Court Of Appeal Finds Mentally Ill Defendant Received Ineffective Assistance of Counsel Comments on over-incarceration of mentally ilL
People V. O’Hearn (Cal. Ct. App., Nov. 9, 2020, No. A158676) 2020 WL 6556592, at *1–2
Patrick Sean O’Hearn appealed from the denial of his motion to vacate a guilty plea to charges of making a criminal threat. The Court of Appeal held that O’Hearn received ineffective assistance of counsel in the in his plea bargain and reversed and and remanded with directions for the superior court to conduct a trial on the charges.
The Underlying Offense
On October 19, 2018, the San Rafael Police Department responded to a report of O’Hearn acting erratically in the presence of two elderly women who lived in the same apartment complex as O’Hearn. Officers Lara Gavlick and Anthony Scalercio met with O’Hearn in his apartment. They had been there on numerous occasions in connection with prior complaints of his aberrant conduct. The arresting officers suspected O’Hearn had “mental health issues,” and considered whether he was eligible for commitment under Welfare and Institutions Code section 5150 as a result of a mental disorder, but concluded he did not meet all of the criteria. Officers Gavlick and Scalercio arrested O’Hearn for making criminal threats in violation of Penal Code section 422, and violating conditions of probation granted in an earlier case.
On October 23, 2018, O’Hearn was charged by the Marin County District Attorney with violation of section 422. The complaint further alleged that the offense was a violent and/or serious felony within the meanings of both sections 1192.7, subdivision (c)(38) and 1170.12, subdivisions (a), (b), and (c), and that O’Hearn had been convicted of four prior felonies within the meaning of section 1203, subdivision (e)(4).
On December 3, 2018, represented by private counsel, O’Hearn pled guilty to the making of criminal threats and admitted a probation violation in exchange for which two other probation violations were dismissed with Harvey waivers.
However, the form by which O’Hearn waived his constitutional rights and accepted the plea offer—defined in its caption as a “Disposition Commitment (Cruz/Vargas Waiver)”—was not signed by his attorney , as required by the form waiver. Instead, O’Hearn signed not only on the line on the form designated for the “Defendant” to sign but also, and on the same date, on the line designated for the signature of the “Attorney for Defendant.” The plea form explains that the signature of counsel confirms counsel has “fully advised my client in the above-entitled matter as to his/her rights pursuant to the decisions of the California Supreme Court in People v. Cruz (1988) 44 Cal.3d 1247, 246 Cal.Rptr. 1, 752 P.2d 439 and the California Court of Appeal in People v. Vargas (1990) 223 Cal.App.3d 1107, 273 Cal.Rptr. 48; and People v. Carr (2006) 143 Cal.App.4th 786, 49 Cal.Rptr.3d 548, and to the consequences of the Court finding a willful violation of the terms of this disposition agreement.”
As a circumstance in mitigation of his offense, the presentence report noted that O’Hearn “has been diagnosed with bi-polar disorder and not taking his medication at the time of the instant offense.” This is the earliest indication in the record O’Hearn suffered from a mental illness or disorder
The Motion to Withdraw the Plea
O’Hearn moved to withdraw his plea ineffective assistance of counsel. Specifically, the motion claimed that His lawyer “barely met with his client,” or made a single court appearance before the guilty plea, and then failed to attend the sentencing hearing, and at some point lost the case file. His attorney never explained to O’Hearn what the elements of potential defenses were, did not inquire about his extensive mental health history, did not advise him that the charged crime was a strike, and did not raise with O’Hearn or the prosecution any alternative to pleading guilty as charged.
O’Hearn’s medical record
O’Hearn’s 800-page medical record showed he had been hospitalized for mental health problems at Atascadero and Napa State Hospitals. In 2019, O’Hearn had been admitted to Marin General Hospital, where it was noted that he had a history of schizophrenia and was diagnosed as currently suffering “psychosis and schizoaffective disorder.” O’Hearn had been prescribed numerous antipsychotic and anticonvulsive medications and mood stabilizers.
The Ruling of the Trial Court
The trial court found that the representation that O’Hearn received did not fall below any particular standard of care.
Court of Appeal held O’Hearn was prejudiced by deficient representation
O’Hearn’s lawyer never asserted any strategic reason for failing to learn whether his client’s mental state provided the basis for a possible mental defense. He failed to prevent O’Hearn from entering his guilty plea before Selby understood whether the case was defensible, and failed to negotiate the plea agreement with the prosecution from an informed position, with an awareness of potential mental state defenses. The Court vacated the denial of the motion to withdraw and remanded the case to the superior court for trial.
Incarceration of mentally ill in state prison
O’Hearn’s mental disorder and past conduct strongly suggest that, had he not sought to withdraw his plea, his psychosis and delusions would almost certainly have led him to violate a condition of probation which would probably land him in state prison. The commitment of a mentally ill defendant to state prison is an all too common event in the United States, as shown by evidence that there are 10 times more mentally ill persons in prison or jail in this nation than there are in all of our mental hospitals.
The Court cited statistics that according to the California Department of Corrections and Rehabilitation (CDCR), 32 percent of California’s prison population in 2016 consisted of inmates who were mentally ill. And since the CDCR estimate only includes inmates who have actually received treatment for a “severe mental disorder,” the percentage of mentally ill prisoners is almost certainly greater, though even the lower figure represents an increase of 150 percent since 2000.Imprisonment is anything but conducive to the salutary treatment of mental illness.
The Court noted that these “appalling circumstances are tragic not only for mentally disordered offenders, but as well for our society, to which most of the offenders will at some point be released. Our criminal justice system should not countenance this state of affairs.”
“Nine years ago, the United States Supreme Court found that mentally ill inmates of California prisons received constitutionally inadequate care. (Brown v. Plata (2011) 563 U.S. 493, 131 S.Ct. 1910, 179 L.Ed.2d 969.) Seven years ago, the three-judge federal court that issued the ruling upheld by the Supreme Court in Plata refused to vacate the ruling until the state provides a “durable solution” to the overcrowding that caused the constitutionally inadequate care of mentally disordered prisoners. (Coleman v. Brown (E.D.Cal. 2013) 922 F.Supp.2d 1004, 1045.) Because the state has not produced such a solution, the Plata/Coleman litigation continues to this day.”
The California Legislature has begun to address the problems resulting from the large and growing number of mentally ill persons imprisoned in this state. In 2018, the Governor signed Assembly Bill No. 1810, now embodied in sections 1001.35 and 1001.36 of the Penal Code. This measure was designed to “promote … [¶] [i]ncreased diversion of individuals with mental disorders to mitigate the individuals’ entry and reentry into the criminal justice system while protecting public safety,” “[a]llowing local discretion and flexibility for counties in the development and implementation of diversion for individuals with mental disorders across a continuum of care settings,” and of “[p]roviding diversion that meets the unique mental health treatment and support needs of individuals with mental disorders.” (§ 1001.35, subds. (a), (b), and (c).)
Pretrial diversion of mentally ill offenders will not always be appropriate; but the plight of our prisons, the needs of mentally ill prisoners, and the expectations of our Legislature demand that it receive more serious consideration by defense counsel, prosecutors, probation departments, and sentencing courts than it did in this case, noted the Court.