Judge advocates for competency evaluations upon arrest in post-conviction appeal

An appellate judge concurring with a one-paragraph opinion in a post-conviction case proposed reordering the way Indiana treats those who are arrested.

“I write only to reiterate that competency evaluations immediately upon arrest are the best way for our criminal justice system to fairly treat those defendants who are mentally ill or deficient,” Judge Paul Mathias wrote Wednesday. “At some point, such immediate competency evaluations will be recognized as an integral part of due process.”

Mathias joined with judges Margret Robb and Rudolph Pyle III to affirm the denial of post-conviction relief in Charles E. Barber v. State of Indiana, 19A-PC-1234.

Barber pleaded guilty in St. Joseph Superior Court to Class C felony child molesting in 1993 and was sentenced to eight years in prison. He petitioned for post-conviction relief in 2017, alleging his defense counsel 24 years earlier, Anthony Luber, was ineffective for failing to request a competency evaluation, and that Barber was denied due process when he pleaded while incompetent.

Because Barber, 36, was illiterate at the time of his plea, Luber read the plea agreement to him in court, and Barber told the court he understood. “The trial court advised Barber of the rights he would be waiving by pleading guilty and Barber confirmed he understood and indicated he wished to proceed with the guilty plea. Luber then questioned Barber about the precipitating incident in order to lay a factual basis.  Barber responded appropriately to questions posed to him during the plea hearing,” Robb wrote.

Luber had testified at Barber’s PC hearing, saying that in his long career as an attorney, he realized there are “two issues dealing with the mental thing. One is whether or not the matter is a defense, and the other is a question about … what the person knows and understands and can comprehend [about] what is going on.”

Dr. James Cates, who examined Barber, generally agreed with Luber on that point. But he told the post-conviction court that Barber had an IQ of 46 in 2018, and in the doctor’s opinion, Barber would not have been competent in 1993.

But the post-conviction court denied Barber’s petition, finding that when Barber pleaded guilty, he “answered negatively that he had a mental condition that would make it difficult for him to understand.  He just couldn’t read or write.”

The PC court also found Luber’s performance did not fall below an objective standard of reasonableness. “There is nothing in the record that would have tipped off Luber there was a problem. This Court cannot hold that Mr. Luber’s performance was deficient.”

The Indiana Court of Appeals affirmed those holdings, finding Barber had not been prejudiced by ineffective assistance of counsel and that the PC court did not clearly err. The panel also rejected the state’s argument that Barber’s claims should be barred under the doctrine of laches.

“Even accepting Dr. Cates’ opinion in 2019 that Barber was not competent twenty-five years earlier, Dr. Cates also stated that although he can generally assess people’s IQ even before receiving test results, he was surprised after meeting Barber that his scores were so low.  If Barber presented to an expert in the field as functioning at a higher level than his scores would indicate, we cannot say that Luber should have been able to recognize his competency might be an issue,” the panel held.

“… Our review of the post-conviction court’s judgment does not leave us with the conviction that a mistake has been made: Barber did not prove by a preponderance of the evidence that his trial counsel was ineffective in failing to request a competency hearing or that he was in fact incompetent at the time he pleaded guilty. We therefore affirm the post-conviction court’s order denying Barber’s petition for post-conviction relief,” the panel concluded.