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State v. Smith

Supreme Court of Wisconsin

April 7, 2016

State of Wisconsin, Plaintiff-Respondent-Petitioner,
Jimmie Lee Smith, Defendant-Appellant

         Argued October 6, 2015.

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[Copyrighted Material Omitted]

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         REVIEW of a decision of the Court of Appeals. (L.C. No. 2009CF56). COURT: Circuit. COUNTY: Milwaukee. JUDGE: David L. Borowski.

         For the plaintiff-respondent-petitioner, the cause was argued by Christine A. Remington, assistant attorney general, with whom on the briefs was Brad D. Schimel.

         For the defendant-appellant, there was a brief by John T. Wasielewski, and Wasielewski & Erickson, Milwaukee, and oral argument by John T. Wasielewski.

         PATIENCE DRAKE ROGGENSACK, C.J. REBECCA G. BRADLEY, J., did not participate. ANNETTE KINGSLAND ZIEGLER, J. (concurring). SHIRLEY S. ABRAHAMSON, J. (dissenting).


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          [367 Wis.2d 487] PATIENCE DRAKE ROGGENSACK, C.J.

          [¶1] We review a published decision of the court of appeals[1] that reversed the Milwaukee County Circuit [367 Wis.2d 488] Court's[2] denial of defendant Jimmie Lee Smith's (Smith) postconviction motion to vacate the judgment of conviction.

          [¶2] Smith was convicted of second-degree sexual assault, contrary to Wis. Stat. § 940.225(2)(a) (2013-14),[3] and sentenced to 25 years of initial confinement and 15 years of extended supervision. Subsequently, Smith filed a postconviction motion to vacate the judgment of conviction, alleging that he was incompetent at the time of trial and sentencing. The postconviction court appointed experts to evaluate Smith and conducted a retrospective competency evaluation. After an evidentiary hearing, the postconviction court found that Smith had been competent to stand trial and be sentenced.

          [¶3] The court of appeals reversed, and the State petitioned for review. In its petition for review, the State raises the following issues: (1) whether the court of appeals improperly weighed evidence rather than deferring to the postconviction court; (2) whether the court of appeals applied an incorrect standard of review to the circuit court's finding that Smith was competent at trial and sentencing, which finding the State asserts is not clearly erroneous; and (3) whether the court of appeals exceeded its constitutional authority by engaging in improper fact finding.

          [¶4] We conclude that the court of appeals failed to apply the clearly erroneous standard of review to the postconviction court's finding of competency and improperly weighed evidence rather than giving deference to the postconviction court's finding. Reviewing [367 Wis.2d 489] the evidence under the proper standard, we conclude that the postconviction court's finding that Smith was competent to stand trial and be sentenced is not clearly erroneous. Accordingly, we reverse the decision of the court of appeals.[4]

         I. BACKGROUND

          [¶5] On the night of October 2, 2007, Smith followed the victim, A.H., out of a bar, beat and raped her. During the course of the attack, Smith hit A.H. in the face, punched her, and slammed her head against the concrete until she was unconscious. After A.H. regained consciousness, she went to a nearby house and asked the occupants to call 911.

          [¶6] On January 7, 2009, the State charged Smith with second-degree sexual assault, a violation of Wis. Stat. § 940.225(2)(a). Prior to trial, Smith made inculpatory statements to police, and the

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circuit court held a Miranda[5]-Goodchild[6] hearing. At the hearing, the circuit court conducted the following colloquy with Smith:

THE COURT: . . . Mr. Smith, do you understand that you have the right to challenge both--well, challenge any statements that you made to the police on two [367 Wis.2d 490] grounds. The first ground is that you did not receive your Miranda warnings; do you understand that?
[SMITH]: Yes.
THE COURT: The second ground would be that the statement was not voluntary; do you understand that?
[SMITH]: Yeah.
THE COURT: Voluntariness goes to police impropriety or coercion only; do you understand that?
[SMITH]: Yes.
THE COURT: Do you wish to have a motion on either of those two issues?
[SMITH]: I don't think so, Judge.
THE COURT: You don't think so or you don't want to?
[SMITH]: No.
THE COURT: All right. Have you had enough time to talk to your lawyer?
[SMITH]: Yes.
THE COURT: Do you believe that's in your best interest to proceed in this manner?
[SMITH]: Yes.
THE COURT: Do you understand that your lawyer could argue the fact that you may have been confused, which may go to the weight of the confession?
[SMITH]: Yes.
THE COURT: But certainly does not go to the admissibility; do you understand that?
[367 Wis.2d 491] [SMITH]: Yes.

          [¶7] A jury trial began on October 12, 2009,[7] where Smith was represented by Attorney Stephen Sargent. After the State presented its case-in-chief, the circuit court conducted another colloquy with Smith:

THE COURT: . . . Mr. Smith, you have the right to testify in this matter, you have the right to remain silent. Do you understand that?
[SMITH]: Correct.
THE COURT: You make the choice yourself, sir. Do you understand that?
[SMITH]: Correct.
THE COURT: Have you had enough time to talk to your lawyer?
[SMITH]: Yes.
THE COURT: What's your choice?
[SMITH]: My choice was to waive it.
THE COURT: I'm sorry?
[SMITH]: Waive it.
THE COURT: To waive it? So do you want to testify or do you not want to testify?
[SMITH]: I don't want to testify.
THE COURT: All right. And has anyone forced you to do this?
[367 Wis.2d 492] [SMITH]: No.
THE COURT: Do you believe it's in your best interest?
[SMITH]: Yes.
THE COURT: And are you making this choice freely and voluntarily?
[SMITH]: It's freely and voluntarily.


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          [¶8] Smith was convicted on October 14, 2009. Smith's sentencing hearing was held on December 11, 2009, where he continued to be represented by Attorney Sargent. At sentencing, the State recommended the " maximum penalty of 25 years' confinement followed by 15 years' extended supervision" due to Smith's numerous previous convictions and pattern of violent, sexual assault. Prior to imposing sentence, Smith made the following statement:

[SMITH]: Today I want to say in court that I have been through a lot in my life. I help peoples and I got--I got this. I bail peoples out of jail, I got this. I let peoples stay in my house, I got this. I let peoples eat at my house, I got this.
Today [A.H.], I don't know what she lookin' for out of me and why is she comin' to court like this? What it is that she want from me? She in love with me or something? Sayin' that she haven't took a shower since this happened to her? What is wrong with her? I let bygones be bygones. Peoples done throw salt on me every day, every day out there on the street. Peoples took money from me at the court sale, at the courthouse. But I let it ride, they wouldn't even give it back. I let it go.
I sit up North, did time behind bailin' this girl, [], out of jail in Chicago, Illinois for child neglect, because [367 Wis.2d 493] I went to court the day that she was--she was in court, and I went and bailed her out of jail. And then I hear all of this about me? And she supposed to have been back in court. She never go back. She never go back for her--for--to get her bail back. But I'm the one who had to sign her bail as being right to this day.
I am very, very sorry that I even helped this lady. But these ladies are sayin' things like this about me. And she ain't white like her, the lady that--that I bailed out of jail, she's black. And her daughter, I looked out for them when they was starvin' to death, livin' out on the street corner. I'm out here tryin' to make a living every day at my job workin', lost my job behind all of that, feedin' them, lettin' them stay in the house, ended up getting' in trouble with my landlord by buyin' air-conditionin' and things without asking his permission, could I have it in my apartment with the rent and--and included with the lights.
And this is the thanks I get out of it? 12 years like I murdered someone out there on the street? I sat in there 12 years for bailin' her out of jail. I didn't see all these troubles until I bailed her out of jail. Helped her and her family.
And then my brothers, them too, I even brought them to my house and helped them. When I lived with them, they couldn't even pay the light bill. Wouldn't even pay the light bill. The landlord was lettin' them work off his job to pay the rent. And told him to switch the lights in his name. He didn't even do it.
So by me handin' over parts of my Quest card, because I never gained footage after being locked up after bailing [her] out of jail for being convicted of child neglect, for $200 I had to put my name to that, and now she's on the run and I get all of this out of that? She never--She ain't--wouldn't go back to court because [367 Wis.2d 494] I just see her last year. She worked at the same company as I did, I see her there on the 27th and National. She there.
And then this other lady back in--[], she don't even know her name. She callin' me every day. I'm over by my--my--my livin' relatives after I got out of jail, never gained footage, never got a

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job, never got back to my feet. I know nobody in this courtroom don't care.
And--And at that one time I didn't care about my $40 that I gave away to the courthouse, I gave away $40 for a marriage license fee and I couldn't even get it back from the courts. And this happened before all of this stuff about bailin' [her] out of jail. And the courts seemed like this is all my fault? This is not all my fault.
I also talked to [], I sent her a letter last year. And then [], I went back to her house after I got out of jail and she still wasn't workin' out right. And then we--I ended up gettin' shot behind all this. I got a bullet hole through my body and laid up at Froedtert Hospital for almost six months out there fightin' for my life because of these people that hates on me.
I can prove it to you that I got the shot, it is right here in my stomach. I got shot, laid up almost 90 days, I was fightin' for my life at Froedtert because I bailed her out.
[ATTORNEY] SARGENT: Excuse me, your Honor. (Brief discussion off the record.)
[SMITH]: It's got to be out there. I need to put this out there on the table.
THE COURT: Well, we're going to have to put an end to this because none of this really has a whole lot to do--
[SMITH]: I know it don't have a whole lot, but, here, I didn't set up in jail and then I got out and then I [367 Wis.2d 495] couldn'tt even stay on my money, and then I get on SSI and stay on it for like four or five checks and then they cut it off. I get these lawyers $2,300 to represent me. They--I still ain't on for all of this pain and sufferin' that I'm goin' through for not lookin' out for my life after I got my finger injured by my family work helpin' this guy gettin' on the job there. And he didn't even have the decency enough to say I will invite you out to dinner for lookin' out for me. He didn't even have the decency to do that for me.
And then [], she come over to my house, I got the settlement from the--from my gunshot, I buy a car, I take her down there to see her family, she want to run both of us off the highway, kill us both.
THE COURT: All right. Well, Mr. Smith, none of this really has anything to do with--
[SMITH]: But this has got a lot to do with this case.
THE COURT: It really doesn't. So we're going to cut it off if you are not going to get to the point.
[SMITH]: The point is, if you want to hear what my goal are, my goal is to get out of here to get back to work and to get my Social Security. That's it. You don't want to hear what I gotta say but you want to sentence me, though. You want to give me the maximum time, say that I'm a mean person. But I'm not mean. This place is mean. They took money from me here. And then when I write a letter to my family about it back in Chicago telling them how I could stay in Wisconsin with a stolen car from Chicago here, how could I stay here, how could I stay here, I had to sign my letters that I written to them because these peoples here took my--took my marriage license fee and then they took my adoption fee. Now, that is not fair to me. You guys are not being fair.
THE COURT: We're done.
[367 Wis.2d 496] [SMITH]: I'm done but y'all--I just want to address--When I want to talk, y'all don't want to hear the truth.
THE BAILIFF: Now you are done.

         The circuit court accepted the State's recommendation and sentenced Smith to 25

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years of initial confinement followed by 15 years of extended supervision.

          [¶9] On June 18, 2010, Smith's postconviction counsel, Attorney John T. Wasielewski, filed a postconviction motion and moved for a determination of whether Smith was presently competent to assist in postconviction proceedings. On September 13, 2010, a competency hearing was held, and the postconviction court[8] heard testimony from Dr. Deborah Collins who opined that Smith was not competent to proceed, but that he was likely to regain competency within a reasonable period of time. Given this testimony, the postconviction court set another hearing date for December 10, 2010; however, prior to this hearing, Dr. John Pankiewicz evaluated Smith, and opined that Smith remained incompetent, but may regain competency within a reasonable period of time. The postconviction court again scheduled a follow-up hearing for March 14, 2011 where it ultimately found that Smith was incompetent to proceed with postconviction proceedings and was unlikely to regain competency within a reasonable period of time. The postconviction court also appointed a guardian ad litem, Attorney Scott Phillips, to serve on Smith's behalf.

          [¶10] On September 30, 2011, Attorney Wasielewski filed a postconviction motion to vacate Smith's judgment of conviction, alleging that Smith [367 Wis.2d 497] had been incompetent at the time of trial and sentencing. Smith sought to proceed under three theories of recovery. First, Smith alleged " procedural incompetency," arguing that at the time of trial and sentencing, the circuit court had reason to doubt his competency and, therefore, should have sua sponte held a competency hearing. Second, Smith alleged ineffective assistance of counsel, arguing that trial counsel, Attorney Sargent, had reason to doubt his competency and, therefore, should have moved for a competency hearing. Third, Smith alleged " substantive competency," simply arguing that he was convicted and sentenced while incompetent.

          [¶11] The postconviction court[9] ordered Dr. Collins and Dr. Pankiewicz to conduct retrospective competency evaluations to aid in determining whether Smith had been competent at the time of trial and sentencing, which occurred in October and December of 2009, respectively. On August 2, 2012, the postconviction court held a competency hearing where both doctors testified for Smith.

          [¶12] Dr. Pankiewicz testified that, for purposes of his retrospective competency evaluation, he submitted a report dated February 27, 2012. The report indicated that Dr. Pankiewicz had reviewed various sources of information prior to rendering his opinion. These sources included: his prior examinations of Smith, which occurred on December 7, 2010 and March 3, 2011; Dr. Collins' competency report dated July 21, 2010; Smith's records from the Milwaukee [367 Wis.2d 498] County Jail, the Department of Corrections, and the Wisconsin Resource Center; and portions of the sentencing transcript.

          [¶13] Dr. Pankiewicz testified that Smith had a " substantial record of mental illness going back at least 20 years," typically diagnosed as " psychotic disorder or schizophrenia." Dr. Pankiewicz also testified that Smith's jail records played a major role in developing his opinion because they " contained observations of Mr. Smith during that period" and were the most con

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temporaneous records available. The jail records indicated that he " exhibit[ed] unusual behavior at times; requiring placement in the psychiatric special needs unit at the jail. He was frequently viewed as rambling in his communications and although prescribed anti-psychotic medications, typically refused to cooperate with said treatment." Comparing the jail records to Smith's sentencing allocution, Dr. Pankiewicz stated that " Smith was demonstrating rambling speech, which was similar to observations made by staff at the jail. So I believe that was [] further evidence that he was symptomatic at the time."

          [¶14] Based on all of the foregoing, Dr. Pankiewicz opined that " there [was] substantial cause to doubt [Smith's] competency to stand trial in October 2009 [and be sentenced in December 2009]."

          [¶15] During cross examination, Dr. Pankiewicz testified that out of approximately 2,000 competency evaluations that he performed during his career, " less than 10" of them were conducted retrospectively. Dr. Pankiewicz also testified that, although he had reviewed the transcript of the sentencing allocution, he had not reviewed the transcripts of Smith's trial colloquies; nor had he spoken with Smith's trial counsel, [367 Wis.2d 499] Attorney Sargent. Finally, Dr. Pankiewicz admitted that his retrospective competency evaluation, rendered nearly three years after Smith's trial and sentencing, was not as strong as it would have been had he been able to conduct a contemporaneous examination in 2009.

          [¶16] Dr. Collins also testified at the competency hearing. For purposes of her retrospective evaluation, Dr. Collins submitted a report dated September 16, 2011. Dr. Collins' report indicated that she similarly relied on various sources including: her previous examinations of Smith; Dr. Pankiewicz's previous examinations of Smith; Smith's clinical and medical records; Smith's sentencing allocution transcript. Dr. Collins testified that Smith's records revealed that, " as early as 1993, Mr. Smith had been identified with a psychotic disorder and, in fact, at that time was the subject of civil commitment proceedings in a court order for medication to treat his mental illness." Dr. Collins also testified that the totality of Smith's records " well-substantiates a diagnosis of a psychotic disorder, and that [Smith], as early as March of 2009, was actively symptomatic."

          [¶17] Dr. Collins ultimately opined that, " to a reasonable degree of professional certainty," Smith was incompetent at trial and sentencing. However, Dr. Collins also admitted that, out of hundreds of competency evaluations she had conducted, she estimated that only four had been conducted retrospectively. Dr. Collins also stated that she " frame[d] [her] opinion carefully because, of course, it's a retrospective evaluation and reaching that ultimate conclusion is challenging, at best, because the data is incomplete" without a contemporaneous examination of Smith. [367 Wis.2d 500] According to Dr. Collins, a contemporaneous examination typically is the most important component of a competency evaluation.

          [¶18] On September 14, 2012, the postconviction court continued the competency hearing. Smith's trial counsel, Attorney Sargent, testified in regard to Smith's competency. Attorney Sargent said that he met with Smith approximately seven times throughout his representation. Attorney Sargent said he never had any reason to doubt Smith's ability to understand the proceedings. Attorney Sargent further testified that Smith was able to assist in his defense both at trial and sentencing.

          [¶19] For example, Attorney Sargent testified that Smith denied the allegations of sexual assault, stating that he and A.H.

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had consensual sex in an alley. Therefore, Attorney Sargent and Smith agreed to go forward with a consent defense at trial. Attorney Sargent and Smith also agreed that Smith would not testify at trial because Attorney Sargent advised Smith that he " would [not] come off well as a witness to the jury." Additionally, Attorney Sargent testified that Smith understood and assisted him during discussions of plea negotiations, as well as jury selection. Specifically, during jury selection, Attorney Sargent informed the circuit court that Smith wanted " Juror 17 [to] be struck. It's by his request." The circuit court responded, " Right. We talked about that yesterday, and I said that that would be fine assuming that all the jurors would be back today. It's my understanding they are all here." Attorney Sargent then addressed Smith by asking, " I discussed that with you; is that correct?" Smith responded, " Yes."

          [¶20] With respect to sentencing, Attorney Sargent said that Smith was very animated and [367 Wis.2d 501] angry, and that he had advised Smith to remain calm. He admitted that Smith's sentencing allocution had little relevance and was not helpful to the court in sentencing. However, he did not view Smith's statements as indicating a mental health issue but, rather, an anger issue.

          [¶21] On May 2, 2013, the postconviction court rendered its decision. In so doing, the postconviction court acknowledged the competence and experience of both Doctors Pankiewicz and Collins; however, it noted the significant period of time that had elapsed and that the doctors' retrospective opinions " could not possibly be as solid" as if they had had contemporaneous contact with Smith. Additionally, the postconviction court noted that Attorney Sargent had approximately 25 years of experience and " did not have any reason to question his client's competence during the proceedings." Moreover, the postconviction court gave credence to trial judge, Jeffrey A. Conen's, considerable ...

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