Opinion
No. 56777-2-I.
January 14, 2008.
Appeal from a judgment of the Superior Court for King County, No. 03-1-10360-4, Douglass A. North, J., entered July 8, 2005.
Affirmed by unpublished per curiam opinion.
William Bentley appeals his convictions of forgery, first-degree theft, first-degree perjury, securities fraud, money laundering and offering a false instrument for filing. The trial court did not abuse its discretion in declining to require a competency evaluation sua sponte before accepting Bentley's guilty plea. Nothing provided reason to believe that Bentley lacked the capacity understand the nature of the proceedings and assist in his defense. For the same reason, defense counsel did not provide ineffective assistance in failing to request a competency evaluation. Bentley's additional claim of ineffective assistance because his counsel did not use a peremptory challenge to remove a juror for which the court denied a challenge for cause likewise fails because the record does not establish the absence of a valid tactical reason for her action. We affirm.
FACTS
From 1999 through 2002, Bentley falsely held himself out as a licensed clinical psychologist with multiple professional degrees specializing in the treatment of attention deficit disorder. Referring to himself as "Dr. Bentley" and working independently and through an established chemical dependency and domestic counseling agency, Bentley provided counseling services to several adults and youths. After gaining the trust of patients and their parents, Bentley solicited several for loans or investments for the "Bentley Center," a proposed treatment center for children with behavioral disorders. Bentley ultimately collected over $800,000 from six different families.
After Bentley's lack of actual credentials and personal use of collected money was discovered, he was charged with one count of offering a false instrument for filing, two counts of forgery, six counts of first-degree theft, three counts of first-degree perjury, one count of securities fraud and one count of money laundering. For six of the counts the State alleged aggravating factors that could support an exceptional sentence. One count of forgery and one count of perjury were severed and Bentley was tried and convicted for the ten remaining counts in June 2005. After the conclusion of the trial, Bentley reached an agreement with the State to plead guilty to the remaining perjury charge in exchange for a dismissal of the last forgery count. Bentley received an exceptional sentence of 108 months. This appeal follows.
The Necessity of a Competency Evaluation
Bentley first contends that the trial court erred by failing to order that he undergo a competency evaluation before accepting his guilty plea. We disagree.
"No incompetent person may be tried, convicted, or sentenced for the commission of an offense so long as such incapacity continues." RCW 10.77.050; In re Personal Restraint of Fleming, 142 Wn.2d 853, 862, 16 P.3d 610 (2001). The competency requirement has the "modest aim" of ensuring that the defendant has the capacity to understand the nature of the proceedings against him or her and assist in the defense. State v. Marshall, 144 Wn.2d 266, 277, 27 P.3d 192 (2001). RCW 10.77.060 requires a court to order a mental evaluation whenever there is reason to doubt the defendant's competency. The trial court's determination of whether a competency examination should be ordered rests within its broad discretion and will not be overturned absent an abuse of that discretion. Fleming, 142 Wn.2d at 863.
Before entry of Bentley's Alford plea to the perjury count, counsel provided the prosecution and the court letters from Bentley's primary care doctor, neurologist and other medical personnel involved in Bentley's treatment for his heart condition and history of strokes. Bentley's primary care doctor listed Bentley's medical conditions as including chronic depression, attention deficit disorder, and possible vascular dementia. The doctor also noted that Bentley had stated that he had cognitive problems that affected his memory and ability to make decisions. The neurologist reported that test results suggested Bentley had a cognitive disorder and an imaging scan showed biparietal hypometabolism as might be seen in Alzheimer's disease, for which Bentley was taking a standard Alzheimer's medication. Other reports stressed the need to accommodate Bentley's coronary and vascular conditions during his incarceration.
See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970); State v. Newton, 87 Wn.2d 363, 372, 552 P.2d 682 (1976).
During the plea hearing, after questioning Mr. Bentley, the prosecutor asked defense counsel on the record whether she had any concerns regarding competency given the neurologist's letter. Counsel responded that despite having noticed some diminishment in Bentley's abilities she did not. She had spoken with Bentley's neurologist and had known Bentley for almost a year, during which much of the time she had had daily contact with him. She stated she could reassure the State and the court that there was no issue regarding Bentley's competency notwithstanding the diagnosis of early stage Alzheimer's disease, because he understood the role and function of the court and counsel, understood what was happening in court and was in fact able to assist counsel in providing his defense. She noted that she had had a lengthy conversation with him about the nature of his Alford plea to the perjury count during which he asked pertinent questions, and thus believed he was making a knowing, intelligent, and voluntary waiver of his rights to enter his plea.
Bentley relies on Marshall, 144 Wn.2d 266, to support his contention that the trial court erred by failing to require a competency evaluation before accepting his plea. In Marshall, the defendant moved to withdraw his guilty plea, claiming that he was not competent at the time of his plea. Without convening a formal competency hearing, the court heard testimony from several experts as to the defendant's competency. Three experts testified in support of Marshall's motion, opining that he was not competent to enter his plea. The basis for their opinions included the fact that Marshall was actively suffering from delusions at the time of his plea and did not understand the consequences of his plea. The trial court entered a finding of competency without holding a formal competency hearing under RCW 10.77.060. The Supreme Court vacated the guilty plea, finding error because in deciding not to order a competency evaluation the trial court discounted medical reports regarding Marshall's organic brain defects in favor of other factors, including the court's limited observation of Marshall at the plea hearing. Marshall, 144 Wn.2d at 280.
This case does not resemble Marshall. Nothing in the record suggests Bentley suffered an impairment remotely like the defendant's condition in Marshall. Marshall had been diagnosed as a paranoid schizophrenic with auditory hallucinations, a condition for which he had been treated with several medications but was not taking at the time of his plea. 144 Wn. 2d at 280. By one measure, his limited ability to respond to stimulation and make decisions placed him in the fourth percentile of the population, and one intelligence test placed him in the first percentile of the population. 144 Wn. 2d at 279-80.
Moreover, unlike in Marshall, the trial court here had the opportunity to observe Bentley and his interaction with counsel in numerous hearings, including several weeks of trial immediately before the entry of the plea. Under these circumstances, the court was entitled to rely on its own observations and give counsel's assessment of Bentley's functioning considerable weight in exercising its wide discretion in resolving the threshold question of whether there was a reason to doubt Bentley's competency. State v. Harris, 122 Wn. App. 498, 505, 94 P.3d 379 (2004). Here, we cannot say the court abused its discretion.
Citing Fleming, 142 Wn.2d at 862, Bentley argues alternatively that his counsel was ineffective for failing to request a statutory competency evaluation. "To sustain a claim of ineffective assistance of counsel, the defendant must show: (1) `counsel's performance was deficient' and (2) `the deficient performance prejudiced the defense.'" Fleming, 142 Wn.2d at 865 (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). In Fleming, the court found that counsel was ineffective for failing to request a competency evaluation. But in that case, unlike this one, defense counsel knew of expert opinions concluding that the defendant was incompetent but did not provide the court with the evaluations or raise the issue of competency even though the evaluations provided an abundance of reasons to suggest the defendant was incompetent. Accordingly, counsel's representation fell below an objective standard of reasonableness. And had the trial court been apprised of the evaluations, the outcome, the acceptance of the plea, would likely not have been the same. Thus, there was likely prejudice. Fleming, 142 Wn.2d at 866-67.
Here, the record does not disclose that counsel was aware of any diagnosis, evaluation or other information that might inferentially suggest a limitation on Bentley's abilities that counsel did not disclose when the State inquired if counsel believed there was any reason to doubt Bentley's competency. Nor has Bentley shown, from this record, that counsel failed to conduct a sufficient inquiry into Bentley's conditions or treatment to provide a sufficient basis for counsel's opinion that Bentley understood the nature of the proceedings, the role of court and counsel, and was able to assist in his defense. Accordingly, Bentley has not overcome the strong presumption of competence of counsel and thus has failed to satisfy the deficient performance element of Strickla nd. See State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995) (defendant's burden to overcome the presumption of competence of counsel from the record.) And because Bentley has not met this burden, it is not necessary to address the prejudice component of the test. State v. Thompson, 69 Wn. App. 436, 440, 848 P.2d 1317 (1993).
Failure to Exercise a Peremptory Challenge
Bentley next contends his counsel provided ineffective assistance in failing to exercise a peremptory challenge to excuse a particular juror. This claim also fails.
On the first day of trial, the court completed the initial jury selection of a panel of twelve with two alternates. Before the jury was sworn in the next morning, however, the court was alerted to several issues with the jury panel.
One was that a juror who was seated as part of the panel of twelve, Juror 38, reported an encounter with the defendant on the street after the court recessed the day before. Upon questioning by the court, Juror 38 stated she had been crossing the street and had encountered the defendant, who had caught her attention and seemed to keep her gaze for a longer period than normal, which made her uncomfortable. Juror 38 said she thought maybe the defendant was being inappropriate, and if so, believed it would impact how she thought about him. In response to the court's question about whether it was clear that the encounter was other than inadvertent, Juror 38 said she could not say, but there was enough doubt in her mind that she was uncomfortable sitting on the jury. Upon questioning by the prosecution, Juror 38 stated that if she could assume it was inadvertent, she could try to put the encounter aside, but thought it would still be in the back of her mind. When the prosecutor asked why, she responded she did not know if she could or could not, but would do her best with what the court asked her to do.
Defense counsel had no questions, but after Juror 38 returned to the jury room, asked for her to be excused for cause. Counsel requested that if the court was bringing in additional jurors to deal with the other problems, that the court excuse Juror 38 as well. After hearing argument from both parties, the court indicated that it believed the encounter was essentially benign, that Juror 38 was being overly cautious, and that an instruction to her to accept that it was an inadvertent encounter and not let it affect her decision would be sufficient. Juror 38 was returned to the courtroom, and agreed to the court's request that she treat the encounter as inadvertent, put it out of her mind as best she could, and decide the case solely on the evidence and law. Juror 38 also agreed not to discuss the matter with any other jurors and said she had not previously done so.
Because Bentley's counsel had not exercised all of the potential peremptory challenges in the initial voir dire the day before, Bentley now contends his counsel provided ineffective assistance by failing to exercise a peremptory challenge to excuse Juror 38 after the court declined to excuse her for cause. And because failing to exercise all available peremptory challenges precludes a challenge to the court's decision declining to excuse a juror for cause, State v. Davis, 141 Wn.2d 798, 837 n. 227, 10 P.3d 977 (2000), Bentley contends his counsel's performance actually prejudiced him by ensuring the seating of a biased juror.
This record does not support Bentley's claim that a biased juror was empanelled in his case. A juror is biased if she has a state of mind toward the defendant that prevents her from impartially trying the issue. RCW 4.44.170(2); State v. Noltie, 116 Wn.2d 831, 837, 809 P.2d 190 (1991). A juror will not be disqualified if she can set aside her preconceived ideas. Noltie, 116 Wn.2d at 838-40 (a party challenging the decision must show more than the mere possibility of bias). Here, the trial judge was able to observe Juror 38's response during the first set of questions and her further response to the court's request to decide the case solely on the merits and disregard the incident on the street corner. As our Supreme Court recognized in Noltie:
A judge with some experience in observing witnesses under oath becomes more or less experienced in character analysis, in drawing conclusions from the conduct of witnesses. The way they use their hands, their eyes, their facial expression, their frankness or hesitation in answering, are all matters that do not appear in the transcribed record of the questions and answers. They are available to the trial court in forming its opinion of the impartiality and fitness of the person to be a juror. The [appellate] court, which has not had the benefit of this evidence recognizes the advantageous position of the trial court and gives it weight in considering any appeal from its decision. Unless it very clearly appears to be erroneous, or an abuse of discretion, the trial court's decision on the fitness of the juror will be sustained.
116 Wn.2d at 839, quoting 14 L. Orland K. Tegland, Wash. Prac. Trial Practice § 203, at 332 (4th ed. 1986).
Because the record does not show the trial court erred in declining to excuse Juror 38 for cause, it also does not show that counsel erred by failing to exercise a peremptory challenge. Understandably, the record is silent as to counsel's reasons for declining to request a peremptory challenge, but the presumption of competence of counsel requires the defendant to show the absence of any valid tactical or strategic reason for the challenged action to sustain the defendant's burden. State v. McNeal, 145 Wn.2d 352, 362-63, 37 P.3d 280 (2002). Here, after observing Juror 38's response to the court's request to put the incident out of her mind, defense counsel may well have been satisfied that no peremptory challenge was necessary. Bentley speculates as to various scenarios in which it might have made sense for counsel to exercise the peremptory challenge as to Juror 38 notwithstanding that other alternate jurors remained to be seated, but as with our review of the court's decision regarding Juror 38, we are not in a position on this record to second-guess counsel's decision. Bentley's claim of ineffective assistance fails.
We affirm.