MURRAH, Chief Judge.
Petitioner Wolcott pleaded guilty to two violations of the Dyer Act in March, 1966, and was - duly sentenced. About eleven months later, he filed a § 2255 motion to set aside the sentence on the ground that he was not mentally competent to waive his constitutional rights and plead guilty. After a full evidentiary hearing, Judge Brown, the sentencing judge, found that Wolcott was mentally competent to plead guilty and denied relief. On this appeal Wolcott asserts that the trial court was aware of facts at plea and sentencing to sufficiently demonstrate the likelihood of his mental incompetence to waive his constitutional rights and plead guilty, thus requiring the court to exercise its protective duty to make further inquiry as to his mental competency; that the court improperly discharged this protective duty by relying upon personal observations, Wolcott’s answers to formal questions, and written reports instead of conducting a due process hearing; that the trial court did not cure the error by conducting a post-sentence hearing and retrospectively determining that Wolcott was competent at the time of plea and sentencing; and that the only appropriate remedy at this stage is to vacate the sentence and re-arraign the Petitioner.
We are all indeed aware of the sentencing judge’s inescapable duty to make appropriate inquiry concerning the mental responsibility of an accused for the offense charged and the mental competency to waive and plead or to stand trial on the charges against him. If the defendant’s mental responsibility for the offense is in any way put in issue, the judge must determine whether the legal presumption of criminal responsibility has been dissipated. If so, criminal responsibility becomes an essential element of the offense to be proved beyond a reasonable doubt. See Fitts v. United States, 284 F.2d 108 (10th Cir. 1960); Phillips v. United States, 311 F.2d 204 (10th Cir. 1962); Davis v. United States, 364 F.2d 572 (10th Cir. 1966). And the test for criminal responsibility in this Circuit is laid down in Wion v. United States, 325 F.2d 420 (10th Cir. 1963). See also United States v. Currens, 290 F.2d 751 (3rd Cir. 1961); Feguer v. United States, 302 F.2d 214 (8th Cir. 1962); United States v. Freeman, 357 F.2d 606 (2nd Cir. 1966) ; Pope v. United States, 372 F.2d 710 (8th Cir. 1967); United States v. Shapiro, 383 F.2d 680 (7th Cir. 1967); United States v. Chandler, 393 F.2d 920 (4th Cir. 1968).
But the threshhold issue in any case is whether an accused is mentally competent to waive his constitutional .rights and plead to the charge or stand trial, i. e., competent to understand the nature of the proceedings against him and to rationally consult with his lawyer to prepare his defense. See Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed. 824 (1960). We have always recognized the protective duty of the court to investigate as long and thoroughly as the circumstances of the case reasonably demand. The fact that an accused, informed of his rights, formally expresses a desire to waive them does not automatically end the responsibility of the
court. See Snell v. United States, 174 F.2d 580 (10th Cir. 1949); Cherrie v. United States, 179 F.2d 94 (10th Cir. 1949); following Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309; Miles v. United States, 385 F.2d 541 (10th Cir. 1967). But we have not always agreed whether in a given case the judge has adequately discharged his plain duty. See Ruebush v. United States, 206 F.2d 810 (10th Cir. 1953). It is this seeming contrariety which prompted us to reexamine en banc the case law in light of § 4244 and apply it to the facts of our case.
The latest word on the scope of the court’s duty to hear and decide mental competency to w'aive and plead or stand trial is Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836 (1966). That case reaffirmed the test of competency as reiterated in Dusky, supra, and further articulated the standards by which a sentencing judge shall be guided in the discharge of his highly sensitive presentence responsibilities. It is there said that if any information coming to the attention of the court raises a “bona fide doubt” of the defendant’s competency to waive his constitutional rights and plead or to stand trial, it then becomes the inescapable duty of the court to conduct a due process hearing to determine mental competency and to make appropriate findings thereon.
The decision is for the court and both expert and lay testimony may be competent.
The test of mental competency to waive and plead or to stand trial is “by no means the same test as those which determine criminal responsibility at the time of the crime.” See Mr. Justice Harlan in Pate v. Robinson, supra at 389, 86 S.Ct. at 844. See also James v. Boles, 339 F.2d 431 (4th Cir. 1964); United States v. Kendrick, 331 F.2d 110 (4th Cir. 1964); Lyles v. United States, 254 F.2d 725 (D.C.Cir. 1957); Feguer v. United States, supra. Indeed, an accused may be competent under Dusky, supra, to waive and plead, yet be ultimately found mentally irresponsible for the offense committed under Wion, supra. Conversely, he may be held mentally incompetent to waive and plead or to stand trial, though he may have been mentally responsible for the offense.
Judged by these precepts our issue is whether the facts developed at plea and sentencing generated a “bona fide doubt” of the defendant’s mental competency, requiring a due process hearing, and if so, whether the defendant has been accorded due process. This determination necessitates a detailed review of the competency evidence brought to the attention of the court and the court’s consideration of it.
When Wolcott appeared to plead, the judge noted that he was without counsel and appointed one.
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MURRAH, Chief Judge.
Petitioner Wolcott pleaded guilty to two violations of the Dyer Act in March, 1966, and was - duly sentenced. About eleven months later, he filed a § 2255 motion to set aside the sentence on the ground that he was not mentally competent to waive his constitutional rights and plead guilty. After a full evidentiary hearing, Judge Brown, the sentencing judge, found that Wolcott was mentally competent to plead guilty and denied relief. On this appeal Wolcott asserts that the trial court was aware of facts at plea and sentencing to sufficiently demonstrate the likelihood of his mental incompetence to waive his constitutional rights and plead guilty, thus requiring the court to exercise its protective duty to make further inquiry as to his mental competency; that the court improperly discharged this protective duty by relying upon personal observations, Wolcott’s answers to formal questions, and written reports instead of conducting a due process hearing; that the trial court did not cure the error by conducting a post-sentence hearing and retrospectively determining that Wolcott was competent at the time of plea and sentencing; and that the only appropriate remedy at this stage is to vacate the sentence and re-arraign the Petitioner.
We are all indeed aware of the sentencing judge’s inescapable duty to make appropriate inquiry concerning the mental responsibility of an accused for the offense charged and the mental competency to waive and plead or to stand trial on the charges against him. If the defendant’s mental responsibility for the offense is in any way put in issue, the judge must determine whether the legal presumption of criminal responsibility has been dissipated. If so, criminal responsibility becomes an essential element of the offense to be proved beyond a reasonable doubt. See Fitts v. United States, 284 F.2d 108 (10th Cir. 1960); Phillips v. United States, 311 F.2d 204 (10th Cir. 1962); Davis v. United States, 364 F.2d 572 (10th Cir. 1966). And the test for criminal responsibility in this Circuit is laid down in Wion v. United States, 325 F.2d 420 (10th Cir. 1963). See also United States v. Currens, 290 F.2d 751 (3rd Cir. 1961); Feguer v. United States, 302 F.2d 214 (8th Cir. 1962); United States v. Freeman, 357 F.2d 606 (2nd Cir. 1966) ; Pope v. United States, 372 F.2d 710 (8th Cir. 1967); United States v. Shapiro, 383 F.2d 680 (7th Cir. 1967); United States v. Chandler, 393 F.2d 920 (4th Cir. 1968).
But the threshhold issue in any case is whether an accused is mentally competent to waive his constitutional .rights and plead to the charge or stand trial, i. e., competent to understand the nature of the proceedings against him and to rationally consult with his lawyer to prepare his defense. See Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed. 824 (1960). We have always recognized the protective duty of the court to investigate as long and thoroughly as the circumstances of the case reasonably demand. The fact that an accused, informed of his rights, formally expresses a desire to waive them does not automatically end the responsibility of the
court. See Snell v. United States, 174 F.2d 580 (10th Cir. 1949); Cherrie v. United States, 179 F.2d 94 (10th Cir. 1949); following Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309; Miles v. United States, 385 F.2d 541 (10th Cir. 1967). But we have not always agreed whether in a given case the judge has adequately discharged his plain duty. See Ruebush v. United States, 206 F.2d 810 (10th Cir. 1953). It is this seeming contrariety which prompted us to reexamine en banc the case law in light of § 4244 and apply it to the facts of our case.
The latest word on the scope of the court’s duty to hear and decide mental competency to w'aive and plead or stand trial is Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836 (1966). That case reaffirmed the test of competency as reiterated in Dusky, supra, and further articulated the standards by which a sentencing judge shall be guided in the discharge of his highly sensitive presentence responsibilities. It is there said that if any information coming to the attention of the court raises a “bona fide doubt” of the defendant’s competency to waive his constitutional rights and plead or to stand trial, it then becomes the inescapable duty of the court to conduct a due process hearing to determine mental competency and to make appropriate findings thereon.
The decision is for the court and both expert and lay testimony may be competent.
The test of mental competency to waive and plead or to stand trial is “by no means the same test as those which determine criminal responsibility at the time of the crime.” See Mr. Justice Harlan in Pate v. Robinson, supra at 389, 86 S.Ct. at 844. See also James v. Boles, 339 F.2d 431 (4th Cir. 1964); United States v. Kendrick, 331 F.2d 110 (4th Cir. 1964); Lyles v. United States, 254 F.2d 725 (D.C.Cir. 1957); Feguer v. United States, supra. Indeed, an accused may be competent under Dusky, supra, to waive and plead, yet be ultimately found mentally irresponsible for the offense committed under Wion, supra. Conversely, he may be held mentally incompetent to waive and plead or to stand trial, though he may have been mentally responsible for the offense.
Judged by these precepts our issue is whether the facts developed at plea and sentencing generated a “bona fide doubt” of the defendant’s mental competency, requiring a due process hearing, and if so, whether the defendant has been accorded due process. This determination necessitates a detailed review of the competency evidence brought to the attention of the court and the court’s consideration of it.
When Wolcott appeared to plead, the judge noted that he was without counsel and appointed one. The judge then explained in great detail the nature of the charges against him and the procedural safeguards available, including his right to a grand jury indictment and trial to a jury with counsel on a plea of not guilty. The judge was also at pains to explain the authorized penalties in the event of a guilty plea. He then recessed court to give Wolcott all the time he needed to consult counsel, saying: “ * * * I would want you to know that I won’t accept a guilty plea from you unless you understand what I have just explained to you. The reason I explain it to you now is so that you can have an opportunity to discuss it with Mr. Carter [appointed counsel] and ask him any questions about it. When you come back, you must feel free to ask me any questions that you don’t understand.” Before recess Wolcott asked the judge if he were to plead guilty, could he be sentenced
that day. The judge replied that he
could
be, but that he doubted very much if he would because time was needed to investigate his background. The judge and Wolcott then carried on an extensive colloquy about a prison matter which Wolcott brought up. Wolcott seemed to be very much aware of all his rights and entirely capable of asserting them.
When court reconvened that day, the judge questioned Wolcott thoroughly to make sure that he understood what he was doing and was voluntarily and intelligently waiving his constitutional rights by pleading guilty.
At one point the judge asked Wolcott if he had ever been incarcerated in a mental institution of any kind. Wolcott replied that he had been incarcerated, for an emotional problem, but that it was four years, ago and that the hospital declared him competent and sane at the time “with nothing wrong whatsoever.” The judge then asked if he made “any claim that he was not entirely competent”, to which he replied in the negative. The judge then observed: “As a matter of fact, it is obvious to the Court that you are perfectly capable of understanding the nature and substance of the charges against you.” The judge then accepted his plea of guilty and ordered a presentence report.
Before Wolcott appeared for sentencing, the presentence report revealed to the judge a long and varied history of mental illness and bad conduct.
Under
the heading of “Mental” the presentence report stated: “The defendant has been hospitalized at Marcy State Hospital, Marcy, New York for mental reasons. He also has been seen by several psychiatrists. All of the reports are in agreement that the defendant is without a mental disorder but is a Psychopathic personality -with asocial trends. He has been treated with drug therapy, occupational therapy, recreational therapy, and psychotherapy, and has made no progress. (T)he defendant has also been hospitalized at Bellview Hospital, New York City, New York for indulgence in drugs. There is no fact to indicate that the defendant is actually a narcotic addict, but he has used barbiturates in all forms and has even smoked cigarettes with glue in them. It is suspected that he has at one time or another engaged in the taking of narcotics.” Wolcott’s formal schooling ended in the ninth grade but two intelligence tests gave him an I.Q. of 118 and 120.
At sentencing, the judge demonstrated that he was familiar with the information contained in the presentence report arid had fully considered Wolcott’s competency to plead:
THE COURT: Under the basis of this psychiatric report you were in a psychiatric ward at Bellevue Hospital in New York. However, these reports seem to indicate that you have no lack of mental capacity with which to make a judgment with respect to your ability to assist in your defense and to know what you are doing.”
THE DEFENDANT: “No sir, Your
Honor. I requested to go to Bellevue, and they sent me. I had acute alopecia. That is why I went there.”
THE COURT: “Tell me what you mean by ‘acute alopecia’.”
THE DEFENDANT: “Well, I had syphilis, really.”
THE COURT: “What?”
THE DEFENDANT: “Syphilis. It was in secondary state and was considered acute alopecia and all my hair was falling out rapidly.”
The judge made further inquiry, again explained the charges, again informed him of his constitutional rights, and asked him several times if there was “any reason why sentence should not now be passed upon you ?”
Finally, at the very
end, Wolcott asked the judge to allow his lawyer to make a statement, whereupon his lawyer addressed the court: “I have talked to him at length about the problem that he has had and the matter he has pled guilty to. And he desires that I make this statement to the Court. He would like to be sentenced under the Youth Correction Act. He would also like to be paroled.
“If the Court finds that he cannot see fit to parole him under the circumstances, then he tells me that he would like for it to be made possible for him to go into the Armed Services.”
******
“Then, the third request, if the others are not granted, that is, the parole or in the service option, he would like for Your Honor to send him to Seagoville, Texas, which he tells me — I do not happen to know this — but he tells me it is a Federal Honor Farm, where the men are put to work right away and minimum security is provided. And that was his request.”
The judge replied that in his judgment Wolcott was “a little too sophisticated for the Youth Correction Act” and then proceeded to sentence him.
When Judge Brown received Wolcott’s § 2255 motion to vacate the sentence on grounds of mental incompetency to plead, he appointed counsel and ordered Wolcott sent to the Medical Center for Federal Prisoners for an examination to determine if Wolcott was mentally competent to participate in the § 2255 proceedings. The examining doctors all found him to be competent and the court so found. The judge then ordered Wolcott to be examined by a local psychiatrist to determine his mental competency to plead in 1966. ''•He found that Wolcott was mentally competent in 1966. A full hearing was then conducted at which the psychiatrist testified. Wolcott’s lawyer cross-examined the psychiatrist who gave the opinion that Wolcott was competent in 1966 and presented testimony of subpoenaed witnesses. And Wolcott testified in his own behalf. In sum, Wolcott was accorded all of his rights and afforded every opportunity to support his § 2255 motion.
In his memorandum pursuant to the hearing, the judge reviewed in detail all the evidence bearing on petitioner’s competency to plead to the charge both at the time of the imposition of sentence and on the § 2255 motion. In retrospect, the judge did not think that the facts developed at the times of plea and sentencing raised a “bona fide doubt” of his competency to waive and plead. He
seemed to think, as indeed he might, that the investigation showed rather conclusively that the petitioner, though psychopathic, was entirely competent to intelligently understand the charges against him and consult with counsel. But he did not stop there. He recognized that observation and examination of a defendant in court for sentencing could not be relied upon alone to determine competency, but he was sure that what took place during the sentencing proceedings was distinctly relevant to the question of competency. Considering the searching examination of the defendant at the time of sentencing and his whole mental history, together with the testimony at the § 2255 hearing, the judge was convinced that on the date of his plea and sentencing, Wolcott “had sufficient capacity to consult with his lawyer with complete rational understanding, and in fact did so, and that he had a rational intellectual and factual understanding of the proceedings against him, the nature of the charges he was facing, and the meaning and consequences of a plea of guilty.”
When all of the evidence bearing upon the petitioner’s competency to plead is considered in its totality, we cannot say that the trial court’s conclusion is clearly erroneous. Surely it cannot be said, as the minority seemed to think in Reubush, supra, that the investigation was not as thorough and searching as the court could make it short of a full-fledged due process hearing. Nor can we say that the testimony bearing on competency at the § 2255 hearing was irrelevant to prove the fact of competency at the time of the sentence. This case is not like Pate, where no formal hearing was conducted before or after sentence to determine mental competency to stand trial, nor is it like Dusky where an improper test of mental competency to stand trial was applied and the final decision in the Supreme Court was deemed too late to retrospectively determine the petitioner’s mental competency at the time of trial.
On the whole record we are satisfied that the Petitioner was accorded full due process on his mental competency to plead guilty and the judgment is affirmed.