IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2014-CA-01061-COA JEFFREY BRASSO A/K/A JEFFREY SCOTT BRASSO APPELLANT

v. STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 06/30/2014 TRIAL JUDGE: HON. DALE HARKEY COURT FROM W HICH APPEALED: JACKSON COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: RAYMOND OSBORN BOUTW ELL JR. ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART NATURE OF THE CASE: CIVIL - POSTCONVICTION RELIEF TRIAL COURT DISPOSITION: MOTION FOR POSTCONVICTION RELIEF DISMISSED DISPOSITION: REVERSED AND REMANDED - 04/12/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE IRVING, P.J., CARLTON AND JAMES, JJ. JAMES, J., FOR THE COURT: ¶1. Jef f rey Brasso appeals f

rom the circuit c ourt’s o rder sum m arily dism issing h is m otion f or postconviction relief (PCR). Finding error, w e r everse and r e ma n d w i t h instructions consistent with this opinion. A lthough Brasso raises f ive issues on appeal, we address only the f irst issue regarding Brasso’s com petency because we f

ind that issue is dispositive. ¶2. The record contains suf f icient proof that t he circuit court had r easonable g rounds to believe that Brasso was potentially incom petent to stand t rial. Becaus e the circuit court f ailed to order a m ental exam ination f ollowed by a com

petency hearing under Unif orm Ruleo f Circuit and County Court Practice 9.06 prior to Brasso’s guilty plea, we r everse t h e

decision of the circuit court, and vacate Brasso’s conviction. Brasso should be either retried

or institutionalized f

o llowing a m ental e valuation and com petency hearing under Rule 9.06. See Smith v. State , 149 So. 3d 1027, 1035 (¶19) (Miss. 2014).

FACTS AND PROCEDURAL HISTORY ¶3. On October 13, 2009, Brasso was i n d i c t e d f o r s e x u a l b a t t e r y in violation of Mississippi Code Annotated section 97-3-95(1)(d) (Supp. 2015). Specif ically , Brasso was indicted f or having sexual relations with a m inor under the age of f ourteen y ears old at the tim e, while he was m ore t han t wo y e a r s o l d er t han the m inor, b etween January 2004 and Septem ber 2008. ¶4. Brasso’s m other a dopt e d a mi n o r f oster child, M.P. 1 Brasso, his m o ther, and his adopted s ister, M.P., lived together. Brasso, at thirty two y e ars old, began sexually abusing
M.P. when she was nine y ears old. Brasso began having sexual intercourse with M.P. when she was eleven y ears old. B rasso f athered a child w ith M.P. when she was thirteen y ears old. Som etim e af

ter M.P. gave birth to the c h i l d , B rasso a nd M.P. went to L ouisiana to get

m arried. M.P.’s biological m other signed a waiver f or Brasso and M

. P

. t o get m arried.
Brasso and M.P. got m arried and lived together. Som etim e later, M.P. m o ved out of the house, and the m arriage ended. It is uncertain w hether t he m arriage was a n nulled, or whether it was void in the f

irst instance due to M.P.’s age. R egar d l e s s , M .P.’s biological m other lacked authority

to sign an ef

f ective waiver af

ter she was adopted.

1 We h av e su b stitu t ed in itials f o r th e n am e o f

th e m in o r v ictim

. 2¶5. Brasso f iled a petition to enter a guilty plea f or sexual battery

of a child in violation of section 97-3-95(1)(d). On April 18, 2011, a plea hearing was held. T he circuit court

a c c e pted Brasso’s g uilty plea as voluntary and intelligently entered. However, the ci r c u i t
court def erred sentencing in order to obtain a presentence investigation report and to allow
Brasso to undergo a m ental evaluation. On May 9, 2011, B rasso underwent a psy chological f or e n s i c e v a l uation by Stef an Massong, Ph.D. Dr. Massong prepared a report on May 23, 2011. Dr. Massong stat e d i n h is report that Brasso was ref e rred by his p ublic def

ender, Adrienne Crawf

o r d , t o “be evaluated to determ ine [ Brasso’s] general p sy chologic disposition, to identif

y any m e ntal disorder(s) a nd to m ake recom m endations f or t reatm ent, if applicable.” ¶6. The evaluation r eport was subm i tted t o t he ci r c u i t c o u r t , and on June 17, 2011, the sentencing hearing was h e ld. T h e c i r c uit court h eard f r om the prosecutor, Angel My ers, Brasso’s attorney , Brasso, and w itnesses who testif ied on Brasso’s behalf

. The c i rcuit court sentenced Brasso to twenty -f ive y ears in t h e c u stody of the Mississippi Departm ent of Corrections, with twelve y ears to serve da y - f o r - d a y , a n d fi v e y ears of p ostrelease supervision. ¶7. On April 17, 2014, Brasso f iled a PCR m otion. On June 3 0, 2014, the circuit court

sum m a r i l y d i s m i s s e d B r a s s o ’ s P C R m o t i o n u n d er Mississippi C ode Annotated section 99-39- 11(2) (Rev. 2015). It is f

rom this order that Brasso appeals to this Court. STANDARD OF REVIEW ¶8. “The [ c ircuit] cour t ma y s u mma r i ly dism iss a m otion f or PCR if i t plainly

appears f rom the f ace of the m otion, any annexed exhibits and the prior proceedings in the case that

3the m ovant is not entitled to any relief .” Smith, 149 So. 3d at 1031 (¶7) (citing Miss. Code Ann. § 99-39-11(2)). This C ourt determ ines whether the m o t i on presents a claim procedurally a live substantially showing denial of a state or f ederal right on appeal f

rom the

sum m ary dism issal of

a PCR m otion. Id. ¶9. The constitutional right not to be tried or convicted while incom petent i s a com

ponent of a def e ndant' s due-process right to a f air trial. Smith, 149 So. 3d a t 1031 (¶8) (citing Pate v. Robinson , 383 U.S. 375, 385 (1975)). “Unif orm Rule o f Circuit and County Court 9.06 requires a [ circuit] court to order a def endant to undergo a m ental exam i nation if , upon its

o w n mo t ion or upon m otion of an attorney , the [ circuit] court has reasonable ground t o believe that the d e f

endant is incom

petent to stand trial.” Bradley v. State , 116 So. 3d 1093, 1095 (¶13) (Miss. Ct. App. 2013). ¶10. The determ i n a t i o n o f w h e t h e r a circuit court has a reasonable ground to suspect incom petency is within the discretion o f t he trial judge. Harden v. State , 5 9 So. 3d 594, 601 (¶14) ( Miss. 2011). “The s tandard of review f or an appellate court to determ ine i f there was

an abuse of discretion is whether the trial judge received inf o rm ation which, o bj e c t i vely considered, should reasonably have raised a d oubt about the def endant ' s com

p etence and alerted the judge t o th e p o s s i b ility that t he def endant c ould neither understand the proceedings, appreciate their signif icance, n o r rationally a id his attorney in his def ense.” Bradley , 1 16 So. 3d at 1095-96 (¶13) (citing Goff v. State , 14 S o. 3d 625, 644 (¶66) (Miss. 2009)). DISCUSSION

4I. Whether Brasso w as com p etent to enter a guilty plea.

¶11. Brasso argues that he was not com petent to enter a guilty plea. Brasso also a rgues that the circuit court erred b y

not ordering a m ental exam ination and conducting a com petency hearing prior to accepting his guilty plea. ¶12. Under Unif

orm Rule of Circuit and County Court 8 .04(A)(4)(a), “it is t he d uty of the [ circuit] court to address the d e f endant personally a nd to inquire a nd determ ine

. . . [ t]hat the accused i s com

petent to understand the nature of the charge[ .]” “W hen the evidence raises suf f i cient doubt as t o the def

e ndant' s com

petency to stand trial, the def endant is deprived of due process of law if the trial court f ails to conduct a separate com petency hearing.” Smith , 149 So. 3d at 1033 (¶15) (citing Pate, 383 U.S. at 385). Rule 9 .06 of the Unif orm Rules of Circuit and County Court Practice provides t he procedure f or a circuit court’s determ ination of w hether a crim i nal def

endant is m entally c om

petent to stand trial. “Rule 9.06 is m eant to

ensure that a def

endant’s due process rights a re not violated.” Coleman v. State , 127 So. 3d 161, 166 (¶13) (Miss. 2013). Rule 9.06 instructs the circuit court, in part: If bef ore or during trial the court, of its ow n mo t i o n or u pon m otion of an attorney , has reasonable ground to believe that the defendant is incompetent to stand trial, the court shall order t h e d e f e n d a n t to submit to a m ental examinat i o n by som e com petent psy c hiatrist selected by t he court in accordance with § 99-13-11 of the Mississippi Code Annotated of 1972. Af ter the exam i nation the court shall conduct a hearing t o determ ine if the def endant is com

p etent to s tand trial. A f

ter hearing all the evidence, the court shall weigh the e vidence and m ake a determ ination of w hether the def endant is com petent t o stand trial. If the court finds that the defendant is c ompetent to s tand t rial, then t

he c ourt shall make the finding a matter of record and the case wi l l t h e n p r oceed to trial

. If the court f inds that the d ef

endant is incom petent to s tand trial, then t h e c o u r t shall com m it the def e ndant to the Mississippi State Hospital or other appropriate m ental health f a cility

.
5(Em

phasis added). ¶13. Thus, u nder Rule 9.06, “once the [ circuit] c ourt has r easonable ground to believe the def endant is incom

petent, Rule 9.06 m andates that t he [ circuit] c ourt shall order a m ental evaluation f

ollowed by a c om

petency hearing to d e term ine whether the def endant is

com petent to stand t rial.” Smith , 149 So. 3d at 1033 ( ¶16) ( citing Sanders v. State , 9 So. 3d
11 3 2 , 1 1 3 7 (Miss. 2009)). I ndeed, “even where the issue of com petency to stand trial has
not been raised b y d ef

ense counsel, the trial judge has an ongoing r esponsibility t o prevent the trial of an accused unable to assist in his own def ense.” Magee v. S

tate , 9 14 So. 2d 729, 734 (¶14) (Miss. Ct. App. 2005). ¶14. W e f

ind that the record contains s uf f icient proof that g ave the circuit court reasonable grounds to believe that Brasso was incom petent to stand trial. T heref ore, a m ental evaluation f ollowed b y a com

p etency hearing under Rule 9.06 was warranted bef ore Brasso was able
to enter his guilty plea based on the record bef ore this Court. The record contains num erous ref erences about Brasso’s dim inished m ental capacity

. ¶15. The f

ollowing excerpts f

rom t h e p lea hearing dem onstrate that suf f icient evidence existed to raise doubts as to Brasso’s com p etency to stand trial: The C ourt: You obtained a high school diplom a f rom Pascagoula[ ? ]
Brasso: No, sir. The Court: From Gulf Coast Academ y [ ? ]
Brasso: Yes, sir. The Court: And i t say s here in parentheses “f or sp e c i al education.” You were a special ed student?

6Brasso: Yes, sir.

. . . . The Court: . . . Have y ou held any jobs?
Brasso: Not m uch. I get Social Security

. The Court: SSI [ (Supplem e ntal Security Incom e)]?
Brasso: No, Social Security

. The Court: Social Security

. Okay

. Are y ou u n d e r t he inf luence of any drugs or alcohol at this tim e?
Brasso: No, sir. The Court: Is there any history of mental illness or mental disease?
Brasso: Y

es, sir. The Court: And t hat’s speci a l e d u c a t i o n s e r v ices y ou received in

school?
Brasso: Yes, sir. The Court: And I’ve conferred with the attorneys in chambers and I

understand that there is some i n f ormation about your mental status t

hat your a ttorney wants to pre s e n t the Court to consider in any sentence I impose. Correct?
Brasso: Y

es, sir. (Em phasis added). ¶16. Brasso also inf

orm ed the circuit court that he was on an a n t idepressant m edication.
Later during t he p l ea hearing, t he circuit court questioned Brasso about a p o ssible prior f elony conviction, and it was revealed that Brasso had suf f ered organic brain dam age: Brasso: I t w a s like 20-som ething y ears ago. It was - - Fieldin g
7W right I think was m y lawy er. The Court: Okay

. Brasso: I can’t rem em ber. It’s so long ago and I have - - The Court: Let’s see, 20 y ears, t hat would h ave b een a b out ’91, ’92?
Brasso: And I have organic brain damage , so . . . The Court: From what?
Brasso: From birth. Ms. Crawf

ord: He suf

f ered som e frontal lobe damage at birth , Judge. The Court: You say around 20 y ears ago, in the 1990[ ]s?
Brasso: Eighties - - som ewhere in the eighties, I want to say

.

. . . . The Court: Mr. Brasso, have y ou discussed w ith y our attorney what

the State’s sentencing recom m endation will be? Is there a recom m endation? I see it’s blank here. Ms. Crawf

ord: J u d g e , w e ’ v e r e c e i v e d a c o u p l e o f d i f f e r e n t recom m e n dations, a nd f rom what I understand, the State’s going to reserve its right to c h a n ge the recom m endation. I was told 25 y ears this m orning with the right to change the recom m endation pend i ng the outcom e of a pre-sentence investigation, which basically

- - not thr o u gh p robation and parole, but I know we’ve agreed to have him evaluated

. (Em phasis added). ¶17. During the plea hearing, t he trial court was advised o f B r a s s o ’s special education background, his history o f m ental illness and disease, his organic brain dam age, and that he had been taking m edications. The circuit court did not inquire into Brasso’s answer stating

8that he had a history of m ental illness and m ental disease. ¶18. The plea t ranscript i ndicates that the circuit court had been previously advised that the prosecution and Brasso’s attorney had agreed to have Brasso undergo a m ental evaluation. The circuit court conf

i rm ed that a discussion h a d occurred in cham bers p rior to the plea hearing on the subject of Brasso’s m ental issues and the need f or an evaluation. However, the record is unclear as to exactly what issues r egarding B rasso’s m ental com petency were discussed or raised prior to the plea hearing. Moreover, the circuit court d id not explain why

a m ental evaluation was not warrant ed prior to the plea hearing, although i t w a s agreed to take place prior to sentencing. ¶19. D e s p ite being advised of B rasso’s history of m e ntal illness a nd disease, the ci r c u i t
court accepted Brasso’s guilty plea as knowingly , intelligently , a n d v o l u n t a r i l y e n t e r ed bef

ore Brasso underwent a m ental e xam ination f o llowed by a com

petency hearing. Af

t er accepting Brasso’s guilty plea, B rasso’s attorney stated that she needed a m onth to get “the p aperwork and every

thing together and have him eval u a t e d and provide t hat to the State[ .]” The prosecutor then r equested an of f i cial presentence i nvestigation “ p lus the m ental evaluation.” Brasso’s attorney

inf orm ed the circuit court that Brasso was on “m ultiple m e d ications.” ¶20. O n M a y 9 , 2 0 1 1 , B r a s s o underwent a m ental evaluation by Dr. Massong. D r . Massong concluded that Brasso had a generally norm al m ental statu s ; l ikely low-average intelligence; w as f

ully oriented; had adequate cognitive ef f i c i e n cy ; and had no p sy chosis. However, Dr. Massong’s report revea l e d a n “extensive and p ervasive history of m ental health and behavioral dy s f unction that beg[ an] [ at Brasso’s] childhood and continues today .”

9¶21. Dr. Massong determ i ned that B rasso suf f e red f rom organi c b r a i n sy

ndrom e; never achieved the m ilestone of a f ully f unctioning, independent, or self -suf f i cient adult; and had been hosp i t a l i z e d f

or psy c hiatric treatm e nt m any tim es, including at least three civil

com m itm ents. Dr. M a ssong also f ound t hat Brasso had received m a ny psy chiatric diagnoses

over the y ears including, a m o ng others, interm ittent e xplosive disorder, personality disorder

n o t o t h e r w i s e s p e c i fi e d , b o r d e rline personality disorder, delusional disorder, bipolar d i s o r d e r , and schizoaf

f e ctive disorder. Dr. Massong n oted that B r a s s o h ad been t reated w ith m any psy c h oactive m edications o v e r t h e y e a r s , a n d h e h a d r e c e i ved extensive outpatient psy chiatric and psy chological services. Dr. Massong also conf irm ed that Brasso had been determ ined
to be f ully and perm a nently disabled, likely f or both m e di c a l a n d psy c hiatric reasons, by a Social Security

determ ination. ¶22. O n J u ne 17, 2 011, the sentencing hearing was held where additio n a l s i g n i f i c a n t inf orm ation was shown r egarding Brasso’s com petency

. The f

ollowing e x changes relevant to doubts surrounding Brasso’s com petency occurred: The Court: A l l right. Mr. Brasso, y ou were bef o re t he C ou r t A p r i l 18, 2011, [ and] entered a plea of guilty to s exual battery

. The Court at that tim e de f e r r e d sentencing to obtain a pre-sentence investigation report that I believe has been com pleted. The Court has reviewed that. And also a lot of information submitted on your behalf by your attorney as to your medical condition

.

. . . . Ms. C rawf

ord:

. . . But the reason that I’m telling y ou all of this is to try

to put it in context f

o r y ou a b out Jef f rey [ Brasso]’s mental state

. That’s where I w as g oing next, is t here are medicals that I presented to y o u that show he is slow

.

1 0He’s got som e i n t ellectual functioning problems

. His schooling, he’s always been in special education classes

. He’s n e v er lived by himself really. He’s running slow and he has some issues. He cannot take care of himself

.

. . . A nd I am in n o way blam ing the v ictim , but there are things that n e e d to be known to the Court to put i t in conte x t t o understand. If you have a man w ith diminished capacity

. . . it causes problem s when y ou put that into the sam e house and the sam e situation. Now, I t h i nk it’s a horrible set o f circum stances, it’s a terri b l e situation.

. . . And

. . . you have a m a n w h o i s of diminished capacity , and I think it’s a v ery bad situation. I think he thought he was doing the right thing. (Em phasis added). ¶23. D u r i n g the hearing, C rawf ord called Brasso’s u ncle, Roy ce G. Crowley S r . , t o t h e stand to testif

y . Crowley

testif ied, in pertinent part: Mr. Crowley : . . . . First of all, I w o u l d l i k e to talk about [ Brasso’s]

phy sica l condition. E very thing I’m going to say about [ Brasso’s] heal t h i s on record and docum e nted. W hen [ Brasso] was b orn, he suffered f rontal lobe dam a g e , h e was lef t to o long in the birth canal. This h as been docum ented by MRI. There is little a ctivity in that area . He did not get suf

f icient o xy ge n to his b rain, and it l ef t him with ADHD and also seizures until he was a bout six y ea r s old. He has b een diagnosed w ith schizophrenic and bipolar [ disorder], which runs in his f amily with his bottom two brothers also having the same disorders [ .] .

. . [ Brasso] is just a big 14-to-15-year-old mentally

. O r to be stated truthfully, after having known him all his life, he is simple-minded

, a man with mental d

eficiencies

. I’ve helped m y sister with m a n y h ousehold projects over the y ears and Jef

f rey could never h elp me w i th any of them because he could not be taught even a simple task

. He just wasn’t mentally capable

. So , Y o u r Honor, please, please, keep all this i n m ind w hen y ou m ake y o ur decision.

. . . .
1 1Mr. Crowley : Okay

. That’s, that’s the situation I h a v e , t o s h o w y ou Jeffrey is simple-minded and he - - The Court: I understand, and we are here about his problems

. (Em phasis added). ¶24. Next, a f

a m i ly f riend, Darlene Austin, took the stand:
Ms. Austin:

. . . . But it just seem s like the last thing that I c o uld say

is that his mental condition has been deteriorating really badly [ .] And I’ve seen their m other try to get all the h elp f or [ Brasso] that she c ould. She took him to the m ental health . . . but it was just out of control

. (Em phasis added). ¶25. Cra w f

o r d t h e n a d d r essed the circuit c ourt regarding the testim ony that had been presented: Ms. Crawf

ord: Judge, I think

- - y o u k n o w, that being said with f am i ly m e m b ers and f

riends of f

am i l y , obviously that Mr. Brasso has some m ental issues that he’s been having to deal with , obviously this is a very dy sf unctional f

am i ly situation t hat has b rought us here today , J udge.

. . . I also had a mental evaluation done by D r. Massong that I turned in to Y

our Honor, a nd what he found in this evaluation is that he do e s h a ve a l ot of m ental deficiencies, that he is slow, very immature

. (Em phasis added). ¶26. Brasso also addressed the circuit c o u r t , a g a i n r a i s ing a question as to his m ental capacity : Brasso: I j u s t w anted to say that I’m sorry , and

- - I don’t k n o w what’s wrong with m e
. Y ou know, my, my mind ain’t right. And I’d like t o g e t some help, get back on my medication

.

1 2(Em

phasis added). ¶27. The circuit court acknowledged Brasso’s num erous issues: The Court: As I indicated, I’ve rarely seen a situation like this. It’s just as mo n s t r o u s as it is perplexing to m e . A situation where an individual w a s t a king children who need a h o me, to care f

or t hem , n urture them , a nd in t hat h o me they becom e victim ized - - or this [ m inor] d oes. . . . This victim becom es v i c tim ized. By an individual who has learnin g d

i s a b i l i ties, by an i ndividual who has antisocial, explosive disorder, con d

u ct d isorders, has a myriad of issues of his own

. (Em phasis added). ¶28. The circuit c ourt went o n to disc u s s B r a s s o ’ s s e v e r e l y dy sf unctional f

am ily and
“m onstrous” c over up, which appeared to h a v e b e en f acilitated by Brasso’s m other. Just bef ore issuing i ts sentence, the Cou r t s t a ted: “ [ B rasso] might not q uite fully u nderstand everything , b ut h e knew better.” (Em phasis added). This statem ent substantiates the f inding that there was inf

orm atio n that raised doubt about Brasso’s com petence and “ alerted the circuit court to the possibility that the def endant could neither understand the proceedings, appreciate their s ignif

icance, nor rationally aid his attorney in his def e nse.” See Bradley , 116 So. 3d at 1095-96 (¶14). ¶29. Af ter sentencing B rasso, the circuit court “direct[ ed] t hat Mr. Brasso be d elivered to the m edical unit at t he penitentiary and there h oused u ntil, in the opinions of those in charge of that m edical u nit and psy chiatric unit

. . . he can handle [ t he] g eneral population and that his m edical needs are m et.” ¶30. The record is replete with inf or ma t i o n t h a t , when objectively considered, certainly

1 3should have raised doubt a s to Brasso’s com petency

. Throughout t his re c o r d , the circuit
court w as alerted to and even acknowledged proof of Brasso’s poss i b l e incom petency

. However, t h e c i r c u it court did not order a m ental exam ination f ollowed by a com

petency hea r i n g p r i o r t o the plea hearing. The dissenting opinion states that the trial judge did not abuse his discretion by ordering a m ental evaluation af ter B rasso entered his guilty plea f or sentencing purposes only

. Howeve r , R u le 9.06 does not provide f or retroactive m ental evaluation to determ ine a def endant’s com

petency to stand trial. ¶31. W e f

ind that the circuit court abused i ts discretion in not ordering a m ental evaluation and c onducting a m ental com petency hearing prior to accepting Brasso’s plea b ased on the record bef

ore us. As a result, we reverse the decision of the circuit court, and vacate Brasso’s conviction. Brasso s hould b e e ither retried or institutionalized f ollowing a m ental evaluation and com petency hearing under Rule 9.06. S ee Smith , 149 So. 3d at 1035 (¶19). ¶32. T H E J U D G M E N T O F T H E JACKSON COUNTY CIRCUIT C O U R T I S REVERSED, AND THIS C ASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT W ITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO JACKSON COUNTY. LEE, C.J., I RVING, P.J., BARNES AND GREENLEE, JJ., CONCUR. CARLTON, J., CONCURS IN RESULT O NLY WITHOUT SEPARATE WRITTEN OPINION. WILSON, J ., D I SSENTS WITH SEPARATE W RITTEN OPINION, JOINED BY GRIFFIS, P.J., ISHEE AND FAIR, JJ. WILSON, J., DISSENTING: ¶33. A def

endant is com

petent to enter a guilty plea as long as he has “suf f icient present ability t o consult with his lawy er with a reasonable d egree of rational u nderstanding” and a “rational as well as f

actual understanding of t he proceedings against him .” Russell v. State ,

1 444 So. 3d 431, 435 (¶13) (Miss. Ct. App. 2010) (quoting Magee v. State , 914 So. 2d 729, 733

(¶11) ( Miss

. C t

. A p p . 2005)). The trial judge in this case was n ot presented with any inf orm ation that called into question B rasso’s understanding of t he charges against him or his ability to consult with his lawy e r. Accordingly , the trial judge did not abuse h is discretion by not ordering a com

petency hearing sua sponte. ¶34. At his plea h earing, B rasso answered all o f t h e j u dge’s questions responsively and coherently

. Brasso’s attorney conf irm ed that she had not had a n y dif f i culty c o m m

unicating with him

. Brasso conf

irm e d that he understood the charges against him , t he m inim um and

m axim u m sentences, that he w ould be ineligible f or parole, and that he would h ave to register

as a s ex of

f ender. He also conf

irm ed that he and his attorney had discussed the f acts of the crim es wi t h w h i c h h e w as charged and p ossible d ef enses. H e also c o nf

irm ed that he understood that by pleadi n g guilty , he waived a num ber of constitutional rights. He then adm itted that he had sex with the victim , his adopted sister, w hen she was u nder the age of f ourteen. Finally , Brasso conf irm ed that he desired to plead g uilty

. The judge t hen accepted Brasso’s plea, f

i nding that it w as entered f reely , voluntarily , a n d k n o w i n gly

. At no point during the hearing was Brasso’s behavior unusual or erratic. Brasso’s attorney did request

a m ental evaluation prior to sentencing. However, she e xpressed no concerns as to Brasso’s

com petence. It is clear that she wanted an e v a l u a t i o n o n ly to provide the judge with additional inf

orm a tion f

or consideration at sentencing. ¶35. Prior to sentencing, Dr. Stef an Massong evaluated Brasso and prepared a report f or the court. According to Dr. Massong, Brasso “was generally alert, cooperative, and seem ed

1 5m otivated” during his interview. Dr. Massong f ound that Brasso had “a well-ingrained personality s ty le of ‘victim hood’ or helplessness or ‘poor m e’ characteristic of chronically

em otionally im m a ture and inadequate individuals.” D r . M assong concluded that Brasso consciously and subconsciously s o u g ht to m a nipulate o thers f or his o wn benef

it and to engender sy

m pathy

. Dr. M assong noted that Brasso’s m edical records included sim ilar observations by other m edical prof essionals. ¶36. D r . M a s s o n g ’ s r e p o r t e d t h a t Brasso had been d iagnosed with “Organ i c B r a i n Sy ndrom e related to hy

poxia episode at birth (m i ld b rain dam age due to oxy gen privation).” According to Dr. Massong, the ty pical characteristics of this condition—which Brasso exhibited—include learning disabilities, hy p eractivity , unstable m oods, m arked im m aturity , im p ulsiveness, tem

per t antrum s, lack of auton o my , dy sf unctional relationships, poor judgm ent, problem -solving dif f iculties, and occupational dy sf unction. ¶37. Dr. Massong also noted that B r a s s o had been hospitalized f or psy c hiatric treatm ent several tim es, som etim es in c o n nection with suicidal statem ents and “som etim es

accom panied by self

-descriptions of p sy chosis

. . . , but without any clinical verif ication by the attending m ental health prof essiona l s . ” D r . Massong f urther explained: “ M ost of the

m ental h ealth prof

e ssionals that have evaluated [ Brasso] and/or tre a t ed him , including

m y self , have not o bserved s y m pt o ms consistent with diagnoses of psy choses or Schizophrenia” (em

phasis added); however, som e p rof essionals, Dr. Massong included, had concluded that B rasso was q uick to claim “Schizophrenia as his diagnos i s o r . . . of f er[ ] a f orm al list of Schizophrenia sy m ptom s t hat s ound[ ed] contrived or rehearsed.” Brasso had

1 6not been hospit a l i z e d f o r psy chiatric reasons in the f ive y e ars prior to his a r

rest, and Dr. Massong observed that he “ see me d to h ave a relatively m ore stable personal and social adjustm ent” during that period. ¶38. Dr. Massong concluded his report with “Find i n g s ” t h a t b e g i n w i t h the f ollowing

sum m ary of Brasso’s m ental health:
Mr. Brasso is a 4 3 y ear old m an w ho presents with a g enerally n orm al m ental status: likely low- a v e r age intelligence with educational achievem ent com m ensurate w ith upper grade school to junior high school education; f ully oriented; adequate cognitive ef f iciency ; no psy chosis; suicide ideation/intent is not apparent; no recent history of a l cohol or substance a buse. H e is, however, quite distressed a nd em otionally f ragile

- - worried about his m other and son and, of

course, his pending sentencing date. ¶39. The plurality opinion em phasizes B rasso’s “organic brain sy n drom e” a nd his uncle’s testim o ny that he is “sim

ple-m inded,” but n either this inf orm ation nor a ny

thing else bef

ore the circuit judge called i nto doubt Brasso’s com petence to stand trial—i.e., h i s basic understanding of the c harges against him and capability to cons u l t w i t h his lawy er. 2 As discussed above, Brasso was coherent and responsive at his plea hearing a n d s e ntencing hearing. He did not e xhibit a ny irrational behavior, m ake any o utburst, or do any thing else that would have suggested to t he trial judge t hat he w as incom petent t o plead guilty

. Nor was there any p rior m edical opinion deem ing him i ncom petent. See Bradley v. S

tate , 116 So. 3d 1093, 1 096 (¶17) ( Miss. Ct. App. 2013) (“[ T]he United States Suprem e Court has e xplained

2 T h e p lu rality

o p in io n also n o tes B rasso ’s “m ed icatio n s,” d isab ility d eterm in atio n , an d assig n m en t t o t h e “m ed ical u n it an d p sy ch iatric u n it” o f th e p en iten tiary

. H o w e v er, th ese issu es ap p ear to b e e q u a l ly o r m o re related to B rasso ’s p h y sical p ro b lem s, w h ich in clu d e m o rb id o b esity (h is w eig h t f l u ctu ated b etw e e n 4 3 0 an d 6 0 0 p o u n d s), d iab etes, h y p erten sio n , ch ro n ic b ack p ain , sleep ap n ea, an d o th er d iag n o ses. 1 7[ that] ‘evidence of a def enda n t ’ s i r r a tional behavior, his dem e anor at trial, and any prior

m edical opinion o n com

petence to stand trial are a ll r elevant in determ ining whether f urther inquiry is required.’” (quoting Drope v. Missouri , 420 U.S. 162, 180 (1975))). ¶40. Standing alone, Brasso’s “organic brain sy ndrom e” and supposed sim plem i ndedness did not require the circuit judge to order a com petency hearing. “The [ U.S.] Suprem e Court has never held that evidence of m ild m ental retardation is suf f icient to require a trial judge
to order a com

petency hearing.” T

hompson v
. Pliler , 339 F

. App' x 782, 784 (9th Cir. 2009); accord, e.g. , United Sta t e s v
. F a u n tleroy , 5 08 F. App' x 238, 240-42 (4th Cir. 2013) (suggestion of m ild m ental retardation did n ot require a com petency hearing); United States

v. Pruitt , 429 F. App' x 155, 157-58 (3d Cir. 2011) (sam e). Indeed, the U.S. Suprem e Court has stated that “[ m ]entally retarded persons f requ e n tly know the d if

f erence between right and
wrong a nd are com

p etent t o s t a n d trial.” A tkins v. Virginia , 536 U.S. 304, 318 (2002). In Bradley , this C ourt h e ld that the trial judge did not a buse his discretion by deny ing a m otion f or a com petency hea r ing notwithstanding that the def endant’s attorney alleged that the def endant was incom

petent t o s t a n d t rial, a letter f r om another attorney reported that the def endant had an IQ of

58, and his m o ther testif

ied to his childlike behavior. See Bradley , 116 So. 3d at 1094-97 (¶¶7-23). Sim ilarly , in Harden v. State , 59 So. 3d 594 (Miss. 2011),

our Suprem e C ourt h e ld that the trial judge did not a buse his discretion by deny ing a m otion f or a m ental evalu a t i o n and c om petency hearing even t hough the def endant was m ildly

m entally retarded, his attorney reported that he was “ u ncom m unicative,” and the def

endant had dif f iculty responding to the court’s q uestions and claim ed not to understand the contents

1 8of his plea petition or the plea proceedings. See id. at 600-603 (¶¶11-19). In each case, the

appellate court f

ound that the trial judge, who was able to observe the def endant’s dem eanor f irsthand, com m itted no abuse of discretion. ¶41. I n t h i s c a s e , Brasso’s attorney conf irm ed that s he did n ot have a ny dif f i c u l t i e s

com m unicating with him , and she n ever e xpressed any concern to the court regarding Brasso’s com

petence. This is n ot because the attorney was unaware of Brasso’s m ental health issues. The record clearly ref lects that s h e knew a

bout her c l ient’s li mi t a t i o n s and history but viewed the i nf orm ation a s a possible mi t i g a t i n g f actor at sentencing, not a

com petency issue. The plurality opinion criticizes the ci r c u it judge because he “did not explain w hy a m ental evaluation was not warranted prior to the plea hearing, although it was agreed to take place prior to sentencing.” I disagree that any explanation w as n ecessary . There was sim

ply nothing to s uggest that Brasso was incom petent to plea d g u i l ty , and the evaluation was potentially relevant only

to the judge’s sentencing decision. ¶42. In addition, while Dr. Massong’s report acknowled g e d B r a s s o ’ s history o f m ental health issues, Dr. Massong also concluded that Brasso exaggerated those issues f o r his own purposes, that Brasso “present[ ed] with a generally norm al m ental status” with “likely lowaverage intelligence,” a nd that he was “f ully oriented” w ith “adequate cognitive ef f iciency ” and “no psy chosis.” A “ generally n orm al m ental status” and “low-average intelligence,” etc.

are hardly reasons f

or a trial j udge to order a com p etency hearing. Nothing in Dr. Massong’s report suggests t hat Brasso was u n able to consult with his attorney or did n ot appreciate the nature and consequences of the charges against him

.

1 9¶43. “[ T]he p e r t i n e n t q u e stion is whether ‘the trial j udge received inf o rm ation which, objectively considered, shoul d r e a s o n ably h ave raised a d oubt about [ the] def endant’s

com petence and alerted him to the possibility that t he d ef endant could neither understand the proceedings, appreciate t h eir signif icance, n or rationally aid his a t torney in his def ense.’” Harde n , 59 So. 3d at 601 (¶14) (quoting Goff v. State , 14 S o. 3 d 625, 644 (¶66) (Miss. 2009)). The issue is com m itted to the “discretion of t he trial judge,” who i s able t o observe the d ef endant a nd his dem e anor f irsthand, and we review trial judge’s r uling f o r an abuse of discretion only

. Id. The trial j udge in this case receive d no inf o rm ation that called into question Brasso’s com

petence; theref

ore, he did not abuse h i s d iscretion b y a c cepting his guilty plea, a nd there i s no basis f or setting aside Brasso’s conviction. Accordingly , I dissent. GRIFFIS, P.J., ISHEE AND FAIR, JJ., JOIN THIS OPINION.

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