STATE OF NEW JERSEY v. DERRICK HARMON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0604-03T40604-03T4

A-5600-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DERRICK HARMON,

Defendant-Appellant.

_____________________________________

 

Argued May 22, 2007 - Decided

Before Judges Skillman, Holston, Jr. and Grall.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 99-09-2872, 99-09-2876 and 99-09-2879 and Union County, Indictment Nos. 00-02-0180, 00-02-0181, 99-10-1467, 99-10-1471, 99-10-1474, 99-01-1476, 99-10-1477, 99-10-1478, 99-10-1479, 99-10-1483 and 99-10-1488.

James K. Smith, Jr., Assistant Deputy Public Defender, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Mr. Smith, of counsel and on the brief).

Leslie-Ann M. Justus, Deputy Attorney General, argued the cause for respondent (Stuart Rabner, Attorney General, attorney; Ms. Justus, of counsel and on the brief).

PER CURIAM

Defendant was indicted in Essex County for eight armed robberies, in violation of N.J.S.A. 2C:15-1, and numerous other lesser related offenses. Defendant also was indicted in Union County for nine armed robberies and numerous other related lesser offenses. Protracted proceedings were conducted to determine defendant's competency to stand trial. Those proceedings eventually resulted in a determination on February 12, 2002 that defendant was competent to stand trial.

Defendant was subsequently tried on one of the armed robbery charges in Essex County and found guilty by a jury. Defendant then entered into a plea bargain with the Essex County Prosecutor under which defendant agreed to plead guilty to six other armed robbery charges in Essex County and the Prosecutor agreed to recommend eighteen-year terms of imprisonment, subject to the 85% parole ineligibility period mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, to be served concurrently with each other and with the sentence for the armed robbery on which he had been found guilty by a jury. On November 22, 2002, defendant was sentenced to concurrent fifteen-year terms of imprisonment, subject to NERA 85% parole ineligibility, for the seven armed robberies he committed in Essex County.

Following imposition of those sentences, defendant entered into a plea bargain with the Union County Prosecutor, under which he agreed to plead guilty to all the armed robberies committed in Union County and the Prosecutor agreed to recommend that defendant be sentenced to seventeen-year terms of imprisonment, subject to 85% NERA parole ineligibility, to be served concurrently with each other but consecutive to the sentences that had been imposed in Essex County. The trial court in Union County sentenced defendant in accordance with this plea agreement to concurrent seventeen-year terms of imprisonment, subject to 85% NERA parole ineligibility, to be served consecutively to the sentences previously imposed in Essex County.

On appeal, defendant argues that all his convictions must be reversed because he was made competent to stand trial only by forcible medication, without the State making the showings required by Sell v. United States, 539 U.S. 166, 179-80, 123 S. Ct. 2174, 2184-85, 156 L. Ed. 2d 197, 211-12 (2003). He also argues that even if he were properly found competent to stand trial on February 12, 2002, the record does not indicate he was still competent at the time of his trial in Essex County or his guilty pleas in Essex and Union Counties. Additionally, defendant argues that he was improperly sentenced to consecutive terms because the Essex County Prosecutor agreed that his sentences for the armed robberies committed in that county would be served concurrently with his sentences for the armed robberies committed in Union County. We reject these arguments and affirm defendant's convictions and sentence for the armed robberies committed in Essex County.

Defendant also argues, and the State concurs, that the sentences imposed upon him for the Union County armed robberies were illegal and must be vacated because he was subject to mandatory minimum twenty-year terms of imprisonment for those offenses and the trial court only imposed seventeen year terms. We agree that the sentences imposed for the Union County robberies were illegal. Therefore, we vacate the pleas and sentences for the Union County armed robberies and remand those cases to the trial court in Union County.

I

Defendant does not claim he was rendered competent because physical force was used to medicate him. Rather, defendant's claim is that he was psychologically coerced to take medication as a result of certain comments the trial court made on the record on July 10, 2001, during a competency hearing. Defendant, who at that time was not taking his medication, was not present at the July 10 hearing because he refused to leave his jail cell. During colloquy with counsel, the trial court stated:

As I understand the State of the law to be, a defendant who is competent to stand trial while medicated, who voluntarily becomes incompetent to stand trial because he withdraws medication, he's deemed to have waived his right to be tried while competent.

However, the court did not rule that defendant would be deemed competent based on such a waiver. Instead, the court decided to return defendant to the Ann Klein Forensic Center to afford the psychologists and doctors there an opportunity to persuade defendant to resume taking medication that would restore him to actual competency. The court indicated it had spoken to a psychologist at the hospital, who expressed optimism that defendant could be persuaded to resume taking his medication and also indicated that defendant could be forcibly medicated if he became violent:

After we concluded our testimony and argument on the record this morning, we went into chambers and I made an attempt to get some information from Trenton Forensic Hospital. I spoke to a psychologist there, Dr. Peter Paul, who indicated to me that based on -- his review of the prior reports of this defendant, . . . he felt they could have persuaded him to take medication on those two times. It's unlikely to get him to take medication. Although he didn't guarantee him to be medicated should he come there, he said it was highly likely that he would be medicated, convince him to be medicated. That certainly if he acted in a certain way, psychotic, violent, then he would forcefully medicate him.

The court also stated that "the powers of persuasion" are greater at the state psychiatric hospital than in the county jail. Accordingly, "in an overabundance of caution[,]" the court agreed to return defendant to the psychiatric hospital in order "to secure defendant's right, if at all possible, to have him tried while competent." The July 31, 2001 order memorializing this ruling stated that "defendant is hereby committed into the custody of the Commissioner of the Department of Human Services to be confined in an appropriate institution where the defendant shall undergo an examination of and consensual treatment for, when professionally determined to be clinically appropriate, his psychiatric condition[.]" (Emphasis added.)

Defendant spent the following seven months at the psychiatric hospital, and the competency hearing was continued on February 12, 2002. Defendant informed the court at that time that he was taking his medication. Although defendant stated that he "still hear[s] voices sometimes" even when taking the medication and asserted that "I don't need the medication anymore[,]" defendant did not assert that he had been forcibly medicated in the psychiatric hospital. Moreover, defendant's counsel did not present any argument that defendant had been rendered competent only because he had been forcibly medicated. At the conclusion of this hearing, the trial court ruled that defendant was competent to stand trial.

There is no need in deciding this appeal to consider whether, or under what circumstances, a defendant could be found to have waived the right to be tried while competent by voluntarily refusing to take medications required to render him competent. There is also no need to consider whether, or under what circumstances, a defendant could be found to have been forcibly medicated based on psychological coercion in the form of a threat by the court to deem him competent if he deliberately refused to take medication.

We have no need to address these issues because there is no evidence defendant resumed taking the medication that restored his competency to stand trial for any reason other than that the medical staff at the psychiatric hospital persuaded him it would be in his own best interests to take the medication. There is no evidence that the trial court's comments about the possibility of defendant being deemed competent to stand trial if he voluntarily refused to take his medication played any part in defendant's decision to resume taking the medication. Indeed, defendant was not in the courtroom when those comments were made on July 10, 2001, and there is no evidence those comments were ever communicated to him. Therefore, there is no factual foundation for defendant's forcible medication claim.

II

Defendant argues that even if he were properly found to be competent on February 12, 2002, the trial courts made no findings concerning his continuing competency at the time of his trial and guilty pleas. However, defendant was represented at the Essex County trial and pleas by the same counsel who had represented him at the competency hearing. Therefore, that counsel was obviously attuned to the issue of defendant's competency to stand trial and undoubtedly would have raised the issue with the court if defendant had been unable to communicate with him regarding his defense at the trial of the case on which he was found guilty by a jury or his understanding of the charges to which he pled guilty and the terms of the plea bargain. See State v. Harris, 181 N.J. 391, 458 (2004) (noting that "because defense attorneys are in a better position than the trial court to question a defendant's competency, the fact that [defense counsel] found no reason to question [defendant's] competency must be given substantial weight . . . ."), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005).

Moreover, defendant's conduct during the trial and when his pleas were taken demonstrates that he understood the proceedings and was still competent. When the trial court questioned defendant regarding his election not to testify, defendant indicated he was oriented as to time and place and understood the court's questions and the decision whether to testify. Defendant also indicated at the October 22, 2002 plea hearing that he was oriented as to time and place in providing a factual basis for his guilty pleas to the numerous other armed robberies with which he had been charged in Essex County. Moreover, when the trial court asked defendant whether any other promises had been made to him regarding his sentence, defendant reminded the court that even though the prosecutor was allowed under the plea agreement to recommend sentences of up to eighteen years, the court had indicated it would impose only fifteen year sentences:

THE COURT: Other than what has been discussed with regard to your sentence, has anyone promised you anything else to get you to plead guilty?

THE DEFENDANT: Yes.

THE COURT: What?

THE DEFENDANT: The 15 years that you promised.

THE COURT: Fifteen years in a conference with the Court. Other than that, with regard to your sentence, has anyone promised you anything else to get you to plead guilty?

THE DEFENDANT: No.

Thereafter, at sentencing defendant requested the trial court impose a lesser term "maybe 12 [years]; 15 is too much . . . ." The court also indicated it had received a letter from defendant pleading for leniency in sentencing.

When defendant pled guilty to the Union County charges, the trial court confirmed with defendant that he had been continuing to take his medication. Moreover, the plea transcript indicates defendant understood the charges to which he was pleading and the terms of the plea agreement and that he was still competent. Defendant had a colloquy with the court as to whether it could sentence him to a lesser term than the prosecutor had recommended:

Q. Did anybody promise you anything not discussed in the plea forms and placed on this court record?

A. Not discussing what?

Q. Not discussed on the court record, things we talked about you and I since you been in court and not written down in the plea form?

A. Well I'm gonna ask [sic] this with that question.

Q. Sure.

A. Anything promised or something. Can the judge promise me a better deal than the prosecutor? I'm just asking.

Q. Can a judge do that?

A. Yeah.

Q. Yeah, but it would have to be included in the plea agreement. Judge would have to sign the plea form.

A. Like a supplement plea form.

Q. It's a supplemental plea form exactly. A judge can do that.

A. Well have I had that done?

Q. Not here you haven't. I don't know what in Essex County you've done, but not here. This is State's offers to you and I said I could live with.

A. Well, can you offer something?

Q. I told you this morning I will not offer you anything. I just told you this afternoon they've already talked to me about this. I told them this is the lowest I will live with in this case.

A. Oh, okay.

Q. Okay?

A. I'm finished.

In addition, defendant indicated at the plea hearing in Union County that he had been medicated at the time of his guilty plea in Essex County:

Q. Now I'm aware of your history in terms of Essex County and what happened with Judge Vasquez and your going down to forensics and all the evaluations that took place. Now I didn't see the reports, but it's my understanding that in fact Judge Vasquez did take the plea from you in Essex County and found that you were competent to proceed. Correct?

A. Yeah, under medication.

Therefore, the transcripts of defendant's trial, guilty pleas and sentencing show he was still competent at that time.

III

Defendant argues that the consecutive sentences imposed upon him for the Union County armed robberies violated his plea agreement with the Essex County Prosecutor that his sentences for the Essex County armed robberies would be concurrent with his sentences for the Union County armed robberies.

Initially, we note that defendant pled guilty and was sentenced for the Union County robberies after he pled guilty and was sentenced for the Essex County robberies. Therefore, any agreement regarding concurrency of sentences he may have made with the Essex County Prosecutor or trial court in Essex County would not have been binding on the Union County Prosecutor or trial court in his subsequent sentencing in Union County. See N.J.S.A. 2C:44-5(d).

In any event, the record does not support defendant's claim that there was any agreement his sentences for the Essex County robberies would run concurrently with his sentences for the Union County robberies. There is no mention of such an agreement in the standard plea form defendant signed in pleading guilty to the Essex County robberies or in the plea transcript. Defendant's argument rests solely on a statement in "the supplemental plea form for NERA cases," which states: "Judge will impose 15 yr sentence and this sentence to run concurrent to sentence to be imposed." Even though defendant did not enter guilty pleas to the Union County robberies until three months after he signed this form, he argues that the "sentence to be imposed" in this statement refers to the sentences that were subsequently imposed in Union County.

It is clear, however, that the "sentence to be imposed" referred to the sentence for the armed robbery an Essex County jury had previously found defendant guilty of committing. The trial of that charge had concluded with a guilty verdict on October 3, 2002, and defendant was awaiting sentencing for that robbery when he pled guilty to the other six Essex County robberies on October 22, 2002. When the trial court took defendant's plea to those robberies, it referred to the "open charges in Union County[,]" without suggesting that the Essex County plea agreement would have any effect on the disposition of those charges, and when the court imposed sentence for the six Essex County robberies to which defendant had pled guilty, it made those sentences concurrent with defendant's sentence for the Essex County robbery he had been found guilty of committing by a jury, in conformity with the terms of the supplemental plea form. The record also indicates that there were discussions between defense counsel and the prosecutor's office concerning a possible global plea agreement that would have disposed of all the charges in both Essex and Union Counties, but that those discussions did not result in any agreement. Therefore, defendant had no reasonable basis for an expectation that his sentences for the Union County armed robberies would be made concurrent with his sentences for the Essex County armed robberies.

IV

Finally, defendant argues that the seventeen year terms imposed for the Union County armed robberies are illegal sentences and must be vacated because those convictions fall under N.J.S.A. 2C:43-6c and N.J.S.A. 2C:44-3d, which mandate a sentence of at least twenty years for a second offender convicted of certain offenses committed while in possession of a firearm, including robbery. The State correctly agrees with this argument. See State v. Franklin, 184 N.J. 516, 529-30 (2005). Therefore, defendant's convictions for the Union County robberies must be vacated and he must be allowed to withdraw his pleas and proceed to trial or renegotiate a new plea agreement for a legal sentence.

Accordingly, defendant's convictions and sentences for the Essex County armed robberies are affirmed. Defendant's convictions for the Union County armed robberies are vacated, and those cases are remanded to the trial court in Union County for further proceedings in conformity with this opinion.

 

The eighth armed robbery charge and all the other charges relating to lesser offenses in Essex County were dismissed.

A-0604-03T4

June 14, 2007

 

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