                                                                    2015 WI 44

                  SUPREME COURT                 OF    WISCONSIN
CASE NO.:                2012AP2692-CR
COMPLETE TITLE:          State of Wisconsin,
                                   Plaintiff-Respondent,
                              v.
                         Roddee W. Daniel,
                                   Defendant-Appellant-Petitioner.


                           REVIEW OF A DECISION OF THE COURT OF APPEALS
                            Reported at 354 Wis. 2d 51, 847 N.W.2d 855
                                    (Ct. App. 2014 – Published)
                                       PDC No: 2014 WI App 46

OPINION FILED:           April 29, 2015
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:           January 9, 2015

SOURCE OF APPEAL:
   COURT:                Circuit
   COUNTY:               Kenosha
   JUDGE:                Wilbur W. Warren III

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:    PROSSER, J. did not participate.

ATTORNEYS:


       For the defendant-appellant-petitioner, there were briefs
by Anthony J. Jurek, Middleton, and oral argument by Anthony J.
Jurek.


       For    the       plaintiff-respondent,        the    cause   was      argued   by
Tiffany M. Winter, assistant attorney general, with whom on the
brief was J.B. Van Hollen, attorney general.


       An    amicus      curiae   brief   was   filed      by   Kelli   S.    Thompson,
state public defender, and Joseph N. Ehmann, first assistant
state public defender, on behalf of the Wisconsin State Public
Defender. Oral argument by Joseph N. Ehmann.
                                                                            2015 WI 44
                                                                    NOTICE
                                                      This opinion is subject to further
                                                      editing and modification.   The final
                                                      version will appear in the bound
                                                      volume of the official reports.
No.         2012AP2692-CR
(L.C. No.     2008CF1035)

STATE OF WISCONSIN                                :            IN SUPREME COURT

State of Wisconsin,

               Plaintiff-Respondent,
                                                                         FILED
       v.
                                                                    APR 29, 2015
Roddee W. Daniel,
                                                                       Diane M. Fremgen
               Defendant-Appellant-Petitioner.                      Clerk of Supreme Court




       REVIEW of a decision of the Court of Appeals.                     Affirmed and
cause remanded.


       ¶1      ANN WALSH BRADLEY, J.           Petitioner, Roddee W. Daniel,
seeks review of a published decision of the court of appeals
that       reversed   an    order   of   the   circuit    court.1        In    a   post-
conviction hearing, the circuit court concluded that Daniel's

defense counsel failed to show by clear and convincing evidence


       1
       State v. Daniel, 2014 WI App 46, 354 Wis. 2d 51, 847
N.W.2d 855 (reversing order of circuit court of Kenosha County,
Wilbur W. Warren III, Judge).
                                                                     No.    2012AP2692-CR



that Daniel was incompetent.                The court of appeals determined
that the circuit court erred because it failed to apply the
lower        "preponderance      of   the       evidence"         burden    of     proof.
Accordingly, it remanded for a new competency hearing.
        ¶2     Although    neither      party        challenges       the    court       of
appeals'       determination     that   the      burden      of    proof    here    is    a
preponderance of the evidence, Daniel contends that the court of
appeals' decision was erroneous because, upon remand, it permits
the circuit court to place the burden to prove incompetency on
defense counsel.          He asserts that despite the fact that Daniel
and his defense counsel disagree about competency, once defense
counsel has raised the issue of competency, the burden of proof

should be on the State.
        ¶3     Considering the statute governing competency hearings,
the   potential       conflict   of   interest       in   placing     the    burden      of
proof on defense counsel, and the relative interests and risks
at stake, we determine that once a defense attorney raises the
issue of competency at a postconviction hearing, the burden is
on the State to prove by a preponderance of the evidence that
the defendant is competent to proceed.                      Accordingly, we affirm
the court of appeals and remand to the circuit court to apply
the correct standard if Daniel's competency is challenged upon
remand.
                                            I

        ¶4     Daniel has a long history of mental illness.                      He began
treatment       for    mental    illness        in   2004     at    Rogers       Memorial
Hospital-Milwaukee.         Multiple medications have been prescribed.
                                            2
                                                                           No.        2012AP2692-CR



        ¶5     Daniel's         treatment         at     Rogers      Memorial          ended     in
September 2008 around the time that he was arrested and charged
with first-degree intentional homicide as party to a crime and
armed burglary as party to a crime.                       According to the complaint,
15-year old Daniel and a friend broke into a neighbor's home.
Daniel told police that as they looked around for items to take,
they noticed a woman asleep in her bed.                           The woman woke up and
started to run away.                 Daniel stated that his friend ran after
her and hit her multiple times with a baseball bat.2                                     Then, he
and his friend grabbed various items and left.                                       The woman's
boyfriend       discovered          her    body    the    next    morning.            Daniel     was
arrested       and     held    at    Kenosha       County    Detention         Center         (KCDC)

pending trial.
        ¶6     The     court        granted       defense       counsel's        request       that
Daniel       undergo     an    evaluation         to     determine      his    competency         to
stand        trial.       Dr.       Collins       conducted       the    evaluation           which
included an interview with Daniel.                          Her report indicates that
she had trouble engaging Daniel in a goal-directed, rational
exchange.             However,       he    did     acknowledge       that        he     had     been
institutionalized             at    Rogers    Memorial       because      he     "was     hearing
voices"       and     that     he    had     previously         received       mental         health
treatment in connection with panic attacks.
        ¶7     Dr.     Collins'       evaluation         also    included        a     review    of
Daniel's medical records from KCDC.                         Her report indicates that


        2
            Daniel's friend claimed that it was Daniel who hit the
woman.


                                                  3
                                                                      No.    2012AP2692-CR



she believed there were discrepancies between some of the mental
health     complaints        Daniel       made      while     at     KCDC     and    staff
observations of his behavior.                 Dr. Collins further observed that
while at KCDC a diagnosis of "probable malingering" had been
offered.       She deermined that there was not enough evidence to
support    a     conclusion       that    Daniel      lacked       substantial       mental
capacity    to    factually       and    rationally         understand      the     pending
proceeding      and   aid    in    his    defense.          Based    on     Dr.   Collins'
report, the circuit court declared Daniel competent to stand
trial.
      ¶8       After a jury trial, Daniel was convicted of the crimes
charged.       He was sentenced to life in prison without extended

supervision.           During       his       subsequent       incarceration,           the
Department of Corrections determined that Daniel suffered from a
psychotic disorder and transferred him to the Wisconsin Resource
Center for treatment.              Daniel's treating psychiatrist at the
Resource Center, Dr. Alba, challenged his decisional competency
and   requested       that   Daniel      be       civilly   committed       pursuant     to
Chapter 51.
      ¶9       Following a hearing on the matter, the court ordered
Daniel's civil commitment.                It determined that medication or
treatment would have therapeutic value.                      It further determined
that due to mental illness, Daniel was not competent to refuse
psychotropic medication or treatment.                       Accordingly, the court

ordered    that    medication       and    treatment        could     be    administered
without Daniel's consent during the period of commitment.                               Dr.
Alba later requested an extension of Daniel's civil commitment,
                                              4
                                                                              No.    2012AP2692-CR



which was granted.             The court also extended Daniel's deadline
for filing a postconviction motion.
        ¶10    While Daniel was still under civil commitment, defense
counsel notified the court, pursuant to State v. Debra A.E., 188
Wis. 2d 111, 523 N.W.2d 727 (1994), that he had good faith
reason    to    doubt    Daniel's          competency       to    pursue        postconviction
relief.        He explained that he had spoken with Daniel multiple
times and that during those conversations Daniel equivocated in
regard to pursuing postconviction relief, oscillating between a
desire    to    pursue    relief       and    a    desire        not    to     pursue    relief.
Despite a variety of approaches, defense counsel was unable to
get   Daniel     to   express        any    reasoning       behind       his        decisions    to

pursue or not pursue postconviction relief.
        ¶11    Defense counsel further explained to the court that
since     Daniel's       conviction,          Daniel        had        been     diagnosed        as
schizophrenic,        and      had    been        civilly        committed          pursuant     to
Chapter 51.       He informed the court that his privately obtained
psychologist, Dr. Cumming, had evaluated Daniel and determined
that Daniel was not competent to seek postconviction relief.
Accordingly, defense counsel moved the court for a finding that
there    was    reason    to    believe       that    Daniel       was        incompetent       and
asked the court to rule regarding Daniel's competency to seek
postconviction relief.
        ¶12    Attached to defense counsel's submission was a letter

from Dr. Cummings.          His letter indicates that he met with Daniel
after reviewing Daniel's records.                     During their first meeting,
it was clear that Daniel lacked the capacity to understand the
                                               5
                                                                       No.    2012AP2692-CR



purpose of the visit or that Dr. Cummings' findings would be
used to aid Daniel's defense.                 During the second meeting, Daniel
told Dr. Cummings that he "didn't even know what an appeal was."
Based on Daniel's records and these interviews, Dr. Cummings
concluded to a reasonable degree of professional certainty that
Daniel was not competent to understand the appeal process or
make decisions about legal matters.
     ¶13     The    court     appointed       a    psychologist,        Dr.   Rawski,       to
evaluate     Daniel,        but      Daniel       refused        to   meet     with       him.
Therefore,       Dr.     Rawski     was   unable     to     offer     an   opinion    to     a
reasonable degree of professional certainty as to Daniel's then
current state of competency to participate in legal proceedings.

He recommended that Daniel be transferred to a state psychiatric
institute for an inpatient assessment.
     ¶14     Following        Dr.     Rawski's       recommendation,           the    court
ordered    the     State    to    transfer        Daniel    to    a   state   psychiatric
institute    for       evaluation     of    his     competency.            There,    he    was
examined    by     Dr.     Phelps,    a    forensic        psychiatry       fellow.        Dr.
Phelps determined that Daniel's behaviors were not the product
of mental illness, but rather the result of a characterological
disorder.     Although he acknowledged the possibility that Daniel
had a major mental illness, Dr. Phelps observed that Daniel had
denied symptoms of mental illness and, with one exception, had
not exhibited signs or symptoms of mental illness.

     ¶15     Dr. Phelps further acknowledged the possibility that
the medications Daniel took were effectively treating a mental
illness.          However,        observing        that     Daniel      had    previously
                                              6
                                                                    No.     2012AP2692-CR



demonstrated the capacity to stand trial and that he did not
demonstrate      symptoms      of   a    condition       that    would    preclude       his
capacity,     Dr.     Phelps    concluded         that    Daniel    had     substantial
mental capacity to understand the proceedings and assist in his
own defense.
        ¶16   After the evaluations were complete, the court held a
competency hearing.            At the start of the hearing, the circuit
court asked Daniel if he believed he was competent to proceed.
Daniel    replied     "Yeah."       The     court       then    asked     Daniel    if    he
believed he understood what was involved in making a decision
about     whether     to   appeal.          Daniel       again    responded        "Yeah."
Thereafter, defense counsel asked Daniel if he could explain

what it means to appeal a conviction.                      Daniel responded "No."
Counsel then asked Daniel "what happens if you don't appeal?"
Daniel replied "I can get charged with a crime."
        ¶17   Based on Daniel's statement that he was competent, the
court made an initial determination of competency.                            It placed
the     burden   on     defense         counsel    to     show     that     Daniel       was
incompetent.        To meet his burden, defense counsel presented the
testimony of Dr. Alba, Dr. Phelps, Dr. Collins, Daniel's social
worker at the Wisconsin Resource Center, and Dr. Cummings.                                He
also presented the reports from Dr. Alba, Dr. Phelps, and Dr.




                                            7
                                                                        No.    2012AP2692-CR



Cummings,    Daniel's     medical      records           from   Rogers    Memorial,        and
Daniel's discharge summary from Rogers Memorial.3
     ¶18    The    circuit     court    opined           that   based    on    Wis.    Stat.
§ 971.14(4)(b)       (2011-12)4,       if       the       defendant      claims       to    be
competent, the defendant shall be found competent unless the
State proves by clear and convincing evidence that the defendant
is not competent.            The court observed that in this case, the
State agreed with Daniel that he was competent and so it was not
in   the    position    to     disprove         his      assertion       of    competency.
However,    the   court      determined     that         the    clear    and    convincing
standard still should be applied: "the standard should be the
same for establishing incompetence, notwithstanding the party is

other than the State who is asserting it, and that's the basis
which this decision will be framed."                        It then concluded that
defense    counsel     had    failed   to       show      by    clear    and    convincing
evidence that Daniel was incompetent.
     ¶19    On    appeal,     the   court       of       appeals   observed      that      the
circuit court could allocate the burden of persuasion to the
defendant    or   defense      counsel      in       a    postconviction        competency
proceeding.       State v. Daniel, 2014 WI App 46, ¶2, 354 Wis. 2d

     3
        The court gave the parties time after the hearing to
submit written closing arguments.    During that time, Daniel
submitted a hand-written note, stating that he wanted to plead
guilty.    It states: "this is Roddee DanieL i want to plead
Guilty for the murder of [C.W.] I want to plead Guilty. Im
admitting that I killed [C.W.]."
     4
       All subsequent references to the Wisconsin Statutes are to
the 2011-12 version unless otherwise indicated.



                                            8
                                                                      No.     2012AP2692-CR



51, 847 N.W.2d 855.               However, the court of appeals determined
that a circuit court must utilize the lower "preponderance of
the evidence" burden of proof when doing so.                      Id.        Because the
circuit       court    had     applied    an    incorrect    burden    of     proof,    the
court       of   appeals       reversed    and       remanded.   Id.          It   further
declared that if Daniel's competency is questioned upon remand,
the circuit court shall address the issue de novo.                          Id.
                                               II
        ¶20      At issue in this case is who bears the burden of proof
at a postconviction competency hearing when defense counsel and
the defendant disagree on competency.5                      In this case of first
impression        in     our   state,     we   examine     statutory    authority       and

prior case law.            Ultimately, this issue presents a question of
law   which       this    court    reviews       independently    of    the       decisions
rendered by the circuit court and the court of appeals.                              Acuity
Mut. Ins. Co. v. Olivas, 2007 WI 12, ¶31, 298 Wis. 2d 640, 726
N.W.2d 258.
                                               III
        ¶21      To provide context for our discussion, we begin with a
brief overview of competency.                   For purposes of criminal trials,
competency refers to the defendant's "present mental capacity to


        5
       The petition for review presented this as two issues: who
bears the burden of proof and what is the correct procedure to
follow when a defendant and defense counsel disagree about a
defendant's competency.   However, in the parties' arguments the
second issue was subsumed into the first.        Accordingly, we
address them as one issue.



                                                9
                                                                 No.     2012AP2692-CR



understand the proceedings and assist in his or her defense."
Wis. Stat. § 971.14(3)(c); see also Dusky v. United States, 362
U.S. 402, 402 (1960) ("the test [for competency] 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."); State v. Byrge, 2000 WI 101,
¶27,       237    Wis.   2d   197,     614    N.W.2d     477   ("a     defendant    is
incompetent if he or she lacks the capacity to understand the
nature and object of the proceedings, to consult with counsel,
and to assist in the preparation of his or her defense.").
       ¶22       Courts have long followed the rule that incompetent

defendants should not be forced to face criminal proceedings
during their incompetency.              State ex rel. Matalik v. Schubert,
57 Wis. 2d 315, 321, 204 N.W.2d 13 (1973).                     Wisconsin codified
this rule in 1878, and it currently appears in our statutes at
Wis. Stat. § 971.13.6

       6
           Wisconsin Stat. § 4700 (1878) stated:

       When any person is indicted or informed against for
       any offense, if the court shall be informed, in any
       manner, that there is a probability that such accused
       person is, at the time of his trial, insane, and
       thereby incapacitated to act for himself, the court
       shall, in a summary manner, make inquisition thereof,
       by a jury or otherwise, as it deems most proper; and
       if it shall be thereby determined, that such accused
       person is insane, his trial for such offense shall be
       postponed indefinitely . . . .

     The current Wis. Stat. § 971.13(1) provides: "No person who
lacks substantial mental capacity to understand the proceedings
                                                     (continued)
                                             10
                                                                                 No.    2012AP2692-CR



     ¶23     As        Justice             Kennedy       has         succinctly             explained,
competence      to     stand      trial       is     integral        to    a    number       of   other
constitutional rights:

     Competence to stand trial is rudimentary, for upon it
     depends the main part of those rights deemed essential
     to a fair trial, including the right to effective
     assistance of counsel, the rights to summon, to
     confront, and to cross-examine witnesses, and the
     right to testify on one's own behalf or to remain
     silent without penalty for doing so.
Riggins v. Nevada, 504 U.S. 127, 139-40 (1992) (Kennedy, J.,
concurring).           Thus,      the        Supreme         Court       has    stated       that    the
prohibition       on      the    prosecution            of    incompetent            individuals      is
"fundamental         to    an     adversary          system         of    justice,"         Drope     v.
Missouri, 420 U.S. 162, 172 (1975), and the conviction of an

accused    person         while       he    is   legally        incompetent            violates      due
process, Cooper v. Oklahoma, 517 U.S. 348, 354 (1996).                                       See also
State v. Garfoot, 207 Wis. 2d 214, 221, 558 N.W.2d 626 (1997)
(observing      that       the    prohibition            is    an     issue      of    "fundamental
fairness").
     ¶24     Consistent           with      those       statements,            the    Supreme     Court

has further determined that "the failure to observe procedures
adequate   to     protect         a    defendant's            right       not    to    be    tried    or
convicted while incompetent to stand trial deprives him of his
due process right to a fair trial."                           Drope, 420 U.S. at 172; see
also State v. Wanta, 224 Wis. 2d 679, 692, 592 N.W.2d 645 (Ct.

or assist in his or her own defense may be tried, convicted or
sentenced for the commission of an offense so long as the
incapacity endures."


                                                   11
                                                                 No.   2012AP2692-CR



App. 1999) ("competence to stand trial in a criminal proceeding
[is] a fundamental right requiring due process protections").
      ¶25     Wisconsin's codified procedures to protect a defendant
from being tried while incompetent can be traced back to 1878.
Wis. Stat. § 4700 (1878).           The current procdures are found in
Wis. Stat. § 971.14.         Under the statute, if there is reason to
doubt a defendant's competency, the court "shall appoint one or
more examiners having the specialized knowledge determined by
the   court    to   be   appropriate   to   examine   and    report      upon    the
condition of the defendant."           Wis. Stat. § 971.14(2)(a).             Copies
of the report are delivered to the State, the defendant, and
defense counsel.         Wis. Stat. § 971.14(4)(a).     If each waives the

opportunity to present evidence on the issue, "the court shall
promptly      determine    the   defendant's   competency."            Wis.    Stat.
§ 971.14(4)(b).
      ¶26     The statute directs that in the absence of waivers,
the court shall hold an evidentiary hearing on the defendant's
competency.         Wis.   Stat.   § 971.14(4)(b).          It     describes     the
hearing as follows:

      At the commencement of the hearing, the judge shall
      ask the defendant whether he or she claims to be
      competent or incompetent. If the defendant stands mute
      or claims to be incompetent, the defendant shall be
      found incompetent unless the state proves by the
      greater weight of the credible evidence that the
      defendant is competent. If the defendant claims to be
      competent, the defendant shall be found competent
      unless the state proves by evidence that is clear and
      convincing that the defendant is incompetent. If the
      defendant is found incompetent and if the state proves
      by evidence that is clear and convincing that the
      defendant is not competent to refuse medication or

                                       12
                                                                           No.    2012AP2692-CR


        treatment, under the standard specified in sub. (3)
        (dm), the court shall make a determination without a
        jury and issue an order that the defendant is not
        competent to refuse medication or treatment for the
        defendant's    mental   condition   and   that   whoever
        administers   the   medication   or  treatment  to   the
        defendant shall observe appropriate medical standards.
Wis. Stat. § 971.14(4)(b).
        ¶27    To protect the right to these competency proceedings,
in State v. Johnson, 133 Wis. 2d 207, 395 N.W.2d 176 (1986), the
Wisconsin      Supreme      Court    placed        a    duty    on   defense      counsel    to
raise    the       issue   of   defendant's            competency    whenever       there    is
reason to doubt it.             In that case, despite strong indications of
defendant's incompetency, defense counsel had made a "strategic
decision" to not raise the issue prior to or during defendant's

criminal trial.            Id. at 214.       The question before the court was
whether counsel's failure to do so constituted representation
which fell below an objective standard of reasonableness.                                   Id.
at 218.
        ¶28    In its analysis, the Johnson court explained that the
procedure      for       determining       competency         laid   out    in    Wis.   Stat.
§ 971.14 is "a critically important fail-safe device for the
benefit       of    accused     persons      who        may    not   be    able     to   fully
cooperate and assist in their defense."                         Id. at 218-19 (quoting

Matalik, 57 Wis. 2d at 322).                       It further observed that the
protection         is    illusory    if,    when       there    is   a    reason    to   doubt
defendant's competency, neither the court nor counsel seek the
procedures         provided     by   the    State       for    determining        competency.
Id. at 219.             The court held that "where defense counsel has a
reason to doubt the competency of his client to stand trial, he

                                              13
                                                                            No.   2012AP2692-CR



must raise the issue with the trial court" and "[t]he failure to
raise the issue of competency makes the counsel's representation
'fall below an objective standard of reasonableness.'"                                   Id. at
220.7
        ¶29       The    Wisconsin        Supreme      Court     subsequently      recognized
that        the    right      to     a     competency       determination         extends     to
postconviction proceedings.                      In Debra A.E., 188 Wis. 2d 111,
defense counsel was unable to determine whether the defendant
was     willing         to   accept       the    risks    of     pursuing     postconviction
relief        because         the     defendant          would     not    speak     to      him.
Accordingly,            he   requested       a   competency       proceeding,      which     the
circuit court denied.                Id. at 121-22.
        ¶30       On review, the Wisconsin Supreme Court observed that
the     decisions            to     pursue       postconviction          relief    and      what
objectives to pursue must be made by the defendant, not defense
counsel.          Id. at 125.            Because those tasks were required of the
defendant, the court determined that a defendant "is incompetent
to pursue postconviction relief under sec. 809.30, Stats. 1991-

        7
       In 1984 the ABA adopted a standard substantially similar
to that announced in State v. Johnson, 133 Wis. 2d 207, 395
N.W.2d 176 (1986). ABA Criminal Justice Mental Health Standard
7-4.2(c) provides that:

        Defense counsel should move for evaluation of the
        defendant's competence to stand trial whenever the
        defense counsel has a good faith doubt as to
        defendant's competence. If the client objects to such
        a motion being made, counsel may move for an
        evaluation over the client's objection.

This standard remains in effect today.



                                                  14
                                                                       No.   2012AP2692-CR



92,   when     he    or   she    is    unable      to    assist    counsel   or    to   make
decisions committed by law to the defendant with a reasonable
degree of rational understanding."                      Id. at 126.
       ¶31     The Debra A.E. court then proceeded to prescribe the
process for postconviction competency proceedings.                           Id. at 131.
It stated that if the State or defense counsel has a good faith
reason to doubt a defendant's competency, counsel should advise
the court and move for a ruling on competency.                         Id.   The circuit
court may also raise the issue of reason to doubt a defendant's
competency sua sponte.                 Id.      If there is reason to doubt a
defendant's competency, the circuit court may hold a hearing.
Id. at 132.         "In conducting any hearing the circuit court should

be    guided    by    sec.      971.14(4),      Stats.      1991-92,    to   the    extent
feasible."      Id.
       ¶32     Having      set        forth     the      background     on    competency
proceedings, we turn now to the issue of who bears the burden of
proof at a postconviction competency hearing when the defendant
and defense counsel disagree about competency.                          We acknowledge
that, as a general matter, the burden of proof is frequently
assigned to the moving party.                 See, e.g., State v. West, 2011 WI
83, ¶65, 336 Wis. 2d 578, 800 N.W.2d 929;                         Larry v. Harris, 2008




                                              15
                                                 No.    2012AP2692-CR



WI 81, ¶50, 311 Wis. 2d 326, 752 N.W.2d 279.8    However, we are
not convinced that the general rule applies to this case.     Here,
defense counsel, as an officer of the court, was obligated to
alert the court of his doubt about competency under Johnson, 133
Wis. 2d 207.   Thus, we decline to view the fulfillment of this
duty in the same manner as a typical motion.
     ¶33   As the parties concede, there is currently no statute
directly   governing   postconviction   competency     proceedings.9

     8
       There are several situations in which this rule does not
apply. See, e.g., State v. Subdiaz-Osorio, 2014 WI 87, ¶73, 357
Wis. 2d 41, 849 N.W.2d 748 (after defendant raised the issue,
the burden was on State to show that exigent circumstances
justified a warrantless search); State v. Jerrell C.J., 2005 WI
105, ¶17, 283 Wis. 2d 145, 699 N.W.2d 110 (upon defendant's
suppression motion, the burden was on the State to prove
confession was voluntary); State v. Jiles, 2003 WI 66, ¶23, 262
Wis. 2d 457, 663 N.W.2d 798 (where the defendant moved to
suppress various admissions, the burden was on the State to show
that   the  defendant   received  and  understood   his  Miranda
warnings).   Indeed, under Wis. Stat. § 971.14(4)(b) when the
defense counsel raises the issue of competency at defendant's
request, the burden is explicitly on the State to prove
competency.
     9
       We have previously determined that Wis. Stat. § 971.14, by
its terms, "govern[s] competency determinations only through the
sentencing stage of a criminal trial." State v. Debra A.E., 188
Wis. 2d 111, 128 n.14, 523 N.W.2d 727 (1994).      As Debra A.E.
explained, "[t]his conclusion follows from reading sec. 971.14
in its entirety and with sec. 971.13, as well as from the
legislative history underlying these two sections." Id.

     The legislative history reveals that the drafters of the
proposed legislation were mindful that Wis. Stat. § 971.14 left
unaddressed incompetency in postconviction proceedings:

     [T]he Committee had not devoted sufficient attention
     to how to handle the case of a defendant who is
     incompetent to assist counsel in post-conviction
                                                   (continued)
                               16
                                                             No.     2012AP2692-CR



Following   Debra   A.E.,   we   look   to   Wis.    Stat.   § 971.14(4)      for
guidance.
     ¶34    Wisconsin Stat. § 971.14(4)(b) defines the burden in
terms of the defendant's position.             If the defendant asserts
competency,   the   State   must   prove     incompetency       by    clear   and
convincing evidence and if the defendant asserts incompetency,
the State must prove competency by the greater weight of the
credible evidence:

     At the commencement of the hearing, the judge shall
     ask the defendant whether he or she claims to be
     competent or incompetent. If the defendant stands mute
     or claims to be incompetent, the defendant shall be
     found incompetent unless the state proves by the
     greater weight of the credible evidence that the
     defendant is competent. If the defendant claims to be
     competent, the defendant shall be found competent
     unless the state proves by evidence that is clear and
     convincing that the defendant is incompetent.




     proceedings.   To try to address this in a general
     competency statute was opening Pandora's box . . . the
     issue of competency ought to be the defendant's right
     to raise up to the point of the imposition of sentence
     but not afterwards. . . .     The competency statute
     should be limited to proceedings up to and including
     sentencing.

Judicial   Council   Insanity   Defense             Committee      Summary     of
Proceedings, April 24, 1981, at 4.

     Currently a bill is pending in the legislature that would
address this hole in our statutes: Section 1149 of Assembly Bill
90 (2015) proposes the creation of Wis. Stat. § 975.39, entitled
"Competency to pursue postconviction relief," which delineates
how   questions  of   competency  should  be   addressed  during
postconviction proceedings.



                                    17
                                                                        No.     2012AP2692-CR



Wis. Stat. § 971.14(4)(b) (emphasis added).10
        ¶35       The     statute     does    not     appear      to   contemplate          the
scenario          where    the      State    takes    the      same    position      as     the
defendant          and     in    contrast     it     is    defense     counsel       who     is
questioning competency.                 However, we find it informative that
regardless of the scenario, the statute places the burden of
proof        on   the    State.      This    reflects       the   legislature's       policy
choice and we see no reason to alter this statutory approach.
Thus, the statute's framework suggests that when the issue of
competency has arisen, and the State wants to proceed, the State
will bear the burden of proving competency.
        ¶36       This interpretation of the statute is consistent with

our prior description of the statute's procedures.                               In Byrge,
237 Wis. 2d 197, ¶29, we stated that a court will follow the
procedures of Wis. Stat. § 971.14 if there is reason to doubt a
defendant's competency to proceed.                        We explained that a reason
to doubt competency can be raised by either party or by the
court.        Id.       We observed that once a reason to doubt competency
has been raised, the court will appoint an examiner to conduct a
competency          examination       and,    absent       a   waiver,        will   hold     a
competency proceeding.                 Id., ¶30.          Then, without reference to

        10
       As the court of appeals observed, "[t]he differing
burdens of proof at the trial stage serve the twin due process
goals of protecting an incompetent defendant's right not to be
tried while incompetent and the preconviction defendant's right
to liberty by reducing the risk of committing a competent
person." Daniel, 354 Wis. 2d 51, ¶8 n.4 (citing State v. Wanta,
224 Wis. 2d 679, 695, 592 N.W.2d 645 (Ct. App. 1999)).



                                               18
                                                                      No.       2012AP2692-CR



who raised the issue of competency, we stated that "[t]he court
must find the defendant incompetent unless the State can prove,
by   the    greater      weight    of    the       credible     evidence,         that      the
defendant is competent."           Id.11
      ¶37       Admittedly,     Wis.    Stat.      §   971.14       does    not      directly
answer the question of who bears the burden of proof when a
defendant disagrees with defense counsel regarding competency.
Further, as stated above, the statute does not directly govern
competency       hearings      during   postconviction             proceedings        and    is
referred to solely as guidance.                     Our prior interpretation of
that statute, however, supports a conclusion that regardless of
whether     it    is   the    defendant       or   defense      counsel      that      raises

competency,       once   the    issue    is    raised,       the    burden      is    on    the
State.
      ¶38       This conclusion is further supported by the untenable
result     of    the   alternative      procedure.           Were    we    to     place     the
burden of proving incompetency on defense counsel when defendant
asserts     competency        it   would      create     a    conflict          between     an
attorney's duty as an advocate and an attorney's duty as an
officer of the court.
      ¶39       Attorneys' obligations to their clients are set forth
in the Supreme Court Rules.                One of the primary obligations is


      11
       The United States Supreme Court has likewise read Wis.
Stat. § 971.14(4)(b) as "requir[ing] the prosecutor to prove the
defendant's competence to stand trial once a question about
competency has been credibly raised." Cooper v. Okalahoma, 517
U.S. 348, 361-62 and n.18 (1996).



                                           19
                                                       No.     2012AP2692-CR



that of confidentiality.     Supreme Court Rule 20:1.6(a) prohibits
an   attorney      from   disclosing    information         relating     to
representation without a client's consent:

     A lawyer shall not reveal information relating to the
     representation of a client unless the client gives
     informed consent, except for disclosures that are
     impliedly authorized in order to carry out the
     representation, and except as stated in pars. (b) and
     (c).12


     12
          SCR 20:1.6(b)-(c) are not relevant here.     They state:

          (b) A lawyer shall reveal information relating to
     the representation of a client to the extent the
     lawyer reasonably believes necessary to prevent the
     client from committing a criminal or fraudulent act
     that the lawyer reasonably believes is likely to
     result in death or substantial bodily harm or in
     substantial injury to the financial interest or
     property of another.

          (c) A lawyer may reveal information relating to
     the representation of a client to the extent the
     lawyer reasonably believes necessary:

             (1)  to   prevent  reasonably    likely       death   or
          substantial bodily harm;

             (2) to prevent, mitigate or rectify substantial
          injury to the financial interests or property of
          another that is reasonably certain to result or has
          resulted from the client's commission of a crime or
          fraud in furtherance of which the client has used
          the lawyer's services;

             (3) to secure legal advice      about   the     lawyer's
          conduct under these rules;

             (4) to establish a claim or defense on behalf of
          the lawyer in a controversy between the lawyer and
          the client, to establish a defense to a criminal
          charge or civil claim against the lawyer based upon
          conduct in which the client was involved, or to
                                                       (continued)
                                  20
                                                                           No.    2012AP2692-CR



SCR 20:1.6(a).
      ¶40     The     importance         of    this     rule       is    stressed        by     the
official      comments        to    SCR        20:1.6,        which       describe       it      as
"fundamental"         to     the     attorney-client               relationship.          S.C.R.
20:1.6, ABA Comment 2; see also Foley-Ciccantelli v. Bishop's
Grove Condo. Ass'n, 2011 WI 36, ¶100, 333 Wis. 2d 402, 797
N.W.2d 789 ("Maintaining confidentiality of information relating
to representation is a fundamental principle in the attorney-
client      relationship.").                  The   obligation           to      keep     client
communications         secret       is    further        protected         by     Wis.        Stat.
§ 905.03(2)         which    grants      a     client        the     privilege     to     refuse
disclosure of communications with the client's attorney.

      ¶41     In State v. Meeks, 2003 WI 104, 263 Wis. 2d 794, 666
N.W.2d 859, this court observed the potential conflict between
an attorney's duty to a client to maintain confidentiality and
an attorney's duties as an officer of the court under Johnson,
133 Wis. 2d 207.             Meeks involved a competency hearing at which
the   State     offered       the     testimony         of     the      defendant's       former
attorney.       Id.,        ¶7.     Over      defense        counsel's        objection,        the
former attorney testified about her opinions, perceptions, and
impressions of the defendant's competency.                           Id., ¶¶7-8.



         respond to allegations in any proceeding concerning
         the lawyer's representation of the client; or

         (5) to comply with other law or a court order.

SCR 20:1.6(b)-(c).



                                               21
                                                                                No.     2012AP2692-CR



        ¶42   On        review,       this      court          determined      that     the       former
attorney's testimony revealed confidential information protected
by SCR 20:1.6(a) and Wis. Stat. § 905.03(2).                                     Id., ¶40.             It
stated    that      "it     is     difficult,             or    nearly   impossible,             for   an
attorney      to        testify       regarding           an     opinion    of        the       client's
competency         to    proceed           without        violating      the     attorney-client
privilege."             Id.,      ¶37.          It    further        explained         that,       "[a]n
attorney's     opinion           of    a     client's          mental    competency          is    based
largely upon private communications with the client."                                       Id., ¶40.
        ¶43   Admittedly, the circumstances in Meeks differ from the
facts     presented         in     this         case.           Meeks    addressed          a     former
attorney's       testimony            at    a    competency         hearing      as     opposed        to

present counsel raising the issue of competency.                                      Nevertheless,
Meeks provides guidance through its remarks on the interplay
between an attorney's duty as an officer of the court and the
attorney-client privilege.                      In response to arguments about the
duty under Johnson, 133 Wis. 2d 207, the court held that "the
former attorney's duty as an officer of the court does not,
under the circumstances set forth herein, trump the attorney-
client privilege."                Id., ¶43.               The court then explained that
Johnson's requirements were limited to merely raising the issue
of competency:

        An attorney's duty under Johnson demands a very narrow
        and limited breach of the attorney-client privilege.
        The attorney is merely obligated to 'raise the issue
        [of competency] with the trial court.'    There is no
        requirement that the attorney testify about his or her
        reasons for raising the issue or the opinions,



                                                     22
                                                                              No.   2012AP2692-CR


        perceptions, or impressions that form the basis for
        his or her reason to doubt the client's competence.
Id., ¶46.
        ¶44    There     is    an   obvious      difference               between   raising       an
issue     and     having      to    prove       it.         Meeks         instructs      that     an
attorney's duties under Johnson are limited to the former.                                      Were
we to put the burden of proof on defense counsel, it would
require more, upsetting the delicate balance that we laid out in
Meeks.          The    "limited       breach"         of    attorney-client              privilege
necessary to fulfill the Johnson obligation would turn to an
open      door,        requiring       attorneys                to    divulge       significant
information          gained    through      private         communications          with    their
clients.        Such a result is unpalatable and militates in favor of
placing the burden on the State.
        ¶45    A consideration of the relative interests at stake in
postconviction          competency        hearings         further         suggests      that    the
burden of proving competency should be on the State.                                  Burdens of
proof "reflect and protect social values.                                 Courts must reduce
the risk facing the party that has an interest of 'transcending
value'    by     placing      the   burden       of    proof         on    the   other    party."
Benjamin James Vernia, The Burden of Proving Competence to Stand
Trial:    Due     Process      at   the    Limits          of    Adversarial        Justice,      45
Vand. L. Rev. 199, 226 (1992) (citing Speiser v. Randall, 357
U.S. 513, 525 (1958)); see also Santosky v. Kramer, 455 U.S.
745, 757 (1982) ("[s]tandards of proof . . . are shaped by the
risk     of     error      inherent        in        the        truth-finding         process");
Addington       v.    Texas,    441    U.S.     418,        423      (1979)      ("The   standard


                                                23
                                                                     No.    2012AP2692-CR



serves to allocate the risk of error between the litigants and
to indicate the relative importance attached to the ultimate
decision.").
       ¶46    An erroneous decision that a defendant is competent
implicates weighty interests of the defendant in postconviction
proceedings.        Such       an    error        would     substantially     hinder     a
defendant's ability to pursue postconviction relief or an appeal
because defense counsel's ability to act without direction from
a client is limited.           Ultimate decisions regarding the objective
of   representation,       and      whether       to   undertake    a    postconviction
proceeding or an appeal are left solely to the client.                               Debra
A.E., 188 Wis. 2d at 125-26; see also SCR 20:1.2 ("a lawyer

shall abide by a client's decisions concerning the objectives of
representation and, as required by SCR 20:1.4, shall consult
with   the    client     as    to    the   means       by   which   they    are   to    be
pursued.").       Accordingly, in some circumstances, an erroneous
decision that a defendant is competent could prevent a defendant
from    seeking     postconviction            relief        or    filing     an   appeal
altogether, affecting the defendant's right to appeal a criminal
conviction.
       ¶47    In contrast, an erroneous decision that a defendant is
incompetent will have little impact on the State.                          As indicated
by the procedures identified in Debra A.E., the only impact on
the State of a defendant being declared incompetent is a delay
of the postconviction proceedings.                     188 Wis. 2d at 134 (stating
"defense counsel may request a continuance or enlargement of
time    for     filing        the    necessary          notices     or     motions     for
                                             24
                                                                        No.     2012AP2692-CR



postconviction       relief"      and       permitting         defendants       who   regain
competency    to    raise    issues         that    could      not     have   been    raised
earlier due to incompetency).                 Further, in many cases, no delay
will even occur.         Id. at 133-34 (directing defense counsel to
initiate or continue to seek relief on defendant's behalf where
the defendant's assistance and decisionmaking are not necessary
and there is no risk to the defendant).                              Thus, an erroneous
finding of incompetency will                place little burden on the State.
     ¶48     Balancing      the     risk      to     a   defendant       of     losing   the
ability to seek postconviction relief or file an appeal against
the risk of the State having to face a delay in an appeal or
postconviction       proceeding,         we        conclude      that     the     potential

consequences of error additionally suggest that the burden in a
postconviction competency hearing be placed on the State once
the issue has been raised.
     ¶49     We    decline     to      adopt       the       State's    suggestion       that
competency    be    presumed      at    a     postconviction           hearing    when   the
defendant was previously determined to be competent to stand
trial.     Competency is not static.                     As we observed in Meeks,
"[g]iven the nature of mental illness, a defendant may have been
competent during a prior proceeding, but incompetent now, and
vice versa."       263 Wis. 2d 794, ¶50.
     ¶50     Further,    competency            has       a     different      meaning     in
different circumstances.            Compare Debra A.E., 188 Wis. 2d at 126
(At a postconviction proceeding a defendant is incompetent to
pursue postconviction relief "when he or she is unable to assist
counsel or to make decisions committed by law to the defendant
                                             25
                                                                                  No.        2012AP2692-CR



with    a     reasonable            degree       of     rational       understanding.")              with
Byrge, 237 Wis. 2d 197, ¶27 ("a defendant is incompetent [to
stand trial] if he or she lacks the capacity to understand the
nature and object of the proceedings, to consult with counsel,
and    to     assist         in   the     preparation          of    his    or    her        defense.").
Thus, the fact that a defendant was deemed competent to stand
trial    should       not         create    a    presumption          that       the    defendant      is
competent       at       a    later       date    when         the   same    defendant            pursues
postconviction relief.
                                                      IV
        ¶51    In this case, defense counsel raised reason to doubt
defendant's competency.                    In response, the State contended that

the defendant was competent.                      The burden should have been on the
State to prove defendant's competency by a preponderance of the
evidence.           The      circuit       court,       however,       placed          the    burden   on
defense counsel to prove incompetency by clear and convincing
evidence and determined that defense counsel did not meet that
burden.
        ¶52    As we stated in Byrge, 237 Wis. 2d 197, ¶4, "[t]he
findings       of    a       circuit      court       in   a    competency        to     stand      trial
determination            will       not     be        upset     unless       they        are      clearly
erroneous       because            a    competency            hearing       presents          a   unique
category of inquiry in which the circuit court is in the best




                                                      26
                                                                              No.        2012AP2692-CR



position        to    apply   the     law   to       the    facts."13          In        this    case,
however, the circuit court applied the wrong law by incorrectly
placing the burden on defense counsel to prove incompetency by
clear and convincing evidence.                   Because we agree with the court
of appeals that it is unclear whether the circuit court would
have reached the same result had it applied the correct burden,
we   remand      with     the   instruction           that       if    Daniel's          competency
remains at issue, a new competency hearing be conducted.
                                                 V
      ¶53       In sum, considering the statute governing competency
hearings,       the     potential      conflict        of       interest      in     placing         the
burden of proof on defense counsel, and the relative interests

and risks at stake, we determine that once a defense attorney
raises the issue of competency at a postconviction hearing, the
burden     is    on     the   State    to   prove          by    a    preponderance             of   the
evidence         that     the       defendant         is        competent           to      proceed.
Accordingly, we affirm the court of appeals and remand the cause
to the circuit court to apply the correct standard if Daniel's
competency is still challenged.
      By    the       Court.—The      decision        of    the       court    of        appeals     is
affirmed and the cause is remanded to the circuit court.
      ¶54       Justice DAVID T. PROSSER did not participate.



      13
       Although          State v. Byrge, 2000 WI 101, 237 Wis. 2d 197,
614 N.W.2d 477,          addressed competency to stand trial we see no
reason to apply           a different standard to a decision regarding
competency for a         postconviction proceeding.



                                             27
     No.   2012AP2692-CR




28
    No.   2012AP2692-CR




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