STATE OF NEW JERSEY v. IRVIN J. FRAZIER

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2195-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

IRVIN J. FRAZIER,

Defendant-Appellant.

_________________________________

November 9, 2010

Submitted October 4, 2010 - Decided

Before Judges Sabatino and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 00-10-3130.

Yvonne Smith Segars, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Roseann A. Finn, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

This is an appeal of the denial of a petition for post-conviction relief ("PCR"). It raises questions about whether defendant, Irvin J. Frazier, was competent to stand trial and whether his trial attorney was constitutionally ineffective in not seeking a competency evaluation of defendant until the day before trial commenced.

The pertinent background is as follows. After a jury trial in June 2001, defendant was convicted of second-degree sexual assault of a fourteen-year-old girl, N.J.S.A. 2C:14-2c(1) and (4), and various other offenses. Defendant was sentenced to a thirty-year aggregate prison term, with a period of parole ineligibility that was later modified to thirteen and one-half years. It is undisputed that defendant, against the advice of his counsel, rejected a pre-trial plea offer that would have resulted in a more lenient disposition.

Defendant's conviction was upheld on direct appeal by this court in an unpublished opinion. State v. Frazier, No. A-1595-01 (May 1, 2003).1 In addition to the arguments raised by his appellate attorney on various issues other than competency, defendant submitted a supplemental pro se brief. One of the points he asserted in that supplemental brief recited:

[THE] TRIAL COURT['S] REFUSAL TO ALLOW [THE] DEFENSE TO OBTAIN [A] PSYCHIATRIC EVALUATION OF DEFENDANT TO DETERMINE COMPETENCY AND WHETHER THERE EXISTED A POTENTIAL DIMINISHED CAPACITY DEFENSE DENIED DEFENDANT DUE PROCESS OF LAW AND [A] FAIR TRIAL IN VIOLATION OF THE CONSTITUTION OF THE UNITED STATES AND NEW JERSEY STATE LAW

Our unpublished opinion summarily rejected that pro se argument alleging a due process violation, characterizing it as "patently frivolous." Id., slip op. at 4. Certification was denied by the Supreme Court. 177 N.J. 572 (2003).

Defendant filed his PCR application with the Law Division in March 2004, and it was subsequently amended by his assigned PCR counsel. In essence, defendant argued that his trial attorney was ineffective in failing to seek a psychiatric evaluation until the day before trial. As defendant posits, if such an evaluation had been timely performed before trial, it allegedly would have demonstrated his incompetence to participate meaningfully in his own defense, as well as potentially shown that he committed the charged acts with a diminished mental capacity.

The transcripts reflect that, on the day before the trial began, defendant's trial attorney did raise concerns about defendant's competency to the trial judge, on the record. These concerns arose, after defendant rejected irrationally in the view of his trial attorney the State's plea offer. The trial attorney observed that defendant did not understand the legal elements of a sexual offense; defendant insisted that a fourteen-year-old victim could give lawful consent to sexual relations with an adult. The trial judge rejected the trial attorney's suggestion that defendant might be incompetent; at that time, the judge did not have the benefit of a competency evaluation of defendant by a mental health expert. Consequently, the matter proceeded to trial and defendant was convicted.

In support of the PCR application, the Law Division judge2 was provided with a ten-page evaluation dated February 19, 2007 and authored by Frank J. Dyer, Ph.D., a licensed psychologist. Dr. Dyer's examination of defendant, on January 19, 2007, included the administration of several psychological tests.

Dr. Dyer noted in his report that defendant has suffered from hallucinations and has had numerous episodes of irrational behavior, especially more recently. Dr. Dyer queried defendant about his understanding of the criminal charges that had been prosecuted against him, and about why he had rejected the State's plea offer and had insisted on going to trial. Dr. Dyer characterized defendant as engaging in "autistic thinking," and having delusions, such as believing that a GPS tracking device had been implanted in his tooth.

Dr. Dyer's report concluded, within "a reasonable degree of psychological certainty that . . . there are serious questions as to [defendant's] ability to [have] cooperate[d] with [his trial] counsel in his own defense." He opined that defendant's "autistic thinking, reflecting the fact that he was in the prodromal phase of a psychotic illness, adversely affected his ability to weigh legal options and in appropriately self-protective manner and to appreciate both the advice of his counsel and the efforts of the trial judge to orient him to reality." The expert psychologist added that "[g]iven the fact that the subject was not displaying the bizarre hallucinations and delusions that would manifest later, it is understandable that his autistic thinking processes reflecting the underlying psychological disorder would impress the trial judge as 'foolish,' rather than crazy."

The record also contains a competency evaluation of defendant that was performed on August 1, 2006 by Peter Gallagher, M.D., a clinical psychiatrist at the Ann Klein Forensic Center with Special Qualifications in Forensic Psychiatry. It appears that Dr. Gallagher evaluated defendant pursuant to a court order for competency evaluation with respect to his competency to participate in his then-pending PCR hearing.

After examining defendant and reviewing numerous clinical records, Dr. Gallagher concluded that defendant "has a delusional psychosis where he cannot freely speak his mind because of interference from a psychotic process." The psychiatrist added that defendant perceives that "there is a woman [using a] tracking device implanted in his tooth [to keep] track of what [defendant] says and what he thinks," and that "[this psychotic process interferes with his thinking." Consequently, Dr. Gallagher concluded that defendant could not "fully and voluntarily cooperate with his lawyer in his upcoming court [PCR] proceedings." Dr. Gallagher offered no opinion whether, in retrospect, defendant had been competent to stand trial in 2001 or whether he had a diminished mental capacity when he committed the acts alleged in the indictment.

There is no competing mental health evaluation in the present record submitted by the State.

After reviewing these reports and hearing oral argument, the PCR judge denied defendant's application, without conducting an evidentiary hearing. The PCR judge expressed some doubts about Dr. Dyer's reasoning and about his ability to conclude, five years later, that defendant had not been competent to assist in his own defense at his trial.

The PCR judge hinged his denial of the application on a procedural bar. The judge concluded that, because the failure to obtain a psychiatric exam was raised pro se by defendant on direct appeal, the issue was foreclosed from further consideration under Rule 3:22-5 because it had been adjudicated in that appeal.3 The judge stated that, "even if I were to say to you [defendant's PCR counsel], bring the doctor in and have him explain [his analysis] to me . . . I don't know how to get past the fact that the Appellate Division already ruled on it." The judge further noted that the competency issue already had been "handled at the Appellate Division," and therefore principles of res judicata foreclosed any further consideration of it. Consequently, the judge rejected the PCR claim and did not conduct an evidentiary hearing.

The constitutional standards that demarcate a criminal defense attorney's obligation to provide effective assistance to his or her client are well established. Under the Sixth Amendment of the United States Constitution, a person accused of crimes is guaranteed the effective assistance of legal counsel in his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). To establish a deprivation of that right, a convicted defendant must satisfy the two-part test enunciated in Strickland by demonstrating that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense. Ibid.; see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey). In reviewing such claims, courts apply a strong presumption that defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695.

Defendant argues that his trial attorney was deficient by failing to pursue a competency evaluation sooner. He further argues that he suffered actual prejudice as a result of that failure, presumably because a timely expert report finding him incompetent (or finding that he had acted with a diminished mental capacity) might have affected the trial court's decision to proceed with the trial itself.

The linchpin of the PCR judge's decision rejecting defendant's assertions of ineffectiveness was the judge's belief that further exploration of the mental capacity issues was procedurally barred under Rule 3:22-5 and principles of res judicata. Under Rule 3:22-5, "[a] prior adjudication upon the merits of any ground for relief is conclusive whether made in the proceedings resulting in the conviction or in any post-conviction proceeding brought pursuant to [Rule 3:22] or prior to the adoption thereof, or in any appeal taken from such proceedings." This Rule is consistent with general norms of claim and issue preclusion under the respective doctrines of res judicata and collateral estoppel. See Velasquez v. Franz, 123 N.J. 498, 505-06 (1991) (reciting the general principles of res judicata); State v. Kelly, 201 N.J. 471, 482-88 (2009) (reciting the general principles of collateral estoppel).

Although the interests in achieving and maintaining finality on adjudicated issues are undoubtedly important, the application of Rule 3:22-5 "is not an inflexible command." State v. Franklin, 184 N.J. 516, 528 (2005). Courts may consider procedurally non-compliant motions for PCR when the "constitutional problem presented is of sufficient import to call for relaxation of the rules so that we may consider the question on its merits." State v. Johns, 111 N.J. Super. 574, 576 (App. Div. 1970), certif. denied, 60 N.J. 467, cert. denied, 409 U.S. 1026 (1972).

We decline, under the distinctive circumstances of this case, to apply a procedural bar to the claims of ineffectiveness that defendant presented through his PCR application. We decline to do so for three reasons.

First, the pro se claim asserted by defendant on his direct appeal was a claim of deprivation under the Due Process Clause of the United States Constitution, not the Sixth Amendment. Although the Sixth Amendment rights of an accused are applicable to state prosecutions under the Due Process Clause of the Fourteenth Amendment, see Gideon v. Wainwright, 372 U.S. 335, 342, 83 S. Ct. 792, 795, 9 L. Ed. 2d 799, 795 (1963), it appears that defendant's argument on direct appeal was not substantively based on any Sixth Amendment claim of his trial counsel's ineffectiveness, but instead, was aimed at the trial court's refusal to permit a psychiatric examination on the brink of trial. Hence, there was no "prior adjudication upon the merits" of a Sixth Amendment ineffectiveness claim on the direct appeal that would trigger the application of Rule 3:22-5.

Second, the issues of defendant's competency and mental capacity were not well developed on direct appeal. Instead, they were raised in a pro se supplemental brief by a defendant who is contended to be incompetent. The issues were not the subject of detailed discussion in our prior opinion. Moreover, the panel on direct appeal did not have the benefit of the evaluations subsequently performed by Dr. Dyer and Dr. Gallagher.

Third, our courts have generally recognized that issues of trial counsel's effectiveness are usually not suited for disposition on direct appeal because they often require consideration of matters outside of the trial transcripts. State v. Preciose, 129 N.J. 451, 460 (1992). For these several reasons, we conclude that it is best to have the relevant issues here developed through the PCR process.

Having removed the alleged procedural bar to his claims, we turn to defendant's argument that the PCR judge should have conducted an evidentiary hearing. "[T]rial courts ordinarily should grant evidentiary hearings to resolve ineffective-assistance-of-counsel claims if a defendant has presented a prima facie claim in support of post-conviction relief." Preciose, supra, 129 N.J. at 462. In determining if a defendant has established a prima facie case of ineffective assistance, the court must view the facts in the light most favorable to the defendant. Id. at 462-63. Viewed through that prism, the record suffices to warrant an evidentiary hearing in this case, in light of the presently unrefuted expert opinions of Dr. Dyer and, to a lesser extent, of Dr. Gallagher.

The PCR judge made no express finding of a failure to present a prima facie case. Although we share the PCR judge's initial doubts as to whether Dr. Dyer's retrospective conclusions concerning defendant's competency at the time of his 2001 trial are persuasive and whether they necessarily flow from the predicate findings in his report, we share the PCR judge's apparent inclination that, absent the procedural bar, defendant should be afforded an opportunity to present expert testimony in support of his claim at an evidentiary hearing rather than only on written submissions. At such a hearing, the defense expert or experts can be subjected to cross examination; the State (if it so chooses) can adduce relevant counterproofs, including testimony from defendant's former trial attorney; and the judge can make appropriate credibility findings.

We agree with the PCR judge, and also with the original trial judge, that the mere fact that defendant turned down a favorable plea offer does not signify that he was incompetent to stand trial, and our opinion should not be construed as an invitation to such meritless arguments in future cases. We also perceive that Dr. Dyer's particular opinion about the "prodromal" status of defendant's mental health disabilities in 2001 may ultimately undercut defendant's claim that his trial attorney should have recognized sooner that his client was potentially incompetent. Even so, we believe that there are sufficient reasons to warrant an evidentiary hearing in a remanded PCR proceeding so that the critical issues here can be more fully developed.

The trial court's dismissal of the PCR petition is vacated, and the matter is remanded for an evidentiary hearing. We do not retain jurisdiction.

1 Defendant's first name is spelled "Irving" in our prior opinion. The record does not conclusively show which spelling is correct.

2 The judge who heard the PCR application was a different judge than the trial judge. We shall refer to the former as "the PCR judge."

3 Additionally, the PCR judge denied, without prejudice, defendant's separate claim of ineffectiveness regarding trial counsel's failure to produce a certain witness who allegedly could have provided beneficial testimony. The judge afforded defendant a specified time period to generate a certification from that witness, which defendant apparently failed to do. Defendant does not appeal this aspect of the PCR judge's ruling, and we need not comment on it further.