STATE OF NEW JERSEY v. TYWAN ECHOLS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5774-07T45774-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TYWAN ECHOLS,

Defendant-Appellant.

_____________________________________

 

Submitted December 1, 2009 - Decided

Before Judges Lihotz and Ashrafi.

On appeal from Superior Court of New Jersey, Law Division, Morris County, Indictment No. 04-10-1302.

Yvonne Smith Segars, Public Defender, attorney for appellant (Gilbert G. Miller, Designated Counsel, of counsel and on the brief).

Robert A. Bianchi, Morris County Prosecutor, attorney for respondent (John McNamara, Jr., Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Tywan Echols entered into a plea agreement and pleaded guilty to sexual assault, reserving the right to appeal the trial court's decision that he was competent to stand trial. We affirm his conviction and sentence.

Defendant is a mildly retarded man, now thirty-three years old, who has been a resident of the New Lisbon Development Center in Burlington County since 1998, after he was found incompetent to stand trial on a previous charge of aggravated sexual assault. In March 2002, he was at a Special Olympics event with a group of residents from New Lisbon, staying overnight at a hotel in Morris County. The State alleged that, in the middle of the night, he forced his way into the room of a nurse-chaperone for the group and raped and threatened to kill her. Defendant was indicted on charges of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(3); second-degree burglary, N.J.S.A. 2C:18-2a(1); and third-degree making terroristic threats, N.J.S.A. 2C:12-3a. The only issue contested in judicial proceedings was defendant's competence to stand trial.

According to the presentence investigation report prepared after defendant's guilty plea, the victim reported that she heard a desperate knock on her door at 2:30 a.m. She opened the door thinking that a New Lisbon resident was in need of help. She described the man who entered as a black man with "a white eye." Defendant is African-American and blind in one eye. According to the victim, the assailant pushed his way into the room and put his hand over her mouth. He threatened to kill her if she made noise. He took off her pajamas and raped her, penetrating her vagina with his penis to the point of ejaculation. Laboratory analysis matched defendant's DNA with semen recovered from the victim's pajamas. Defendant did not deny that he had been in the victim's room, but he claimed that she had invited him there and that they had only kissed and lay on the bed with their clothes on, all instigated by her.

Before the trial court, the defense alleged that defendant was not competent to stand trial because of his mental retardation. According to defendant's brief on appeal, he had been found incompetent to stand trial on three prior occasions for sexual crimes that were subsequently dismissed. The trial court in this case ordered a mental evaluation and appointed psychologist Peter D. Paul, Ph.D., to examine defendant. Dr. Paul concluded that defendant was cognitively impaired and that he did not meet the criteria set forth in N.J.S.A. 2C:4-4b for mental competence to stand trial.

The State had defendant examined by psychiatrist Azariah Eshkenazi, M.D., who reached the opposite conclusion based on his ninety-minute examination of defendant. Dr. Eshkenazi concluded that defendant had adequate understanding of court procedures, roles of the participants in a trial, his rights, and a potential defense to the charges.

A third expert, psychologist Guillermo Parra, Ph.D., examined defendant on behalf of the defense. Dr. Parra had examined defendant in 1996 after one of his previous sexual charges and concluded that defendant was incompetent. His testing placed defendant in the mild retardation category with an IQ of 57. In examining defendant on the pending charges, Dr. Parra administered psychological tests, including a test designed specifically to determine competency to stand trial. He concluded that defendant's cognitive impairment had not improved and in fact may have worsened since the 1996 examination. Dr. Parra concluded again that defendant was not competent to stand trial.

Over several hearing dates, the trial court heard testimony from the three experts. It later questioned defendant directly about his knowledge and understanding of criminal proceedings and rights as outlined in N.J.S.A. 2C:4-4b. In October 2006, the court determined that defendant had expressed a sufficient understanding of some of the proceedings and rights listed in the statute and that he might be "educable" as to the others. The court ordered that the competency hearing be continued for ninety days, during which time the State would undertake to educate defendant about the matters listed in the statute that were not fully within his understanding. Specifically, the court ordered that defendant be instructed about the right not to testify, the ability to enter into plea negotiations with the prosecution, the rights he would be waiving through a guilty plea, and the need to assist his attorney in presenting a defense. See N.J.S.A. 2C:4-4b(e)-(g).

The competency hearing resumed in February 2007. The State presented testimony from psychologist Augustine Bessong, Ph.D., who was defendant's treating therapist at the New Lisbon Developmental Center, and from Rodney Boone, the director of the moderate security unit at New Lisbon, the unit in which defendant was housed. The defense presented no additional witnesses and the court did not again question defendant personally. At the conclusion of the hearing, the court found that defendant was mentally competent to stand trial.

In May 2007, defendant entered into a plea agreement conditioned on his right to appeal the finding of competency. He pleaded guilty to a down-graded second-degree charge of sexual assault, which, under the plea agreement, would be further downgraded under N.J.S.A. 2C:44-1f(2) to be sentenced within the third-degree range.

In January 2008, the court sentenced defendant to four years' incarceration subject to eighty-five percent of the term to be served before parole under the No Early Release Act, N.J.S.A. 2C:43-7.2, followed by three years of parole supervision, community supervision for life, Megan's law registration and notification requirements, and mandatory monetary fees as provided by statute. At the time of sentencing, defendant was given jail time credit of 1,430 days, a period of custody that he had spent primarily at the New Lisbon facility. Although the parties have not discussed the jail time credits in their appellate briefs, it appears that defendant had completed his sentence of incarceration by the time of his sentencing. Nevertheless, in accordance with the plea agreement, execution of the sentence was stayed pending decision on this appeal.

Defendant makes the following arguments on appeal:

POINT I DEFENDANT DID NOT MEET THE STANDARD FOR

COMPETENCY TO STAND TRIAL OR TO ENTER

INTO A PLEA AGREEMENT.

POINT II DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.

We reject both arguments and affirm the finding of competence and the sentence imposed.

Under the due process clause of the Fourteenth Amendment, a mentally incompetent person may not be tried or convicted. See Drope v. Missouri, 420 U.S. 162, 171, 95 S. Ct. 896, 903, 43 L. Ed. 2d 103, 113 (1975); Pate v. Robinson, 383 U.S. 375, 378, 86 S. Ct. 836, 838, 15 L. Ed. 2d 815, 818 (1966); State v. M.J.K., 369 N.J. Super. 532, 547 (App. Div. 2004), appeal dismissed, 117 N.J. 74 (2005); State v. Cecil, 260 N.J. Super. 475, 480 (App. Div. 1992), certif. denied, 133 N.J. 431 (1993). The State bears the burden of proving the competency of a criminal defendant by a preponderance of the evidence. M.J.K., supra, 369 N.J. Super. at 547; State v. Lambert, 275 N.J. Super. 125, 129 (App. Div. 1994).

The New Jersey Code of Criminal Justice has established specific criteria for determining the competency of a criminal defendant. N.J.S.A. 2C:4-4b provides:

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.

See also Dusky v. United States, 362 U.S. 402, 402, 80 S. Ct. 788, 789, 4 L. Ed. 2d 824, 825 (1960) (minimum constitutional requirements for finding of competence).

Applying the statute to the evidence presented, the trial court found that defendant was oriented to person, place, and time, N.J.S.A. 2C:4-4b(1); that he was aware of the function of the criminal court and the charges against him, N.J.S.A. 2C:4-4b(2)(a); and that he understood generally and sufficiently the roles of the judge, the prosecutor, and his defense attorney, N.J.S.A. 2C:4-4b(2)(b)-(d). The testimony of the three experts was consistent with those findings, although Drs. Paul and Parra seemed to believe more detailed knowledge of the roles of the judge and attorneys was necessary for a finding of competence.

At the October 2006 hearing, the trial judge determined that defendant's knowledge and understanding was not sufficient with respect to the other subsections of the statute, N.J.S.A. 2C:4-4b(2)(e)-(g), pertaining to his rights, plea bargaining, and defense of the case, but that defendant may have the mental capacity to learn enough about these concepts to be found competent.

At the resumption of the competency hearing in February 2007, Rodney Boone testified that he had given instruction about court procedures through videotapes and group discussion to defendant and ten similarly situated New Lisbon residents. He testified that defendant was very vocal during the weekly sessions in associating the content of the videotapes to his own case and that he displayed knowledge of court proceedings and his rights. Boone testified that he did not have the expertise to offer an opinion about defendant's legal competency but was only testifying as a fact witness.

Dr. Bessong testified as an expert that he was employed as a staff psychologist at New Lisbon and had been treating defendant for relapse prevention for three and a half years. During that time, he had come to know well defendant's cognitive impairments and the level of his ability to understand judicial proceedings. In addition, Dr. Bessong administered tests to defendant to assess his competency. He concluded that defendant was competent to stand trial, explaining the reasons for his conclusion.

The trial judge relied on all the evidence and reports gathered over the entire competency hearing to conclude that defendant met the statutory standard for competence.

The judge's approach was consistent with our discussion of competency in State v. Moya, 329 N.J. Super. 499 (App. Div.), certif. denied, 165 N.J. 529 (2000), where the defendant was of similar mental capacity as defendant in this case. In Moya, we said that a defendant must first be advised about the statutory elements establishing competency before the court determines whether he has sufficient understanding. Id. at 510. We compared a defendant's knowledge of his rights and court proceedings to the knowledge that jurors may have or lack when they first encounter the criminal justice system. Because we assume that not all jurors are sufficiently knowledgeable to provide service, we undertake to educate them through orientation by court staff and instructions from the judge. Id. at 507. In the same way, a defendant who is otherwise incompetent may be educable and become fit to stand trial. See ibid.

Consistently with the testimony of Drs. Paul and Parra, defendant argues before us that he did not have the ability to assist in his defense, in part because he insisted on a version of the incident that was refuted by the evidence, and also because he did not have a full understanding of the process employed in the criminal court.

To be competent to stand trial, however, defendant need not demonstrate good judgment or the ability to develop a defense strategy; he must demonstrate a basic understanding of his rights and the criminal justice system. In his version of the incident, defendant showed a tendency to misjudge the prospects of his defense, that is, that his encounter with the victim was consensual and instigated by her, and that it did not involve sexual penetration. But an inclination to rely on a defense refuted by the evidence is neither unusual in the criminal justice system nor an indication of mental incompetence as defined by the Code or constitutional precedents. Defendants often insist on a version of the incident that is inconsistent with the evidence gathered by the State. To be competent, a defendant need not provide his attorney with a good defense to the charges; he need only be able to assist with whatever defense may or may not be available through the evidence.

We also discount as determinative the inadequacy of defendant's responses to the trial judge when he was questioned to test the level of his understanding. The trial court suggested that defendant's credibility may be at issue, and other evidence provided by the other witnesses showed that defendant was significantly more knowledgeable than indicated by his personal answers to the judge. For that reason, we also conclude that the trial judge did not abuse his discretion by completing the hearing without questioning defendant personally a second time after the ninety day period of instruction. The testimony of the several experts demonstrated that defendant had sufficient understanding of the purpose of plea bargaining and the difference between going to trial and pleading guilty and waiving his rights.

On appeal, our standard of review is highly deferential to the trial court's finding of competence to stand trial. M.J.K., supra, 369 N.J. Super. at 548; Moya, supra, 329 N.J. Super. at 506. We see no reason to depart from the court's finding in this case.

Finally, defendant's argument that his sentence within the down-graded third-degree range was excessive does not warrant discussion in a written opinion. R. 2:11-3(e)(2).

 
Affirmed.

(continued)

(continued)

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A-5774-07T4

April 8, 2010