This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2014).

STATE OF MINNESOTA

IN COURT OF APPEALS

A15-0354

State of Minnesota,

Respondent,

vs.

Robert James Tolbert,

Appellant.

Filed December 21, 2015

Affirmed

Cleary, Chief Judge

Olmsted County District Court

File No. 55-CR-13-5985

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Mark A. Ostrem, Olmsted County Attorney, James P. Spencer, Senior Assistant County 

Attorney, Rochester, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sara J. Euteneuer, Assistant 

Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Cleary, Chief Judge; Connolly, Judge; and Johnson, 

Judge.
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U N P U B L I S H E D O P I N I O N

CLEARY, Chief Judge

Appellant Robert James Tolbert argues that he was denied his constitutional right 

to due process when the district court accepted his guilty pleas without first conducting a 

rule 20 mental-competency examination when there was sufficient doubt of competency 

to proceed. Because the district court did not err in weighing the evidence regarding 

appellant’s competency, we affirm.

FACTS

On June 18, 2013, appellant was contacted by an individual who was working as a 

confidential reliable informant (CRI) for the Rochester Police Department. Appellant

arranged for the CRI to meet with another person who would sell heroin to the CRI. 

Appellant facilitated the sale in hopes of receiving a small amount of heroin in exchange 

for arranging the deal. On September 12, 2013, appellant was charged with seconddegree controlled-substance sale in violation of Minn. Stat. § 152.022, subd. 1(6)(i) 

(2012). The complaint was amended on March 24, 2014, to add one count of aiding and 

abetting a third-degree controlled-substance sale in violation of Minn. Stat. § 152.023, 

subd. 1(1) (2012).

In a hearing on March 18, 2014, defense counsel informed the district court that

appellant was absent because he was hospitalized due to psychiatric issues. On 

March 24, 2014, appellant pleaded guilty to both charges against him with the 

understanding that the district court would withhold entry of judgment and postpone the 
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sentencing hearing until after the resolution of a case pending against appellant’s 

codefendant—the person who sold heroin to the CRI in this case. If appellant cooperated 

with the presentence investigation, followed all conditions of release, remained law 

abiding, and testified truthfully at the trial of his codefendant regarding the alleged drug 

sale, the district court would find appellant guilty of the lesser third-degree controlledsubstance sale violation at sentencing.

Prior to accepting appellant’s plea, the court asked appellant a series of questions 

to ensure that appellant understood the terms and conditions of the plea agreement. The 

district court asked appellant if he was presently thinking clearly, to which appellant 

responded that he was. The court asked appellant if he was under the influence of 

medication, alcohol, drugs, or anything else that would impair his judgment, to which 

appellant responded in the negative. The court noted appellant’s recent hospitalization 

for mental health issues and asked if he was taking any medication. Appellant responded 

that he was taking medication, but because he needed to be able to focus on the 

proceedings he took it at night to avoid falling asleep during the day. The district court 

again asked if appellant’s judgment was impaired on that day due to the medication, and 

appellant responded that it was not. The court then asked appellant about his mental 

health:

THE COURT: All right. Well how about your mental health 

condition, Mr. Tolbert. Is it under sufficient control here 

today such that you think you’re able to make good decisions 

and think clearly about this?

THE DEFENDANT: Yes, sir.
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THE COURT: Okay. All right. Do you have any concern 

about that, Mr. Tolbert, about whether this is an appropriate 

time, whether you’ve got the ability right now to be making 

important decisions?

THE DEFENDANT: I think I can make -- I can make -- I 

understand.

THE COURT: Okay. You think you can make important 

decisions and make them well at this time; is that correct?

THE DEFENDANT: Yes, sir.

THE COURT: Okay. All right.

The district court then thoroughly explained to appellant the rights he was giving up by 

pleading guilty and the risk that a subsequent presentence investigation report (PSI) 

might show his criminal history score to be higher than the parties previously understood. 

Appellant responded coherently to questions posed during the factual examination at the 

plea hearing. Neither defense counsel nor the prosecution made a motion challenging 

competency.

During the sentencing hearing, defense counsel informed the court that appellant 

suffers from psychiatric issues and that, specifically, appellant is on disability for an 

anxiety disorder and schizophrenia. In arguing for a downward departure, defense 

counsel noted that appellant, “while certainly responsible for his behavior, does have 

some diminished capacities here. The PSI makes it clear that he is functionally illiterate, 

and he has psychiatric diagnoses that are sufficient to put him on disability.” The PSI 

also indicated that appellant suffers from depression and in March 2014—at about the 

time he entered guilty pleas—appellant attempted suicide and was hospitalized for 
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several days.1 Appellant addressed the district court during the sentencing hearing and 

described some of his personal troubles.

At sentencing, the district court adjudicated appellant guilty of the third-degree 

charge pursuant to the parties’ plea agreement and sentenced appellant to 44 months—a 

“bottom of the box” sentence, considering his criminal history score. The court did not 

enter judgment on the second-degree charge. Appellant then filed this direct appeal from 

the judgment.

D E C I S I O N

Respondent disputes whether appellant can seek to withdraw a guilty plea in a 

direct appeal. “A defendant who wishes to overturn a guilty plea may file a petition for 

postconviction relief under Minnesota Statutes section 590.01 (2012), move to withdraw 

the plea under Rule 15.05 of the Minnesota Rules of Criminal Procedure, or seek 

withdrawal on a direct appeal from the judgment of conviction.” State v. Miller, 849 

N.W.2d 94, 97 (Minn. App. 2014). Appellant’s direct appeal is properly before this 

court.

Appellant argues that he should be allowed to withdraw his guilty pleas because 

the district court did not conduct a rule 20 mental-competency examination, even though 

sufficient doubt of appellant’s competency existed when he entered the pleas, and this 

doubt increased by the time he was sentenced. “A defendant has a due process right not 

 

1 We refer to confidential information found in the PSI only where appellant has already 

made that information a matter of public record via briefing and statements in public 

hearings.
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to be tried or convicted of a criminal charge if he or she is legally incompetent.” Bonga 

v. State, 797 N.W.2d 712, 718 (Minn. 2011). “A defendant is incompetent and must not 

plead, be tried, or be sentenced if the defendant lacks ability to: (a) rationally consult with 

counsel; or (b) understand the proceedings or participate in the defense due to mental 

illness or deficiency.” Minn. R. Crim. P. 20.01, subd. 2. It does not fall solely to the 

defendant to protect his or her right to due process. “If the prosecutor, defense counsel, 

or the court, at any time, doubts the defendant’s competency, the prosecutor or defense 

counsel must make a motion challenging competency, or the court on its initiative must 

raise the issue.” Minn. R. Crim. P. 20.01, subd. 3. “[T]hroughout the course of criminal 

proceedings a trial judge must be vigilant in ensuring that the defendant is competent to 

stand trial and that, when a sufficient doubt of the defendant’s competence arises, he must 

observe procedures adequate to ensure the defendant’s competency.” State v. Bauer, 310 

Minn. 103, 114, 245 N.W.2d 848, 854 (1976).

This court reviews the validity of a plea de novo. State v. Raleigh, 778 N.W.2d 

90, 94 (Minn. 2010). “Manifest injustice occurs if a guilty plea is not accurate, voluntary, 

and intelligent . . . .” Perkins v. State, 559 N.W.2d 678, 688 (Minn. 1997). Requiring 

accuracy “protect[s] the defendant from pleading guilty to a more serious offense than he 

could properly be convicted of at trial.” Brown v. State, 449 N.W.2d 180, 182 (Minn. 

1989). Requiring voluntariness “helps insure that the defendant does not plead guilty 

because of any improper pressures or inducements.” Id. And requiring a “knowing and 
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understanding[ ]” plea helps “insure that the defendant understands the charges, the rights 

being waived and the consequences of the guilty plea.” Id.

In reviewing whether a district court observed adequate procedures to ensure an 

appellant’s competency, this court does not determine whether an appellant was 

competent to stand trial, but only whether the district court should have conducted further 

inquiry into an appellant’s competence. Bauer, 310 Minn. at 108, 245 N.W.2d at 852. 

There is no precise test to determine whether the district court was sufficiently vigilant in 

ensuring an appellant’s competency. Bonga, 797 N.W.2d at 719. The United States 

Supreme Court has “purposefully avoided setting a standard for the nature or quantum of 

evidence that would establish a reason to doubt a defendant’s competency to proceed.” 

Id. (quotations omitted). Factors that are relevant in determining whether a district court 

should make further inquiry into an appellant’s competence include: “defendant’s 

irrational behavior, his demeanor at trial, and any prior medical opinion on competence to 

stand trial.” Id. Yet not all of the factors must be considered; just one of the factors may 

be sufficient on its own in some cases. Bauer, 310 Minn. at 116, 245 N.W.2d at 855. 

The question of when a court must further inquire “is often a difficult one in which a 

wide range of manifestations and subtle nuances are implicated.” Id. (quoting Drope v. 

Missouri, 420 U.S. 162, 180, 95 S. Ct. 896, 908 (1975)).

In this case, the district court made a thorough effort to ascertain appellant’s 

competence. When appellant was absent from his March 18, 2014 hearing, the district 

court asked defense counsel about appellant’s absence. Based on its conversation with 
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defense counsel, the district court understood that appellant’s “emotional state may be 

volatile,” but that appellant did not have a physical condition that would prevent him 

from leaving the hospital to appear in court within a reasonable time. At the plea hearing 

on March 24, 2014, the district court questioned appellant as to his ability to think clearly 

that day and understand the proceedings. The district court mentioned appellant’s 

hospitalization, though it did not ask appellant questions that would elicit information 

regarding the seriousness of appellant’s condition. The judge asked appellant, “I was told 

last week that you were hospitalized with some mental health issues; is that right?” 

Appellant responded affirmatively, and the district court asked appellant if he was taking 

prescription medications. The district court asked several questions about whether 

appellant’s medication impaired his judgment. The court also asked about appellant’s 

mental condition, generally, and if appellant felt that his condition was “under sufficient 

control” so that appellant could think clearly and make important decisions. The record 

shows that throughout the hearing, appellant answered questions from the court, the 

prosecuting attorney, and his own attorney without any indication that he was unable to 

understand the proceedings or participate in them rationally.

By the time of the sentencing hearing, a PSI had been completed which included 

statements appellant made to an investigator about appellant’s mental health. The PSI 

reported that appellant had attempted suicide in March 2014, at about the same time he 

entered the plea. A suicide attempt can be “evidence of irrational behavior—an act 

which suggests a rather substantial degree of mental instability.” Bonga, 797 N.W.2d at 
9

720 (quotation omitted). In Bonga, the defendant had attempted suicide the day before he 

pleaded guilty, yet the court found him competent. 797 N.W.2d 714, 720. The defendant 

in Bonga told the district court “he had never been hospitalized or treated for a 

psychiatric condition,” and the postconviction court made extensive observations of its 

own, both before and during the guilty plea, that convinced it that the defendant was 

acting normally under the circumstances. Id. at 720.

Here, the district court knew appellant had been hospitalized and had been treated 

for a psychiatric condition. In addition to raising appellant’s mental condition at the 

pretrial hearing and at the plea hearing, defense counsel had also informed the district 

court of appellant’s schizophrenia diagnosis at appellant’s initial appearance in 

September 2013. Defense counsel again raised appellant’s anxiety disorder and 

schizophrenia at the sentencing hearing. The district court could have inquired more 

thoroughly at the plea hearing into the reasons for appellant’s hospitalization given the 

immediacy of that event. On balance, however, the district court made sufficient inquiry 

into appellant’s competency. The record indicates that the district court questioned 

appellant extensively and had ample time to observe his demeanor. Appellant answered 

the district court’s questions with apparent lucidness, he was able to communicate with 

defense counsel, and he made what appears to be a rational decision to accept a lesser 

conviction and sentence through a plea deal. Further, neither party raised the issue of 

competency during proceedings. A district court has an obligation to raise the issue sua 

sponte if it doubts a defendant’s competency, but defense counsel has the greatest 
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opportunity to observe a defendant and form such a doubt as to competency. Here, 

though defense counsel raised the issue of appellant’s mental health on a number of 

occasions, counsel never made a motion challenging competency or otherwise suggested 

that appellant lacked the ability to rationally consult with counsel, understand the 

proceedings, or participate in his defense.

Despite the fact that appellant had been hospitalized, was treated for psychiatric 

conditions, and allegedly attempted to commit suicide, other evidence shows that the 

district court did not err when it declined to make further inquiry into appellant’s 

competency.

Affirmed.