2015 WI 44 

SUPREME COURT OF WISCONSIN

CASE NO.: 2012AP2692-CR 

COMPLETE TITLE: State of Wisconsin, 

 Plaintiff-Respondent, 

 v. 

Roddee W. Daniel, 

 Defendant-Appellant-Petitioner. 

REVIEW OF A DECISION OF THE COURT OF APPEALS 

Reported at 354 Wis. 2d 51, 847 N.W.2d 855 

(Ct. App. 2014 – Published) 

PDC No: 2014 WI App 46 

OPINION FILED: April 29, 2015 

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: January 9, 2015 

SOURCE OF APPEAL: 

 COURT: Circuit 

 COUNTY: Kenosha 

 JUDGE: Wilbur W. Warren III 

 

JUSTICES: 

 CONCURRED: 

 DISSENTED: 

 NOT PARTICIPATING: PROSSER, J. did not participate. 

 

ATTORNEYS: 

For the defendant-appellant-petitioner, there were briefs 

by Anthony J. Jurek, Middleton, and oral argument by Anthony J. 

Jurek. 

For the plaintiff-respondent, the cause was argued by 

Tiffany M. Winter, assistant attorney general, with whom on the 

brief was J.B. Van Hollen, attorney general. 

An amicus curiae brief was filed by Kelli S. Thompson, 

state public defender, and Joseph N. Ehmann, first assistant 

state public defender, on behalf of the Wisconsin State Public 

Defender. Oral argument by Joseph N. Ehmann. 
2015 WI 44

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2012AP2692-CR 

(L.C. No. 2008CF1035) 

STATE OF WISCONSIN : IN SUPREME COURT 

State of Wisconsin,

 Plaintiff-Respondent, 

 v. 

Roddee W. Daniel, 

 Defendant-Appellant-Petitioner. 

FILED 

APR 29, 2015 

Diane M. Fremgen 

Clerk of Supreme Court 

REVIEW of a decision of the Court of Appeals. Affirmed and 

cause remanded. 

¶1 ANN WALSH BRADLEY, J. Petitioner, Roddee W. Daniel, 

seeks review of a published decision of the court of appeals 

that reversed an order of the circuit court.1 In a postconviction hearing, the circuit court concluded that Daniel's 

defense counsel failed to show by clear and convincing evidence 

 

1 State v. Daniel, 2014 WI App 46, 354 Wis. 2d 51, 847 

N.W.2d 855 (reversing order of circuit court of Kenosha County, 

Wilbur W. Warren III, Judge). 
No. 2012AP2692-CR 

2 

that Daniel was incompetent. The court of appeals determined 

that the circuit court erred because it failed to apply the 

lower "preponderance of the evidence" burden of proof. 

Accordingly, it remanded for a new competency hearing. 

¶2 Although neither party challenges the court of 

appeals' determination that the burden of proof here is a 

preponderance of the evidence, Daniel contends that the court of 

appeals' decision was erroneous because, upon remand, it permits 

the circuit court to place the burden to prove incompetency on 

defense counsel. He asserts that despite the fact that Daniel 

and his defense counsel disagree about competency, once defense 

counsel has raised the issue of competency, the burden of proof 

should be on the State. 

¶3 Considering the statute governing competency hearings, 

the potential conflict of interest in placing the burden of 

proof on defense counsel, and the relative interests and risks 

at stake, we determine that once a defense attorney raises the 

issue of competency at a postconviction hearing, the burden is 

on the State to prove by a preponderance of the evidence that 

the defendant is competent to proceed. Accordingly, we affirm 

the court of appeals and remand to the circuit court to apply 

the correct standard if Daniel's competency is challenged upon 

remand. 

I 

¶4 Daniel has a long history of mental illness. He began 

treatment for mental illness in 2004 at Rogers Memorial 

Hospital-Milwaukee. Multiple medications have been prescribed. 
No. 2012AP2692-CR 

3 

¶5 Daniel's treatment at Rogers Memorial ended in 

September 2008 around the time that he was arrested and charged 

with first-degree intentional homicide as party to a crime and 

armed burglary as party to a crime. According to the complaint, 

15-year old Daniel and a friend broke into a neighbor's home. 

Daniel told police that as they looked around for items to take, 

they noticed a woman asleep in her bed. The woman woke up and 

started to run away. Daniel stated that his friend ran after 

her and hit her multiple times with a baseball bat.2 Then, he 

and his friend grabbed various items and left. The woman's 

boyfriend discovered her body the next morning. Daniel was 

arrested and held at Kenosha County Detention Center (KCDC) 

pending trial. 

¶6 The court granted defense counsel's request that

Daniel undergo an evaluation to determine his competency to 

stand trial. Dr. Collins conducted the evaluation which 

included an interview with Daniel. Her report indicates that 

she had trouble engaging Daniel in a goal-directed, rational 

exchange. However, he did acknowledge that he had been 

institutionalized at Rogers Memorial because he "was hearing 

voices" and that he had previously received mental health 

treatment in connection with panic attacks. 

¶7 Dr. Collins' evaluation also included a review of 

Daniel's medical records from KCDC. Her report indicates that 

 

2 Daniel's friend claimed that it was Daniel who hit the 

woman.
No. 2012AP2692-CR 

4 

she believed there were discrepancies between some of the mental 

health complaints Daniel made while at KCDC and staff 

observations of his behavior. Dr. Collins further observed that 

while at KCDC a diagnosis of "probable malingering" had been 

offered. She deermined that there was not enough evidence to 

support a conclusion that Daniel lacked substantial mental 

capacity to factually and rationally understand the pending 

proceeding and aid in his defense. Based on Dr. Collins' 

report, the circuit court declared Daniel competent to stand 

trial. 

¶8 After a jury trial, Daniel was convicted of the crimes 

charged. He was sentenced to life in prison without extended 

supervision. During his subsequent incarceration, the 

Department of Corrections determined that Daniel suffered from a 

psychotic disorder and transferred him to the Wisconsin Resource 

Center for treatment. Daniel's treating psychiatrist at the 

Resource Center, Dr. Alba, challenged his decisional competency 

and requested that Daniel be civilly committed pursuant to 

Chapter 51. 

¶9 Following a hearing on the matter, the court ordered 

Daniel's civil commitment. It determined that medication or 

treatment would have therapeutic value. It further determined 

that due to mental illness, Daniel was not competent to refuse 

psychotropic medication or treatment. Accordingly, the court 

ordered that medication and treatment could be administered 

without Daniel's consent during the period of commitment. Dr. 

Alba later requested an extension of Daniel's civil commitment, 
No. 2012AP2692-CR 

5 

which was granted. The court also extended Daniel's deadline 

for filing a postconviction motion. 

¶10 While Daniel was still under civil commitment, defense 

counsel notified the court, pursuant to State v. Debra A.E., 188 

Wis. 2d 111, 523 N.W.2d 727 (1994), that he had good faith 

reason to doubt Daniel's competency to pursue postconviction 

relief. He explained that he had spoken with Daniel multiple 

times and that during those conversations Daniel equivocated in 

regard to pursuing postconviction relief, oscillating between a 

desire to pursue relief and a desire not to pursue relief. 

Despite a variety of approaches, defense counsel was unable to 

get Daniel to express any reasoning behind his decisions to 

pursue or not pursue postconviction relief. 

¶11 Defense counsel further explained to the court that 

since Daniel's conviction, Daniel had been diagnosed as 

schizophrenic, and had been civilly committed pursuant to 

Chapter 51. He informed the court that his privately obtained 

psychologist, Dr. Cumming, had evaluated Daniel and determined 

that Daniel was not competent to seek postconviction relief. 

Accordingly, defense counsel moved the court for a finding that 

there was reason to believe that Daniel was incompetent and 

asked the court to rule regarding Daniel's competency to seek 

postconviction relief. 

¶12 Attached to defense counsel's submission was a letter 

from Dr. Cummings. His letter indicates that he met with Daniel 

after reviewing Daniel's records. During their first meeting, 

it was clear that Daniel lacked the capacity to understand the 
No. 2012AP2692-CR 

6 

purpose of the visit or that Dr. Cummings' findings would be 

used to aid Daniel's defense. During the second meeting, Daniel 

told Dr. Cummings that he "didn't even know what an appeal was." 

Based on Daniel's records and these interviews, Dr. Cummings 

concluded to a reasonable degree of professional certainty that 

Daniel was not competent to understand the appeal process or 

make decisions about legal matters. 

¶13 The court appointed a psychologist, Dr. Rawski, to 

evaluate Daniel, but Daniel refused to meet with him. 

Therefore, Dr. Rawski was unable to offer an opinion to a 

reasonable degree of professional certainty as to Daniel's then 

current state of competency to participate in legal proceedings. 

He recommended that Daniel be transferred to a state psychiatric 

institute for an inpatient assessment. 

¶14 Following Dr. Rawski's recommendation, the court 

ordered the State to transfer Daniel to a state psychiatric 

institute for evaluation of his competency. There, he was 

examined by Dr. Phelps, a forensic psychiatry fellow. Dr. 

Phelps determined that Daniel's behaviors were not the product 

of mental illness, but rather the result of a characterological 

disorder. Although he acknowledged the possibility that Daniel 

had a major mental illness, Dr. Phelps observed that Daniel had 

denied symptoms of mental illness and, with one exception, had 

not exhibited signs or symptoms of mental illness. 

¶15 Dr. Phelps further acknowledged the possibility that 

the medications Daniel took were effectively treating a mental 

illness. However, observing that Daniel had previously 
No. 2012AP2692-CR 

7 

demonstrated the capacity to stand trial and that he did not 

demonstrate symptoms of a condition that would preclude his 

capacity, Dr. Phelps concluded that Daniel had substantial 

mental capacity to understand the proceedings and assist in his 

own defense. 

¶16 After the evaluations were complete, the court held a 

competency hearing. At the start of the hearing, the circuit 

court asked Daniel if he believed he was competent to proceed. 

Daniel replied "Yeah." The court then asked Daniel if he 

believed he understood what was involved in making a decision 

about whether to appeal. Daniel again responded "Yeah." 

Thereafter, defense counsel asked Daniel if he could explain 

what it means to appeal a conviction. Daniel responded "No." 

Counsel then asked Daniel "what happens if you don't appeal?" 

Daniel replied "I can get charged with a crime." 

¶17 Based on Daniel's statement that he was competent, the 

court made an initial determination of competency. It placed 

the burden on defense counsel to show that Daniel was 

incompetent. To meet his burden, defense counsel presented the 

testimony of Dr. Alba, Dr. Phelps, Dr. Collins, Daniel's social 

worker at the Wisconsin Resource Center, and Dr. Cummings. He 

also presented the reports from Dr. Alba, Dr. Phelps, and Dr. 
No. 2012AP2692-CR 

8 

Cummings, Daniel's medical records from Rogers Memorial, and 

Daniel's discharge summary from Rogers Memorial.3 

¶18 The circuit court opined that based on Wis. Stat. 

§ 971.14(4)(b) (2011-12)4, if the defendant claims to be 

competent, the defendant shall be found competent unless the 

State proves by clear and convincing evidence that the defendant 

is not competent. The court observed that in this case, the 

State agreed with Daniel that he was competent and so it was not 

in the position to disprove his assertion of competency. 

However, the court determined that the clear and convincing 

standard still should be applied: "the standard should be the 

same for establishing incompetence, notwithstanding the party is 

other than the State who is asserting it, and that's the basis 

which this decision will be framed." It then concluded that 

defense counsel had failed to show by clear and convincing 

evidence that Daniel was incompetent. 

¶19 On appeal, the court of appeals observed that the 

circuit court could allocate the burden of persuasion to the 

defendant or defense counsel in a postconviction competency 

proceeding. State v. Daniel, 2014 WI App 46, ¶2, 354 Wis. 2d 

 

3 The court gave the parties time after the hearing to 

submit written closing arguments. During that time, Daniel 

submitted a hand-written note, stating that he wanted to plead 

guilty. It states: "this is Roddee DanieL i want to plead 

Guilty for the murder of [C.W.] I want to plead Guilty. Im 

admitting that I killed [C.W.]." 

4 All subsequent references to the Wisconsin Statutes are to 

the 2011-12 version unless otherwise indicated. 
No. 2012AP2692-CR 

9 

51, 847 N.W.2d 855. However, the court of appeals determined 

that a circuit court must utilize the lower "preponderance of 

the evidence" burden of proof when doing so. Id. Because the 

circuit court had applied an incorrect burden of proof, the 

court of appeals reversed and remanded. Id. It further 

declared that if Daniel's competency is questioned upon remand, 

the circuit court shall address the issue de novo. Id. 

II 

¶20 At issue in this case is who bears the burden of proof 

at a postconviction competency hearing when defense counsel and 

the defendant disagree on competency.5 In this case of first 

impression in our state, we examine statutory authority and 

prior case law. Ultimately, this issue presents a question of 

law which this court reviews independently of the decisions 

rendered by the circuit court and the court of appeals. Acuity 

Mut. Ins. Co. v. Olivas, 2007 WI 12, ¶31, 298 Wis. 2d 640, 726 

N.W.2d 258. 

III 

¶21 To provide context for our discussion, we begin with a 

brief overview of competency. For purposes of criminal trials, 

competency refers to the defendant's "present mental capacity to 

 

5 The petition for review presented this as two issues: who 

bears the burden of proof and what is the correct procedure to 

follow when a defendant and defense counsel disagree about a 

defendant's competency. However, in the parties' arguments the 

second issue was subsumed into the first. Accordingly, we 

address them as one issue. 
No. 2012AP2692-CR 

10 

understand the proceedings and assist in his or her defense." 

Wis. Stat. § 971.14(3)(c); see also Dusky v. United States, 362 

U.S. 402, 402 (1960) ("the test [for competency] must be whether 

he has sufficient present ability to consult with his lawyer 

with a reasonable degree of rational understanding -- and 

whether he has a rational as well as factual understanding of 

the proceedings against him."); State v. Byrge, 2000 WI 101, 

¶27, 237 Wis. 2d 197, 614 N.W.2d 477 ("a defendant is 

incompetent if he or she lacks the capacity to understand the 

nature and object of the proceedings, to consult with counsel, 

and to assist in the preparation of his or her defense."). 

¶22 Courts have long followed the rule that incompetent 

defendants should not be forced to face criminal proceedings 

during their incompetency. State ex rel. Matalik v. Schubert, 

57 Wis. 2d 315, 321, 204 N.W.2d 13 (1973). Wisconsin codified 

this rule in 1878, and it currently appears in our statutes at 

Wis. Stat. § 971.13.6

 

6 Wisconsin Stat. § 4700 (1878) stated: 

When any person is indicted or informed against for

any offense, if the court shall be informed, in any

manner, that there is a probability that such accused 

person is, at the time of his trial, insane, and 

thereby incapacitated to act for himself, the court

shall, in a summary manner, make inquisition thereof, 

by a jury or otherwise, as it deems most proper; and 

if it shall be thereby determined, that such accused 

person is insane, his trial for such offense shall be 

postponed indefinitely . . . . 

The current Wis. Stat. § 971.13(1) provides: "No person who 

lacks substantial mental capacity to understand the proceedings 

(continued) 
No. 2012AP2692-CR 

11 

¶23 As Justice Kennedy has succinctly explained, 

competence to stand trial is integral to a number of other 

constitutional rights: 

Competence to stand trial is rudimentary, for upon it 

depends the main part of those rights deemed essential 

to a fair trial, including the right to effective 

assistance of counsel, the rights to summon, to 

confront, and to cross-examine witnesses, and the 

right to testify on one's own behalf or to remain 

silent without penalty for doing so. 

Riggins v. Nevada, 504 U.S. 127, 139-40 (1992) (Kennedy, J., 

concurring). Thus, the Supreme Court has stated that the 

prohibition on the prosecution of incompetent individuals is 

"fundamental to an adversary system of justice," Drope v. 

Missouri, 420 U.S. 162, 172 (1975), and the conviction of an 

accused person while he is legally incompetent violates due 

process, Cooper v. Oklahoma, 517 U.S. 348, 354 (1996). See also 

State v. Garfoot, 207 Wis. 2d 214, 221, 558 N.W.2d 626 (1997) 

(observing that the prohibition is an issue of "fundamental 

fairness"). 

¶24 Consistent with those statements, the Supreme Court 

has further determined that "the failure to observe procedures 

adequate to protect a defendant's right not to be tried or 

convicted while incompetent to stand trial deprives him of his 

due process right to a fair trial." Drope, 420 U.S. at 172; see 

also State v. Wanta, 224 Wis. 2d 679, 692, 592 N.W.2d 645 (Ct. 

 

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." 
No. 2012AP2692-CR 

12 

App. 1999) ("competence to stand trial in a criminal proceeding 

[is] a fundamental right requiring due process protections"). 

¶25 Wisconsin's codified procedures to protect a defendant 

from being tried while incompetent can be traced back to 1878. 

Wis. Stat. § 4700 (1878). The current procdures are found in 

Wis. Stat. § 971.14. Under the statute, if there is reason to 

doubt a defendant's competency, the court "shall appoint one or 

more examiners having the specialized knowledge determined by 

the court to be appropriate to examine and report upon the 

condition of the defendant." Wis. Stat. § 971.14(2)(a). Copies 

of the report are delivered to the State, the defendant, and 

defense counsel. Wis. Stat. § 971.14(4)(a). If each waives the 

opportunity to present evidence on the issue, "the court shall 

promptly determine the defendant's competency." Wis. Stat. 

§ 971.14(4)(b). 

¶26 The statute directs that in the absence of waivers, 

the court shall hold an evidentiary hearing on the defendant's 

competency. Wis. Stat. § 971.14(4)(b). It describes the 

hearing as follows: 

At the commencement of the hearing, the judge shall

ask the defendant whether he or she claims to be 

competent or incompetent. If the defendant stands mute 

or claims to be incompetent, the defendant shall be

found incompetent unless the state proves by the 

greater weight of the credible evidence that the 

defendant is competent. If the defendant claims to be 

competent, the defendant shall be found competent 

unless the state proves by evidence that is clear and 

convincing that the defendant is incompetent. If the 

defendant is found incompetent and if the state proves 

by evidence that is clear and convincing that the 

defendant is not competent to refuse medication or 
No. 2012AP2692-CR 

13 

treatment, under the standard specified in sub. (3)

(dm), the court shall make a determination without a 

jury and issue an order that the defendant is not 

competent to refuse medication or treatment for the

defendant's mental condition and that whoever 

administers the medication or treatment to the 

defendant shall observe appropriate medical standards. 

Wis. Stat. § 971.14(4)(b). 

¶27 To protect the right to these competency proceedings, 

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

Wisconsin Supreme Court placed a duty on defense counsel to 

raise the issue of defendant's competency whenever there is 

reason to doubt it. In that case, despite strong indications of 

defendant's incompetency, defense counsel had made a "strategic 

decision" to not raise the issue prior to or during defendant's 

criminal trial. Id. at 214. The question before the court was 

whether counsel's failure to do so constituted representation 

which fell below an objective standard of reasonableness. Id. 

at 218. 

¶28 In its analysis, the Johnson court explained that the 

procedure for determining competency laid out in Wis. Stat. 

§ 971.14 is "a critically important fail-safe device for the 

benefit of accused persons who may not be able to fully 

cooperate and assist in their defense." Id. at 218-19 (quoting 

Matalik, 57 Wis. 2d at 322). It further observed that the 

protection is illusory if, when there is a reason to doubt 

defendant's competency, neither the court nor counsel seek the 

procedures provided by the State for determining competency. 

Id. at 219. The court held that "where defense counsel has a 

reason to doubt the competency of his client to stand trial, he 
No. 2012AP2692-CR 

14 

must raise the issue with the trial court" and "[t]he failure to 

raise the issue of competency makes the counsel's representation 

'fall below an objective standard of reasonableness.'" Id. at 

220.7 

¶29 The Wisconsin Supreme Court subsequently recognized 

that the right to a competency determination extends to 

postconviction proceedings. In Debra A.E., 188 Wis. 2d 111, 

defense counsel was unable to determine whether the defendant 

was willing to accept the risks of pursuing postconviction 

relief because the defendant would not speak to him. 

Accordingly, he requested a competency proceeding, which the 

circuit court denied. Id. at 121-22. 

¶30 On review, the Wisconsin Supreme Court observed that 

the decisions to pursue postconviction relief and what 

objectives to pursue must be made by the defendant, not defense 

counsel. Id. at 125. Because those tasks were required of the 

defendant, the court determined that a defendant "is incompetent 

to pursue postconviction relief under sec. 809.30, Stats. 1991-

 

7 In 1984 the ABA adopted a standard substantially similar 

to that announced in State v. Johnson, 133 Wis. 2d 207, 395 

N.W.2d 176 (1986). ABA Criminal Justice Mental Health Standard 

7-4.2(c) provides that: 

Defense counsel should move for evaluation of the 

defendant's competence to stand trial whenever the 

defense counsel has a good faith doubt as to 

defendant's competence. If the client objects to such 

a motion being made, counsel may move for an 

evaluation over the client's objection. 

This standard remains in effect today. 
No. 2012AP2692-CR 

15 

92, when he or she is unable to assist counsel or to make 

decisions committed by law to the defendant with a reasonable 

degree of rational understanding." Id. at 126. 

¶31 The Debra A.E. court then proceeded to prescribe the 

process for postconviction competency proceedings. Id. at 131. 

It stated that if the State or defense counsel has a good faith 

reason to doubt a defendant's competency, counsel should advise 

the court and move for a ruling on competency. Id. The circuit 

court may also raise the issue of reason to doubt a defendant's 

competency sua sponte. Id. If there is reason to doubt a 

defendant's competency, the circuit court may hold a hearing. 

Id. at 132. "In conducting any hearing the circuit court should 

be guided by sec. 971.14(4), Stats. 1991-92, to the extent 

feasible." Id. 

¶32 Having set forth the background on competency 

proceedings, we turn now to the issue of who bears the burden of 

proof at a postconviction competency hearing when the defendant 

and defense counsel disagree about competency. We acknowledge 

that, as a general matter, the burden of proof is frequently 

assigned to the moving party. See, e.g., State v. West, 2011 WI 

83, ¶65, 336 Wis. 2d 578, 800 N.W.2d 929; Larry v. Harris, 2008 
No. 2012AP2692-CR 

16 

WI 81, ¶50, 311 Wis. 2d 326, 752 N.W.2d 279.8 However, we are 

not convinced that the general rule applies to this case. Here, 

defense counsel, as an officer of the court, was obligated to 

alert the court of his doubt about competency under Johnson, 133 

Wis. 2d 207. Thus, we decline to view the fulfillment of this 

duty in the same manner as a typical motion. 

¶33 As the parties concede, there is currently no statute 

directly governing postconviction competency proceedings.9 

 

8 There are several situations in which this rule does not 

apply. See, e.g., State v. Subdiaz-Osorio, 2014 WI 87, ¶73, 357 

Wis. 2d 41, 849 N.W.2d 748 (after defendant raised the issue, 

the burden was on State to show that exigent circumstances 

justified a warrantless search); State v. Jerrell C.J., 2005 WI 

105, ¶17, 283 Wis. 2d 145, 699 N.W.2d 110 (upon defendant's 

suppression motion, the burden was on the State to prove 

confession was voluntary); State v. Jiles, 2003 WI 66, ¶23, 262 

Wis. 2d 457, 663 N.W.2d 798 (where the defendant moved to 

suppress various admissions, the burden was on the State to show 

that the defendant received and understood his Miranda 

warnings). Indeed, under Wis. Stat. § 971.14(4)(b) when the 

defense counsel raises the issue of competency at defendant's 

request, the burden is explicitly on the State to prove 

competency. 

9 We have previously determined that Wis. Stat. § 971.14, by 

its terms, "govern[s] competency determinations only through the 

sentencing stage of a criminal trial." State v. Debra A.E., 188 

Wis. 2d 111, 128 n.14, 523 N.W.2d 727 (1994). As Debra A.E. 

explained, "[t]his conclusion follows from reading sec. 971.14 

in its entirety and with sec. 971.13, as well as from the 

legislative history underlying these two sections." Id. 

The legislative history reveals that the drafters of the 

proposed legislation were mindful that Wis. Stat. § 971.14 left 

unaddressed incompetency in postconviction proceedings: 

[T]he Committee had not devoted sufficient attention 

to how to handle the case of a defendant who is 

incompetent to assist counsel in post-conviction 

(continued) 
No. 2012AP2692-CR 

17 

Following Debra A.E., we look to Wis. Stat. § 971.14(4) for 

guidance. 

¶34 Wisconsin Stat. § 971.14(4)(b) defines the burden in 

terms of the defendant's position. If the defendant asserts 

competency, the State must prove incompetency by clear and 

convincing evidence and if the defendant asserts incompetency, 

the State must prove competency by the greater weight of the 

credible evidence: 

At the commencement of the hearing, the judge shall

ask the defendant whether he or she claims to be 

competent or incompetent. If the defendant stands mute 

or claims to be incompetent, the defendant shall be

found incompetent unless the state proves by the 

greater weight of the credible evidence that the 

defendant is competent. If the defendant claims to be 

competent, the defendant shall be found competent 

unless the state proves by evidence that is clear and 

convincing that the defendant is incompetent. 

 

proceedings. To try to address this in a general 

competency statute was opening Pandora's box . . . the 

issue of competency ought to be the defendant's right 

to raise up to the point of the imposition of sentence 

but not afterwards. . . . The competency statute 

should be limited to proceedings up to and including 

sentencing. 

Judicial Council Insanity Defense Committee Summary of 

Proceedings, April 24, 1981, at 4. 

 Currently a bill is pending in the legislature that would 

address this hole in our statutes: Section 1149 of Assembly Bill 

90 (2015) proposes the creation of Wis. Stat. § 975.39, entitled 

"Competency to pursue postconviction relief," which delineates 

how questions of competency should be addressed during 

postconviction proceedings. 
No. 2012AP2692-CR 

18 

Wis. Stat. § 971.14(4)(b) (emphasis added).10 

¶35 The statute does not appear to contemplate the 

scenario where the State takes the same position as the 

defendant and in contrast it is defense counsel who is 

questioning competency. However, we find it informative that 

regardless of the scenario, the statute places the burden of 

proof on the State. This reflects the legislature's policy 

choice and we see no reason to alter this statutory approach. 

Thus, the statute's framework suggests that when the issue of 

competency has arisen, and the State wants to proceed, the State 

will bear the burden of proving competency. 

¶36 This interpretation of the statute is consistent with 

our prior description of the statute's procedures. In Byrge, 

237 Wis. 2d 197, ¶29, we stated that a court will follow the 

procedures of Wis. Stat. § 971.14 if there is reason to doubt a 

defendant's competency to proceed. We explained that a reason 

to doubt competency can be raised by either party or by the 

court. Id. We observed that once a reason to doubt competency 

has been raised, the court will appoint an examiner to conduct a 

competency examination and, absent a waiver, will hold a 

competency proceeding. Id., ¶30. Then, without reference to 

 

10 As the court of appeals observed, "[t]he differing

burdens of proof at the trial stage serve the twin due process 

goals of protecting an incompetent defendant's right not to be 

tried while incompetent and the preconviction defendant's right 

to liberty by reducing the risk of committing a competent 

person." Daniel, 354 Wis. 2d 51, ¶8 n.4 (citing State v. Wanta, 

224 Wis. 2d 679, 695, 592 N.W.2d 645 (Ct. App. 1999)). 
No. 2012AP2692-CR 

19 

who raised the issue of competency, we stated that "[t]he court 

must find the defendant incompetent unless the State can prove, 

by the greater weight of the credible evidence, that the 

defendant is competent." Id.11 

¶37 Admittedly, Wis. Stat. § 971.14 does not directly 

answer the question of who bears the burden of proof when a 

defendant disagrees with defense counsel regarding competency. 

Further, as stated above, the statute does not directly govern 

competency hearings during postconviction proceedings and is 

referred to solely as guidance. Our prior interpretation of 

that statute, however, supports a conclusion that regardless of 

whether it is the defendant or defense counsel that raises 

competency, once the issue is raised, the burden is on the 

State. 

¶38 This conclusion is further supported by the untenable 

result of the alternative procedure. Were we to place the 

burden of proving incompetency on defense counsel when defendant 

asserts competency it would create a conflict between an 

attorney's duty as an advocate and an attorney's duty as an 

officer of the court. 

¶39 Attorneys' obligations to their clients are set forth 

in the Supreme Court Rules. One of the primary obligations is 

 

11 The United States Supreme Court has likewise read Wis. 

Stat. § 971.14(4)(b) as "requir[ing] the prosecutor to prove the 

defendant's competence to stand trial once a question about 

competency has been credibly raised." Cooper v. Okalahoma, 517 

U.S. 348, 361-62 and n.18 (1996). 
No. 2012AP2692-CR 

20 

that of confidentiality. Supreme Court Rule 20:1.6(a) prohibits 

an attorney from disclosing information relating to

representation without a client's consent: 

A lawyer shall not reveal information relating to the 

representation of a client unless the client gives 

informed consent, except for disclosures that are 

impliedly authorized in order to carry out the 

representation, and except as stated in pars. (b) and 

(c).12

 

12 SCR 20:1.6(b)-(c) are not relevant here. They state: 

(b) A lawyer shall reveal information relating to 

the representation of a client to the extent the 

lawyer reasonably believes necessary to prevent the

client from committing a criminal or fraudulent act

that the lawyer reasonably believes is likely to 

result in death or substantial bodily harm or in 

substantial injury to the financial interest or 

property of another. 

(c) A lawyer may reveal information relating to 

the representation of a client to the extent the 

lawyer reasonably believes necessary: 

(1) to prevent reasonably likely death or 

substantial bodily harm; 

(2) to prevent, mitigate or rectify substantial 

injury to the financial interests or property of 

another that is reasonably certain to result or has

resulted from the client's commission of a crime or

fraud in furtherance of which the client has used 

the lawyer's services; 

(3) to secure legal advice about the lawyer's 

conduct under these rules; 

(4) to establish a claim or defense on behalf of 

the lawyer in a controversy between the lawyer and 

the client, to establish a defense to a criminal 

charge or civil claim against the lawyer based upon

conduct in which the client was involved, or to 

(continued) 
No. 2012AP2692-CR 

21 

SCR 20:1.6(a). 

¶40 The importance of this rule is stressed by the 

official comments to SCR 20:1.6, which describe it as 

"fundamental" to the attorney-client relationship. S.C.R. 

20:1.6, ABA Comment 2; see also Foley-Ciccantelli v. Bishop's 

Grove Condo. Ass'n, 2011 WI 36, ¶100, 333 Wis. 2d 402, 797 

N.W.2d 789 ("Maintaining confidentiality of information relating 

to representation is a fundamental principle in the attorneyclient relationship."). The obligation to keep client 

communications secret is further protected by Wis. Stat. 

§ 905.03(2) which grants a client the privilege to refuse 

disclosure of communications with the client's attorney. 

¶41 In State v. Meeks, 2003 WI 104, 263 Wis. 2d 794, 666 

N.W.2d 859, this court observed the potential conflict between 

an attorney's duty to a client to maintain confidentiality and 

an attorney's duties as an officer of the court under Johnson, 

133 Wis. 2d 207. Meeks involved a competency hearing at which 

the State offered the testimony of the defendant's former 

attorney. Id., ¶7. Over defense counsel's objection, the 

former attorney testified about her opinions, perceptions, and 

impressions of the defendant's competency. Id., ¶¶7-8. 

 

respond to allegations in any proceeding concerning

the lawyer's representation of the client; or 

(5) to comply with other law or a court order. 

SCR 20:1.6(b)-(c). 
No. 2012AP2692-CR 

22 

¶42 On review, this court determined that the former 

attorney's testimony revealed confidential information protected 

by SCR 20:1.6(a) and Wis. Stat. § 905.03(2). Id., ¶40. It 

stated that "it is difficult, or nearly impossible, for an 

attorney to testify regarding an opinion of the client's 

competency to proceed without violating the attorney-client 

privilege." Id., ¶37. It further explained that, "[a]n 

attorney's opinion of a client's mental competency is based 

largely upon private communications with the client." Id., ¶40. 

¶43 Admittedly, the circumstances in Meeks differ from the 

facts presented in this case. Meeks addressed a former 

attorney's testimony at a competency hearing as opposed to 

present counsel raising the issue of competency. Nevertheless, 

Meeks provides guidance through its remarks on the interplay 

between an attorney's duty as an officer of the court and the 

attorney-client privilege. In response to arguments about the 

duty under Johnson, 133 Wis. 2d 207, the court held that "the 

former attorney's duty as an officer of the court does not, 

under the circumstances set forth herein, trump the attorneyclient privilege." Id., ¶43. The court then explained that 

Johnson's requirements were limited to merely raising the issue 

of competency: 

An attorney's duty under Johnson demands a very narrow 

and limited breach of the attorney-client privilege. 

The attorney is merely obligated to 'raise the issue 

[of competency] with the trial court.' There is no

requirement that the attorney testify about his or her 

reasons for raising the issue or the opinions, 
No. 2012AP2692-CR 

23 

perceptions, or impressions that form the basis for

his or her reason to doubt the client's competence.

Id., ¶46. 

¶44 There is an obvious difference between raising an 

issue and having to prove it. Meeks instructs that an 

attorney's duties under Johnson are limited to the former. Were 

we to put the burden of proof on defense counsel, it would 

require more, upsetting the delicate balance that we laid out in 

Meeks. The "limited breach" of attorney-client privilege 

necessary to fulfill the Johnson obligation would turn to an 

open door, requiring attorneys to divulge significant 

information gained through private communications with their 

clients. Such a result is unpalatable and militates in favor of 

placing the burden on the State. 

¶45 A consideration of the relative interests at stake in 

postconviction competency hearings further suggests that the 

burden of proving competency should be on the State. Burdens of 

proof "reflect and protect social values. Courts must reduce 

the risk facing the party that has an interest of 'transcending 

value' by placing the burden of proof on the other party." 

Benjamin James Vernia, The Burden of Proving Competence to Stand 

Trial: Due Process at the Limits of Adversarial Justice, 45 

Vand. L. Rev. 199, 226 (1992) (citing Speiser v. Randall, 357 

U.S. 513, 525 (1958)); see also Santosky v. Kramer, 455 U.S. 

745, 757 (1982) ("[s]tandards of proof . . . are shaped by the 

risk of error inherent in the truth-finding process"); 

Addington v. Texas, 441 U.S. 418, 423 (1979) ("The standard 
No. 2012AP2692-CR 

24 

serves to allocate the risk of error between the litigants and 

to indicate the relative importance attached to the ultimate 

decision."). 

¶46 An erroneous decision that a defendant is competent 

implicates weighty interests of the defendant in postconviction 

proceedings. Such an error would substantially hinder a 

defendant's ability to pursue postconviction relief or an appeal 

because defense counsel's ability to act without direction from 

a client is limited. Ultimate decisions regarding the objective 

of representation, and whether to undertake a postconviction 

proceeding or an appeal are left solely to the client. Debra 

A.E., 188 Wis. 2d at 125-26; see also SCR 20:1.2 ("a lawyer 

shall abide by a client's decisions concerning the objectives of 

representation and, as required by SCR 20:1.4, shall consult 

with the client as to the means by which they are to be 

pursued."). Accordingly, in some circumstances, an erroneous 

decision that a defendant is competent could prevent a defendant 

from seeking postconviction relief or filing an appeal 

altogether, affecting the defendant's right to appeal a criminal 

conviction. 

¶47 In contrast, an erroneous decision that a defendant is 

incompetent will have little impact on the State. As indicated 

by the procedures identified in Debra A.E., the only impact on 

the State of a defendant being declared incompetent is a delay 

of the postconviction proceedings. 188 Wis. 2d at 134 (stating 

"defense counsel may request a continuance or enlargement of 

time for filing the necessary notices or motions for 
No. 2012AP2692-CR 

25 

postconviction relief" and permitting defendants who regain 

competency to raise issues that could not have been raised 

earlier due to incompetency). Further, in many cases, no delay 

will even occur. Id. at 133-34 (directing defense counsel to 

initiate or continue to seek relief on defendant's behalf where 

the defendant's assistance and decisionmaking are not necessary 

and there is no risk to the defendant). Thus, an erroneous 

finding of incompetency will place little burden on the State. 

¶48 Balancing the risk to a defendant of losing the

ability to seek postconviction relief or file an appeal against 

the risk of the State having to face a delay in an appeal or 

postconviction proceeding, we conclude that the potential 

consequences of error additionally suggest that the burden in a 

postconviction competency hearing be placed on the State once 

the issue has been raised. 

¶49 We decline to adopt the State's suggestion that

competency be presumed at a postconviction hearing when the 

defendant was previously determined to be competent to stand 

trial. Competency is not static. As we observed in Meeks, 

"[g]iven the nature of mental illness, a defendant may have been 

competent during a prior proceeding, but incompetent now, and 

vice versa." 263 Wis. 2d 794, ¶50. 

¶50 Further, competency has a different meaning in 

different circumstances. Compare Debra A.E., 188 Wis. 2d at 126 

(At a postconviction proceeding a defendant is incompetent to 

pursue postconviction relief "when he or she is unable to assist 

counsel or to make decisions committed by law to the defendant 
No. 2012AP2692-CR 

26 

with a reasonable degree of rational understanding.") with 

Byrge, 237 Wis. 2d 197, ¶27 ("a defendant is incompetent [to 

stand trial] if he or she lacks the capacity to understand the 

nature and object of the proceedings, to consult with counsel, 

and to assist in the preparation of his or her defense."). 

Thus, the fact that a defendant was deemed competent to stand 

trial should not create a presumption that the defendant is 

competent at a later date when the same defendant pursues 

postconviction relief. 

IV 

¶51 In this case, defense counsel raised reason to doubt 

defendant's competency. In response, the State contended that 

the defendant was competent. The burden should have been on the 

State to prove defendant's competency by a preponderance of the 

evidence. The circuit court, however, placed the burden on 

defense counsel to prove incompetency by clear and convincing 

evidence and determined that defense counsel did not meet that 

burden. 

¶52 As we stated in Byrge, 237 Wis. 2d 197, ¶4, "[t]he 

findings of a circuit court in a competency to stand trial 

determination 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 
No. 2012AP2692-CR 

27 

position to apply the law to the facts."13 In this case, 

however, the circuit court applied the wrong law by incorrectly 

placing the burden on defense counsel to prove incompetency by 

clear and convincing evidence. Because we agree with the court 

of appeals that it is unclear whether the circuit court would 

have reached the same result had it applied the correct burden, 

we remand with the instruction that if Daniel's competency 

remains at issue, a new competency hearing be conducted. 

V 

¶53 In sum, considering the statute governing competency 

hearings, the potential conflict of interest in placing the 

burden of proof on defense counsel, and the relative interests 

and risks at stake, we determine that once a defense attorney 

raises the issue of competency at a postconviction hearing, the 

burden is on the State to prove by a preponderance of the 

evidence that the defendant is competent to proceed. 

Accordingly, we affirm the court of appeals and remand the cause 

to the circuit court to apply the correct standard if Daniel's 

competency is still challenged. 

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

affirmed and the cause is remanded to the circuit court. 

¶54 Justice DAVID T. PROSSER did not participate. 

 

13 Although State v. Byrge, 2000 WI 101, 237 Wis. 2d 197, 

614 N.W.2d 477, addressed competency to stand trial we see no 

reason to apply a different standard to a decision regarding 

competency for a postconviction proceeding. 
No. 2012AP2692-CR 

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No. 2012AP2692-CR 

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