State v. Dort

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                  STATE v. DORT—DISSENT

   ESPINOSA, J., dissenting. I disagree with the majori-
ty’s conclusion that the allegations made by the defen-
dant, Joel Dort, were sufficient to satisfy his burden to
show substantial evidence of mental impairment. The
vague allegations that defense counsel raised to the
court fell far short of the requirement that he set forth
‘‘specific factual allegations that, if true, would consti-
tute substantial evidence of mental impairment.’’ State
v. Watson, 

, 

 (1986).
Although the majority claims to apply the abuse of
discretion standard to the court’s ruling, as it is required
to do, my review of the record persuades me that the
majority instead substitutes its own judgment for that
of the trial court. I conclude, after making every reason-
able presumption in favor of upholding the trial court’s
ruling and on the basis of the information that the court
had available to it, that the court acted within its discre-
tion in determining that an independent inquiry into the
defendant’s competence was not required. Accordingly,
I dissent.
   I begin with the applicable standard of review.
Although ‘‘[t]he conviction of an accused person who
is not legally competent to stand trial violates the due
process of law guaranteed by the state and federal con-
stitutions’’; State v. Gonzalez, 

, 

 (1987); General Statutes § 54-56d (b) estab-
lishes a presumption that a defendant is competent.1
Moreover, it is well established that a trial court’s deci-
sion denying a defendant’s motion for a competency
hearing pursuant to § 54-56d (c) is reviewable under
the abuse of discretion standard. State v. Lloyd, 

, 

 (1986). We have explained
that ‘‘[t]he trial court should carefully weigh the need
for a hearing in each case, but this is not to say that it
should be available on demand. The decision to grant
a hearing requires the exercise of sound judicial discre-
tion. . . . [P]risoners are not entitled and need not be
permitted to make bald charges of mental incompe-
tency to stand trial for the purpose simply of obtaining
an excursion from the penitentiary. . . . A balance
must be struck between the practical and the theoreti-
cal, and this can best be done by the [trial court].’’
(Citations omitted; internal quotation marks omitted.)

   Under the abuse of discretion standard, a reviewing
court makes ‘‘every reasonable presumption in favor
of upholding the trial court’s rulings, considering only
whether the court reasonably could have concluded as
it did.’’ State v. Annulli, 

, 491, 

 (2013). ‘‘[Thus, our] review of such rulings is limited
to the questions of whether the trial court correctly
applied the law and reasonably could have reached
the conclusion that it did.’’ (Internal quotation marks
omitted.) State v. Hill, 

, 700, 

(2013). We repeatedly and consistently have described
the abuse of discretion standard as one that is deferen-
tial; see, e.g., State v. Dupas, 

, 

 (2009); and it would be inappropriate for us to
substitute our judgment for that of the decision maker
below, whether it be a trial court or an administrative
agency. See, e.g., FairwindCT, Inc. v. Connecticut Sit-
ing Council, 

, 690, 

 (2014);
Aguire v. Aguire, 

, 

(1976). My review of the trial court’s ruling, therefore,
properly takes into account both the statutory presump-
tion of competence, and the deference that must be
accorded to the trial court.
   In accordance with the rule set forth in Pate v. Rob-
inson, 

, 385–86, 

, 

 (1966), we have stated that: ‘‘As a matter of due
process, the trial court is required to conduct an inde-
pendent inquiry into the defendant’s competence when-
ever he makes specific factual allegations that, if true,
would constitute substantial evidence of mental
impairment. . . . Substantial evidence is a term of art.
Evidence encompasses all information properly before
the court, whether it is in the form of testimony or
exhibits formally admitted or it is in the form of medical
reports or other kinds of reports that have been filed
with the court. Evidence is substantial if it raises a
reasonable doubt about the defendant’s competency
. . . .’’ (Citation omitted; emphasis added; internal quo-
tation marks omitted.) State v. 

 199 Conn.
365–66. We consistently have stated that the indepen-
dent inquiry required by Pate v. 

 385–
86, is an evidentiary hearing.2 See, e.g., State v. Wolff,

, 663–64, 

 (1996) (‘‘[w]hen
a Pate inquiry is required, a court . . . must hold an
evidentiary hearing into the defendant’s competence’’
[internal quotation marks omitted]); State v. 

 (same).
   The only question in this appeal is whether the trial
court properly determined that the defendant’s allega-
tions did not constitute ‘‘specific factual allegations
that, if true, would constitute substantial evidence of
mental impairment.’’ (Internal quotation marks omit-
ted.) State v. 

. This court has
consistently held that the requirement that a defendant
provide ‘‘specific factual allegations’’ in support of a
motion for a competency hearing requires that he pro-
vide detailed facts that are relevant to competency dur-
ing the relevant time period. Vague or broad factual
allegations will not suffice. For example, in State v.

, this court affirmed the ruling of the
trial court denying the defendant’s motion to withdraw
his guilty plea on the basis that he was not competent
at the time of the plea. The defendant claimed that at
the time of the plea ‘‘he was under the influence of
drugs and did not understand the questions that were
asked or the meaning of his plea.’’ 

. We con-
cluded that the facts offered by the defendant were not
sufficiently specific, because he had not supplied the
court with the details of his drug use on the day of the
plea, such as which drugs he took and when he took
them.3 

; see also State v. 

 198
Conn. 605–606 (independent inquiry not required where
only evidence of incompetence was ‘‘brief and unsub-
stantiated reference to a history of psychiatric treat-
ment and medication’’).
   The majority identifies only one specific factual alle-
gation made by defense counsel in support of the
motion for a competency hearing: defense counsel
alleged that the defendant erroneously believed that
the fact that the gun that he had used during the incident
was not operable would constitute a defense to the
charges. I agree that this is a specific factual allegation,
but that alone is not sufficient to entitle the defendant
to a competency hearing. The allegation must be one
that, if true, would constitute substantial evidence of
mental impairment. It must raise a reasonable doubt
about the defendant’s competency. The defendant’s fail-
ure, within a matter of hours, however, to comprehend
the effect that the amended charges had on his planned
theory of defense is not sufficient to raise a reasonable
doubt about his competency.
   As the majority opinion explains, the state had just
amended the information. Whereas the charges in an
earlier information had required the state to prove the
defendant’s use or represented use of a firearm, deadly
weapon, or dangerous instrument, the amended charges
did not. The state filed the amended charges in its long
form information, however, on June 24, 2010, the same
day that the defendant moved for a competency hearing.
Thus, the defendant’s belief that the operability of the
gun was relevant to his defense was accurate as recently
as one day before the motion for a competency hearing.
It is not surprising, and hardly a sign of lack of compe-
tency, that the defendant had not yet grasped the signifi-
cance of that amendment to the charges, and that he
nonetheless clung to what likely appeared to him to be
his strongest argument, that the gun he used during the
incident was not capable of firing. The concept of legal
relevance is not a simple one, and defense counsel’s
allegation that the defendant had not grasped, within
a matter of hours, that a fact in his favor was no longer
relevant to the charges he faced, is not a specific fact
that, if true, would constitute substantial evidence of
mental impairment. Moreover, the court implicitly
expressed its belief that counsel simply needed more
time to explain the consequences of the amended
charges to the defendant by observing that defense
counsel would have several days before the start of
evidence during which counsel could rectify any misun-
derstandings the defendant had regarding the charges
that he now faced.
   None of the remaining statements made by defense
counsel in support of the defendant’s motion constitute
specific factual allegations. Instead, defense counsel
made very vague allegations accompanied by legal con-
clusions. Specifically, counsel stated that he had been
‘‘asked questions’’ by the defendant and that he had
‘‘observed a behavior’’ that led him to believe that the
defendant would continue to have difficulty communi-
cating and that it would ‘‘hinder [his] ability to defend
him, especially with regard to his understanding of the
case and the facts and conditions that existed at the time
that [the defendant] feels are relevant to his defense.’’
These statements simply indicated that the defendant,
like many criminal defendants, displayed a lack of legal
knowledge, not that he was incompetent. Defense coun-
sel also stated that ‘‘there are things that he has said
to me and clear-cut advice that, both on the record and
off the record, he continues not to follow when I give
it to him. And these are fundamental bits of advice,
Judge, I might add. So, for example, don’t talk to any-
body about your case or be advised that you’re not
obliged to incriminate yourself by making incriminating
statements. And nonetheless, that has, in my view,
occurred.’’ This statement communicated no specific
facts to the court. Instead, defense counsel informed
the court that in his view, at some unspecified time, to
some unspecified person or persons on some unspeci-
fied topic, the defendant discussed his case and/or made
unspecified incriminating statements, as criminal
defendants do all the time, as evidenced by the common
use of jailhouse informants in criminal cases. Impru-
dence is not the same as incompetence. Defense coun-
sel did not provide any details regarding on how many
occasions the defendant made the alleged incriminating
statements, nor did he indicate when they had occurred.
Similar to the other statements made by defense coun-
sel, his representation that the defendant failed to fol-
low counsel’s legal advice provides evidence not of
incompetence, but of a lack of legal knowledge.
    In response to the trial court’s reasonable observation
that disagreements between an attorney and his client
regarding tactical issues and the relevance of certain
issues and statements are fairly common, defense coun-
sel informed the court that there was a ‘‘clear distinc-
tion’’ between those instances and what he was
experiencing in the present case. He stated that
‘‘[t]here’s a fundamental misunderstanding regarding
what can be put forward as a defense in this case.
There’s a fundamental misunderstanding of the seri-
ousness of the charges in light of the defense.’’ This
statement does not set forth a fact, but defense coun-
sel’s conclusion on the basis of an unalleged fact or
facts of the tactical disagreement between counsel and
the defendant. Similarly, counsel stated: ‘‘I am led to
believe—and I make this statement as an officer of
the court, that attempting to extrapolate the relevant
information from [the defendant] in order for me to go
forward with his defense is virtually impossible.’’ This is
simply another legally conclusory statement—the mere
fact that defense counsel made the statement as ‘‘an
officer of the court’’ does not make it specific, or factual.
   The court observed that despite the fact that counsel
had represented the defendant for many months, with
the opportunity to meet with the defendant on multiple
occasions, counsel filed the motion for a competency
hearing on the day that jury selection began. In
response, defense counsel stated that ‘‘in the last day’’
the defendant had ‘‘said things,’’ and had been unable
to ‘‘field information’’ that defense counsel thought was
important to the defense. Defense counsel also stated
that the defendant had informed him that he had with-
held information from him because he had been waiting
until trial. Counsel himself conceded: ‘‘I don’t know
what that means . . . .’’ It is hardly a specific fact to
state that a defendant has ‘‘said things’’ and has been
unable to ‘‘field information.’’ Defense counsel admitted
that he himself did not understand the significance of
the defendant’s claim to have withheld information until
the start of trial. The most that can be extrapolated
from that cryptic statement is that the court was correct
in observing that defense counsel needed the time prior
to the start of evidence to improve communications
with the defendant.
   On the basis of the vague, conclusory statements
made by defense counsel, the trial court denied the
motion for a competency hearing, stating: ‘‘I think the
issue that’s before the court is whether or not there’s
some substantial evidence that would give rise to a
concern on the part of the court that the defendant is
not competent at this time to proceed with trial. And
I must say that I have not heard that.’’ The court also
properly considered that there had been an earlier find-
ing of competence, and that the defendant had not pre-
sented any ‘‘new, substantial evidence’’ that would call
into question that earlier finding. The court thus clearly
stated that the basis for its ruling was its determination
that the defendant had failed to meet his burden to set
forth specific factual allegations that, if true, would
constitute substantial evidence of mental impairment.
Instead, the court concluded that defense counsel’s alle-
gations established that he had concerns about commu-
nications with the defendant.
   Nothing in the record establishes that the court’s
ruling was an abuse of discretion. On the contrary, the
court properly placed the burden on the defendant in
light of the statutory presumption of competence, and
grounded its ruling on its conclusion that the defendant
failed to meet that burden. The majority improperly
mischaracterizes the court’s consideration of the earlier
finding of competence by suggesting that the court
relied solely on the prior determination of competency.
A fair reading of the court’s remarks indicates only that
the court observed that the defendant had been found
competent in the earlier evaluation, considered the ear-
lier finding of competence to be relevant—which it
was—and noted that the defendant had not made any
allegations to the court that day that called the earlier
finding of competence into question. The court’s state-
ment is no different than if the court had observed that
the defendant was presumed to be competent, and that
nothing the defendant had stated in support of the
motion was sufficient to create a reasonable doubt as
to that presumption. The court’s focus properly was
on the defendant’s failure to allege specific facts that
created a reasonable doubt as to his competence. By
assuming that the trial court considered only the prior
competency evaluation, the majority fails to make every
reasonable presumption in favor of upholding the trial
court’s ruling. See State v. Annulli, supra, 

.
   Given the lack of specificity of the representations
offered by defense counsel in support of the motion for
a competency hearing, the majority improperly suggests
that the court should have canvassed the defendant
personally. This court has never stated that due process
requires that a trial court, in every instance, conduct a
canvass of the defendant in order for that court’s denial
of a motion for a competency evaluation to constitute
a proper exercise of its judicial discretion. Moreover,
the record in the present case demonstrates that the
court properly declined to canvass the defendant. After
the court denied the motion for a competency hearing,
the defendant requested through counsel to address the
court directly. When the court asked counsel what the
defendant wished to say, counsel responded that the
defendant wished to address the court concerning the
denial of the motion for a competency hearing because
‘‘[h]e believes that there’s other bases for that and
wishes to convey that to the court himself.’’ The defen-
dant’s desire to address the court in support of the
motion for a competency evaluation demonstrates that
he understood what was occurring in the proceedings.
His request, therefore, was evidence of his competence.
   When the court questioned counsel further, however,
counsel’s explanation revealed that the defendant did
not wish to address the court regarding anything related
to his competence. Instead, defense counsel’s relay of
what the defendant wished to express to the court sup-
ported the state’s theory that the actual motive for the
defendant’s motion for a competency evaluation was
that the defendant regretted the grant of his motion for
a speedy trial. Defense counsel stated: ‘‘My client wishes
to express concern. He does not understand how a
judge can force us to go to trial in one day. He’s been
informed of the speedy trial issue, he’s requested the
speed[y] trial issue but his concern is that yesterday
the reason why he objected to the time frame was
because there was no certitude to the date in September
and he believes that that lack of certitude runs contrary
to our agreement. And that he does have concern that
a judge is able to do that, just to give him any date.
Because he’s sitting in jail and the purpose of the speedy
trial motion is to have some certitude and a date in
September which may or may not happen to him gave
him great concern because he’s sitting in jail.’’ Finally,
counsel added: ‘‘Judge, he wishes me to tell you that
he’s not ready for any of this stuff.’’
   It is important to place defense counsel’s remarks to
the court in the proper context. One day prior to the
competency hearing, in a morning session on June 23,
2010, the court took up the defendant’s motion for a
speedy trial. Defense counsel initially indicated that his
client would like to go to trial in September. The court
stated that it could not commit to a date in September,
but would make all reasonable efforts to have a judge
available to hear the trial in September. It then added,
however, that if the defendant were ready to proceed
immediately, the court had a trial judge available to
start the following day. Defense counsel informed the
court that his client wanted to pick a jury the next
day. The court requested that the parties not leave the
courtroom, because: ‘‘I have a trial judge sitting right
inside . . . in the hallway. . . . Don’t disappear.’’ The
court took up the matter again in an afternoon session.
Defense counsel informed the court that in the interven-
ing time his client had ‘‘changed his mind’’ about wish-
ing to proceed immediately, and renewed his request
for a date in September. Counsel explained that the
defendant had ‘‘see[n] the error’’ of his earlier ‘‘thinking’’
and suggested that the defendant’s motion for a speedy
trial had been the result of the defendant imprudently
taking the advice of other prisoners. The court
responded that it had already scheduled a judge to
preside at trial the following day, and that in doing so,
the court had reorganized the schedule to accommodate
the defendant. The court then explained that jury selec-
tion would commence the following morning. Defense
counsel gave no indication, during either the morning
or the afternoon session, that he had any reservations
regarding his client’s competency to stand trial. The
next day, the defendant moved for a competency hear-
ing. As the trial court aptly observed, ‘‘sometimes in
life, we all have to be careful what we ask for and it
wouldn’t be the first time that somebody has asked for
a speedy trial and then reconsidered the wisdom of
that request.’’
  Properly drawing all reasonable inferences and
employing all reasonable presumptions favorable to the
ruling of the trial court, I therefore conclude that the
court’s ruling was a proper exercise of its discretion.
     Accordingly, I dissent.
 1
     For the relevant text of § 54-56d, see footnote 1 of the majority opinion.
   2
     In light of our case law holding that the independent inquiry required
by due process is an evidentiary hearing, a proposition with which the
majority agrees, it is puzzling that the majority also agrees with the defendant
that, if the trial court could be deemed to have performed an independent
inquiry, as claimed by the state, that inquiry was insufficient because the
court failed to canvass the defendant and failed to make observations on
the record of the defendant’s ‘‘in-court behavior and his ability to compre-
hend the charges against him and assist in his own defense.’’ If the defen-
dant’s allegations were indeed sufficient, then the proper conclusion would
be that nothing short of an evidentiary hearing as to whether to grant his
request for a competency evaluation would satisfy due process.
   I additionally observe that the majority’s suggestion, without any legal
support, that a trial court is somehow obligated to remark on the record
regarding a defendant’s failure to disrupt the proceedings is bizarre, and
inverts both the presumption that a defendant is competent and the abuse
of discretion standard of review, which requires us to draw reasonable
inferences in favor of affirming the ruling of the trial court.
   3
     The majority asserts that State v. 

, is distin-
guishable from the present case because in that case, the court had canvassed
the defendant when it accepted his guilty plea. In Lloyd, however, we
grounded our holding on our conclusion that that the defendant’s ‘‘allega-
tions concerning his use of drugs on [the day of his plea] were conclusory
and were not supported by specific facts.’’ 

. Thus, we determined
that the court did not have before it the type of factually specific details
that give rise to a duty to engage in an independent inquiry of the defendant’s
competence. We then turned to the defendant’s statements during his plea
canvass and concluded that those statements were inconsistent with his
allegations, during his motion to withdraw the plea, that he had not been
competent at the time that he pleaded guilty. 

. We concluded, there-
fore, that his statements during the canvass merely provided additional
support for our holding. Accordingly, the fact that the court had canvassed
the defendant in Lloyd does not render our conclusion that the defendant’s
allegations in support of his motion to withdraw were not sufficiently factu-
ally specific inapplicable to the present case.