Richard Eugene Merlak v. The State of Wyoming ( 2021 )

IN THE SUPREME COURT, STATE OF WYOMING
2021 WY 95APRIL TERM, A.D. 2021
August 18, 2021
RICHARD EUGENE MERLAK,
Appellant
(Defendant),
v. S-21-0002
THE STATE OF WYOMING,
Appellee
(Plaintiff).
Appeal from the District Court of Albany County
The Honorable Tori R.A. Kricken, Judge
Representing Appellant:
Office of the State Public Defender: Diane Lozano, State Public Defender; Kirk A.
Morgan, Chief Appellate Counsel; Robin S. Cooper, Senior Assistant Appellate
Counsel.
Representing Appellee:
Bridget Hill, Wyoming Attorney General; Jenny L. Craig, Deputy Attorney General;
Joshua C. Eames, Senior Assistant Attorney General; Timothy P. Zintak, Senior
Assistant Attorney General.
Before FOX, C.J., and DAVIS*, KAUTZ, BOOMGAARDEN, and GRAY, JJ.
* Chief Justice at time of brief-only conference.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne,
Wyoming 82002, of typographical or other formal errors so correction may be made before final
publication in the permanent volume.
KAUTZ, Justice.
[¶1] Richard Eugene Merlak entered an Alford plea to third-degree sexual assault and
was sentenced to 5-8 years in prison. See North Carolina v. Alford, 400 U.S. 25, 91 S.Ct.
160, 27 L.Ed.2d 162 (1970). He raises two arguments on appeal relating to his competency
at sentencing, one procedural and the other substantive. Procedurally, he argues the district
court erred by imposing sentence without first orally finding him competent to proceed.
He also substantively challenges the court’s written finding he was competent to proceed
with sentencing and contends the court should have instead sua sponte suspended the
sentencing hearing and ordered a third competency evaluation. Finding no error, we
affirm.
ISSUES
[¶2] Mr. Merlak raises one issue for our review, which we restate as follows:
1. Did the district court err in imposing sentence without first making an oral
finding Mr. Merlak was competent to proceed?
We also construe his brief as raising a second issue:
2. Did the district court err by making a written finding Mr. Merlak was
competent to proceed with sentencing rather than sua sponte suspending the sentencing
hearing and ordering him to undergo a third competency evaluation?
FACTS
[¶3] MH, a developmentally disabled adult male, reported he had been sexually assaulted
by his neighbor, Mr. Merlak. Specifically, MH claimed Mr. Merlak made him perform
fellatio on Mr. Merlak; Mr. Merlak performed fellatio on him; and Mr. Merlak rubbed
petroleum jelly on MH’s anal area and digitally penetrated his anus. MH was transported
to the hospital, where he was seen by a Sexual Assault Nurse Examiner (SANE nurse).
Later testing of MH’s penile swabs revealed the presence of Mr. Merlak’s DNA.
[¶4] The State charged Mr. Merlak with three counts of first-degree sexual assault in
violation of Wyo. Stat. Ann. § 6-2-302(a)(iv) (LexisNexis 2021) (“Any actor who inflicts
sexual intrusion on a victim commits a sexual assault in the first degree if . . . [t]he actor
knows or reasonably should know that the victim through a mental illness, mental
deficiency or developmental disability is incapable of appraising the nature of the victim’s
conduct.”). After pleading not guilty, Mr. Merlak filed a motion for a competency
evaluation under Wyo. Stat. Ann. § 7-11-303(a) (LexisNexis 2021). The district court
granted the motion, and Mr. Merlak was evaluated by Dr. Amanda Rice at the Wyoming
State Hospital. Dr. Rice found him competent to proceed.
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[¶5] Mr. Merlak objected to Dr. Rice’s “bare bone[s]” competency evaluation, and the
district court granted his request for a second evaluation. Dr. Douglas Scambler and Dr.
Cynthia Hartung of High Plains Psychological Services, LLC, performed the second
evaluation, which included an IQ test. They found Mr. Merlak had an overall IQ score of
65, which was “extremely low” and placed him in the “1st percentile,” meaning he scored
lower than 99% of individuals his age. However, his performance on the CAST*MR, the
assessment tool used to determine competency for individuals with mild to moderate
intellectual disabilities, revealed “he had a relatively strong grasp of basic legal concepts
and the details of his case.” As a result, Dr. Scambler and Dr. Hartung concurred with Dr.
Rice that Mr. Merlak was competent to proceed. Supplied with both evaluations, the
district court held a competency hearing and found Mr. Merlak competent.
[¶6] Several months later, Mr. Merlak notified the court that the parties had entered into
a plea agreement and he wished to change his plea. Under the terms of the plea agreement,
the State agreed to amend the information to a single count of third-degree sexual assault
under § 6-2-304(a)(iii), and Mr. Merlak agreed to enter an Alford plea to that charge,
meaning he would be pleading guilty while simultaneously maintaining his innocence. See
McEwan v. State, 2013 WY 158, ¶ 15 n.4, 314 P.3d 1160, 1165 n.4 (Wyo. 2013) (“[A]n
Alford plea is a guilty plea . . . . It differs from a conventional guilty plea because the
defendant denies his guilt and therefore does not supply a satisfactory basis for the plea,
but instead seeks to obtain the benefit of a plea bargain to avoid a potentially harsher
penalty than he might receive if he goes to trial and is convicted.” (emphasis added) (citing
Alford, 400 U.S. at 31, 91 S.Ct. at 164, and 5 Wayne R. LaFave, et al., Crim. Proc. § 21.4(f)
(3d ed. 2007))); Kurtenbach v. State, 2008 WY 109, ¶ 7, 192 P.3d 973, 976 (Wyo. 2008)
(an Alford plea is “a plea that allows an accused to voluntarily, knowingly, and
understandingly consent to the imposition of a prison sentence even if he is unwilling or
unable to admit his participation in the acts constituting the crime”) (emphasis added)
(citation omitted). The State also agreed to recommend a sentence of time served.
[¶7] At the change of plea hearing, the district court reviewed Mr. Merlak’s
constitutional rights and informed him of the consequences of his plea. Mr. Merlak
indicated he understood. The court also ensured he understood the plea agreement’s terms
and his plea was voluntary. Important here, the court informed Mr. Merlak it was not
bound by the parties’ sentencing agreement and it was free to sentence him to the maximum
term of 15 years in prison for third-degree sexual assault. Wyo. Stat. Ann. § 6-2-306(a)(iii)
(LexisNexis 2021). It warned him he could not withdraw his plea if it imposed a sentence
which deviated from the plea agreement. Mr. Merlak again stated he understood. After
ensuring there was a factual basis for the plea and finding Mr. Merlak competent to plead,
the district court accepted his plea.
[¶8] Several months later, the parties appeared for a sentencing hearing. At the
beginning of the hearing, defense counsel informed the court:
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On his way over, Mr. Merlak tripped and had a bit of a nasty
fall. Hit his head. I let him know for him to stay seated in his
chair. I don’t want him to stand. It’s no disrespect to the Court.
I just think . . . that it’s probably better. He did, however, get
checked out by [Emergency Medical Services] and he does
want to proceed today.
The court agreed he should remain seated and, after swearing him in, asked Mr. Merlak
whether he was under the influence of any drugs or alcohol or suffering from any mental
deficiency which would affect his ability to understand the proceedings. Mr. Merlak
responded, “No.” The court then asked him about his fall:
THE COURT: . . . . I understand that on the way over
to court just a few moments ago, you tripped and hit your head.
I want to check in with you, make sure you feel as though you
are able to proceed with this sentencing hearing today.
Do you feel comfortable proceeding?
[MR. MERLAK]: Yes.
....
THE COURT: . . . . Are you able to understand
everything I’m saying okay?
[MR. MERLAK]: Yes.
THE COURT: Okay.
If at any point in time you start feeling ill or as though
you can’t track what’s going on and need to request that we
stop today’s proceedings, please let me know and we’ll stop
and we’ll have you come back. I don’t want to proceed if there
[are] any concerns about how you’re doing with having hit
your head. Okay, sir?
[Mr. MERLAK]: Okay.
[¶9] The court continued with the sentencing hearing. Consistent with the plea
agreement, the State recommended a sentence of time served (775 days at the time of
sentencing). Defense counsel also requested a sentence of time served. After the attorney’s
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arguments, the court asked Mr. Merlak if he was “doing okay so far?” Mr. Merlak nodded
and, upon request by the court, verbally confirmed his answer. Mr. Merlak declined the
court’s offer to allocute. The court sentenced him to 5-8 years in prison, with credit for
time served. Mr. Merlak appealed.
DISCUSSION
[¶10] Mr. Merlak argues the district court erred by imposing sentence without first finding
he was competent to proceed. He acknowledges, however, the district court made a written
finding in the Judgment & Sentence that he was “alert and competent to proceed with
sentencing.” As a result, we interpret his argument as a procedural challenge to the court’s
failure to make an oral finding of competency at the sentencing hearing. We also construe
Mr. Merlak’s brief as claiming the court substantively erred in making a written finding he
was competent to proceed with sentencing and should have instead sua sponte suspended
the proceedings and directed he undergo a third competency evaluation.
[¶11] “‘A criminal defendant may not be tried unless he is competent, and he may not
waive his right to counsel or plead guilty unless he does so competently and intelligently.’”
Follett v. State, 2006 WY 47, ¶ 8, 132 P.3d 1155, 1158 (Wyo. 2006) (quoting Godinez v.
Moran, 509 U.S. 389, 396, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993)) (other internal
quotation marks omitted). “[A] defendant is competent, under the standards of due process,
if he has ‘sufficient present ability to consult with his lawyer with a reasonable degree of
rational understanding and has a rational as well as factual understanding of the
proceedings against him.’” Id. (quoting Godinez, 509 U.S. at 396, 113 S. Ct. 2680) (other
internal quotation marks omitted). This standard is codified in Wyo. Stat. Ann. § 7-11-
302(a) (LexisNexis 2021), which prohibits a person from being “tried, sentenced or
punished for the commission of an offense while, as a result of mental illness or deficiency,
he lacks the capacity to: (i) [c]omprehend his position; (ii) [u]nderstand the nature and
object of the proceedings against him; (iii) [c]onduct his defense in a rational manner; and
(iv) [c]ooperate with his counsel to the end that any available defense may be interposed.”
“[T]he competency requirement continues from the time of arraignment through
sentencing.” Follett, ¶ 8, 132 P.3d at 1158 (citing Godinez, 509 U.S. at 403, 113 S.Ct.
2680 (Kennedy, J., concurring), and deShazer v. State, 2003 WY 98, ¶ 20, 74 P.3d 1240,
1248 (Wyo. 2003)).
[¶12] In Fletcher v. State, 2010 WY 167, ¶ 13, 245 P.3d 327, 331 (Wyo. 2010), we said,
“‘The determination of whether a defendant is mentally fit to proceed must be made by the
trial court.’” Id. (quoting Follett, ¶ 8, 132 P.3d at 1158, and citing Hayes v. State, 599 P.2d
558, 563 (Wyo. 1979)). Mr. Merlak relies on this statement as support for his argument
that the district court was required to make an oral finding he was competent to proceed
prior to imposing sentence. His reliance is misplaced. The statement originates from our
decision in Hayes. There we outlined the procedure to determine competency:
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When reasonable cause exists to . . . believe [defendant is unfit
to proceed due to a mental illness or deficiency], [§ 7-11-303]
directs the court to order an examination of the accused by a
designated examiner, who must file a written report of his
examination with the clerk of court. The clerk delivers copies
of the report to the prosecuting attorney and to the accused or
his counsel. Within five days thereafter, both the state and the
accused may make a written request for an examination by a
designated examiner of their own choosing. Such examiner
must furnish a copy of the report of his examination to the court
and opposing counsel. The court then makes a determination
and finding on the issue of fitness to proceed (after a hearing if
there is a contest to the examination made by the first
designated examiner, or if the court orders a hearing even if
there is no contest). If the accused is found by the court not to
be fit to proceed due to present mental illness or deficiency,
provision is made for [his] hospitalization . . . . If the court finds
that the accused is fit to proceed, the regular trial procedure
continues.
Hayes, 599 P.2d at 562-63. We concluded:
Thus, the determination as to whether or not the accused is
unfit to proceed due to mental illness or deficiency at the time
of trial is a court determination, not a jury determination. It is
not in the nature of a defense to the charge. It is a threshold
issue, necessary to be resolved to prevent a violation of due
process through conviction of a person incompetent to stand
trial.
Id. (emphasis added) (footnote and citations omitted). The statement that a defendant’s
competency to proceed must be determined by the trial judge simply means competency is
a determination for the court, not the jury.
[¶13] Mr. Merlak cites no other legal authority requiring a court to make an oral
pronouncement at sentencing that the defendant is competent to proceed. Our own research
has revealed nothing in our case law, statutes, or rules imposing such requirement. Indeed,
as the State points out in its brief, W.R.Cr.P. 32(b)(1)(B)(i) requires a “judgment of
conviction upon a plea of guilty or nolo contendere” to include a finding that “[t]he
defendant was competent to enter a plea.” That rule applies to the written judgment of
conviction. However, no similar requirement is included with respect to the written
sentence. Rule 32(c)(2). Here, the written judgment was combined with the sentence and
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contained the appropriate finding. Our rules have no requirements for the contents of an
oral sentence that is later reduced to writing.
[¶14] Finding no procedural error, we now turn to Mr. Merlak’s substantive argument.
He claims the district court erred in finding (in writing) he was competent to proceed with
sentencing and should have instead sua sponte suspended the sentencing hearing and
ordered him to be evaluated a third time. He points to the head injury he suffered
immediately prior to the sentencing hearing as support for his argument the court should
have stopped the sentencing hearing for a third evaluation. Mr. Merlak notes the head
injury resulted in him being seated during the sentencing hearing and medically treated in
the form of stitches after the hearing. He also claims his nods and one-word answers to the
court’s questions, his failure to allocute or provide mitigating evidence, and the court’s
deviation from the expected sentence of time served without explanation show he did not
understand the proceedings.
[¶15] A trial court has a continuing duty to monitor whether a defendant’s competency
should be evaluated, including a duty to act sua sponte when the circumstances warrant.
McLaren v. State, 2017 WY 154, ¶ 35, 407 P.3d 1200, 1208 (Wyo. 2017) (citing Wyo.
Stat. Ann. §§ 7-11-303 and 7-11-304 (LexisNexis 2011)) (other citations omitted).
However, because Mr. Merlak had already been subject to two competency evaluations,
“‘there must be “reasonable cause to believe [he] has a mental illness or deficiency making
him unfit to proceed”’ before other evaluations are mandated[.]” Schaeffer v. State, 2012
WY 9, ¶ 33, 268 P.3d 1045, 1058 (Wyo. 2012) (quoting Follett, ¶ 15, 132 P.3d at 1160 and
§ 7-11-303(a)). “There is no right to a continual succession of competency hearings in the
absence of some new factor, and the Wyoming Rules of Criminal Procedure do not place
a duty on the trial judge to hold hearing after hearing in the absence of some appearance of
change in the defendant’s condition since the ruling on competency was made.” Fletcher,
¶ 29, 245 P.3d at 336 (citation omitted). The parties agree we should review the trial court’s
decision not to order a further competency evaluation under the substantial evidence
standard. Marshall v. State, 2016 WY 119, ¶ 12, 385 P.3d 304, 308 (Wyo. 2016). Based
on our holding in Schaeffer, we look to see whether the court’s decision is “‘fairly
supported by the record of the proceeding at which the [decision was] made.’” Schaeffer,
¶ 32, 268 P.3d at 1058 (citations and internal quotation marks omitted).
[¶16] The district court’s decision finding Mr. Merlak competent to proceed with
sentencing and not ordering a third evaluation is supported by substantial evidence. The
only new information potentially impacting Mr. Merlak’s fitness to proceed between the
second evaluation and the sentencing hearing was the head injury. However, there is no
evidence the head injury gave the court reasonable cause to believe he had developed a
“mental illness or deficiency” rendering him incompetent to proceed with sentencing.
Section 7-11-302(a). Indeed, the record is to the contrary. Defense counsel informed the
court Mr. Merlak had suffered a head injury on the way to the courtroom for the sentencing
hearing but he had been “checked out by [Emergency Medical Services].” The logical
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inference from this statement is Mr. Merlak had been treated and medically cleared to
proceed. Defense counsel also told the court Mr. Merlak wished to proceed with
sentencing, and Mr. Merlak himself confirmed to the court he was comfortable proceeding
despite his injury.
[¶17] During her argument, defense counsel informed the court she “believe[d]” Mr.
Merlak would “probably” be going to the hospital for stitches after the hearing. However,
there is no indication in the record he in fact did so. In any event, a head injury requiring
stitches does not, without more, equate “to a mental illness or deficiency” rendering one
unfit to proceed. There was nothing “more” in this case. Mr. Merlak informed the court
he understood what was being said. Although invited to do so, he never requested the court
stop the proceedings. Nor did he give the court any indication he was having difficulties
comprehending what was occurring.
[¶18] Mr. Merlak’s nods and one-word answers did not provide the district court
reasonable cause to believe he was mentally unfit to proceed with sentencing. There is
nothing unusual about such answers, especially since the questions posed to him were
amenable to a yes or no answer or a nod of the head. Moreover, his one-word answers
were consistent with his answers at the change of plea hearing, which occurred after the
second competency evaluation and prior to the head injury. In other words, his answers
did not amount to a “change in his condition” or “new information” triggering the need for
further evaluation. See McLaren, ¶ 39, 407 P.3d at 1209 (defendant’s odd behavior during
trial did not warrant an additional competency evaluation because it was consistent with
his behavior prior to trial and therefore did not constitute “a change in his condition
sufficient to cause the district court to reasonably believe that Mr. McLaren was unfit to
proceed”); Marshall, ¶ 19, 385 P.3d at 310 (“The report of Mr. Marshall’s original
competency evaluation makes clear that his behavior and statements prior to and during
the [change of plea] hearing in March 2016 were not different or distinct from the behaviors
presented during the initial competency evaluation in October 2015. Because there was no
new information presented that would give ‘reasonable cause to believe that the accused
has a mental illness or deficiency making him unfit to proceed,’ we find substantial
evidence to support the district court’s determination that further inquiry into Mr.
Marshall’s competency was not warranted.”) (citations omitted).
[¶19] Mr. Merlak’s decision not to allocute or provide mitigating information did not
provide the district court reasonable cause to believe he was incompetent. In the context
of criminal sentencing, “allocution” means “‘[a]n unsworn statement from a convicted
defendant to the sentencing judge or jury in which the defendant can ask for mercy, explain
his or her conduct, apologize for the crime, or say anything else in an effort to lessen the
impending sentence.’” Wilson v. State, 2007 WY 55, ¶ 10 n.1, 155 P.3d 1009, 1011 n.1
(Wyo. 2007) (quoting Black’s Law Dictionary 83 (8th ed. 2004)). Asking for mercy,
explaining his conduct, apologizing, or providing mitigating information would have been
inconsistent with Mr. Merlak’s Alford plea, which allowed him to take advantage of the
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plea agreement while maintaining his innocence to the charge. See McEwan, ¶ 15 n.4, 314
P.3d at 1165 n.4; Kurtenbach, ¶ 7, 192 P.3d at 976. There is simply no indication Mr.
Merlak’s decision not to allocute was anything other than strategic. There is certainly no
evidence it was the result of incompetency.
[¶20] Finally, Mr. Merlak claims he “went into the sentencing hearing with some
expectation that he would receive a sentence of time served pursuant to the plea agreement.
When the district court deviated from time served, there is nothing on the record to suggest
[he] understood why the deviation happened.” Mr. Merlak may have hoped for a sentence
of time served. However, at the change of plea hearing, which occurred prior to the head
injury, the court advised him it was not bound by the parties’ sentencing agreement and it
could sentence him up to 15 years in prison. Mr. Merlak stated he understood. At
sentencing, the court detailed the factors to be considered in crafting an appropriate
sentence. It then explained why it could not “in good conscience” accept the parties’
sentencing agreement—the “egregious” nature of the crime, the vulnerability of the victim,
and the need to protect society from Mr. Merlak’s conduct. At that point, there was no
requirement that Mr. Merlak “understand” or agree with the district court’s reasoning. His
statement, after the fact, that he did not “understand” why the district court deviated from
the recommended sentence gave the district court no indication that it should suspend the
proceedings for another evaluation. Contrary to Mr. Merlak’s argument, there is nothing
in the record to suggest he suffered from a mental illness or deficiency affecting his ability
to proceed.
CONCLUSION
[¶21] The district court did not err by failing to make an oral finding Mr. Merlak was
competent to proceed with sentencing. Nor did it err in making a written finding of
competency or by otherwise failing to sua sponte suspend the sentencing hearing and order
a third competency evaluation.
[¶22] Mr. Merlak’s conviction and sentence are affirmed.
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