                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2014).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A15-0354

                                   State of Minnesota,
                                      Respondent,

                                           vs.

                                  Robert James Tolbert,
                                       Appellant.

                                Filed December 21, 2015
                                       Affirmed
                                  Cleary, Chief Judge

                             Olmsted County District Court
                               File No. 55-CR-13-5985


Lori Swanson, Attorney General, St. Paul, Minnesota; and

Mark A. Ostrem, Olmsted County Attorney, James P. Spencer, Senior Assistant County
Attorney, Rochester, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sara J. Euteneuer, Assistant
Public Defender, St. Paul, Minnesota (for appellant)


         Considered and decided by Cleary, Chief Judge; Connolly, Judge; and Johnson,

Judge.
                        UNPUBLISHED OPINION

CLEARY, Chief Judge

       Appellant Robert James Tolbert argues that he was denied his constitutional right

to due process when the district court accepted his guilty pleas without first conducting a

rule 20 mental-competency examination when there was sufficient doubt of competency

to proceed. Because the district court did not err in weighing the evidence regarding

appellant’s competency, we affirm.

                                         FACTS

       On June 18, 2013, appellant was contacted by an individual who was working as a

confidential reliable informant (CRI) for the Rochester Police Department. Appellant

arranged for the CRI to meet with another person who would sell heroin to the CRI.

Appellant facilitated the sale in hopes of receiving a small amount of heroin in exchange

for arranging the deal. On September 12, 2013, appellant was charged with second-

degree controlled-substance sale in violation of Minn. Stat. § 152.022, subd. 1(6)(i)

(2012). The complaint was amended on March 24, 2014, to add one count of aiding and

abetting a third-degree controlled-substance sale in violation of Minn. Stat. § 152.023,

subd. 1(1) (2012).

       In a hearing on March 18, 2014, defense counsel informed the district court that

appellant was absent because he was hospitalized due to psychiatric issues.            On

March 24, 2014, appellant pleaded guilty to both charges against him with the

understanding that the district court would withhold entry of judgment and postpone the




                                            2
sentencing hearing until after the resolution of a case pending against appellant’s

codefendant—the person who sold heroin to the CRI in this case. If appellant cooperated

with the presentence investigation, followed all conditions of release, remained law

abiding, and testified truthfully at the trial of his codefendant regarding the alleged drug

sale, the district court would find appellant guilty of the lesser third-degree controlled-

substance sale violation at sentencing.

          Prior to accepting appellant’s plea, the court asked appellant a series of questions

to ensure that appellant understood the terms and conditions of the plea agreement. The

district court asked appellant if he was presently thinking clearly, to which appellant

responded that he was. The court asked appellant if he was under the influence of

medication, alcohol, drugs, or anything else that would impair his judgment, to which

appellant responded in the negative. The court noted appellant’s recent hospitalization

for mental health issues and asked if he was taking any medication. Appellant responded

that he was taking medication, but because he needed to be able to focus on the

proceedings he took it at night to avoid falling asleep during the day. The district court

again asked if appellant’s judgment was impaired on that day due to the medication, and

appellant responded that it was not. The court then asked appellant about his mental

health:

                 THE COURT: All right. Well how about your mental health
                 condition, Mr. Tolbert. Is it under sufficient control here
                 today such that you think you’re able to make good decisions
                 and think clearly about this?
                 THE DEFENDANT: Yes, sir.




                                               3
              THE COURT: Okay. All right. Do you have any concern
              about that, Mr. Tolbert, about whether this is an appropriate
              time, whether you’ve got the ability right now to be making
              important decisions?
              THE DEFENDANT: I think I can make -- I can make -- I
              understand.
              THE COURT: Okay. You think you can make important
              decisions and make them well at this time; is that correct?
              THE DEFENDANT: Yes, sir.
              THE COURT: Okay. All right.

The district court then thoroughly explained to appellant the rights he was giving up by

pleading guilty and the risk that a subsequent presentence investigation report (PSI)

might show his criminal history score to be higher than the parties previously understood.

Appellant responded coherently to questions posed during the factual examination at the

plea hearing. Neither defense counsel nor the prosecution made a motion challenging

competency.

       During the sentencing hearing, defense counsel informed the court that appellant

suffers from psychiatric issues and that, specifically, appellant is on disability for an

anxiety disorder and schizophrenia.     In arguing for a downward departure, defense

counsel noted that appellant, “while certainly responsible for his behavior, does have

some diminished capacities here. The PSI makes it clear that he is functionally illiterate,

and he has psychiatric diagnoses that are sufficient to put him on disability.” The PSI

also indicated that appellant suffers from depression and in March 2014—at about the

time he entered guilty pleas—appellant attempted suicide and was hospitalized for




                                            4
several days.1 Appellant addressed the district court during the sentencing hearing and

described some of his personal troubles.

         At sentencing, the district court adjudicated appellant guilty of the third-degree

charge pursuant to the parties’ plea agreement and sentenced appellant to 44 months—a

“bottom of the box” sentence, considering his criminal history score. The court did not

enter judgment on the second-degree charge. Appellant then filed this direct appeal from

the judgment.

                                      DECISION

         Respondent disputes whether appellant can seek to withdraw a guilty plea in a

direct appeal. “A defendant who wishes to overturn a guilty plea may file a petition for

postconviction relief under Minnesota Statutes section 590.01 (2012), move to withdraw

the plea under Rule 15.05 of the Minnesota Rules of Criminal Procedure, or seek

withdrawal on a direct appeal from the judgment of conviction.” State v. Miller, 849

N.W.2d 94, 97 (Minn. App. 2014). Appellant’s direct appeal is properly before this

court.

         Appellant argues that he should be allowed to withdraw his guilty pleas because

the district court did not conduct a rule 20 mental-competency examination, even though

sufficient doubt of appellant’s competency existed when he entered the pleas, and this

doubt increased by the time he was sentenced. “A defendant has a due process right not


1
 We refer to confidential information found in the PSI only where appellant has already
made that information a matter of public record via briefing and statements in public
hearings.


                                             5
to be tried or convicted of a criminal charge if he or she is legally incompetent.” Bonga

v. State, 797 N.W.2d 712, 718 (Minn. 2011). “A defendant is incompetent and must not

plead, be tried, or be sentenced if the defendant lacks ability to: (a) rationally consult with

counsel; or (b) understand the proceedings or participate in the defense due to mental

illness or deficiency.” Minn. R. Crim. P. 20.01, subd. 2. It does not fall solely to the

defendant to protect his or her right to due process. “If the prosecutor, defense counsel,

or the court, at any time, doubts the defendant’s competency, the prosecutor or defense

counsel must make a motion challenging competency, or the court on its initiative must

raise the issue.” Minn. R. Crim. P. 20.01, subd. 3. “[T]hroughout the course of criminal

proceedings a trial judge must be vigilant in ensuring that the defendant is competent to

stand trial and that, when a sufficient doubt of the defendant’s competence arises, he must

observe procedures adequate to ensure the defendant’s competency.” State v. Bauer, 310

Minn. 103, 114, 245 N.W.2d 848, 854 (1976).

       This court reviews the validity of a plea de novo. State v. Raleigh, 778 N.W.2d

90, 94 (Minn. 2010). “Manifest injustice occurs if a guilty plea is not accurate, voluntary,

and intelligent . . . .” Perkins v. State, 559 N.W.2d 678, 688 (Minn. 1997). Requiring

accuracy “protect[s] the defendant from pleading guilty to a more serious offense than he

could properly be convicted of at trial.” Brown v. State, 449 N.W.2d 180, 182 (Minn.

1989). Requiring voluntariness “helps insure that the defendant does not plead guilty

because of any improper pressures or inducements.” Id. And requiring a “knowing and




                                              6
understanding[ ]” plea helps “insure that the defendant understands the charges, the rights

being waived and the consequences of the guilty plea.” Id.

       In reviewing whether a district court observed adequate procedures to ensure an

appellant’s competency, this court does not determine whether an appellant was

competent to stand trial, but only whether the district court should have conducted further

inquiry into an appellant’s competence. Bauer, 310 Minn. at 108, 245 N.W.2d at 852.

There is no precise test to determine whether the district court was sufficiently vigilant in

ensuring an appellant’s competency. Bonga, 797 N.W.2d at 719. The United States

Supreme Court has “purposefully avoided setting a standard for the nature or quantum of

evidence that would establish a reason to doubt a defendant’s competency to proceed.”

Id. (quotations omitted). Factors that are relevant in determining whether a district court

should make further inquiry into an appellant’s competence include: “defendant’s

irrational behavior, his demeanor at trial, and any prior medical opinion on competence to

stand trial.” Id. Yet not all of the factors must be considered; just one of the factors may

be sufficient on its own in some cases. Bauer, 310 Minn. at 116, 245 N.W.2d at 855.

The question of when a court must further inquire “is often a difficult one in which a

wide range of manifestations and subtle nuances are implicated.” Id. (quoting Drope v.

Missouri, 420 U.S. 162, 180, 95 S. Ct. 896, 908 (1975)).

       In this case, the district court made a thorough effort to ascertain appellant’s

competence. When appellant was absent from his March 18, 2014 hearing, the district

court asked defense counsel about appellant’s absence. Based on its conversation with




                                             7
defense counsel, the district court understood that appellant’s “emotional state may be

volatile,” but that appellant did not have a physical condition that would prevent him

from leaving the hospital to appear in court within a reasonable time. At the plea hearing

on March 24, 2014, the district court questioned appellant as to his ability to think clearly

that day and understand the proceedings.         The district court mentioned appellant’s

hospitalization, though it did not ask appellant questions that would elicit information

regarding the seriousness of appellant’s condition. The judge asked appellant, “I was told

last week that you were hospitalized with some mental health issues; is that right?”

Appellant responded affirmatively, and the district court asked appellant if he was taking

prescription medications. The district court asked several questions about whether

appellant’s medication impaired his judgment. The court also asked about appellant’s

mental condition, generally, and if appellant felt that his condition was “under sufficient

control” so that appellant could think clearly and make important decisions. The record

shows that throughout the hearing, appellant answered questions from the court, the

prosecuting attorney, and his own attorney without any indication that he was unable to

understand the proceedings or participate in them rationally.

       By the time of the sentencing hearing, a PSI had been completed which included

statements appellant made to an investigator about appellant’s mental health. The PSI

reported that appellant had attempted suicide in March 2014, at about the same time he

entered the plea. A suicide attempt can be “evidence of irrational behavior—an act

which suggests a rather substantial degree of mental instability.” Bonga, 797 N.W.2d at




                                             8
720 (quotation omitted). In Bonga, the defendant had attempted suicide the day before he

pleaded guilty, yet the court found him competent. 797 N.W.2d 714, 720. The defendant

in Bonga told the district court “he had never been hospitalized or treated for a

psychiatric condition,” and the postconviction court made extensive observations of its

own, both before and during the guilty plea, that convinced it that the defendant was

acting normally under the circumstances. Id. at 720.

      Here, the district court knew appellant had been hospitalized and had been treated

for a psychiatric condition. In addition to raising appellant’s mental condition at the

pretrial hearing and at the plea hearing, defense counsel had also informed the district

court of appellant’s schizophrenia diagnosis at appellant’s initial appearance in

September 2013.     Defense counsel again raised appellant’s anxiety disorder and

schizophrenia at the sentencing hearing. The district court could have inquired more

thoroughly at the plea hearing into the reasons for appellant’s hospitalization given the

immediacy of that event. On balance, however, the district court made sufficient inquiry

into appellant’s competency. The record indicates that the district court questioned

appellant extensively and had ample time to observe his demeanor. Appellant answered

the district court’s questions with apparent lucidness, he was able to communicate with

defense counsel, and he made what appears to be a rational decision to accept a lesser

conviction and sentence through a plea deal. Further, neither party raised the issue of

competency during proceedings. A district court has an obligation to raise the issue sua

sponte if it doubts a defendant’s competency, but defense counsel has the greatest




                                           9
opportunity to observe a defendant and form such a doubt as to competency. Here,

though defense counsel raised the issue of appellant’s mental health on a number of

occasions, counsel never made a motion challenging competency or otherwise suggested

that appellant lacked the ability to rationally consult with counsel, understand the

proceedings, or participate in his defense.

       Despite the fact that appellant had been hospitalized, was treated for psychiatric

conditions, and allegedly attempted to commit suicide, other evidence shows that the

district court did not err when it declined to make further inquiry into appellant’s

competency.

       Affirmed.




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