2016 WI 23

SUPREME COURT OF WISCONSIN

CASE NO.: 2013AP1228-CR

COMPLETE TITLE: State of Wisconsin,

 Plaintiff-Respondent-Petitioner,

 v.

Jimmie Lee Smith,

 Defendant-Appellant.

REVIEW OF A DECISION FO THE COURT OF APPEALS

(Reported at 357 Wis. 2d 582, 855 N.W.2d 422)

(Ct. App. 2014 – Published)

PDC No. 2014 WI App 98)

OPINION FILED: April 7, 2016

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: October 6, 2015

SOURCE OF APPEAL:

COURT: Circuit

COUNTY: Milwaukee

JUDGE: David L. Borowski

JUSTICES:

CONCURRED: ZIEGLER, J. concurs

DISSENTED: ABRAHAMSON, J., joined by BRADLEY, A. W., J. 

dissent

NOT PARTICIPATING: BRADLEY, R. G., J. did not participate 

ATTORNEYS:

For the plaintiff-respondent-petitioner, the cause was 

argued by Christine A. Remington, assistant attorney general, 

with whom on the briefs was Brad D. Schimel.

For the defendant-appellant, there was a brief by John T. 

Wasielewski, and Wasielewski & Erickson, Milwaukee, and oral 

argument by John T. Wasielewski.
2016 WI 23

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2013AP1228-CR

(L.C. No. 2009CF56)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin, 

Plaintiff-Respondent-Petitioner, 

v.

Jimmie Lee Smith, 

Defendant-Appellant. 

FILED

APR 7, 2016

Diane M. Fremgen

Clerk of Supreme Court

REVIEW of a decision of the Court of Appeals. Reversed. 

¶1 PATIENCE DRAKE ROGGENSACK, C.J. We review a 

published decision of the court of appeals1 that reversed the 

Milwaukee County Circuit Court's2 denial of defendant Jimmie Lee 

Smith's (Smith) postconviction motion to vacate the judgment of 

conviction. 

¶2 Smith was convicted of second-degree sexual assault, 

contrary to Wis. Stat. § 940.225(2)(a) (2013-14),

3 and sentenced 

 

1 State v. Smith, 2014 WI App 98, 357 Wis. 2d 582, 855 

N.W.2d 422. 

2 The Honorable David Borowski of Milwaukee County presided. 

3 All further references to the Wisconsin statutes are to 

the 2013-14 version, unless otherwise indicated.
No. 2013AP1228-CR

2

to 25 years of initial confinement and 15 years of extended 

supervision. Subsequently, Smith filed a postconviction motion 

to vacate the judgment of conviction, alleging that he was 

incompetent at the time of trial and sentencing. The 

postconviction court appointed experts to evaluate Smith and 

conducted a retrospective competency evaluation. After an 

evidentiary hearing, the postconviction court found that Smith 

had been competent to stand trial and be sentenced. 

¶3 The court of appeals reversed, and the State 

petitioned for review. In its petition for review, the State 

raises the following issues: (1) whether the court of appeals 

improperly weighed evidence rather than deferring to the 

postconviction court; (2) whether the court of appeals applied 

an incorrect standard of review to the circuit court's finding 

that Smith was competent at trial and sentencing, which finding 

the State asserts is not clearly erroneous; and (3) whether the 

court of appeals exceeded its constitutional authority by 

engaging in improper fact finding.

¶4 We conclude that the court of appeals failed to apply 

the clearly erroneous standard of review to the postconviction 

court's finding of competency and improperly weighed evidence 

rather than giving deference to the postconviction court's 

finding. Reviewing the evidence under the proper standard, we 

conclude that the postconviction court's finding that Smith was 

competent to stand trial and be sentenced is not clearly 
No. 2013AP1228-CR

3

erroneous. Accordingly, we reverse the decision of the court of 

appeals.4 

I. BACKGROUND

¶5 On the night of October 2, 2007, Smith followed the 

victim, A.H., out of a bar, beat and raped her. During the 

course of the attack, Smith hit A.H. in the face, punched her, 

and slammed her head against the concrete until she was 

unconscious. After A.H. regained consciousness, she went to a 

nearby house and asked the occupants to call 911. 

¶6 On January 7, 2009, the State charged Smith with 

second-degree sexual assault, a violation of Wis. Stat. 

§ 940.225(2)(a). Prior to trial, Smith made inculpatory 

statements to police, and the circuit court held a Miranda5-

Goodchild6 hearing. At the hearing, the circuit court conducted 

the following colloquy with Smith: 

THE COURT: . . . Mr. Smith, do you understand that 

you have the right to challenge both——well, challenge 

any statements that you made to the police on two 

grounds. The first ground is that you did not receive 

your Miranda warnings; do you understand that?

 

4 Because we conclude that the court of appeals improperly 

weighed evidence and applied an erroneous standard of review, we 

do not address whether the court of appeals engaged in improper 

fact finding. 118th St. Kenosha, LLC v. DOT, 2014 WI 125, ¶7, 

359 Wis. 2d 30, 856 N.W.2d 486; Md. Arms Ltd. P'ship v. Connell, 

2010 WI 64, ¶48, 326 Wis. 2d 300, 786 N.W.2d 15; Waters v. 

Pertzborn, 2001 WI 62, ¶14, 243 Wis. 2d 703, 627 N.W.2d 497.

5 Miranda v. Arizona, 384 U.S. 436 (1966). 

6 State ex rel. Goodchild v. Burke, 27 Wis. 2d 244, 133 

N.W.2d 753 (1965). 
No. 2013AP1228-CR

4

[SMITH]: Yes. 

THE COURT: The second ground would be that the 

statement was not voluntary; do you understand that?

[SMITH]: Yeah. 

THE COURT: Voluntariness goes to police impropriety 

or coercion only; do you understand that?

[SMITH]: Yes. 

THE COURT: Do you wish to have a motion on either of 

those two issues?

[SMITH]: I don't think so, Judge. 

THE COURT: You don't think so or you don't want to?

[SMITH]: No. 

THE COURT: All right. Have you had enough time to 

talk to your lawyer?

[SMITH]: Yes. 

THE COURT: Do you believe that's in your best 

interest to proceed in this manner?

[SMITH]: Yes. 

THE COURT: Do you understand that your lawyer could 

argue the fact that you may have been confused, which 

may go to the weight of the confession?

[SMITH]: Yes. 

THE COURT: But certainly does not go to the 

admissibility; do you understand that?

[SMITH]: Yes. 

¶7 A jury trial began on October 12, 2009,7 where Smith 

was represented by Attorney Stephen Sargent. After the State 

 

7 The Honorable Jeffrey A. Conen of Milwaukee County 

presided. 
No. 2013AP1228-CR

5

presented its case-in-chief, the circuit court conducted another 

colloquy with Smith:

THE COURT: . . . Mr. Smith, you have the right to 

testify in this matter, you have the right to remain 

silent. Do you understand that?

[SMITH]: Correct. 

THE COURT: You make the choice yourself, sir. Do you 

understand that?

[SMITH]: Correct. 

THE COURT: Have you had enough time to talk to your 

lawyer?

[SMITH]: Yes. 

THE COURT: What's your choice?

[SMITH]: My choice was to waive it. 

THE COURT: I'm sorry?

[SMITH]: Waive it. 

THE COURT: To waive it? So do you want to testify or 

do you not want to testify?

[SMITH]: I don't want to testify. 

THE COURT: All right. And has anyone forced you to 

do this?

[SMITH]: No. 

THE COURT: Do you believe it's in your best interest?

[SMITH]: Yes. 

THE COURT: And are you making this choice freely and 

voluntarily?

[SMITH]: It's freely and voluntarily. 
No. 2013AP1228-CR

6

¶8 Smith was convicted on October 14, 2009. Smith's 

sentencing hearing was held on December 11, 2009, where he 

continued to be represented by Attorney Sargent. At sentencing, 

the State recommended the "maximum penalty of 25 years' 

confinement followed by 15 years' extended supervision" due to 

Smith's numerous previous convictions and pattern of violent, 

sexual assault. Prior to imposing sentence, Smith made the 

following statement:

[SMITH]: Today I want to say in court that I have 

been through a lot in my life. I help peoples and I 

got——I got this. I bail peoples out of jail, I got 

this. I let peoples stay in my house, I got this. I 

let peoples eat at my house, I got this. 

Today [A.H.], I don't know what she lookin' for 

out of me and why is she comin' to court like this? 

What it is that she want from me? She in love with me 

or something? Sayin' that she haven't took a shower 

since this happened to her? What is wrong with her? 

I let bygones be bygones. Peoples done throw salt on 

me every day, every day out there on the street. 

Peoples took money from me at the court sale, at the 

courthouse. But I let it ride, they wouldn't even 

give it back. I let it go. 

I sit up North, did time behind bailin' this 

girl, [], out of jail in Chicago, Illinois for child 

neglect, because I went to court the day that she 

was——she was in court, and I went and bailed her out 

of jail. And then I hear all of this about me? And 

she supposed to have been back in court. She never go 

back. She never go back for her——for——to get her bail 

back. But I'm the one who had to sign her bail as 

being right to this day. 

I am very, very sorry that I even helped this 

lady. But these ladies are sayin' things like this 

about me. And she ain't white like her, the lady 

that——that I bailed out of jail, she's black. And her 

daughter, I looked out for them when they was starvin' 

to death, livin' out on the street corner. I'm out 
No. 2013AP1228-CR

7

here tryin' to make a living every day at my job 

workin', lost my job behind all of that, feedin' them, 

lettin' them stay in the house, ended up getting' in 

trouble with my landlord by buyin' air-conditionin' 

and things without asking his permission, could I have 

it in my apartment with the rent and——and included 

with the lights. 

And this is the thanks I get out of it? 12 years 

like I murdered someone out there on the street? I 

sat in there 12 years for bailin' her out of jail. I 

didn't see all these troubles until I bailed her out 

of jail. Helped her and her family. 

And then my brothers, them too, I even brought 

them to my house and helped them. When I lived with 

them, they couldn't even pay the light bill. Wouldn't 

even pay the light bill. The landlord was lettin' 

them work off his job to pay the rent. And told him 

to switch the lights in his name. He didn't even do 

it. 

So by me handin' over parts of my Quest card, 

because I never gained footage after being locked up 

after bailing [her] out of jail for being convicted of 

child neglect, for $200 I had to put my name to that, 

and now she's on the run and I get all of this out of 

that? She never——She ain't——wouldn't go back to court 

because I just see her last year. She worked at the 

same company as I did, I see her there on the 27th and 

National. She there. 

And then this other lady back in——[], she don't 

even know her name. She callin' me every day. I'm 

over by my——my——my livin' relatives after I got out of 

jail, never gained footage, never got a job, never got 

back to my feet. I know nobody in this courtroom 

don't care. 

And——And at that one time I didn't care about my 

$40 that I gave away to the courthouse, I gave away 

$40 for a marriage license fee and I couldn't even get 

it back from the courts. And this happened before all 

of this stuff about bailin' [her] out of jail. And 

the courts seemed like this is all my fault? This is 

not all my fault. 
No. 2013AP1228-CR

8

I also talked to [], I sent her a letter last 

year. And then [], I went back to her house after I 

got out of jail and she still wasn't workin' out 

right. And then we——I ended up gettin' shot behind 

all this. I got a bullet hole through my body and 

laid up at Froedtert Hospital for almost six months 

out there fightin' for my life because of these people 

that hates on me. 

I can prove it to you that I got the shot, it is 

right here in my stomach. I got shot, laid up almost 

90 days, I was fightin' for my life at Froedtert 

because I bailed her out. 

[ATTORNEY] SARGENT: Excuse me, your Honor. (Brief 

discussion off the record.)

[SMITH]: It's got to be out there. I need to put 

this out there on the table. 

THE COURT: Well, we're going to have to put an end to 

this because none of this really has a whole lot to 

do——

[SMITH]: I know it don't have a whole lot, but, here, 

I didn't set up in jail and then I got out and then I 

couldn't even stay on my money, and then I get on SSI 

and stay on it for like four or five checks and then 

they cut it off. I get these lawyers $2,300 to 

represent me. They——I still ain't on for all of this 

pain and sufferin' that I'm goin' through for not 

lookin' out for my life after I got my finger injured 

by my family work helpin' this guy gettin' on the job 

there. And he didn't even have the decency enough to 

say I will invite you out to dinner for lookin' out 

for me. He didn't even have the decency to do that 

for me. 

And then [], she come over to my house, I got the 

settlement from the——from my gunshot, I buy a car, I 

take her down there to see her family, she want to run 

both of us off the highway, kill us both. 

THE COURT: All right. Well, Mr. Smith, none of this 

really has anything to do with——

[SMITH]: But this has got a lot to do with this case. 
No. 2013AP1228-CR

9

THE COURT: It really doesn't. So we're going to cut 

it off if you are not going to get to the point. 

[SMITH]: The point is, if you want to hear what my 

goal are, my goal is to get out of here to get back to 

work and to get my Social Security. That's it. You 

don't want to hear what I gotta say but you want to 

sentence me, though. You want to give me the maximum 

time, say that I'm a mean person. But I'm not mean. 

This place is mean. They took money from me here. 

And then when I write a letter to my family about it 

back in Chicago telling them how I could stay in 

Wisconsin with a stolen car from Chicago here, how 

could I stay here, how could I stay here, I had to 

sign my letters that I written to them because these 

peoples here took my——took my marriage license fee and 

then they took my adoption fee. Now, that is not fair 

to me. You guys are not being fair. 

THE COURT: We're done. 

[SMITH]: I'm done but y'all——I just want to address——

When I want to talk, y'all don't want to hear the 

truth. 

THE BAILIFF: Now you are done. 

The circuit court accepted the State's recommendation and 

sentenced Smith to 25 years of initial confinement followed by 

15 years of extended supervision. 

¶9 On June 18, 2010, Smith's postconviction counsel, 

Attorney John T. Wasielewski, filed a postconviction motion and 

moved for a determination of whether Smith was presently 

competent to assist in postconviction proceedings. On 

September 13, 2010, a competency hearing was held, and the 

postconviction court8 heard testimony from Dr. Deborah Collins 

 

8 The Honorable Jean A. DiMotto of Milwaukee County 

presided. 
No. 2013AP1228-CR

10

who opined that Smith was not competent to proceed, but that he 

was likely to regain competency within a reasonable period of 

time. Given this testimony, the postconviction court set 

another hearing date for December 10, 2010; however, prior to 

this hearing, Dr. John Pankiewicz evaluated Smith, and opined 

that Smith remained incompetent, but may regain competency 

within a reasonable period of time. The postconviction court 

again scheduled a follow-up hearing for March 14, 2011 where it 

ultimately found that Smith was incompetent to proceed with 

postconviction proceedings and was unlikely to regain competency 

within a reasonable period of time. The postconviction court 

also appointed a guardian ad litem, Attorney Scott Phillips, to 

serve on Smith's behalf. 

¶10 On September 30, 2011, Attorney Wasielewski filed a 

postconviction motion to vacate Smith's judgment of conviction, 

alleging that Smith had been incompetent at the time of trial 

and sentencing. Smith sought to proceed under three theories of 

recovery. First, Smith alleged "procedural incompetency," 

arguing that at the time of trial and sentencing, the circuit 

court had reason to doubt his competency and, therefore, should 

have sua sponte held a competency hearing. Second, Smith 

alleged ineffective assistance of counsel, arguing that trial 

counsel, Attorney Sargent, had reason to doubt his competency 

and, therefore, should have moved for a competency hearing. 

Third, Smith alleged "substantive competency," simply arguing 

that he was convicted and sentenced while incompetent. 
No. 2013AP1228-CR

11

¶11 The postconviction court9 ordered Dr. Collins and Dr. 

Pankiewicz to conduct retrospective competency evaluations to 

aid in determining whether Smith had been competent at the time 

of trial and sentencing, which occurred in October and December 

of 2009, respectively. On August 2, 2012, the postconviction 

court held a competency hearing where both doctors testified for 

Smith. 

¶12 Dr. Pankiewicz testified that, for purposes of his 

retrospective competency evaluation, he submitted a report dated 

February 27, 2012. The report indicated that Dr. Pankiewicz had 

reviewed various sources of information prior to rendering his 

opinion. These sources included: his prior examinations of 

Smith, which occurred on December 7, 2010 and March 3, 2011; Dr. 

Collins' competency report dated July 21, 2010; Smith's records 

from the Milwaukee County Jail, the Department of Corrections, 

and the Wisconsin Resource Center; and portions of the 

sentencing transcript.

¶13 Dr. Pankiewicz testified that Smith had a "substantial 

record of mental illness going back at least 20 years," 

typically diagnosed as "psychotic disorder or schizophrenia." 

Dr. Pankiewicz also testified that Smith's jail records played a 

major role in developing his opinion because they "contained 

observations of Mr. Smith during that period" and were the most 

contemporaneous records available. The jail records indicated 

 

9 The Honorable David Borowski of Milwaukee County presided 

over the remaining postconviction proceedings. 
No. 2013AP1228-CR

12

that he "exhibit[ed] unusual behavior at times; requiring 

placement in the psychiatric special needs unit at the jail. He 

was frequently viewed as rambling in his communications and 

although prescribed anti-psychotic medications, typically 

refused to cooperate with said treatment." Comparing the jail 

records to Smith's sentencing allocution, Dr. Pankiewicz stated 

that "Smith was demonstrating rambling speech, which was similar 

to observations made by staff at the jail. So I believe that 

was [] further evidence that he was symptomatic at the time." 

¶14 Based on all of the foregoing, Dr. Pankiewicz opined 

that "there [was] substantial cause to doubt [Smith's] 

competency to stand trial in October 2009 [and be sentenced in 

December 2009]." 

¶15 During cross examination, Dr. Pankiewicz testified 

that out of approximately 2,000 competency evaluations that he 

performed during his career, "less than 10" of them were 

conducted retrospectively. Dr. Pankiewicz also testified that, 

although he had reviewed the transcript of the sentencing 

allocution, he had not reviewed the transcripts of Smith's trial 

colloquies; nor had he spoken with Smith's trial counsel, 

Attorney Sargent. Finally, Dr. Pankiewicz admitted that his 

retrospective competency evaluation, rendered nearly three years 

after Smith's trial and sentencing, was not as strong as it 

would have been had he been able to conduct a contemporaneous 

examination in 2009. 

¶16 Dr. Collins also testified at the competency hearing. 

For purposes of her retrospective evaluation, Dr. Collins 
No. 2013AP1228-CR

13

submitted a report dated September 16, 2011. Dr. Collins' 

report indicated that she similarly relied on various sources 

including: her previous examinations of Smith; Dr. Pankiewicz's 

previous examinations of Smith; Smith's clinical and medical 

records; Smith's sentencing allocution transcript. Dr. Collins 

testified that Smith's records revealed that, "as early as 1993, 

Mr. Smith had been identified with a psychotic disorder and, in 

fact, at that time was the subject of civil commitment 

proceedings in a court order for medication to treat his mental 

illness." Dr. Collins also testified that the totality of 

Smith's records "well-substantiates a diagnosis of a psychotic 

disorder, and that [Smith], as early as March of 2009, was 

actively symptomatic." 

¶17 Dr. Collins ultimately opined that, "to a reasonable 

degree of professional certainty," Smith was incompetent at 

trial and sentencing. However, Dr. Collins also admitted that, 

out of hundreds of competency evaluations she had conducted, she 

estimated that only four had been conducted retrospectively. 

Dr. Collins also stated that she "frame[d] [her] opinion 

carefully because, of course, it's a retrospective evaluation 

and reaching that ultimate conclusion is challenging, at best, 

because the data is incomplete" without a contemporaneous 

examination of Smith. According to Dr. Collins, a 

contemporaneous examination typically is the most important 

component of a competency evaluation. 

¶18 On September 14, 2012, the postconviction court 

continued the competency hearing. Smith's trial counsel, 
No. 2013AP1228-CR

14

Attorney Sargent, testified in regard to Smith's competency. 

Attorney Sargent said that he met with Smith approximately seven 

times throughout his representation. Attorney Sargent said he 

never had any reason to doubt Smith's ability to understand the 

proceedings. Attorney Sargent further testified that Smith was 

able to assist in his defense both at trial and sentencing. 

¶19 For example, Attorney Sargent testified that Smith 

denied the allegations of sexual assault, stating that he and 

A.H. had consensual sex in an alley. Therefore, Attorney 

Sargent and Smith agreed to go forward with a consent defense at 

trial. Attorney Sargent and Smith also agreed that Smith would 

not testify at trial because Attorney Sargent advised Smith that 

he "would [not] come off well as a witness to the jury." 

Additionally, Attorney Sargent testified that Smith understood 

and assisted him during discussions of plea negotiations, as 

well as jury selection. Specifically, during jury selection, 

Attorney Sargent informed the circuit court that Smith wanted 

"Juror 17 [to] be struck. It's by his request." The circuit 

court responded, "Right. We talked about that yesterday, and I 

said that that would be fine assuming that all the jurors would 

be back today. It's my understanding they are all here." 

Attorney Sargent then addressed Smith by asking, "I discussed 

that with you; is that correct?" Smith responded, "Yes."

¶20 With respect to sentencing, Attorney Sargent said that 

Smith was very animated and angry, and that he had advised Smith 

to remain calm. He admitted that Smith's sentencing allocution 

had little relevance and was not helpful to the court in 
No. 2013AP1228-CR

15

sentencing. However, he did not view Smith's statements as 

indicating a mental health issue but, rather, an anger issue. 

¶21 On May 2, 2013, the postconviction court rendered its 

decision. In so doing, the postconviction court acknowledged 

the competence and experience of both Doctors Pankiewicz and 

Collins; however, it noted the significant period of time that 

had elapsed and that the doctors' retrospective opinions "could 

not possibly be as solid" as if they had had contemporaneous 

contact with Smith. Additionally, the postconviction court 

noted that Attorney Sargent had approximately 25 years of 

experience and "did not have any reason to question his client's 

competence during the proceedings." Moreover, the 

postconviction court gave credence to trial judge, Jeffrey A. 

Conen's, considerable experience on the bench, that he conducted 

multiple colloquies with Smith, and that he had never raised a 

concern about Smith's competency at trial or sentencing. 

¶22 The postconviction court made the following findings 

with respect to Smith's competency at trial and sentencing:

Dr. Pankiewicz and Dr. Collins, again, I think 

they are both very good doctors. They are both more 

than competent in total, but the competency 

determination, ultimately, is not theirs. It's a 

legal determination. It's not a determination to be 

made by doctors. 

In a nutshell, I do not think that there's a 

basis to vacate the sentence or the judgment of 

conviction, I guess the judgment of conviction first 

or the sentence in this case. I do not believe and do 

not find that Mr. Smith was incompetent at the time of 

his trial and sentencing. I am persuaded by the 

State's argument, the State's brief, which I'm 
No. 2013AP1228-CR

16

adopting, the testimony from Mr. Sargent more than and 

over the testimony from the two doctors. 

The testimony, while I respect it from the two 

doctors, I think is not enough in this case for me to 

believe that the defendant was not competent at the 

time of his trial and sentencing. In fact, I believe 

he was competent at the trial and sentencing. 

I think the testimony from Mr. Sargent, who was 

there, who dealt with the defendant, who met with the 

defendant on multiple times, who sat in court with him 

multiple times, who discussed this case with him 

multiple times, is more persuasive and more relevant 

to me in making this additional determination. 

Again, competency, obviously is a legal decision. 

It's a judicial determination. It's not, as the State 

points out, a medical determination. 

So I'm denying the defense motion. I think they 

have not met their burden.

¶23 On September 16, 2014, the court of appeals reversed 

the postconviction court's decision. State v. Smith, 2014 WI 

App 98, ¶26, 357 Wis. 2d 582, 855 N.W.2d 422. The court of 

appeals purported to apply the following standard of review: 

"'The [postconviction] court's determination of whether there is 

reason to doubt the defendant's competence and order an 

examination is disturbed on appeal only if the [postconviction] 

court exhibited an erroneous exercise of discretion or if the 

[postconviction] court decision was clearly erroneous.'" Id., 

¶19 (alterations in original) (quoting State v. Garfoot, 207 

Wis. 2d 214, 223-24, 558 N.W.2d 626 (1997)). 
No. 2013AP1228-CR

17

¶24 After articulating two different standards of review, 

an erroneous exercise of discretion and clearly erroneous 

decision,10 the court of appeals said:

 

10 We note that it has not been uncommon in reviews of 

competency determinations for courts to narrate the standard of 

review as whether "the trial court exhibited an erroneous 

exercise of discretion or if the trial court decision was 

clearly erroneous," citing State v. Garfoot, 207 Wis. 2d 214, 

223-24, 558 N.W.2d 626 (1997). However, in State v. Byrge, 2000 

WI 101, 237 Wis. 2d 197, 614 N.W.2d 477, we explained that 

Garfoot decided that "competency to stand trial must be reviewed 

under the deferential clearly erroneous standard." Byrge, 237 

Wis. 2d 197, ¶33. 

We note that the cite to Garfoot often is made without 

acknowledging that Garfoot addressed two different 

determinations that have two different standards of review. 

First, Garfoot was concerned with determining whether there was 

"reason to doubt" that Garfoot was competent, such that Wis. 

Stat. § 971.14 is engaged and experts are appointed to evaluate 

him and hold a competency hearing. Garfoot, 207 Wis. 2d at 223-

24. And second, Garfoot was concerned with reviewing whether 

the circuit court's finding on competency was clearly erroneous. 

Id. at 224. 

In State v. McKnight, 65 Wis. 2d 582, 595-96, 223 N.W.2d 

550 (1974) (which is cited in Garfoot), we explained that the 

circuit court has discretion to refuse to conduct a competency 

hearing when defendant does not provide threshold of facts 

sufficient to raise the circuit court's doubt about defendant's 

competency to proceed. Accordingly, in McKnight, we held that 

"reason to doubt" competency is reviewed under the erroneous 

exercise of discretion standard. Id.

(continued)
No. 2013AP1228-CR

18

[T]he standard on review is whether the whole record 

reveals a reason to doubt Smith's competence at trial 

and sentencing. The postconviction court was not the 

same court who observed Smith at trial and sentencing. 

The deference accorded the trial court's competence 

assessment in Garfoot and Byrge does not apply to the 

postconviction court here because the basis for that 

deference does not exist here.

Id., ¶23 (citations omitted). The court of appeals concluded 

that the postconviction court erred when it "weighed more 

heavily the uninformed competence opinion[] of defense counsel 

and the trial court——who knew nothing of Smith's extensive 

mental health history, the DOC records, the jail records or the 

two experts' opinions——and discounted the experts' evaluations." 

Id. Ultimately, the court of appeals concluded that "the 

experts' reports and testimony and the DOC and jail records all 

furnish ample evidence that there is reason to doubt Smith's 

competence at the time of trial and sentencing."11 Id., ¶26. 

 

Case law appears to have conflated two different standards 

of review for two different considerations that bear on 

competency. We write to clarify the correct standard of review 

so that as concerns relative to competency are raised, the 

reviewing court applies an accurate lens that is particularized 

to the type of circuit court decision under review. As we have 

explained, "[u]nder the standard that applies to competency 

determinations, we will not reverse the circuit court's decision 

unless it was clearly erroneous." Byrge, 237 Wis. 2d 197, ¶46 

(citing Garfoot, 207 Wis. 2d at 223-24). Under the standard 

that applies to whether there was "reason to doubt" competency, 

an appellate court should not reverse a circuit court's decision 

unless it erroneously exercised its discretion in refusing to 

conduct a competency hearing. McKnight, 65 Wis. 2d at 595-96. 

11 The court of appeals addressed only Smith's "substantive 

competency" claim. Smith, 357 Wis. 2d 582, ¶18. 
No. 2013AP1228-CR

19

The court of appeals then vacated the judgment of conviction and 

ordered a new trial. Id.

¶25 We granted the State's petition for review. 

II. DISCUSSION

A. Standard of Review

¶26 A competency determination is functionally a factual 

finding. State v. Byrge, 2000 WI 101, ¶33, 237 Wis. 2d 197, 614 

N.W.2d 477. Therefore, we review the circuit court's competency 

determination under a clearly erroneous standard of review that 

is particularized to competency findings. Garfoot, 207 Wis. 2d 

at 224; Byrge, 237 Wis. 2d 197, ¶45.

¶27 In Garfoot, we examined Pickens v. State, 96 Wis. 2d 

549, 292 N.W.2d 601 (1980), overruled, in part, on other grounds 

by State v. Klessig, 211 Wis. 2d 194, 212, 564 N.W.2d 716 (1997) 

(expressly "affirm[ing] the holding in Pickens as still 

controlling on the issue of competency"), wherein we held that 

our review concerning whether a defendant is competent to 

represent him or herself is limited to whether the circuit 

court's determination is "'totally unsupported by the facts 

apparent in the record.'" Garfoot, 207 Wis. 2d at 224 (quoting 

Pickens, 96 Wis. 2d at 570). In Garfoot, we concluded "that the 

same deference should be given to the trial court regarding 

determinations of competence to stand trial as is given for 

determinations of competence to represent oneself." Id. at 225. 

In Byrge, we upheld Garfoot, explaining that, "we . . . do not 

disturb our holding in Garfoot and adhere to the clearly 
No. 2013AP1228-CR

20

erroneous standard for reviewing circuit court determinations in 

competency proceedings." Byrge, 237 Wis. 2d 197, ¶45. 

¶28 We repeatedly have reaffirmed the propositions of both 

Pickens and Garfoot as controlling authority on the standard of 

review applicable to both types of competency determinations; 

namely, competency to proceed pro se and competency to stand 

trial.12 For example, in State v. Imani, 2010 WI 66, ¶19, 326 

Wis. 2d 179, 786 N.W.2d 40, we stated that "a circuit court's 

determination that a defendant is incompetent to proceed pro se 

'will be upheld unless totally unsupported by the facts.'" 

(quoting Pickens, 96 Wis. 2d at 569-70 and citing Garfoot, 207 

Wis. 2d at 224); see also State v. Jackson, 2015 WI App 45, ¶29, 

363 Wis. 2d 484, 867 N.W.2d 814 (reviewing competency to proceed 

pro se determination under "totally unsupported by the facts" 

standard); Dane Cnty. Dep't of Human Servs. v. Susan P.S., 2006 

WI App 100, ¶22, 293 Wis. 2d 279, 715 N.W.2d 692 (same); State 

v. Ruszkiewicz, 2000 WI App 125, ¶38, 237 Wis. 2d 441, 613 

N.W.2d 893 (explicitly applying the clearly erroneous standard 

from Garfoot and Pickens). 

¶29 To summarize, we review a circuit court's competency 

to stand trial determination under the same standard under which 

we review a competency to proceed pro se determination. 

 

12 Of course, we recognize that, in making the determination 

of whether a defendant is competent to proceed pro se, a circuit 

court must consider different proofs than those necessary to 

determining whether a defendant is competent to stand trial. 

State v. Imani, 2010 WI 66, ¶36, 326 Wis. 2d 179, 786 N.W.2d 40. 
No. 2013AP1228-CR

21

Garfoot, 207 Wis. 2d at 225, affirmed by Byrge, 237 Wis. 2d 197, 

¶45. We review a competency to proceed pro se determination and 

uphold that finding unless it is totally unsupported by facts in 

the record. Imani, 326 Wis. 2d 179, ¶19; Pickens, 96 Wis. 2d at 

570; Jackson, 363 Wis. 2d 484, ¶29; Ruszkiewicz, 237 Wis. 2d 

441, ¶38. Accordingly, the necessary corollary is that our 

review of a circuit court's competency to stand trial 

determination is limited to whether that finding is totally 

unsupported by facts in the record and, therefore, is clearly 

erroneous.13 Byrge, 237 Wis. 2d 197, ¶33; Garfoot, 207 Wis. 2d 

at 224-25.

¶30 Retrospective competency determinations are inquiries 

of the facts, but as they existed at a previous time. See 

generally State v. Johnson, 133 Wis. 2d 207, 224-25, 395 N.W.2d 

176 (1986). Accordingly, because retrospective determinations 

of competency are factual determinations, they, too, are upheld 

unless totally unsupported by facts in the record and, 

therefore, clearly erroneous. See Byrge, 237 Wis. 2d 197, ¶33; 

Garfoot, 207 Wis. 2d at 224-25; Wis. Stat. § 805.17(2) 

(explaining that "[f]indings of facts shall not be set aside 

 

13 Although we have not had occasion since Byrge and Garfoot

to apply this standard of review to a circuit court's 

determination of a defendant's competency to stand trial, we 

note that the court of appeals has done so. See, e.g., State v. 

Dorman, Nos. 2013AP782-CR, 2013AP783-CR, 2013AP784-CR, 

2013AP785-CR and 2013AP786-CR, unpublished slip op., ¶5 (Ct. 

App. Aug. 21, 2014); State v. Colyer, No. 2012AP1090-CR, 

unpublished slip op., ¶6 (Ct. App. Aug. 27, 2013). 
No. 2013AP1228-CR

22

unless clearly erroneous, and due regard shall be given to the 

opportunity of the trial court to judge the credibility of the 

witnesses"). 

¶31 We have explained our rationale for deferring to the 

circuit court's findings in regard to competency of a defendant: 

The trial court is in the best position to make 

decisions that require conflicting evidence to be 

weighed. Although the court must ultimately apply a 

legal test, its determination is functionally a 

factual one[.] 

The trial court's superior ability to observe the 

defendant and the other evidence presented requires 

deference to the trial court's decision that a 

defendant is or is not competent to stand trial. Only 

the trial court has the opportunity to view the 

defendant. Only the trial court can judge the 

credibility of witnesses who testify at the competency 

hearing.

Garfoot, 207 Wis. 2d at 223. 

¶32 In Smith's case, the court of appeals noted the 

clearly erroneous standard of review, but it nevertheless 

concluded that deference to the postconviction court's finding 

was not warranted because "[t]he postconviction court was not 

the same court [that] observed Smith at trial and sentencing." 

Smith, 357 Wis. 2d 582, ¶23. 

¶33 However, here, the postconviction court held an 

evidentiary competency hearing, where it had the opportunity to 

elicit and appraise testimony from Dr. Pankiewicz, Dr. Collins

and Attorney Sargent. Moreover, a retrospective competency 

determination at a postconviction hearing is nonetheless, 
No. 2013AP1228-CR

23

functionally, a factual finding. See Byrge, 237 Wis. 2d 197, 

¶33. 

¶34 Therefore, presented with conflicting evidence from 

the doctors and Attorney Sargent, the postconviction court was 

the only court in the position to weigh the evidence, assess 

credibility, and reach a determination regarding Smith's 

retrospective competency. Accordingly, our review is limited to 

whether the postconviction court's finding that Smith was 

competent at trial and sentencing is totally unsupported by 

facts in the record and, therefore, clearly erroneous. Id., 

¶33; Garfoot, 207 Wis. 2d at 224-25. 

B. General Competency Principles 

¶35 "It has long been settled that due process of law 

prohibits the conviction of an incompetent defendant." State ex 

rel. Vanderbeke v. Endicott, 210 Wis. 2d 502, 512, 563 N.W.2d 

883 (1997). "[T]he due process test for determining competency 

considers whether the defendant: (1) 'has sufficient present 

ability to consult' with his or her lawyer 'with a reasonable 

degree of rational understanding;' and (2) 'has a rational as 

well as factual understanding of the proceedings.'" Byrge, 237 

Wis. 2d 197, ¶27 (quoting Dusky v. United States, 362 U.S. 402, 

402 (1960)). "This two-part 'understand-and-assist' test 

constitutes the core of the competency-to-stand-trial analysis." 

Id., ¶28.

¶36 The "understand-and-assist" test is codified at Wis. 

Stat. § 971.13(1), providing that "[n]o person who lacks 

substantial mental capacity to understand the proceedings or 
No. 2013AP1228-CR

24

assist in his or her own defense may be tried, convicted or 

sentenced for the commission of an offense so long as the 

incapacity endures." Additionally, Wis. Stat. § 971.14 sets 

forth the procedures for determining whether a defendant is 

competent to stand trial and be sentenced. See id., ¶29 ("A 

court 'shall proceed under [the provisions of § 971.14] whenever 

there is reason to doubt a defendant's competency to proceed.'" 

(alteration in original) (quoting Wis. Stat. § 971.14(1r)(a)). 

Where there is a reason to doubt competency, the circuit court 

must appoint at least one examiner to aid in the competency 

determination, as well as hold a competency hearing where the 

ultimate determination will be made. Id., ¶30. 

¶37 Importantly, the inquiry whether a defendant is 

competent to stand trial is a judicial, not a medical, 

determination. Id., ¶31. "Although a defendant may have a 

history of psychiatric illness, a medical condition does not 

necessarily render the defendant incompetent to stand trial." 

Id. "Elaborate diagnoses or elaborate psychiatric evaluations 

directed to the ultimate treatment of the subject are of little 

use to a court in determining [whether a defendant is 

competent]." State ex rel. Haskins v. Cnty. Courts of Dodge & 

Milwaukee Counties (Haskins I), 62 Wis. 2d 250, 265, 214 N.W.2d 

575 (1974). Notwithstanding mental illness, many defendants are 

able to "interact adequately with defense counsel and possess a 

sufficient understanding of the proceedings." Rodney J. Uphoff, 

The Role of the Criminal Defense Lawyer in Representing the 

Mentally Impaired Defendant: Zealous Advocate or Officer of the 
No. 2013AP1228-CR

25

Court?, 88 Wis. L. Rev. 65, 70 (1988). Consequently, the 

circuit court should not make a competency determination simply 

"on the basis of rubber stamping the report of a psychiatrist." 

Haskins I, 62 Wis. 2d at 264. Rather, the circuit court must 

"weigh evidence that the defendant is competent against evidence 

that he or she is not." Garfoot, 207 Wis. 2d at 222-23. 

Ultimately, the circuit court's determination is concerned with 

the defendant's "present mental capacity to understand and 

assist at the time of the proceedings." Byrge, 237 Wis. 2d 197, 

¶31 (emphasis added).

¶38 As we recognized in Johnson, such a determination is 

particularly difficult, although not impossible, when it is 

conducted retrospectively. Johnson, 133 Wis. 2d at 224-25. As 

a defendant's competency may fluctuate over time, 

retrospectively determining what a defendant's ability to 

understand and assist in his defense was in the past is 

"inherently difficult." Id. at 224; Indiana v. Edwards, 554 

U.S. 164, 175 (2008) (recognizing that mental illness and 

competency present complex issues that vary in degree, change 

over time, and "interfere[] with an individual's functioning at 

different times in different ways."); 9 Christine M. Wiseman & 

Michael Tobin, Criminal Practice and Procedure § 17:12 (2d ed. 

2008) (explaining that a competency determination is distinct 

from a defendant's mental health history and that competency may 

be affected by treatment and medication of an on-going mental 

health concern). 
No. 2013AP1228-CR

26

¶39 Bearing these general principles in mind, we will 

review the postconviction court's retrospective competency 

determination under the proper deferential standard of review.14 

C. Theories of Relief 

¶40 As a preliminary matter, we note that Smith moved to 

vacate the judgment of conviction, and presented three theories 

to the postconviction court, all relating to whether he was 

competent at the time of trial and sentencing. First, Smith

alleged a "procedural competency" claim, arguing that, at the 

time of trial and sentencing, the circuit court had reason to 

doubt his competency and, therefore, should have sua sponte held 

a competency hearing under Wis. Stat. § 971.14. Second, Smith 

alleged an ineffective assistance of counsel claim, arguing that 

trial counsel, Attorney Sargent, had reason to doubt his 

competency and, therefore, should have moved for a competency 

hearing pursuant to § 971.14. Third, Smith alleged a 

"substantive competency" claim, simply arguing that he was 

convicted and sentenced while incompetent in violation of due 

process.15

 

14 We note that at the postconviction hearing, Smith's 

attorney asserted that he had the burden to prove that Smith was 

incompetent at trial and sentencing. The State agreed. The 

court of appeals did not address the burden of proof, and 

neither party briefed the burden of proof. Accordingly, we do 

not address it. 

15 To our knowledge, Wisconsin courts previously have not 

characterized claims as "substantive competency" or "procedural 

competency." However, as Smith characterizes them in this 

manner, we address them as such. 
No. 2013AP1228-CR

27

¶41 Although Smith reasserts these three claims to us in 

his briefing, all of these claims are not properly before us, as 

they were raised in neither the State's petition for review nor 

Smith's response to the State's petition for review. Jankee v. 

Clark Cnty., 2000 WI 64, ¶7, 235 Wis. 2d 700, 612 N.W.2d 297. 

¶42 However, even if Smith's claims were properly before

us, Smith and the court of appeals mistakenly applied an 

incorrect standard of review and employed an erroneous remedy. 

To explain further, Smith's "procedural competency" and 

ineffective assistance claims both are grounded in his argument 

that the circuit court and trial counsel had reason to doubt 

Smith's competency, and because no hearing was held, the circuit 

court erred. 

¶43 In regard to holding competency hearings at the trial 

stage, we have repeatedly noted that before competency 

proceedings are required, evidence giving rise to a reason to 

doubt competency must be presented to the circuit court. State 

v. McKnight, 65 Wis. 2d 582, 595, 223 N.W.2d 550 (1974). In 

addition, whether there is evidence that does give rise to a 

reason to doubt a defendant's competency is a question left to 

the sound discretion of the circuit court. Id. at 596. 

¶44 On appeal, where the record reveals doubt about a 

defendant's competency at the time of trial and sentencing, the 

remedy is not to vacate the judgment of conviction and order a 

new trial. Rather, the remedy is a remand to determine whether 

a meaningful retrospective competency hearing can be held. 

State v. Weber, 146 Wis. 2d 817, 823 n.3, 433 N.W.2d 583 (Ct. 
No. 2013AP1228-CR

28

App. 1988). In such an instance, if a meaningful, retrospective 

competency hearing can be held, then the circuit court must hold 

the hearing. State v. Haskins (Haskins II), 139 Wis. 2d 257, 

267, 407 N.W.2d 309 (Ct. App. 1987) (citing Johnson, 133 Wis. 2d 

207, 226-27). If a circuit court determines at a retrospective 

competency hearing that the defendant was competent at the time 

of trial, the judgment of conviction stands. Id. However, if 

after a competency hearing is held, the circuit court finds that 

the defendant was not competent when he was tried, only then is 

it appropriate to vacate the judgment of conviction and order a 

new trial. Id. 

¶45 Therefore, even if we were to address Smith's 

"procedural competency" and ineffective assistance claims, the 

appropriate remedy for those claims is a retrospective 

competency hearing to determine whether Smith was competent at 

the time of trial and sentencing. Of course, Smith already has 

been afforded a retrospective competency hearing by the 

postconviction court that determined Smith was competent at the 

time of trial and sentencing. Consequently, Smith has been 

afforded the available relief under his "procedural competency"

and ineffective assistance claims. 

¶46 Furthermore, in granting relief based on Smith's 

"substantive competency" claim, the court of appeals stated that 

the record "furnish[ed] ample evidence that there is reason to 

doubt Smith's competence at the time of trial and sentencing." 

Smith, 357 Wis. 2d 582, ¶26. Based on this conclusion, reached 

after applying an incorrect standard of review, the court of 
No. 2013AP1228-CR

29

appeals vacated the judgment of conviction and granted a new 

trial. Id. As set forth above, and fully in note 10, supra, 

where the record reveals a reason to doubt competency, the 

remedy is a retrospective competency hearing, not a new trial. 

A determination that the defendant was incompetent is a 

necessary finding before a new trial may be ordered. Haskins 

II, 139 Wis. 2d at 267. 

¶47 In Smith's case, the postconviction court held a 

retrospective competency hearing that resulted in its finding 

that Smith was competent at the time of trial and sentencing. 

Therefore, the issue appropriate for appellate review is whether 

that factual finding of the postconviction court is totally 

unsupported by facts in the record and, therefore, clearly 

erroneous. Byrge, 237 Wis. 2d 197, ¶33 (citing Garfoot, 207 

Wis. 2d at 225). 

¶48 We now turn to our review of the postconviction 

court's competency determination under the proper standard of 

review. 

D. Application 

¶49 As set forth above, contrary to the court of appeals' 

approach, our review of the postconviction court's competency 

determination is limited to whether the postconviction court's 

finding that Smith was competent at trial and sentencing is 

clearly erroneous. Id. We have explained that, particularized 

to competency determinations, a competency finding is clearly 

erroneous when it is totally unsupported by facts in the record. 

Garfoot, 207 Wis. 2d at 224. We conclude that the 
No. 2013AP1228-CR

30

postconviction court's finding of competency is supported by 

facts of record and, therefore, it is not clearly erroneous.

¶50 The postconviction court heard testimony from Dr. 

Collins and Dr. Wasielewski, both opining that Smith was 

incompetent at the time of trial and sentencing, which occurred 

in September 2009 and December 2009, over two years prior to the 

doctors' retrospective competency determinations. The doctors' 

evaluations relied heavily on Smith's jail records that 

documented his mental health conditions and behavior near the 

time that he was tried and sentenced. The doctors noted that 

Smith's sentencing allocution similarly tracked some of the 

rambling talk that the jail records indicated. According to Dr. 

Collins, Smith was likely "actively symptomatic" at trial and 

sentencing. 

¶51 The postconviction court also heard testimony from 

Attorney Sargent, who testified that at no point during his 

representation did he question Smith's ability to understand and 

assist in his defense. Attorney Sargent gave various examples 

where he discussed defense strategy with Smith. During numerous 

interactions, Attorney Sargent observed that Smith was able to 

understand and assist in his defense, including plea 

negotiations, jury selection, and whether to testify. The 

record also shows that Smith was able to conduct a coherent and 

responsive colloquy with the circuit court at both the MirandaGoodchild hearing, and when he waived his right to testify at 

trial. Particularly with respect to waiving his right to 

testify, Smith showed understanding of the proceedings and the 
No. 2013AP1228-CR

31

consequences of his choice, as well as the ability to 

appropriately respond using more than mere "yes" or "no" 

answers. The record also reflects Smith's ability to confer 

with Attorney Sargent regarding jury selection. 

¶52 In its decision, the postconviction court correctly 

noted that, although the doctors were well-respected and 

competent, the ultimate finding of competency is a judicial 

determination rather than a medical one. Stated otherwise, a 

defendant can have mental health concerns and nevertheless be 

competent to stand trial and be sentenced, so long as he can 

understand the proceedings and assist counsel. Byrge, 237 

Wis. 2d 197, ¶31.

¶53 The postconviction court stated that the doctors' 

retrospective evaluations were not convincing enough to 

establish that Smith had been incompetent at the time of trial 

and sentencing. Instead, the postconviction court believed 

Attorney Sargent's testimony that Smith was able to understand 

and assist in his defense. The postconviction court further 

relied on the circuit court's interaction with Smith during 

multiple colloquies, which did not give rise to concern about 

Smith's competency. Accordingly, the postconviction court made 

the factual finding that Smith had been competent at the time of 

trial and sentencing. 

¶54 In reversing the postconviction court, the court of 

appeals noted that the postconviction court rejected experts'

testimony, notwithstanding its acknowledgement of their 

professional qualifications. Smith, 357 Wis. 2d 582, ¶24. The 
No. 2013AP1228-CR

32

court of appeals emphasized that Attorney Sargent was not aware 

of Smith's jail records or the mental health history and bizarre 

behavior that they revealed. Id., ¶25. Therefore, according to 

the court of appeals, the experts' testimony was more convincing 

than Attorney Sargent's testimony. Id.

¶55 We conclude that the decision of the court of appeals 

is grounded in an improper weighing of evidence. The 

postconviction court was not required to accept the testimony of 

experts. Byrge, 237 Wis. 2d 197, ¶48 ("Elaborate psychiatric 

evaluations sometimes introduce a clinical diagnosis that may 

not speak to competency to proceed."). Rather than 

rubberstamping experts' retrospective evaluations, the 

postconviction court weighed evidence and ultimately was 

convinced by Attorney Sargent's testimony. See Medina v. 

California, 505 U.S. 437, 450 (1992) ("[D]efense counsel will 

often have the best-informed view of the defendant's ability to 

participate in his defense."). 

¶56 The testimony at the competency hearing could have 

resulted in two different findings: Smith was competent or not 

competent at the time of trial and sentencing. We review the 

record for evidence that supports the postconviction court's 

finding. See Garfoot, 207 Wis. 2d at 224. As set forth above, 

the record does contain evidence that supports the 

postconviction court's finding that Smith was competent at trial 

and sentencing. Accordingly, the postconviction court's 

competency determination is not clearly erroneous.
No. 2013AP1228-CR

33

¶57 Furthermore, an appellate court is not at liberty to 

disturb a postconviction court's factual finding of competency 

simply because it would have weighed the evidence differently. 

See Byrge, 237 Wis. 2d 197, ¶33. Therefore, we conclude that 

the court of appeals erred when it weighed the evidence and 

failed to give proper deference to the postconviction court's 

competency finding.

III. CONCLUSION

¶58 In light of the foregoing, we conclude that the court 

of appeals failed to apply the clearly erroneous standard of 

review to the postconviction court's finding of competency and 

improperly weighed evidence rather than giving deference to the 

postconviction court's finding. Reviewing the evidence under 

the proper standard, we conclude that the postconviction court's 

finding that Smith was competent to stand trial and be sentenced 

is not clearly erroneous. Accordingly, we reverse the decision 

of the court of appeals. 

By the Court.—The decision of the court of appeals is 

reversed.

¶59 REBECCA G. BRADLEY, J., did not participate.
No. 2013AP1228-CR.akz

1

¶60 ANNETTE KINGSLAND ZIEGLER, J. (concurring). I 

concur in the court's conclusion that the court of appeals 

"failed to apply the clearly erroneous standard of review to the 

postconviction court's finding of competency and improperly 

weighed evidence rather than giving deference to the 

postconviction court's finding." Majority op., ¶58. I further 

agree that that the postconviction court's finding of competency 

is reviewed under the clearly erroneous standard of review, and 

that the postconviction court's competency determination is not 

clearly erroneous. See id.

¶61 However, I would not decide the question of the proper 

formulation of the clearly erroneous standard in this specific 

context. As the opinion of the court makes clear, we have 

stated in prior cases that the applicable formulation of the 

clearly erroneous standard with respect to competency to proceed 

pro se and competency to stand trial determinations is whether 

the circuit court's determination is "totally unsupported by the 

facts apparent in the record." Id., ¶27-28 (citations omitted). 

It is less clear, however, that this "particularized" clearly 

erroneous standard, id., ¶26, is applicable in cases involving 

review of retrospective competency determinations, pursuant to 

which a postconviction court reviews proceedings held before the 

trial court. 

¶62 This question has not been briefed by the parties or 

argued before this court. Resolution of the question is 

unnecessary because the circuit court's decision was not clearly 

erroneous, whether reviewed under the "totally unsupported" 
No. 2013AP1228-CR.akz

2

formulation set forth in the opinion of the court or reviewed 

under the formulation set forth in the dissent. The court may 

well be correct in applying the "totally unsupported" 

formulation of the clearly erroneous standard to retrospective 

competency determinations, but this case is not the setting in 

which to decide that question.

¶63 For the foregoing reasons, I respectfully concur.
No. 2013AP1228-CR.ssa

1

¶64 SHIRLEY S. ABRAHAMSON, J. (dissenting). At issue in 

this case is what standard of review an appellate court applies 

in reviewing a circuit court's retrospective evaluation at a 

postconviction hearing of a criminal defendant's competency to 

stand trial. 

¶65 The majority opinion sets forth the facts and 

procedural history of the instant case at length. To clarify 

the procedural history of the instant case, I have included as 

Attachment A an outline of the relevant procedural history. 

¶66 The majority opinion, the court of appeals, and I 

agree that the "clearly erroneous" standard of review applies to 

a circuit court's retrospective evaluation of a criminal 

defendant's competency to stand trial. Two cases apply this 

standard of review to a circuit court's evaluation of a 

defendant's competency to stand trial: State v. Byrge, 2000 WI 

101, ¶4, 237 Wis. 2d 197, 614 N.W.2d 477; and State v. Garfoot, 

207 Wis. 2d 214, 216-17, 558 N.W.2d 626 (1997).

1

 

1 In State v. Byrge, 2000 WI 101, 237 Wis. 2d 197, 614 

N.W.2d 477, the court held that a circuit court's findings 

regarding competency to stand trial "will not be upset unless 

they are clearly erroneous because a competency hearing presents 

a unique category of inquiry in which the circuit court is in 

the best position to apply the law to the facts." Byrge, 237 

Wis. 2d 197, ¶4.

In State v. Garfoot, 207 Wis. 2d 214, 558 N.W.2d 626 

(1997), this court held that "[b]ecause the trial court is in 

the best position to observe the witnesses and the defendant and 

to weigh the credible evidence on both sides, appellate courts 

should only reverse . . . determinations [of competency to stand 

trial] when they are clearly erroneous." Garfoot, 207 

Wis. 2d at 225.
No. 2013AP1228-CR.ssa

2

¶67 The difference between the court of appeals opinion 

and the majority opinion revolves around the formulation of the 

"clearly erroneous" standard. The court of appeals correctly 

stated: "A finding is clearly erroneous when although there is 

evidence to support it, the reviewing court on the entire 

evidence is left with the definite and firm conviction that a 

mistake has been committed."2 

¶68 This formulation of the "clearly erroneous" standard 

and a closely related formulation stating that findings of fact 

are clearly erroneous when "'they are against the great weight 

and clear preponderance of the evidence'" are deeply rooted in 

Wisconsin law and are applied in a variety of contexts. See

Hon. Kitty Brennan, Standards of Appellate Review, § VI.A.1.a., 

in Michael S. Heffernan, Appellate Practice and Procedure in 

Wisconsin (6th ed. 2015) (citing cases). 

¶69 The court has applied the "great weight and clear 

preponderance" formulation in, for example, Phelps v. Physicians 

Insurance Co., 2009 WI 74, ¶39, 319 Wis. 2d 1, 768 N.W.2d 615, a 

tort case authored by Justice Roggensack; State v. Arias, 2008 

WI 84, ¶12, 311 Wis. 2d 358, 752 N.W.2d 748, a Fourth Amendment 

search and seizure case also authored by Justice Roggensack; and 

J.A.L. v. State, 162 Wis. 2d 940, 966, 471 N.W.2d 493 (1991), a 

 

2 State v. Smith, 2014 WI App 98, ¶19, 357 Wis. 2d 582, 855 

N.W.2d 422 (quotation omitted); see also Anderson v. City of 

Bessemer City, 470 U.S. 564, 573 (1986) (quoting a virtually 

identical formulation of the "clearly erroneous" standard).
No. 2013AP1228-CR.ssa

3

case reviewing a juvenile court's determination of mental 

illness under Wis. Stat. § 48.18(5) (1989-90). 

¶70 Nonetheless, the majority opinion, without the support 

of briefs or oral argument by either the State or the defendant 

regarding the formulation of the "clearly erroneous" standard, 

breaks new ground, while pretending to apply precedent. The 

majority opinion sets forth a new articulation of the "clearly 

erroneous" standard. It explains that our review of a circuit 

court's finding regarding an accused's competency to stand trial 

"is limited to whether that finding is totally unsupported by 

facts in the record and, therefore, is clearly erroneous."3 

¶71 I write separately to make two points. 

¶72 First, the majority opinion's "totally unsupported by 

the facts" formulation of the "clearly erroneous" standard was 

first referenced in the competency to stand trial context in 

State v. Garfoot, 207 Wis. 2d 214, 224, 558 N.W.2d 626 (1997). 

This standard is derived from a distinct context——a circuit 

court's determination of a defendant's competency to defend him 

or herself pro se. Since Garfoot, this court has not applied 

the "totally unsupported by the facts" standard in reviewing a 

circuit court's determination of a defendant's competency to 

stand trial. 

 

3 Majority op., ¶29 (citing Byrge, 237 Wis. 2d 197, ¶33; 

Garfoot, 207 Wis. 2d at 224-25); see also majority op., ¶30 

("[R]etrospective determinations of competency . . . , too, are 

upheld unless totally unsupported by facts in the record and, 

therefore, clearly erroneous.") (citations omitted). 
No. 2013AP1228-CR.ssa

4

¶73 Moreover, not only is the majority opinion's 

formulation of "clearly erroneous" inconsistent with other cases 

articulating the "clearly erroneous" standard of review, but the 

majority opinion also grants far too much deference to a 

postconviction circuit court's retrospective competency 

determinations. A postconviction court conducting a 

retrospective competency determination, unlike the trial court, 

does not have the opportunity to observe the defendant at trial. 

¶74 Accordingly, I would adhere to our existing, wellsettled articulations of the "clearly erroneous" standard in 

reviewing the postconviction court's evaluation of Smith's 

competency to stand trial. 

¶75 Second, applying the accepted formulations of the 

"clearly erroneous" standard of review to the facts of the 

instant case, I am left with a "definite and firm conviction" 

that the postconviction court made a mistake in finding the 

defendant, Smith, competent to stand trial. The postconviction 

court's conclusion is contrary to the "great weight and clear 

preponderance of the evidence." 

¶76 As a result, I would affirm the court of appeals and 

remand the matter to the circuit court to vacate Smith's 

conviction and sentence and order a new trial. 

¶77 For these reasons, I dissent and write separately. 

I

¶78 I start with the basics. Trial of an incompetent 

criminal defendant deprives the defendant of his or her due 

process right to a fair trial and violates state law. See Wis. 
No. 2013AP1228-CR.ssa

5

Stat. § 971.13(1);4 State v. Byrge, 2000 WI 101, ¶¶27-28, 237 

Wis. 2d 197, 614 N.W.2d 477. A challenge to competency to stand 

trial cannot be waived. State v. Johnson, 133 Wis. 2d 207, 218 

n.1, 395 N.W.2d 176 (1986). 

¶79 Although the majority opinion purports to apply the 

"clearly erroneous" standard adopted in Garfoot and Byrge in 

reviewing the postconviction court's determination of Smith's 

competency to stand trial,

5 the majority opinion verbalizes a new 

articulation of "clearly erroneous": A competency determination 

is "clearly erroneous," states the majority opinion, if it is 

"totally unsupported by facts in the record."6 

¶80 This articulation of the "clearly erroneous" standard 

is significantly flawed. 

¶81 First, the majority opinion relies on Garfoot as the 

source of its articulation of the "clearly erroneous" standard. 

This reliance is misguided. 

¶82 Garfoot invoked the "totally unsupported" language 

from Pickens v. State, 96 Wis. 2d 549, 292 N.W.2d 601 (1980), a 

very different case than Garfoot, Byrge, or the instant case. 

 

4 Wisconsin Stat. § 971.13(1) provides: "No person who 

lacks substantial mental capacity to understand the proceedings 

or assist in his or her own defense may be tried, convicted or 

sentenced for the commission of an offense so long as the 

incapacity endures." 

5 See majority op., ¶26.

6 Majority op., ¶29 (citing Garfoot, 207 Wis. 2d 214, 224)

(emphasis added). 
No. 2013AP1228-CR.ssa

6

¶83 In Pickens, the court reviewed a trial judge's 

determination of an accused's competency to represent himself at 

trial. Pickens was not a competence to stand trial case. 

Rather, the issue in Pickens was the defendant's competence to 

represent himself at trial.7 Competence to represent oneself at 

trial and competence to stand trial are distinct inquiries.8

¶84 The Pickens court held that whether the accused "is or 

is not competent to represent himself will be upheld unless 

totally unsupported by the facts apparent in the record." 

Pickens, 96 Wis. 2d at 570. Pickens offered no citation or 

authority supporting its formulation of the standard of review. 

¶85 Although the Garfoot court stated that the Pickens

standard is "essentially a 'clearly erroneous' standard of 

review," and that "the same deference should be given to the 

trial court regarding determinations of competence to stand 

trial as is given for determinations of competence to represent 

oneself,"9 this court has not applied the Pickens formulation in 

cases addressing the issue of a defendant's competence to stand 

trial since Garfoot. 

¶86 For instance, in Byrge, a competence to stand trial 

case that followed soon after Garfoot, the court did not apply 

 

7 See Pickens, 96 Wis. 2d at 568-69. 

8 See Pickens, 96 Wis. 2d at 567 ("[C]ompetency to stand 

trial is not the same as competency to proceed pro se . . . ."). 

9 Garfoot, 207 Wis. 2d at 224-25. 
No. 2013AP1228-CR.ssa

7

the Pickens "totally unsupported by the facts apparent in the 

record" standard.10 

¶87 In sum, the formulation——"totally unsupported by the 

facts apparent in the record"——derived from Pickens is applied 

almost exclusively in cases addressing a defendant's competency 

to defend him or herself at trial.11 

¶88 One unsupported sentence in Garfoot, taken out of 

context, is the majority opinion's sole support for its 

formulation of the "clearly erroneous" standard. 

¶89 Second, as I stated previously, the majority opinion's 

"totally unsupported by facts in the record" formulation of the 

"clearly erroneous" standard is inconsistent with numerous 

Wisconsin cases that apply the "clearly erroneous" standard. 

 

10 See generally Byrge, 237 Wis. 2d 197. 

11 For cases reviewing circuit court determinations 

regarding a defendant's competency to represent him or herself 

at trial under the Pickens formulation, see, for example, State 

v. Imani, 2010 WI 66, ¶19, 326 Wis. 2d 179, 786 N.W.2d 40; State 

v. Brown, No. 2015AP522-CR, unpublished slip op., ¶59 (Wis. Ct. 

App. Oct. 9, 2015); State v. Mason, No. 2013AP573-CR, 

unpublished slip op., ¶6 (Wis. Ct. App. Jan. 14, 2014); State v. 

Dehler, Nos. 2009AP1500-CR & 2009AP1501-CR, unpublished slip 

op., ¶16 (Wis. Ct. App. Aug. 10, 2010); State v. Ruszkiewicz, 

2000 WI App 125, ¶38, 237 Wis. 2d 441, 613 N.W.2d 893. 

The only cases I could find applying the "totally 

unsupported by the facts" Pickens formulation in reviewing 

determinations of a defendant's competency to stand trial or to 

assist in postconviction proceedings appear to be State v. 

Dorman, Nos. 2013AP782-86-CR, unpublished slip op., ¶5 (Wis. Ct. 

App. Aug. 21, 2014); State v. Colyer, No. 2012AP1090-CR, 

unpublished slip op., ¶6 (Wis. Ct. App. Aug. 27, 2013), and 

State v. Meeks, 2002 WI App 65, ¶10, 251 Wis. 2d 361, 643 

N.W.2d 526, which was reversed on other grounds in State v. 

Meeks, 2003 WI 104, 263 Wis. 2d 794, 666 N.W.2d 859. 
No. 2013AP1228-CR.ssa

8

¶90 Numerous Wisconsin cases conclude that a finding of 

fact is clearly erroneous when "it is against the great weight 

and clear preponderance of the evidence." See, e.g., Phelps v. 

Phys. Ins. Co., 2009 WI 74, ¶39, 319 Wis. 2d 1, 768 N.W.2d 615 

(Roggensack, J., majority) (internal quotation marks omitted) 

(reviewing a trial court's determination regarding the 

employment status of a medical resident under this formulation 

of the "clearly erroneous" standard); State v. Arias, 2008 WI 

84, ¶12, 311 Wis. 2d 358, 752 N.W.2d 748 (Roggensack, J., 

majority) (reviewing circuit court findings of fact regarding a 

search and seizure); J.A.L. v. State, 162 Wis. 2d 940, 966, 471 

N.W.2d 493 (1991) (reviewing a juvenile court's determination of 

mental illness under Wis. Stat. § 48.18(5) (1989-90)). 

¶91 These cases demonstrate that a finding of fact may be 

clearly erroneous even when there is evidence to support the 

finding. 

¶92 Third, the United States Supreme Court has analyzed 

the "clearly erroneous" standard. It has adopted in United 

States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948), a similar 

formulation of the "clearly erroneous" standard that Wisconsin 

case law has adopted and that I espouse in this dissent. 

¶93 The United States Supreme Court stated: "A finding is 

'clearly erroneous' when although there is evidence to support 

it, the reviewing court on the entire evidence is left with the 

definite and firm conviction that a mistake has been committed." 

Gypsum, 333 U.S. at 395 (footnotes omitted). 
No. 2013AP1228-CR.ssa

9

¶94 The Gypsum Court relied on Federal Rule of Civil 

Procedure 52(a), which provides that reviewing courts must not 

overturn factual findings unless clearly erroneous and must give 

due regard to the opportunity of the trial court to assess 

witness credibility. 

¶95 Federal Rule of Civil Procedure 52(a) is nearly 

identical to Wis. Stat. § 805.17(2), which provides in relevant 

part: "Findings of fact shall not be set aside unless clearly 

erroneous, and due regard shall be given to the opportunity of 

the trial court to judge the credibility of the witnesses." 

¶96 Given the similarities between Federal Rule of Civil 

Procedure 52(a) and Wis. Stat. § 805.17(2), a United States 

Supreme Court case, such as Gypsum, interpreting the "clearly 

erroneous" standard is instructive. See Rao v. WMA Secs., Inc., 

2008 WI 73, ¶47, 310 Wis. 2d 623, 752 N.W.2d 220 ("Because the 

Wisconsin rules . . . mirror the federal rules, federal law is 

also instructive in interpreting the Wisconsin rules.").

¶97 Under United States Supreme Court (and Wisconsin) 

precedent, a finding of fact is clearly erroneous even when 

there is evidence to support the finding, if an appellate court

"on the entire evidence is left with the definite and firm 

conviction that a mistake has been committed."12 

 

12 United States v. U.S. Gypsum Co., 333 U.S. 364, 395 

(1948); see also Anderson v. City of Bessemer City, 470 

U.S. 564, 573 (1986) (quoting Gypsum, 333 U.S. at 395). 
No. 2013AP1228-CR.ssa

10

¶98 Fourth and finally, both Garfoot and Byrge dealt with 

evaluations of competency to stand trial made prior to trial.13 

These fact situations justify greater deference to trial court 

findings regarding a defendant's competency to stand trial than 

is justified when a postconviction court (different than the 

trial court) conducts a retrospective evaluation of a 

defendant's competency to stand trial. 

¶99 As the court of appeals noted in the instant case, in 

Garfoot and Byrge this court contended that deference to the 

circuit court's competency determination was warranted because 

the trial court had superior ability to observe the defendant 

and appraise witness credibility and demeanor.14 These 

considerations are absent or significantly weaker when a 

postconviction court (different than the trial court) conducts a 

retrospective evaluation of a defendant's competency to stand 

trial.15 

¶100 In sum, the majority opinion's conclusion that a 

circuit court's finding regarding a defendant's competency to 

 

13 See Garfoot, 207 Wis. 2d at 217; Byrge, 237 Wis. 2d 197, 

¶13. 

14 See Byrge, 237 Wis. 2d 197, ¶75 ("[A] competency hearing 

presents a unique category of inquiry in which the circuit court 

is in the best position to appraise witness credibility and 

demeanor and therefore to apply the law to the facts."); 

Garfoot, 207 Wis. 2d at 225 ("Because the trial court is in the 

best position to observe the witnesses and the defendant and to 

weigh the credible evidence on both sides, appellate courts 

should only reverse such determinations when they are clearly 

erroneous.") (citing Wis. Stat. § 805.17(2)). 

15 Smith, 357 Wis. 2d 582, ¶23. 
No. 2013AP1228-CR.ssa

11

stand trial should be upheld so long as it is not "totally 

unsupported" by facts in the record does not comport with 

Wisconsin or United States Supreme Court precedent, and is an 

unreasonable interpretation of the "clearly erroneous" standard 

of review. According to the majority opinion, a circuit court's 

determination of competency to stand trial would survive appeal 

even in the face of overwhelming contrary evidence and even in 

circumstances such as those in the present case in which the 

postconviction court stands in little better position than an 

appellate court in determining the defendant's competency at a 

point in time several years prior. 

¶101 Accordingly, I disagree with the majority opinion's 

formulation of the "clearly erroneous" standard of review. I 

conclude that a circuit court's retrospective determination of a 

defendant's competency to stand trial is clearly erroneous when, 

"although there is evidence to support [the circuit court's 

conclusion], the reviewing court on the entire evidence is left 

with the definite and firm conviction that a mistake has been 

committed," or when the postconviction court's finding is 

contrary to the "great weight or clear preponderance of the 

evidence."16 

II

 

16 Phelps v. Phys. Ins. Co., 2009 WI 74, ¶39, 319 Wis. 2d 1, 

768 N.W.2d 615 (quotation omitted); Smith, 357 Wis. 2d 582, ¶19 

(quotation omitted).
No. 2013AP1228-CR.ssa

12

¶102 I conclude, as did the court of appeals, that the 

postconviction court erred as a matter of law in finding that 

Smith was competent to stand trial.17 

¶103 The postconviction court reached its decision based on 

two errors of law: 

(1) The postconviction court was skeptical of 

retrospective competency determinations. Yet 

retrospective competency evaluations are wellestablished in Wisconsin law. 

(2) The postconviction court did not consider the medical 

evidence presented by the medical experts. The 

postconviction court seemed to rely solely on the 

testimony of Smith's trial counsel. 

(1)

¶104 The postconviction court erred as a matter of law by 

being skeptical of retrospective competency determinations.

¶105 Even before hearing the evidence regarding Smith's 

competency to stand trial, the postconviction court expressed 

skepticism toward retrospective evaluations of a defendant's 

competency to stand trial, stating: "To say someone——if this 

opens a door, you can [retrospectively challenge trial 

competency] [i]n every case then. Defense can do this on every 

case. Come back and challenge the defense attorney at the time, 

 

17 Two judges presided at postconviction proceedings. This 

review is of Milwaukee County Judge David Borowski's finding of 

competency to stand trial.
No. 2013AP1228-CR.ssa

13

say he or she didn't raise competency two years later. Oh, now 

find a doctor."

¶106 Similarly, even before hearing the testimony of the 

medical experts, the postconviction court was skeptical of the 

testimony, remarking that "[the medical expert is] making a 

decision based not which [sic] she's observing, not what she's 

seeing at the time, not what he is or is not perceiving, not his 

ability in an interview contemporaneous to the proceedings. 

She's going back two years."

¶107 Throughout the competency proceedings, the 

postconviction court dismissed even the possibility of a 

retrospective competency proceeding, let alone the idea that "a 

meaningful retrospective hearing may be possible by analyzing 

the pertinent legal and medical records, in combination with a 

current medical evaluation, to produce a hindsight picture of 

[the defendant's] competency at the time of trial." See State 

v. Johnson, 133 Wis. 2d 207, 225, 395 N.W.2d 176 (1986)

¶108 In sum, the transcript of the postconviction court's 

comments shows that the court believed that only the individuals 

"who were present" at the time of trial can credibly assess the 

defendant's competency to stand trial. In effect, the 

postconviction court gave little weight to any testimony or 

medical expert report in the retrospective competency hearing. 

¶109 The postconviction court's views of retrospective 

competency hearings do not accurately reflect Wisconsin law. 

Retrospective evaluation of a defendant's competency to stand 

trial is appropriate and well-established in our case law when a 
No. 2013AP1228-CR.ssa

14

defendant's competency is questioned after a conviction at trial 

or the acceptance of a guilty plea. See Johnson, 133 Wis. 2d at 

225; State v. Haskins, 139 Wis. 2d 257, 267, 407 N.W.2d 309 (Ct. 

App. 1987). 

¶110 This court has observed that "the mere passage of time 

may not make [a retrospective competency hearing] meaningless," 

and "a meaningful . . . hearing may be possible by analyzing the 

pertinent legal and medical records, in combination with a 

current medical evaluation, to produce a hindsight picture of 

[the defendant's] competency at the time of trial." Johnson, 

133 Wis. 2d at 225 (internal quotation marks omitted). 

¶111 The majority opinion paints the postconviction court's 

evaluation of the court-appointed medical experts' testimony as 

an assessment of the court-appointed medical experts' 

credibility and states that the postconviction court is the only 

court able to evaluate credibility.18 

¶112 The postconviction court said nothing that directly or 

indirectly challenged the credibility of these particular 

experts. The postconviction court praised both medical experts, 

extolling their experience, credentials, and ability.19 

 

18 See majority op., ¶34 ("[T]he postconviction court was 

the only court in the position to weigh the evidence, assess 

credibility, and reach a determination regarding Smith's 

retrospective competency."). 

19 The postconviction court commented positively about the 

two testifying medical experts as follows: 

"Dr. Collins is an absolute expert in the field; I 

have the utmost respect for her; she’s testified 

multiple times . . . ." 

(continued)
No. 2013AP1228-CR.ssa

15

¶113 The only flaw the postconviction court identified in 

the medical experts' testimony was that the medical experts' 

conclusions were not supported by an interview of Smith at the 

time of trial and sentencing.

¶114 This flaw relates to the concept of retrospective 

competency evaluation and could have been said about any medical 

expert conducting a retrospective competency evaluation. 

¶115 Rejection of the medical experts' testimony solely 

because it is not based on an interview of Smith at the time of 

trial and sentencing is inconsistent with Johnson, which clearly 

authorizes retrospective competency evaluations, including 

evaluation by medical experts. Thus, the postconviction court's 

evaluation of the record is contrary to law and the 

postconviction court's finding of fact regarding Smith's 

competency is based on an error of law.

¶116 In sum, the postconviction court's skepticism toward 

retrospective competency evaluations was an error of law that 

totally undermined the postconviction court's factual finding.

(2)

¶117 The postconviction court's approach to finding that 

Smith was competent to stand trial seems to have been that had 

Smith been incompetent to stand trial, the trial court, the 

 

"Dr. Pankiewicz and Dr. Collins are very experienced 

doctors, and I've seen both of them testify. I read 

reports from both of the them. Dr. Pankiewicz said 

he's done I think 2000 evaluations. . . . and Dr. 

Collins, obviously, has done hundreds and hundreds of 

evaluations." 
No. 2013AP1228-CR.ssa

16

State, and Smith's trial counsel would have raised the 

competency issue at the time of trial or sentencing. Because no 

one raised the issue at the time of trial or sentencing, the 

postconviction court reasoned that Smith was competent to stand 

trial.

¶118 This reasoning led the postconviction court to 

seemingly consider only the testimony of Smith's trial counsel. 

¶119 The postconviction court explained its reliance on the 

trial court's failure to address the competency issue as the 

basis for its decision to find competence as follows: 

The center of the defendant's argument is this: The 

people directly involved with the defendant during the 

trial and sentencing, his attorney and the presiding 

judge, failed to notice that the defendant was not 

competent. The evidence that proves their collective 

failure is the testimony of doctors who had no contact 

with the defendant during the trial or at sentencing. 

In other words, people who were not present at the 

relevant time know more than the people who were 

present.

¶120 In other words, because the issue of Smith's 

competency to stand trial was not raised or considered at the 

trial or at sentencing, the postconviction court seemed 

convinced that Smith was obviously competent. According to the 

postconviction court, if Smith were incompetent, someone would 

have raised the issue at trial or sentencing. 

¶121 This line of reasoning is misguided and is not borne 

out by the trial court record. The postconviction court failed 

to recognize that gaps existed in the trial court record and the 

information at Smith's trial counsel's disposal. Had the gaps 

been filled at trial or sentencing, the trial court, the State, 
No. 2013AP1228-CR.ssa

17

or Smith's defense counsel might have had reason to doubt 

Smith's competency.

¶122 In the instant case, neither the circuit court judge, 

who presided at Smith's trial, nor the State's nor Smith's trial 

counsel raised questions regarding the defendant's competency to 

stand trial prior to or during the trial or sentencing. As a 

result, the circuit court had no reason to hold competency 

proceedings or appoint medical experts to assess the defendant's 

competence prior to or at the time of trial or sentencing. See

Wis. Stat. § 971.14(1r)(a), (2)(a) (requiring competency 

proceedings and the appointment of medical examiners whenever 

"there is reason to doubt a defendant's competency to proceed").

¶123 In contrast with the limited record in the trial court 

regarding Smith's competence to stand trial, the medical experts 

had access to records that the trial court and trial counsel did 

not have. 

¶124 The records upon which the medical experts relied 

demonstrate that Smith had a well-documented history of mental 

illness dating back to at least 1993, that he was previously 

diagnosed with either a "delusional disorder" or 

"schizophrenia," and that civil commitment proceedings were 

initiated against him.20 In the months leading up to conviction 

and sentencing, Smith's medical records showed he was acting 

strangely and exhibiting psychotic symptoms.21 

 

20 See Smith, 357 Wis. 2d 582, ¶12.

21 See id.
No. 2013AP1228-CR.ssa

18

¶125 During the same month as his trial, jail staff noted 

that Smith was "'confusing past cases with current,' 'talking to 

himself,' and acting 'confrontational,'" and medical records 

showed Smith was rambling and out of touch with reality.22 

¶126 After sentencing, Smith was described as "actively 

psychotic," refusing medication for diabetes because he feared 

that nursing staff would kill him with shots and by feeding him 

"whole foods."23

¶127 At sentencing, Smith was given an opportunity to speak 

in his own behalf. Smith's statement was rambling. It was 

largely irrelevant and incoherent. Unfortunately, neither the 

circuit court nor trial counsel for the State or Smith viewed 

Smith's allocution as raising any concern about Smith's 

competency. They let Smith speak and then ignored the possible 

implications of his behavior.

¶128 Neither the circuit court judge nor the State's trial 

counsel nor Smith's trial counsel were fully aware at the time 

of conviction and sentencing of the medical and jail records 

(later available to the medical experts). 

¶129 The postconviction court failed to consider seriously 

these pertinent records. Instead, the postconviction court 

simply adopted the position of Smith's trial counsel that Smith 

was competent, and ignored Smith's trial counsel's ignorance of 

the contents of records upon which the medical experts based 

 

22 See id.

23 See id.
No. 2013AP1228-CR.ssa

19

their opinions. The postconviction court also seemingly ignored 

reasons to be skeptical of defense counsel's testimony.24

¶130 The majority opinion supports the postconviction 

court's approach by pointing to two colloquies between Smith and 

the circuit court (namely Judge Conen, who presided over Smith's 

trial) as demonstrating Smith's competence.25 

¶131 The colloquies are weak. The first colloquy (which 

occurred at the Miranda-Goodchild hearing), does not reveal very 

much about Smith's mental state. Smith responds to the circuit 

court's questions with only a "yes," "no," or "yeah." Smith's 

responses in the second colloquy (concerning his right to 

testify) are only slightly more developed.26 

¶132 Colloquies resulting in simple answers are generally 

viewed as ineffective for determining the accused's mental 

state. The goal of a colloquy is to get the accused to speak in 

his or her own words so that the accused's mental condition and 

 

24 As Robert D. Miller and Edward J. Germain wrote, 

"[d]efense attorneys cannot be considered as objective or 

uninvolved witnesses to the competency of their clients, either 

at the time of the original trial or at retrospective competency 

hearings." Robert D. Miller & Edward J. Germain, The 

Retrospective Evaluation of Competency to Stand Trial, 11 Int'l 

J. L. & Psychiatry 113, 123 (1988). Defense counsel have an 

interest in not being found ineffective for failing to raise 

competency issues. 

Miller and Germain also raise the question whether a trial 

judge's view of a defendant's competency may be questionable as 

well. See id. at 124.

25 See majority op., ¶¶6-7. 

26 See id.
No. 2013AP1228-CR.ssa

20

understanding can be evaluated. One-word responses are not 

persuasive.27 

¶133 At least one of the court-appointed medical experts 

stated that Smith's answers in the colloquies on which the 

majority opinion relies are not inconsistent with Smith "being 

sick and symptomatic at the same time [as the colloquies]." 

¶134 Moreover, as two Wisconsin medical experts wrote in an 

article regarding retrospective competency evaluations: 

"Unfortunately [court] records will usually not reveal as much 

about a defendant's mental state as a focus[]ed clinical 

evaluation, unless it was so disordered as to have been obvious 

to everyone involved in the process." Robert D. Miller & Edward

J. Germain, The Retrospective Evaluation of Competency to Stand 

Trial, 11 Int'l J. L. & Psychiatry 113, 124 (1988). 

¶135 Given the significant weight of the medical 

evaluations prepared by the two medical experts and the 

postconviction court's erroneous dismissal of this evidence, I 

conclude, as did the court of appeals, that the postconviction 

court's finding that Smith was competent to stand trial was an 

error of law. 

¶136 Accordingly, I would affirm the decision of the court 

of appeals and remand the matter to the circuit court to vacate 

Smith's conviction and sentence and order a new trial. 

 

27 See State v. Brown, 2006 WI 100, ¶58 n.27, 293 

Wis. 2d 594, 716 N.W.2d 906 (discussing circumstances in which a 

colloquy should be expanded to ensure a defendant's 

understanding). 
No. 2013AP1228-CR.ssa

21

¶137 For the reasons set forth, I dissent and write 

separately. 

¶138 I am authorized to state that Justice ANN WALSH 

BRADLEY joins this dissent.
No. 2013AP1228-CR.ssa

1

ATTACHMENT A: Procedural History

The relevant procedural history is as follows: 

• On October 2, 2007, victim A.H. was beaten and raped. 

• On January 7, 2009, Smith was charged with second-degree 

sexual assault of A.H. 

• On October 12, 2009, a jury trial began before Judge 

Jeffrey A. Conen of Milwaukee County. Smith did not 

testify at trial. 

• On October 14, 2009, the jury convicted Smith of seconddegree sexual assault. 

• On December 11, 2009, at the sentencing hearing, Smith 

gave a rambling and incoherent allocution. Judge Conen 

sentenced Smith to 25 years of initial confinement and 15 

years of extended supervision. 

• On June 18, 2010, Smith's postconviction counsel filed a 

motion for an evaluation of Smith's competency to assist 

in postconviction proceedings. 

• On September 13, 2010, a competency hearing was held 

before Judge Jean DiMotto of Milwaukee County at which 

the defendant's medical expert, Dr. Deborah Collins, 

testified that Smith was not competent to proceed. 

• On March 14, 2011, after a court-appointed medical 

expert, Dr. John Pankiewicz, concluded that Smith was 

incompetent to proceed and unlikely to regain competency 

within a reasonable period of time, Judge DiMotto found 

Smith incompetent to assist in postconviction 
No. 2013AP1228-CR.ssa

2

proceedings. A guardian ad litem was appointed for 

Smith. 

• On September 30, 2011, Smith's postconviction counsel 

filed a motion to vacate Smith's conviction and sentence, 

alleging that Smith was incompetent at the time of trial 

and sentencing. 

• The postconviction court, Judge David Borowski of 

Milwaukee County, ordered Drs. Collins and Pankiewicz to 

conduct a retrospective evaluation of Smith's competency 

at the time of trial and sentencing. A court-appointed 

medical expert and a medical expert selected by Smith 

reviewed records, including the prior psychiatric 

examinations of Smith, jail and medical records, and the 

transcripts of Smith's allocution. 

• On August 2, 2012, Judge Borowski held a competency 

hearing at which both medical experts testified that 

Smith was incompetent at the time of trial and 

sentencing. 

• On September 14, 2012, Judge Borowski continued the 

competency hearing, at which Smith's trial counsel 

testified that he had no reason to doubt Smith's 

competency to stand trial. 

• On May 2, 2013, Judge Borowski denied Smith's motion to 

vacate his conviction and sentence and order a new trial, 

finding that Smith was competent to stand trial.
No. 2013AP1228-CR.ssa

1