he had attended group
  therapy sessions for stress  management with Dr. John Corson for
  approximately five months before the hearing and met with  Dr. Corson
  individually one month before the hearing.  He testified that Dr. Corson
  would support  his claim of temporary incompetency at the plea hearing. 
  Dr. Corson did not testify at the hearing,  and defendant has not submitted
  any report from Dr. Corson.  However, according to representations  made by
  the attorneys in the case, Dr. Corson had concluded that there was a
  possibility that the  defendant acted out some form of "symbolic
  suicide"when he entered his plea.  The record indicates  that Dr. Corson's
  opinion was based on defendant's recollection of the plea hearing.  

 

       As part of his pre-sentencing investigation (PSI), defendant underwent
  a psycho-sexual  evaluation, which included extensive psychological
  testing.  Defendant rejects the results of the  psychological tests, the
  psycho-sexual report, and its conclusions.

       At the August 22 hearing, the trial court denied the motion for a
  mental health screening and  for a competency evaluation.  Three days later
  the court issued its written opinion.  The court found  defendant's
  testimony to be "self-serving" and "not credible."  In its written opinion,
  the court noted  that defendant had participated fully in the Rule 11
  colloquy on his change of plea and had failed to  present substantial
  credible evidence to support his claim that he was incompetent when he
  entered  his plea.  Without such evidence, the court concluded, defendant
  had not shown a "fair and just  reason" to allow him to withdraw his plea.

       On appeal, defendant argues that the trial court erred (1) in
  declining to order both the mental  health screening and the competency
  evaluation; (2) in ruling that he had not shown a fair and just  reason for
  withdrawing his plea; and (3) in violating his federal and state
  constitutional rights against  self-incrimination by forcing him to testify
  about the underlying crime during the plea withdrawal hearing.

                                      I.


       Defendant claims that the trial court abused its discretion in denying
  his motion for a mental  health screening, arguing that once defense
  counsel raised the issue of competency and requested the  screening,
  pursuant to 13 V.S.A. § 4815(d), the court is required to grant it.  He
  further claims that   due process and Vermont law require that a competency
  evaluation be ordered where there is reason  to believe the defendant may
  be incompetent.  Finally, he asserts that the trial court based its denial 
  of these motions upon the erroneous conclusion that the plea entry
  constituted a final judgment and 

 

  that it had no obligation to grant mental health screenings and competency
  evaluations after final  judgment.  

       We first note that defendant is correct in asserting that the entry of
  judgment after sentencing  constitutes final judgment, not the entry of the
  plea. (FN1)  In addition, an evaluation for competency  may be ordered at
  any time, "before, during or after trial, and before final judgment." Id. §
  4814(a).   Therefore, the trial court was not precluded from ordering a
  competency evaluation before final  judgment.  However, contrary to
  defendant's claim, it was not required to do so.

       Defendant argues that a mental health screening is required once
  defense counsel requests  one, and bases this assertion on the mandatory
  term "shall" in the statute.  The statute reads:

            Upon the making of a motion for examination, the court
       shall order  a mental health screening to be completed by a
       designated mental  health professional while the defendant is
       still at the court.

  Id. § 4815(d) (emphasis added).

       Although this subsection contains mandatory language, read as a whole,
  13 V.S.A § 4815  does not require the court to order an initial mental
  health screening in order to decide the issue of  competency.  See id. 
  "The determination of whether statutory language is mandatory or directory
  is  one of legislative intent."  In re Mullestein, 148 Vt. 170, 174, 531 A.2d 890, 892 (1987).  Where 

 

  a statute is merely directory, compliance with the direction is not
  essential to deem the proceeding  valid unless the legislature expresses
  so, or where the legislative intent is evident in the language.  Id.

       Our reading of § 4815 in its entirety confirms that the trial court's
  decision to order an initial  mental health screening is directory, not
  mandatory.  See 13 V.S.A § 4815.  For example, § 4815(e)  allows the court
  to dispense with the initial screening where it cannot be conducted within
  two hours.  In addition, § 4815(f) gives the court discretion to consider
  the "facts and circumstances surrounding  the charge and observations of
  the defendant in court" in deciding whether the examination is neces- 
  sary. (FN2)  Because these subsections create instances where the trial 
  court has discretion not  to order or use a mental health screening, it is 
  illogical to construe the statute as a bar to the excercise  of discretion.

       Where a statute's language is directory, compliance is not essential
  to a proceeding's validity.  In re J.R., 153 Vt. 85, 92-93, 570 A.2d 154,
  157 (1989).  Inasmuch as we find the statute grants  discretionary powers
  to the trial court, we will not set aside the ruling absent abuse of
  discretion.  See  State v. Parker, 149 Vt. 393, 401, 545 A.2d 512, 517
  (1988). 

 

       Defendant further claims that due process and Vermont law require that
  a competency  evaluation be ordered where there is reason to believe the
  defendant may be incompetent.  However,  both Vermont statutory and case
  law support the conclusion that the trial court's determination to  order a
  competency evaluation is discretionary.  The trial court has a duty to
  order a psychiatric  examination and conduct a competency hearing only
  where the court has reason to believe that such  person may be incompe- 
  tent. (FN3)  Although neither § 4815 nor § 4817 provide specific factors
  that  should be considered in determining whether a competency hearing
  should be ordered, the United  States Supreme Court has held that the
  inquiry regarding competency of a defendant should include  "evidence of a
  defendant's irrational behavior, his demeanor at trial, and any prior
  medical opinion  on competency to stand trial."  Drope v. Missouri, 420 U.S. 162, 180 (1975).  Competency to enter a  guilty plea depends on
  whether the defendant has "sufficient present ability to consult with his 
  lawyer with a reasonable degree of rational understanding" and has a
  "rational as well as factual 

 

  understanding of the proceedings against him."  Godinez v. Moran, 509 U.S. 389, 396 (1993)  (quoting Dusky v. United States, 362 U.S. 402, 402 (1960)
  (per curiam)).

       Accordingly, we have previously held that the trial court has
  discretion to make the  determination whether to order an evaluation on the
  basis of the evidence before it.  See State v.  Welch, 159 Vt. 272, 277,
  617 A.2d 427, 430 (1992); see also In re Cameron, 142 Vt. 193, 194, 453 A.2d 405, 406 (1982) (no error in refusing to order competency hearing
  where court had no  compelling reason to believe that defendant was not
  competent or that he did not knowingly and  voluntarily enter a guilty
  plea).

       Given that the trial court had discretionary powers to order a mental
  health screening and a  competency evaluation, we review to determine
  whether there was an abuse of that discretion.  "[T]o  support a claim of
  abuse of discretion, defendant must show that the court's discretion was
  either  totally withheld or exercised on grounds clearly untenable or
  unreasonable."  Parker, 149 Vt. at 401,  545 A.2d  at 517 (internal
  citations omitted).  This burden is heavy and therefore will not easily be 
  satisfied.  Id.  

       In the present case, the evidence neither establishes nor supports a
  finding of incompetency.   The mere assertion on defendant's part that he
  was in a state of shock is insufficient to establish  incompetency,
  particularly in light of the weight of the evidence indicating that he was
  competent.  The trial court was able to observe the defendant's demeanor
  and behavior at the time of the Rule 11  hearing and found his plea to be
  knowing and voluntary; and the pyschosexual evaluation contained  in the
  PSI found defendant to be entirely competent.

       Indeed, when reviewing a trial court's determination of competency, we
  have found an abuse  of discretion only when the record was replete with
  evidence of defendant's incapacity to rationally 

 

  understand the proceedings against him.  See State v. Pollard, 163 Vt. 199,
  657 A.2d 185 (1995).   Here, the evidence is scarce and uncorroborated, and
  therefore we find that the trial court did not  abuse its discretion when
  it found the evidence unconvincing and denied the motion for a mental 
  health screening and a competency evaluation.

                                     II.


       Defendant next appeals the trial court's denial of the motion to
  withdraw his plea.  A  presentence motion to withdraw a guilty plea may be
  granted where the defendant "shows any fair  and just reason and that
  reason substantially outweighs any prejudice which would result to the
  state  from the withdrawal of the plea."  V.R.Cr.P. 32(d).  Rule 32(d)
  gives the trial court the discretion to  balance the State's interest in
  expediting the criminal proceedings with the detriment to the defendant  in
  foregoing his right to a trial on the merits.   State v. Hamlin, 143 Vt.
  477, 480, 468 A.2d 557, 559  (1983).  Where the trial court denies a motion
  to withdraw a plea, this Court will not reverse that  decision unless the
  defendant establishes that there was an abuse of discretion.  Id.  "In
  determining  whether the court abused its discretion, it is the duty of
  this Court to inquire into the circumstances  surrounding the taking of a
  guilty plea to ensure that it was knowingly and voluntarily given."  Id.   

       The court here ruled that defendant had not shown a fair and just
  reason to allow him to  withdraw his plea.  Defendant offered that he had
  entered the plea in a state of shock that impaired  his ability to consult
  with counsel.  He argues that the trial court was not entitled to make its
  own  credibility determination on the issue of mental health, and that when
  the court denied the screening  and the competency evaluation, it deprived
  him of a fair opportunity to establish a just reason to  withdraw his plea,
  as he was unable to present expert testimony regarding his alleged mental
  or  emotional disorder.

 

       Although defendant is correct that a "condition of shock" or "state of
  panic" sufficient to  undermine defendant's ability to consult with his
  lawyer with a reasonable degree of rational  understanding at the time of
  entering the plea would be fair and just cause to withdraw the plea, the 
  court is not compelled to accept defendant's characterization of his own
  state of mind.  See State v.  Ploof, 162 Vt. 560, 565, 649 A.2d 774, __
  (1994) (defendant's alleged suicidal conduct was fairly  and thoroughly
  considered by the court, which found it unconvincing).   "It is axiomatic
  in this state  that the trier of fact is given the sole determination of
  the weight of the evidence, the credibility of  witnesses and the
  persuasive effect of the testimony."  State v. Hagen, 151 Vt. 64, 65, 557 A.2d 493,  494 (1989).  The trial court is in a unique position to be able
  to observe the defendant's demeanor,  mannerisms and behavior as well as
  the quality of the evidence and therefore, we will rarely overturn  the
  trial court's determinations of credibility, and weight to given to the
  testimony.  Id. 

       The evidence did not weigh in favor of defendant's claims of
  incompetence.  Defendant's  psycho-sexual evaluation did not reveal that he
  was incompetent.  His attorneys made no claims  related to competency in
  the months leading up to defendant's plea agreement.  The trial court, in
  its  observation of the defendant on the day of his Rule 11 hearing, found
  no indication that the  defendant was in a state of shock. Given that the
  sole evidence supporting the defendant's claim of   incompetence was the
  defendant's description of his mental state at the Rule 11 hearing, the
  trial  court's denial of the motion to withdraw his plea cannot be said to
  be an abuse of discretion where  the court did not find the defendant's
  testimony credible.  See In re Fuller, 135 Vt. 575, 579, 381 A.2d 1056,
  1059 (1977) (court not required to credit defendant's assertion of
  disabling illness in  connection with claim that plea was involuntary).

 


                                     III.


       Finally, defendant contends that the trial court violated his federal
  and state constitutional  rights against self-incrimination as it permitted
  the prosecutor to cross-examine defendant on the  underlying charges. 
  Defendant argues that these "compelled statements" were used against him,
  both  in the proceeding at issue, and at sentencing.

       It is well-established law that a criminal defendant who has entered a
  plea of guilty but who  has not yet been sentenced retains
  self-incrimination rights.   Mitchell v. United States, 526 U.S. 314, 
  325-29 (1999).  However, when a party to a case chooses to testify, he
  "cannot reasonably claim that  the Fifth Amendment gives him not only this
  choice but . . . an immunity from cross-examination on  the matters he has
  himself put in dispute."  Brown v. United States, 356 U.S. 148, 155-56
  (1958); see  also State v. Billado, 141 Vt. 175, 186-187, 446 A.2d 778, 784
  (1982) (State was permitted to cross-examine defendant on matters within
  scope of his direct testimony).

       Defendant testified on direct examination at his August 22, 2000
  hearing that he had no  recollection of entering a plea and that he did not
  understand the rights he waived with the plea.  On  cross examination,
  defendant's testimony was challenged, by inquiry into his understanding of
  the  crimes to which he pled guilty.  The cross-examination was entirely
  within the scope of the direct  examination, precluding any Fifth Amendment
  challenge.  Moreover, defendant's assertion that his  answers concerning
  questions related to the violation of conditions of release led to findings
  of fact  critical to the court's conclusions of law is without merit.  The
  court's conclusion that the evidence  did not support defendant's claim
  that he was incompetent when he entered his plea of guilty is  amply
  supported without reference to the findings challenged by defendant.  

 


       Finally, defendant claims that at sentencing, the court improperly
  relied upon his  testimony  to find that he was not amenable to probation
  supervision.  He cites two statements by the sentencing  court, the first
  that defendant had stated he did not want to be supervised by a probation
  officer of the  State of Vermont; the second, that defendant wanted to
  withdraw his plea, and felt that he had been  persecuted by the State. 
  According to defendant, the court  inferred from these statements that 
  defendant was unlikely to cooperate if placed on probation, that he had not
  accepted responsibility  and would not be a good candidate for
  rehabilitation.

       Ordinarily, an objection to sentencing cannot be raised for the first
  time on appeal; if it is not  timely, it is waived. State v. Nash, 144 Vt.
  427, 435, 479 A.2d 757, 762 (1984).  Defendant  made no  objection at
  sentencing to the trial court's reference to these statements and therefore
  has waived the  claim for appeal.  In any event, in light of the remaining
  evidence before it at sentencing, any error in  the court's citation to
  defendant's testimony at sentencing was harmless.  The PSI indicated that 
  defendant had a history of violent behavior, that he had been convicted of
  a similar offense, and that  similar incidents had occurred in other
  nursing homes.  The court relied upon this history in rejecting  a
  probationary sentence.  See State v. Bacon, 169 Vt. 268, 273, 733 A.2d 50,
  __ (1999) (where other  appropriate factors provide an independent basis
  for the sentencing decision, error is harmless).  	

       Affirmed.

FOR THE COURT:


_______________________________________
Chief Justice


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                                  Footnotes

FN1.  Rule 32(b) provides:

       A judgment of conviction shall set forth the plea, the
       verdict or  findings, and the adjudication and sentence or
       conditions of  deferment thereof. . . . The judgment shall be
       signed by the judge, and  entered by the clerk forthwith.
       Such entry by the clerk shall be the  entry of judgment for
       all purposes under these rules and the Rules of  Appellate
       Procedure.

   V.R.Cr.P. 32(b)

FN2.  The section provides:

            The court and parties shall review the recommendation of
       the  designated mental health professional and consider the
       facts and  circumstances surrounding the charge and
       observations of the  defendant in court. If the court finds
       sufficient facts to order an  examination, it may be ordered
       to  be completed in the least  restrictive environment deemed
       sufficient to complete the  examination.

  Id. § 4815(f).
  

FN3.  Section 4817(b) states:

            If a person indicted, complained or informed against for
       an alleged  criminal offense, an attorney or guardian acting
       in his behalf, or the  state, at any time before final
       judgment, raises before the court before  which such person
       is tried or is to be tried, the issue of whether such  person
       is incompetent to stand trial, a hearing shall be held before 
       such court at which evidence shall be received and a finding
       made  regarding his competency to stand trial. . . . However,
       in cases where  the court has reason to believe that such
       person may be incompetent  to stand trial due to a mental
       disease or mental defect, such hearing  shall not be held
       until an examination has been made and a report  submitted by
       an examining psychiatrist in accordance with sections 
       4814-4816 of this title.

  Id. § 4817(b) (emphasis added).

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