COURT OF APPEALS

DECISION

DATED AND FILED

 

March 16, 2010

 

David R. Schanker

Clerk of Court of Appeals

 

 

 

NOTICE

 

 

This opinion is subject to further editing.� If published, the official version will appear in the bound volume of the Official Reports.�

 

A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals.� See Wis. Stat. � 808.10 and Rule 809.62.�

 

 

 

 

Appeal No.�

2009AP2191

Cir. Ct. No.� 2008JV3

STATE OF WISCONSIN���

IN COURT OF APPEALS

 

DISTRICT III

 

 

 

 

In the interest of Zachary A., a person under the age of 17:

 

State of Wisconsin,

 

��������� Petitioner-Respondent,

 

���� v.

 

Zachary A.,

 

��������� Respondent-Appellant.

 

 

 

 

����������� APPEAL from an order of the circuit court for Pierce County:� ROBERT W. WING, Judge.� Reversed and cause remanded.�

�1������� PETERSON, J.[1]   Zachary A. appeals an order finding him delinquent.� Zachary argues the circuit court erred when it rejected his request to order a competency evaluation.� We agree.� We therefore reverse and remand for the court to order an evaluation.

BACKGROUND

�2������� In April 2008, the State filed a delinquency petition charging Zachary, then thirteen-years-old, with first-degree sexual assault of a child.� At a preliminary hearing, Zachary�s counsel requested the court order a competency evaluation because she believed, after reviewing the petition with Zachary, that he was not competent to understand it or the delinquency proceedings.� She also stated that Zachary has been diagnosed with Asberger�s Disorder and that a report by Dr. Joel Schirvar, a psychologist who evaluated Zachary at the county�s request, indicates he has limited cognitive abilities.� The court scheduled a hearing on the motion.

�3������� At the motion hearing, the court denied Zachary�s request to present Schirvar�s testimony, asking instead for a summary of his conclusions as an offer of proof.� Zachary�s counsel told the court Schirvar would testify he believes Zachary does not understand the effect of his decisions or the nature and consequences of the delinquency proceedings.� The court concluded it was unnecessary for Schirvar to testify, but his report was entered into the record.� The report had been prepared for an earlier CHIPS proceeding.� Among other things, the report concluded Zachary has difficulty acquiring information, appears to expect other people to know his thoughts and opinions, and functions at the level of an eight-year-old child.�

�4������� The court then denied Zachary�s request for an evaluation, characterizing his argument as essentially that anyone under the age of thirteen or with Asberger�s Disorder is per se incompetent.� It expressed its concern that this would lead to �a concerted effort by the Public Defender�s Office � to raise the issue of competency on a very far-reaching, ongoing basis �.�� It opined that �there is nothing � I�ve seen, or appears about him in my dealings with him that � separates him out from any other juvenile that comes in this courtroom. � I think we have to keep competency to the very few cases where, clearly, this person doesn�t have a clue what�s going on.�� The court concluded, �I also have to be very honest with you � resources are extremely scarce.� These [evaluations] are extremely expensive.��

DISCUSSION

�5������� The only issue in this appeal is whether the circuit court erred when it denied Zachary�s request for a competency evaluation.� An evaluation is required �[i]f there is probable cause to believe that the juvenile has committed the alleged offense and if there is reason to doubt the juvenile�s competency to proceed �.�� Wis. Stat. � 938.295(2)(a).� Competency to stand trial requires that the juvenile possess (1) sufficient present ability to consult with his or her lawyer and (2) a factual understanding of the proceeding against him or her.� See State v. Garfoot, 207 Wis. 2d 214, 222, 558 N.W.2d 626 (1997).� We review a circuit court�s determination of whether there is reason to doubt a juvenile�s competence for the erroneous exercise of discretion. �See id. at 223-24.

�6������� Zachary argues the circuit court erroneously exercised its discretion because it declined to consider relevant expert testimony and relied instead on irrelevant considerations.� We agree.[2]

�7������� A circuit court certainly is not required to conduct competency evaluations every time one is requested.� See State v. McKnight, 65 Wis. 2d 582, 595, 223 N.W.2d 550 (1974).� Rather, �[T]here must be some evidence raising doubt as to [the juvenile�s] competence �.�� Id.� ��The juvenile�s counsel�s opinion is a consideration, State v. Haskins, 139 Wis. 2d 257, 266, 407 N.W.2d 309 (Ct. App. 1987), but it is not the controlling factor. �State v. Weber, 146 Wis. 2d 817, 826‑27, 433 N.W.2d 583 (Ct. App. 1988).�� The juvenile�s mental health is also relevant. �Id. �The circuit court may base its determination �in part upon its firsthand observations of the [juvenile. But where] expert testimony or medical reports counter the court�s impression, we have held that further proceedings are necessary.�� Id. at 828 (citing Haskins, 139 Wis. 2d at 266).� �

�8������� Here, the circuit court rejected Zachary�s request to present expert testimony, though it received the expert�s report.� While the court was entitled to form an impression of Zachary�s abilities, it was not entitled to disregard expert evidence to the contrary.� See Haskins, 139 Wis. 2d at 266; see also State v. Johnson, 133 Wis. 2d 207, 212, 395 N.W.2d 176 (1986) (letters from physician expressing �serious concerns regarding [defendant�s] competency to stand trial� created reason to doubt competency).� ��

�9������� We also agree with Zachary that the circuit court erred by relying on irrelevant considerations.� The court�s concern that ordering a competency evaluation would lead to �a concerted effort by the Public Defender�s Office � to raise the issue of competency on a very far-reaching � basis� is not relevant to whether Zachary is competent.� Rather, whether a person is competent requires inquiry into that particular individual�s abilities.� See Wis. Stat. � 938.295(2).� That other individuals might also cite age and mental health diagnoses as evidence of incompetence does not preclude considering how those factors specifically impact Zachary�s competence. �The cost of evaluations is also not relevant.� The statute requires a competency evaluation whenever there is reason to doubt the juvenile�s competency to proceed; cost is not a factor.[3]�

�10����� Finally, the circuit court�s opinion that �we have to keep competency to the very few cases where, clearly, this person doesn�t have a clue what�s going on,� is an incorrect statement of the standard for when an evaluation is required.� Reason to doubt a person�s competency does not require definitive proof the individual does not understand the proceedings.� All that is required is �some evidence raising doubt as to his competence �.�� McKnight, 65 Wis. 2d at 595.� Here, Zachary�s counsel opined she did not believe he understood the proceedings. Zachary also presented an expert�s report detailing his cognitive limitations and mental disorder, and concluding he functions at the level of a child almost half his age.� He also attempted to present expert testimony relevant to whether he could understand the nature and consequences of the proceedings.� We conclude this is sufficient evidence to raise doubt about Zachary�s competence.

����������� By the Court.�Order reversed and cause remanded.

����������� This opinion will not be published.� See Wis. Stat. Rule 809.23(1)(b)4.�

 

 


[1]  This appeal is decided by one judge pursuant to Wis. Stat. � 752.31(2).� All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.

[2]  The court also discussed an article pertaining to the competence of children under the age of thirteen.� We do not address the court�s discussion of this article, however, because it was never entered into the record.� In any event, whatever the content of the article may have been, it is not the focus of Zachary�s argument.� Zachary presented evidence he functions at the level of a child much younger than he actually is; he does not argue his actual age renders him incompetent.

[3] Instead, Wis. Stat. � 938.295(2)(c) permits the county to recover a reasonable contribution from the juvenile�s parents toward the cost of the evaluation.