Opinion
Docket No. 48478.
Decided August 19, 1981.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, James J. Gregart, Prosecuting Attorney, and James A. Christopherson, Assistant Prosecuting Attorney, for the people.
James R. Durant, for defendant on appeal.
Defendant was convicted, on his plea of guilty, of criminal sexual conduct in the first degree. MCL 750.520b(1)(a); MSA 28.788(2)(1)(a). He was sentenced, on the recommendation of defense counsel, to life imprisonment.
On appeal, defendant contends that he was denied the effective assistance of counsel. We agree. A guilty plea does not waive, for appellate purposes, a claim of ineffective assistance of trial counsel. People v McDonnell, 91 Mich. App. 458, 460; 283 N.W.2d 773 (1979), lv den 407 Mich. 938 (1979).
Prior to trial, defense counsel knew: that defendant, in 1968 while in the Army in Germany, had molested a child, that in 1969 defendant had been acquitted by reason of insanity of assault with intent to commit rape, that defendant had been hospitalized for treatment from 1969 to 1974, and that defendant was, at the time of this offense, on probation for breaking and entering and that the motivation for that crime had sexual origins. Moreover, defendant was, at the time of his plea, undergoing psychiatric treatment at the Veterans Administration Hospital in Battle Creek, Michigan, and was free on bond for the purpose of obtaining treatment.
With this knowledge, defense counsel never sought to obtain an opinion on defendant's criminal responsibility nor did he tender a plea of not guilty by reason of insanity. We find from the record before us that counsel did not measure up to the standard put forth in People v Garcia, 398 Mich. 250, 264; 247 N.W.2d 547 (1976), that defense counsel "`must perform at least as well as a lawyer with ordinary training and skill in the criminal law * * *'". People v Tumpkin, 49 Mich. App. 262; 212 N.W.2d 38 (1973), People v Bryant, 77 Mich. App. 108; 258 N.W.2d 162 (1977), McDonnell, supra.
Defendant's prior child molesting charge and his conviction on a crime involving sex, his acquittal on the basis of insanity on another sex offense, and his previous and current hospitalizations for mental illness required, at least, an effort by defense counsel to have the defendant evaluated for criminal responsibility before counseling him to plead guilty to a capital offense. Moreover, even if we were to find that defense counsel was not incompetent under the Garcia standard, we would find that his error in failing to secure psychiatric evaluation was a serious mistake, but for which defendant would have had a reasonable likelihood of successfully interposing a valid and complete defense to the charge. People v Degraffenreid, 19 Mich. App. 702, 718; 173 N.W.2d 317 (1969), Garcia, supra, 266.
As the case must be remanded for trial or for further proceedings, we comment on the prosecution's assertion that examination by the Forensic Center, which determined that the defendant was competent to stand trial, was a sufficient inquiry into the defendant's sanity on the facts of this case. Such an argument is obviously fallacious.
A determination that a defendant is competent to stand trial is a finding that, at the time that the issue is presented, the accused understands the nature and object of the proceedings against him and that he is capable of assisting his defense in a rational manner. MCL 330.2020; MSA 14.800(1020).
On the other hand, an evaluation of sanity, which, on the facts before him, defense counsel should have undertaken, would place in issue whether the defendant knew that what he was doing at the time of the crime was right or wrong, and, if he did, whether he had the will power to resist doing the wrongful act. People v Martin, 386 Mich. 407, 418; 192 N.W.2d 215 (1971).
Clearly, a determination that an accused is competent to stand trial is not equal to, or even suggestive of, the accused's sanity at the time the crime was alleged to have been committed.
Reversed and remanded, with direction to appoint new counsel for the defendant.