              IN THE SUPREME COURT OF IOWA
                              No. 18–1292

                         Filed December 6, 2019


STATE OF IOWA,

      Appellee,

vs.

DARREON CORTA DRAINE,

      Appellant.



      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Scott County, Mark D. Cleve

(motion for competency evaluation and plea) and Henry W. Latham II

(motion in arrest of judgment), Judges.



      A defendant appeals his conviction for willful injury resulting in

serious injury, in violation of Iowa Code section 708.4(1). DECISION OF

COURT    OF    APPEALS     AND   JUDGMENT       OF   DISTRICT    COURT
AFFIRMED.



      Mark C. Smith, State Appellate Defender, (until withdrawal), and

Melinda J. Nye, Assistant Appellate Defender, for appellant.



      Thomas J. Miller, Attorney General, Tyler J. Buller, Assistant

Attorney General, Michael J. Walton, County Attorney, and Andrea L.

Glasgow and Caleb J. Copley, Assistant County Attorneys, for appellee.
                                      2

WIGGINS, Chief Justice.
      The State charged Darreon Draine with willful injury resulting in
serious injury, in violation of Iowa Code section 708.4(1) (2018). He was
sixteen years old at the time he allegedly committed the crime. His counsel
filed a reverse-waiver motion requesting the district court transfer the case
to the juvenile court. The district court denied the reverse-waiver motion.
Counsel then moved the court to suspend the proceedings and order a
competency evaluation for Draine.         The court also denied this motion.
Draine decided to plead guilty. After entry of his plea, Draine filed a timely
motion in arrest of judgment. The court denied the motion in arrest of
judgment and sentenced Draine.        Draine filed his notice of appeal on
July 18, 2018.
      Draine raises three issues on appeal. First, he claims the district
court erred in denying his request for a competency evaluation shortly
after it denied his reverse-waiver motion. Second, he argues the court
erred in overruling his motion in arrest of judgment. Finally, he argues
the court should have ordered a competency evaluation following his
motion in arrest of judgment.
      We transferred the appeal to the court of appeals.          It affirmed
Draine’s conviction on May 15, 2019.         The court of appeals found the
district court did not err in not ordering an initial competency hearing. It
also found “Draine [did] not identify any specific facts upon which the
court should have relied to hold a preliminary hearing and find probable
cause to order a competency evaluation following the motion in arrest of
judgment.” Finally, it found the district court did not abuse its discretion
when it denied Draine’s motion in arrest of judgment. Draine asked for
further review on May 31, 2019, which we granted on June 18, 2019.
      In the 2019 legislative session, the general assembly amended Iowa
Code section 814.6(1) (2019). The amendment denies a defendant the
                                      3

right of appeal from a guilty plea, except for a guilty plea to a class “A”
felony or in a case where a defendant establishes good cause. 2019 Iowa
Acts ch. 140, § 28 (to be codified at Iowa Code § 814.6(1)(a)(3) (2020)). The
amendment’s effective date was July 1, 2019.        See Iowa Code § 3.7(1)
(2019). The State in its supplemental brief argues we should apply the
amendment retroactively.       Thus, the State contends, we have no
jurisdiction of the appeal regarding Draine’s guilty plea or the district
court’s denial of Draine’s motion in arrest of judgment under this
amendment.
      We addressed this jurisdictional issue in State v. Macke, 933

N.W.2d. 226, 235 (Iowa 2019). There we held the amendment to section

814.6(1) is not retroactive and the statutes controlling appeals are those

that were in effect at the time the judgment or order appealed from was

rendered. Id. Therefore, we do have jurisdiction of this appeal.

      As to the merits of the appeal, when reviewing an application for

further review, we retain discretion to review all the issues raised on appeal

or in the application for further review, or only a portion thereof. Gits Mfg.

Co. v. Frank, 855 N.W.2d 195, 197 (Iowa 2014). In our discretion, we

choose to review only the jurisdictional issue raised by the State on further

review.   Accordingly, the court of appeals decision stands as the final

decision as to Draine’s claims the district court erred in failing to order a

competency evaluation prior to Draine’s guilty plea and at or near the time

Draine filed his motion in arrest of judgment.        The court of appeals

decision also stands as the final decision regarding Draine’s claim the

district court abused its discretion when it denied his motion in arrest of

judgment. Consequently, we affirm the district court’s judgment in this

matter.
                                     4

      DECISION OF COURT OF APPEALS AND JUDGMENT OF

DISTRICT COURT AFFIRMED.

      Waterman, Mansfield, and Christensen, JJ., join this opinion.

Mansfield, J., files a concurring opinion in which Waterman and

Christensen, JJ., join. Appel, J., files a dissenting opinion. McDonald, J.,

takes no part.
                                        5

                                                    #18–1292, State v. Draine

MANSFIELD, Justice (concurring specially).

         I join the majority opinion. I write separately to explain briefly why

I agree with the determinations of the district court and the court of

appeals that did not find probable cause to believe Darreon Draine was

“suffering from a mental disorder which prevent[ed] the defendant from

appreciating the charge, understanding the proceedings, or assisting

effectively in the defense.” Iowa Code § 812.3(1) (2018). To be sure, the

dissent raises some legitimate overall concerns about juveniles and their

competency to stand trial.         However, I am not convinced they are

manifested in this particular case.

         A critical point is that Draine had been seen repeatedly over the

years by mental health professionals, partly at the insistence of his

mother.      They had diagnosed his issues as behavioral.       This is not a

situation of a young man falling through the cracks and not receiving

diagnosis or treatment.      In December 2017, a detailed evaluation by a

psychiatrist concluded that Draine exhibited “ADHD Combined type,”

“Conduct      Disorder    Childhood-Onset,”     “Nonadherence     to   Medical

Treatment,” “Oppositional Defiant Disorder,” and “Intellectual Disability

Mild.”     In fact, an earlier note had stated, “The doctors think he is

functioning higher than what his IQ shows.” On January 9, 2018, the

same psychiatrist followed up with the Iowa Department of Human

Services and gave the following verbal recommendation:

         [B]ecause this is primarily behaviors he really should go into
         the juvenile system and be held accountable for these
         behaviors as medicines are not a fix . . . [H]e has been given
         every opportunity at every level to work on these behaviors
         and has chosen not to do so.
                                     6

      Two weeks later, Draine beat up a thirty-year-old staff member at

his latest placement, giving him a concussion along with other cranial and

facial injuries and leading to the criminal charge in this case.

      Thus, when Draine’s attorney filed his April 2018 motion for

competency evaluation in the present case, a psychiatric evaluation of

Draine had just occurred four months earlier. This psychiatrist, like other

mental health professionals before him, had concluded that Draine’s

issues were mainly behavioral. The district court reviewed these records

and discussed them when it denied Draine’s motion for competency

evaluation.

      Furthermore, while attorney representations to the court should

always be taken seriously, the district court here did exactly that. Draine’s

attorney made three points at the hearing. First, he noted that in their

most recent meeting, Draine had “misidentified [him] as his juvenile court

attorney as opposed to his District Court attorney initially.” This strikes

me as unexceptional for a person who is enmeshed in the legal system and

has different appointed counsel serving different roles.       Second, the

attorney said that after he “got through what [he] wanted to get through

fairly quickly, probably in about 20 minutes or so,” and as he was getting

ready to leave, Draine threatened him “first for talking with him and then

for looking at him.” Third, the attorney relayed secondhand reports of

Draine urinating all over his jail cell and “engag[ing] in continuous

threatening behavior at the jail.” The district court specifically discussed

the second and third representations in its ruling on Draine’s motion,

finding them characteristic of the previously diagnosed behavioral issues.

      We also have transcripts of the guilty plea and sentencing

proceedings. These support the conclusions of the district court and the

court of appeals that Draine understood the proceedings against him and
                                     7

his issues were behavioral. Notably, at the guilty plea hearing, Draine and

his counsel made a clarification about Draine not having struck the victim

with a radio:

             MR. TUPPER: Your Honor, just for clarity of the record,
      Mr. Draine and I had discussed this matter multiple times
      previously. He does indicate that the portion of the Minutes
      of Testimony in the police reports where it is said he struck
      Mr. White with a radio -- he indicates that didn’t happen, but
      he does admit the other portions of the assault where he was
      striking Mr. White with his fist. So there is a portion of the
      Minutes that he does disagree with, and I just wanted to
      clarify that.

            THE COURT: Very well.

            MR. TUPPER: Do you agree with that?

            THE DEFENDANT: Yeah.

Then, at sentencing, Draine made the same clarification without the

assistance of counsel:

      I shouldn’t go like to prison or nothing, because I didn’t hit
      the dude with a radio, I hit him with my closed fist. So I
      shouldn’t go to prison or Eldora or anything like that. I should
      be on probation here with my mom, you know, my family. So
      that’s all I got.

Accordingly, not only did Draine understand the charges against him, he

understood them well enough to insist on making a factual clarification

and argue why it should mitigate his punishment.

      State v. Einfeldt is a different case. See 914 N.W.2d 773 (Iowa 2018).

There, the defendant had a prior diagnosis of mental illness and was

engaging in bizarre courtroom behavior. See id. at 781–83. State v. Kempf

is also a different case. See 282 N.W.2d 704 (Iowa 1979). There, the

sixteen-year-old defendant had a “limited grasp of reality,” was allowed to

plead guilty against his attorney’s recommendation, and was sent for a
                                    8

psychiatric evaluation following the guilty plea that the district court

disregarded. See id. at 707–10.

      For the foregoing reasons, I specially concur.

      Waterman and Christensen, JJ., join this special concurrence.
                                      9
                                                #18–1292, State v. Draine
APPEL, Justice (dissenting).

      Thirty years ago, the commentary to the ABA Criminal Justice

Mental Health Standards declared that “present mental incompetency . . .

is the single most important issue in the criminal mental health field.”

ABA Criminal Justice Mental Health Standards, standard 7-4.1 cmt.

intro., at 168 (Am. Bar Ass’n 1989). In my view, this comment is as true

today as when it was first made. The issue of adjudicative competence in

this case demands thorough and careful consideration.
      After examining the record, I conclude the district court did not

properly consider the cumulative impact of factors in the record related to

the competence of the defendant: intellectual disability reflected in an IQ

of 60, a history of Attention Deficit Hyperactivity Disorder (ADHD) and

Oppositional Defiant Disorder (ODD), the age of the defendant and the

impact of age on psychological development, and the professional

statement of counsel regarding his ability to communicate with the

defendant. When these factors are cumulatively considered, I conclude

there is enough here to inquire further by requiring a competency

examination by a qualified professional.
      As a result, I respectfully dissent.

      I. Introduction.

      Darreon Draine is an African-American youth who was charged at

age sixteen with willful injury causing serious injury in connection with

an alleged assault on a staff member at the Annie Wittenmeyer residential

program in Davenport, Iowa. After the charge was filed, Draine filed a

motion for reverse waiver into juvenile court. In support of his motion,

Draine produced various medical records.        Among other things, the

records showed an IQ of 60, diagnosis of ADHD and ODD, and a long
                                     10

history of irrational behaviors.   Statements appear in the records that

Draine “does not appear to understand how his behavior negatively

impacts others;” that at age thirteen, his general intellectual abilities were

estimated to be “in the extremely low range;” and that his verbal

comprehension skills were also “in the extremely low range.”              His

perceptional reasoning skills were said to be in the borderline range,

scoring in the (lowest) second percentile.

      A juvenile court officer filed a reverse-waiver investigation report,

which advocated that the reverse waiver be granted.        According to the

reverse-waiver investigative report, Draine’s mental health limitations “can

be better handled in Juvenile Court Services in conjunction with [the]

Department of Human Services.” The district court, however, denied the

motion for reverse waiver.

      Draine’s counsel then filed a motion with the district court to

suspend proceedings and order Draine to undergo a competency

evaluation. After a hearing, the district court denied the motion.

      Two weeks after the district court denied the motion for a

competency evaluation, Draine signed a plea agreement, pleading guilty to

the pending charge. The court held a hearing, accepted the plea, and

ordered preparation of a presentence report.

      Draine next filed a motion in arrest of judgment, and his attorney

sought to withdraw. The district court granted the motion to withdraw

and set a hearing for the motion in arrest of judgment and sentencing. At

the hearing, Draine asserted he did not realize he was entering a guilty

plea during the plea proceeding. The district court denied Draine’s motion

in arrest of judgment and continued sentencing. Because of his age, the

provisions of Iowa Code section 901.5(14) (2018) applied, thereby making

Draine eligible for a deferred judgment or sentence. The district court,
                                     11

however, determined that a prison term was most appropriate and

sentenced Draine to an indeterminate ten-year term of imprisonment.

      II. Overview of the Role of Competence in Criminal Justice.

      A. Introduction.      The common law long recognized that an

incompetent defendant could not be subject to criminal punishment.

Modern caselaw continues to embrace the notion that an incompetent

defendant cannot be brought to trial in a criminal proceeding. Drope v.

Missouri, 420 U.S. 162, 171, 95 S. Ct. 896, 903 (1975); Dusky v. United

States, 362 U.S. 402, 402–03, 80 S. Ct. 788, 788–89 (1960) (per curiam).

      Why has the law generally required that a criminal defendant be

competent in order for the state to impose criminal sanctions?           Two

reasons have been advanced. An incompetent defendant cannot provide

meaningful or adequate assistance to counsel, and as a result, in our

adversarial system the reliability of verdicts is undermined. See United

States v. Merriweather, 921 F. Supp. 2d 1265, 1303 (N.D. Ala. 2013) (“[T]he

Dusky standard requires that a defendant have some ability to confer

intelligently, to testify coherently, to follow and evaluate the evidence

presented, and have some awareness of the significance of the proceeding

and some ability to understand the charges against him, the defenses

available to him, and the basic elements of a criminal trial.”). In addition,

personal autonomy is undermined by the criminal trial of an incompetent

defendant. While lawyers are generally vested with the authority to make

certain tactical decisions, fundamental decisions, such as the decision

whether to plead guilty, lie with the criminal defendant. See Godinez v.

Moran, 509 U.S. 389, 396, 113 S. Ct. 2680, 2685 (1993) (“A criminal

defendant may not be tried unless he is competent, and he may not waive

his right to counsel or plead guilty unless he does so ‘competently and

intelligently.’ ” (citation omitted) (quoting Johnson v. Zerbst, 304 U.S. 458,
                                    12

468, 58 S. Ct. 1019, 1025 (1938))). An incompetent criminal defendant is

not able to exercise his right to engage in plea bargaining. Although the

rationale for incompetence doctrine is not complicated, the doctrine, as

will be seen below, has proven uncertain in its application.

      B. Approach of the United States Supreme Court.

      The United States Supreme Court has generally addressed the

question of the competence of criminal defendants in three cases. These

Supreme Court cases generally describe a competence standard but are

largely ambiguous as to its application.

      The most frequently cited case dealing with competency to stand

trial is the one-page per curiam opinion in Dusky, 362 U.S. 402, 80 S. Ct.

788. There, the Supreme Court articulated what amounts to a general

formula for determining competency in a criminal trial. In Dusky, the

Supreme Court, quoting from the brief of the solicitor general declared that

“the record in this case does not sufficiently support the findings of

competency to stand trial.” Id. at 402, 80 S. Ct. at 788. Further citing

from the solicitor general’s brief, the Dusky Court declared

      that it is not enough for the district court judge to find that
      “the defendant (is) oriented to time and place and (has) some
      recollection of events,” but that the “test must be whether he
      has sufficient present ability to consult with his lawyer with a
      reasonable degree of rational understanding—and whether he
      has a rational as well as factual understanding of the
      proceedings against him.”

Id. at 402, 80 S. Ct. at 788–89.

      After Dusky, the Supreme Court decided Pate v. Robinson, 383 U.S.

375, 86 S. Ct. 836 (1966). In Robinson, the defendant had what the Court

characterized as “a long history of disturbed behavior.” Id. at 378–82, 86

S. Ct. at 838–40. At trial, the defense offered four witnesses who testified

that Robinson was insane. Id. at 383, 86 S. Ct. at 841. The defense,
                                     13

however, did not make a motion for a hearing to determine competence to

stand trial. Id. at 384, 86 S. Ct. at 841. The Robinson Court held, however,

that it would be “contradictory to argue that a defendant may be

incompetent, and yet knowingly or intelligently ‘waive’ his right to have the

court determine his capacity to stand trial.” Id.

      The Supreme Court found the evidence in Robinson sufficient to

require a hearing on the issue. Id. at 385, 86 S. Ct. at 842. The Robinson

Court recognized that the Illinois Supreme Court had declared that the

evidence in the case was not sufficient to require a hearing “in light of the

mental alertness and understanding displayed in Robinson’s ‘colloquies’

with the trial judge.” Id. The Robinson Court stated that while Robinson’s

“demeanor at trial might be relevant to the ultimate decision as to his

sanity, it cannot be relied upon to dispense with a hearing on that very

issue.” Id. at 386, 86 S. Ct. at 842. The Robinson Court determined that

there was sufficient doubt as to the defendant’s present competency to

require a hearing on the issue.      Id.   In Robinson, the Supreme Court

rejected the notion of a limited remand to determine the competency issue

because of the difficulty of such a retrospective determination. Id. at 386–

87, 86 S. Ct. at 842–43.

      Finally, the United States Supreme Court decided Drope, 420 U.S.

162, 95 S. Ct. 896. In this case, the defendant was charged with the rape

of his wife. Id. at 164, 95 S. Ct. at 900. Early on, the defendant filed a

motion for a psychiatric evaluation with a psychiatric report attached to

the motion.     Id.    The report diagnosed Drope as suffering from

“(1) [s]ociopathic personality disorder, sexual perversion[,] (2) [b]orderline

mental deficiency[, and] (3) [c]hronic [a]nxiety reaction with depression.”

Id. at 164 n.1, 95 S. Ct. at 900 n.1. No action was taken on the motion.

Id. at 164–65, 95 S. Ct. at 900. As the trial date approached, counsel filed
                                      14

a bare bones motion for a continuance stating that “the defendant is not

a person of sound mind and should have a further psychiatric examination

before the case should be forced to trial.” Id. at 165, 95 S. Ct. at 900.

During trial, Drope’s wife testified that her husband was sick and needed

psychiatric care. Id. at 166, 95 S. Ct. at 901. She also testified that “on

the Sunday prior to trial[,] he tried to choke her to death.” Id. at 179, 95

S. Ct. at 907. During the prosecution’s case, the defendant shot himself

in a failed suicide attempt and did not appear for trial. Id. at 166, 95 S. Ct.

at 901.    Ultimately, a motion to continue the trial was denied, the

defendant was convicted on the rape charge, and the Missouri state courts

affirmed the conviction. Id. at 166–67, 95 S. Ct. at 901.

      The Supreme Court reversed and remanded. Id. at 183, 95 S. Ct. at

909. The Drope Court emphasized that the combination of the pretrial

showing, the testimony at trial, and the defendant’s suicide attempt was

sufficient to trigger further inquiry. Id. at 180, 95 S. Ct. at 908. The Court

noted that there were “no fixed or immutable signs which invariably

indicate the need for further inquiry to determine fitness to proceed.” Id.

But regardless of whether a pretrial hearing should have been conducted,

the Drope Court ruled that once the defendant attempted suicide during

the course of trial, proceedings should have been suspended until an

evaluation could be obtained. Id. at 181–82, 95 S. Ct. at 908–09.

      The important point here is that the decisions of the United States

Supreme Court have not developed in detail precisely what is required to

trigger a hearing on the issue of competency to stand trial and further, on

what competency to stand trial means. See United States v. Housh, 89

F. Supp. 2d 1227, 1229 (D. Kan. 2000) (noting that few cases have given

meaning to “rational understanding” under Dusky); State v. Garfoot, 558

N.W.2d 626, 633 (Wis. 1997) (Abrahamson, C.J., concurring) (“Many
                                    15

questions remain unanswered: What decision-making abilities are

encompassed by the Dusky formulation? To what extent do the Dusky

tests include an accused’s appreciation of the trial’s significance and his

or her own situation as a defendant in a criminal prosecution? What is

the relation between the Dusky tests and legal rules relating to decision-

making by criminal defendants?”). It is clear, however, that the failure to

make a motion or the filing of a bare bones motion does not relieve the

court of its responsibility to independently determine the issue of

competency.    See Drope, 420 U.S. at 176–77, 95 S. Ct. at 906–07;

Robinson, 383 U.S. at 384, 86 S. Ct. at 841.        Further, the issue of

competency is to be determined considering the accumulated factors, but

not single factors in isolation. Drope, 420 U.S. at 180, 95 S. Ct. at 908.

Finally, the apparently rational responses to court colloquies does not

provide, standing alone, a basis for denying a hearing on competency if

other factors are present. Robinson, 383 U.S. at 385–86, 86 S. Ct. at 842.

      On the issue of what is meant by “rational understanding,” it is clear

that mere factual understanding as to time and place displayed in Dusky

is not sufficient. Any determination of rational understanding must

include consideration of decisional competence. See Godinez, 509 U.S. at

412–13, 415–16 & 415 n.3, 113 S. Ct. at 2693–94, 2695–96 & 2695 n.3

(Blackmun, J., dissenting) (emphasizing the ability of a defendant to make

reasoned decisions regarding their representation); State v. Debra A.E.,

523 N.W.2d 727, 732 (Wis. 1994) (noting inter alia that defendant is

incompetent when unable to make decisions committed by law to the

defendant “with a reasonable degree of rational understanding”). A leading

authority on juvenile competency in court settings has stated that

decisional competence involves “the ability to consider the potential

consequences of several options, to make subjective judgments about the
                                   16

desirability and probability of those consequences, and to compare them.”

Thomas Grisso, The Competence of Adolescents as Trial Defendants, 3

Psychol., Pub. Pol’y, & L. 3, 8 (1997) [hereinafter Grisso, The Competence

of Adolescents].   Restated by another authority, decisional competence

means the ability to make choices reserved for the defendant within the

criminal justice system such as whether to demand a jury trial, represent

oneself, testify, be present, or plead guilty. Terry A. Maroney, Emotional

Competence, “Rational Understanding,” and the Criminal Defendant, 43

Am. Crim. L. Rev. 1375, 1389–90 (2006) [hereinafter Maroney]; see also

Elizabeth S. Scott & Laurence Steinburg, Rethinking Juvenile Justice 160

(2008) (stating defendants must have “not only [the capacity for] adequate

factual and rational understanding, but also the ability to consider

alternatives and make a choice in the decision-making process”).

      The need for decisional competence is especially important for

juveniles. As noted by Grisso and Steinberg, “[m]any of the differences

between adolescents and adults have to do with their ability not merely to

understand things, but to use information to make decisions.” Thomas

Grisso & Laurence Steinberg, Juvenile Competence: Can Immaturity Alone

Make an Adolescent Incompetent to Stand Trial, 9 Juv. Just. Update 1, 14

(2003).

      Determining whether a juvenile defendant has sufficient decisional

competence for adjudication is not a task subject to quick seat-of-the-

pants judgment. Such determinations require

      a highly particularized inquiry into whether the defendant’s
      perception and understanding of relevant aspects of the world
      are accurate; whether she is able to engage in appropriately
      flexible reasoning; and whether she can formulate, express,
      maintain, and implement choices.

Maroney, 43 Am. Crim. L. Rev. at 1400.
                                    17

       The question in this case is whether such a particularized inquiry

should have been ordered by the district court.

       C. Iowa’s Approach to Competency in Criminal Proceedings.

Iowa Code section 812.3(1) provides the framework for implementing the

due process requirement that a defendant be competent in a criminal

proceeding. Iowa Code section 812.3(1) provides that at any stage of a

criminal proceeding a competency hearing may be required when the

district court finds probable cause that there exist “specific facts showing

that the defendant is suffering from a mental disorder which prevents the

defendant from appreciating the charge, understanding the proceedings,

or assisting effectively in the defense.” When a district court orders an

evaluation, Iowa Code section 812.4 establishes a timeline for the

evaluation.

       We have stated there is a presumption that the defendant is

competent. State v. Lyman, 776 N.W.2d 865, 874 (Iowa 2010), overruled

on other grounds by Alcala v. Marriott Int’l, Inc., 880 N.W.2d 699, 708 &

n.3 (Iowa 2016); State v. Rieflin, 558 N.W.2d 149, 152 (Iowa 1996),

overruled on other grounds by Lyman, 776 N.W.2d at 873; State v.

Pedersen, 309 N.W.2d 490, 496 (Iowa 1981).           That presumption is

determinative, however, only when the evidence is in equilibrium. Lyman,

776 N.W.2d at 874; Rieflin, 558 N.W.2d at 152; Pedersen, 309 N.W.2d at

496.

       We have observed that probable cause under the statute exists when

a reasonable person would believe there is a substantial question of the

defendant’s competency. State v. Kempf, 282 N.W.2d 704, 706–07 (Iowa

1979). We have relied upon federal precedent declaring that the standard

of review is “whether a reasonable judge . . . should have experienced

doubt with respect to [the defendant’s] competency to stand trial.” State
                                      18

v. Mann, 512 N.W.2d 528, 531 (Iowa 1994) (quoting Griffin v. Lockhart, 935

F.2d 926, 930 (8th Cir. 1991)).

      In making the determination regarding whether to order an

evaluation, we rely on the totality of circumstances. Pedersen, 309 N.W.2d

at 495. In making that determination, we have noted that a lawyer’s report

or professional statement plays an important role. State v. Einfeldt, 914

N.W.2d 773, 780 (Iowa 2018). Whether the defendant can communicate

effectively with counsel is also a critical factor. Rieflin, 558 N.W.2d at 152.

Subnormal intelligence is one factor to be considered but does not

necessarily require a finding of incompetence.       State v. Stoddard, 180

N.W.2d 448, 449, 451 (Iowa 1970) (noting IQ scores of 78 and 75 in

previous testing, denoting severe mental retardation, was a factor to

consider regarding competence). Other factors for consideration include

any prior medical opinion of which the trial court is aware, the defendant’s

apparent irrational behavior, and other demeanor that suggests a

competency problem. Mann, 512 N.W.2d at 531.

      We review whether a trial court should have ordered a competency

hearing de novo. Einfeldt, 914 N.W.2d at 778; Mann, 512 N.W.2d at 531.

A trial court’s discretion does not play a role in the determination. Einfeldt,

914 N.W.2d at 780; State v. Edwards, 507 N.W.2d 393, 395 (Iowa 1993).

      We have not had many occasions to consider the competency of a

juvenile.    In Kempf, however, we considered whether a competency

evaluation should have been conducted of a sixteen year old “of borderline

intelligence with emotional development lower than his age.” 282 N.W.2d

at 709.     After canvassing the record, including in-court colloquies, we

concluded that a competency hearing should have been ordered. Id. at

710. We emphasized in Kempf the need to consider the cumulative effect
                                     19

of various factors in determining whether a competency hearing should be

ordered. Id.

      In applying the above principles, it is important to recognize the

preliminary nature of the inquiry.        In Einfeldt, we noted that it was

important that “district court judges not put the proverbial cart before the

horse in the competency setting.” 914 N.W.2d at 782. Under Iowa Code

section 812.3, the district court is not initially called upon to make a

determination of competency, but only that the defendant be evaluated

regarding the competency issue. Id. We cited authorities in Einfeldt noting

that the threshold for a hearing to determine competency as “not difficult

to reach by design” and “very low in order to cleanse all cases of doubts

about competence.” Id. (citing Blakeney v. United States, 77 A.3d 328, 398

(D.C. 2013); Richard J. Bonnie, The Competence of Criminal Defendants:

Beyond Dusky and Drope, 47 U. Miami L. Rev. 539, 463 (1993)).

      We also addressed the issue of remedy in Einfeldt. Because of the

difficulties of retrospective reconstruction of competency, we declined to

allow a limited remand for the sole purpose of proving the ability of the

defendant at the time of trial. Id. at 783.

      III. Application of Principles to the Present Case.

      A. Indicia of Incompetency Present in This Case. In this case,

the record reveals several potential factors to be considered in determining

whether to inquire further into the Draine’s competence. First, the medical

records submitted indicate that Draine had an IQ of 60.          Second, the

medical records show a history of ADHD. Third, the records show that

Draine had a long history of irrational behaviors, cumulating in a

diagnosis of ODD. Fourth, it is undisputed that Draine was sixteen years

of age at the time of trial. Finally, his lawyer stated that he questioned his

client’s competency. The question before us is whether these factors in
                                            20

the aggregate, combined with any other circumstances in “the record[,]

contain[] information from which a reasonable person would believe a

substantial question of the defendant’s competency exists” and so

“require[] a hearing on the issue of competency.” Kempf, 282 N.W.2d at

706.

       We first consider the issue of what in the past has been referred to

as mental retardation but is now generally identified as intellectual

disability. 1    There is, perhaps, a threshold question of whether an

intellectual disability qualifies as a “mental disorder” under Iowa Code

section 812.3(1). I think it does. The current Diagnostic and Statistical

Manual of Mental Disorders includes intellectual disability as a mental

disorder. See Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of

Mental Disorders 20, 33 (5th ed. 2013) [hereinafter DSM-5] (noting that all

neurodevelopmental disorders, of which intellectual disability is one,

qualified as mental disorders).             Certainly there is a point when the

limitation of a defendant’s ability to think rationally, assist counsel, and

make decisions reserved to the defendant amounts to incompetence to

stand trial.     See Commonwealth v. Wooten, 269 S.W.3d 857, 864 (Ky.

2008). A statute that did not allow consideration of low intellectual ability

would run the grave risk of unconstitutionality under applicable due

process precedents.

       There is reason to believe that Draine has an intellectual disability,

and there is evidence in the record that he has an IQ of 60. The American

Psychiatric Association indicates that an intellectual disability is marked


       1We   use the phrase intellectual disability to refer to conditions formerly described
as mental retardation. See State v. Linares, 393 P.3d 691, 692 n.1 (N.M. 2017) (“We are
aware that it is no longer acceptable to describe individuals with developmental
disabilities as ‘mentally retarded.’ This now-defunct phrase is part and parcel of a
rhetoric that dehumanized and delegitimized valuable members of our society.”).
                                            21

by   “[s]ignificantly     subaverage       intellectual     functioning:     an    IQ    of

approximately 70 or below on an individually administered IQ test,” plus

impairments        in   adaptive      functioning       such     as    communication,

social/interpersonal skills, functional academic skills, self-care skills, self-

direction, work, or safety.         See Am. Psychiatric Ass’n, Diagnostic and

Statistical Manual of Mental Disorders 49 (4th ed., text rev. 2000). 2 Persons

with IQ scores of 70 or below often “present difficult assessment and

treatment problems with frequently unexplored linguistic and cognitive

obstacles.”      David R. Katner, The Mental Health Paradigm and the

MacArthur Study: Emerging Issues Challenging the Competence of Juveniles

in Delinquency Systems, 32 Am. J.L. & Med. 503, 516 (2006) [hereinafter

Katner].       In any event, medical records characterize his intellectual

abilities “in the extremely low range” and indicate he demonstrated “poor

verbal abstract reasoning and work knowledge skills.” Both lower age and

lower IQ compound in terms of an individual’s level of impairment

regarding competency generally, with IQ scores being lower on average

among individuals detained or incarcerated than in society generally. See

Thomas Grisso, et al., Juveniles’ Competence to Stand Trial: A Comparison

of Adolescents’ and Adults’ Capacities as Trial Defendants, 27 L. & Hum.

Behav. 333, 346–50, 356 (2003).




       2Note   that, consistent with a general shift in verbiage from “mental retardation”
to “intellectual disability,” the DSM-5 similarly changes its verbiage to be consistent with
changes in the law and the “common use [of the term] by medical, educational, and other
professions and by the lay public and advocacy groups.” DSM-5 at 33. Additionally, the
DSM-5 notes a shift in their delineation in various levels of severity, defining them now
“on the basis of adaptive functioning, and not IQ scores, because it is adaptive functioning
that determines the level of supports required. Moreover, IQ measures are less valid in
the lower end of the IQ range.” Id. While I accept and note this change, nevertheless we
also include the language from previous iteration of the DSM as another indicia that a
competency evaluation is required in this case.
                                     22

      I do not regard the presence of evidence of an IQ of 60 as providing

some kind of bright line on the question of competency, but it is a red flag.

As noted by the Wisconsin Supreme Court,

      The State is correct in that [intellectual disability] in and of
      itself is generally insufficient to give rise to a finding of
      incompetence to stand trial. However, a defendant may be
      incompetent based on [intellectual disability] alone if the
      condition is so severe as to render him incapable of
      functioning in critical areas. Thus, the determination of
      competence is an individualized, fact-specific decision. It is
      for that reason that expert testimony regarding a particular
      defendant’s mental capabilities is necessary.

Garfoot, 558 N.W.2d at 631–32 (majority opinion) (citations omitted)

(emphasis added). As suggested by Garfoot, the caselaw regarding the

competence of individuals with intellectual disability is highly contextual

and often the subject of expert analysis. See, e.g., People v. Campbell, 133

Cal. Rptr. 815, 818, 820 (Ct. App. 1976) (affirming an expert evaluation of

defendant, taking into account the diagnosis of mild mental retardation

with an IQ range of 69–79, did not render this particular defendant

incompetent to aide in their own defense); State v. Linares, 393 P.3d 691,

698–700 (N.M. 2017) (affirming finding of incompetence where defendant

had IQ of 68, and therefore had an intellectual disability, but also exhibited

limited intellectual functioning); Garfoot, 558 N.W.2d at 628–29, 633

(affirming trial court finding defendant with IQ of 64 was incompetent

when expert testimony supported trial court decision).

      But if IQ is not necessarily determinative, neither can it be ignored.

IQ consistently is related to competence, with the likelihood of competence

declining with lower IQ scores. Geoffrey R. McKee & Steven J. Shea,

Competency to Stand Trial in Family Court: Characteristics of Competent

and Incompetent Juveniles, 27 J. Am. Acad. Psychiatry & L. 65, 69–72

(1999). As has been noted in the literature, juveniles of low intelligence
                                    23
      [are] much less likely to appreciate that the court was
      proceeding adversely against them, to be able to assist their
      attorneys with a defense, or to understand and weight the
      ramifications of the decisions they alone must make (e.g. plea
      bargaining, testifying).

Geoffrey R. McKee, Competency to Stand Trial in Low-IQ Juveniles, 19 Am.

J. of Forensic Psychiatry 3, 11 (1998).

      It is important to note that the literature also suggests that the

impairment caused by intellectual disability is often not recognized by

attorneys and the courts.

      According to most commentators, legally significant
      impairments due to mental retardation are largely
      unrecognized by attorneys and courts. . . . “[E]fforts that
      many mentally retarded people typically expend in trying to
      prevent any discovery of their handicap may render the
      existence or the magnitude of their disability invisible to
      criminal justice system personnel.” Impairments become
      visible enough to trigger evaluation, it is thought, mainly when
      the defendant is also mentally ill or acts in a bizarre or
      disruptive fashion.

Richard J. Bonnie, The Competence of Criminal Defendants with Mental

Retardation to Participate in Their Own Defense, 81 J. Crim. L. &

Criminology 419, 420–21 (1990) [hereinafter Bonnie] (footnotes omitted)

(quoting James W. Ellis & Ruth A. Luckasson, Mentally Retarded Criminal

Defendants, 53 Geo. Wash. L. Rev. 414, 458 (1985) [hereinafter Ellis &

Luckasson]).

      The failure to recognize intellectual disability is due in part to the

phenomenon called masking.       Persons with intellectual disabilities are

often shamed by their limitations and go to great lengths to mask it by

feigning understanding and comprehension and seeking to appear normal.

See ABA Criminal Justice Mental Health Standard, standard 7-5.9 cmt., at

318 (noting many mildly and moderately disabled individuals have learned

to devote a considerable amount of effort to hide their disability); Morgan
                                    24

Cloud, et al., Words Without Meaning: The Constitution, Confessions, and

Mentally Retarded Suspects, 69 U. Chi. L. Rev. 495, 513–14 (2002) (noting

that police, lawyers, and judges may not realize that a person who

successfully masks his or her ability has a disability); Ellis & Luckasson,

53 Geo. Wash. L. Rev. at 458 (noting many try to prevent discovery of their

disability and attempt to “pass” as a neurotypical person).

      Because of the above factors, the role of an expert, as pointed out in

Garfoot, is important in determining the competence of defendants like

Draine. A key element to the assessment is the skill and qualifications of

the expert. Without expert testimony, however, we are left making a poorly

informed guess.

      The second factor present in the record is ADHD. Standing alone,

it seems clear that in most cases ADHD would not be sufficient to establish

incompetence. But if a person who is intellectually disabled also has a

history of ADHD, the question becomes more complicated.          Could the

comorbidity of ADHD and intellectual disability impact competence to

make important decisions associated with adjudication like deciding

whether to enter into a plea bargain? See DSM-5 at 61–63 (noting ADHD

substantially affects social function and, in some cases, cognitive

functioning as well); David J. Bridgett & Michael E. Walker, Intellectual

Functioning in Adults with ADHD: A Meta-Analytic Examination of Full Scale

IQ Differences Between Adults With and Without ADHD, 18 Psychol.

Assessment 1, 10 (2006) (When ADHD is accompanied by a comorbid

condition, the cognitive deficit is more pronounced.); Barry C. Feld,

Competence and Culpability: Delinquents in Juvenile Courts, Youths in

Criminal Court, 102 Minn. L. Rev. 473, 519–20 (2017) [hereinafter Feld]

(noting juveniles with ADHD may have difficulty concentrating or

communicating with attorney and this may compound developmental
                                     25

incompetence); Erik G Willcutt, et al., Validity of Executive Functioning

Theory of Attention-Deficit/Hyperactivity Disorder: A Meta-Analytic Review,

578 Biological Psychiatry 1336, 1336 (individuals with severe ADHD suffer

cognitive impairments, including deficits in executive and adaptive

functioning).

      The third factor present in the record is a long history of irrational

behaviors, usually involving violent behavior. The record in this case is

replete with outbursts and violent behaviors that appear to be irrational.

Draine was diagnosed with ODD.        The medical records demonstrate a

history of anger, paranoia, and even violence toward people who are trying

to help him, including his mother, staff, and his attorney.

      Both Draine’s diagnosis of ODD and his documented behavior

suggest problems with adaptive behavior, a significant element in the

diagnosis of intellectual disability. And again, the question is whether the

interaction of his intellectual disability, ADHD, and ODD increases the risk

of incompetency sufficient to require further inquiry. See Thomas Riffin,

Competence to Stand Trial Evaluations with Juveniles, 32 New Eng. J. on

Crim. & Civ. Confinement 15, 18–19 (2006).

      In considering the violent history of Draine, an African-American

juvenile, it is important to be vigilant that decision-making is not impacted

by implicit racial bias. As noted by one commentator,

      [M]ental illness among minority youth often goes undiagnosed
      or misdiagnosed because the symptoms they exhibit tend to
      have an “aggressive tenor,” which cause the youth
      immediately to be perceived simply as threatening instead of
      potentially subject to undiagnosed and untreated symptoms
      of mental illness.

Kasey Corbit, Note, Inadequate and Inappropriate Mental Health Treatment

and Minority Overrepresentation in the Juvenile Justice System, 3 Hastings
                                       26

Race & Poverty L.J. 75, 83 (2005); cf. Kristin Henning, Criminalizing

Normal Adolescent Behavior in Communities of Color: The Role of

Prosecutors in Juvenile Justice Reform, 98 Cornell L. Rev. 383, 383 (2013)

(finding that “scientifically supported notions of diminished culpability of

youth are not applied consistently across races” (emphasis omitted)).

      The fourth factor in the record is the defendant’s age. At the time of

trial, Draine was sixteen. He had notable mental capacity problems early

in his life. One of the criteria for an intellectual disability is the onset of

disability at an early age. See DSM-5 at 33 (noting intellectual disability

has its onset “during the developmental period . . . includ[ing] both

intellectual and adaptive functioning deficits in conceptual, social, and

practical domains”).

      Further, as has been recognized, adolescent brain development lags

behind adults. See Roper v. Simmons, 543 U.S. 551, 569–70, 125 S. Ct.

1183, 1195–96 (2005) (finding that due to the adolescent brain’s lack of

maturity, juveniles have an underdeveloped sense of responsibility and are

reckless and impulsive). Moreover, “[n]o recent data provide reason to

reconsider the Court’s observations in Roper about the nature of

juveniles. . . . [D]evelopments in psychology and brain science continue

to show fundamental differences between juvenile and adult minds.”

Graham v. Florida, 560 U.S. 48, 68, 130 S. Ct. 2011, 2026 (2010); see

Miller v. Alabama, 567 U.S. 460, 471–73, 132 S. Ct. 2455, 2464–65 (2012)

(affirming Roper and Graham, based “not only on common sense—on what

‘any parent knows’—but on science and social science as well”); State v.

Sweet, 879 N.W.2d 811, 815–16 (Iowa 2016) (noting the prevailing

scientific view on brain maturation, that “up until the age of about twenty-

five there is a period of rapid change or development in the adolescent

brain. . . . [including in] impulsiv[ity], and as people get older, ‘[they] learn
                                     27

. . . the skills to inhibit behavior’ ”); State v. Null, 836 N.W.2d 41, 54–56

(2013) (noting favorably the Roper, Graham, and Miller precedents, along

with the hard and social science underlying their rationales). While Roper

and its federal and state progeny generally deal with concepts of cruel and

unusual punishment, the science behind these cases is also germane in

other criminal justice settings. See J.D.B. v. North Carolina, 564 U.S. 261,

271–75, 131 S. Ct. 2394, 2402–05 (2011) (recognizing developmental

psychology in context of Miranda warnings and false confessions); see

generally Lindsay C. Malloy, et al., Interrogations, Confessions, and Guilty

Pleas Among Serious Adolescent Offenders, 38 L. & Hum. Behav. 181

(2014) (finding youth especially susceptible to confession, both true and

false, when faced with interrogation techniques, and suggest special

safeguards when interacting with youth who are suspects). Draine was

sixteen at the time of trial, an age that had been suggested as the threshold

for mandatory competence evaluation for juveniles. See Stephen Bell, Tate

v. State: Highlighting the Need for a Mandatory Competency Hearing, 28

Nova L. Rev. 575, 601–03 (2004) (suggesting under the age of sixteen for

mandatory evaluations).

      Admittedly, we are not dealing with a very young defendant that

some authorities believe should be presumed incompetent. See Grisso,

The Competence of Adolescents, 3 Psychol., Pub. Pol’y, & L. at 23

(suggesting a “legal presumption of incompetence to stand trial for youths

younger than 14, when they face proceedings that may lead to criminal

adjudications (including juvenile court transfer hearings)”). Yet, here we

are dealing with a juvenile that also appears to have an intellectual

disability as reflected by a low IQ, which is potentially compounded by

additional mental disorders (ADHD and ODD). There is reason to believe

that the cognitive development of children with intellectual disabilities lags
                                     28

behind the cohort generally. Erika Fountain & Jennifer L. Woolard, The

Capacity for Effective Relationships Among Attorneys, Juvenile Clients, and

Parents, 14 Ohio St. J. Crim. L. 493, 504 (2017) (noting impairment arising

from low IQ is greater for adolescents than young adults); Thomas Grisso,

Dealing with Juveniles’ Competence to Stand Trial: What We Need to Know,

18 QLR 371, 379 (1999) [hereinafter Grisso, Dealing with Juveniles’

Competence] (noting intellectual disability “often produces a lag in youths’

cognitive and social development, requiring a longer time before their

capacities mature to a level typical for them in their adulthood”); Katner,

32 Am. J.L. & Med. at 507 (postulating as to the overlapping impact of

developmental immaturity due to age and developmental immaturity due

to mental disorders). This is particularly important if the defendant is not

simply to understand key issues facing him in the criminal process but to

appreciate the consequences of choices.          Further, aside from the

combination of intellectual disability and immaturity, some studies

suggest that fifteen to seventeen year olds were not the equivalent of adults

in understanding trial proceedings. See Geoffrey R. McKee, Competency

to Stand Trial in Preadjudicatory Juveniles and Adults, 26 J. Am. Acad.

Psychiatry Law 89, 95–97 (1998); Jeffrey C. Savitsky & Deborah Karras,

Competency to Stand Trial Among Adolescents, 74 Adolescence 349, 355

(1984).

      In any event, while some experts conclude that the cognitive

development of sixteen year olds is often the equivalent of adults,

psychosocial development still lags behind.      Psychosocial development

includes processes such as responsibility, perspective, and temperance.

See Elizabeth Caufmann, et al., How Developmental Science Influences

Juvenile Justice Reform, 8 U.C. Irvine L. Rev. 21, 23–26 (2018) (finding that

despite advancement in cognition, psychosocial maturity is delayed due to
                                     29

a so-called “immaturity gap”).      Such psychosocial factors impair an

adolescent’s decisional competence.       See Brian G. Sellers & Bruce A.

Arrigo, Adolescent Transfer, Developmental Maturity, and Adjudicative

Competence: An Ethical and Justice Policy Inquiry, 99 J. Crim. L. &

Criminology 435, 445–51 (2009) (exploring the impact of a variety of

psychosocial factors on competence and noting that it may make no

functional difference whether incompetence is due to mental illness or to

psychosocial immaturity); Laurence Steinberg, et al., Age Differences in

Future Orientation and Delay Discounting, 80 Child Dev. 28, 39–41 (2009)

(finding developmental deficits in adolescents compared with adults,

especially   related   to   understanding   and   consideration   of   future

consequences); Twila A. Wingrove, Note, Is Immaturity a Legitimate Source

of Incompetence to Avoid Standing Trial in Juvenile Court?, 86 Neb. L. Rev.

488, 498–502, 505–06 (2007) [hereinafter Wingrove] (noting that juveniles

are psychosocially impaired as compared to adults and that some

psychosocial factors clearly implicate legal competence of juveniles).

      It may be argued that the limited development of a juvenile is not a

“mental disorder” under the statute. It would seem odd, however, to not

consider the age of a criminal defendant in determining competency.

      Consider, for instance, the reasoning in an unpublished decision by

the Iowa Court of Appeals:

             Limiting incompetency in delinquency proceedings to
      cases in which the child is incompetent by reason of a “mental
      disorder” would fail to recognize that a juvenile’s inability to
      appreciate the charge, understand the proceedings, or assist
      effectively in the defense may be the result of immaturity, lack
      of intellectual capacity, or both. We conclude that limiting
      determinations of incompetency in juvenile cases to those
      cases in which the inability to appreciate, understand, and
      assist is based on a “mental disorder” would offend rights to
      due process.
                                    30

In re A.B., No. 05–0868, 2006 WL 469945 at *3 (Iowa Ct. App. Mar. 1,

2006). The reasoning of In re A.B. was expressly adopted by the court of

appeals in a published opinion. See In re J.K., 873 N.W.2d 289, 295–96

(Iowa Ct. App. 2015); see also In re Hyrum H., 131 P.3d 1058, 1061–62

(Ariz. Ct. App. 2006) (permitting developmental psychology to be

considered in analysis of “competence” under statute); Timothy J. v. Super.

Ct., 58 Cal. Rptr. 3d 746, 751–52 (Ct. App. 2007) (holding no requirement

of mental or developmental disability under applicable statutes); Feld, 102

Minn. L. Rev. at 522 (recognizing the need for courts to use “special

procedural safeguards . . . to protect [juveniles] from improvident

decisions” on the basis that “formal equality [in the treatment of adults

and juveniles] results in practical inequality”); Wingrove, 86 Neb. L. Rev.

at 506 (implicating psychosocial immaturity in the totality of juvenile

competency considerations). But see State v. Swenson-Tucker, No. 32944-

1II, 2006 WL 401699, at *4–5 (Wash. Ct. App. Feb. 22, 2006) (finding that

under Washington’s legal framework, incompetency arises only as a “result

of mental disease or defect” and not from immaturity).        A somewhat

different approach was taken by the Indiana Supreme Court. In In re K.G.,

808 N.E.2d 631, 638 (Ind. 2005), the Indiana court held that the statute

defining competence simply did not apply to juveniles.

      In this case, the question of whether developmental issues fall within

the scope of a “mental disorder” is irrelevant.      Here, it appears the

defendant has an intellectual disability, certainly a mental disorder under

the statute, which is then aggravated by the lack of psychosocial

development as a sixteen year old. See Grisso, Dealing with Juveniles’

Competence, 18 QLR at 379 (noting mental retardation “often produces a

lag in youths’ cognitive and social development, requiring a longer time
                                    31

before their capacities mature to the level that will be typical for them in

their adulthood”).

      The fifth factor is an attorney’s professional statement regarding the

competency of his client. Here, the attorney’s statement was minimal. The

attorney declared that there was a question of competence, noting that

recently the client confused him for another attorney representing the

client in another juvenile proceeding. The attorney also expressed concern

about violent outbursts from his client.

      The attorney’s statement only offers modest additional support, but

as noted in Drope, the fact that a lawyer’s advocacy falls short of

appropriate assistant to the trial court is not fatal to the question of

whether a competency hearing should be afforded. See Drope, 420 U.S. at

177, 95 S. Ct. at 906.   Further, as the literature amply demonstrates,

lawyers themselves are often not fully aware of the competence limitations

of the juvenile defendants. See Ellis & Luckasson, 53 Geo. Wash. L. Rev.

at 493 (noting that “the limited ability of most lawyers to recognize mental

retardation in their clients has been well documented”).

      It is true that the defendant responded to colloquies in court. But

Draine’s minimal responses to the court’s questions does not demonstrate

decisional competence. For example, in Pritchett v. Commonwealth, 557

S.E.2d 205, 207 (Va. 2002), a forensic psychologist interviewed an

intellectually disabled defendant about a forty-word story by asking a

series of leading questions. Some of the information was not contained in

the story, but the defendant provided an incorrect belief that he knew the

answers. Id. Indeed, when the defendant was told “he needed to try to

answer as best he could,” the forensic psychologist testified,

      [The defendant] switched his answers thinking from the
      negative feedback that I was not happy with him so therefore
                                     32
      . . . not only [is he] answering questions that weren’t really in
      the story, but now he’s changing his answers based on that
      slight negative feedback that I gave him.

Id.   As noted by Professor Bonnie decades ago, determining the

competence of a person with an intellectual disability “requires careful

assessment in order to assure both that the admissions embedded in the

plea are reliable and that the defendant understands the nature and

consequences of the plea.” Bonnie, 81 J. Crim. L. & Criminology at 444.

Further, Professor Bonnie warned that reliance on routine plea colloquies

will not be adequate in determining competence:

      Routine attorney-client interactions       and    routine   plea
      colloquies will not do the job.

              At a minimum, when a plea is proffered by a defendant
      [with an intellectual disability], the judge must assure that an
      adequate clinical evaluation has been conducted, and must
      affirmatively seek to satisfy himself or herself concerning the
      factual basis for the plea and the defendant’s understanding
      of its consequences.

Id.

      An examination of the transcripts shows that the questions were

leading and generally called for yes or no answers. Draine answered the

vast majority of the questions, thirty-one to be exact, with one syllable

answers. One question was ninety-three words long and produced a one-

syllable answer. It might have been a satisfactory plea colloquy when

competence was not an issue. But the colloquy itself does not tell us much

about Draine’s mental abilities or competence to stand trial. Even if it did,

the teaching of Robinson is that in-court behavior cannot trump a medical

history suggesting there might be a problem with the competence of the

defendant. 383 U.S. at 385, 86 S. Ct. at 842.

      As indicated above, persons with intellectual disability often have

become skilled in masking their disability because of the sense of shame
                                     33

they attach to it. At a minimum, I think we can at least question whether

this defendant had a good grasp of many of the questions posed, one of

which contained ninety-three words. See Tate v. State, 864 So. 2d 44, 50

(Fla. Dist. Ct. App. 2003) (finding competency hearing was required despite

plea colloquy in which defendant acknowledged the terms of their potential

plea); Commonwealth v. Smith, 324 A.2d 483, 489 (Pa. Super. Ct. 1974)

(noting that despite the appearance from the colloquy that defendant may

have had an understanding of the charges against him, and subsequently,

of the possible consequences of a conviction, this was not enough to

support a finding of competency).      Indeed, the United States Supreme

Court in Robinson reversed the Illinois Supreme Court which relied upon

the apparent rationality of the defendant’s in-court behavior in refusing to

hold a hearing on the defendant’s competence. 383 U.S. at 385–86, 86

S. Ct. at 842–43 (citing People v. Robinson, 174 N.E.2d 820, 823 (Ill.

1961)).

      It is also important to avoid the stereotypical belief that a person

with intellectual disability or mental illness is likely to be a “ticking time

bomb.” As with all stereotypes, such an assertion is overbroad. Further,

the risk that a defendant will continue to reoffend is wholly irrelevant in

determining competency to stand trial. In re Williams, 687 N.E.2d 507,

512 (Ohio Ct. App. 1997).

      B. Determination of Requirement of Competency Evaluation.

Our caselaw properly holds that the question of whether to order a

competency hearing is subject to de novo review by this court. Einfeldt,

914 N.W.2d at 780; Mann, 512 N.W.2d at 531. Further, we are to consider

the cumulative effect of all circumstances that indicate doubt about the

mental competency of the defendant. Kempf, 282 N.W.2d at 707. We are

only to look for reasonable doubt, not a definitive determination of
                                    34

incompetency. Einfeldt, 914 N.W.2d at 779; see also Tate, 864 So. 2d at

51 (noting that the key issue is whether the defendant may be

incompetent, not whether the defendant is incompetent); ABA Criminal

Justice Mental Health Standards, standard 7-4.2(a) cmt., at 178 (noting

“[the court] need not be convinced that a defendant is incompetent to stand

trial before ordering an evaluation, because that is the objective of an

evaluation”).

      Based on the above five factors, I conclude that the evidence before

the district court was sufficient to give rise to a substantial issue as to

whether Draine had the requisite decisional competence to stand trial.

The combination of factors in the aggregate are simply too weighty to allow

a decision to the contrary based on no reasonable doubt.      While Draine

may have had a degree of factual understanding of his situation, such

understanding is insufficient to overcome the other parts of the record that

give rise to a substantial doubt regarding his decisional competency. The

lack of firm evidence of decisional competency is particularly troublesome

in the plea-bargain setting, where decisional competence described in

Godinez and Debra A.E. is critical to a fair outcome.

      C. Conclusion. Under the circumstances, I conclude that there

was a substantial question as to the competence in Draine. As a result, I

would reverse the district court and remand the case to the district court

for proceedings consistent with Einfeldt.
