State v. Biebinger

2018 UT App 123
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
VERNON R ICHARD BIEBINGER ,
Appellant.
Opinion
No. 20160460-CA
Filed June 21, 2018
Fourth District Court, Provo Department
The Honorable Derek P. Pullan
No. 141400846
Emily Adams, Attorney for Appellant
Sean D. Reyes and William M. Hains, Attorneys
for Appellee
JUDGE R YAN M. HARRIS authored this Opinion, in which
JUDGES M ICHELE M. C HRISTIANSEN and DIANA HAGEN concurred.
HARRIS, Judge:
¶1 	A jury convicted Defendant Vernon Richard Biebinger of
various crimes stemming from a traffic stop gone awry. He
appeals his convictions, arguing that he was incompetent at the
time 	of 	his 	trial 	and 	that 	his 	counsel 	was 	constitutionally
ineffective for failing to file a competency petition during trial.
We reject Defendant’s arguments and affirm his convictions.
BACKGROUND
¶2 	In March 2014, Defendant was driving a car with three
passengers when one of the passengers alerted him that there
was a police car behind him. In response, Defendant quickly

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executed a left turn and nearly hit a bicyclist, prompting the
officer in the police car (Officer) to initiate a traffic stop. During
the stop, Officer noticed that Defendant was “fidgeting in the
center 	console 	area” 	and 	kept 	glancing 	towards 	the 	center
console. When Officer asked Defendant for his registration and
proof of insurance, Defendant claimed he “couldn’t locate those
items,” and continued nervously glancing towards the center
console while talking to Officer. Officer asked Defendant if there
were any weapons in the vehicle. Defendant responded “just
these,” and produced a knife and set of brass knuckles. At this
point, 	Officer 	returned 	to 	his 	vehicle 	to 	begin 	checking
Defendant’s identification for warrants, and called for backup.
After backup officers arrived, they observed Defendant “moving
around a lot” in the vehicle, and asked him to exit the vehicle
and sit on the curb where they could more easily observe him.
¶3 	Defendant did not comply with this instruction. Instead,
he began yelling and then drove quickly away. Defendant led
several police officers on a high-speed chase, which ultimately
ended in a cul-de-sac when Defendant’s vehicle became stuck
between an RV and a fence. Defendant and all of the other
occupants 	exited 	the 	vehicle, 	and 	Defendant 	ran 	but 	was
eventually apprehended by police. During a subsequent search
of the vehicle, police found a stolen handgun on the driver’s side
floorboard. The police also found a second handgun discarded
outside the vehicle.
¶4 	Police interviewed Defendant shortly after the incident.
During the interview, Defendant stated that he ran from the
police because he believed an acquaintance of his had planted
guns in the car to “set him up.” When confronted by an officer
who stated that Defendant’s story “[made] no sense,” Defendant
reiterated that one of the passengers in the car (Passenger) had
raised the possibility of planted evidence and that this had
prompted Defendant to flee. Defendant also told police that he

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had initially intended to exit the vehicle when ordered to do so
by backup officers, but that Passenger had told him to “go.”
Officers noted that Defendant did not appear to be exiting the
vehicle at that point in time.
¶5 	The State ultimately charged Defendant with obstructing
justice, failing to respond to a police officer’s signal to stop, theft
by 	receiving 	stolen 	property, 	reckless 	endangerment, 	and
possession of a firearm by a restricted person.
¶6 	Prior to trial, Defendant’s first attorney filed a petition
raising the question of whether Defendant was competent to
stand trial. In the petition, counsel asserted that Defendant might
not be competent to assist in the preparation of the defense. The
court promptly granted the petition, and appointed two mental
health 	experts 	to 	examine 	Defendant. 	Several 	weeks 	later,
Defendant 	retained 	new 	counsel, 	and 	this 	second 	attorney
represented 	Defendant 	at 	the 	competency 	hearing. 	At 	that
hearing, the State informed the court that the mental health
experts had been unable to contact Defendant for a complete
evaluation and thus were not able to issue a report as to his
competency. Defendant’s second attorney represented to the
court that, as he understood it, “the issue [with Defendant’s
competency] 	originally 	was” 	that 	Defendant 	had 	been
previously 	diagnosed 	“bipolar 	and 	schizophrenic,” 	but 	that
Defendant had “been on his medication . . . for 30 days” by the
time of the competency hearing. Because of this, Defendant’s
second attorney withdrew the competency petition, stating that,
while Defendant was on his medication, counsel believed that
Defendant understood the potential punishment he might face,
the role of the parties and of the court, and the details of his case
sufficiently to “help assist” in his own defense. Based on these
representations, 	the 	trial 	court 	considered 	the 	competency
petition 	withdrawn, 	and 	conducted 	no 	further 	proceedings
thereon.

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¶7 	After 	the 	competency 	hearing, 	but 	before 	trial,
Defendant’s second attorney withdrew as counsel for Defendant.
The trial court appointed a third attorney (Trial Counsel) to
represent Defendant, and Trial Counsel represented Defendant
through trial.
¶8 	At trial, the State called several police officers to testify
about the events that occurred during the traffic stop. The State
also called Passenger as a witness, who testified that he was
“really shocked” when Defendant began fleeing from police, and
that Defendant told Passenger that he was sorry for fleeing but
that he had “things on [him].” Passenger testified that, upon
saying this, Defendant produced an item wrapped in cloth that
Passenger eventually determined was a handgun. Passenger
testified that Defendant threw the gun into Passenger’s lap and
asked him to throw it out the window, at which point Passenger
refused. Passenger also described seeing a second firearm in
Defendant’s lap at some point during the chase. Passenger
testified that the guns were not his.
¶9 	After consulting with Trial Counsel, Defendant elected to
testify in his own defense. During his testimony, Defendant
presented a much different account than either (a) the account
Passenger had described in his testimony or (b) the account
Defendant had provided during his initial interview with police.
At trial, Defendant testified that, shortly after being stopped,
Passenger informed Defendant that he (Passenger) possessed
“things,” which Defendant initially understood to be a reference
to 	“drugs.” 	Defendant 	testified 	that, 	after 	being 	told 	that
Passenger had “things,” an officer asked Defendant to get out of
the car, and when Defendant asked why he needed to get out,
the officer began to threaten him and tried to open the car door.
Defendant further testified that, while the officer was trying to
open the car door, Defendant saw Passenger move in a way that
triggered a memory Defendant had of Passenger attempting to

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sell Defendant a gun. Defendant testified that, based on that
memory, he realized that the “things” Passenger had said he
possessed were firearms rather than drugs. Upon realizing this,
Defendant became afraid that Passenger would try to “blast his
way out” of the encounter with police, and Defendant testified
that it was this fear that prompted him to flee from police. In
keeping with this account, Defendant testified that the firearms
belonged to Passenger, and not to him.
¶10 	Defendant’s direct testimony often took the form of long,
monologue-like statements, where he would testify for some
time without being prompted by a question from counsel. At one
point, Trial Counsel told him they could “take a second” if
Defendant needed a break. On cross-examination, the State first
asked 	Defendant 	if 	he 	was 	okay, 	observing 	he 	appeared
“emotional.” Defendant replied that he was “all right.” The State
then 	confronted 	Defendant 	with 	inconsistencies 	in 	his 	trial
testimony, asking him how he knew that Passenger had a gun if,
by his own testimony, Passenger had never shown him the gun
in the car and he had initially assumed Passenger had drugs.
Defendant 	responded 	that 	“the 	situation 	and 	tone 	and
everything going on” had convinced him Passenger had a gun,
even 	though 	he 	did 	not 	actually 	see 	one. 	During 	cross-
examination, Defendant also maintained that he had told the
police 	in 	his 	initial 	interview 	about 	his 	basis 	for 	believing
Passenger had a gun. When the State confronted him with the
discrepancy between that testimony and the account he had
given police during his initial interview (that he ran from the
police because Passenger had raised the possibility that a third
party had placed a firearm in Defendant’s car to set him up),
Defendant initially stated that he did not remember saying those
things to police. When the State pressed him on that answer,
however, Defendant admitted that he did remember saying
“something . . . like that, yes.” The State then asked if Defendant
had told police in his initial interview about Passenger’s alleged

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statement that he “had some things.” Defendant admitted that
he did not, and asserted that he failed to do so because he was
afraid of Passenger. Defendant finally asserted that he did not
remember 	what 	he 	had 	or 	had 	not 	said 	during 	his 	initial
interview.
¶11 	Also during cross-examination, the State played video-
recorded portions of Defendant’s initial police interview, and
asked 	Defendant 	about 	them. 	When 	confronted 	with 	the
discrepancies between his trial testimony and his statement
during the initial interview, Defendant began giving inconsistent
answers, at times stating that he did not remember what he had
previously said, and sometimes giving conflicting accounts as to
why his interview differed from his trial testimony. At one point,
Defendant acknowledged that “[w]hat I’m saying on the stand
right 	now 	is 	completely 	different 	from 	[my 	interview
testimony],” 	and 	that 	the 	discrepancy 	was because 	he 	was
“scared” during his interview. After cross-examination, Trial
Counsel elected to forgo any redirect examination. Trial Counsel
also did not ever renew or re-file any competency petition based
on events that occurred during trial.
¶12 	At 	the 	conclusion 	of 	the 	evidence, 	the 	jury 	found
Defendant guilty on all charges. Defendant appeals.
ISSUE AND STANDARD OF REVIEW
¶13 	Defendant raises a single issue on appeal: whether Trial
Counsel was constitutionally ineffective for failing to bring a
competency petition based on Defendant’s actions during trial.
An ineffective assistance of counsel claim raised for the first time
on appeal presents a question of law. State v. Clark, 2004 UT 25,
¶ 6, 89 P.3d 162. To prevail on an ineffective assistance of
counsel claim, Defendant “must show: (1) that [Trial Counsel’s]
performance 	was objectively 	deficient, 	and 	(2) 	a 	reasonable

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probability exists that but for the deficient conduct [D]efendant
would have obtained a more favorable outcome at trial.” See id.
ANALYSIS
¶14 	Defendant 	contends 	that 	Trial 	Counsel 	was
constitutionally ineffective for failing to bring a competency
petition during trial. Defendant bases this contention partially on
information that is not in the record, but which he seeks to admit
through a motion to remand. Under rule 23B of the Utah Rules
of Appellate Procedure, Defendant may seek to remand the case
to the trial court “for entry of findings of fact[] necessary for the
appellate 	court’s 	determination 	of 	a 	claim 	of 	ineffective
assistance of counsel.” Utah R. App. P. 23B(a). A rule 23B motion
must “(1) contain a nonspeculative allegation of facts that (2) do
not fully appear in the record, which, if true, (3) could support a
determination that counsel’s performance was deficient, and (4)
demonstrate that the defendant suffered prejudice as a result.”
State v. Curtis, 2013 UT App 287, ¶ 15, 317 P.3d 968. In addition,
rule 23B motions must “be accompanied by affidavits . . . that
show the claimed deficient performance of the attorney . . . [and]
that show the claimed prejudice suffered by the appellant as a
result of the claimed deficient performance.” Utah R. App. P.
23B(b).
¶15 	In this case, Defendant attempts to meet that burden by
attaching affidavits to his rule 23B motion that assert a number
of facts Defendant wishes to add to the record. First, Defendant
seeks 	to 	add 	that 	he 	was 	diagnosed 	in 	2011 	with 	bipolar
disorder, 	generalized 	anxiety 	disorder, 	and 	polysubstance
dependence. 	Second, 	Defendant 	seeks 	to 	add 	that 	he 	was
prescribed medications to treat those disorders, but that he was
not 	taking 	those 	medications 	at 	the 	time 	of 	trial. 	Third,
Defendant seeks to add Trial Counsel’s affidavit, wherein Trial
Counsel makes several observations, including the following:

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that, at trial, Defendant “completely changed his story multiple
times,” and that Defendant’s testimony “was not consistent
with” what he had previously told Trial Counsel or police; that
Defendant did not seem to “remember anything” Trial Counsel
had reviewed with him prior to trial; that Defendant “almost
appeared to be confused” and was “noticeably agitated” as his
testimony progressed; and that after testifying Defendant was
“extremely angry” with Trial Counsel. Fourth, Defendant wishes
to 	add 	to 	the 	record 	an 	assertion 	that, 	during 	trial, 	he
“experienced 	overwhelming 	anxiety,” 	was 	“shaking,” 	had
suicidal thoughts, and heard a voice in his head telling him
“don’t trust your attorney.”
¶16 	Defendant maintains that these facts, if added to the
record, 	would 	demonstrate 	that 	Trial 	Counsel 	rendered
constitutionally ineffective representation. We disagree, because
the facts he seeks to add, even if true, would not establish either
“(1) 	that 	[Trial 	Counsel’s] 	performance 	was 	objectively
deficient,” or “(2) [that] a reasonable probability exists that but
for the deficient conduct,” Defendant would have been found
incompetent and thereby “obtained a more favorable outcome at
trial.” Clark, 2004 UT 25, ¶ 6.
¶17 	First, even considering all of the facts Defendant asks us
to consider—the facts already in the record combined with the
rule 23B facts Defendant wishes to add to the record—we are not
persuaded 	that 	Trial 	Counsel 	should 	have 	believed 	that
Defendant was incompetent. As an initial matter, some of the
facts Defendant asks us to consider were not known to Trial
Counsel at the time. For instance, Defendant does not claim that
he ever told his attorney that he was hearing voices, or that he
was 	experiencing 	suicidal 	thoughts. 	An 	attorney 	cannot 	be
charged with providing ineffective assistance for failing to bring
a competency petition based on facts he does not know and has
no reason to know. See State v. Lee, 2011 UT App 356, ¶ 7, 264

State v. Biebinger
20160460-CA 	9 	2018 UT App 123
P.3d 239 (noting that counsel cannot be 	expected to file a
competency petition if counsel “had no basis to suspect [the
defendant] was incompetent”).
¶18 	And the facts that were known to Trial Counsel at the time
simply do not amount to obvious signals of incompetency.
Certainly, 	“mere 	distress, 	nervousness, 	or 	emotional 	upset”
during 	a 	court 	proceeding 	“do[] 	not 	establish 	mental
incompetence.” State v. Young, 780 P.2d 1233, 1237 (Utah 1989).
Even “the fact that a person is mentally ill, displays bizarre,
volatile, and irrational behavior, or has a history of mental
illness, does not mean that he or she is incompetent to stand
trial.” Jacobs v. State, 2001 UT 17, ¶ 16, 20 P.3d 382 (quotation
simplified). Instead, a defendant is incompetent to proceed only
if his mental disorder renders him unable “to have a rational and
factual understanding of the proceedings against him or of the
punishment specified for the offense charged,” or “to consult
with his counsel and to participate in the proceedings against
him with a reasonable degree of rational understanding.” Utah
Code Ann. § 77-15-2(1)–(2) (LexisNexis 2017).
¶19 	Trial Counsel was certainly aware, after Defendant had
testified, that Defendant had been an ineffective witness, and
may even have thought that Defendant’s performance on the
stand hurt rather than helped the defense. While testifying,
Defendant was nervous and agitated, spoke in long monologues,
and gave testimony that was inconsistent with his previous
statements to police. But many witnesses, for better or for worse,
act similarly on the witness stand. Defense attorneys cannot
reasonably be expected to file a competency petition every time a
client performs inadequately on the witness stand.
¶20 	Defendant argues that this case is different from the many
cases where a witness performs badly on the witness stand,
because Trial Counsel should have known that Defendant’s first

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attorney 	had 	filed 	a 	competency 	petition 	that 	was 	later
withdrawn 	only 	because 	of 	Defendant’s 	second 	attorney’s
representation that Defendant was competent so long as he took
medication. Defendant asserts that Trial Counsel should have
discovered that Defendant was not taking his medication and
should 	have 	at 	that 	point 	realized 	that 	Defendant’s 	poor
performance on the stand might have been related to mental
health issues.
¶21 	Even 	assuming 	that 	Trial 	Counsel 	should 	have 	been
aware 	of 	the 	previously-filed 	competency 	petition 	and 	the
reasons for its withdrawal, it does not necessarily follow that
Trial Counsel’s knowledge of the petition should have impacted
Trial Counsel’s assessment of Defendant’s mental state at trial.
Competency 	is 	assessed 	contemporaneously, 	at 	a 	present
moment in time, and previous mental health issues are not
necessarily indicative of present incompetency. In fact, as our
supreme court has previously noted, “a prior history of mental
illness” stemming from a diagnosis “some years before” a later
emotional 	episode 	is 	not 	by 	itself 	sufficient 	to 	“raise[] 	a
reasonable 	doubt 	as 	to 	[a] 	defendant’s 	competence” 	if 	the
episode itself does not do so.1 Young, 780 P.2d at 1238; see also
Jacobs, 2001 UT 17, ¶¶ 22–23 (holding that even a defendant’s
diagnosis as “actively psychotic” during pretrial proceedings
coupled with “bizarre behavior” by that same defendant was not
sufficient, on the facts of that case, to mandate that counsel bring
1. Sometimes, an episode that occurs during trial will be severe
enough, by itself, to raise serious doubts about a defendant’s
competency to stand trial. See, e.g., Drope v. Missouri, 420 U.S.
162, 180 (1975) (the defendant attempted to commit suicide
during the pendency of the trial); State v. Wolf, 2014 UT App 18,
¶ 31, 319 P.3d 757 (same). It should go without saying that the
facts 	of 	those 	cases 	are 	much 	more 	serious 	than 	the 	facts
presented here.

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a 	competency 	petition). 	This 	is 	especially 	true 	where 	a
defendant, despite instances of “emotional upset,” manages to
give 	“clear” 	and 	“coherent” 	testimony 	that 	“[presents] 	an
alternative explanation for his . . . activities on the day of the
alleged crime.” Young, 780 P.2d at 1238.
¶22 	That was precisely the situation that confronted Trial
Counsel in this case. While Defendant was certainly visibly
upset during and after his testimony, he nonetheless managed to
coherently describe an alternative explanation for his actions in
running from the police, even though this explanation was
contradictory to prior explanations Defendant had offered. It
does not follow from this conduct that a reasonable attorney
would necessarily have known or suspected that Defendant was
incompetent, even where a prior competency petition had been
filed. Accordingly, Trial Counsel’s performance in failing to file a
competency petition was not objectively deficient. See Lee, 2011
UT App 356, ¶ 7 (noting that failure to file a competency petition
does 	not 	constitute 	objectively 	deficient 	performance 	if 	the
“plausible reason” for failing to file is that counsel has “had no
basis to suspect [the defendant] was incompetent”).
¶23 	Second, 	we 	are 	unpersuaded 	that 	Defendant 	was
prejudiced by Trial Counsel’s conduct, even assuming that Trial
Counsel’s performance could somehow be considered deficient.
Even if Trial Counsel had filed a competency petition during
trial, there is nothing in the record or in Defendant’s rule 23B
motion 	that 	gives 	us 	any 	confidence 	that 	competency
proceedings 	would 	have 	resulted 	in 	a 	determination 	that
Defendant was incompetent to stand trial.
¶24 	As noted, mental illness is not equivalent to incompetency
to stand trial. See Jacobs, 2001 UT 17, ¶ 16 (stating that “fitness to
stand trial is a much narrower concept than moral or social
wellness” (quotation simplified)). Many individuals suffer from

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mental illness, yet are perfectly able “to have a rational and
factual understanding of the proceedings against [them] or of the
punishment specified for the offense charged” or “to consult
with [their] counsel and to participate in the proceedings against
[them] with a reasonable degree of rational understanding.”
Utah Code Ann. § 77-15-2(1)–(2). While Defendant certainly
alleges that he felt confused, paranoid, and anxious during trial,
and 	even 	that 	he 	was 	hearing 	voices, 	Defendant 	does 	not
sufficiently explain how these facts made him incapable of
consulting with his counsel, understanding the charges against
him, or participating in his defense at the time of trial. Indeed,
Defendant did participate in his defense at trial—after consulting
with 	Trial 	Counsel, 	Defendant 	decided 	to 	testify—and 	our
review of the transcript of Defendant’s testimony does not leave
us 	with 	an 	impression 	that 	Defendant 	was 	incapable 	of
understanding the charges against him or even of the particular
questions being posed to him. His answers made logical sense,
even if they were not always consistent with previous testimony
given and even if they were presented in a somewhat scattered
manner.
¶25 	Moreover, 	Defendant 	presents 	no 	evidence—even 	in
connection with his rule 23B motion—that he would have likely
been found incompetent had a petition been filed. Even the
expert witness who provided Defendant a supporting affidavit is
willing to state only that “there is a likelihood that [Defendant]
was troubled by psychological symptoms during trial,” and that
“this is the kind of case that normally is referred for competency
evaluation.” Defendant’s expert stops short of opining that there
is any reasonable likelihood that Defendant would have been
declared incompetent had a full evaluation been ordered. And
based on the facts of this case—previous mental illness, very
poor performance on the witness stand—we are not persuaded
that Defendant has carried his burden of demonstrating that,

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even if Trial Counsel had filed a competency petition during
trial, it would have been likely to have made a difference.
CONCLUSION
¶26 	Trial Counsel was not ineffective for failing to file a
competency petition based on Defendant’s behavior during trial.
Accordingly, we deny Defendant’s rule 23B motion and affirm
his convictions.