State v. Violet S. Reynolds

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
September 29, 2020
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal Nos. 2019AP367-CR Cir. Ct. Nos. 2014CF188
2016CF90
2019AP368-CR 2016CF206
2019AP369-CR

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

VIOLET S. REYNOLDS,

DEFENDANT-APPELLANT.

APPEALS from judgments and an order of the circuit court for
Burnett County: MELISSIA R. MOGEN, Judge. Affirmed.

Before Stark, P.J., Hruz and Seidl, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
Nos. 2019AP367-CR
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2019AP369-CR

¶1 PER CURIAM. In these consolidated appeals, Violet Reynolds
seeks to vacate her guilty pleas based on the alleged ineffective assistance of her
counsel in failing to raise competency arguments at the plea or sentencing
hearings. She also claims the circuit court erred by not holding a nunc pro tunc
hearing to determine if Reynolds was competent. We reject Reynolds’ arguments,
and we affirm the judgments of conviction and the denial of Reynolds’
postconviction motion.

BACKGROUND

¶2 Reynolds was charged with a total of fifty-one felonies and
twenty-six misdemeanors in fourteen circuit court cases. One of the cases was
Burnett County case No. 2014CF188, in which she was charged with two counts
of first-degree sexual assault of a child—intercourse with a child under the age of
twelve. Other cases involved possession of methamphetamine, other drugs and
drug paraphernalia; illegally obtaining prescription drugs; theft of property;
disorderly conduct while using a dangerous weapon; and a panoply of other
counts.

¶3 A global plea agreement was ultimately reached whereby Reynolds
pleaded guilty or no contest in three separate cases to one amended count of
second-degree sexual assault of a child, contrary to WIS. STAT. § 948.02(2)
(2017-18)1—which does not contain a mandatory minimum sentence, as did the
original first-degree sexual assault charge; one count of felony possession of

1
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.

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methamphetamine; and one misdemeanor theft count. The remaining seventy-four
counts were dismissed and read in for sentencing purposes. An uncharged count
alleging the sexual assault of another child was also read in.

¶4 Prior to the plea hearing, Reynolds’ trial attorney had filed a motion
questioning Reynolds’ competency and requesting a competency evaluation.
Counsel noted in the motion that Reynolds appeared to fluctuate in her moods,
expressed fear for her life, was experiencing some kind of psychosis, and was
speaking with people not present or otherwise existing. The circuit court ordered a
competency evaluation, which was performed by Dr. Donna Minter, a licensed
psychologist with the Wisconsin Forensic Unit. Minter filed a report roughly four
months before the plea hearing.

¶5 Minter’s report noted Reynolds had been diagnosed with bipolar
disorder, schizoaffective disorder, posttraumatic stress disorder, anxiety disorder,
and having a history of alcohol and illegal drug use. Minter opined that there was
no evidence of psychosis or a significant cognitive or memory deficit that was
substantially interfering with Reynolds’ competence to comprehend and
communicate about her life, her legal charges, or the court proceedings. Minter
concluded there was no indication during the evaluation that Reynolds “[did] not
have the capacity to learn and remember new verbal information, communicate
with appropriate questioning, and use new information to her benefit.” Minter
also found that Reynolds would “likely have no difficulty appropriately managing
her behavior in court.” Minter then opined, to a reasonable degree of medical
certainty, that Reynolds “[did] not lack the substantial capacity to understand her
charges or to assist her attorney in her defense.” Minter then found Reynolds
competent to stand trial and assist in her own defense.

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¶6 At a subsequent status conference, Reynolds’ trial attorney told the
circuit court that Minter found Reynolds competent to proceed, and that Reynolds
was not challenging the finding. The parties also appeared for an initial
appearance on a new criminal complaint filed against Reynolds alleging three
additional counts of felony bail jumping. At that hearing, neither Reynolds nor
her attorney objected to the competency evaluation conclusion that she was
competent to stand trial.

¶7 Approximately three months later, Reynolds’ trial counsel retained
Dr. Michael Moller, a certified clinical psychologist, to determine whether the
defense could argue that Reynolds was not guilty by reason of mental disease or
defect (NGI). Moller prepared a report, which was not filed with the circuit court
prior to the plea hearing.

¶8 At the onset of the report, Moller remarked that Reynolds “appeared
to be only somewhat cooperative throughout the assessment and—as such—the
results needed to be interpreted with caution.” Moller indicated in his report that
Reynolds “went to great lengths to cast herself as extremely disturbed. As a result,
the clinical scales were not able to be interpreted in any meaningful way.” Moller
further stated, “My impression is that [Reynolds] is a woman of low-average
intellectual functioning, who has experienced an extraordinarily high level of
trauma throughout her childhood.” But he found that Reynolds was “clearly able
to identify the roles of individuals within the courtroom setting as well as display a
reasonable understanding of concepts and terminologies used within the
courtroom.” Ultimately, Moller concluded Reynolds was not competent, due to
her occasional episodes of “dissociation” resulting from trauma. The report,

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however, did not indicate whether this was an evaluation of competency to
proceed to trial, or a general competency determination.

¶9 In association with her pleas, which followed shortly after Moller
had completed his report, Reynolds signed a plea questionnaire and waiver of
rights form. The form acknowledged the charges to which she was pleading, the
constitutional rights she was waiving, and her understanding of the potential
punishments. Reynolds also confirmed her understanding “that the judge is not
bound by any plea agreement or recommendation and may impose the maximum
penalty.”

¶10 Prior to accepting her pleas, the circuit court engaged Reynolds in a
plea colloquy and went over the information contained in the plea questionnaire,
which included the maximum potential punishments Reynolds faced. Reynolds
stated that she had read the plea questionnaire carefully before signing the
document, and that she understood everything on that form. The court inquired as
to Reynolds’ notation on the form that she had alcohol, medications, or drugs
within the last 24 hours. Reynolds confirmed she had taken her medication but
“nothing narcotic” and that her medication “would not affect her ability to
understand what is happening here today.” The court also directed the district
attorney to recite the elements of the offenses that the State would have been
required to prove beyond a reasonable doubt for Reynolds to be found guilty,
which were also attached to the plea questionnaire. The court asked Reynolds if
she understood all that was stated on the record, and Reynolds stated that she
understood. The court also asked Reynolds if she understood that the court could
take the read-in counts into consideration at the time of sentencing. Reynolds
again acknowledged that she understood.

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¶11 Before accepting Reynolds’ pleas, the circuit court further discussed
with her trial counsel Reynolds’ understanding of what was taking place.
Although Moller’s report was not filed with the court prior to, or during, the plea
hearing, Reynolds’ trial attorney thoroughly addressed Moller’s findings for the
court:

THE COURT: Are you, thereby, in effect certifying to the
Court that in your opinion your client understands each
charge, the elements of each offense, the factual basis for
each offense as well as all of the Constitutional Rights?

[DEFENSE ATTORNEY]: Yes. I’d like to make a brief
record on that issue.

THE COURT: Sure.

[DEFENSE ATTORNEY]: Ms. Reynolds does have
significant ongoing mental health concerns. She’s had a
couple of different evaluations throughout the course of this
case. One of the evaluations on the competency evaluation
Dr. Minter determined that she was competent.
Dr. [Moller] also evaluated Violet, and said that he believes
it’s possible that because of her mental illness she kind of
comes in and out of competency, that she can have
moments where she is not here in essence.

And so today I did take the effort to make sure that Violet
understands what she is doing today, this is what she wants
to do, and that she is thinking clearly today, and that she
understands the proceedings. So I do believe that she
understands what she is doing today, and that she is doing it
because this is what she wants to do, and has decided it is
the best thing for her moving forward.

THE COURT: So you are, likewise, satisfied she is freely,
voluntarily and understandingly entering these please?

[DEFENSE ATTORNEY]: Yes.

THE COURT: Well, Ms. Reynolds, can you think of any
reason now why I should not go ahead and accept your
pleas?

THE DEFENDANT: No, Your Honor.

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THE COURT: Well, Ms. Reynolds, I am satisfied based
on the record that we have made here today that you are
freely, voluntarily and understandingly entering your pleas.
Further I am satisfied there does exist an adequate factual
basis for each charge and each plea.

¶12 At Reynolds’ sentencing, the circuit court once again restated the
plea agreement, and Reynolds reconfirmed her understanding of the plea
agreement. The court also asked Reynolds if she recalled at the plea hearing that
the court asked if she understood that as to the dismissed read-in counts, the court
could take those into consideration at the time of sentencing. Reynolds stated that
she remembered. Reynolds also confirmed that she understood the plea agreement
was not binding on the court.

¶13 Reynolds spoke coherently on her own behalf at the sentencing
hearing, and she did not claim incompetence—nor did she object when the district
attorney told the court that Reynolds had been deemed competent. Notably, the
district attorney also stated that he thought the cases had been thoroughly litigated,
explored, and investigated on all sides. He thought the pleas were fair in light of
the fact that the victims would be spared re-victimization under cross-examination
at trial. The prosecutor also acknowledged the “zealous representation” of defense
counsel, and he informed the court that Reynolds “has had an excellent attorney
here.”

¶14 Following her sentencing, Reynolds filed a postconviction motion
seeking to withdraw her pleas. Specifically, the motion claimed that Reynolds’
trial counsel was ineffective for failing to challenge her competency after

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reviewing Moller’s report, and also that her pleas were not knowing, voluntary,
and intelligent because she did not know she could pursue an NGI defense.2

¶15 The circuit court held a Machner3 hearing on Reynolds’
postconviction motion, at which Reynolds’ trial attorney, Moller, and Reynolds
each testified. Defense counsel testified that she obtained Moller’s evaluation in
order to explore the possibility of an NGI defense. Counsel further testified that
Moller’s discussion of competency concerned general competency and was not
specifically addressing competency to proceed at trial. Counsel also explained
that Reynolds’ state of mind improved greatly after she was incarcerated, although
counsel was unsure if that result was related to her perception that Reynolds had
been using methamphetamine before her incarceration. Counsel stated, however,
that when she initially asked the court for the competency examination, Reynolds
was “saying a lot of things that were maybe conspiratorial in nature.” Counsel
also stated, “[I]t seemed like the longer she was in jail there was quite a bit of
difference, and I found her quite reasonable by the time we did the plea ….”
Counsel also testified that at some point in time, Reynolds had expressed a desire
to “really just want[] to get this done.”

¶16 Moller testified that he met with Reynolds once and that “it wasn’t
for a NGI.” He explained that the results of one of the tests he administered
suggested that Reynolds was “faking bad.” He further explained that the results
2
Reynolds also filed a supplemental motion adding an argument that the circuit court
erred when it imposed fines without addressing her ability to pay, and also asserting that her trial
counsel was ineffective for not raising this claim at sentencing. Reynolds does not renew these
claims on appeal, and we will not address them.
3
See State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).

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did not mean that she “consciously sat down with the intent to fake bad on this
test,” but that it could have that meaning. He testified that different tests he
administered showed differing results, which he thought might mean that
Reynolds was dissociating. He then explained that Reynolds was able to correctly
identify court roles and concepts, but he worried that she could dissociate in a
different setting.

¶17 Moller also testified at the postconviction hearing that people can
recognize when Reynolds was experiencing a dissociative episode. Moller stated
that a person

would have to be very familiar with working with
[Reynolds] over a long period of time, and then [they]
would have indicators that tell[] about when she was going
in and out of different states, and eventually there would be
a reasonable chance that [Reynolds] would be able to not
dissociate because she could become more tolerant of the
emotions she experiences when discussing those traumas of
the past.

¶18 The circuit court issued a written decision that thoroughly outlined
the procedural and factual history of the case, and that also made factual findings
regarding defense counsel’s assistance. The court found that Reynolds’ “trial
counsel did inform the court on the record at the June 5, 2017 hearing that an
expert had been retained who completed an evaluation report and who would
assert that [Reynolds] may go in and out of competency.” The court specifically
found that Reynolds’ “[t]rial counsel did not hide this information from the court,
but brought it to the court’s attention.” Moreover, the court found that “[t]rial
counsel took every effort the day of the plea to ensure that [Reynolds] understood
what she was doing, that she wanted to plead no contest, that she was thinking
clearly that day, and that she understood the proceedings and what was

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happening.” The court also found that Reynolds’ trial counsel observed that
Reynolds’ “state of mind improved greatly when she was incarcerated and
someone made sure she took her medications as prescribed.”

¶19 The circuit court further found that Moller’s report was
“fundamentally consistent” with what Reynolds’ trial attorney told the court at the
plea hearing. The court found that had Moller’s report been formally introduced at
the plea hearing, the court would have “observed Dr. Moller’s statements relating
to [Reynolds’] intent to manipulate the test results and how she went to great
lengths to cast herself as extremely disturbed.” The court also found, “Due to
[Reynolds’] manipulation on the tests, [Moller’s] results needed to be interpreted
with caution.”

¶20 The circuit court also questioned the accuracy of Moller’s evaluation
because it was based in part on tests administered outside of Moller’s presence.
The court found that when compared to Minter’s findings, “[t]he findings by
Dr. Moller appear based on conjecture and geared more-so at the term competence
in the general sense, rather than in the legal sense, pertaining to [Reynolds’] need
to understand the legal proceedings and assist in her defense.”

¶21 The circuit court thus found it “did not perceive any bona fide doubt
as to [Reynolds’] competence to stand trial, understand the proceeding, assist in
her defense, and enter a plea.” Based on its findings, the court held that Reynolds
“failed to present sufficient material facts to support a claim of ineffective
assistance of counsel in this matter or to show that counsel’s representation fell
below an objective standard.” Reynolds now appeals.

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DISCUSSION

¶22 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. State v. Byrge, 2000
WI 101, ¶¶26-27, 237 Wis. 2d 197, 614 N.W.2d 477. A competency
determination is functionally a factual finding. Id., ¶¶33, 45. The factual
circumstances of the case and of trial counsel’s conduct and strategy are findings
of fact. State v. Breitzman, 2017 WI 100, ¶37, 378 Wis. 2d 431, 904 N.W.2d 93.
Our review of a circuit court’s competency determination is limited to whether
that finding is totally unsupported by facts in the record and, therefore, is clearly
erroneous. State v. Smith, 2016 WI 23, ¶29, 367 Wis. 2d 483, 878 N.W.2d 135.

¶23 Following a Machner hearing on the ineffectiveness of counsel, we
will only overturn a circuit court’s factual findings if they are clearly erroneous.
State v. Kimbrough, 2001 WI App 138, ¶27, 246 Wis. 2d 648, 630 N.W.2d 752.
However, the ultimate conclusion as to whether there was ineffective assistance of
counsel is a question of law. State v. Balliette, 2011 WI 79, ¶19, 336 Wis. 2d 358,
805 N.W.2d 334.

¶24 The two-part test set forth in Strickland v. Washington, 466 U.S.
668 (1984), applies to challenges to guilty pleas alleging ineffective assistance of
counsel. State v. Bentley, 201 Wis. 2d 303, 311, 548 N.W.2d 50 (1996). A
defendant alleging ineffective assistance of counsel must establish both deficient
performance and prejudice. Strickland, 466 U.S. at 687. If the defendant fails on
either prong, the ineffective assistance of counsel claim fails. Id. at 697.

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¶25 Reynolds narrows her appeal to one compound claim. She asserts
her trial attorney was constitutionally ineffective by failing to challenge Reynolds’
competency at the time of the plea hearing. She also contends that the
postconviction court erred by not holding a competency hearing and finding her
incompetent. However, because Reynolds did not challenge competency until
after she was sentenced, her challenge is limited to the framework of ineffective
assistance of counsel. See Bentley, 201 Wis. 2d at 311.

¶26 WISCONSIN STAT. § 971.14 addresses competency proceedings and
sets out special procedures by which the circuit court determines a defendant’s
competency. The statute mandates that “[t]he court shall proceed under this
section whenever there is reason to doubt a defendant’s competency to proceed.”
WIS. STAT. § 971.14(1r)(a). When defense counsel has a reason to doubt the
competency of his or her client, and he or she fails to raise the issue with the court,
the representation is deemed to be deficient. State v. Haskins, 139 Wis. 2d 257,
262-63, 407 N.W.2d 309 (Ct. App. 1987). Strategic considerations do not
eliminate defense counsel’s duty to request a competency hearing. State v.
Johnson, 133 Wis. 2d 207, 221, 395 N.W.2d 176 (1986).

¶27 Here, Reynolds’ trial attorney is the one who initially raised
Reynolds’ competency by requesting a competency evaluation. Indeed, it was the
defense attorney’s request that led the circuit court to order a competency
evaluation by Minter, in which she found Reynolds competent to stand trial.
Minter concluded there was no evidence of psychosis or of a significant cognitive
or memory deficit that was interfering with Reynolds’ competence to comprehend
and communicate about her legal charges or the court proceedings. Defense

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counsel also thoroughly addressed both Minter’s and Moller’s findings at the plea
hearing.

¶28 In addition, consistent with Moller’s testimony at the postconviction
hearing, defense counsel demonstrated that she was very familiar with Reynolds’
state of mind, and she had no reason to doubt Reynolds’ competency at the time of
the pleas. On this basis, the circuit court found that “[t]rial counsel took every
effort the day of the plea to ensure that [Reynolds] understood what she was
doing, that she wanted to plead no contest, that she was thinking clearly that day,
and that she understood the proceedings and what was happening.” Defense
counsel also testified that when Reynolds entered her pleas, counsel was aware of
her ability to reason and to consider her choices, and that Reynolds was engaged
with, and understanding of, the process.

¶29 Therefore, in light of Minter’s report and defense counsel’s own
observations, counsel did not feel she had a reason to doubt Reynolds’
competency. See Johnson, 133 Wis. 2d at 220. But even if defense counsel had
doubt, any obligation was satisfied by her discussing Moller’s report and the issue
of competency with the circuit court at the plea hearing. The court specifically
found that Reynolds’ trial counsel acknowledged—based on Moller’s report—that
“it is possible that due to [Reynolds’] mental illness she can come in and out of
competency.” But counsel also advised the court at the time Reynolds entered her
pleas that Reynolds’ state of mind had improved greatly while she was
incarcerated and that Reynolds knew what she was doing. Finally, we note that
Reynolds herself told the court that she felt she was competent at the time of the
pleas.

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¶30 The circuit court also found that defense counsel accurately
summarized Moller’s report to the court. The court subsequently found that
Moller’s evaluation was not as accurate or reliable as Minter’s, and in fact was
conclusory and based on conjecture. Thus, the court concluded Moller’s report
“needed to be interpreted with caution.”

¶31 In the end, the circuit court found that neither defense counsel nor
the court itself had any reasonable basis to doubt Reynolds’ competency. The
court found that it “did not perceive any bona fide doubt as to [Reynolds’]
competency to stand trial, understand the proceedings, assist in her defense, and
enter a plea.” Quite simply, the court did not find any reason to inquire further
into Reynolds’ competency, including the holding of a competency hearing. The
court’s findings are not clearly erroneous, and defense counsel’s performance was
not deficient. The court therefore correctly concluded Reynolds “failed to present
sufficient facts to support a claim of ineffective assistance of counsel.”

¶32 In addition to the issue of ineffective assistance of counsel, Reynolds
also argues that in light of Moller’s report, the circuit court was statutorily
obligated to initiate—but failed to initiate—formal competency proceedings under
WIS. STAT. § 971.14. Alternatively, Reynolds argues that if the postconviction
hearing is considered to have been a competency hearing, the court erroneously
exercised its discretion by finding Reynolds competent to stand trial.

¶33 The State responds that Reynolds’ arguments in this regard
mischaracterize the posture and scope of this case, presumably in an effort to
circumvent the limits of the appeal to an ineffective assistance of counsel analysis.
The State also argues that Reynolds forfeited the argument that the circuit court

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was statutorily obligated to order a competency hearing upon the filing of Moller’s
report because Reynolds did not request a competency hearing in her
postconviction motion. In fact, the State contends Reynolds is estopped from even
claiming this relief because her postconviction motion expressly asked for a “new
trial,” not a competency hearing. Furthermore, her postconviction motion did not
make a case for her incompetency, as it only alleged ineffective assistance of
counsel, and the postconviction motion hearing was a Machner hearing, the focus
of which was Reynolds’ counsel’s assistance.

¶34 The record reveals that Reynolds’ attorney briefly cited to WIS.
STAT. § 971.14 in the postconviction motion, and she also briefly stated that the
circuit court should determine whether an adequate and meaningful nunc pro tunc
inquiry could be made regarding Reynolds’ competence. We need not decide,
however, whether Reynolds forfeited her argument that the court was statutorily
obligated to order a competency hearing because the court’s finding is not clearly
erroneous. In light of the other evidence, Moller’s report did not create a bona
fide reason to doubt Reynolds’ competency. Therefore, the directive under
§ 971.14 was not triggered.

¶35 Significantly, Reynolds does not develop an argument on appeal as
to why WIS. STAT. § 971.14 required the circuit court to conduct a nunc pro tunc
competency hearing upon the filing of Moller’s report. More specifically, other
than basing her whole claim of error on the alleged merit of Moller’s report,
Reynolds does not explain how the court’s findings are clearly erroneous as to
whether a bona fide reason to doubt competency existed at the time of the pleas.

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¶36 Merely submitting evidence questioning competency does not
automatically trigger the requirement for a competency hearing under WIS. STAT.
§ 971.14. Here, defense counsel notified the circuit court of Moller’s report at the
plea hearing. During the postconviction proceedings, the court found that
Moller’s report was “fundamentally consistent” with what Reynolds’ trial attorney
told the court at the plea hearing. As the arbiter of credibility, the court found
Moller’s evaluation was not as accurate or reliable as Minter’s and, in fact, that
Moller’s report was conclusory and based on conjecture. The court therefore
concluded that Moller’s report “needed to be interpreted with caution.” In all, as
was further explained above, the court found that Moller’s report did not give rise
to a bona fide doubt as to Reynolds’ competency, and that finding is not clearly
erroneous. The record does not demonstrate that there was a reason for the court
to doubt Reynolds’ competency at the time of her pleas. Stated another way,
Reynolds has not been prejudiced by the lack of a nunc pro tunc order for a
competency hearing.

¶37 Finally, and contrary to Reynolds’ perception, the postconviction
motion hearing may not properly be considered a competency hearing; it was a
Machner hearing to address Reynolds’ ineffective assistance of counsel claims.
To the extent the circuit court made any findings on the postconviction motion
relating to competency, it did so as part of its decision on the ineffective assistance
claims. Reynolds did not directly request a competency hearing, and she
affirmatively claimed and demonstrated her competence at the plea hearing. This
conduct was consistent with defense counsel’s statement that she was familiar
with Reynolds’ state of mind, and that it had improved greatly since Reynolds
began her incarceration. The court did not err by not holding a competency

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hearing under these circumstances. Reynolds’ request to vacate her pleas was thus
properly denied.

By the Court.—Judgments and order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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