October 6, 2015.
[Copyrighted Material Omitted]
of a decision of the Court of Appeals. (L.C. No. 2009CF56).
COURT: Circuit. COUNTY: Milwaukee. JUDGE: David L. Borowski.
plaintiff-respondent-petitioner, the cause was argued by
Christine A. Remington, assistant attorney general, with whom
on the briefs was Brad D. Schimel.
defendant-appellant, there was a brief by John T.
Wasielewski, and Wasielewski & Erickson, Milwaukee, and
oral argument by John T. Wasielewski.
DRAKE ROGGENSACK, C.J. REBECCA G. BRADLEY, J., did not
participate. ANNETTE KINGSLAND ZIEGLER, J. (concurring).
SHIRLEY S. ABRAHAMSON, J. (dissenting).
Wis.2d 487] PATIENCE DRAKE ROGGENSACK, C.J.
[¶1] We review a published decision of the
court of appeals that reversed the Milwaukee County
Circuit [367 Wis.2d 488] Court's 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), 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
[¶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
[¶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
circuit court held a Miranda-Goodchild 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?
THE COURT: The second ground would be that the statement was
not voluntary; do you understand that?
THE COURT: Voluntariness goes to police impropriety or
coercion only; do you understand that?
THE COURT: Do you wish to have a motion on either of those
[SMITH]: I don't think so, Judge.
THE COURT: You don't think so or you don't want to?
THE COURT: All right. Have you had enough time to talk to
THE COURT: Do you believe that's in your best interest to
proceed in this manner?
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?
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, where Smith was represented by
Attorney Stephen Sargent. After the State presented its
case-in-chief, the circuit court conducted another colloquy
THE COURT: . . . Mr. Smith, you have the right to testify in
this matter, you have the right to remain silent. Do you
THE COURT: You make the choice yourself, sir. Do you
THE COURT: Have you had enough time to talk to your lawyer?
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?
THE COURT: And are you making this choice freely and
[SMITH]: It's freely and voluntarily.
[¶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
[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
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
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
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
[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
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.
circuit court accepted the State's recommendation and
sentenced Smith to 25
years of initial confinement followed by 15 years of extended
[¶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 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
[¶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 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
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
[¶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
[¶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.
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 ...