2018 UT App 123

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

VERNON RICHARD BIEBINGER,

Appellant.

Opinion

No. 20160460-CA

Filed June 21, 2018

Fourth District Court, Provo Department

The Honorable Derek P. Pullan

No. 141400846

Emily Adams, Attorney for Appellant

Sean D. Reyes and William M. Hains, Attorneys

for Appellee

JUDGE RYAN M. HARRIS authored this Opinion, in which 

JUDGES MICHELE M. CHRISTIANSEN and DIANA HAGEN concurred.

HARRIS, Judge:

¶1 A jury convicted Defendant Vernon Richard Biebinger of 

various crimes stemming from a traffic stop gone awry. He 

appeals his convictions, arguing that he was incompetent at the 

time of his trial and that his counsel was constitutionally 

ineffective for failing to file a competency petition during trial. 

We reject Defendant’s arguments and affirm his convictions.

BACKGROUND

¶2 In March 2014, Defendant was driving a car with three 

passengers when one of the passengers alerted him that there 

was a police car behind him. In response, Defendant quickly 
State v. Biebinger

20160460-CA 2 2018 UT App 123

executed a left turn and nearly hit a bicyclist, prompting the 

officer in the police car (Officer) to initiate a traffic stop. During 

the stop, Officer noticed that Defendant was “fidgeting in the 

center console area” and kept glancing towards the center 

console. When Officer asked Defendant for his registration and 

proof of insurance, Defendant claimed he “couldn’t locate those 

items,” and continued nervously glancing towards the center 

console while talking to Officer. Officer asked Defendant if there 

were any weapons in the vehicle. Defendant responded “just 

these,” and produced a knife and set of brass knuckles. At this 

point, Officer returned to his vehicle to begin checking 

Defendant’s identification for warrants, and called for backup. 

After backup officers arrived, they observed Defendant “moving 

around a lot” in the vehicle, and asked him to exit the vehicle 

and sit on the curb where they could more easily observe him. 

¶3 Defendant did not comply with this instruction. Instead, 

he began yelling and then drove quickly away. Defendant led 

several police officers on a high-speed chase, which ultimately 

ended in a cul-de-sac when Defendant’s vehicle became stuck

between an RV and a fence. Defendant and all of the other 

occupants exited the vehicle, and Defendant ran but was 

eventually apprehended by police. During a subsequent search 

of the vehicle, police found a stolen handgun on the driver’s side 

floorboard. The police also found a second handgun discarded 

outside the vehicle.

¶4 Police interviewed Defendant shortly after the incident. 

During the interview, Defendant stated that he ran from the 

police because he believed an acquaintance of his had planted 

guns in the car to “set him up.” When confronted by an officer 

who stated that Defendant’s story “[made] no sense,” Defendant 

reiterated that one of the passengers in the car (Passenger) had 

raised the possibility of planted evidence and that this had 

prompted Defendant to flee. Defendant also told police that he 
State v. Biebinger

20160460-CA 3 2018 UT App 123

had initially intended to exit the vehicle when ordered to do so

by backup officers, but that Passenger had told him to “go.”

Officers noted that Defendant did not appear to be exiting the 

vehicle at that point in time.

¶5 The State ultimately charged Defendant with obstructing 

justice, failing to respond to a police officer’s signal to stop, theft 

by receiving stolen property, reckless endangerment, and 

possession of a firearm by a restricted person.

¶6 Prior to trial, Defendant’s first attorney filed a petition 

raising the question of whether Defendant was competent to 

stand trial. In the petition, counsel asserted that Defendant might 

not be competent to assist in the preparation of the defense. The 

court promptly granted the petition, and appointed two mental 

health experts to examine Defendant. Several weeks later,

Defendant retained new counsel, and this second attorney

represented Defendant at the competency hearing. At that

hearing, the State informed the court that the mental health 

experts had been unable to contact Defendant for a complete

evaluation and thus were not able to issue a report as to his 

competency. Defendant’s second attorney represented to the 

court that, as he understood it, “the issue [with Defendant’s

competency] originally was” that Defendant had been 

previously diagnosed “bipolar and schizophrenic,” but that 

Defendant had “been on his medication . . . for 30 days” by the 

time of the competency hearing. Because of this, Defendant’s 

second attorney withdrew the competency petition, stating that,

while Defendant was on his medication, counsel believed that 

Defendant understood the potential punishment he might face, 

the role of the parties and of the court, and the details of his case 

sufficiently to “help assist” in his own defense. Based on these 

representations, the trial court considered the competency 

petition withdrawn, and conducted no further proceedings 

thereon.
State v. Biebinger

20160460-CA 4 2018 UT App 123

¶7 After the competency hearing, but before trial, 

Defendant’s second attorney withdrew as counsel for Defendant. 

The trial court appointed a third attorney (Trial Counsel) to 

represent Defendant, and Trial Counsel represented Defendant 

through trial. 

¶8 At trial, the State called several police officers to testify 

about the events that occurred during the traffic stop. The State 

also called Passenger as a witness, who testified that he was 

“really shocked” when Defendant began fleeing from police, and 

that Defendant told Passenger that he was sorry for fleeing but 

that he had “things on [him].” Passenger testified that, upon 

saying this, Defendant produced an item wrapped in cloth that 

Passenger eventually determined was a handgun. Passenger 

testified that Defendant threw the gun into Passenger’s lap and 

asked him to throw it out the window, at which point Passenger 

refused. Passenger also described seeing a second firearm in 

Defendant’s lap at some point during the chase. Passenger 

testified that the guns were not his.

¶9 After consulting with Trial Counsel, Defendant elected to 

testify in his own defense. During his testimony, Defendant 

presented a much different account than either (a) the account

Passenger had described in his testimony or (b) the account

Defendant had provided during his initial interview with police. 

At trial, Defendant testified that, shortly after being stopped,

Passenger informed Defendant that he (Passenger) possessed 

“things,” which Defendant initially understood to be a reference 

to “drugs.” Defendant testified that, after being told that 

Passenger had “things,” an officer asked Defendant to get out of 

the car, and when Defendant asked why he needed to get out, 

the officer began to threaten him and tried to open the car door. 

Defendant further testified that, while the officer was trying to 

open the car door, Defendant saw Passenger move in a way that 

triggered a memory Defendant had of Passenger attempting to 
State v. Biebinger

20160460-CA 5 2018 UT App 123

sell Defendant a gun. Defendant testified that, based on that 

memory, he realized that the “things” Passenger had said he 

possessed were firearms rather than drugs. Upon realizing this, 

Defendant became afraid that Passenger would try to “blast his 

way out” of the encounter with police, and Defendant testified 

that it was this fear that prompted him to flee from police. In 

keeping with this account, Defendant testified that the firearms 

belonged to Passenger, and not to him.

¶10 Defendant’s direct testimony often took the form of long, 

monologue-like statements, where he would testify for some 

time without being prompted by a question from counsel. At one 

point, Trial Counsel told him they could “take a second” if 

Defendant needed a break. On cross-examination, the State first 

asked Defendant if he was okay, observing he appeared 

“emotional.” Defendant replied that he was “all right.” The State 

then confronted Defendant with inconsistencies in his trial 

testimony, asking him how he knew that Passenger had a gun if, 

by his own testimony, Passenger had never shown him the gun 

in the car and he had initially assumed Passenger had drugs. 

Defendant responded that “the situation and tone and 

everything going on” had convinced him Passenger had a gun, 

even though he did not actually see one. During crossexamination, Defendant also maintained that he had told the 

police in his initial interview about his basis for believing 

Passenger had a gun. When the State confronted him with the 

discrepancy between that testimony and the account he had 

given police during his initial interview (that he ran from the 

police because Passenger had raised the possibility that a third

party had placed a firearm in Defendant’s car to set him up), 

Defendant initially stated that he did not remember saying those 

things to police. When the State pressed him on that answer, 

however, Defendant admitted that he did remember saying 

“something . . . like that, yes.” The State then asked if Defendant 

had told police in his initial interview about Passenger’s alleged 
State v. Biebinger

20160460-CA 6 2018 UT App 123

statement that he “had some things.” Defendant admitted that 

he did not, and asserted that he failed to do so because he was 

afraid of Passenger. Defendant finally asserted that he did not 

remember what he had or had not said during his initial 

interview. 

¶11 Also during cross-examination, the State played videorecorded portions of Defendant’s initial police interview, and 

asked Defendant about them. When confronted with the 

discrepancies between his trial testimony and his statement

during the initial interview, Defendant began giving inconsistent 

answers, at times stating that he did not remember what he had 

previously said, and sometimes giving conflicting accounts as to 

why his interview differed from his trial testimony. At one point,

Defendant acknowledged that “[w]hat I’m saying on the stand 

right now is completely different from [my interview 

testimony],” and that the discrepancy was because he was 

“scared” during his interview. After cross-examination, Trial 

Counsel elected to forgo any redirect examination. Trial Counsel 

also did not ever renew or re-file any competency petition based 

on events that occurred during trial. 

¶12 At the conclusion of the evidence, the jury found 

Defendant guilty on all charges. Defendant appeals. 

ISSUE AND STANDARD OF REVIEW

¶13 Defendant raises a single issue on appeal: whether Trial 

Counsel was constitutionally ineffective for failing to bring a 

competency petition based on Defendant’s actions during trial. 

An ineffective assistance of counsel claim raised for the first time 

on appeal presents a question of law. State v. Clark, 2004 UT 25, 

¶ 6, 89 P.3d 162. To prevail on an ineffective assistance of 

counsel claim, Defendant “must show: (1) that [Trial Counsel’s] 

performance was objectively deficient, and (2) a reasonable 
State v. Biebinger

20160460-CA 7 2018 UT App 123

probability exists that but for the deficient conduct [D]efendant 

would have obtained a more favorable outcome at trial.” See id.

ANALYSIS

¶14 Defendant contends that Trial Counsel was 

constitutionally ineffective for failing to bring a competency 

petition during trial. Defendant bases this contention partially on 

information that is not in the record, but which he seeks to admit

through a motion to remand. Under rule 23B of the Utah Rules 

of Appellate Procedure, Defendant may seek to remand the case 

to the trial court “for entry of findings of fact[] necessary for the 

appellate court’s determination of a claim of ineffective 

assistance of counsel.” Utah R. App. P. 23B(a). A rule 23B motion 

must “(1) contain a nonspeculative allegation of facts that (2) do 

not fully appear in the record, which, if true, (3) could support a 

determination that counsel’s performance was deficient, and (4) 

demonstrate that the defendant suffered prejudice as a result.” 

State v. Curtis, 2013 UT App 287, ¶ 15, 317 P.3d 968. In addition, 

rule 23B motions must “be accompanied by affidavits . . . that 

show the claimed deficient performance of the attorney . . . [and] 

that show the claimed prejudice suffered by the appellant as a 

result of the claimed deficient performance.” Utah R. App. P. 

23B(b).

¶15 In this case, Defendant attempts to meet that burden by 

attaching affidavits to his rule 23B motion that assert a number 

of facts Defendant wishes to add to the record. First, Defendant 

seeks to add that he was diagnosed in 2011 with bipolar 

disorder, generalized anxiety disorder, and polysubstance 

dependence. Second, Defendant seeks to add that he was 

prescribed medications to treat those disorders, but that he was 

not taking those medications at the time of trial. Third, 

Defendant seeks to add Trial Counsel’s affidavit, wherein Trial 

Counsel makes several observations, including the following: 
State v. Biebinger

20160460-CA 8 2018 UT App 123

that, at trial, Defendant “completely changed his story multiple 

times,” and that Defendant’s testimony “was not consistent 

with” what he had previously told Trial Counsel or police; that 

Defendant did not seem to “remember anything” Trial Counsel 

had reviewed with him prior to trial; that Defendant “almost 

appeared to be confused” and was “noticeably agitated” as his 

testimony progressed; and that after testifying Defendant was 

“extremely angry” with Trial Counsel. Fourth, Defendant wishes 

to add to the record an assertion that, during trial, he 

“experienced overwhelming anxiety,” was “shaking,” had 

suicidal thoughts, and heard a voice in his head telling him 

“don’t trust your attorney.”

¶16 Defendant maintains that these facts, if added to the 

record, would demonstrate that Trial Counsel rendered 

constitutionally ineffective representation. We disagree, because 

the facts he seeks to add, even if true, would not establish either 

“(1) that [Trial Counsel’s] performance was objectively 

deficient,” or “(2) [that] a reasonable probability exists that but 

for the deficient conduct,” Defendant would have been found 

incompetent and thereby “obtained a more favorable outcome at 

trial.” Clark, 2004 UT 25, ¶ 6.

¶17 First, even considering all of the facts Defendant asks us 

to consider—the facts already in the record combined with the 

rule 23B facts Defendant wishes to add to the record—we are not 

persuaded that Trial Counsel should have believed that 

Defendant was incompetent. As an initial matter, some of the 

facts Defendant asks us to consider were not known to Trial 

Counsel at the time. For instance, Defendant does not claim that 

he ever told his attorney that he was hearing voices, or that he 

was experiencing suicidal thoughts. An attorney cannot be 

charged with providing ineffective assistance for failing to bring 

a competency petition based on facts he does not know and has 

no reason to know. See State v. Lee, 2011 UT App 356, ¶ 7, 264 
State v. Biebinger

20160460-CA 9 2018 UT App 123

P.3d 239 (noting that counsel cannot be expected to file a 

competency petition if counsel “had no basis to suspect [the 

defendant] was incompetent”). 

¶18 And the facts that were known to Trial Counsel at the time 

simply do not amount to obvious signals of incompetency.

Certainly, “mere distress, nervousness, or emotional upset”

during a court proceeding “do[] not establish mental 

incompetence.” State v. Young, 780 P.2d 1233, 1237 (Utah 1989).

Even “the fact that a person is mentally ill, displays bizarre, 

volatile, and irrational behavior, or has a history of mental 

illness, does not mean that he or she is incompetent to stand 

trial.” Jacobs v. State, 2001 UT 17, ¶ 16, 20 P.3d 382 (quotation 

simplified). Instead, a defendant is incompetent to proceed only 

if his mental disorder renders him unable “to have a rational and 

factual understanding of the proceedings against him or of the 

punishment specified for the offense charged,” or “to consult 

with his counsel and to participate in the proceedings against 

him with a reasonable degree of rational understanding.” Utah 

Code Ann. § 77-15-2(1)–(2) (LexisNexis 2017).

¶19 Trial Counsel was certainly aware, after Defendant had 

testified, that Defendant had been an ineffective witness, and 

may even have thought that Defendant’s performance on the 

stand hurt rather than helped the defense. While testifying, 

Defendant was nervous and agitated, spoke in long monologues, 

and gave testimony that was inconsistent with his previous 

statements to police. But many witnesses, for better or for worse, 

act similarly on the witness stand. Defense attorneys cannot 

reasonably be expected to file a competency petition every time a 

client performs inadequately on the witness stand. 

¶20 Defendant argues that this case is different from the many 

cases where a witness performs badly on the witness stand, 

because Trial Counsel should have known that Defendant’s first 
State v. Biebinger

20160460-CA 10 2018 UT App 123

attorney had filed a competency petition that was later

withdrawn only because of Defendant’s second attorney’s 

representation that Defendant was competent so long as he took 

medication. Defendant asserts that Trial Counsel should have 

discovered that Defendant was not taking his medication and 

should have at that point realized that Defendant’s poor 

performance on the stand might have been related to mental 

health issues. 

¶21 Even assuming that Trial Counsel should have been 

aware of the previously-filed competency petition and the 

reasons for its withdrawal, it does not necessarily follow that 

Trial Counsel’s knowledge of the petition should have impacted 

Trial Counsel’s assessment of Defendant’s mental state at trial. 

Competency is assessed contemporaneously, at a present 

moment in time, and previous mental health issues are not 

necessarily indicative of present incompetency. In fact, as our 

supreme court has previously noted, “a prior history of mental 

illness” stemming from a diagnosis “some years before” a later

emotional episode is not by itself sufficient to “raise[] a 

reasonable doubt as to [a] defendant’s competence” if the 

episode itself does not do so.1 Young, 780 P.2d at 1238; see also

Jacobs, 2001 UT 17, ¶¶ 22–23 (holding that even a defendant’s 

diagnosis as “actively psychotic” during pretrial proceedings 

coupled with “bizarre behavior” by that same defendant was not 

sufficient, on the facts of that case, to mandate that counsel bring

 

1. Sometimes, an episode that occurs during trial will be severe

enough, by itself, to raise serious doubts about a defendant’s 

competency to stand trial. See, e.g., Drope v. Missouri, 420 U.S. 

162, 180 (1975) (the defendant attempted to commit suicide 

during the pendency of the trial); State v. Wolf, 2014 UT App 18, 

¶ 31, 319 P.3d 757 (same). It should go without saying that the 

facts of those cases are much more serious than the facts 

presented here. 
State v. Biebinger

20160460-CA 11 2018 UT App 123

a competency petition). This is especially true where a 

defendant, despite instances of “emotional upset,” manages to 

give “clear” and “coherent” testimony that “[presents] an 

alternative explanation for his . . . activities on the day of the 

alleged crime.” Young, 780 P.2d at 1238.

¶22 That was precisely the situation that confronted Trial 

Counsel in this case. While Defendant was certainly visibly 

upset during and after his testimony, he nonetheless managed to 

coherently describe an alternative explanation for his actions in 

running from the police, even though this explanation was 

contradictory to prior explanations Defendant had offered. It 

does not follow from this conduct that a reasonable attorney 

would necessarily have known or suspected that Defendant was 

incompetent, even where a prior competency petition had been 

filed. Accordingly, Trial Counsel’s performance in failing to file a 

competency petition was not objectively deficient. See Lee, 2011 

UT App 356, ¶ 7 (noting that failure to file a competency petition 

does not constitute objectively deficient performance if the 

“plausible reason” for failing to file is that counsel has “had no 

basis to suspect [the defendant] was incompetent”).

¶23 Second, we are unpersuaded that Defendant was 

prejudiced by Trial Counsel’s conduct, even assuming that Trial 

Counsel’s performance could somehow be considered deficient. 

Even if Trial Counsel had filed a competency petition during 

trial, there is nothing in the record or in Defendant’s rule 23B 

motion that gives us any confidence that competency 

proceedings would have resulted in a determination that 

Defendant was incompetent to stand trial. 

¶24 As noted, mental illness is not equivalent to incompetency 

to stand trial. See Jacobs, 2001 UT 17, ¶ 16 (stating that “fitness to 

stand trial is a much narrower concept than moral or social 

wellness” (quotation simplified)). Many individuals suffer from 
State v. Biebinger

20160460-CA 12 2018 UT App 123

mental illness, yet are perfectly able “to have a rational and 

factual understanding of the proceedings against [them] or of the 

punishment specified for the offense charged” or “to consult 

with [their] counsel and to participate in the proceedings against 

[them] with a reasonable degree of rational understanding.” 

Utah Code Ann. § 77-15-2(1)–(2). While Defendant certainly 

alleges that he felt confused, paranoid, and anxious during trial, 

and even that he was hearing voices, Defendant does not 

sufficiently explain how these facts made him incapable of 

consulting with his counsel, understanding the charges against 

him, or participating in his defense at the time of trial. Indeed, 

Defendant did participate in his defense at trial—after consulting 

with Trial Counsel, Defendant decided to testify—and our 

review of the transcript of Defendant’s testimony does not leave 

us with an impression that Defendant was incapable of 

understanding the charges against him or even of the particular 

questions being posed to him. His answers made logical sense, 

even if they were not always consistent with previous testimony 

given and even if they were presented in a somewhat scattered 

manner. 

¶25 Moreover, Defendant presents no evidence—even in 

connection with his rule 23B motion—that he would have likely 

been found incompetent had a petition been filed. Even the 

expert witness who provided Defendant a supporting affidavit is 

willing to state only that “there is a likelihood that [Defendant] 

was troubled by psychological symptoms during trial,” and that 

“this is the kind of case that normally is referred for competency 

evaluation.” Defendant’s expert stops short of opining that there 

is any reasonable likelihood that Defendant would have been 

declared incompetent had a full evaluation been ordered. And 

based on the facts of this case—previous mental illness, very 

poor performance on the witness stand—we are not persuaded 

that Defendant has carried his burden of demonstrating that, 
State v. Biebinger

20160460-CA 13 2018 UT App 123

even if Trial Counsel had filed a competency petition during 

trial, it would have been likely to have made a difference. 

CONCLUSION

¶26 Trial Counsel was not ineffective for failing to file a 

competency petition based on Defendant’s behavior during trial. 

Accordingly, we deny Defendant’s rule 23B motion and affirm 

his convictions.