This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-00-1481

 

Dean Lawrence Brooks, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

 

Filed May 1, 2001

Affirmed

Stoneburner, Judge

Dissenting, Schumacher, Judge

 

Scott County District Court

File No. 9805546

 

 

Deborah K. Ellis, 700 Saint Paul Building, Six West Fifth Street, St. Paul, MN 55102; and

 

F. Clayton Tyler, Christopher L. Goodman, 331 2nd Avenue South, Minneapolis, MN 55401 (for appellant)

 

Michael A. Hatch, Minnesota Attorney General, Suite 500, 525 Park Street, St. Paul, MN 55103; and

 

Thomas J. Harbinson, Scott County Attorney, Neil G. Nelson, Chief Deputy County Attorney, Michael J. Groh, Assistant County Attorney, Scott County Government Center, 200 West Fourth Street, Shakopee, MN 55379 (for respondent)

 

 

            Considered and decided by Schumacher, Presiding Judge, Kalitowski, Judge, and Stoneburner, Judge.

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

            Appellant Dean Brooks, who was indicted on two counts of first-degree murder and one count of second-degree murder, entered a plea of guilty to second-degree murder under a plea agreement that provided for an upward sentencing departure to 36 years in prison.  The district court accepted the plea and imposed the sentence without requesting a pre-sentence investigation.  Brooks petitioned for postconviction relief asserting that: (1) he was incompetent to stand trial or to enter a plea of guilty; (2) his plea was not knowing, intelligent, or voluntary; (3) the district court improperly appointed counsel to represent him; (4) he was denied effective assistance of counsel; (5) the lack of a pre-sentence investigation deprived him of due process and fundamental fairness in sentencing; and (6) the combination of irregularities in the proceedings undermined the reliability of the outcome.  After an evidentiary hearing, the district court denied the petition for postconviction relief, and Brooks appeals.

Because we conclude that the district court did not abuse its discretion in finding that: (1) Brooks was competent to stand trial and to enter a guilty plea; (2) his plea was knowingly, intelligently, and voluntarily entered; (3) he was not denied his right to self-representation; (4) he did not unequivocally waive his right to counsel; (5) he has failed to demonstrate ineffective assistance of counsel; and (6) he was not denied due process and fundamental fairness rights by the court failing to order a PSI, we affirm. 

 

 

FACTS

 

Appellant Dean Brooks was indicted on two counts of first-degree murder and one count of second-degree murder for killing his former girlfriend, Kincsem Teta in December 1997.  Teta was shot in the head and her body was left in the trunk of a car parked on a residential street in Minneapolis.  Brooks retained counsel to represent him. The district court ordered a Rule 20 competency evaluation, and in June 1998, St. Peter Regional Treatment Center (St. Peter RTC) issued a report recommending that Brooks be found competent to stand trial under Minn. R. Crim. P. 20.01.[1]  On September 23, 1998, the district court found Brooks competent to stand trial. 

            The day trial was to begin, on October 28, 1998, Brooks refused to dress or leave his jail cell and alleged he was experiencing hallucinations.  The district court instructed Dr. Kenneth Perkins, the defense expert, to examine Brooks.  Dr. Perkins reported to the trial court that, in his opinion, Brooks was not competent to stand trial.  The court then ordered Dr. Dennis Philander, a psychiatrist, and Dr. Harry Hoberman, a clinical and forensic psychologist, to examine Brooks.  They submitted written reports and testified at a competency hearing on November 3, 1998.

            Dr. Philander met with Brooks twice and reviewed medical and legal records.[2]  Dr. Philander opined with a “relatively high degree of certainty” that Brooks was competent to stand trial.  Dr. Philander noted that Brooks had “an understanding as to the nature and gravity of the charges” and could “disclose the degree of his involvement, his motive and intent.”  Dr. Philander called Brooks’s hallucinations “questionable,” but he refused to diagnose Brooks with malingering, because he had not observed Brooks for a 24-hour period and could not discern inconsistencies in his behavior.

            Dr. Hoberman met with Brooks once, and he also reviewed an extensive record, although he noted the record was incomplete.[3]  Dr. Hoberman opined that Brooks was not competent to stand trial due to decisional incompetence, meaning Brooks was not able to work with his attorney and participate in his own defense.  Nevertheless, he felt that Brooks could be restored to competency within a short period of time if properly medicated.  Dr. Hoberman found “some element of malingering or dissimulation” and indicated that the unfolding of Brooks’s psychotic symptoms, as demonstrated by his medical records, did not arise until Brooks was incarcerated.  Dr. Hoberman further noted that Brooks was volitionally not willing to cooperate and that his actions never indicated he was experiencing internal stimuli. 

On November 4, 1998, the district court issued an order again finding Brooks competent to stand trial.  The court was ready to begin voir dire on that day.  Brooks then told the court he wished to discharge his attorney for unspecified reasons.  The court acknowledged that Brooks had an absolute right to discharge his attorney, but attempted to dissuade Brooks from doing so and warned Brooks that the court was not going to delay the trial.  Brooks responded, “What if I refuse – if I go back to jail and refuse to come to court until I get a different lawyer?”  The court allowed the discharge but found that Brooks had not made a sufficient showing that he would have been prejudiced by continuing with his current attorneys and held that the trial would go forward with Brooks representing himself if he failed to hire another attorney who was ready to proceed. 

            Brooks’s family contacted a defense attorney.  This attorney met briefly with Brooks on the morning of November 5, 1998, but as he explained to the court in a hearing that morning in Brooks’s presence, Brooks had rejected his representation.  The court then explained to Brooks that he would be allowed to represent himself if he chose to do so and that the court would appoint standby counsel to assist.  In the alternative, the court told Brooks that the court would appoint a lawyer to represent him.  Brooks first said that he wanted to represent himself and that he wanted to plead guilty to all three charges.  Brooks then said he wanted to plead innocent: “I was crazy.  I was just going through problems.”  Brooks then argued with the court about the need for counsel: “Why do we have to go through an attorney and stuff?  I mean, some—like you make plea bargains and stuff.  I’m going to refuse to go to court if I can’t plead guilty.* * * I just want to plead guilty on all charges.* * * I mean innocent.”  The court stated that it would appoint counsel for Brooks and adjourned the trial to the following Monday. 

            The court contacted at least four public defenders who were unable to proceed in the time permitted.  On November 6, 1998, the court issued an order appointing an attorney to represent Brooks at Brooks’s expense and setting the trial date for November 12, 1998.

            In the following week, appointed counsel met with Brooks five times.  Based on testimony at the postconviction hearing and the jail logs, the district court found counsel met with Brooks for 18 minutes on November 6, 29 minutes on November 8, about an hour on November 9, 5 minutes on November 10, and 45 minutes on November 11.  Appointed counsel received the file from Brooks’s first attorney and spoke with him about the case, including the feasibility of a mental-illness defense.  Appointed counsel testified at the postconviction hearing that Brooks’s prior attorney thought that he had “a good shot at [the mental illness defense],” but appointed counsel felt that the defense was “a sure loser” because of the facts of the case.[4]  Appointed counsel did not review the competency hearing transcripts or the experts’ reports, and appointed counsel was not prepared to litigate the mental-illness defense.  Although appointed counsel discussed the mental-illness defense with him, Brooks had made up his mind to accept a plea agreement prior to meeting counsel.  Appointed counsel did not give Brooks any advice on whether to take the plea agreement because he believed the plea agreement was in Brooks’s best interests.  Appointed counsel testified that Brooks had admitted to the facts of the murder to him, but Brooks had never given his own narrative of the events.  Appointed counsel did not discuss the sentencing guidelines with Brooks, other than to explain the presumptive minimum sentences he would receive if convicted of first- or second-degree murder. 

On November 12, Brooks entered a guilty plea to one count of second-degree murder.  The plea agreement specified that Brooks would receive a 36-year sentence, which is an upward departure for second-degree murder, but less than the life-imprisonment sentence for first-degree murder.  The plea agreement was stated on the record, including the fact that under the terms of the agreed-on sentence, Brooks would be eligible for supervised release in 24 years. 

Brooks was examined under oath at the plea hearing and stated that he fully accepted appointed counsel as his attorney.  Brooks testified that appointed counsel read a letter to him from the prosecutor about the plea agreement and went over the plea petition and filled it out at Brooks’s request.  Brooks indicated he had been taking his medication and that his medication had not clouded his thinking.  Although Brooks primarily responded to leading questions at the plea hearing, he demonstrated his understanding of the proceedings by pointing out that the line-ups referred to by the prosecution were by photograph and that he had not been present for a line-up.  Brooks indicated his understanding of the agreed-upon sentence and noted that he had already served a year.  Brooks at first indicated he thought he was charged with murder in the third degree,[5] but the original charges and the charge to which he pleaded were explained on the record and Brooks indicated his understanding.  He stated several times that he was not making any claim of innocence for the crime charged.

The court accepted the plea and sentenced Brooks to 36 years in prison and other terms set out in the plea agreement.  No pre-sentence investigation report (PSI) was ordered because the plea agreement specified the length and other details of the sentence.  The state moved for the upward departure, and the court issued findings supporting the upward departure. 

In August 1999, Brooks filed a petition for postconviction relief seeking to withdraw his guilty plea.  At the February 2000 hearing, Drs. Philander and Hoberman testified again, as well as two other forensic psychiatrists, Drs. Michael Farnsworth and Thomas Gratzer.  Dr. Philander testified that although he still believed that Brooks was competent to stand trial at the time of the November 3, 1998 hearing, and competent to discharge his attorney on November 4, based on his review of the transcript, it was his opinion that Brooks was not competent to enter a guilty plea on November 12.  He thought that Brooks’s responses to the trial judge and his responses to questions at the plea hearing showed symptoms of impaired behavior.  Dr. Philander also ruled out malingering after review of medical records that he had not reviewed in November 1998. 

Dr. Hoberman reviewed the same additional records, which he concluded further supported his opinion that Brooks was incompetent to stand trial on November 3 and remained so.  He also ruled out malingering and rediagnosed Brooks as suffering from substance-induced dementia.  Dr. Farnsworth testified that Brooks showed favorable responses to psychotic medications, a result that would not have occurred if he suffered from dementia.

The district court denied the petition for postconviction relief, finding the testimony of Drs. Philander and Hoberman regarding Brooks’s competency at the plea hearing not credible because their testimony was based on a review of the transcripts and records of examinations conducted years prior to the November 3, 1998 hearing.  The court made 40 pages of specific findings and concluded that Brooks failed to present evidence demonstrating that he was not competent on November 3, 1998, and failed to show that anything occurred between November 3 and November 12 to change the determination of competency.  The court concluded that Brooks failed to prove ineffective assistance of counsel because he did not show a reasonable probability that, but for counsel’s representation, there would have been a different result.  The petition for postconviction relief was denied.  Brooks appeals.

D E C I S I O N

 

Appellate review of postconviction proceedings is limited to determining whether the postconviction court’s findings are supported by the evidence.  Perkins v. State, 559 N.W.2d 678, 685 (Minn. 1997).  A reviewing court will reverse the district court’s determination of whether to permit withdrawal of a guilty plea only if the district court abused its discretion.  Barragan v. State, 583 N.W.2d 571, 572 (Minn. 1998).

1.  Competency to stand trial

            Brooks asserts that the district court violated his right to a fair trial by finding him competent to stand trial on November 4, 1998.  Specifically, he alleges that the district court erred in rejecting the testimony of the majority of the experts who opined that Brooks was incompetent to stand trial at that time.  In reviewing competency determinations, appellate courts independently review the evidence to determine if the district court drew proper inferences from evidence bearing on the appellant’s competence.  In re Welfare of D.D.N., 582 N.W.2d 278, 281 (Minn. App. 1998).

A defendant’s due-process right to a fair trial is violated if the district court does not “observe adequate procedures to protect the defendant’s right not to be tried or convicted while incompetent.”  State v. Camacho, 561 N.W.2d 160, 174 (Minn. 1997) (citations omitted).  The standard for competency in Minnesota is clear:

A defendant shall not be permitted to enter a plea or be tried or sentenced for any offense if the defendant:

(1)  lacks sufficient ability to consult with a reasonable degree of rational understanding with defense counsel; or

(2) is mentally ill or mentally deficient so as to be incapable of understanding the proceedings or participating in the defense.

 

Minn. R. Crim. P. 20.01, subd. 1; see Dusky v. United States, 362 U.S. 402, 402, 80 S. Ct. 788, 789 (1960) (outlining two-prong competency test).

            Expert evidence at the November 3, 1998 competency hearing consisted of (1) the report of the defense expert, Dr. Perkins, expressing his opinion that Brooks was not competent to stand trial; (2) Dr. Philander’s testimony that Brooks had an understanding of the criminal proceedings and an ability to cooperate and work with his attorney and was therefore competent to stand trial; and (3) Dr. Hoberman’s testimony that, although Brooks understood the trial, he lacked the ability to participate in his defense and was therefore not competent to stand trial.  Both Dr. Philander and Dr. Hoberman testified that Brooks would be better able to participate with his counsel if he continued his prescribed medication and that, if found to be incompetent, he could be restored to competency in a short period of time with proper medication. 

A district court is not bound by expert testimony and can determine the credibility of the witnesses and the weight to be given their testimony.  DeMars v. State, 352 N.W.2d 13, 16 (Minn. 1984); see State v. Mills, 562 N.W.2d 276, 283 (Minn. 1997) (recognizing conflict between experts does not foreclose the inquiry).  The district court’s Findings and Order entered on November 4, 1998 demonstrate that the district court relied in part on expert testimony, but also on the court’s own observations of Brooks’s demeanor and understanding during the court proceedings to conclude that Brooks had the capacity to understand the proceedings and the ability to participate in his defense and was therefore competent.  The evidence in the record before the district court on November 3, 1998 supports the court’s determination that Brooks was competent to stand trial.

At the postconviction-relief hearing Dr. Hoberman and Dr. Philander (now testifying on Brooks’s behalf rather than as court-appointed examiners) testified that they had not reviewed all of the medical history for Brooks in 1998.[6]  Each had reviewed all of the records prior to the postconviction-relief hearing.  Both testified that the medical reports not previously reviewed by them showed malingering was less likely than they had believed in 1998.  Dr. Hoberman testified that he had not changed his opinion about Brooks’s incompetency on November 3, but “would offer a much stronger opinion” that Brooks was not competent to participate in his defense on that date.  At the postconviction-relief hearing Dr. Hoberman testified that Brooks suffered from dementia, a condition that could not be improved with medication.  Dr. Farnsworth disagreed with this diagnosis, based on Brooks’s demonstrated improvement on medications.  Dr. Philander testified that review of the additional medical records did not change his opinion that on November 3, 1998 Brooks was competent to stand trial.  Despite the continuing disagreement among the experts at the postconviction-relief hearing, the district court did not err in concluding that Brooks had failed to establish through this additional testimony that he was incompetent to stand trial on November 3, 1998. 

2.  Competency to enter guilty plea

            Brooks argues that sufficient evidence raises doubt of his competence to enter a guilty plea on November 12.  On appeal, this court reviews the record to determine whether the district court gave proper weight to the information suggesting incompetence.  Camacho, 561 N.W.2d at 174.

            If the court has reason to doubt a defendant’s competence, the court shall raise it on its own initiative.  Minn. R. Crim. P. 20.01, subd. 2.  “[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).  The district court may consider a variety of evidence in determining if a defendant’s competence is in doubt:

[E]vidence of a defendant’s irrational behavior, his demeanor at trial, and any prior medical opinion on competence to stand trial are all relevant in determining whether further inquiry is required, [and] * * * even one of these factors standing alone may, in some circumstances, be sufficient.

 

Id. at 116, 245 N.W.2d at 855 (quoting Drope v. Missouri, 420 U.S. 162, 180, 95 S. Ct. 896, 908 (1975)).

            Brooks asserts that the standard for competency to enter a guilty plea is higher than the standard for competency to stand trial.  We disagree.  Brooks relies on Sieling v. Eyman, 478 F.2d 211, 214 (9thCir. 1973), but the United States Supreme Court rejected the Ninth Circuit’s assertion that a court must apply an elevated standard of competency for entering a guilty plea.  See Godinez v. Moran, 509 U.S. 389, 398, 113 S. Ct. 2680, 2686 (1993) (holding that the standard for competency for entering a guilty plea is the same standard as competency to stand trial).  The rule in Minnesota is consistent with Godinez.  The standards for competency to stand trial and for competency to waive counsel and self-representation are the same.  Minn. R. Crim. P. 20.01, subd.1; Camacho, 561 N.W. 2d at 172.

            The district court found no evidence that Brooks’s mental condition had changed between November 3 and November 12.  Cf. Camacho, 561 NW.2d at 172 (acknowledging the court observed no change to raise doubt as to defendant’s competency); Bauer, 310 Minn. at 118, 245 N.W.2d at 856 (recognizing little reason to doubt competence when defendant’s behavior during trial is consistent with his behavior during pretrial hearings).  The district court emphasized that only about ten days had passed between Brooks’s last competency examination and the plea hearing, and Dr. Farnsworth testified at the postconviction-relief hearing that a person could not decompensate in such a short period of time.  The jail logs showed that Brooks’s medications were properly administered during this time, and the experts agreed that Brooks was medication-compliant up to November 12.

Dr. Philander and Dr. Hoberman testified at the postconviction-relief hearing that, based on their review of Brooks’s responses contained in the transcripts of his court appearances from November 3 through November 12, each concluded that Brooks had decompensated and was incompetent to enter a plea of guilty on November 12, 1998.[7]  The court did not find this evidence credible or reliable, and based its conclusion, in part, on the court’s personal observation that Brooks did not demonstrate signs of decompensation between November 3 and November 12.  The record shows that the district court gave proper weight to the evidence and did not err in relying on the prior competency determination and lack of observable decompensation to conclude that Brooks failed to establish that he was not competent to enter a guilty plea on November 12, 1998.

3.  Knowing, intelligent, and voluntary guilty plea

            Brooks argues that he did not knowingly, intelligently, and voluntarily enter a guilty plea because he lacked the requisite understanding and appreciation of his actions in waiving the mental-illness defense and in accepting the upward departure from sentencing guidelines. 

A court may allow a defendant to withdraw a guilty plea after sentencing if the defendant proves withdrawal is necessary to correct a manifest injustice.  Alanis v. State, 583 N.W.2d 573, 577 (Minn. 1998).  A constitutionally valid plea must be accurate, voluntary, and intelligent, and if it is not, the plea constitutes a manifest injustice.  Perkins, 559 N.W.2d at 688.  The purpose of the inquiry is to determine if the defendant actually understands the significance and consequences of his decision.  State v. Thornblad, 513 N.W.2d 260, 263 (Minn. App. 1994) (citing Godinez, 509 U.S. at 401 n.12, 113 S. Ct. at 2687 n.12).  If a defendant discussed the case, possible defenses, the plea bargain, and other options with his attorney before entering the plea, this raises a presumption that he was fully informed of his rights.  State v. Doughman, 340 N.W.2d 348, 353 (Minn. App. 1983) (citing State v. Lorentz, 276 N.W.2d 37 (Minn. 1979)), review denied (Minn. Mar. 15, 1994).

A defendant may relinquish his right to be sentenced under the guidelines.  State v. Givens, 544 N.W.2d 774, 777 (Minn. 1996).  But the defendant must have been advised of his right to be sentenced under the guidelines, including the possibility of a departure from the guidelines.  Id.  A defendant need not have been questioned by the district court at the time he enters his guilty plea to insure that he understands the presumptive sentence under the sentencing guidelines.  State v. Trott, 338 N.W.2d 248, 253 (Minn. 1983) (emphasizing it would be better practice for the court to question the defendant to insure he understands the maximum and minimum penalties, but it may not be necessary). 

Brooks pleaded to a lesser offense with an upward departure in his sentence to avoid the possibility of a mandatory life sentence if convicted of first-degree murder.  Brooks had been represented by competent counsel of his choice throughout the pretrial proceedings and up to the first scheduled day of trial.  Although the time Brooks spent with his second attorney was minimal, Brooks had an opportunity to consult with counsel and testified at the plea hearing that he was satisfied that he had sufficient time to do so.  A defense attorney should discuss the sentencing guidelines and possible departures with a client.  Appointed counsel’s discussion with Brooks of only the minimum sentences for first- and second-degree murder was limited.  Nonetheless, Brooks was determined to enter a plea of guilty prior to meeting with appointed counsel and was aware of his exposure to a life sentence if he went to trial.  Brooks clearly understood he would receive a 36-year sentence under the plea agreement and understood the concepts of good time and jail credit.  See Perkins, 559 N.W.2d at 690 (recognizing defendant understood maximum penalty court could impose was 30 years).  The detailed questioning at the plea hearing demonstrates that Brooks understood the charges, the plea agreement, the consequences of his plea, and the consequence of not entering a plea.  See Minn. R. Crim. P. 15, Form C (prescribing the elements of a valid plea that were reviewed at the plea hearing in this case).  The record supports the district court’s conclusion that Brooks entered his plea knowingly, intelligently, and voluntarily.

4.  Right to self-representation

            Brooks argues that his Sixth Amendment right to self-representation was violated because the district court recruited and appointed an attorney to represent him without his consent.  A defendant has a constitutional right to represent himself and may voluntarily and intelligently elect to waive his right to counsel.  Faretta v. California, 422 U.S. 806, 834-35, 95 S. Ct. 2525, 2540-41 (1975).  The record shows that Brooks did not unequivocally waive his right to counsel.[8]  Cf., Camacho, 561 N.W.2d at 173 (noting defendant’s request to proceed pro se was unequivocal).  In fact, Brooks vacillated between asking to plead guilty and refusing to leave his jail cell until he received a new attorney.  The court offered Brooks the alternatives of proceeding to trial representing himself with standby counsel or having the court appoint an attorney to represent him.  Brooks refused to specify how he wanted to proceed, and the court chose the more conservative approach of appointing counsel.  The district court appointed private counsel only after first attempting to secure a public defender.  See Minn. Stat. § 611.27, subd. 11 (2000) (discussing circumstances for appointment of counsel other than the district public defender).  At the plea hearing, Brooks testified that he fully accepted his appointed counsel.  Brooks had previously fired an attorney and rejected another attorney and clearly had the ability to reject this counsel as well.  The district court did not abuse its discretion in appointing counsel to represent Brooks.

5.  Ineffective assistance of counsel

            Brooks argues that his right to a fair trial was violated by ineffective assistance of counsel because the attorney failed to adequately research the mental-illness defense and spent an inadequate amount of time with Brooks.

            To establish a claim of ineffective assistance of counsel, the defendant must affirmatively show two elements: (1) his counsel’s representation fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel’s unprofessional errors, the result would have been different.  Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 2064 (1984); Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987).  When there is a total absence of representation, no specific showing of prejudice and no inquiry into the actual conduct of the trial is required.  United States v. Cronic, 466 U.S. 648, 659, 104 S. Ct. 2039, 2047 (1984). 

Brooks argues first that his appointed counsel failed to subject the state’s case to any meaningful adversarial testing, amounting to a total absence of representation.  Brooks’s prior attorney had interviewed the witnesses, had researched the mental-illness defense, and was prepared for trial.  Appointed counsel received most of this file from prior counsel, reviewed the file, was familiar with the facts of the case, and spoke with prior counsel and Brooks regarding the mental-illness defense.  Appointed counsel met with Brooks five times and discussed the facts of the case and the plea agreement.  Although appointed counsel admitted that he was not prepared for trial at the time the plea of guilty was entered, he testified that he was confident, based on his prior experience with the court, that he could have obtained a continuance had Brooks decided not to enter a plea and to proceed to trial, despite the court’s previous denial of a continuance to Brooks.  Appointed counsel’s actions, even if  minimal, amount to more than a total absence of meaningful adversarial testing.  See Cooper v. State, 565 N.W.2d 27, 31 (Minn. App. 1997) (listing cases in which courts have refused to presume prejudice in extreme situations, including where counsel conceded the sole issue in the case or met with defendant only once), review denied (Minn. Aug. 5, 1997).

We examine appointed counsel’s actual conduct for prejudice.  In challenging the validity of a guilty plea, the defendant can satisfy the second prong by establishing that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty.  Berkow v. State, 573 N.W.2d 91, 96 (Minn. App. 1997), aff’d, 583 N.W.2d 562 (Minn. 1998).

Further investigation would not have led to any additional facts in this case, and counsel’s lack of further investigation did not cause him to give objectively incorrect advice.  Cf. Beans v. Black, 757 F.2d 933, 936 (8th Cir. 1985) (examining likelihood of discovery of new evidence); Brownlow v. Missouri, 818 S.W.2d 302, 304 (Mo. App. 1991) (holding prejudice inquiry depends on likelihood discovery of evidence would have led counsel to change his recommendation as to the plea).  Brooks has not shown how additional time spent with appointed counsel would have influenced his decision to accept the plea agreement.  Brooks presented no evidence that he would have gone to trial and utilized the mental-illness defense.[9]  Brooks wanted to plead guilty from the first day of trial.  The state offered the plea agreement prior to the court’s appointment of counsel to represent Brooks, and counsel did not know of the plea offer until Brooks mentioned it to him.  Brooks has not shown he was prejudiced by counsel’s determination that a mental-illness defense would not be effective at trial, his failure to investigate the mental-illness defense further, or by the amount of time Brooks spent with counsel. 

7.  PSI

            Brooks argues that the district court abused its discretion in failing to order a PSI.  The rules of criminal procedure provide:

At the time of, or within three days after a plea, finding or verdict of guilt of a felony, the court may order a presentence investigation and shall order that a sentencing worksheet be completed.

 

Minn. R. Crim. P. 27.03, subd. 1(A) (emphasis added).  A Minnesota statute conflicts with this rule:

[W]hen the defendant has been convicted of a felony, the court shall, before sentence is imposed, cause a presentence investigation and written report to be made to the court.

 

Minn. Stat. § 609.115, subd. 1 (2000) (emphasis added).  Present statutes relating to procedure in criminal actions are effective until modified or superseded by court rule, and

if a rule is in conflict with a statute, the statute will be ineffective, except for statutes that relate to substantive criminal law.  Minn. Stat. § 480.059, subd. 7(a) (2000).  Because the need for a PSI is a procedural rather than a substantive matter, the rules of criminal procedure authorizing a district court to order a PSI in the exercise of its discretion prevail over the statute.  See generally State v. Johnson, 514 N.W.2d 551, 554-55 (Minn. 1994). 

            Brooks argues that the district court abused its discretion in failing to order a PSI.  A PSI was unnecessary because the plea agreement specified all of the conditions of the sentence.  The district court did not abuse its discretion by failing to order a PSI.

8.  Irregularities

            Finally, Brooks relies on State v. Ringler, No. C9-99-883, 1999 WL 1261746 (Minn. App. 1999), to argue that several factors warrant reversal if cumulatively they reflect the unreliability of the outcome.  Brooks misconstrues Ringler.  In that case, the court utilized an ineffective-assistance-of-counsel analysis to find that the defendant deserved a new trial because counsel’s representation “was so professionally unreasonable that it has undermined [the court’s] confidence in the outcome of the trial.”  Ringler, 1999 WL 1261746, at *6.  In this case, neither individual issues nor the cumulative effect of those issues warrants reversal.

            Affirmed.

 

 


SCHUMACHER, ROBERT H., Judge (dissenting)

            I respectfully dissent because I believe that the state’s case against Brooks was not subjected to that “meaningful adversarial testing” that public confidence in the criminal justice system requires.  United States v. Cronic, 466 U.S. 648, 656, 104 S. Ct. 2039, 2045 (1984).  The record plainly shows that Brooks, a man facing the most serious of criminal charges, who had reported hallucinations, had been hospitalized at St. Peter, and was considered incompetent to stand trial by two of the three experts to examine him, appeared in district court on the scheduled trial date and was faced with the Hobson’s choice of either representing himself or being represented by a court-appointed attorney with far too little time to prepare a meaningful defense.

            The district court apparently concluded that it had no choice but to allow Brooks to discharge his privately retained attorney, despite the court’s own finding that Brooks was discharging counsel merely for purposes of delay.  A criminal defendant does not have an unbridled right to secure counsel of his choice.  See State v. Vance, 254 N.W.2d 353, 358-59 (Minn. 1977).  The court need not grant a defendant a last-minute continuance to obtain counsel of his choice.  United States v. Vallery, 108 F.3d 155, 157 (8th Cir. 1997).  It is ironic, however, that the district court, having overstated Brooks’s right to secure counsel of his own choosing, ended up selecting an attorney for him.  It would have been better to leave Brooks in the hands of his first attorney, who was well-prepared and had once been Brooks’s choice, than in the hands of a court-designated substitute with minimal time to prepare.

            The inevitable appearance created by the district court's rulings is that the court, although concluding Brooks was competent to stand trial, was not convinced of his ability to choose his own attorney.  But the case law leaves no room for a different standard.  See State v. Camacho, 561 N.W.2d 160, 172 (Minn. 1997) (noting that standards for competency to stand trial and competency to waive counsel are same).  I find no support for allowing the court to appoint counsel for a non-indigent defendant who wishes to replace his privately retained attorney.  The court would have been obligated to appoint standby counsel had Brooks chosen to proceed pro se.  State v. Savior, 480 N.W.2d 693, 695 (Minn. App. 1992).  But the court had no authority to choose who Brooks’s “private” attorney should be.

            This error is aggravated by the lack of time allowed substitute counsel to prepare and by the court’s failure to order a presentence investigation.  Whatever substitute counsel’s efforts in this case, the six days allowed for him to prepare for a first-degree murder trial were not adequate.  Moreover, the attorney, who owed his fee-paying appointment to the court itself, was not in the best position to press for a continuance.  But even assuming that the guilty plea was entered on adequate advice of counsel, the district court’s failure to order a presentence investigation meant there was no meaningful judicial review of the agreed-upon sentence.  Although I agree with the majority’s conclusion that a presentence investigation is not mandated by the rule, and that the rule must govern over the statute, I believe that a presentence investigation was essential in this case for the court to exercise its duty to independently review the agreed-upon sentence and determine whether to accept or reject the plea.  See Minn. R. Crim. P. 15.04, subd. 3(1).

            The public is entitled to a process more meaningful than that which results from forcing a defendant in a homicide case, whose competency is seriously questioned, into accepting “private” counsel chosen by the court under the circumstances present in this case.  Accordingly, I would reverse the conviction and remand for further proceedings.

 



[1] A Rule 20.02 (M’Naughten) evaluation was also ordered, but appellant exercised his right to remain silent.

[2] Dr. Philander reviewed several records: the indictment; Rule 20 exams by St. Peter RTC, Dr. Fox, and Dr. Perkins; all Spreigl notices; additional psychological reports from Brainerd Treatment Center; the district court’s order for a Rule 20 examination; and extensive records from St. Peter Security Hospital and Fairview University Medical Center.

[3] Dr. Hoberman relied on the following records: portions of the indictment and an accompanying narrative; a copy of a notice of additional offense; a March 16, 1998 Rule 20 evaluation by St. Peter RTC; a June 17, 1998 Rule 20 evaluation by staff at St. Peter RTC; an October 15, 1998 Rule 20 evaluation by Dr. Fox; and a October 22, 1998 psychological evaluation by Dr. Perkins.

[4] Counsel believed that the fact Brooks secured a weapon in advance, invited his girlfriend over to the house, wrapped her body in a blanket, and took other steps to cover up the crime foreclosed the mental illness defense because these facts showed planning.

[5] This confusion may have resulted from the fact that Brooks was pleading to count three of three murder counts; counts one and two were dismissed under the plea agreement.

[6] There is no explanation in the record about why these earlier medical records were not reviewed.  The records are not newly discovered evidence.

[7] The postconviction-relief hearing transcript indicates that the experts may have believed there was a different standard for competency to stand trial and competency to plead guilty, contrary to Minnesota law.

[8] Brooks argues that the district court improperly denied his right to self-representation based on his incompetence.  See Thornblad, 513 N.W.2d at 263.  The record does not show that the court found that Brooks was incompetent to represent himself, but rather shows that Brooks never clearly indicated that he wanted to represent himself.

[9] Additionally, because the facts of the case revealed planning of the crime, counsel concluded that the mental-illness defense was not a strategic choice.  In assessing whether defendant’s counsel was deficient, reviewing courts do not review matters of trial strategy.  State v. Doppler, 590 N.W.2d 627, 633 (Minn. 1999).  Here, the decision not to pursue the defense was strategic.