                                             NOTICE

      The text of this opinion can be corrected before the opinion is published in the
      Pacific Reporter. Readers are encouraged to bring typographical or other formal
      errors to the attention of the Clerk of the Appellate Courts:
                          303 K Street, Anchorage, Alaska 99501

                                   Fax: (907) 264-0878

                            E-mail: corrections @ akcourts.us


            IN THE COURT OF APPEALS OF THE STATE OF ALASKA


WILLIAM I. BUXTON,
                                                    Court of Appeals No. A-11778
                           Appellant,               Trial Court No. 1KE-12-762 CR

                    v.
                                                              OPINION
STATE OF ALASKA,

                           Appellee.                   No. 2457 — June 19, 2015


             Appeal from the Superior Court, First Judicial District,
             Ketchikan, Trevor N. Stephens, Judge.

             Appearances: Renee McFarland, Assistant Public Defender, and
             Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
             Eric A. Ringsmuth, Assistant Attorney General, Office of
             Criminal Appeals, Anchorage, and Craig W. Richards, Attorney
             General, Juneau, for the Appellee.

             Before: Mannheimer, Chief Judge, and Allard and Kossler,
             Judges.

             Judge ALLARD.


             The question before this Court is whether a criminal appeal should be
stayed if the defendant becomes mentally incompetent during the pendency of the appeal.
For the reasons explained here, we conclude that the appeal should not be stayed.
          Factual background and prior proceedings
                A jury convicted William Buxton of first-degree murder for the death of his
aunt at their shared home in Metlakatla. At sentencing, a psychiatrist who evaluated
Buxton testified that he had been diagnosed with schizophrenia.
                Buxton appealed his conviction to this Court and his case is currently in the
initial briefing stages. Based on her concerns that Buxton is no longer mentally
competent, Buxton’s attorney has filed a motion to stay his appeal and to remand the case
to the superior court for a competency determination. The State opposes any stay of the
appeal and argues that a competency determination is unnecessary because it is
ultimately the attorney, not the defendant, who makes the final decision regarding which
issues to brief.1


                Analysis
                We conclude that the proper approach to this issue is the one developed in
the American Bar Association’s ABA Criminal Justice Mental Health Standards.2 This
is also the approach followed by the majority of courts that have directly addressed this
issue.3


   1
          See Coffman v. State,172 P.3d 804, 807-08 (Alaska App. 2007).
   2
          See ABA Criminal Justice Mental Health Standards § 7-5.4(b) (1989).
   3
        See People v. Newton, 394 N.W.2d 463, 466 (Mich. App. 1986) (holding that a
defendant’s mental incompetence does not require a stay of appeal), vacated on other
grounds by People v. Newton, 399 N.W.2d 28 (Mich. 1987); see also Fisher v. State, 845
P.2d 1272, 1276-77 (Okla. Crim. App. 1992) (same); People v. Kelly, 822 P.2d 285, 413-14
(Cal. 1992) (same); State v. White, 815 P.2d 869, 878 (Ariz. 1991) (same), abrogated on
other grounds by State v. Salazar, 844 P.2d 566, 584 (Ariz. 1992); but see Commonwealth
v. Silo, 364 A.2d 893, 895 (Pa. 1976) (“[I]t would be improper for us to proceed with the
instant appeal if in fact appellant was not competent to	consult with counsel in its
                                                                            (continued...)

                                            – 2 –	                                     2457

              Criminal Justice Mental Health Standard § 7-5.4 (“Mental incompetence
at time of noncapital appeal”) addresses the situation we are confronted with here —
where a defendant who is represented by counsel becomes incompetent during the
pendency of the appeal. (We express no opinion regarding what standard should apply
when the defendant is proceeding pro se or when the defendant is incompetent prior to
the initial filing of the appeal, as those situations are not before us.)
              Under the ABA Standard, if a good faith doubt about the mental
competence of a defendant arises during the time of appeal, counsel is advised to “make
such doubt known to the court and to include it in the record.”4 Mental incompetence,
in this instance, means that a defendant “does not have sufficient present ability to
consult with [his or her] lawyer with a reasonable degree of rational understanding, or
... does not have a rational as well as factual understanding appropriate to the nature of
the proceedings.”5
              However, the mental incompetence of the defendant does not preclude
continuation of the appeal “as to matters deemed by counsel or by the court to be
appropriate.”6 Instead, the defense counsel is required to proceed with the appeal on
behalf of the defendant and raise “all issues deemed by counsel to be appropriate.”7




   3
       (...continued)
preparation.”).
   4
       ABA Criminal Justice Mental Health Standards § 7-5.4(b)(i) (1989).
   5
       ABA Criminal Justice Mental Health Standards § 7-5.4(a) (1989).
   6
       ABA Criminal Justice Mental Health Standards § 7-5.4(b) (1989).
   7
       ABA Criminal Justice Mental Health Standards § 7-5.4(b)(ii) (1989).

                                            –3–                                     2457

                  The accompanying commentary to the ABA standard explains that this
approach is based on three different assumptions: First, that criminal defendants
“generally wish ... to go forward expeditiously” with their appeals presumably because
their interests are also best served by timely resolution of their appeal, which might
overturn their conviction or modify their sentence.8 Second, that although criminal
defendants must make the decision of whether to appeal, they are otherwise required to
rely on their counsel’s strategic and tactical decisions as to what claims to raise on appeal
and how those claims should be briefed.9 And, lastly, that a defendant’s incompetence
“rarely affects the fairness or accuracy of appellate decisions” because defendants
generally do not actively participate in appellate proceedings.10
                  The commentary also recognizes, however, that “it is theoretically possible
that an appellant’s mental incompetence might prevent counsel from acquiring
information or learning of a client’s concerns important to a proper disposition of an
appeal.”11 For these reasons, subsection (c) of Standard § 7-5.4 provides that:
                  Mental incompetence of the defendant during the time of
                  appeal shall be considered adequate cause, upon a showing
                  of prejudice, to permit the defendant to raise, in a later appeal
                  or action for postconviction relief, any matter not raised on
                  the initial appeal because of the defendant’s incompetence.12
                  Thus, under this approach, which we adopt here, the direct appeal of a
defendant suspected of being mentally incompetent moves forward to completion despite


   8
        Commentary to ABA Criminal Justice Mental Health Standards § 7-5.4 (1989).
   9
        See Id.
   10
      Commentary Introduction to ABA Criminal Justice Mental Health Standards § 7-5.4
(1989).
   11
        Commentary to ABA Criminal Justice Mental Health Standards § 7-5.4 (1989).
   12
        ABA Criminal Justice Mental Health Standards § 7-5.4(1989)

                                               –4–                                     2457

the suspected incompetency. But if the defendant can later show that he was prejudiced
by his appeal moving forward despite his mental incompetency, he will be able to obtain
appropriate relief through subsequent post-conviction proceedings.
                We acknowledge that requiring defense attorneys to proceed with the
criminal appeal of a mentally incompetent defendant can raise ethical concerns for those
attorneys.13 We also acknowledge that defendants can contribute to the shaping of their
attorneys’ appellate presentations, and they can sometimes independently identify issues
that should be raised on appeal. Moreover, we agree that there is a public interest in
having defendants participate in the appellate process so that they may be in a position
to understand the claims made on their behalf, and the appellate court’s resolution of
those claims.
                Nevertheless, we conclude that the ABA Standard offers the best approach
to this problem by ensuring timely resolution of pending appeals while still preserving
procedural fairness for mentally incompetent defendants.


        Conclusion
                The motion for a remand to the superior court for a competency
determination and to stay this appeal until the defendant is restored to competency is
DENIED.




   13
      See, e.g., Alaska R. Prof. Conduct 1.4 (duty to communicate with client); see also
Alaska R. Prof. Conduct 1.14 (duty to client with impaired capacity).

                                           –5–                                    2457
