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Buxton v. State (6/19/2015) ap-2457

Buxton v. State (6/19/2015) ap-2457


        The text of this opinion can be corrected before the opinion is published in the  

        Pacific Reporter.  Readers are encouraged to bring typographical or other formal  

        errors to the attention of the Clerk of the Appellate Courts:   

                               303 K Street, Anchorage, Alaska  99501

                                         Fax:  (907) 264-0878

                                 E-mail:  corrections @



                                                             Court of Appeals No. A-11778  

                                Appellant,                  Trial Court No. 1KE-12-762 CR  


                                                                      O P I N I O N  


                                Appellee.                      No. 2457 - June 19, 2015  

                Appeal   from   the   Superior   Court,   First   Judicial   District,  

                Ketchikan, Trevor N. Stephens, Judge.  

                Appearances: Renee McFarland, Assistant Public Defender, and  

                Quinlan Steiner, Public Defender, Anchorage, for the Appellant.  

                Eric  A.  Ringsmuth,  Assistant  Attorney  General,  Office  of  

                Criminal Appeals, Anchorage, and Craig W. Richards, Attorney  

                General, Juneau, for the Appellee.  

                Before:  Mannheimer,  Chief  Judge,  and  Allard  and  Kossler,  


                Judge ALLARD.  

                The  question  before  this  Court   is  whether  a  criminal  appeal  should  be  

stayed if the defendant becomes mentally incompetent during the pendency of the appeal.  

For the reasons explained here, we conclude that the appeal should not be stayed.  

----------------------- Page 2-----------------------

          Factual background and prior proceedings  

                    A jury convicted William Buxton of first-degree murder for the death of his  


aunt at their shared home in Metlakatla.  At sentencing, a psychiatrist who evaluated  


Buxton testified that he had been diagnosed with schizophrenia.  

                    Buxton appealed his conviction to this Court and his case is currently in the  


initial  briefing  stages.           Based  on  her  concerns  that  Buxton  is  no  longer  mentally  


competent, Buxton's attorney has filed a motion to stay his appeal and to remand the case  


to the superior court for a competency determination.  The State opposes any stay of the  


appeal  and  argues  that  a  competency  determination  is  unnecessary  because  it  is  

ultimately the attorney, not the defendant, who makes the final decision regarding which  


issues to brief.1  



                    We conclude that the proper approach to this issue is the one developed in  


the American Bar Association's ABA Criminal Justice Mental Health Standards .   This  


is also the approach followed by the majority of courts that have directly addressed this  


     1    See Coffman v. State,172 P.3d 804, 807-08 (Alaska App. 2007).  

     2    See ABA Criminal Justice Mental Health Standards  7-5.4(b) (1989).  

     3    See  People  v.  Newton ,  394  N.W.2d  463,  466  (Mich.  App.  1986)   (holding  that  a  

defendant's  mental  incompetence   does   not  require  a  stay  of  appeal),  vacated  on  other  

grounds by People v. Newton , 399 N.W.2d  28   (Mich. 1987); see also  Fisher v. State , 845  

P.2d 1272, 1276-77  (Okla. Crim. App. 1992) (same); People v. Kelly , 822 P.2d 285, 413-14  

(Cal. 1992) (same); State v. White, 815 P.2d 869, 878 (Ariz. 1991) (same), abrogated on  

other grounds by State v. Salazar, 844 P.2d 566, 584 (Ariz. 1992); but see Commonwealth  

v. Silo, 364 A.2d 893, 895 (Pa. 1976)   ("[I]t  would be improper for us to proceed with the  

instant  appeal  if  in  fact  appellant  was  not  competent  to  consult  with  counsel  in  its  pre- 

                                                            - 2 -                                                      2457

----------------------- Page 3-----------------------

                     Criminal Justice Mental Health Standard  7-5.4 ("Mental incompetence  

at time of noncapital appeal") addresses the situation we are confronted with here -  

where  a  defendant  who  is  represented  by  counsel  becomes  incompetent  during  the  

pendency of the appeal.  (We express no opinion regarding what standard should apply  



when the defendant is proceeding pro se or when the defendant is incompetent prior to  

the initial filing of the appeal, as those situations are not before us.)  

                    Under  the  ABA  Standard,  if  a  good  faith  doubt  about  the  mental  


competence of a defendant arises during the time of appeal, counsel is advised to "make  



such doubt known to the court and to include it in the record."  

                                                                                                   Mental incompetence,  


in  this  instance,  means  that  a  defendant  "does  not  have  sufficient  present  ability  to  


consult with [his or her] lawyer with a reasonable degree of rational understanding, or  


... does not have a rational as well as factual understanding appropriate to the nature of  

the proceedings."5  

                    However, the mental incompetence  of the defendant does not preclude  


continuation  of  the  appeal  "as  to  matters  deemed  by  counsel  or  by  the  court  to  be  


appropriate."    Instead, the defense counsel is required to proceed with the appeal on  

behalf of the defendant and raise "all issues deemed by counsel to be appropriate."7  

     3    (...continued)  


     4    ABA Criminal Justice Mental Health Standards   7-5.4(b)(i) (1989).  

     5    ABA Criminal Justice Mental Health Standards   7-5.4(a) (1989).  



          ABA Criminal Justice Mental Health Standards   7-5.4(b) (1989).  



          ABA Criminal Justice Mental Health Standards   7-5.4(b)(ii) (1989).  

                                                               - 3 -                                                        2457

----------------------- Page 4-----------------------

                   The accompanying commentary to the ABA standard explains that this  

approach  is  based  on  three  different  assumptions:  First,  that  criminal  defendants  


"generally wish ... to go forward expeditiously" with their appeals presumably because  


their interests are also best served by timely resolution of their appeal, which might  


overturn their conviction or modify  their sentence.8  

                                                                               Second, that although criminal  


defendants must make the decision of whether to appeal, they are otherwise required to  


rely on their counsel's strategic and tactical decisions as to what claims to raise on appeal  


and how those claims should be briefed.                                         

                                                             And, lastly, that a defendant's incompetence  

"rarely  affects  the  fairness  or  accuracy  of  appellate  decisions"  because  defendants  

generally do not actively participate in appellate proceedings.10  


                   The commentary also recognizes, however, that "it is theoretically possible  


that  an  appellant's  mental  incompetence  might  prevent  counsel  from  acquiring  


information or learning of a client's concerns important to a proper disposition of an  


                For these reasons, subsection (c) of Standard  7-5.4 provides that:  

                   Mental  incompetence  of  the  defendant  during  the  time  of  

                   appeal shall be considered adequate cause, upon a showing  


                   of prejudice, to permit the defendant to raise, in a later appeal  

                   or action for postconviction relief, any matter not raised on  



                   the initial appeal because of the defendant's incompetence. 

                   Thus, under this approach, which we adopt here, the direct appeal of a  

defendant suspected of being mentally incompetent moves forward to completion despite  

     8    Commentary to ABA Criminal Justice Mental Health Standards  7-5.4 (1989).  

     9    See  Id.  

     10   Commentary Introduction to              ABA Criminal Justice Mental Health Standards   7-5.4  


     11   Commentary to ABA Criminal Justice Mental Health Standards  7-5.4 (1989).  

     12   ABA Criminal Justice Mental Health Standards  7-5.4(1989)  

                                                           - 4 -                                                      2457

----------------------- Page 5-----------------------

the suspected incompetency.  But if the defendant can later show that he was prejudiced        

by his appeal moving forward despite his mental incompetency, he will be able to obtain             

appropriate relief through subsequent post-conviction proceedings.  

                         We  acknowledge  that  requiring  defense  attorneys  to  proceed  with  the  

criminal appeal of a mentally incompetent defendant can raise ethical concerns for those  




                       We also acknowledge that defendants can contribute to the shaping of their  


attorneys' appellate presentations, and they can sometimes independently identify issues  


that should be raised on appeal.  Moreover, we agree that there is a public interest in  


having defendants participate in the appellate process so that they may be in a position  


to understand the claims made on their behalf, and the appellate court's resolution of  

those claims.  

                         Nevertheless, we conclude that the ABA Standard offers the best approach  


to this problem by ensuring timely resolution of pending appeals while still preserving  

procedural fairness for mentally incompetent defendants.  


                         The  motion  for  a  remand  to  the  superior  court  for  a  competency  

determination and to stay this appeal until the defendant is restored to competency is  



       13    See, e.g., Alaska R. Prof. Conduct 1.4 (duty to communicate with client); see also  

Alaska R. Prof. Conduct 1.14 (duty to client with impaired capacity).  

                                                                             - 5 -                                                                       2457  

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