State v. Daniel

¶1¶ 15. (concurring). If defense counsel and the defendant agreed regarding competency, the evidentiary hearing should be guided, under State v. Debra A.E., 188 Wis. 2d 111, 128 n.14, 131-32, 523 N.W.2d 727 (1994), by Wis. Stat. § 971.14(4), "to the extent feasible." Under para, (b), the State bears the burden of proof whether the defendant claims to be competent or incompetent. What makes this case different from those scenarios described in para, (b), aside *60from its postconviction timeline, is that defense counsel does not agree with the defendant regarding competency. Thus, as the majority concludes, when the defendant claims to be competent but defense counsel argues that the defendant is incompetent, the burden may be placed on defense counsel, instead of the defendant himself, to prove incompetence by the preponderance of the evidence. This allocation of the burden of production and proof makes sense, because the defendant and the State both maintain the defendant is competent. As the party objecting to the defendant’s position, defense counsel bears the burden of proof. Such an allocation of the burden does not violate the defendant's due process rights. See, e.g., Cooper v. Oklahoma, 517 U.S. 348, 355 (1996) ("[A] State may presume that the defendant is competent and require him to shoulder the burden of proving his incompetence by a preponderance of the evidence.").