2015 WI 44



# S UPREME 

# C OURT OF 

# W ISCONSIN

C ASE N O .: 2012AP2692-CR C OMPLETE T ITLE : 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

O PINION F ILED : April 29, 2015 S UBMITTED ON B RIEFS : O RAL A RGUMENT : January 9, 2015

S OURCE OF A PPEAL : C OURT : Circuit C OUNTY : Kenosha J UDGE : Wilbur W. Warren III

J USTICES : C ONCURRED : D ISSENTED : N OT P ARTICIPATING : PROSSER, J. did not participate.

A TTORNEYS : 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 S tate 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. Dan iel, seeks review of a published decision of the court o f appeals that reversed an order of the circuit court. 1 In a postconviction hearing, the circuit court concluded tha t Daniel's defense counsel failed to show by clear and convinc ing evidence

1 State v. Daniel, 2014 WI App 46, 354 Wis. 2d 51, 8 47 N.W.2d 855 (reversing order of circuit court of Ken osha 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 a pply the lower "preponderance of the evidence" burden of pro of. Accordingly, it remanded for a new competency heari ng. ¶2 Although neither party challenges the court of appeals' determination that the burden of proof her e is a preponderance of the evidence, Daniel contends that the court of appeals' decision was erroneous because, upon reman d, it permits the circuit court to place the burden to prove inco mpetency 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 bur den of proof
should be on the State. ¶3 Considering the statute governing competency hea rings, the potential conflict of interest in placing the b urden of proof on defense counsel, and the relative interest s and risks at stake, we determine that once a defense attorney raises the issue of competency at a postconviction hearing, th e burden is on the State to prove by a preponderance of the evi dence that the defendant is competent to proceed. Accordingly , we affirm the court of appeals and remand to the circuit cour t to apply the correct standard if Daniel's competency is chal lenged upon
remand.

I ¶4 Daniel has a long history of mental illness. He began treatment for mental illness in 2004 at Rogers Memo rial 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 t he complaint, 15-year old Daniel and a friend broke into a neighb or's home. Daniel told police that as they looked around for i tems 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. Da niel was arrested and held at Kenosha County Detention Cente r (KCDC) pending trial. ¶6 The court granted defense counsel's request that Daniel undergo an evaluation to determine his compe tency to stand trial. Dr. Collins conducted the evaluation which included an interview with Daniel. Her report indi cates 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 "wa s hearing voices" and that he had previously received mental health treatment in connection with panic attacks. ¶7 Dr. Collins' evaluation also included a review o f Daniel's medical records from KCDC. Her report ind icates 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 sta ff 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 e vidence 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. Co llins' 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 withou t extended supervision. During his subsequent incarceration, the Department of Corrections determined that Daniel su ffered from a psychotic disorder and transferred him to the Wisco nsin Resource Center for treatment. Daniel's treating psychiatri st at the Resource Center, Dr. Alba, challenged his decisiona l competency and requested that Daniel be civilly committed purs uant to Chapter 51. ¶9 Following a hearing on the matter, the court ord ered Daniel's civil commitment. It determined that medi cation or treatment would have therapeutic value. It further determined that due to mental illness, Daniel was not competen t to refuse psychotropic medication or treatment. Accordingly, the court ordered that medication and treatment could be admi nistered without Daniel's consent during the period of commi tment. 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. De bra A.E., 188 Wis. 2d 111, 523 N.W.2d 727 (1994), that he had goo d faith reason to doubt Daniel's competency to pursue postc onviction relief. He explained that he had spoken with Danie l multiple times and that during those conversations Daniel eq uivocated in regard to pursuing postconviction relief, oscillati ng between a desire to pursue relief and a desire not to pursue relief. Despite a variety of approaches, defense counsel wa s unable to get Daniel to express any reasoning behind his deci sions to pursue or not pursue postconviction relief. ¶11 Defense counsel further explained to the court that since Daniel's conviction, Daniel had been diagnose d as schizophrenic, and had been civilly committed pursu ant to Chapter 51. He informed the court that his private ly obtained psychologist, Dr. Cumming, had evaluated Daniel and determined that Daniel was not competent to seek postconvictio n relief. Accordingly, defense counsel moved the court for a finding that there was reason to believe that Daniel was incompe tent and asked the court to rule regarding Daniel's competen cy to seek postconviction relief. ¶12 Attached to defense counsel's submission was a letter from Dr. Cummings. His letter indicates that he me t with Daniel after reviewing Daniel's records. During their fir st meeting, it was clear that Daniel lacked the capacity to und erstand theNo. 2012AP2692-CR

6 purpose of the visit or that Dr. Cummings' findings would be used to aid Daniel's defense. During the second me eting, 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 ce rtainty that Daniel was not competent to understand the appeal p rocess or make decisions about legal matters. ¶13 The court appointed a psychologist, Dr. Rawski, to evaluate Daniel, but Daniel refused to meet with hi m. Therefore, Dr. Rawski was unable to offer an opinio n to a reasonable degree of professional certainty as to D aniel's then current state of competency to participate in legal proceedings. He recommended that Daniel be transferred to a stat e psychiatric institute for an inpatient assessment. ¶14 Following Dr. Rawski's recommendation, the cour t ordered the State to transfer Daniel to a state psy chiatric institute for evaluation of his competency. There, he was examined by Dr. Phelps, a forensic psychiatry fello w. Dr. Phelps determined that Daniel's behaviors were not the product of mental illness, but rather the result of a chara cterological disorder. Although he acknowledged the possibility that Daniel had a major mental illness, Dr. Phelps observed tha t Daniel had denied symptoms of mental illness and, with one exc eption, had not exhibited signs or symptoms of mental illness. ¶15 Dr. Phelps further acknowledged the possibility that the medications Daniel took were effectively treati ng a mental illness. However, observing that Daniel had previo uslyNo. 2012AP2692-CR

7 demonstrated the capacity to stand trial and that h e did not demonstrate symptoms of a condition that would prec lude his capacity, Dr. Phelps concluded that Daniel had subs tantial mental capacity to understand the proceedings and a ssist in his
own defense. ¶16 After the evaluations were complete, the court held a competency hearing. At the start of the hearing, t he 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 "Y eah." Thereafter, defense counsel asked Daniel if he coul d explain what it means to appeal a conviction. Daniel respo nded "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 compete nt, the court made an initial determination of competency. It placed the burden on defense counsel to show that Daniel w as incompetent. To meet his burden, defense counsel p resented the testimony of Dr. Alba, Dr. Phelps, Dr. Collins, Dan iel's social worker at the Wisconsin Resource Center, and Dr. Cu mmings. He also presented the reports from Dr. Alba, Dr. Phelp s, and Dr.No. 2012AP2692-CR

8 Cummings, Daniel's medical records from Rogers Memo rial, and Daniel's discharge summary from Rogers Memorial. 3 ¶18 The circuit court opined that based on Wis. Sta t. § 971.14(4)(b) (2011-12) 4 , if the defendant claims to be competent, the defendant shall be found competent u nless 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 compet ency. However, the court determined that the clear and co nvincing standard still should be applied: "the standard sho uld 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 concl uded that defense counsel had failed to show by clear and con vincing evidence that Daniel was incompetent. ¶19 On appeal, the court of appeals observed that t he circuit court could allocate the burden of persuasi on to the defendant or defense counsel in a postconviction co mpetency proceeding. State v. Daniel, 2014 WI App 46, ¶2, 3 54 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 want ed to plead guilty. It states: "this is Roddee DanieL i want t o plead Guilty for the murder of [C.W.] I want to plead Gui lty. Im admitting that I killed [C.W.]."

4 All subsequent references to the Wisconsin Statute s 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 "prepon derance of the evidence" burden of proof when doing so. Id. Because the circuit court had applied an incorrect burden of pr oof, the court of appeals reversed and remanded. Id. It fu rther 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 o f 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 autho rity and prior case law. Ultimately, this issue presents a question of law which this court reviews independently of the d ecisions rendered by the circuit court and the court of appe als. 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 crim inal trials, competency refers to the defendant's "present menta l capacity to

5 The petition for review presented this as two issu es: who bears the burden of proof and what is the correct p rocedure to follow when a defendant and defense counsel disagre e about a defendant's competency. However, in the parties' a rguments the second issue was subsumed into the first. Accordin gly, 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] mu st be whether he has sufficient present ability to consult with h is lawyer with a reasonable degree of rational understanding -- and whether he has a rational as well as factual unders tanding of the proceedings against him."); State v. Byrge, 200 0 WI 101, ¶27, 237 Wis. 2d 197, 614 N.W.2d 477 ("a defendant is incompetent if he or she lacks the capacity to unde rstand the nature and object of the proceedings, to consult wi th counsel, and to assist in the preparation of his or her defe nse."). ¶22 Courts have long followed the rule that incompe tent defendants should not be forced to face criminal pr oceedings during their incompetency. State ex rel. Matalik v . Schubert, 57 Wis. 2d 315, 321, 204 N.W.2d 13 (1973). Wiscons in 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 accus ed 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 thereo f, by a jury or otherwise, as it deems most proper; an d if it shall be thereby determined, that such accuse d person is insane, his trial for such offense shall be postponed indefinitely . . . . The current Wis. Stat. § 971.13(1) provides: "No pe rson 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 o f other constitutional rights: Competence to stand trial is rudimentary, for upon it depends the main part of those rights deemed essent ial 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) (Ken nedy, J., concurring). Thus, the Supreme Court has stated th at the prohibition on the prosecution of incompetent indiv iduals is "fundamental to an adversary system of justice," Dr ope v. Missouri, 420 U.S. 162, 172 (1975), and the convict ion of an accused person while he is legally incompetent viol ates due process, Cooper v. Oklahoma, 517 U.S. 348, 354 (199 6). See also State v. Garfoot, 207 Wis. 2d 214, 221, 558 N.W.2d 626 (1997) (observing that the prohibition is an issue of "fun damental fairness"). ¶24 Consistent with those statements, the Supreme C ourt has further determined that "the failure to observe procedures adequate to protect a defendant's right not to be t ried 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, c onvicted 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 crimina l proceeding [is] a fundamental right requiring due process prot ections"). ¶25 Wisconsin's codified procedures to protect a de fendant from being tried while incompetent can be traced ba ck to 1878. Wis. Stat. § 4700 (1878). The current procdures ar e found in Wis. Stat. § 971.14. Under the statute, if there i s reason to doubt a defendant's competency, the court "shall ap point one or more examiners having the specialized knowledge det ermined by the court to be appropriate to examine and report u pon the condition of the defendant." Wis. Stat. § 971.14(2 )(a). Copies of the report are delivered to the State, the defen dant, and defense counsel. Wis. Stat. § 971.14(4)(a). If ea ch waives the opportunity to present evidence on the issue, "the court shall promptly determine the defendant's competency." Wi s. Stat. § 971.14(4)(b). ¶26 The statute directs that in the absence of waiv ers, the court shall hold an evidentiary hearing on the defendant's competency. Wis. Stat. § 971.14(4)(b). It describ es 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 m ute 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 a nd convincing that the defendant is incompetent. If th e defendant is found incompetent and if the state pro ves by evidence that is clear and convincing that the defendant is not competent to refuse medication orNo. 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 standar ds. Wis. Stat. § 971.14(4)(b). ¶27 To protect the right to these competency procee dings, in State v. Johnson, 133 Wis. 2d 207, 395 N.W.2d 17 6 (1986), the Wisconsin Supreme Court placed a duty on defense co unsel to raise the issue of defendant's competency whenever there is reason to doubt it. In that case, despite strong i ndications 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 t he court was whether counsel's failure to do so constituted repr esentation which fell below an objective standard of reasonabl eness. Id. at 218. ¶28 In its analysis, the Johnson court explained th at the procedure for determining competency laid out in Wi s. Stat. § 971.14 is "a critically important fail-safe devic e for the benefit of accused persons who may not be able to f ully cooperate and assist in their defense." Id. at 218 -19 (quoting Matalik, 57 Wis. 2d at 322). It further observed t hat the protection is illusory if, when there is a reason t o doubt defendant's competency, neither the court nor couns el seek the procedures provided by the State for determining co mpetency. Id. at 219. The court held that "where defense cou nsel has a reason to doubt the competency of his client to sta nd trial, heNo. 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 r epresentation 'fall below an objective standard of reasonableness .'" Id. at 220. 7 ¶29 The Wisconsin Supreme Court subsequently recogn ized that the right to a competency determination extend s 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 postcon viction 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 w hat objectives to pursue must be made by the defendant, not defense counsel. Id. at 125. Because those tasks were req uired of the defendant, the court determined that a defendant "i s incompetent to pursue postconviction relief under sec. 809.30, Stats. 1991-

7 In 1984 the ABA adopted a standard substantially s imilar to that announced in State v. Johnson, 133 Wis. 2d 207, 395 N.W.2d 176 (1986). ABA Criminal Justice Mental Hea lth 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 s uch 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 t o 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 prescrib e 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 s hould 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 t he defendant and defense counsel disagree about competency. We acknowledge that, as a general matter, the burden of proof is f requently 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, 2008No. 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 ob ligated to alert the court of his doubt about competency under Johnson, 133 Wis. 2d 207. Thus, we decline to view the fulfillm ent of this duty in the same manner as a typical motion. ¶33 As the parties concede, there is currently no s tatute directly governing postconviction competency procee dings. 9

8 There are several situations in which this rule do es 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 circum stances justified a warrantless search); State v. Jerrell C .J., 2005 WI 105, ¶17, 283 Wis. 2d 145, 699 N.W.2d 110 (upon def endant'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 mo ved to suppress various admissions, the burden was on the State to show that the defendant received and understood his Mira nda warnings). Indeed, under Wis. Stat. § 971.14(4)(b) when the defense counsel raises the issue of competency at d efendant's request, the burden is explicitly on the State to p rove competency.

9 We have previously determined that Wis. Stat. § 97 1.14, by its terms, "govern[s] competency determinations onl y through the sentencing stage of a criminal trial." State v. De bra A.E., 188 Wis. 2d 111, 128 n.14, 523 N.W.2d 727 (1994). As D ebra A.E. explained, "[t]his conclusion follows from reading sec. 971.14 in its entirety and with sec. 971.13, as well as fr om the legislative history underlying these two sections." Id. The legislative history reveals that the drafters o f the proposed legislation were mindful that Wis. Stat. § 971.14 left unaddressed incompetency in postconviction proceedi ngs: [T]he Committee had not devoted sufficient attentio n 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. § 971.1 4(4) for guidance. ¶34 Wisconsin Stat. § 971.14(4)(b) defines the burd en in terms of the defendant's position. If the defendan t asserts competency, the State must prove incompetency by cl ear and convincing evidence and if the defendant asserts in competency, the State must prove competency by the greater weig ht 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 m ute 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 a nd 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 rig ht to raise up to the point of the imposition of sente nce but not afterwards. . . . The competency statute should be limited to proceedings up to and includin g sentencing. Judicial Council Insanity Defense Committee Summary of Proceedings, April 24, 1981, at 4. Currently a bill is pending in the legislature tha t 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 dur ing 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 inform ative 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 th e issue of competency has arisen, and the State wants to proce ed, the State will bear the burden of proving competency. ¶36 This interpretation of the statute is consisten t with our prior description of the statute's procedures. In Byrge, 237 Wis. 2d 197, ¶29, we stated that a court will f ollow the procedures of Wis. Stat. § 971.14 if there is reaso n to doubt a defendant's competency to proceed. We explained t hat a reason to doubt competency can be raised by either party o r by the
court. Id. We observed that once a reason to doub t competency has been raised, the court will appoint an examiner to conduct a competency examination and, absent a waiver, will h old a competency proceeding. Id., ¶30. Then, without re ference 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 righ t not to be tried while incompetent and the preconviction defen dant's right to liberty by reducing the risk of committing a com petent person." Daniel, 354 Wis. 2d 51, ¶8 n.4 (citing Sta te 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 Stat e can prove, by the greater weight of the credible evidence, tha t the defendant is competent." Id. 11 ¶37 Admittedly, Wis. Stat. § 971.14 does not direct ly answer the question of who bears the burden of proo f when a defendant disagrees with defense counsel regarding competency. Further, as stated above, the statute does not dire ctly govern competency hearings during postconviction proceedin gs and is referred to solely as guidance. Our prior interpre tation of that statute, however, supports a conclusion that r egardless 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 unt enable result of the alternative procedure. Were we to pl ace the burden of proving incompetency on defense counsel w hen defendant asserts competency it would create a conflict betwe en an attorney's duty as an advocate and an attorney's du ty as an officer of the court. ¶39 Attorneys' obligations to their clients are set forth in the Supreme Court Rules. One of the primary obl igations 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 questi on about competency has been credibly raised." Cooper v. Ok alahoma, 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 t he 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 sta te: (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 4 02, 797 N.W.2d 789 ("Maintaining confidentiality of informa tion relating to representation is a fundamental principle in the attorneyclient relationship."). The obligation to keep cli ent 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 atto rney. ¶41 In State v. Meeks, 2003 WI 104, 263 Wis. 2d 794 , 666 N.W.2d 859, this court observed the potential confl ict between an attorney's duty to a client to maintain confiden tiality and an attorney's duties as an officer of the court und er Johnson, 133 Wis. 2d 207. Meeks involved a competency heari ng at which the State offered the testimony of the defendant's former attorney. Id., ¶7. Over defense counsel's objecti on, the former attorney testified about her opinions, perce ptions, 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 forme r attorney's testimony revealed confidential informat ion 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 cli ent's competency to proceed without violating the attorne y-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 f rom the facts presented in this case. Meeks addressed a fo rmer attorney's testimony at a competency hearing as opp osed to present counsel raising the issue of competency. N evertheless, Meeks provides guidance through its remarks on the interplay between an attorney's duty as an officer of the cou rt and the attorney-client privilege. In response to argument s about the duty under Johnson, 133 Wis. 2d 207, the court held that "the former attorney's duty as an officer of the court d oes not, under the circumstances set forth herein, trump the attorneyclient privilege." Id., ¶43. The court then expla ined that Johnson's requirements were limited to merely raisi ng the issue of competency: An attorney's duty under Johnson demands a very nar row and limited breach of the attorney-client privilege

. The attorney is merely obligated to 'raise the issu e [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, i t would require more, upsetting the delicate balance that w e laid out in Meeks. The "limited breach" of attorney-client pri vilege necessary to fulfill the Johnson obligation would t urn to an open door, requiring attorneys to divulge significa nt information gained through private communications w ith their clients. Such a result is unpalatable and militate s in favor of placing the burden on the State. ¶45 A consideration of the relative interests at st ake 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 m ust 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 Compet ence to Stand Trial: Due Process at the Limits of Adversarial Jus tice, 45 Vand. L. Rev. 199, 226 (1992) (citing Speiser v. Ra ndall, 357 U.S. 513, 525 (1958)); see also Santosky v. Kramer, 455 U.S. 745, 757 (1982) ("[s]tandards of proof . . . are sh aped by the risk of error inherent in the truth-finding process "); Addington v. Texas, 441 U.S. 418, 423 (1979) ("The standardNo. 2012AP2692-CR

24 serves to allocate the risk of error between the li tigants and to indicate the relative importance attached to the ultimate decision."). ¶46 An erroneous decision that a defendant is compe tent implicates weighty interests of the defendant in po stconviction proceedings. Such an error would substantially hin der a defendant's ability to pursue postconviction relief or an appeal because defense counsel's ability to act without di rection from a client is limited. Ultimate decisions regarding the objective of representation, and whether to undertake a postc onviction proceeding or an appeal are left solely to the clie nt. 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, shal l consult with the client as to the means by which they are t o be pursued."). Accordingly, in some circumstances, an erroneous decision that a defendant is competent could preven t a defendant from seeking postconviction relief or filing an app eal altogether, affecting the defendant's right to appe al a criminal conviction. ¶47 In contrast, an erroneous decision that a defen dant is incompetent will have little impact on the State. As indicated by the procedures identified in Debra A.E., the onl y 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 enlar gement of time for filing the necessary notices or motions fo rNo. 2012AP2692-CR

25 postconviction relief" and permitting defendants wh o regain competency to raise issues that could not have been raised earlier due to incompetency). Further, in many cas es, 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 n ot necessary and there is no risk to the defendant). Thus, an e rroneous finding of incompetency will place little burden o n the State. ¶48 Balancing the risk to a defendant of losing the ability to seek postconviction relief or file an ap peal against the risk of the State having to face a delay in an appeal or postconviction proceeding, we conclude that the pot ential 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 i n Meeks, "[g]iven the nature of mental illness, a defendant may have been competent during a prior proceeding, but incompeten t now, and vice versa." 263 Wis. 2d 794, ¶50. ¶50 Further, competency has a different meaning in different circumstances. Compare Debra A.E., 188 W is. 2d at 126 (At a postconviction proceeding a defendant is inco mpetent to pursue postconviction relief "when he or she is una ble to assist counsel or to make decisions committed by law to th e defendantNo. 2012AP2692-CR

26 with a reasonable degree of rational understanding. ") with Byrge, 237 Wis. 2d 197, ¶27 ("a defendant is incomp etent [to stand trial] if he or she lacks the capacity to und erstand the nature and object of the proceedings, to consult wi th counsel, and to assist in the preparation of his or her defe nse."). Thus, the fact that a defendant was deemed competen t to stand trial should not create a presumption that the defe ndant is competent at a later date when the same defendant p ursues postconviction relief.

IV ¶51 In this case, defense counsel raised reason to doubt defendant's competency. In response, the State con tended that the defendant was competent. The burden should hav e been on the State to prove defendant's competency by a preponde rance of the evidence. The circuit court, however, placed the b urden on defense counsel to prove incompetency by clear and convincing evidence and determined that defense counsel did no t 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 stan d trial determination will not be upset unless they are cle arly erroneous because a competency hearing presents a u nique category of inquiry in which the circuit court is i n the bestNo. 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 inco mpetency by clear and convincing evidence. Because we agree wi th the court of appeals that it is unclear whether the circuit c ourt would have reached the same result had it applied the cor rect burden, we remand with the instruction that if Daniel's com petency remains at issue, a new competency hearing be condu cted.

V ¶53 In sum, considering the statute governing compe tency hearings, the potential conflict of interest in pla cing the burden of proof on defense counsel, and the relativ e interests and risks at stake, we determine that once a defens e 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 rem and 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 c ourt. ¶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

28No. 2012AP2692-CR

1