                IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 41357

STATE OF IDAHO,                                   )      2014 Unpublished Opinion No. 789
                                                  )
       Plaintiff-Respondent,                      )      Filed: October 30, 2014
                                                  )
v.                                                )      Stephen W. Kenyon, Clerk
                                                  )
MELVIN ARTHUR MCCABE,                             )      THIS IS AN UNPUBLISHED
                                                  )      OPINION AND SHALL NOT
       Defendant-Appellant.                       )      BE CITED AS AUTHORITY
                                                  )

       Appeal from the District Court of the Fifth Judicial District, State of Idaho,
       Jerome County. Hon. John K. Butler, District Judge.

       Judgment of conviction for possession of a controlled substance and order
       denying motion to withdraw guilty plea, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Reed P. Anderson, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Nicole L. Schafer, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
GUTIERREZ, Chief Judge
       Melvin Arthur McCabe appeals from his judgment of conviction and sentencing
enhancement entered upon his guilty plea to possession of a controlled substance and being a
persistent violator. Specifically, he contends the district court abused its discretion in failing to
sua sponte order a mental health evaluation to determine his competency to represent himself and
by denying his post-sentencing motion to withdraw his guilty plea. For the reasons set forth
below, we affirm.
                                                 I.
                                  FACTS AND PROCEDURE
       While arresting McCabe for driving without privileges, an officer found a cigarette pack
containing methamphetamine on McCabe’s person and various drug paraphernalia in his vehicle.
McCabe was charged with possession of a controlled substance with the intent to deliver, driving
without privileges, possession of drug paraphernalia, failure to provide proof of insurance, and

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being a persistent violator.    The State later filed an amended information, charging an
enhancement under Idaho Code § 37-2739 based on McCabe’s prior misdemeanor conviction for
possession of drug paraphernalia.
       McCabe was appointed counsel, who, upon McCabe’s request, filed a motion to
withdraw. The district court denied the motion and McCabe pled not guilty. McCabe’s counsel
filed a second motion to withdraw, and after conducting a Faretta 1 inquiry, the district court
determined that McCabe made a “free and voluntary decision to represent himself” and allowed
counsel to withdraw.
       McCabe pled guilty to an amended charge of possession of a controlled substance, I.C. §
37-2732(c)(1), and the section 37-2739 enhancement, in exchange for dismissal of the remaining
counts and an agreement to recommend a unified sentence of fourteen years, with six years
determinate. The district court imposed the sentence recommended by the State. McCabe filed a
timely notice of appeal and then filed an Idaho Criminal Rule 35 motion for reduction of
sentence, which the district court denied without a hearing. McCabe filed a motion to withdraw
his guilty plea and a motion for a retroactive competency hearing, arguing, in relevant part, that
he was under the influence of methamphetamine such that he was unable to knowingly and
intelligently waive his right to counsel and to enter a guilty plea. Following a hearing, the
district court denied both motions. McCabe now appeals.
                                               II.
                                          ANALYSIS
       McCabe contends the district court abused its discretion in failing to sua sponte order a
mental health evaluation to determine his competency to represent himself. He also argues the
district court erred by denying his post-sentencing motion to withdraw his guilty plea and to
order a retroactive competency evaluation.
A.     Mental Health Evaluation
       McCabe argues that because there was sufficient evidence to raise a bona fide doubt as to
his competency, the district court abused its discretion by failing to sua sponte order a mental
health evaluation to aid in making a determination as to McCabe’s competency to represent




1
       Faretta v. California, 422 U.S. 806 (1975).

                                                2
himself. He argues the district court’s failure to order a mental health evaluation violated his due
process rights and constituted fundamental error. 2
       A trial court ordinarily has no duty to independently inquire as to the competency of a
defendant unless the defendant raises the issue by motion or by presenting evidence showing
lack of competency. State v. Fuchs, 100 Idaho 341, 346, 597 P.2d 227, 232 (1979); State v.
Hawkins, 148 Idaho 774, 778, 229 P.3d 379, 383 (Ct. App. 2009). When the defendant’s
competency has not been explicitly raised as an issue, the trial court must sua sponte inquire as to
the defendant’s competency only if the court entertains or reasonably should entertain a bona
fide doubt as to the capacity of the defendant to understand the nature and consequences of the
plea. Fuchs, 100 Idaho at 346-47, 597 P.2d at 232-33; Hawkins, 148 Idaho at 778, 229 P.3d at
383. A bona fide doubt exists if there is substantial evidence of incompetence. Hawkins, 148
Idaho at 778, 229 P.3d at 383. Although no particular facts signal a defendant’s incompetence,
suggestive evidence includes the defendant’s demeanor before the trial judge, irrational behavior
of the defendant, and available medical evaluations of the defendant’s competence to stand trial.
Id.
       As support for his contention that he exhibited behavior which raised a bona fide doubt
about his competency to stand trial, McCabe points to exchanges that took place at the hearing
on his counsel’s motion to withdraw. He points to the concern expressed by the district court as
to McCabe’s ability to verbally communicate to a jury:
       Now, I will say this from my prior experience with you, is that when it comes to
       writing, communicating in written form, you are very understandable, you’re very
       knowledgeable, and you’re very intelligent from your written forms of
       communication.


2
        We note that our Supreme Court has held that the failure of a district court to sua sponte
order a mental health evaluation at sentencing may not constitute fundamental error because it
implicates a statutory, not constitutional, right. State v. Clinton, 155 Idaho 271, 273, 311 P.3d
283, 285 (2013). Pertaining to the issue at hand, Idaho does have statutory provisions regarding
when a defendant may be tried and when a mental evaluation is required, Idaho Code §§ 18-210,
18-211, but the Sixth Amendment (and its Idaho counterpart) also guarantee a criminal defendant
the right to have the assistance of counsel for his defense unless a waiver of the right has been
effected knowingly, voluntarily, and intelligently. State v. Dalrymple, 144 Idaho 628, 633, 167
P.3d 765, 770 (2007). This constitutional protection would appear to be implicated by allowing
an incompetent defendant to proceed pro se. We need not decide the issue, however, because
regardless, McCabe has not shown the district court erred by failing to sua sponte order a
competency evaluation.

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               I will say from my experience that I can’t say the same as far as your
       verbal abilities to communicate. Many times your comments seem disjointed,
       confused, not full sentences, and my concern is your ability to communicate with
       the jury or ability to communicate properly with a witness if this matter were to
       proceed to trial. Do you understand what my concerns are?

McCabe responded:
       Most definitely, Your Honor. It’s just that I -- this is -- this is a hearing I’m
       unfamiliar with, and that’s the whole purpose of me coming to court a lot is to get
       accustomed to it like everybody else is so that I can speak the way I intend to
       speak as I do in my motion and stuff, my written motions. But, you know,
       between now and the time it takes to go to trial, if it does go to trial, then I feel
       pretty comfortable in my ability to express myself to the jury.

       McCabe contends that he “actually demonstrated some of this behavior” the court
expressed concern about later in the hearing when he was asked whether his request to proceed
pro se was prompted by dissatisfaction with his appointed counsel. McCabe argues that after he
indicated his belief that counsel had done a good job even though they had disagreed in the
beginning, he “exhibited an odd, almost frenetic thought pattern[:]”
               I just-- Just like she said before I’ve lost confidence in her, but it’s not to
       say that she’s a bad attorney, you know. But, you know, and it’s no reflection on
       her, but-- You know, I know we’re on record and I’m not going to put myself in a
       position to-- well, I’m not going to appeal--
               You know what, Your Honor, push come to shove, I will not appeal my
       ineffectiveness. I won’t. You know, I’ll shove it down my own throat, you know,
       but I’m not, you know, I’m not going to cut my own throat as far as admitting that
       I’m satisfied with her, because there is a lot to be said about that.

       McCabe also contends the district court was “obviously concerned” because it noted at
the hearing that shortly before McCabe’s request to proceed pro se, McCabe had indicated the
opposite:
                The Court:          And I believe when we were here a week or two
       ago, your indication was that you really needed a lawyer because you’re facing
       the potential of life?
                The Defendant:      . . . Yeah, I did relay that to the court.
                The Court:          And why has your decision changed?
                The Defendant:      Well, Your Honor, I just-- I feel that I, you know,
       after reviewing the evidence and stuff like that, as long as everybody plays on an
       open field and plays aboveboard I feel that this thing could be resolved before
       trial. I really do.




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In summary, McCabe argues on appeal that his “irrelevant and odd statements, his vacillations
between coherent statements and confused ramblings, and his sudden shifts in strategy when
facing such a long sentence should have indicated to the district court that [he] did not have a
sufficient contact with reality,” and “thus there was a reasonable doubt as to [his] competence.”
       In rejecting McCabe’s motion for a retroactive competency evaluation filed with his
motion to withdraw his guilty plea, the district court gave insight into its view of McCabe’s
mental state:
               The defendant’s claim . . . of lack of competency is based on his long
       history of substance abuse with methamphetamine. The court was at all relevant
       times familiar with the defendant’s substance abuse history, however, the court
       was also satisfied that his history of substance use did not impair his ability to
       understand the proceeding leading up to the entry of his Judgment of Conviction
       in this matter. The defendant up to the time that he had elected to represent
       himself had been in custody in the Jerome County Jail for approximately 45 days
       (1/22/2013 to 3/7/2013). The court conducted a Faretta inquiry of the defendant
       and determined that the defendant’s decision to represent himself was a knowing,
       voluntary and intelligent decision. At no time did the defendant’s behavior,
       actions, conduct or writing[ ] ever suggest to the court that he did not understand
       the proceedings against him. Further, at the time of the entry of his guilty plea an
       extensive colloquy between the defendant and the court never suggested that the
       defendant did not know what he was doing or [that] he did not understand the
       nature or consequences of his guilty plea. The defendant at no time at or before
       sentencing raised the issue of his competency and at no time did this court have
       any doubt as to the capacity [or] competency of the defendant to understand the
       nature and consequences of his plea. State v. Hawkins, 148 Idaho 774, 778, 229
       P.3d 379, 383 (Ct. App. 2009).

       Upon examination of the record, we are convinced that the evidence before the district
court did not raise a bona fide doubt about as to McCabe’s competence to stand trial and
therefore, the court was not required to sua sponte inquire as to his competency. On appeal,
McCabe characterizes certain of his statements at the hearing on his counsel’s motion to
withdraw as “irrelevant” and “odd” and indicating that he was lacking “sufficient contact with
reality.” This is simply not borne out by a reading of his statements in context. For example, in
response to the district court’s concern as to his verbal communication abilities, McCabe
expressed the rational intention to improve with further practice before the court. And, in fact,
the record indicates he was able to verbally communicate with the court with sufficient clarity.
In addition, the context of his statements regarding counsel does not support his contention on
appeal that they exhibited an “odd, almost frenetic thought pattern.” Rather, prior to making the

                                                5
statement excerpted above, McCabe expressed that he and counsel had a “disagreement in the
beginning” that “put a wedge between” them that was hard to overcome, but that he still
appreciated her and her firm’s assistance. He expressed a reticence to state that she was a “bad
attorney” in open court but wished to make it clear that he did not want her to continue to
represent him. Although his decision to proceed pro se was arguably unwise, McCabe supported
this decision with clear, relevant reasons (conflict with counsel and a belief that he could
sufficiently represent himself).
       McCabe was also not new to self-representation, having chosen to do so several times
before over the span of many years:
               The Court:             . . . [H]ave you represented yourself previously?
               The Defendant:         Yes, I have.
               The Court:             On approximately how many occasions?
               The Defendant:         Twice, I believe.
               The Court:             Okay. And how successful have you been in your
       self-representation?
               The Defendant:         . . . I ended up doing 14 years on one, and I ended
       up getting the one case overturned on appeal, but I did ultimately win it.
               The Court:             And I believe that there was one case where at the
       court’s request you were permitted to represent yourself, and then I believe one of
       the arguments that you made on appeal was that the court allowed you to
       represent yourself, because it wasn’t a knowing, intelligent and voluntary decision
       on your own part. Do you remember that case?
               The Defendant:         Yeah, I was 19 years old at the time, Your Honor.
               The Court:             Okay. And do you think you’re more experienced
       today?
               The Defendant:         Well, I should hope.

       The circumstances here are in marked contrast to the situation in Hawkins, 148 Idaho at
783, 229 P.3d at 388, where we determined the district court should have entertained a
reasonable doubt as to Hawkins’ mental competency either to stand trial or represent himself in
his trial for two counts of robbery. We first noted that Hawkins was capable of preparing and
arguing his own defense, largely without the help of standby counsel; the record reflected that
throughout the pretrial and trial process he was alert and coherent and he understood the order of
events and was an active participant. Id. at 779, 229 P.3d at 384. However, we also noted that
he exhibited delusional characteristics both before and during trial, indicating he might have
been out of touch with reality and did not have a rational understanding of the proceedings. Id.
His behavior included claiming, without proof, that he was a Central Intelligence Agency (CIA)


                                                6
operative; had knowledge of the transportation of weapons to Canada; was involved in a South
American operation with a National Security Agency advisor; and, at some point, cut a
transponder out of his earlobe that had been placed there by “someone.” Id. at 776, 229 P.3d at
381. He told law enforcement, and testified in detail at trial, that he was forced under threats, by
people involved with his CIA work, to commit the bank robberies and wear a bomb vest while
doing so. Id. at 780, 229 P.3d at 385. Taking into account “all of the indicia of bizarre notions
demonstrated before trial started,” we determined there was enough evidence to put the district
court on notice that Hawkins’ competency was in question and therefore, the district court
abused its discretion by failing to sua sponte order a mental evaluation. Id. at 782-83, 229 P.3d
at 387-88. Accord Lafferty v. Cook, 949 F.2d 1546, 1555 (10th Cir. 1991) (holding that although
the defendant’s behavior at trial was logical and consistent, the trial court erred by finding him
competent to be tried for murder given his delusional belief that during a religious revelation he
was instructed to “remove” his sister-in-law, her infant child, and two other people).
       Here, there is no evidence in the record that McCabe demonstrated any bizarre behavior
or delusional characteristics that indicated he may not have been in touch with reality. Making
the arguably unwise decision to proceed pro se simply does not reach the threshold that triggers a
responsibility on the part of the district court to sua sponte order a mental evaluation to
determine a defendant’s competency to do so. McCabe has not shown the district court erred by
failing to sua sponte order a mental health evaluation to assess his competency. 3




3
        The State’s sole response to McCabe’s contention in this regard is to argue that by
pleading guilty, McCabe waived this issue. In support, the State cites State v. Al-Kotrani, 141
Idaho 66, 68, 106 P.3d 392, 394 (2005), where our Supreme Court determined that by
unconditionally pleading guilty, Al-Kotrani waived his right to challenge the district court’s
determination of his competency. As McCabe points out, however, the Supreme Court premised
its decision on several important factors that are not present in this case. In response to Al-
Kotrani’s argument that an allegedly incompetent defendant should not be held to have waived
any rights by entering an unconditional guilty plea, the Supreme Court acknowledged the
argument “has some appeal” but that it overlooked two facts: Al-Kotrani was represented by
counsel during the proceedings (and there is a strong presumption that counsel’s performance
was within the wide range of reasonable professional assistance) and the district court had found,
after an examination was conducted and a hearing was held, that Al-Kotrani was competent to
stand trial. Id. at 69-70, 106 P.3d at 395-96. Thus, we are not convinced that Al-Kotrani
precludes McCabe’s appeal of this issue.


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B.     Motion to Withdraw Guilty Plea
       McCabe also contends the district court erred by denying his motion to withdraw his
guilty plea and the accompanying motion for a retroactive competency evaluation. Specifically,
he contends his guilty plea was not knowing, intelligent, and voluntary because his long-term use
of methamphetamine rendered him incompetent when he pled guilty. He also argues the district
court’s denial of his Idaho Criminal Rule 33(c) motion was premature because the court failed to
grant his motion for a retroactive competency determination.
       Whether to grant a motion to withdraw a guilty plea lies in the discretion of the district
court and such discretion should be liberally applied. State v. Freeman, 110 Idaho 117, 121, 714
P.2d 86, 90 (Ct. App. 1986). Appellate review of the denial of a motion to withdraw a plea is
limited to determining whether the district court exercised sound judicial discretion as
distinguished from arbitrary action. Id. Also of importance is whether the motion to withdraw a
plea is made before or after sentence is imposed. Idaho Criminal Rule 33(c) provides that a plea
may be withdrawn after sentencing only to correct manifest injustice. The stricter standard after
sentencing is justified to insure that the accused is not encouraged to plead guilty to test the
weight of potential punishment and withdraw the plea if the sentence were unexpectedly severe.
Freeman, 110 Idaho at 121, 714 P.2d at 90. Accordingly, in cases involving a motion to
withdraw a plea after sentencing, appellate review is limited to reviewing the record and
determining whether the trial court abused its sound discretion in determining that no manifest
injustice would occur if the defendant was prohibited from withdrawing his or her plea. State v.
Lavy, 121 Idaho 842, 844, 828 P.2d 871, 873 (1992). Manifest injustice will be found if the plea
was not taken in compliance with the constitutional due process standards requiring that a guilty
plea be entered into voluntarily, knowingly, and intelligently. State v. Heredia, 144 Idaho 95,
98, 156 P.3d 1193, 1196 (2007).
       The district court denied McCabe’s motion to withdraw his guilty plea upon determining
McCabe’s plea was knowing, voluntary, and intelligent and that the record disproved McCabe’s
contention that he was in a drug-induced state during the entry of the plea. The district court
noted that at the change of plea hearing, when asked by the court if he was under the influence of
any drugs or alcohol, McCabe said no.        McCabe likewise denied that he was taking any
medication that would affect his ability to make a reasoned or informed decision. Additionally,
the court noted it had observed McCabe’s demeanor, behavior, and responses to the court’s


                                                8
questions at the hearing, none of which indicated that McCabe was under the influence, and
noted the content of an affidavit submitted by an officer who observed McCabe at the time:
       Officer Summers in his Affidavit states he has had previous encounters with the
       defendant and that he is trained in recognizing whether an individual may be
       under the influence of controlled substances and states he was present when the
       defendant was engaged in plea negotiations with the prosecutor and that his
       observations of the defendant did not indicate that the defendant was under the
       influence of a controlled substance.

       An examination of the record does not convince us that the district court abused its
discretion in determining McCabe’s guilty plea was knowing, voluntary, and intelligent and not
influenced by a drug-induced state. As the district court pointed out, at the plea colloquy the
court asked a series of questions to ensure McCabe voluntarily entered the guilty plea,
addressing specifically whether McCabe was under the influence of drugs, alcohol, or
medication that would affect his ability to make an informed decision. Additionally, the court
had the opportunity to observe McCabe’s demeanor, behavior, and answers at the hearing to
determine his competence and rational understanding of the proceedings. See Workman v. State,
144 Idaho 518, 528, 164 P.3d 798, 808 (2007) (noting the court had recorded its personal
observations when taking the defendant’s guilty plea that “throughout the hearing, Workman
answered the Court’s questions appropriately; moreover, he exhibited no behavior that indicated
an inability to concentrate or an impairment of his motor or cognitive skills”). The court’s
determination that McCabe’s answers indicated he was able to voluntarily enter a plea is borne
out by our review of the transcript which indicates largely appropriate responses by McCabe,
some of which we discussed in detail above. 4 Finally, the district court relied on a sworn
affidavit indicating that McCabe did not appear to be under the influence at the time. Given this
evidence, the district court did not abuse its sound discretion in determining that the plea was




4
        For the first time in his Reply Brief, McCabe characterizes certain additional statements
and arguments made by him in various contexts as “odd,” “disjointed,” and “delusional,” and
indicative of incompetency to enter a guilty plea. Upon an examination of the record, we are not
convinced any of these examples indicate a detachment from reality that would render his guilty
plea constitutionally suspect.

                                               9
voluntary and that no manifest injustice would occur if McCabe was prohibited from
withdrawing it. 5
                                               III.
                                        CONCLUSION
       The district court did not abuse its discretion by failing to sua sponte order a mental
health evaluation to determine McCabe’s competency to represent himself and by denying his
post-sentencing motion to withdraw his guilty plea. McCabe’s judgment of conviction for
possession of a controlled substance, and attendant sentencing enhancement, entered upon his
guilty plea is affirmed.
       Judge LANSING and Judge GRATTON, CONCUR.




5
        McCabe fails to support his additional contention, that the district court’s denial of his
motion to withdraw his guilty plea was “premature” because it did not grant his motion for a
retroactive competency determination, with any authority. Thus, we will not address it further.
State v. Zichko, 129 Idaho 259, 263, 923 P.2d 966, 970 (1996) (holding that a party waives an
issue on appeal if either authority or argument is lacking).


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