REILLY, J.
¶ 1. This appeal addresses the burden of proof when the competency of a criminal defendant is raised in a postconviction proceeding. Roddee Daniel, a diagnosed schizophrenic, was sentenced to life in prison. Daniels postconviction counsel questioned Daniels ability to understand his Wis. Stat. § 809.30 (2011-12) appellate rights and also questioned Daniels ability to effectively communicate with counsel. Daniel told the court that he was competent and therefore the State did not present any evidence on Daniels competency. The circuit court scheduled an evidentiary hearing and placed the burden of persuasion upon Daniels counsel to prove Daniels incompetency by clear and convincing evidence.
¶ 2. We conclude that a court may allocate the burden of persuasion to the defendant (or defense counsel) in a postconviction competency proceeding, but must utilize the lower preponderance/greater weight of the evidence burden of proof when doing so. The circuit court erred by imposing the middle clear and convincing evidence standard; we reverse and remand to the circuit court, restoring Daniels Wis. Stat. § 809.30 time limits. Daniels competency, if questioned upon remand, shall be addressed de novo by the court.
Facts
¶ 3. Daniel was charged with being a party to the crime of first-degree intentional homicide and of burglary while armed with a dangerous weapon. Daniels competency was questioned prior to trial, but he was found competent to stand trial. Daniel was convicted of the charged crimes and sentenced to life in prison without extended supervision. Subsequent to sentencing, Daniels postconviction counsel questioned Daniels competency to appeal. The circuit court ordered a competency examination and held an evidentiary hearing.
¶ 4. At the outset of the postconviction competency hearing, the court asked Daniel whether he was competent to make decisions related to his appeal, and Daniel answered, Yeah. Daniels counsel then asked Daniel a number of questions to elicit Daniels understanding of the appeal process. The court denied the States request for a directed verdict on the issue of Daniels competence after Daniels counsel stated that he wished to provide further evidence. The court initially placed the burden on Daniels counsel to prove Daniels incompetence by the preponderance of the evidence.
¶ 5. Daniels counsel called a number of witnesses, including competing experts, whose testimony weighed both for and against Daniels postconviction competency. Following testimony, the court had the parties submit closing arguments in writing. Daniels counsel argued that he had proved Daniels incompetence beyond any reasonable doubt and that the statute established the burden for showing incompetency was by the clear and convincing evidence standard. The State agreed that the standard required of Daniels counsel was the clear and convincing evidence standard. In its oral ruling, the court concluded that Daniel was competent as the defense had not met their burden to prove that he is incompetent by clear and convincing evidence. Daniel appeals.
Standard of Review
¶ 6. Our statutes and case law are silent on the standards and methods for determining the competence of a defendant during a postconviction proceeding. The question presented is a question of law that we review independently of the circuit court. See State ex rel. Vanderbeke v. Endicott, 210 Wis. 2d 502, 506, 563 N.W.2d 883 (1997).
Discussion
¶ 7. A postconviction defendants competency is measured by whether he or she is able to assist counsel and make decisions pertaining to the criminal process with a reasonable degree of rational understanding. State v. Debra A.E., 188 Wis. 2d 111, 126, 523 N.W.2d 727 (1994). In Debra A.E., our supreme court addressed competency in the postconviction setting and held that a circuit court should determine competency whenever it has reason to doubt a criminal defendants competence. Id. at 119. The method of determining competency in the postconviction setting was not at issue in Debra A.E. and therefore little guidance was offered by the court other than that the determination of competency requires an exercise of discretion, which will vary depending on the facts, and that if an evidentiary hearing is held, the court should be guided by [Wis. Stat. §] 971.14(4) . . .to the extent feasible. Debra A.E., 188 Wis. 2d at 131-32.
¶ 8. Wisconsin Stat. § 971.14(4) is not helpful to our facts as § 971.14(4), which governs competency decisions only through the sentencing stage of a criminal trial, see Debra A.E., 188 Wis. 2d at 128 n.14, places the burden of persuasion upon the State regardless of whether the defendant claims to be competent or incompetent. No state statute addresses how to determine a defendants postconviction competency, and Debra A.E. does not address the burden of persuasion to be applied in making the postconviction competency determination.
¶ 9. The unique facts presented here thus raise a question of first impression in this state as to the proper burden of persuasion in a postconviction proceeding when the burden is placed upon the defendant (or defense counsel) to prove the defendants incompetence. Our answer is found in Cooper v. Oklahoma, 517 U.S. 348 (1996), which addressed Oklahomas statutory requirement presuming a defendant to be competent to stand trial unless the defendant proved his or her incompetence by clear and convincing evidence.
¶ 10. Cooper concluded that while it was proper to place the burden of proof upon Cooper, it was improper to impose the clear and convincing standard rather than the lower more likely than not standard. Id. at 366-67, 369. The higher burden of persuasion violated Coopers right to due process under the Fourteenth Amendment as the practice of requiring the defendant to prove incompetence by clear and convincing evidence imposes a significant risk of an erroneous determination that the defendant is competent. Id. at 363. Cooper found no sound basis for allocating to the criminal defendant the large share of the risk accompanying a clear and convincing evidence standard, id. at 366, and that an erroneous determination of competence threatens a fundamental component of our criminal justice system — the basic fairness of the trial itself, id. at 364.
¶ 11. Although Cooper dealt with the test for competence to stand trial rather than competence in a postconviction proceeding, we see no distinction in the difference. The right to direct appeal from a criminal conviction is guaranteed by article I, section 21 of the Wisconsin Constitution. See State v. Perry, 136 Wis. 2d 92, 98, 401 N.W.2d 748 (1987). Wisconsin Stat. § 809.30 codifies that right. Competence during the constitutionally guaranteed direct appeal is equally as important and worthy of protection as is competence to stand trial. See Debra A.E., 188 Wis. 2d at 119, 129-30 (incompetent defendants have right to fair opportunity for postconviction relief). Placing a higher burden of persuasion on the defense to prove the defendants incompetence, whether at trial or upon direct appeal, risks denying constitutional protections to a defendant who is more likely than not (although not clearly and convincingly) incompetent. See id. at 133-36 (outlining protections available for incompetent defendants in postconviction proceedings). We may not impose procedural burdens incompatible with the United States Constitution. State v. Byrge, 2000 WI 101, ¶ 28 n.7, 237 Wis. 2d 197, 614 N.W.2d 477.
¶ 12. In light of our conclusion that the circuit court committed clear error by relying on a mistake of law in determining Daniels competency, the question remains whether the court would have found Daniel competent had it applied the correct legal standard, i.e., whether the error was harmless. A courts use of an unconstitutional burden of proof in such a competency determination cannot be deemed harmless when the facts of the case show that the courts conclusion might have been different under a correct burden of proof. United States ex rel. Bilyew v. Franzen, 686 F.2d 1238, 1246 (7th Cir. 1982). If we are unable to determine from the record whether the error was harmless, we may remand for the circuit court to apply the proper legal standard to the facts of the case. See State v. Klessig, 211 Wis. 2d 194, 213, 564 N.W.2d 716 (1997).
¶ 13. Our supreme court has granted a high level of deference to a circuit courts competency decision, committing the ultimate legal conclusion to the sound discretion of the circuit court. Byrge, 237 Wis. 2d 197, ¶ 45. The reason for this unusually high level of deference is due to the circuit courts superior position to assess witness credibility and demeanor. Id. The State concedes that Daniels competency is a close question. Although there was evidence to support the courts decision, there was also evidence to support the position urged by Daniels counsel, and we cannot conclude that the court would have made the same decision had it applied the correct burden of proof. See Franzen, 686 F.2d at 1246. Therefore, we cannot conclude that the courts use of the clear and convincing standard was harmless.
Conclusion
¶ 14. We remand to the circuit court to apply the correct standard if Daniels competency is still questioned. We reinstate Daniels Wis. Stat. § 809.30 time limits.
By the Court. — Order reversed and cause remanded with directions.
All references to the Wisconsin Statutes are to the 2011-12 version unless otherwise noted.
The record does not include an order on Daniels competency to stand trial; however, neither party disputes that the court determined Daniel was competent following a request by Daniels trial counsel for a competency evaluation and a court-ordered competency evaluation finding Daniel competent to stand trial.
We granted leave to appeal pursuant to Wis. Stat. Rule 809.50(3).
Two scenarios are presented in Wis. Stat. § 971.14(4)(b): where the defendant claims to be incompetent, the State must prove by the greater weight of the credible evidence that the defendant is competent; and where the State believes the defendant is incompetent despite the defendants claim of competency, the State bears the higher (middle) burden of proving by clear and convincing evidence that the defendant is incompetent. The differing burdens of proof at the trial stage serve the twin due process goals of protecting an incompetent defendants right not to be tried while incompetent and the preconviction defendants right to liberty by reducing the risk of committing a competent person. State v. Wanta, 224 Wis. 2d 679, 695, 592 N.W.2d 645 (Ct. App. 1999).
Daniels counsel had already met the burden of production necessary to have the court order a competency examination and schedule an evidentiary hearing on Daniels competence.