Section 971.13. Competency.

 

(1)  No person who lacks substantial mental capacity to understand the proceedings or assist in his or her own defense may be tried, convicted or sentenced for the commission of an offense so long as the incapacity endures.

(2)  A defendant shall not be determined incompetent to proceed solely because medication has been or is being administered to restore or maintain competency.

(3)  The fact that a defendant is not competent to proceed does not preclude any legal objection to the prosecution under s. 971.31 which is susceptible of fair determination prior to trial and without the personal participation of the defendant.

(4)  The fact that a defendant is not competent to proceed does not preclude a hearing under s. 968.38 (4) or (5) unless the probable cause finding required to be made at the hearing cannot be fairly made without the personal participation of the defendant.

1981 c. 367 ; 1997 a. 182 ; 1999 a. 188 . Judicial Council Committee's Note, 1981: Fundamental fairness precludes criminal prosecution of a defendant who is not mentally competent to exercise his or her constitutional and procedural rights. State ex rel. Matalik v. Schubert, 57 Wis. 2d 315 , 322 (1973). Sub. (1) states the competency standard in conformity with Dusky v. U.S., 362 U.S. 402 (1960) and State ex rel. Haskins v. Dodge County Court, 62 Wis. 2d 250 , 265 (1974). Competency is a judicial rather than a medical determination. Not every mentally disordered defendant is incompetent; the court must consider the degree of impairment in the defendant's capacity to assist counsel and make decisions which counsel cannot make for him or her. See State v. Harper, 57 Wis. 2d 543 (1973); Norwood v. State, 74 Wis. 2d 343 (1976); State v. Albright, 96 Wis. 2d 122 (1980); Pickens v. State, 96 Wis. 2d 549 (1980). Sub. (2) clarifies that a defendant who requires medication to remain competent is nevertheless competent; the court may order the defendant to be administered such medication for the duration of the criminal proceedings under s. 971.14 (5) (c). Sub. (3) is identical to prior s. 971.14 (6). It has been renumbered for better statutory placement, adjacent to the rule which it clarifies. [Bill 765-A] Defense counsel having reason to doubt the competency of a client must raise the issue with the court, strategic considerations notwithstanding. State v. Johnson, 133 Wis. 2d 207 , 395 N.W.2d 176 (1986). A probationer has a right to a competency determination when, during a revocation proceeding, the administrative law judge has reason to doubt the probationer's competence. The determination shall be made by the circuit court in the county of sentencing, which shall adhere to this section and s. 971.14 to the extent practicable. State ex rel. Vanderbeke v. Endicott, 210 Wis. 2d 502 , 563 N.W.2d 883 (1997), 95-0907 . There is a higher standard for determining competency to represent oneself than for competency to stand trial, based on the defendant's education, literacy, fluency in English, and any physical or psychological disability that may affect the ability to communicate a defense. When there is no pre-trial finding of competency to proceed and postconviction relief is sought, the court must determine if it can make a meaningful nunc pro tunc inquiry. If it cannot, or it finds that it can but the defendant was not competent, a new trial is required. State v. Klessig, 211 Wis. 2d 194 , 564 N.W.2d 716 (1997), 95-1938 . A prior mental illness or a mental illness diagnosis made subsequent to the proceeding in question may create a reason to doubt competency, but neither categorically creates a reason to doubt competency. State v. Farrell, 226 Wis. 2d 447 , 595 N.W.2d 64 (Ct. App. 1999), 98-1179 . This section codifies the two-part "understand-and-assist" due process test for determining competency set forth in Dusky v. U.S. , 362 U.S. 402 (1960), that considers whether a defendant: 1) has sufficient present ability to consult with his or her lawyer with a reasonable degree of rational understanding; and 2) has a rational as well as factual understanding of the proceedings. Thus, a defendant is incompetent if he or she lacks the capacity to understand the nature and object of the proceedings, to consult with counsel, and to assist in the preparation of his or her defense. State v. Byrge, 2000 WI 101 , 237 Wis. 2d 197 , 614 N.W.2d 477 , 97-3217 . See also State v. Smith, 2016 WI 23 , 367 Wis. 2d 483 , 878 N.W.2d 135 , 13-1228 . It is entirely reasonable that a competency examination designed to address a defendant's ability to understand the proceedings and assist counsel may also address issues of future dangerousness, which a court may reasonably consider when gauging the need for public protection in setting a sentence. State v. Slagoski, 2001 WI App 112 , 244 Wis. 2d 49 , 629 N.W.2d 50 , 00-1586 . A judge who carefully considered the transcribed record and her recollection of a previous proceeding involving the defendant, did not impermissibly testify. There is no substantive difference between a judge's observation of a defendant's demeanor at the time of a competency hearing and the judge's observations of the defendant at an earlier proceeding. Both may be probative. State v. Meeks, 2002 WI App 65 , 251 Wis. 2d 361 , 643 N.W.2d 526 , 01-0263 . Reversed on other grounds. 2003 WI 104 , 263 Wis. 2d 794 , 666 N.W.2d 859 , 01-0263 . Counsel's testimony on opinions, perceptions, and impressions of a former client's competency violated the attorney-client privilege and should not have been revealed without the consent of the former client. State v. Meeks, 2003 WI 104 , 263 Wis. 2d 794 , 666 N.W.2d 859 , 01-0263 .