Procedural Challenge in Competency to Stand Trial Proceedings
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* Jennifer Ellis
* Simha E. Ravven

## A Procedural Challenge Related to Competency Proceedings Cannot Be Raised if a Substantive Claim Is Not Also Raised

In *State v. Roberts*, 435 P.3d 1149 (Kan. 2019), the Kansas Supreme Court determined that a procedural claim regarding competency to stand trial could not be brought forth when the defendant did not have a substantive competency claim (i.e., if the defendant was not incompetent). *Roberts* raises additional questions for mental health professionals to consider, including the level of competency needed to advance a substantive claim and the difficulties with reporting nuanced findings in assessment reports.

#### Facts of the Case

Leslie Hugh Roberts, Jr., was charged with 15 counts of rape and 15 counts of aggravated criminal sodomy when he was 26 and 27 years old against a child, who was aged 12 and 13. During his initial trial in 2010, Mr. Roberts' attorney expressed concerns about his competency, which was then evaluated by a psychologist. The psychologist recommended that Mr. Roberts be found competent to stand trial. He reported that Mr. Roberts understood the charges against him and could assist his attorney in his defense. The psychologist's report also noted that Mr. Roberts could not read and had low to borderline cognitive abilities. The psychologist suggested that the “court should take into consideration some ‘special concerns’ to maintain Roberts' competency throughout the proceedings” (*Roberts*, p 1150). The court acknowledged the recommendations of the competency evaluation in open court before proceeding to schedule a preliminary hearing. Mr. Roberts entered a no-contest plea and ultimately waived his right to a preliminary hearing.

Kan. Stat. Ann. § 22-3302 (2012) states that a competency hearing should be held if the judge or either party questions the defendant's competency to stand trial. In Mr. Roberts' case, a competency hearing was not scheduled because further concerns about competency were not raised. At his plea hearing, Mr. Roberts' attorney acknowledged Mr. Roberts' inability to read and stated that he had gone over each line of the plea agreement with him. The judge confirmed with the attorney that Mr. Roberts understood the consequences of the plea and that the plea was freely and willingly given.

Initially, Mr. Roberts did not mount a procedural challenge that a formal competency hearing had not been held. He did, however, challenge the sentence for different reasons on two occasions. First, in *State v. Roberts*, 272 P.3d 24 (Kan. 2012), he appealed the conviction, stating that the sentence was cruel and unusual punishment because of his lack of criminal history and poor education, and that the sentence was disproportionate to the alleged harm, severity, and time course of the offense. He also claimed that the district court had abused its discretion. The original decision was affirmed because Mr. Roberts had not raised concerns about cruel and unusual punishment in district court. Additionally, the appeals court noted that the district court had considered mitigating and aggravating circumstances in its decision. Second, in a subsequent *pro se* motion, Mr. Roberts said that he had never admitted he was over 18 or that the victim was under 14 at the time of the crime. The motion was dismissed because the ages of both Mr. Roberts and his victim had been established. After these challenges failed, Mr. Roberts claimed that his procedural due process had been violated because the judge had not held a competency hearing.

#### Ruling and Reasoning

The Kansas Supreme Court affirmed the judgment and found that a violation of Kan. Stat. Ann. § 22-3302 (2012) did not occur. The competency evaluation had recommended that Mr. Roberts be found competent. This was acknowledged in the exchange between the judge and Mr. Roberts' lawyer in open court. Moreover, Mr. Roberts did not contest the recommendations of the competency evaluation. He did not claim that he was convicted while incompetent (i.e., he did not advance a substantive competency claim). Additionally, the judge noted that an illegal sentence can only be corrected under specific and narrow circumstances that did not apply in the present case.

#### Discussion

This case raises several points of interest to forensic mental health professionals. One point raised by the court was that Mr. Roberts advanced a procedural claim (i.e., that no formal hearing was held) and not a substantive claim related to competency to stand trial. Moreover, the determination that he did not have an adequate substantive claim was made despite a note in the report that he had low to borderline cognitive ability and could not read. This raises the question of how intellectual disability should affect the evaluation of competency to stand trial, as well the level of impairment required for a substantive claim to have been advanced. There are several examples of successful substantive competency claims. In *Anderson v. Gipson*, 902 F.3d 1126 (9th Cir. 2018), a defendant was determined to have had his due process rights violated after not having received a competency hearing because he had acted erratically during the proceedings and attempted suicide prior to the trial. In *McGregor v. Gibson*, 248 F.3d 946 (10th Cir. 2001), the defendant's procedural due process rights were determined to have been violated because a competency hearing was not performed when the defendant did not consistently receive medication during the trial despite a history of mental illness, had an unusual demeanor, and his attorney consistently expressed concerns. Generally, successful substantive competency claims raise significant doubt that the defendant was competent during the course of legal proceedings.

*Roberts* also highlights the challenges that emerge when evaluations of competency to stand trial note a complex history or offer nuanced recommendations. Psychological and psychiatric evaluation reports often note important complexities in competency recommendations and identify elements that are needed to maintain competence or, conversely, that may destabilize and undermine competence.

Forensic mental health evaluators do not know how courts will use their observations and recommendations. Evaluators who comment on factors that affect the maintenance of competence may also have a responsibility to create a more detailed description of a defendant's mental state and abilities so that the court can make fully informed decisions. The psychologist in *Roberts* suggested that the court take into account “special concerns” to support Mr. Roberts' continued competency but did not offer specific recommendations for how to do so. Forensic mental health evaluators should be as clear as possible in the recommendations they offer in such situations.

*   © 2020 American Academy of Psychiatry and the Law