PRESENT: Hassell, C.J., Keenan, Koontz, Kinser, Lemons, and 

Goodwyn, JJ., and Russell, S.J. 

WILLIAM JOSEPH BURNS 

 OPINION BY 

v. Record No. 090863 JUSTICE S. BERNARD GOODWYN 

 January 15, 2010 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF SHENANDOAH COUNTY 

Dennis L. Hupp, Judge 

 In this appeal we consider whether the circuit court erred 

in granting summary judgment to the Commonwealth in a proceeding 

remanded to the circuit court, pursuant to Code § 8.01-654.2, 

for determination of a claim of mental retardation by a person 

sentenced to death for a capital offense. 

Background and Material Proceedings Below 

The Circuit Court of Shenandoah County convicted Burns of 

capital murder, among other crimes, and sentenced him to death. 

This Court upheld Burns’ capital conviction and sentence on 

direct appeal. Burns v. Commonwealth, 261 Va. 307, 541 S.E.2d 

872 (2001). 

Burns raised a claim of mental retardation in habeas corpus 

proceedings in this Court. While his petition was pending, the 

Supreme Court of the United States decided Atkins v. Virginia, 

536 U.S. 304, 321 (2002), which prohibits execution of persons 

who are mentally retarded. In response thereto, the General 

Assembly enacted legislation implementing procedures governing 

the determination of the mental retardation of individuals 
facing a capital sentence. Code §§ 8.01-654.2; 19.2-264.3:1; 

19.2-264.3:1.1; 19.2-264.3:1.2; 19.2-264.3:3; and 19.2-264.4; 

see also Atkins v. Commonwealth, 266 Va. 73, 79, 581 S.E.2d 514, 

517 (2003) (describing these statutes as emergency legislation 

enacted in response to the holding of the Supreme Court of the 

United States in Atkins v. Virginia). Thereafter, this Court 

determined that Burns’ claim of mental retardation was not 

frivolous and, after two rehearings, remanded his case to the 

Circuit Court of Shenandoah County, pursuant to Code § 8.01-

654.2, for a jury determination of his mental retardation claim. 

Burns v. Warden, 269 Va. 351, 354, 609 S.E.2d 608, 610-11 

(2005). 

Mental Retardation Proceeding 

In the instant remanded proceeding concerning Burns’ claim 

of mental retardation, Burns’ counsel began to notice that Burns 

was exhibiting odd behavior and questioned Burns’ competence.* 

Dr. J. Gregory Olley, the psychologist appointed by the circuit 

court pursuant to Code § 19.2-264.3:1.2 to assist Burns, 

 *

 During his original criminal trial, Burns was evaluated 

and found to be incompetent and unable to aid in his own 

defense. Burns received medication and treatment that restored 

his competency. After Burns was restored to competency, his 

trial proceeded and he was convicted of capital murder. Burns 

v. Commonwealth, 261 Va. at 313, 541 S.E.2d at 877. After 

Burns’ conviction, the forensic psychological unit evaluated 

him. The evaluator, Dr. Mario J.P. Dennis, found that Burns 

experienced a psychotic disorder that included personality 

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concluded that Burns’ mental health had to be addressed before 

he could complete a mental retardation evaluation on Burns in 

conformity with the requirements mandated by Code § 19.2-

264.3:1.1. Additionally, a neuropsychiatrist appointed by the 

circuit court determined that Burns suffered from “psychosis, 

impairment of autobiographical memory, derailment of language 

and thought, and significant social deterioration,” which 

rendered Burns incompetent to rationally assist counsel in his 

own defense. Burns’ counsel filed a motion to declare Burns 

incompetent and to secure treatment, pursuant to Code § 19.2-

169.2, to restore Burns to competence. 

The Commonwealth filed a motion opposing the motion to 

declare Burns incompetent and a motion to change the style of 

the case. The Commonwealth argued that the instant matter was 

not a criminal proceeding, nor a post-conviction habeas 

proceeding, but instead a “specific proceeding” created by the 

General Assembly. According to the Commonwealth, the 

proceeding, authorized by Code § 8.01-654.2, was a “collateral, 

post conviction proceeding,” and because Burns was not a 

defendant in a criminal matter, he did not have a Sixth 

Amendment right to be competent in the proceeding. Thus, the 

Commonwealth argued, Code §§ 19.2-169.1 and 19.2-176, which 

 

decompensation, social withdrawal and disordered affect, and 

erratic, possibly assaultive behavior. 

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guarantee a criminal defendant the right to a competency 

evaluation before and after sentencing, were inapplicable. The 

Commonwealth requested the style of the case be changed to In 

re: William Joseph Burns or Burns v. Warden to reflect the 

unique nature of the proceeding. 

Burns filed a motion in opposition to the Commonwealth’s 

motions, arguing that the statutory scheme for mental 

retardation determinations allows Burns to retain his criminal 

trial rights. Burns also argued that this Court had already 

rejected the Commonwealth’s arguments when it stated in Burns v. 

Warden that all defendants in capital cases who allege mental 

retardation, regardless of the procedural posture of their cases 

on the date that Atkins v. Virginia was decided, are afforded 

the same procedures by statute. Burns v. Warden, 268 Va. 1, 3, 

597 S.E.2d 195, 196 (2004), aff’d on reh’g, 269 Va. 351, 352-54, 

609 S.E.2d 608, 609-11 (2005). 

The circuit court heard argument on the motions and ruled 

that the proceeding was a specific proceeding that was neither 

wholly civil nor wholly criminal. The circuit court changed the 

caption of the case to In re: William Joseph Burns. Noting that 

Burns was the moving party, the circuit court ruled that, as in 

a civil case, Burns’ competence was irrelevant because he was 

represented by counsel, and declined to determine Burns’ 

competence. A trial date was set for the special proceeding, 

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along with the dates for expert reports to be exchanged 

beforehand. 

At the time designated for the filing of expert 

disclosures, Burns filed a notice stating that he did not intend 

to present expert testimony in support of his claim. Attached 

to the notice was a declaration from Dr. Olley. In his 

declaration, Dr. Olley stated that Burns was not competent to 

stand trial because of his psychosis. Dr. Olley further stated 

that Burns’ psychosis interfered with his attempts to assess 

Burns’ intellectual functioning in conformity with accepted 

professional practice and that professional practice obliged him 

to address Burns’ mental illness before administering a 

standardized intelligence test. 

Responding to this filing, the Commonwealth filed a “Motion 

for a Final Order.” In this motion, the Commonwealth argued 

that expert testimony was necessary to prove whether Burns was, 

in fact, mentally retarded because the relevant statute requires 

proof of significant limitations in intellectual functioning and 

adaptive behavior that must be assessed in conformity with 

specific professional standards. See Code § 19.2-264.3:1.1(A). 

The Commonwealth stated that Burns’ notice that he did not 

intend to present expert testimony was an admission of a failure 

of proof and an implied withdrawal or waiver, which entitled the 

Commonwealth to judgment. 

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At the hearing on the Motion for Final Order, the circuit 

court reiterated that Burns’ competence was not at issue because 

the proceeding was not a criminal proceeding. The circuit court 

opined that the presence of competent counsel was enough for 

Burns to go forward with the proceeding. Because Burns admitted 

that he lacked an expert witness on the issue of whether he is 

mentally retarded, the circuit court ruled that Burns could not 

satisfy his burden of proof on the mental retardation issue. 

The circuit court granted the Commonwealth’s Motion for a Final 

Order, treating it as a motion for summary judgment. We granted 

Burns’ petition for appeal. 

Analysis 

Burns argues that because the remanded proceeding was not a 

civil proceeding, but rather a criminal or quasi-criminal 

proceeding, the circuit court erred in granting summary judgment 

in favor of the Commonwealth and in ruling the issue of Burns’ 

mental competence was not relevant. The Commonwealth responds 

that the proceeding in the circuit court was not a criminal 

trial or a criminal sentencing, but rather a “specific” 

proceeding created to determine a claim raised in a habeas 

petition; Burns was not entitled to the rights of a criminal 

defendant because the proceeding was civil in nature. Also, the 

Commonwealth argues, because the proceeding on remand was civil 

in nature, the circuit court did not err in ruling that the 

6
issue of Burns’ mental competence was irrelevant and in granting 

summary judgment based on Burns’ lack of an expert witness. 

In order to decide the issues presented in this case, we 

must first determine whether the adjudicatory procedure mandated 

by Code § 8.01-654.2 is criminal or civil in nature. Whether a 

statutory scheme is civil or criminal is an issue of statutory 

construction. Smith v. Doe, 538 U.S. 84, 92 (2003). Courts, 

when conducting a statutory construction analysis, “consider the 

statute’s text and its structure to determine the legislative 

objective.” Id. This Court reviews issues of statutory 

construction de novo. Farrakhan v. Commonwealth, 273 Va. 177, 

180, 639 S.E.2d 227, 229 (2007). 

Burns’ mental retardation determination was remanded to the 

Circuit Court of Shenandoah County pursuant to Code § 8.01-

654.2. This statute is one of several promulgated by the 

General Assembly in direct response to Atkins v. Virginia, 536 

U.S. at 321. See Atkins v. Commonwealth, 266 Va. at 79, 581 

S.E.2d at 517. 

In Atkins v. Virginia, the Supreme Court of the United 

States held that it was unconstitutional to execute a mentally 

retarded individual. 536 U.S. at 321. The analysis in Atkins 

v. Virginia focused on the Eighth Amendment, which protects 

citizens and residents from cruel and unusual punishment. Id. 

The Eighth Amendment prohibits “excessive” sanctions and as a 

7
precept of justice “punishment for crime should be graduated and 

proportioned to the offense.” Id. Atkins v. Virginia left it 

to the states to determine which individuals are so impaired as 

“to fall within the range of mentally retarded offenders about 

whom there is a national consensus.” Id. at 317. 

In 2003, the General Assembly enacted Code §§ 19.2-

264.3:1.1 and 19.2-264.3:1.2 establishing the procedure for 

determining defendants’ future claims of mental retardation 

arising in capital murder cases. Code § 19.2-264.3:1.1 defines 

mental retardation and states the requirements for assessing 

mental retardation for purposes of a capital sentencing. The 

statute states that “the issue of mental retardation, if raised 

by the defendant in accordance with the notice provisions” in 

Code § 19.2-264.3:1.2, shall be determined as part of the 

sentencing proceeding required in capital cases pursuant to Code 

§ 19.2-264.4. Code § 19.2-264.3:1.1(C). Code § 19.2-264.3:1.2 

provides for a defendant to have expert assistance when the 

issue of the defendant’s mental retardation is relevant to a 

capital sentencing. 

The General Assembly also enacted Code § 8.01-654.2 in 

2003. It provides redress for certain individuals who had been 

sentenced to death before April 29, 2003. Code § 8.01-654.2 

states: 

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Notwithstanding any other provision of law, any 

person under sentence of death whose sentence became 

final in the circuit court before April 29, 2003, and 

who desires to have a claim of his mental retardation 

presented to the Supreme Court, shall do so by one of 

the following methods: (i) if the person has not 

commenced a direct appeal, he shall present his claim 

of mental retardation by assignment of error and in his 

brief in that appeal, or if his direct appeal is 

pending in the Supreme Court, he shall file a 

supplemental assignment of error and brief containing 

his claim of mental retardation, or (ii) if the person 

has not filed a petition for a writ of habeas corpus 

under subsection C of § 8.01-654, he shall present his 

claim of mental retardation in a petition for a writ of 

habeas corpus under such subsection, or if such a 

petition is pending in the Supreme Court, he shall file 

an amended petition containing his claim of mental 

retardation. A person proceeding under this section 

shall allege the factual basis for his claim of mental 

retardation. The Supreme Court shall consider a claim 

raised under this section and if it determines that the 

claim is not frivolous, it shall remand the claim to 

the circuit court for a determination of mental 

retardation; otherwise the Supreme Court shall dismiss 

the petition. The provisions of §§ 19.2-264.3:1.1 and 

19.2-264.3:1.2 shall govern a determination of mental 

retardation made pursuant to this section. If the 

claim is before the Supreme Court on direct appeal and 

is remanded to the circuit court and the case wherein 

the sentence of death was imposed was tried by a jury, 

the circuit court shall empanel a new jury for the sole 

purpose of making a determination of mental 

retardation. 

If the person has completed both a direct appeal 

and a habeas corpus proceeding under subsection C of 

§ 8.01-654, he shall not be entitled to file any 

further habeas petitions in the Supreme Court and his 

sole remedy shall lie in federal court. 

Pursuant to Code § 8.01-654.2, once this Court decides, as 

a threshold issue, that the claim of mental retardation is not 

frivolous, the claim is remanded to the circuit court to 

9
determine the issue of mental retardation. The requirement that 

a nonfrivolous claim be remanded applies whether the claim is 

raised in the context of a direct appeal or a petition for 

habeas corpus. Burns v. Warden, 269 Va. at 353, 609 S.E.2d at 

610. Code § 8.01-654.2 provides a single, specific procedure to 

determine the issue of mental retardation, regardless of the 

context in which the issue arises. Id. Adjudication of the 

issue of mental retardation does not occur as part of a direct 

appeal or habeas corpus proceeding in this Court, but in the 

specific proceeding, established through Code § 8.01-654.2, to 

be conducted on remand. Id.

 Code § 8.01-654.2 directs that the provisions of Code 

§§ 19.2-264.3:1.1 and 19.2-264.3:1.2 govern the determination of 

mental retardation on remand. Those same criminal procedure 

statutes govern the determination of the mental retardation 

claims of individuals charged with or convicted of capital 

murder after April 29, 2003. Code § 19.2-264.3:1.1(C) 

specifically refers to the mental retardation determination 

taking place “as part of the sentencing proceeding required by 

§ 19.2-264.4.” Code § 19.2-264.4 is the general sentencing 

proceeding statute applicable upon a finding that a defendant is 

guilty of an offense that may be punishable by death. Such a 

proceeding is limited to determining whether the defendant shall 

be sentenced to death or life imprisonment. See Code § 19.2-

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264.4. It is a criminal proceeding. 

 The procedures set forth in Code §§ 19.2-264.3:1.1 and 

19.2-264.3:1.2 apply to all determinations of a defendant’s 

mental retardation relevant to a capital sentencing. Under the 

statutory scheme approved by the General Assembly, the same 

procedure applies for determining a defendant’s claim of mental 

retardation arising in a capital murder case, whether the claim 

is raised by a defendant charged with or convicted of capital 

murder after April 29, 2003 or by a person sentenced to death 

before April 29, 2003. 

 This unitary procedure imposed by the statutory scheme 

appears to have been designed to provide those individuals, 

whose claims of mental retardation are remanded to the circuit 

court pursuant to Code § 8.01-654.2, the same procedural 

protections and rights as are given to defendants charged with 

or convicted of a capital offense after the Atkins v. Virginia 

decision. The Commonwealth argues that the specific proceeding, 

on remand, to determine the mental retardation of individuals, 

such as Burns, whose claims of mental retardation were brought 

before this Court by way of a writ of habeas corpus should be 

treated as civil proceedings, while those specific proceedings 

ordered after consideration of a direct appeal should be treated 

as criminal proceedings, providing different constitutional 

rights on remand based upon the context in which the issue was 

11
raised. The Commonwealth is correct that, pursuant to Code 

§ 8.01-654.2, the remanded claim of mental retardation is 

adjudicated in a special proceeding in circuit court. However, 

the nature of the proceeding conducted on remand is not governed 

by the context in which the issue was raised before this Court, 

but rather by consideration of the legislative objective of the 

statute which created it. See Burns v. Warden, 269 Va. at 353, 

609 S.E.2d at 610; Smith, 538 U.S. at 92-93. 

 The mandated use of a unitary criminal procedure for 

determining mental retardation, along with consideration of the 

constitutional protection such determinations are designed to 

afford, indicate that the General Assembly intended that all 

claims remanded, pursuant to Code § 8.01-654.2, be treated as 

criminal proceedings. Therefore, we hold that the proceedings 

to determine the mental retardation of a person sentenced to 

death, undertaken upon remand of a case to the circuit court 

pursuant to Code § 8.01-654.2, are criminal in nature. Any 

person whose claim is so remanded shall be afforded, in such 

proceeding, the same rights as those afforded to a defendant in 

a criminal sentencing proceeding. 

 The statutory scheme indicates that a mental retardation 

determination conducted upon remand to the circuit court is a 

part of a capital murder case, and that proceeding is criminal 

in nature. The purpose of determining the mental retardation of 

12
a person charged with or convicted of capital murder is the same 

in all capital murder cases in which the issue arises — whether 

the defendant’s mental retardation should prohibit the 

defendant’s execution. This case, which was remanded to the 

circuit court pursuant to Code § 8.01-654.2, is no different. 

Our directions to the circuit court stated: 

[U]pon a finding that Burns is not mentally retarded, 

the sentence of death entered on May 12, 2000 remains 

in full force and effect. Upon a finding that Burns is 

mentally retarded, the trial court shall enter an order 

vacating the sentence of death and re-sentencing Burns 

in accordance with Code § 19.2-264.3:1.1(D). 

Burns v. Warden, 269 Va. at 354, 609 S.E.2d at 611. 

 Code § 8.01-654.2 is a transitional statute that the 

General Assembly enacted to address the rights of a limited 

number of capital murder defendants. Id. The General Assembly 

promulgated Code § 8.01-654.2 to allow certain defendants 

sentenced to death before April 29, 2003 the opportunity to 

present their claims of mental retardation. When those mental 

retardation claims are found by this Court to be “not 

frivolous,” Code § 8.01-654.2 creates a dispositional vehicle, 

which allows those defendants the same protections and 

procedures concerning the presentation of their mental 

retardation claims given to individuals charged or convicted of 

capital murder after April 29, 2003. All the proceedings on 

remand pursuant to Code § 8.01-654.2 must be criminal in nature 

13
in order to carry out the intent of the General Assembly. 

 Rule 3:20 allows summary judgment to be entered in civil 

actions. However, Part 3 of the Rules of the Supreme Court of 

Virginia only applies to civil actions. Rule 3:1. Because the 

proceeding remanded pursuant to Code § 8.01-654.2 was criminal 

in nature, the circuit court erred in granting summary judgment 

to the Commonwealth. 

The Supreme Court of the United States has held that trying 

an incompetent criminal defendant violates the right to due 

process. Cooper v. Oklahoma, 517 U.S. 348, 354 (1996); Medina 

v. California, 505 U.S. 437, 453 (1992). A defendant is 

considered incompetent if he does not have the 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.” Cooper, 517 U.S. at 354 

(quoting Dusky v. United States, 362 U.S. 402, 402 (1960)). 

Because the remanded proceeding was criminal in nature, the 

circuit court erred in ruling that Burns’ competence was 

irrelevant and in refusing to adjudicate Burns’ competence. 

Upon review of the record and upon consideration of the 

arguments presented, we find reversible error in the judgment of 

the circuit court. Accordingly, for the reasons stated, we will 

reverse the circuit court’s judgment and remand the case to the 

14
circuit court for further proceedings consistent with this 

opinion and this Court’s order entered on March 11, 2005. 

Reversed and remanded.

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