Is competency an issue at a motion for new trial? Defendant is convicted and sentenced, and appellate counsel files a motion for a competency determination stating that the defendant may be incompetent and cannot assist in the preparation of the motion for new trial. Does the nature of a motion for new trial (evidence discovered since the trial, etc.) negate the need for a competent defendant? There is no issue raised of competency at trial.

On peril of not having done a caselaw search, I would nonetheless point out that competency applies at all stages of the proceedings. And inasmuch as competency is such an ephemeral state which varies from week to week - if not day to day -- then it is entirely possible that such could be an issue at the time of a motion for a new trial.

The evidentiary standard, however, for that quantum of evidence necessary for the court to order a competenecy evaluation remains as in 46B as in Alcott, namely, a "bona fide doubt..." (in the mind of the judge)...

That is not so clear. The law clearly requires a finding of competency BEFORE trial and at a guilty plea. And a hearing must be held if there is ANY evidence of incompetency. And a slightly different standard (bona fide doubt) applies during trial. But it is not so clear that competency is an issue AFTER trial.

To be on the safe side, you could do an evaluation before holding any hearing on the motion. But, the motion can be (1) denied by expiration of the time for hearing such a motion, (2) denied without a hearing or (3) heard (without or without live evidence) and be denied. Given all that, it is not so clear that there is any reason to hold a competency hearing.

Seems like the judge would first want to see whether there is any potential merit to the motion. Most MNT's are just filed to extend the time for filing notice of appeal and to give the court reporter more time to prepare the record.

If the judge determines there is no reason to hear the motion, then competency may not be an issue.

Of course, if the defendant's mental health is in doubt, there are good, independent reasons for making sure he is receiving treatment, but that may be accessible independent of the competency hearing.

Further, the clock is ticking on the motion for new trial. Filing a request for competency hearing doesn't stop that clock. The appellate lawyer risks losing any opportunity to file a motion (no doubt his plan is to raise that issue on appeal, leaving the court in a Catch-22) if he doesn't file at least a bare bones MNT, extending the deadlines on such matters.

The right to move for a new trial is statutory, and the statute prescribes the 75-day deadline for a hearing with no provision for extension. It might be unfair that the defendant is incompetent, but since the motion may or may not involve newly discovered evidence, if it does not, then it would be hard to see where he could be harmed even though incompetent at the hearing. Due process does not involve the right to a new trial (although the courts have said you have the right to counsel). Ch. 46B does not govern this situation. I say that even if an evidentiary hearing is called for, it can be held without regard to competence (although in theory this limits the right to counsel).

And defense counsel is gambling that his client is incompetent. He should be proceeding with a MNT as best as he can and just include a concern regarding incompetency. Any issue that requires outside evidence, if constitutional, could likely be raised in a postconviction writ, anyway.