STATE OF NEW JERSEY v. JASON CLARK,

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0278-08T40278-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JASON CLARK, a/k/a JASON A. CLARK,

Defendant-Appellant.

__________________________________

 

Submitted March 8, 2010 - Decided

Before Judges Yannotti and Chambers.

On Appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-11-1033.

Yvonne Smith Segars, Public Defender, attorney for appellant (Bernado W. Henry, Designated Counsel, of counsel and on the brief).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Sanjay Sethi, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Jason Clark appeals his conviction by a jury of first degree robbery, second degree burglary, third degree possession of a weapon for an unlawful purpose, and fourth degree unlawful possession of a weapon. He received an aggregate sentence of thirteen years with an eighty-five percent period of parole ineligibility.

On appeal, among other issues, defendant contends that a hearing should have been held on his competency to stand trial. However, the record reveals that both a court-ordered evaluation and the defense expert's evaluation found defendant competent to stand trial. A second court-ordered evaluation by another expert also found defendant competent for sentencing. Finding no merit in this and the other issues raised by defendant, we affirm.

I

The charges against defendant arise from the robbery of Toni Connor on May 27, 2006. Connor testified at trial that on the evening of May 27, 2006, a man whom she later identified as defendant came through the window of her first floor apartment, held a box cutter to her throat, and took money from her. When he left, she called the police, who shortly thereafter found defendant, who matched her description and had a box cutter on his person. The police immediately brought defendant to Connor who identified him as the person who had just robbed her. The police officer who located defendant testified he was found lying in the grass in an adjacent yard.

Defendant was indicted for first degree robbery (count one), N.J.S.A. 2C:15-1, second degree burglary (count two), N.J.S.A. 2C:18-2, third degree possession of a weapon for an unlawful purpose (count three), N.J.S.A. 2C:39-4(d), and fourth degree unlawful possession of a weapon (count four), N.J.S.A. 2C:39-5(d). After the trial judge found defendant competent to stand trial, the case was tried to a jury, and defendant was convicted on all counts.

Defendant was then determined to be competent to face sentencing. On June 27, 2008, defendant was sentenced to thirteen years imprisonment on count one, with an eighty-five percent period of parole ineligibility, and to six years imprisonment on count two, with an eighty-five percent period of parole ineligibility, to run concurrent with the sentence on count one. Counts three and four were merged into count one. The trial judge also imposed the requisite period of parole supervision after completion of the sentence and monetary assessments.

On appeal, defendant raises the following issues:

POINT I

THE FAILURE TO HOLD A COMPETENCY HEARING DURING WHICH TESTIMONY COULD HAVE BEEN TAKEN ON JASON CLARK'S COMPETENCE TO STAND TRIAL AND IN WHICH PSYCHIATRIC OR PSYCHOLOGICAL REPORTS COULD HAVE BEEN SUBMITTED INTO EVIDENCE VIOLATED JASON CLARK'S FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS AND SERIOUSLY CAST SOME DOUBT AS TO THE FAIRNESS OF THE SUBSEQUENT PROCEEDINGS. (Not Raised Below).

POINT II

MR. CLARK'S SIXTH AMENDMENT RIGHT TO ASSISTANCE OF COUNSEL AT EVERY CRITICAL STAGE WAS VIOLATED BY TRIAL COUNSEL'S FAILURE TO HAVE THE COURT CONDUCT A FORMAL COMPETENCY HEARING BOTH BEFORE THE DEFENDANT'S TRIAL AND SENTENCING. (Not Raised Below).

POINT [III]

THE COURT ABUSED ITS DISCRETION WHEN IT SENTENCED THIS DEFENDANT TO A 13 YEAR TERM FOR WHICH HE MUST SERVE AN 85% NERA PAROLE USING FACTORS NOT FOUND BY THE JURY.

II

Under the circumstances here, we conclude that the trial judge was not required to hold a competency hearing before trial and before sentencing. Certainly, an incompetent defendant should not be forced to stand trial and to do so constitutes a deprivation of his or her due process rights. State v. Purnell, 394 N.J. Super. 28, 47 (App. Div. 2007) (citing Pate v. Robinson, 383 U.S. 375, 378, 86 S. Ct. 836, 838, 15 L. Ed. 2d 815, 818 (1966)). The test for determining whether a defendant is competent to stand trial is "whether [the defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether he has a rational as well as factual understanding of the proceedings against him." Dusky v. United States, 362 U.S. 402, 402, 80 S. Ct. 788, 789, 4 L. Ed. 2d 824, 825 (1960). New Jersey has codified the test for determining competency as follows:

a. No person who lacks capacity to understand the proceedings against him or to assist in his own defense shall be tried, convicted or sentenced for the commission of an offense so long as such incapacity endures.
 
b. A person shall be considered mentally competent to stand trial on criminal charges if the proofs shall establish:
 
(1) That the defendant has the mental capacity to appreciate his presence in relation to time, place and things; and
 
(2) That his elementary mental processes are such that he comprehends:
 
(a) That he is in a court of justice charged with a criminal offense;
 
(b) That there is a judge on the bench;
 
(c) That there is a prosecutor present who will try to convict him of a criminal charge;
 
(d) That he has a lawyer who will undertake to defend him against that charge;
 
(e) That he will be expected to tell to the best of his mental ability the facts surrounding him at the time and place where the alleged violation was committed if he chooses to testify and understands the right not to testify;
 
(f) That there is or may be a jury present to pass upon evidence adduced as to guilt or innocence of such charge or, that if he should choose to enter into plea negotiations or to plead guilty, that he comprehend the consequences of a guilty plea and that he be able to knowingly, intelligently, and voluntarily waive those rights which are waived upon such entry of a guilty plea; and
 
(g) That he has the ability to participate in an adequate presentation of his defense.

[N.J.S.A. 2C:4-4.]

A competency hearing becomes necessary "[w]here evidence raises a bona fide doubt as to a defendant's competence." State v. Purnell, supra, 394 N.J. Super. at 47. The burden of proving competency once the issue is raised is upon the State, which must do so by a preponderance of the evidence. Ibid. We must accord deference to the trial judge's determination of whether a defendant is competent to stand trial. State v. M.J.K., 369 N.J. Super. 532, 548 (App. Div.), certif. granted, 181 N.J. 549 (2004), appeal dismissed, 187 N.J. 74 (2005).

The record in this case establishes that defendant has a history of mental illness that raised concerns about his competency to stand trial when this case came before the trial judge. At the time of his arrest, defendant was twenty-two years old and living as a homeless person. About one month earlier, he had been released from Trinitas Hospital, where he had been hospitalized and provided psychiatric treatment from April 1, 2006, to April 21, 2006. He had been discharged from that hospital with a diagnosis of schizophrenia, paranoid type, and history of polysubstance abuse. While in custody for this trial, defendant was hospitalized at the Ann Klein Forensic Center, from September 11, 2007, to October 26, 2007, where he was also placed on medication and discharged with the same diagnosis of schizophrenia, paranoid type, and history of polysubstance abuse. Defendant has a history of mental illness, reporting that at the age of ten or eleven he was hospitalized for attempting suicide.

In light of these events, prior to trial, the trial judge, in accordance with N.J.S.A. 2C:4-5, ordered an evaluation to determine defendant's competency to stand trial. That evaluation was conducted on April 2, 2007, by Susie Chung, Ph.D., BCBA, a licensed clinical psychologist, who found defendant to be competent to stand trial. Defense counsel also acknowledged on the record on February 13, 2008, the first day of trial, that the defense had also had defendant evaluated for his competency to stand trial and that the defense expert had found defendant competent to do so. The trial judge also questioned defendant extensively on the record on February 13, 2008, just before the trial began, regarding defendant's understanding of the proceedings and his ability to participate in his defense, reviewing many of the factors in N.J.S.A. 2C:4-4. Nothing in that colloquy generated concerns about defendant's competency to stand trial.

As a result, at that juncture, because the court-ordered expert's report and the defense expert agreed that defendant was competent to stand trial and the judge, through his own questioning of defendant had no further concerns regarding defendant's competency, no bona fide dispute regarding defendant's competency to stand trial was presented. Accordingly, no further hearing was necessary. The statutes expressly provide that the question of a defendant's competency to stand trial shall be determined by the court and that "[i]f neither the prosecutor nor counsel for the defendant contests the finding of the report filed pursuant to section N.J.S.A. 2C:4-5, the court may make the determination on the basis of such report." N.J.S.A. 2C:4-6(a). A hearing is required only where the finding is contested or such a report has not been obtained. Ibid.

After defendant's conviction and prior to his sentencing, the trial judge ordered a second competency evaluation to determine defendant's competency for sentencing. That evaluation was conducted by Christine Joseph, Ph.D., a psychologist, who determined that defendant was competent for sentencing purposes. Defendant presented no evidence to contest this finding. In the absence of a bona fide dispute on defendant's competency for sentencing, no hearing on that issue was required.

Defendant further contends that the competency examinations should have been performed by psychiatrists rather than psychologists. This contention lacks merit. The statutes expressly permit the examination to be performed by either a psychologist or a psychiatrist. N.J.S.A. 2C:4-5(a) (providing that "[w]henever there is reason to doubt the defendant's fitness to proceed, the court may . . . appoint at least one qualified psychiatrist or licensed psychologist to examine and report upon the mental condition of the defendant").

III

Defendant also argues that the trial judge abused his discretion in imposing a thirteen year sentence, contending that the one mitigating factor found by the trial judge overwhelmed the aggravating factors so that a minimum ten year sentence was warranted.

In imposing sentences, "trial judges are given wide discretion so long as the sentence imposed is within the statutory framework." State v. Dalziel, 182 N.J. 494, 500 (2005). For a sentence to fall within a trial judge's permissible discretion, the trial judge's findings of fact must be "grounded in competent, reasonably credible evidence" and the trial judge must have correctly applied the pertinent legal principles. Id. at 501 (quoting State v. Roth, 95 N.J. 334, 363 (1984)). However, an appellate court has the power to modify a sentence "when the application of the facts to the law is such a clear error of judgment that it shocks the judicial conscience." Ibid. (quoting State v. Roth, supra, 95 N.J. at 364).

At the sentencing on June 27, 2008, defendant faced a sentence on the robbery count of between ten and twenty years. N.J.S.A. 2C:43-6(a)(1). Defense counsel pleaded for leniency due to defendant's "serious psychiatric problems." The State argued that in light of defendant's prior criminal history and the charge at issue, ordinarily a sentence between eighteen and twenty years would be warranted. However, in light of defendant's mental health issues, the State recommended a sentence of fourteen years.

The trial judge found aggravating factors three, the risk of committing another offense, N.J.S.A. 2C:44-1(a)(3); six, defendant's prior record, N.J.S.A. 2C:44-1(a)(6); and nine, the need for deterrence, N.J.S.A. 2C:44-1(a)(9). The trial judge found one mitigating factor, substantial grounds tending to excuse or justify defendant's conduct, N.J.S.A. 2C:44-1(b)(4), due to defendant's mental illness.

The trial judge noted that traditionally the analysis would begin with the midrange of fifteen years, and given defendant's prior criminal record, he would be heading to higher numbers. However, in this case, given the mitigating factor of defendant's mental illness, the trial judge imposed the lesser sentence of thirteen years on the robbery charge. Thus, the trial judge gave considerable weight to the one mitigating factor when fixing the sentence. This sentence fell well within the trial judge's discretion.

Finally, we do not address the ineffective assistance of counsel claims because those issues are best addressed in a petition of post-conviction relief. State v. Preciose, 129 N.J. 451, 460 (1992).

Affirmed.

 

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A-0278-08T4

April 7, 2010