LAMANCE v. STATE (2004)

The appellant in this revocation case pled nolo contendere to charges of forgery and theft of property on February 12, 2003.   The trial court suspended imposition of sentence conditioned on good behavior, payment of fines, and performance of community service.   The State subsequently filed a petition to revoke, alleging that appellant violated the conditions of her suspension by committing theft of property and using methamphetamine while she was performing her community service.   After a hearing, the trial judge found that appellant had violated the conditions of her suspension, revoked her suspended sentence, and sentenced her to five years' imprisonment.   On appeal, appellant contends that the trial court erred in denying her motion for a mental examination.   We affirm.

On appeal, appellant argues that she was entitled to a mental examination pursuant to Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985).   However, as the Arkansas Supreme Court noted in Pyland v. State, 302 Ark. 444, 790 S.W.2d 178 (1990), Ake does not apply to a proceeding, like the revocation in the case at bar, that is not a part of a criminal trial.   Therefore, the issue before us is not whether appellant made a preliminary showing that her sanity is likely to be a significant issue, as would be the case under Ake, but is instead whether due process requires that a psychiatric evaluation be provided under the circumstances of this particular case.   As the court said in Pyland v. State, supra:

[L]ike the decision of entitlement to counsel, the decision whether to provide psychiatric assistance to one facing a revocation hearing must be on a case by case basis.   While due process must be accorded the respondent, there is no entitlement to the full range of criminal trial safeguards because the court is not dealing with a person who had yet to be convicted of anything.   People v. Atencio, 186 Colo. 76, 525 P.2d 461 (1974).   The full requirement of Ake v. Oklahoma, supra, to the extent it might require providing independent psychiatric help to determine competency at the time of “trial” as well as competency at the time the offense was committed, does not apply to a proceeding that is not a part of a criminal trial.

Id. at 446-47, 790 S.W.2d at 179.

The analysis in Pyland turned on the court's observation that Pyland's “testimony at the hearing was lucid, and nothing which occurred at the hearing contributed to his counsel's assertion that Pyland was unable to cooperate in his own defense.   The opposite appeared to have been the case.”  302 Ark. at 447, 790 S.W.2d at 179-80.   The trial judge in the present case employed virtually the same analysis.   Here, appellant's motion for a mental examination was based on her attorney's assertion that, because a prior mental evaluation revealed that appellant had a low-average IQ of 78, she was unable to understand the proceedings or assist in her own defense.   The trial court denied the motion, noting after the hearing had concluded that appellant had testified quite lucidly, demonstrating by her testimony that she understood the nature of the proceedings and the possible consequences.   On our review of this record, we conclude that appellant's testimony at the hearing contradicts her attorney's assertions that appellant was unable to understand the proceedings or assist in her own defense, and we hold that the trial court did not err in denying her motion for a mental examination.

Affirmed.

JOHN MAUZY PITTMAN, Judge.

CRABTREE and ROAF, JJ., agree.