State of Iowa v. George Alex Lee Cue, Jr.

IN THE COURT OF APPEALS OF IOWA

No. 19-2150
Filed October 21, 2020

STATE OF IOWA,
Plaintiff-Appellee,

vs.

GEORGE ALEX LEE CUE, JR.,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Boone County, Amy M. Moore,

Judge. (Guilty Plea Hearing) Christopher Polking, Judge. (Sentencing Hearing)

George Cue appeals his conviction and requests a remand to the district

court for a competency hearing. AFFIRMED.

Agnes G. Warutere of Warutere Law Firm, P.L.L.C., Ankeny, for appellant.

Thomas J. Miller, Attorney General, and Sharon K. Hall, Assistant Attorney

General, for appellee.

Considered by Doyle, P.J., and Mullins and Greer, JJ.
2

GREER, Judge.

In October 2019, George Cue pled guilty to four counts of sexual abuse in

the second degree. Cue was later sentenced to a term of incarceration not to

exceed twenty-five years on each count.1 Cue now appeals, asking that the court

reverse his convictions and remand his case to the district court for further

proceedings. Cue argues the court violated his right to due process by accepting

his guilty pleas in light of alleged questions about his competency.2

Factual Background and Proceedings.

In July of 2019, Cue’s wife reported to the local police department that Cue

had “done something sexual to their daughters.” That same day, Cue went to the

police department with other family members and admitted to an officer that he

had engaged in sex acts with his two daughters. Cue told the officer he “had been

struggling to function in a normal capacity for a while and sometimes goes off in a

fantasy state of mind” and that he had “strong mental impulses about sex.” He

also stated “he felt he was there but not there at times” and “knew what he was

doing but would lose control of himself.” Cue said he “was not sure what all he did

1 The court ordered counts I and II to run concurrently, followed by counts III and
IV, also running concurrently. Cue was to serve those two blocks of time
consecutively for a total term of incarceration not to exceed fifty years.
2 While Cue did not file a motion in arrest of judgment that does not prevent our

review of his claim he was denied due process for reasons of incompetency. See
State v. Heuer, No. 15-2031, 2016 WL 6270124, at *2 (Iowa Ct. App. Oct. 26,
2016) (“[W]hen a defendant claims they were denied due process because the
district court failed to order a competency hearing sua sponte, ‘[t]he defendant
does not directly challenge the voluntariness of the plea, but claims that due
process mandates a competency hearing.’ In this context, we allow an exception
to our normal error preservation rules.” (citation omitted)); see also State v. Lucas,
323 N.W.2d 228, 230 (Iowa 1982) (“It is fundamental that if the defendant was
incompetent he was in no position to preserve error, request a section 812.3
hearing, or avoid a waiver of his motion in arrest of judgment.”).
3

but that he remembered pieces of what happened.” After these admissions, but

before his arrest, Cue committed himself to Mary Greeley Medical Center. He was

released after forty-eight hours when it was determined he would not “self-harm.”

Cue was then arrested and charged with five counts of sexual abuse on August 1,

2019.

That October, Cue pled guilty to four counts of sexual abuse in the second

degree. During the plea hearing, the court engaged Cue in a plea colloquy to

establish that his guilty plea was knowing, voluntary, and supported by a factual

basis. The court inquired into Cue’s mental competency through multiple

questions. Specifically, the court asked Cue whether he was under any medical

care involving a doctor or psychiatrist. Cue replied that he “had been to the crisis

center before being arrested” but was not currently seeing anyone for mental-

health conditions. The court explored with Cue, “[I]n your own words, what are

you here in court to do today?” Cue replied that he was in court to plead guilty to

four counts of sexual abuse. Turning to Cue’s counsel, the court asked whether

he believed that Cue “has the sufficient ability here to make decisions regarding

his plea of guilty?” Counsel replied:

I do today, your Honor. With complete disclosure, I do have
concerns that [Cue] does have some mental health issues.
However, they do not arise or reach a level where I would be
concerned about his competency. I believe his jail stay as well as
the charges have caused him stress, some self-harming type
thought; but as to his competency to give a guilty plea, I don’t
question his ability to do that.

The court next asked Cue whether he was under the influence of alcohol or

medications, to which Cue replied that he was taking medication for anxiety. Cue

confirmed he had not noticed any side effects from his medication. Cue told the
4

court that he was able to think clearly and understand what the court was saying

to him. During the remainder of the colloquy the court established Cue understood

the terms of the plea agreement, what rights and privileges he was waiving, and

the factual basis for the guilty pleas. The court also advised Cue that he could file

a motion in arrest of judgment to address “anything that you may feel that is wrong

with what we did today as far as your guilty plea hearing is concerned . . . .”

Ultimately, Cue did not file a motion in arrest of judgment, and at no point did Cue

raise his competency to plead guilty throughout these proceedings.

The court accepted Cue’s guilty pleas, and he was sentenced in December

2019 to twenty-five years on each count of second-degree sexual abuse. The

court took care to explain to Cue that he could not appeal the issue of guilt following

a guilty plea without showing good cause. Cue now appeals his convictions,

arguing there were substantial questions about his competency such that the court

violated his due process rights by accepting his plea without holding a competency

hearing.

Standard of Review.

“Under the United States Constitution, the United States Supreme Court

has declared that the conviction of an incompetent defendant violates due

process.” State v. Einfeldt, 914 N.W.2d 773, 778 (Iowa 2018). “We have

emphasized that whether to hold a competency evaluation presents a legal

question.” Id. at 780. “When a constitutional question is raised, our review of a

district court decision regarding whether to hold a competency evaluation is de

novo.” Id.
5

Good Cause to Appeal.

Cue pled guilty to four counts of second-degree sexual abuse in October

2019, and judgment was entered against him about two months later in December.

Therefore, Cue’s appeal is controlled by the amended Iowa Code section 814.6

(2019). See State v. Damme, 944 N.W.2d 98, 103 n.1 (Iowa 2020) (“[R]eiterat[ing]

that date of the judgment being appealed controls the applicability of the

amendment to section 814.6.”). Section 814.6(1)(a)(3) prevents defendants from

challenging their guilty pleas for anything other than a class “A” felony unless they

establish “good cause.” So our threshold question is whether Cue has good cause

to appeal in this circumstance; we cannot proceed to the merits of his claim unless

we find good cause exists for this appeal.

“The legislature did not define ‘good cause’ in this statute” and “‘[g]ood

cause’ is defined in a variety of ways elsewhere in the Iowa Code and Rules of

Procedure.” Id. at 104. In Damme, our supreme court adopted the definition “[a]

legally sufficient reason” as the meaning of “good cause” within section 814.6. Id.

But “what constitutes good cause is context-specific.” Id. And “we must determine

when a defendant who pled guilty has a legally sufficient reason to appeal.” Id.

Our supreme court has not yet considered whether a defendant’s claim of

incompetence at the time of the guilty plea provides good cause for a direct appeal

under section 814.6. The State concedes that good cause for a direct appeal

would likely exist if issues regarding Cue’s competency were raised and contested

before the district court. We take it one step further and find that good cause exists

to challenge competency at the time of the plea irrespective of whether the issue

was contested below. With that, we proceed to the merits of Cue’s claim.
6

Claim regarding Incompetency.

Although neither Cue nor his counsel raised them to the court taking his

pleas, according to Cue, there were several “noteworthy” clues of his

incompetency. Cue maintains the trial court failed to make further inquiry into his

competency after learning about his statements about being in “a fantasy state of

mind” and ”struggling to function in a normal capacity”; his inability to name the

anxiety medication he was taking; his status as a social security income recipient

since age five; his lack of insight to request his mother and brother not attend his

private meeting with the police when he described his criminal acts; and his forty-

eight hour commitment to Mary Greeley Medical Center.

Iowa Code section 812.3 lays out a procedural mechanism designed to

ensure due process is satisfied when there are questions regarding the

competency of a criminal defendant. See Einfeldt, 914 N.W.2d at 779.

If at any stage of a criminal proceeding the defendant or the
defendant’s attorney, upon application to the court, alleges specific
facts showing that the defendant is suffering from a mental disorder
which prevents the defendant from appreciating the charge,
understanding the proceedings, or assisting effectively in the
defense, the court shall suspend further proceedings and determine
if probable cause exists to sustain the allegations. The applicant has
the burden of establishing probable cause. The court may on its own
motion schedule a hearing to determine probable cause if the
defendant or defendant’s attorney has failed or refused to make an
application under this section and the court finds that there are
specific facts showing that a hearing should be held on that question.

Iowa Code § 812.3 (emphasis added). “Probable cause exists for a competency

hearing when a reasonable person would believe that there is a substantial

question of the defendant’s competency.” Einfeldt, 914 N.W.2d at 779 (citing State

v. Kempt, 282 N.W.2d 704, 706 (Iowa 1979)). There is a presumption that a
7

defendant is competent to stand trial, and the defendant has the burden to prove

incompetence. State v. Gaston, No. 18-1293, 2020 WL 1307690, at *2 (Iowa Ct.

App. Mar. 18, 2020). Thus, the question we must answer is whether there were

“specific facts” regarding Cue’s competency that required the court to order a

competency hearing on its own motion.

Relevant factors in determining whether due process requires an
inquiry as to competency include (1) defendant’s irrational behavior,
(2) demeanor at trial, and (3) any prior medical opinion on
competence to stand trial. The critical question is “whether [the
defendant] 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.”

Lucas, 323 N.W.2d at 232 (quoting Dusky v. United States, 362 U.S. 402, 402

(1960)).

Throughout the plea and sentencing proceedings, no one raised an issue

with Cue’s competency. No one requested a competency hearing. But if there is

serious doubt about a defendant’s competency, the trial court has an absolute

responsibility to order a hearing sua sponte. State v. Mann, 512 N.W.2d 528, 531

(Iowa 1994). To evaluate whether that responsibility was required here, we only

consider those competency factors known to the court at the time of the guilty plea

hearing. See State v. Walton, 228 N.W.2d 21, 23 (Iowa 1975) (“Our task . . . is to

examine all the circumstances before [the] trial court to determine if at the time his

plea was accepted there existed an unresolved reasonable doubt as to defendant’s

competence to plead guilty.”); see also State v. Jasper, No. 16-2039, 2017 WL

6513603, at *3 (Iowa Ct. App. Dec. 20, 2017) (“But we only consider factors known

by the court at the time of the plea colloquy.”).
8

On our de novo review, and after applying these factors, we find no specific

facts regarding Cue’s competency that required the court to order a hearing on its

own motion under section 812.3. Although Cue now claims he lacked insight about

his actions, he offered specific details of his crimes to law enforcement and then

acknowledged his “disgust and regret for what he had done.” While Cue’s attorney

did note that he had concerns about Cue’s mental health, he specifically said that

“they do not arise or reach a level where I would be concerned about his

competency.” See Einfeldt, 914 N.W.2d at 780–81 (noting counsel’s professional

statements referencing difficulty of representation should be weighed in decision

to conduct a competency evaluation). Likewise, Cue offered to the trial court that

he checked himself into the mental-health unit of the Mary Greeley Medical Center

before turning himself in to the police. He shared that he had been prescribed

medication for anxiety while in jail but noticed no side effects from the medication.

No medical evidence raised a question of his competency. Finally, the record of

the plea colloquy gives no indication that Cue demonstrated irrational behavior

during these proceedings or that his demeanor was anything but normal

considering the circumstances. The trial court carefully addressed and established

the factual basis of the crimes soliciting lucid responses from Cue as to each count.

In sum, Cue failed to show any behavior suggesting he was incompetent to

plead guilty. Rather, his behavior showed a natural response to the crushing guilt

he felt when faced with his crimes and the reality of his situation. With a long and

emotional rendition of his guilt during allocution at sentencing, Cue reflected, “I

take responsibility for my actions. It was my job to protect my wife and children,

my family, and I failed to do that. And that is why I have turned myself in.” We find
9

that Cue was competent to plead guilty and that due process was satisfied

regarding his plea. There was no probable cause established to require a

competency hearing. Thus, we affirm his convictions on four counts of sexual

abuse in the second degree.

AFFIRMED.