                    IN THE COURT OF APPEALS OF IOWA

                                  No. 18-0916
                             Filed October 9, 2019


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

TANER VONGSENGETH MANN,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Robert B. Hanson,

Judge.



      A defendant appeals his convictions for willful injury causing bodily injury,

domestic abuse assault with a dangerous weapon, first-degree harassment, child

endangerment, and false imprisonment—challenging the finding his competency

was restored. AFFIRMED.



      Angela Campbell of Dickey & Campbell Law Firm, PLC, Des Moines, for

appellant.

      Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney

General, for appellee.



      Considered by Potterfield, P.J., and Tabor and Bower, JJ.
                                           2


TABOR, Judge.

       The State charged Taner Vongsengeth Mann with five crimes stemming

from his violent attack on his girlfriend, A.V. The district court originally found Mann

incompetent to stand trial and sent him for treatment.          In this appeal, Mann

challenges the court’s later determination treatment had restored his competency.

Mann alleges the court denied his right to due process by accepting his guilty plea

when he had no “‘rational’ understanding of what was happening.”               On our

independent review of the record, we conclude Mann failed to show he remained

incompetent to stand trial or plead guilty.

   I. Facts and Prior Proceedings

       In February 2017, Mann attacked A.V. with a baseball bat. He beat her

severely in front of her four-year-old child. For a week, he refused to let A.V. leave

the apartment to seek medical attention.          A.V. suffered numerous injuries,

including broken hands, a broken nose, and loss of sight in one eye.               She

eventually went to the hospital, where she was interviewed by police.

       In early March 2017, the State charged Mann with willful injury causing

serious injury, domestic abuse assault with a dangerous weapon, harassment in

the first degree, child endangerment, and false imprisonment. Mann’s trial counsel

requested and obtained a mental evaluation.

       Psychologist Michael Huston examined Mann in late March. In his report

to the court, Dr. Huston noted Mann had been diagnosed with bipolar disorder and

posttraumatic stress disorder (PTSD) but had not consistently taken medication or

followed up with psychiatric treatment. Mann told Dr. Huston he had paranoid

thoughts and heard voices “telling him that ‘something bad is about to happen.’”
                                          3


Huston described Mann as moving slowly and appearing dazed. He found Mann

was “confused, stressed, and tense” and “had difficulty comprehending some

questions until they were simplified and restated.” Also his speech was “disjointed

and disorganized.”     Dr. Huston found Mann’s responses “logical, although

paranoid delusional thought was evident in several statements about being

watched when he left his house, and when talking about his ex-girlfriend.” Mann

scored in the “extremely low” range of functioning—with an IQ of 58—and had poor

insight into his mental health and legal situation.       Dr. Huston opined Mann

demonstrated “moderate impairment in ability to understand and appreciate the

charge[s] against him and his legal situation,” “substantial impairment in his ability

to understand legal proceedings,” and “substantial impairment in his ability to

assist in his own defense.”

       The district court decided Mann was unable to assist in his defense and

suspended proceedings, sending Mann to the Iowa Medical and Classification

Center for treatment to restore his competency. Treating psychiatrist Gary Keller

agreed with Dr. Huston’s diagnoses of psychotic disorder, amphetamine-use

disorder, and cannabis-use disorder. Dr. Keller prescribed medications to treat

Mann’s psychiatric symptoms.

       In his thirty-day report, dated July 13, 2017, Dr. Keller told the court Mann

“did make a good recovery and he has now completed his restoration evaluation.”

Dr. Keller indicated a report from the evaluator was forthcoming and Mann had

been discharged “back into the custody of Polk County.”

       Six days later, the court held an unreported hearing on Mann’s competency.

On the day of the hearing, July 19, the court issued this written ruling:
                                            4


        The Court having heard the evidence and argument of Counsel finds:
                1. By a preponderance of the evidence that the Defendant’s
        competency has been restored in that the Defendant is able to
        appreciate the charge, understand the proceedings and effectively
        assist in the Defendant’s defense.
                2. The placement previously ordered in this matter should be
        terminated and the criminal proceedings against the Defendant
        should be reinstated.
                3. Defendant is not in need of continued treatment to maintain
        competency.

The court reinstated the criminal proceedings against Mann and set a new trial

date.

        In August 2017, the court granted a defense request to hire a medical expert

to “assist in analyzing the legal significance of [Mann’s] mental health issues as

they relate to the charges in this case.”

        Mann appeared for a plea hearing on Friday, April 6, 2018. Expressing

frustration with Mann’s reversals and inconsistencies in the pretrial period, the

prosecutor stated,

               We show up today, and now I’m not sure if it’s because he
        has no memory of the event but admits that there’s no reason to
        doubt what has been contained in the minutes of testimony or the
        fact that he is just innocent and knows he’ll be convicted at trial.
               . . . I would need to know which version it is. And to be honest
        with you, this defendant does not know what he’s doing five minutes
        from the other. We’ve already gone through this in another one of
        his cases . . . where we did this cat-and-mouse game all the way up
        to the day of trial where the jury was waiting upstairs.

Defense counsel explained Mann’s “desire to enter an Alford[1] plea is because he

does not remember having engaged in the acts that he is charged with here.”

Defense counsel asked, “Do you . . . agree that by going to trial you don’t stand to



1
 An Alford plea allows a defendant to enter a plea without an admission of guilt. See
North Carolina v. Alford, 400 U.S. 25, 39, 91 S. Ct. 160, 168 (1970).
                                         5


benefit anything?” Mann responded, “Well, no.” Later, the following exchange

occurred:

              DEFENSE COUNSEL: And you also have to admit that it is
      very likely that if all of the witnesses come and testify according to
      what is in here in black and white that it is very likely that you are
      going to get found guilty.
              MANN: I’m not sure.
              Q: You’re not sure? Do you believe that if everybody comes
      in here and testifies to what’s said here—I know you’re not sure. A:
      I’m not sure.
              Q: I know you’re not sure. Do you think it’s likely that— A: It’s
      a possibility, yes.
              Q: It’s a possibility. You recognize that? A: Yeah.
              Q: Okay. And you don’t have any affirmative defenses to this;
      right? A: What do you mean?
              Q: Do you have any witnesses that are going to come testify
      on your behalf? A: Could very well.
              Q: Okay. A: But not right now.
              Q: All right. So you don’t know whether or not— A: No.
              Q: —you’ll get found guilty? A: No.
              Q: Do you think it’s likely that you will? A: Yeah.
              ....
              Q: Do you agree that inside the Minutes of Testimony and the
      testimony that would be provided by the witnesses and the pictures
      and all the rest of that business, that there is strong evidence of your
      guilt? A: I guess, yeah.
              DEFENSE COUNSEL: Okay.
              PROSECUTOR: All right, Your Honor.
              THE COURT: That was a “yes”?
              DEFENSE COUNSEL: That is a “yes.”
              THE COURT: Okay.

      During the plea hearing, the court and Mann had the following discussion:

               THE COURT: How old are you, Mr. Mann? A: Twenty-eight.
               Q: And what level of education do you have? A: About sixth,
      fifth.
               Q: Fifth or sixth grade? A: Yeah.
               Q: Okay.
               MR. DYER: You didn’t finish high school? A: No. I told you
      this.
            THE COURT: Do you have any problems reading or writing—
      A: Yes.
            Q: —or understanding English? A: Yes.
            Q: Which one? A: All of them. I can’t read or write.
                                               6


               Q: Okay. A: I can’t comprehend stuff. I was diagnosed with
       it.
              Q: Well, you’re not going to have to do a whole lot of reading
       and writing here today, but you do need to understand what we’re
       talking about. Do you— A: I have a problem with that. I was
       diagnosed with it.
              Q: Diagnosed— A: It takes a little more.
              Q: Stop for a second. Diagnosed with what? A: Well,
       comprehension.
              Q: Have you understood what we’ve been saying here so far?
       A: Somewhat.
              Q: What part don’t you understand? A: I’m not sure.
              Q: All right. Well, let’s continue, and we’ll see how far we can
       get. Okay? A: Yes, sir.
              Q: Are you taking any kind of medication right now? A: Yes.
              Q: What is it for? A: My paranoid schizophrenia, modify
       bipolar, my PTSD.
              Q: And you’re on medication right now? A: Yes.
              Q: Okay. How long have you been on that medication? A:
       About a year.
              Q: Okay. So you know how it affects you; right? A:
       Somewhat. I’m still in the process of learning about the stuff.
              Q: Uh-huh. You’ve understood what I’ve said so far; right? A:
       Yes.
              Q: Okay.

This plea hearing was ultimately “derailed” because the prosecution and defense

had a misunderstanding related to their agreement.

       The following Monday, April 9, 2018, the parties appeared for trial. But the

prosecutor and defense counsel told the court that Mann decided to go forward

with pleading guilty.2 The district court found Mann had given his plea voluntarily:

“I’m going to find that, based on our colloquy, Mr. Mann is acting voluntarily; that

he is aware of his constitutional rights and waives those rights; that he fully




2
  As part of the plea agreement, the State amended the charge of willful injury causing
serious injury, a class “C” felony, to willful injury causing bodily injury, a class “D” felony.
Mann pleaded guilty to that lesser included offense, as well as the other offenses charged
in the trial information.
                                           7


understands the nature of these charges and the potential consequences of

pleading guilty to those charges.”

       At the sentencing hearing in July 2018, the prosecutor asked for

consecutive terms and offered the following thoughts:

       This event—the bat, the torture, the beating—was the result of being
       interrogated and accused of some delusion the defendant has.
               And I would love to say the defendant has moved on, but he
       hasn’t because he still is uttering these insane ideas in the
       presentence investigation report. . . .
               This defendant has not taken responsibility; he has not moved
       on; he does not believe he has done anything wrong. In fact,
       somehow feels justified in what he did. This is a ticking time bomb.
               Now, I’m not saying that he is not competent to stand trial
       because he has been evaluated by many doctors. He understands
       right from wrong. That’s the problem. He has a different view of
       reality, which does not mean that he's not competent. It just means
       he's dangerous.

The district court entered judgment on the five offenses and imposed a sentence

not to exceed thirteen years. Mann now appeals the district court’s finding he was

restored to competency.

   II. Error Preservation

       As a preliminary issue, the State contends Mann did not preserve error on

his incompetency claim.       The State asserts Mann did not make a record of

opposing the competency finding because the July 19 hearing was not reported

and the court’s ruling does not detail what arguments the parties advanced. In

addition, the defense did not file a written resistance to the restoration-of-

competency finding. Mann responds if he failed to preserve error, such failure is

excused by ineffective assistance of counsel. See State v. Brothern, 832 N.W.2d

187, 191 (Iowa 2013) (“Ineffective assistance of counsel is an exception to the

traditional error preservation rules.”).
                                             8


       Although the order is not detailed, the district court noted counsel and Mann

were present at the competency restoration hearing, and the court weighed the

“arguments of counsel” to reach its conclusion that treatment had restored Mann’s

competency. In addition, at the plea hearing, the court concluded Mann acted

voluntarily and knowingly in entering his guilty pleas. Because we have the court’s

pretrial ruling on restoration of competency and the on-the-record plea

proceedings, we can review the issue raised without using the ineffectiveness

framework.3

    III. Finding of Restored Competency

       We review a competency determination de novo because it implicates

constitutional rights.   State v. Lyman, 776 N.W.2d 865, 872–73 (Iowa 2010),

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

n.3 (Iowa 2016). “[C]onviction of an incompetent defendant violates due process.”

State v. Einfeldt, 914 N.W.2d 773, 778 (Iowa 2018) (citing Pate v. Robinson, 383

U.S. 375, 378 (1966)).

       “We presume a defendant is competent to stand trial.” Lyman, 776 N.W.2d

at 874. Mann bears the burden of proving his incompetency by a preponderance

of the evidence. See id. “If the evidence is in equipoise, the presumption of

competency prevails.” Id. “Moreover, once a court finds a defendant competent

to stand trial, the presumption of competency continues unless and until the




3
  We also must address whether Mann can directly appeal from his guilty plea. Our
supreme court decided recent amendments to Iowa Code section 814.6 limiting direct
appeals from guilty pleas apply only prospectively and do not apply to cases, like this one,
pending on July 1, 2019. See State v. Macke, ___ N.W.2d___, ___, 2019 WL 4382985,
at *7 (Iowa 2019).
                                         9

defendant produces new evidence to the contrary.”           Id.   After a finding of

incompetency, the presumption of competency returns upon the submission of a

medical opinion that the defendant’s competency is restored.          See State v.

Snethen, 245 N.W.2d 308, 311 (Iowa 1976). Thus, Mann retains the burden to

prove he was not competent at the time of the restoration hearing. See id.

       The test for competency is whether Mann was “suffering from a mental

disorder” which prevented him from “appreciating the charge, understanding the

proceedings, or assisting effectively in the defense.” See Iowa Code § 812.3(1)

(2017). The task for the district court was to decide if Mann 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.’” State v. Lucas, 323 N.W.2d 228, 232–33 (Iowa

1982) (quoting Dusky v. United States, 362 U.S. 402, 402 (1960)).

       Mann contends the district court erred in finding he was restored to

competency and in accepting his guilty plea as knowing and voluntary.              In

assessing Mann’s contention we look to the evidence presented on competency.

Psychiatrist Arnold Anderson submitted a report to the court following his

examination of Mann on July 11, 2017. Dr. Anderson reported Mann was taking

four different prescription drugs for his mental impairments.        Mann advised

Dr. Anderson that he had mild difficulty with attention and concentration, but

Dr. Anderson did not find that difficulty interfered with his examination. Mann’s

speech was “normal in rate and form” with “no thought disorder or neologisms.” In

Dr. Anderson’s estimation, Mann appeared “somewhat guarded, mildly sad . . . ,

and mildly anxious.”    But as the evaluation proceeded, “His cooperation and
                                         10


fluency in answering questions increased.” Mann denied hallucination or delusions

“of either a grandiose or paranoid nature.” Mann reported, “I’m doing alright. I’ve

been my medicine—it has eased my mind a little—no more voices.”

       In the psychiatric examination, Mann said his mood was “good—it’s a lot

better than it used to be.” Mann was able to identify his charges and the facts

behind them (“I beat someone with a baseball bat. I held someone against their

will. Criminal mischief. Child endangerment.”) He expressed his intent to plead

not guilty, understood the charges were “very serious,” and could carry a range of

penalties from “prison—eighteen years” to “probation or getting help like outpatient

treatment for mental health.” Mann also explained the presumption of innocence

and that “you are innocent until they have proved you done it,” but expressed

skepticism of the justice system, opining, “You are guilty until proven innocent.”

He expressed the opinion he could not get a fair trial in Des Moines but, “if moved—

possibly.”

       Of the events leading to his charges, he continued to report, “I really don’t

remember much.” Mann could explain the role and purpose of his attorney, the

judge, the jury, and the prosecutor. Dr. Anderson concluded:

       To a reasonable degree of medical certainty, after his having
       completed his restoration, Mr. Mann is now competent to stand trial.
       He appreciates the charges he faces (naming four out of five) and
       gives a reasonable estimate of maximum and minimum punishment.
       He is able to assist his attorney in preparing a defense and
       increasingly trusts his attorney. While he has a somewhat cynical
       view of the American justice system and the ability to get a fair trial,
       this view is a personal opinion and not illness based. He has a
       factual and rational understanding of the role of the key personnel in
       court. Although he has mild residual attention deficit disorder, it
       would not significantly interfere with his ability to follow the
       proceedings of a trial. His other psychiatric disorders are in
                                          11


          substantial remission and would not interfere with his ability to
          participate meaningfully in a trial.

          Given our independent review of the record, and specifically Dr. Anderson’s

evaluation, we reach the same conclusion as the district court. Mann adduced no

expert opinion to contradict Dr. Anderson’s conclusion that he was restored to

competency.        Mann highlights statements he made during Dr. Anderson’s

evaluation and suggests deficiencies in Dr. Anderson’s methods.           But Mann

presents no evidence supporting those alleged deficiencies. On this record, Mann

has not carried his burden to show he remained incompetent to stand trial or plead

guilty.

          Mann tries to augment the limited record by pointing to statements he made

in the plea proceedings, including the failed plea hearings, as well as the

prosecutor’s sentiments expressed at the sentencing hearing.            But Mann’s

responses do not appear uncommon for a criminal defendant somewhat confused

by the plea process, particularly one with an intellectual impairment, and do not

support his position that he remained incompetent. Likewise, the prosecutor’s use

of the words “insane” and “delusion” at the sentencing hearing was not evidence

of Mann’s incompetence. See State v. Graves, 668 N.W.2d 860, 878 (Iowa 2003).

The prosecutor was not giving a medical opinion but discussing Mann’s lack of

remorse for his actions. Similarly, when the prosecutor complained during the

failed plea hearing Mann “does not know what he’s doing five minutes from the

other,” it was an expression of frustration, not evidence of Mann’s mental status.

          The original incompetency report indicated Mann had untreated and

uncontrolled mental health issues. But Dr. Anderson’s report shows Mann was
                                        12


taking psychiatric medications that improved his mental status, by Mann’s own

admission. Mann specifically noted the voices he had been hearing were gone

and he was experiencing no delusions or hallucinations. Although Mann insisted

he did not remember the assault, he was able to explain the charges he faced, the

relevant facts, and the possible range of sentencing consequences. He was able

to explain the criminal trial process and the roles of the relevant actors. He

accurately explained the presumption of innocence and expressed a sophisticated

skepticism for the criminal justice system. He continued to have a mild impairment

in his attention and concentration, but it did not interfere with the examination or

his ability to converse with Dr. Anderson. The examination revealed Mann was

able to appreciate the charges he faced, understood the criminal proceedings, and

communicated effectively with another person about those charges and

proceedings, such that he would be able to assist in his own defense.

       Mann argues his belief that A.V. was involved in prostitution was a delusion

resulting from his mental impairment and showed he did not have a rational

understanding of the proceedings. See State v. Wadsworth, No. 16-1775, 2018

WL 2230666, at *8–10 (Iowa Ct. App. May 16, 2018) (finding defendant’s delusions

regarding his murder victim’s participation in a government conspiracy to kill him

and his inability to communicate with counsel about his mental health status

evidenced a lack of rational understanding of the proceedings and rendered him

incompetent to assist counsel in his defense). In her initial report to police, A.V.

claimed she was engaged in prostitution, information she later recanted. The next

day, A.V. told the officer she and Mann made up the story “to distract everyone
                                          13


from the assault [Mann] had committed” against her. A.V. said she was afraid

Mann would “go after her and her family” so she went along with it.

       In the prior competency evaluation, Dr. Huston reported Mann’s beliefs

about A.V.’s “efforts to frame him and have him kill himself” were “likely delusional.”

But Dr. Anderson’s report found Mann was not suffering from paranoid or

grandiose delusions. Anderson concluded Mann’s psychiatric disorders were in

“substantial remission” and regarded Mann’s continued belief in prostitution

activities as potentially “fact rather than a delusion.” The State points out Mann

has an interest in maintaining a belief in this version of events to contradict A.V.’s

testimony and impugn her credibility for changing her story. On this record, we

cannot conclude Mann lacked “a rational as well as factual understanding of the

proceedings against him.” See id. at *4 (citing Lucas, 323 N.W.2d at 232–33). He

was able to explain and appreciate the charges, understand the proceedings, and

communicate his beliefs and memories effectively. Because Mann has not shown

he suffers from a mental disorder that renders him incompetent, we affirm the

district court ruling.

       AFFIRMED.

       Bower, J., concurs; Potterfield, P.J., concurs specially.
                                         14


POTTERFIELD, Presiding Judge (concurring specially).

       I write separately because I believe the better course of action would be to

preserve Mann’s claims of ineffective assistance of counsel for possible future

postconviction relief, as argued by the State. I disagree with the majority’s position

that the record is adequate to decide the issue of the adequacy of proof supporting

the ruling on restoration of competency. Even if Mann took the appropriate steps

before the district court to preserve the issue for our review, the lack of record

prevents us from doing so. See State v. Ludwig, 305 N.W.2d 511, 513 (Iowa 1981)

(“It is the defendant’s obligation to provide this court with a record affirmatively

disclosing the error relied upon.”). The hearing was unreported, and we know from

the ruling only that Mann and his counsel were present and the court was

persuaded by Dr. Anderson’s letter. The record does not contain the arguments

made by Mr. Mann.

       I would find that the issue must be considered in the alternative framework

of ineffective assistance of counsel and preserved for further development of the

record. The majority emphasizes Mann’s burden of proof to show he remained

incompetent, which makes it especially important to know defense counsel’s

conduct of the hearing.

       The prosecutor’s descriptions of Mann as insane, delusional, and not

knowing “what he’s doing five minutes from the other” all indicate a substantive

question about Mann’s state of mind following the ruling of restoration to

competency. The majority dismisses these observations made by the prosecutor

as “frustration” and not a medical opinion. But the record does not reveal that the
                                           15


prosecutor chose his language recklessly, out of frustration; we do know the

prosecutor argued to the trial court:

               Now, I’m not saying that he is not competent to stand trial
       because he has been evaluated by many doctors. He understands
       right from wrong. That’s the problem. He has a different view of
       reality, which does not mean that he’s not competent. It just means
       he’s dangerous.

       The prosecutor’s use of the incorrect standard for competency—

“understands right from wrong”—does not reassure me that we should rule on the

issue without an adequate record.

       I agree with the majority that Mann’s convictions should be affirmed. But

the issue of restoration to competency should be preserved for later consideration

in the context of assistance of counsel.
