State of Louisiana v. Renee Tyler

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

11-1123

STATE OF LOUISIANA

VERSUS

RENEE TYLER

**********
APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, DOCKET NO. 13646-10
HONORABLE ROBERT WYATT, DISTRICT JUDGE
**********

SYLVIA R. COOKS
JUDGE

**********

Court composed of Chief Judge Ulysses Gene Thibodeaux, and Judges Sylvia R.
Cooks and Elizabeth A. Pickett

CONVICTIONS AND SENTENCES NULL AND SET ASIDE, REMANDED
WITH INSTRUCTIONS.

Edward K. Bauman
Louisiana Appellate Project
P.O. Box 1641
Lake Charles, LA 70602
(337) 491-0570
ATTORNEY FOR DEFENDANT/APPELLANT
Renee Tyler

John F. DeRosier
District Attorney
Johnathan Blake, Carla SIegler, Karen C. McLellan
Assistant District Attorneys
1020 Ryan Street
Lake Charles, LA 70601
(337) 437-3400
ATTORNEYS FOR STATE OF LOUISIANA/APPELLEE

Cooks, Judge

PROCEDURAL HISTORY

Renee Tyler (Defendant), was charged by bill of indictment with second

degree murder, a violation of La.R.S. 14:30.1; and obstruction of justice, a

violation of La.R.S. 14:130.1(A)(1). Following a jury trial, Defendant was

convicted of the charged offenses. Defendant was sentenced to life imprisonment

without benefit of parole, probation, or suspension of sentence on the charge of

second degree murder. She was sentenced to serve two years on the charge of

obstruction of justice, this sentence to run concurrently with the previously

imposed sentence. Defendant appeals her convictions.

FACTS

On the night of February 20, 2010, the Lake Charles Police Department

received a call from Defendant reporting that she shot someone. The Defendant

admitted to the officers on the scene that she shot the victim, Elliott Thomas

(Thomas). Thomas was in a relationship with Defendant, and the two were living

together at the time. She told one officer, “I did it. The f----- is not gonna mess

with me anymore.” She further admitted to hiding the gun in an undisclosed

location where it would never be found. Defendant never disclosed the location of

the weapon. Police found Thomas lying on the bedroom floor. He was transported

to a local hospital where he later died as a result of a gunshot wound.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, we review all appeals for

errors patent on the face of the record. After reviewing the record we find one

such error concerning the sentence imposed for second degree murder.

Defendant’s life sentence for second degree murder was not imposed at hard labor

rendering the sentence illegally lenient. However, because we set aside the

convictions as null and remand the case with instructions, this error is rendered

moot.

LAW AND DISCUSSION
Defendant contends the trial court erred in allowing defense counsel to

withdraw the Motion to Appoint Sanity Commission as this was a further step in

the prosecution of the case. We agree. Such action is prohibited by La.Code

Crim.P. art. 642. Once the issue of mental capacity is raised and a sanity

commission appointed, no further steps can be taken until the court determines

Defendant has the mental capacity to proceed. The State suggests that this court

remand the matter to the trial court for a nunc pro tunc hearing to determine

whether an inquiry can be had regarding Defendant’s competency. Should such a

determination not be possible, or in the event the trial court holds a hearing and

determines Defendant was not competent at the time of trial, a new trial should be

ordered. The State further contends the issue of mental capacity to proceed was

not raised by trial counsel but was raised pro forma by the Public Defender’s

Office when that office knew nothing of Defendant or her case. The State argues

that the defense attorney who assumed representation of Defendant should not

have been bound to a motion the evidence did not support and he did not file.

Moreover, the State argues withdrawal of the motion should have been left to the

trial counsel’s discretion. Accordingly, the State contends, in the alternative, that a

nunc pro tunc competency hearing is a waste of judicial resources and is not

legally required.

Although in some cases such a remand for a nunc pro tunc hearing is

possible, we find there is nothing in the record which the trial court could review
2

concerning a determination of Defendant’s competency. A review of the record

discloses that no mental health examinations were performed on Defendant and

there is virtually no evidence of record regarding Defendant’s competency at the

time of trial.

At a March 17, 2010 preliminary examination held under docket number

RC662-10 (second degree murder), the prosecutor informed the court that the case

had not yet been before the grand jury and that he was concerned because the

Public Defender’s Office had requested appointment of a sanity commission on the

obstruction of justice charge. Ted Hartman (Hartman), present as defense counsel

at the preliminary examination, indicated he represented Defendant on both

charges. He previously communicated to the trial court his intention to enroll as

counsel in the case. The trial court relieved the Public Defender’s Office of its

representation at the hearing.

The prosecutor expressed concern that the request for a sanity commission

would stay all proceedings. The court stated that a sanity commission hearing was

set for March 24, 2010. Hartman moved to withdraw the sanity commission

hearing, and the court, after initially expressing some hesitancy, agreed to proceed:

HARTMAN:
Your Honor, at this time I would like to withdraw the sanity
commission hearing and reserve the right to invoke it again, if I feel
necessary in my representation, because I’ve represented her for a
short amount of time.
My concern is I want to be able to preserve her right to have the
preliminary examination and, you know, -- I guess my position is that
I would like to have the preliminary hearing today, if the State’s
prepared to go forward with that today.
THE COURT:
Well, before I even get Mr. Bryant’s position on that, do we
know whether or not Ms. Tyler has been seen by either of the
physicians appointed by this Court?
3

HARTMAN:
I don’t believe --
(Counsel and defendant confers.)
HARTMAN:
No, I didn’t believe that she had been.
THE COURT:
Thinking out loud here, my concern was what if both doctors
had seen her and ultimately it’s determined that there is a problem. I
wonder if we’re going through useless exercises.
BRYANT:
Well, our only concern was that, procedurally speaking, if a
sanity commission is appointed, then it stays all other proceedings. If
he’s withdrawing that request at this time without prejudice, -- which
means I assume he may want to file it again in the future --
HARTMAN:
Correct.
BRYANT:
We can proceed with the preliminary examination, Your Honor.
THE COURT:
Okay.
HARTMAN:
That’s what I’d like to do.
BRYANT:
Okay.
THE COURT:
Okay. Let’s go. So you’re indicating you’re ready to proceed
on the preliminary --
BRYANT:
Yes, Your Honor.
THE COURT:
Okay
The record indicates the Public Defender’s Office filed a Motion to Appoint

Sanity Commission in docket number RC750-10 on the charge of obstruction of

4

justice. An Order Appointing Sanity Commission was signed by the judge on

March 10, 2010, appointing Drs. Anderson and Robertson to serve on the

commission. The contradictory hearing was set for March 24, 2010, but as

discussed above, the “hearing” was withdrawn by defense counsel.

The Louisiana Code of Criminal Procedure Article 642 states (emphasis

added):

The defendant’s mental incapacity to proceed may be raised at
any time by the defense, the district attorney, or the court. When the
question of the defendant’s mental incapacity to proceed is raised,
there shall be no further steps in the criminal prosecution, except
the institution of prosecution, until the defendant is found to have
the mental capacity to proceed.

Louisiana Code of Criminal Procedure Article 643 requires the trial court

order a mental examination of Defendant when it has reasonable ground to doubt

Defendant’s mental capacity to proceed. Louisiana Code of Criminal Procedure

Article 644 requires the court appoint a sanity commission to examine and report

on the mental condition of Defendant within seven days after a mental examination

is ordered. The examination was ordered in the present case, indicating the trial

court found reasonable ground to doubt Defendant’s capacity to proceed. See State

v. Strain, 42,809 (La.App. 2 Cir. 12/5/07), 972 So.2d 1184, and State v. Nomey,

613 So.2d 157 (La.1993). Withdrawal of a motion to appoint a sanity commission

has been found to be a further step in the prosecution which improperly removes

the ultimate decision of competency from the trial court. State v. Carney, 25,518

(La.App. 2 Cir. 10/13/95), 663 So.2d 470, Strain, 972 So.2d 1184, State v. Darnell,

43,048 (La.App. 2 Cir. 8/13/08), 988 So.2d 870. Thus, we find allowing the case

to move forward in the absence of a determination that Defendant had the capacity

to proceed was legal error.

5

Having determined this error of law, we must now decide whether this error

warrants a reversal of Defendant’s convictions and sentences or a remand for a

determination of whether a nunc pro tunc finding of competency remains possible.

In State v. Robinson, 10-924 (La. 12/17/10), 50 So.3d 156, 156-57, the supreme

court held:

GRANTED. The judgment of the court of appeal vacating the
defendant’s conviction, habitual offender adjudication, and sentence is
reversed. The State concedes the trial court failed to determine
whether the defendant was competent to proceed prior to commencing
jury trial; however, the State contends the matter should be remanded
to the trial court for a determination of whether a nunc pro tunc
finding of competency remains possible. We agree. Per State v.
Snyder, 98-1078 (La.4/14/99), 750 So.2d 832, we remand the matter
to the trial court to determine whether a meaningful inquiry can be
had regarding defendant’s competency. If it is found that a
meaningful retrospective competency hearing is possible, we order the
hearing to be conducted and the issue to be determined.

A closer look at the fifth circuit’s summarization of the arguments in

Robinson sheds light on the supreme court’s subsequent ruling:

In the brief filed by counsel, the defendant claims that the
record is deficient concerning the defendant's competency and,
therefore, his conviction and sentence should be set aside and the
matter remanded for further hearings and/or a new trial. The
defendant argues that, while the May 15, 2008 minute entry suggests
that the defendant was found competent to stand trial, the May 15,
2008 transcript does not reflect a clear resolution on the defendant's
competency. The defendant claims that the May 15, 2008 transcript,
that cannot be further supplemented because of an equipment
malfunction, is deficient on the trial court’s determination of the
defendant's competency to stand trial.

In addition, the defendant argues that the May 14, 2008 letter
from Doctors Salcedo and Richoux concerning the defendant’s
competency, which was sent as an exhibit with the supplement to the
appellate record, does not indicate that the letter addressed to the trial
judge at the courthouse was ever received because it is not stamped by
the Clerk’s Office for the Twenty-Fourth Judicial District Court. The
record also does not reflect that the trial judge personally received or
reviewed the May 14, 2008 letter.

The defendant contends that, after the trial judge found that a
bona fide question had been raised regarding the defendant’s
6

competency, certain procedures had to be followed which the trial
judge failed to do. The defendant admits that the record reflects that
two doctors evaluated the defendant and found him competent to
stand trial. However, the defendant argues that there is nothing in the
record to show that the trial judge personally considered the doctors’
evaluation, spoke to the doctors, or adjudicated the issue of the
defendant’s competency. The defendant asserts that the record
reflects that “Barbara Johnson” made the determination of whether the
defendant was competent to stand trial. The defendant argues that the
propriety of the determination that the defendant was competent to
stand is questionable and he is prejudiced because the scarcity of
evidence available in the record leaves the correctness of the finding
beyond the reach of appellate review.

The State claims that there were several hearings conducted
concerning the defendant's competence. The State contends that, in
one of those hearings, defense counsel stipulated that the diagnosis of
the defendant was appropriate and accurate. According to the State,
the index of the supplement to the appellate record contains a May 14,
2008 report from Doctors Salcedo and Richoux indicating the
defendant “was examined and proved to be competent to stand trial.”
Alternatively, the State suggests the case should be remanded to
determine if a nunc pro tunc hearing is possible in order to
retrospectively determine his competence. The State notes that if the
trial court finds that the defendant was competent, no new trial is
required.

In his pro se rebuttal brief, citing State v. Carney, 25,518
(La.App. 2 Cir. 10/13/95), 663 So.2d 470, the defendant suggests that
remand for a nunc pro tunc hearing is absurd. The defendant claims
that upholding his conviction would deprive him of the protective
measures mandated in LSA-C.Cr.P. art 641 et seq. and, thereby,
deprive him of his due process rights to a fair trial. The defendant
argues that the trial court erred in allowing further steps in the
prosecution pursuant to LSA-C.Cr.P. art 642 after he raised the issue
of his mental capacity to proceed. The defendant asserts that the trial
court's doubt of his mental capacity to proceed was shown when the
court granted his motion and appointed a sanity commission to
examine and evaluate him. The defendant contends that his rights to
have his competency to stand trial determined and ruled upon by the
trial court cannot be waived or withdrawn by his defense attorney.
Therefore, the defendant asks this Court to safeguard his due process
rights to a fair trial by vacating his conviction and sentence and
remanding his case for a new trial.

State v. Robinson, 09-371, pp. 4-6 (La.App. 5 Cir. 3/23/10), 39 So.3d 692, 695-96.

7

After discussing pertinent jurisprudence on the matter, the fifth circuit

concluded:

In the present case, we find, based upon the decisions in State v.
Nomey, State v. Perkins, State v. Seals, State v. Strain, supra, that all
proceedings after the appointment of the sanity commission, including
the defendant’s conviction and sentence, should be vacated because
the record does not indicate that the trial judge ruled on the
defendant’s competency to proceed and the facts of this case do not
allow for a retroactive competency hearing. In addition, we find, as
the Louisiana Supreme Court found in State v. Nomey, supra, that this
is the type of situation that LSA-C.Cr.P. art. 642 was designed to
prevent. As the Louisiana Supreme Court found in State v. Nomey,
supra, the fact that the defendant was competent to proceed based on
the report of the sanity commission misses the point because,
regardless of whether a retroactive determination of sanity could be
made, the defendant was deprived of statutory protective procedures
prior to his conviction and, therefore, he was deprived of his due
process rights. State v. Nomey, 613 So.2d at 161. Thus, we vacate
the defendant’s conviction and sentence for simple burglary of a
vehicle, and remand the case to the trial court and order that no further
steps in the prosecution be taken until the defendant is evaluated, a
hearing is conducted, and the trial judge rules on the defendant’s
capacity to proceed.

Robinson, 39 So.3d at 704.
In State v. Snyder, 98-1078, pp. 29-32 (La. 4/14/99), 750 So.2d 832, 854-56

(footnotes omitted), the Louisiana State Supreme Court held:

Having found that the trial court abused its discretion in failing
to investigate defendant’s claims of incompetency, we must now
determine the proper remedy. In the instant situation, we believe a
nunc pro tunc hearing to determine whether defendant was competent
at the time of his trial is appropriate if a meaningful inquiry into
defendant’s competency can still be had.

In State v. Nomey, 613 So.2d 157 (La.1993), defendant was
allowed to plead guilty to first degree murder one day after the
members of a sanity commission conducted their examinations. In a
motion for post-conviction relief, defendant argued the trial court's
failure to conduct a hearing on the issue of his sanity prior to
accepting his guilty plea violated his due process rights. The trial
court denied the request for post-conviction relief, but on appeal the
court of appeal ordered the trial court to conduct an evidentiary
hearing to determine defendant’s capacity to proceed at the time of the
entry of the plea. After the hearing, the trial court held defendant had
the capacity to proceed when the plea was entered. The court of

8

appeal affirmed this determination. This court held the court of
appeal erred in remanding the case for a retroactive sanity hearing
because the trial court's acceptance of the plea without first resolving
the issue of defendant’s competency violated defendant’s due process
rights. The court did, however, note the following:

The present case is distinguishable from a case such as
State v. Bennett, 345 So.2d 1129 (La.1977). In Bennett,
the sanity hearing was held, but the examining physicians
admitted that they could not be certain of their results
without further clinical evaluation of defendant. The trial
judge failed to order additional testing upon defendant’s
request. Defendant was thereafter found guilty as
charged by a jury. On appeal, we remanded for another
sanity hearing following a complete reexamination of the
defendant. Unlike the present case, the defendant in
Bennett did receive a hearing, at which the members of
the sanity commission testified. Further, the defendant in
Bennett alleged he suffered from mental retardation,
which we found to be a more static condition than mental
illness. Hence, under certain limited circumstances, a
retroactive determination of sanity may be permissible.
Likewise, we do not mean to foreclose the possibility of a
nunc pro tunc competency hearing, if a meaningful
inquiry into defendant’s competence can still be had, in
those cases where the trial judge ignores a bona fide
doubt as to defendant’s competence to stand trial, or the
issue of competence is not raised at trial. See Lokos v.
Capps, 625 F.2d 1258 (5th Cir.1980); Zapata v. Estelle,
588 F.2d 1017 (5th Cir.1979). Those cases are not
applicable to the present case, however, since defendant
did raise the issue of competence prior to trial and the
trial judge agreed there was reasonable ground for a
mental examination under La.Code Crim.P. art. 643.

Nomey, 613 So.2d at 162 n. 8. Thus, Nomey does not preclude
the possibility of a nunc pro tunc competency hearing in a case such
as the one sub judice where the trial judge ignored a bona fide doubt
as to defendant’s competence to stand trial.

The federal courts of appeals, although noting that retrospective
competency hearings are not favored, have allowed nunc pro tunc
hearings on the issue of competency if a meaningful inquiry into the
defendant’s competency can still be had. See, e.g., Reynolds v.
Norris, 86 F.3d 796 (8th Cir.1996); Watts v. Singletary, 87 F.3d 1282
(11th Cir.1996); United States v. Renfroe, 825 F.2d 763 (3rd
Cir.1987); Zapata v. Estelle, 588 F.2d 1017 (5th Cir.1979). The trial
court is in the best position to determine whether it can make a
retrospective determination of defendant’s competency during his trial
and sentencing. Renfroe, 825 F.2d at 767. The determination of
whether a trial court can hold a meaningful retrospective competency
9

hearing is necessarily decided on a case-by-case basis. Miller v.
Dugger, 838 F.2d 1530 (11th Cir.1988). The State bears the burden
to show the court that the tools of rational decision are available.
Lokos v. Capps, 625 F.2d 1258 (5 th Cir.1980).

A “meaningful” determination is possible “where the state of
the record, together with such additional evidence as may be relevant
and available, permits an accurate assessment of the defendant’s
condition at the time of the original state proceedings.” Reynolds, 86
F.3d at 802. Additionally, “[w]hen determining whether a meaningful
hearing may be held, we look to the existence of contemporaneous
medical evidence, the recollections of non-experts who had the
opportunity to interact with the defendant during the relevant period,
statements by the defendant in the trial transcript, and the existence of
medical records. The passage of time is not an insurmountable
obstacle if sufficient contemporaneous information is available.”
Reynolds, 86 F.3d at 803 (citations omitted). The court in Miller v.
Dugger, 838 F.2d 1530 (11th Cir.1988) noted that it had never given
the district courts a list of factors that must be met in order to
determine that a nunc pro tunc determination of competency is
possible, but stated that relevant factors include time, availability of
witnesses and the existence of evidence on the state record about the
defendant’s mental state at the time.

Because we believe a nunc pro tunc competency hearing may
be possible to rectify the trial court’s error in failing to make further
inquiry into defendant’s competency prior to trial, we will remand the
case to the trial court for the sole purpose of determining whether such
a hearing is now possible and, if so, to conduct such an evidentiary
hearing. Because of the sparse testimony before the trial court, we
envision the taking of additional testimony and evidence, including
medical testimony relating to defendant’s mental condition during that
time prior to trial when he was allegedly unstabilized on his new
medication and the records of examining physicians made during that
time period, to allow the trial court to determine whether defendant
was competent. See Renfroe, 825 F.2d at 767. If the trial court
concludes defendant was competent, no new trial is required to be
conducted. United States v. Haywood, 155 F.3d 674 (3rd Cir.1998).
If the trial court finds a meaningful inquiry cannot be had, or if it
determines after the hearing that defendant was not competent at the
time of his trial, defendant shall be entitled to a new trial. See United
States v. Mason, 52 F.3d 1286 (4th Cir.1995); Zapata v. Estelle, 588
F.2d 1017 (5th Cir.1979).(Emphasis added)

In State ex rel. Seals v. State, 00-2738 (La. 10/25/02), 831 So.2d 828, the

court appointed a psychiatrist to examine the defendant on motion of defense

counsel. The defendant was never examined, and no determination regarding

competency was made prior to trial. In an application for post-conviction relief,
10

the defendant asserted a due process violation for the trial court’s failure to conduct

a competency hearing. The trial court held a series of hearings on the application

for post-conviction relief, assessing, among other things, whether a meaningful

evaluation of competency could be made under Nomey and Snyder. Testimony of

the defense attorney and psychiatry experts was had which the supreme court

summarized as follows:

Woods reported little recollection of working on the defendant’s case.
Dr. Richoux indicated that he could make a determination nunc pro
tunc, but acknowledged that his brief consultations with defendant did
not allow him to glean the kind of information he would obtain in a
competency assessment. Dr. Richard Richoux conducted brief
interviews of defendant, each lasting between five and fifteen
minutes, while defendant was on prison suicide watch, but never
examined the defendant for the purpose of a competency evaluation.
Dr. Richoux agreed that a competency evaluation was certainly
different from the visits he conducted with the defendant. Without
firsthand knowledge of the defendant’s mental condition, Dr.
Richoux’s testimony drew extensively from his retrospective reading
of defendant's trial testimony. Furthermore, Dr. DePrado concluded
that no retroactive determination was possible given the brevity of the
consultations in 1993 and the lack of other information. The
defendant contends that the state provided only scant evidence and has
failed to meet its burden of proving that there was enough evidence to
make a retroactive determination.

Id. at 831-32.
The trial court determined it could not retroactively determine the

defendant’s competency to stand trial. The supreme court agreed, discussing the

two options, nunc pro tunc hearing or nullification of the conviction and sentence,

as follows:

Nunc Pro Tunc Hearing

In certain instances, a nunc pro tunc hearing on the issue of
competency is appropriate “if a meaningful inquiry into the
defendant’s competency” may still be had. Snyder at 854. In such
cases, the trial court is again vested with the discretion of making this
decision as it “is in the best position” to do so. Id. at 855. This
determination must be decided on a case-by-case basis, under the
guidance of Nomey, Snyder, and their progeny. Id. The state bears the
burden in the nunc pro tunc hearing to provide sufficient evidence for
11

the court to make a rational decision. Id. Thus, we must determine
first if a meaningful retrospective competency hearing can be held in
the instant case or whether the only option to remedy the situation is
nullification.

The allowance of a determination nunc pro tunc in cases such
as these was first recognized in State v. Snyder. In Snyder, the record
gave no basis upon which a reviewing court could determine if the
trial court properly inquired into the defendant’s competence. Factors
which a court may consider to conduct a proper inquiry are known as
the Bennett factors and include:

[W]hether [t]he [defendant] is able to recall and relate
facts pertaining to his actions and whereabouts at certain
times; whether he is able to assist counsel in locating and
examining relevant witnesses; whether he is able to
maintain a consistent defense; whether he is able to listen
to the testimony of witnesses and inform his lawyer of
any distortions or misstatements; whether he has the
ability to make simple decisions in response to well-
explained alternatives; whether, if necessary to defense
strategy, he is capable of testifying in his own defense;
and to what extent, if any, his mental condition is apt to
deteriorate under the stress of trial.

State v. Bennett, 345 So.2d 1129, 1137 (La.1977). This court, in
reviewing the record in Snyder, found no evidence that the trial court
considered any of the Bennett factors after defendant’s competency
was raised. However, in Snyder, there was considerable evidence,
both psychiatric and lay testimony, regarding the defendant's state of
mind. In contrast, there was no affirmative evidence that the trial
judge in the instant case conducted any investigation into defense
allegations other than signing the order for the appointment of a
psychiatrist.

In State v. Franks, 391 So.2d 1133 (La.1980), State v. Berry,
391 So.2d 406 (La.1980), and State v. Hicks, 286 So.2d 331, 333
(La.1973), the trial courts granted the defendants psychiatric
examinations, which fell short of a request for a full-blown sanity
commission, and ruled on the merits of whether a reasonable ground
existed for appointment of a sanity commission. The order in the
instant case was never seen to fruition as in Franks, Berry, and Hicks.

We find the rule of Article 642 is broad enough to encompass
situations in which the trial court may appoint a mental health expert
(such as Franks and Berry) as well as those occasions in which the
court must appoint a sanity commission because reasonable grounds
exist for doubting the defendant’s competency. Having signed the
motion, the court clearly erred as a matter of law under La.Code Crim.
Proc. art. 642 by proceeding to trial without making any assessment of
defendant’s capacity to proceed. Finding that the prosecution of the
12

instant case should have been stayed to properly determine
defendant’s capacity, we now turn to a determination of whether the
exception to nullification applies in this case.

In order for the exception to nullification to be applicable, we
must find that a meaningful retrospective determination of
competence can now be made. The evidence is so scant that the
district court correctly ruled that it could not cure the error by ordering
a nunc pro tunc determination because, in the instant case, we can
only guess from the scant evidence in the record that the trial judge
found a bona fide issue regarding defendant’s Motion for Psychiatric
Evaluation. We agree with the defendant’s argument that a
meaningful determination of defendant’s competence cannot now be
made.

Nullification

Significantly, Nomey and the present case differ in some factual
respects but also raise significantly similar legal issues. In Nomey, the
defense explicitly petitioned to have a sanity commission appointed
under the authority of La.Code Crim. Proc. art. 643, and the trial court
granted the motion, appointing the requisite two doctors to examine
the defendant. As we noted in Nomey, since the trial court ordered the
examination, it must have found reasonable grounds upon which
defendant's mental capacity to proceed was doubted. However, in the
instant case, the trial court did not appoint a sanity commission but
rather ordered an Article 643 preliminary inquiry before reaching the
“reasonable grounds” issue. A trial court’s preliminary inquiry of this
nature does not constitute the unilateral conducting of a sanity hearing
for the purposes of La.Code Crim. Proc. art. 646. State v. Martin, 00-
0489 (La.9/22/00), 769 So.2d 1168, 1169-70 (per curiam). Even
though the present case does not present a situation where a sanity
commission was either explicitly requested or deemed necessary by
the trial court, Nomey applies if a meaningful retrospective
determination of defendant's capacity cannot be made from the record.

The district court on the instant motion for post conviction
relief found insufficient evidence to allow a retroactive competency
hearing. We agree with the district court’s determination that the facts
of the instant case do not allow a retroactive competency hearing.
Accordingly, we affirm the judgment of the district court.

Seals, 831 So.2d at 833-35.
In State v. Juniors, 05-649, p. 14 (La.App. 3 Cir. 12/30/05), 918 So.2d 1137,

1145, writ denied, 06-267 (La. 9/15/06), 936 So.2d 1257, cert. denied, 549 U.S.

1226, 127 S.Ct. 1293 (2007), in considering whether the defendant’s conviction

13

should result in nullification or a nunc pro tunc hearing, this court discussed

Snyder and held:

In the present case, Defendant was examined by the two
members of the sanity commission. Additionally, the record indicates
that Defendant may have been evaluated by other mental health
experts, given defense counsel’s statements at a hearing on July 31,
1998, that an “ex-parte motion for funds for psychiatric experts” had
already been granted, that a forensic social worker that had been
ordered to conduct the investigation was no longer employed by the
clinic being used, and that an order substituting a replacement would
be presented to the court. Thus, there may be information regarding
Defendant’s competency that is available to the trial court that is not
contained in this appellate record. Accordingly, the trial court may be
able to make a retrospective determination regarding Defendant’s
competency at the time of trial.

For these reasons, we remand this case to the trial court for the
sole purpose of determining whether such a hearing is now possible
and, if so, to conduct such an evidentiary hearing. If the trial court
concludes that Defendant was competent, no new trial is required. If
the trial court finds a meaningful inquiry cannot be had, or if it
determines after the hearing that Defendant was not competent at the
time of his trial, Defendant is entitled to a new trial. See Snyder, 750
So.2d 832; Mathews, 809 So.2d 1002.

In the instant case, unlike Juniors, there is nothing in the record for the trial

court to review and make any retroactive determination regarding Defendant’s

mental competency to stand trial. While the language employed in Snyder

indicates the issue of whether a retroactive determination of competency can be

made is best handled by the trial court, the Snyder court stated, “[b]ecause we

believe a nunc pro tunc competency hearing may be possible to rectify the trial

court’s error in failing to make further inquiry into defendant’s competency prior

to trial, we will remand the case to the trial court for the sole purpose of

determining whether such a hearing is now possible and, if so, to conduct such an

evidentiary hearing.” Snyder, 750 So.2d at 855. Thus, the language in Snyder at

least implies that the reviewing court must first determine whether a retroactive

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determination of competency is a possibility before remanding to the trial court to

ultimately decide the issue.1

In the instant case, the trial judge, by granting the motion seeking

appointment of a sanity commission, apparently found there was reasonable

ground for a mental examination of Defendant. Although a sanity commission was

appointed to examine Defendant, the record indicates that she never met with the

appointed doctors. There is virtually no evidence on the record concerning

Defendant’s competency at the time of trial leaving the trial court nothing to

review nunc pro tunc. We therefore find that Defendant’s convictions and

sentences are null, and set aside, and it is ordered that this matter is remanded to

the trial court with instructions to comply with La.Code Crim.P. arts. 641-649.1,

prior to taking any further steps toward prosecution.

CONVICTIONS AND SENTENCES NULL AND SET ASIDE, REMANDED

WITH INSTRUCTIONS.

1
This court addressed a similar issue in State v. Washington, an unpublished writ bearing
docket number 06-459 (La.App. 3 Cir. 7/5/06). After a sanity commission was ordered, defense
counsel requested to vacate the commission; the request was granted by the trial court. The
defendant subsequently entered guilty pleas to various offenses. The record indicated that relator
was never taken to see any of the appointed members of the sanity commission. Additionally,
there was no indication in the materials filed with this court that the record contained any
medical information concerning relator’s mental status which would allow for a determination of
his mental condition at the time of his plea. In that case we held:
WRIT GRANTED AND MADE PEREMPTORY: The trial court was in error
in allowing Relator to withdraw his request for appointment of a sanity
commission prior to determining his mental capacity to proceed. La.Code
Crim.P. art. 641. Accordingly, Relator’s conviction and sentence are null, and set
aside, and it is ordered that this matter is remanded with instructions to comply
with La.Code Crim.P. arts. 641-649.1, prior to taking any further steps toward
prosecution. See State ex rel. Seals v. State, 00-2738 (La. 10/25/02), 831 So.2d
828, writ denied, 520 U.S. 1199, 117 S.Ct. 1558 (1997) and State v. Juniors, 05-
649 (La.App. 3 Cir. 12/30/05), 918 So.2d 1137.

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