State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0780

State of Minnesota,
Respondent,

vs.

Richard Edmund Lee,
Appellant.

Filed May 3, 2021
Reversed and remanded
Cochran, Judge

Chisago County District Court
File No. 13-CR-18-850

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Janet Reiter, Chisago County Attorney, Brian J. Duginske, Lacy E. Schumacher, Assistant
County Attorneys, Center City, Minnesota (for respondent)

Cathryn Middlebrook, Chief Ap pellate Public Defender, Melissa Sheridan, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decide d by Cochran, Presiding Judge; Gaïtas, Judge; and
Peterson, Judge.


 Retired judge of the Minnesota Court of A ppeals, serving by appoi ntment pursuant to
Minn. Const. art. VI, § 10.

2
NONPRECEDENTIAL OPINION
COCHRAN, Judge
Appellant challenges the district court’ s decision that he was competent to be
sentenced. Because the record does not support the district court’s conclusion that the state
proved that appellant was competent, we reverse.
FACTS
In September 2018, the State of Minnes ota charged appellant Richard Edmund Lee
with second-degree assault in violation of Minn. Stat. § 609.222, subd. 1 (2016). In
April 2019, a jury found Lee guilty. Lee does not challenge the jury’s verdict. Instead, he
argues that he was not competent to be sentenced by the district court.
After the verdict, the district court ordered that Lee undergo a mental-health
assessment for purposes of sentencing. The di strict court also allowed Lee to remain on
conditional release. Before the assessment was performed, Lee sustained injuries in a car
accident and had to be hospitalized. During the hospitalization, doc tors found signs of
cognitive impairment. In August 2019, a doctor administered a neuropsychological
evaluation to Lee. That eval uation demonstrated borderline to moderate impairments in
memory, complex attention, and executive function. Later that month, the district court
ordered that Lee undergo a competency exam ination pursuant to Minnesota Rules of
Criminal Procedure 20.01 and 20.02.1

1 Rule 20.01 pertains to whether the defenda nt is competent at th e time of trial or
sentencing. Minn. R. Crim. P. 20.01, subd. 2. Rule 20.02 pertains to whether the defendant
was competent at the time of the offense. Minn. R. Crim. P. 20.02, subd. 8.

3
In October 2019, approxima tely six months after the jury found Lee guilty, a
psychologist conducted the rule 20 examination. As part of the process, the psychologist
reviewed Lee’s recent neurop sychological evaluation, the criminal complaint, police
records, and information from people who knew him. She also interviewed Lee. She
diagnosed Lee with an intellectual disability as well as a neurocognitive disorder associated
with dementia. With regard to the rule 20.01 competency criteria, the psychologist opined
that Lee did “not have the ability to c onsult with a reasonable degree of rational
understanding with defense counsel” and that he did “not have the capacity to understand
the criminal proceedings and participate in the defense.” The psychologist ultimately
opined that Lee was not competent to proceed to sentencing due to his lifelong intellectual
disability as well as his neurocognitive disorder.
The day after the psychologist filed her rule 20 report, the state objected to the
findings in her report and requested a contested hearing. The district court held a contested
competency hearing in November 2019. At the hearing, the state explained that it objected
to the psychologist’s conclusi on that Lee was not competent because “everything in the
competency assessment seems to make clear that Mr. Lee understood what he was charged
with, understood the procedure, but simply had some difficulty communicating with his
attorney.” The state argued that the evaluation supported a conclusion that Lee was
competent.
At the competency hearing, the state called the psychologist who conducted the
rule 20 examination but no other witnesses. The psychologist testified that Lee was able
to remember the offense and relate his version of the events to her. She testified that Lee

4
was able to discuss the roles of various cour t personnel, such as his defense counsel and
the judge, and that he had a basic unders tanding of what happens at a sentencing
proceeding. But she expressed concern that Lee was not able to effectively consult with
his attorney or fully retain information communicated to him by his attorney due to his
cognitive impairments. And when asked about potential probation conditions that could
be imposed as part of his sentence, she test ified that Lee exhibited a basic understanding
of probation and would be able to follow si mple probationary conditions but it would be
“extremely difficult” for Lee to abide by multiple probation conditions.
On cross-examination by Lee’ s counsel, the psychologist explained that Lee suffers
from both dementia and an intellectual disability. She also clarified that his dementia had
progressed to a point that he exhibited defi cits in his short-term memory but not his
long-term memory. She explained that Lee generally understood the court process and the
roles of court personnel because those concepts were engrained in his long-term memory.
But the psychologist testified that Lee’s short-term-memory deficits were likely to impair
his ability to consult with counsel. She explained that because of Lee’s memory deficits,
“[w]hen he meets with defense counsel and defe nse strategy is discussed . . . it’s unlikely
he can retain all of the inform ation from one day to the next.” And, in response to a
question from the district court, the psycho logist opined that “it would be extremely
difficult” for Lee to comprehe nd and participate in a sent encing hearing. She also
expressed that because “he is going to continue to decline,” he would never be competent
to be sentenced.

5
On redirect examination, the state did no t ask the psychologist any questions about
Lee’s ability to consult with counsel. Instead, the state sought to clarify the psychologist’s
testimony regarding sentencing and Lee’s ability to comply with potential probation
conditions. The psychologist te stified that, in her opinion , Lee would have difficulty
understanding a sentence and was likely to ha ve difficulty abiding by it. She also
acknowledged that Lee could understand simp le probation conditions, like a condition to
remain law abiding and a condition prohibiting possession of a firearm. At the conclusion
of the hearing, the district court asked the parties to brief the issue of Lee’s competency.
In its brief, the state argued that the ps ychologist’s testimony established that Lee
was competent to be sentenced because he understood the roles of every major participant
in the court process and understood the maxi mum penalties of his sentence. The state
further argued that because it was only seeking two conditio ns of probation—remaining
law abiding and not possessing firearms—and th e doctor specifically testified that Lee
could understand those conditions, the report and the doctor’s testimony showed that Lee
was competent. But the state did not argue that the psychologist’s report or testimony
demonstrated that Lee was able to rationally consult with his counsel.
Lee’s defense counsel argued that the state had failed to meet its burden of showing
that Lee was competent by a preponderance of the eviden ce because the doctor’s report
concluded that Lee was not competent. Because the st ate had not countered the
psychologist’s report and testim ony concluding that Lee was incompetent—and that he
could not be restored to competence—Lee’s counsel argued that the district court was
required to “issue an order finding [Lee] incompetent.”

6
In December 2019, the district court issued its order finding that Lee was competent
to be sentenced. In its order, the district c ourt noted that, under Minn. R. Crim. P. 20.01,
subd. 2, “[a] defendant is incompetent and must not . . . be sentenced if the defendant due
to mental illness or cognitive impairment lacks ability to: (a) rationally consult with
counsel; or (b) understand the proceedings or pa rticipate in the defense.” In determining
whether Lee was competent to be sentenced, the district court expressly found the
psychologist’s test imony and written report to be cred ible. And, even though the
psychologist opined that Lee was not competent to proceed with sent encing, the district
court concluded that the psychologist’s written report a nd testimony “establishe[d] that
[Lee] at present is co mpetent to proceed.” The district court reached this conclusion
“because [Lee] demonstrated in his examination” with the psychologist that he
understood: 1) the nature of the charge against him; (2) the roles of key court participants;
(3) the court hearings and the tr ial that occurred; (4) that he was convicted and was to be
sentenced; and (5) the range of possible punishments he was facing. The district court also
concluded that “the greater weight of the ev idence establishes” that Lee was able to
rationally consult with counsel, but the cour t did not cite any evidence to support its
conclusion in this regard. Lee now appeals th e district court’s order concluding that he
was competent to proceed to sentencing.
DECISION
The Minnesota Rules of Criminal Proce dure require the suspension of criminal
proceedings, including sentenci ng, where a defendant is not legally competent. “A
defendant is incompetent and must not . . . be sentenced if the defendant due to mental

7
illness or cognitive impairment lacks ability to: (a) rationa lly consult with counsel; or
(b) understand the proceedings or participate in the defense. ” Minn. R. Crim. P. 20.01,
subd. 2 (emphasis added). When the state is the party “asserting that the defendant is
competent, the [s]tate bears the burden of proving competency” by the greater weight of
the evidence. State v. Curtis , 921 N.W.2d 342, 348 (Minn. 2018) (discussing Minn. R.
Crim. P. 20.01, subd. 5). Beca use the rule requires suspension of the proceedings if the
defendant lacks either capacity, the state must prove that th e defendant has the ability to
both “rationally consult with counsel” and “u nderstand the proceedings or participate in
the defense.” Minn. R. Crim. P. 20.01, subd. 2; Curtis, 921 N.W.2d at 348. A defendant
is competent to proceed where he “has sufficient present ability to consult with his lawyer
with a reasonable degree of rational understa nding and has a rational as well as a factual
understanding of the pro ceedings against him.” Bonga v. State , 797 N.W.2d 712, 718
(Minn. 2011) (quotation omitted).
On review of a competency determination, we “independently review the record to
determine if the district court gave proper weight to the evidence produced and if its finding
of competency is adequately supported by the record.” Curtis, 921 N.W.2d at 346
(quotations omitted). In condu cting our review, we bear in mind that the state has the
burden of proof at a competency hearing to show that the defend ant is competent. Id. at
346-48 (citing State v. Ganpat, 732 N.W.2d 232, 238 (Minn. 2007)). “In the absence of
such proof by a preponderance of the evidence, a defendant must be found incompetent
under the plain language of” Minn. R. Crim. P. 20.01, subd. 5. Id. at 348.

8
Lee argues that the eviden ce did not prove that he was competent to be sentenced
because the psychologist concluded that he was not competent under the standard set forth
in rule 20.01. The state co ntends that the evidence supports the district court’s
determination of competency. The state further contends that this court should afford the
district court’s weighing of the evidence gr eat deference. The state’s position fails to
recognize that Curtis requires this court to “independen tly review” the district court’s
competency determination “to de termine if the district cour t gave proper weight to the
evidence produced and if its finding of competency is adequately supported by the record.”
Id. at 346 (quotations omitted). Based on our independent review of the record, we
conclude that the district court’s determ ination of competency was not adequately
supported by the record.
The district court found that the “greater weight of the evidence establishes [Lee] at
present is competent to proceed.” The distri ct court found that the state met its burden
because the psychologist’s te stimony demonstrated that Lee understood the charge, the
roles of court personnel, the hearings that had previously occurred, that he had been
convicted, and the range of possible punishme nts. We agree that the psychologist’s
testimony established that Lee was able to “u nderstand the proceedings or participate in
the defense”—the second part of the rule 20.01 analysis. Minn. R. Crim. P. 20.01,
subd. 2(b). But the psychologist’s testimon y did not establish that Lee was able to
“rationally consult with counsel” as is required by the first part of the rule 20.01 analysis.
Minn. R. Crim. P. 20.01, subd. 2(a).

9
Instead, the psychologist’s testimony and report established th at Lee lacked the
ability to rationally consult with counsel. In her report, the psychologist specifically opined
that Lee did not have the ability to consult with a re asonable degree of rational
understanding with defense counsel. The psychologist emphasized that Lee struggled with
communicating effectively with defense counsel as a result of his intellectual and
neurocognitive impairments. And, at the competency hearing, when asked for her opinion
as to whether Lee could consult with his atto rney, the psychologist replied that given his
cognitive impairments, “consulti ng with his attorney , even up to this point, has been
extremely difficult for him.” With respect to Lee’s prior conversations with counsel, the
psychologist testified that for “many of the conversations that they had, he was not able to
either comprehend or retain th e information that they disc ussed and that continued to
contribute to some of the struggles they had throughout the court process.” The
psychologist testified that it would not be impossible for Lee to communicate with his
attorney, but that he wa s unlikely to be able to “fully retain that information and move
forward.” On cross-examination by Lee’s coun sel, the psychologist explained that Lee’s
deficits in short-term memory would impair his ability to retain information communicated
to him by defense counsel. The psychologist further testified in response to questions by
the district court that Lee would never be competent to be sent enced because of the
progressive nature of his neurocognitive disorder.
In its order, the district court expressly found the psychologist credible. And, the
district court further found that the psyc hologist concluded in her report that Lee
“struggle[d] with short-term memory, problems with concentration, and organization of his

10
thoughts.” The district court also found that the psychologist concluded that Lee “does not
have the ability to consult with a reasonable degree of rational understanding with defense
counsel.” Yet, the district court went on to conclude that “[t]he greater weight of the
evidence supports that [Lee] has sufficient pr esent ability to rationally consult with his
counsel.” The district court, however, did not specify any evidence that would support this
conclusion. And, based on our independent re view, we conclude that the district court’s
determination regarding Lee’s ability to rationa lly consult with counsel is not adequately
supported by the record.
The state relies on State v. Mills to support its contention that the record is adequate.
562 N.W.2d 276 (Minn. 1997), overruled on other grounds by State v. McCoy ,
682 N.W.2d 153, 160 n.6 (Minn. 2004). In Mills, the defendant was diagnosed with
a “personality disorder not otherwise specifie d with borderline and histrionic features.”
Id. at 282. The court-appointed psychiatrist opined that the defendant “did not have a
thinking disorder and, while she could be dr amatic and disruptive . . . , such behavior
simply demonstrated an unwillingness, rather than an inability, to cooperate with counsel.”
Id. But here, Lee exhibited co gnitive decline and impairment to his short-term memory
instead of a personality disorder. The psychologist’s conclusions here go to Lee’s ability
to communicate with counsel, not his willingness to do so. Mills does not persuade us that
the district court’s determination regarding Lee’s ability to rationally consult with counsel
was adequately supported by the record.
In sum, the district court’s conclusion th at the psychologist’s testimony established
that Lee was competent—despite the psycho logist’s ultimate conclusion that he was

11
incompetent—focuses h eavily on the extent to which the psychologist’s testimony
established that Lee understood the proceedings. But that is only one half of the state’s
burden under Minn. R. Crim. P. 20.01, subd. 2. And the record does not support the district
court’s conclusion that the state proved by the greater weight of the evidence that Lee was
able to rationally consult w ith counsel. Accordingly, we reverse Lee’s sentence for
second-degree assault and remand to the district court with instructions to vacate that
sentence.
Reversed and remanded.