Ling v. State , 288 Ga. 299 ( 2010 )

HUNSTEIN, Chief Justice.

After a Spalding County jury convicted her of one count of cruelty to children in the first degree, Annie Ling, whose native language is Mandarin Chinese, filed a motion for new trial, arguing that her trial counsel was ineffective in failing to secure an interpreter for trial and in relying on her husband to help convey the State’s last minute plea agreement offer. The trial court issued an order summarily denying Ling’s motion without explanation, and the Court of Appeals affirmed in Ling v. State, 300 Ga. App. 726 (686 SE2d 356) (2009). We granted certiorari to determine “[w]hether the trial court found as a matter of fact that the defendant spoke and understood English well enough ‘to understand the nature and object of the proceedings against [her], to consult with counsel, and to assist in preparing [her] defense.’ ” Drope v. Missouri, 420 U. S. 162, 171 (95 SC 896, 43 LE2d 103) (1975). Accord Biggs v. State, 281 Ga. 627, 629 (642 SE2d 74) (2007). We also posed the questions of whether Ling, if she does not satisfy the competence standard in Drope, (a) was denied her right to be present at trial by the lack of an interpreter at trial and (b) received ineffective assistance of counsel due to her trial counsel’s failure to secure an interpreter for trial.

For the reasons that follow, we hold that one who cannot communicate effectively in English may be effectively incompetent to proceed in a criminal matter and rendered effectively absent at trial if no interpreter is provided. We also now hold that trial courts must state and explain their findings when an issue concerning the need for an interpreter that implicates foundational due process rights is raised and decided at the motion for new trial stage. Accordingly, we hold that the trial court’s order denying the new trial motion must be vacated and the case remanded to the trial court to apply the standard in Drope and to state its findings on the record. Should the trial court find that Ling did not satisfy the Drope standard at the time of trial, it follows that she was denied her right to be present at trial, and, under the circumstances here, received ineffective assistance from her trial counsel. On remand, the trial court should also explain its disposition of the separate issue of whether Ling received ineffective assistance due to her trial counsel’s failure to adequately convey the State’s last minute plea agreement offer to her.

1. To succeed on an ineffective assistance of counsel claim, a criminal defendant must show that her counsel’s performance was professionally deficient and that, but for such deficient performance, a reasonable probability exists that the outcome of the trial would have been different. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). Ling argued both in the trial court and Court of Appeals that her trial counsel performed deficiently in failing to secure an interpreter for trial and that she was prejudiced as a result because she was effectively absent from her own trial.

We stated unequivocally in Ramos v. Terry, 279 Ga. 889 (622 SE2d 339) (2005), that “[t]he use of qualified interpreters is necessary to preserve meaningful access to the legal system for persons who speak and understand only languages other than English. [Cit.]” Id. at 892 (1). It was to secure the rights of non-English speaking persons that this Court exercised its inherent and constitutional authority to promulgate rules establishing a statewide plan for the use of interpreters in proceedings in Georgia courts. Id. at 891 (1). Both this Court and the Court of Appeals also have expressly acknowledged that failure to provide adequate interpretation services to a defendant in criminal proceedings implicates due process concerns, Puga-Cerantes v. State, 281 Ga. 78 (5) (635 SE2d 118) (2006); Holliday v. State, 263 Ga. App. 664, 668 (588 SE2d 833) (2003), although we have not previously elaborated on those concerns.

A criminal defendant’s “right to be present at all stages of the trial where his absence might frustrate the fairness of the proceedings” is guaranteed by the Sixth Amendment and the due process clause of the Fourteenth Amendment to the United States Constitution. (Citation and punctuation omitted.) Tennessee v. Lane, 541 U. S. 509, 523 (124 SC 1978, 158 LE2d 820) (2004); see also Ga. Const. of 1983, Art. I, Sec. I, Par. I. The due process clause also precludes trial and conviction of an accused while he or she is mentally incompetent. Pate v. Robinson, 383 U. S. 375, 378 (86 SC 836, 15 LE2d 815) (1966); Biggs, supra, 281 Ga. at 629 (3). While Ling did not expressly couch her arguments below in terms of the right not to be tried while incompetent, that issue is interrelated with her right to be present. In Drope, supra, for example, the United States Supreme Court discussed the history of the prohibition against trying mentally incompetent individuals, noting that some have viewed it “as a by-product of the ban against trials in absentia; the mentally incompetent defendant, though physically present in the courtroom, is in reality afforded no opportunity to defend himself.” (Citation omitted.) Id., 420 U. S. at 171. As courts in other jurisdictions have explained in addressing the constitutional concerns raised by failing to provide an interpreter for an accused, “every criminal defendant — if the right to be present is to have meaning — [must] possess sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding.” (Punctuation omitted.) United States ex rel. Negron v. State of New York, 434 F2d 386, 389 (1970), citing Dusky v. United States, 362 U. S. 402 (80 SC 788, 4 LE2d 824) (1960); accord Kansas v. Calderon, 13 P3d 871, 874-875 (Kan. 2000); Giraldo-Rincon v. Dugger, 707 FSupp. 504, 507 (M.D. Fla. 1989). One who is unable to communicate effectively in English and does not receive an interpreter’s assistance is no more competent to proceed than an individual who is incompetent due to mental incapacity. See Gonzalez v. Phillips, 195 FSupp.2d 893, 903 (E.D. Mich. 2001) (“The Court sees little difference between trying a mentally incompetent[ ] defendant and trying a defendant who cannot understand the proceedings against him because he does not understand the language”); Louisiana v. Lopes, 805 So2d 124, 128 (2001) (non-English speaking defendants confront same barriers as those who are mentally incompetent); United States v. Mosquera, 816 FSupp. 168, 173 (E.D. N.Y. 1993) (prohibition against trying incompetent defendants also refers to “those who are hampered by their inability to communicate in the English language”); see also New Hampshire v. Staples, 437 A2d 266, 268 (N.H. 1981) (“Though the defendant in this case was not mentally deficient, his hearing impairment presents us with an analogous and equally serious problem”).

The evidence before the trial court regarding the issues Ling raised concerning her English abilities was conflicting but sufficient to cast doubt on her competency to be tried without an interpreter. Given that our prior cases did not explain in detail that language deficiencies implicate the right to be present at trial and the right not to proceed while incompetent, we cannot conclude that the trial court, in summarily denying Ling’s motion for new trial, necessarily found that she was competent. Rather, this case must be remanded to the trial court to apply the standard in Drope and explain the bases for its ruling on the motion for new trial, as we now require. See Division 2, infra.¹

2. We hold that when a question is raised in a motion for new trial as to whether a criminal defendant’s due process rights have been violated by the absence of a qualified interpreter, the trial court must make and explain its findings on the issue on the record. Remand is therefore warranted given that the trial court denied the new trial motion without explanation.

The rules promulgated by this Court for use of interpreters in court proceedings provide that after a court examines a party or witness on the record to determine whether an interpreter is needed, the court should then “state its conclusion on the record,” Appendix A, Uniform Rule for Interpreters Programs, § I (A), (D). The rules thereby recognize that such a procedure best secures the rights of non-English speakers. The same holds true at the motion for new trial stage. Certainly, a trial judge who has the opportunity to observe the proceedings, the parties, and their counsel deserve an appropriate degree of deference in assessing in the first instance whether an interpreter should be provided or, following a trial, whether the absence of an interpreter raises constitutional concerns. But when an appellate court is left to infer, assume, or surmise the nature of the trial court’s findings, its ability to guard against violations of constitutional rights is compromised.

We also remind the bench that, as a recipient of federal funding, the court system in this State is obligated to provide persons who are “limited English proficient” with meaningful access to the courts in order to comply with Title VI of the Civil Rights Act of 1964, as amended, 42 USC § 2000d et seq., and the Omnibus Crime Control and Safe Streets Act of 1968, as amended, 42 USC § 3789d (c), which prohibit national origin discrimination. Courts’ compliance is subject to review by the Department of Justice. 28 CFR Part 42, Subparts C and D. For this reason as well, vigilance in protecting the rights of non-English speakers is required in all of our courts.

3. Evidence was presented at the motion for new trial hearing that just before trial, trial counsel met with Ling, her husband, and several representatives from the Spalding County Department of Family and Children Services to discuss a plea agreement offer from the State involving a one-year sentence. Trial counsel relied on Ling’s husband to explain the offer to Ling in Chinese. According to trial counsel, the meeting lasted ten minutes before the group was summoned and told they needed to make a decision. Ling’s trial counsel agreed that it was a “stressful, nervous moment.” The record raises questions as to whether Ling’s trial counsel reasonably relied on Ling’s husband to convey the plea agreement offer and whether Ling can show prejudice on the basis that she would have accepted the plea agreement offer had she understood it. While Ling did not testify directly that she would have accepted the offer, her repeated statements that she thought she had to go to trial give rise to at least an inference that she would have preferred accepting the offer. See Lloyd v. State, 258 Ga. 645 (2) (b) (373 SE2d 1) (1988). On remand, the trial court should explain its resolution of Ling’s ineffectiveness claim concerning trial counsel’s alleged failure to convey the State’s final plea agreement offer. Talbot v. State, 261 Ga. App. 12 (2) (c) (581 SE2d 669) (2003) (remanding for further findings when trial court’s findings did not address claim that trial counsel failed to convey plea offer and it was unclear whether trial court addressed matter at all).

For the reasons set forth above, we vacate the Court of Appeals’ opinion with direction that it vacate the trial court’s order denying Ling’s motion for new trial and remand for proceedings consistent with this opinion.

Judgment vacated and case remanded with direction.

Ml the Justices concur; except Carley, P. J, Thompson and Hines, JJ., who dissent.

1 Should the trial court conclude that Ling was incompetent due to deficiencies in her ability to speak or understand English, it would follow that Ling was deprived of her right to be present at trial. In that event, it likewise follows that Ling would prevail on her claim of ineffective assistance of counsel based on her trial counsel’s failure to secure an interpreter for trial. Trial counsel was aware of Ling’s language limitations and explained his failure to secure an interpreter on the basis that he was concerned using an interpreter might cause the jury to grow impatient and did not want to draw too much attention to the fact that she was not a native English speaker given the media attention on immigration laws at the time. It is not professionally reasonable to decide to forego obtaining an interpreter for an otherwise incompetent criminal defendant based on speculative fears of juror bias, especially where, as here, there is no evidence that the defendant participated in or consented to the decision.