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NOT FOR PUBLICATION WITHOUT THE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-1746-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DERRICK HARMON,

Defendant-Appellant.

______________________________

Submitted January 11, 2011 Decided February 7, 2011

Before Judges Parrillo and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 99-09-2872, 99-09-2876 and 99-09-2879.

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

Robert D. Laurino, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Derrick Harmon appeals from a Law Division order denying his application for post-conviction relief (PCR). We affirm.

Defendant was charged in three Essex County indictments with eight armed robberies, N.J.S.A. 2C:15-1, and numerous lesser related offenses. Defendant also was indicted in Union County for nine armed robberies and numerous lesser related offenses. Commencing November 13, 2000, a series of six competency hearings were conducted, which eventually resulted in a determination on February 12, 2002 that defendant was competent to stand trial.

By way of background, defendant was first evaluated on February 9, 2000, by Dr. Peter D. Paul, who concluded that, although defendant exhibited some paranoid thinking, he was oriented as to person, place and time with his memory functions intact, including the events leading to his arrest and charges. Dr. Paul deemed defendant competent to stand trial, but recommended that defendant's psychotropic medications be continued so that he would maintain competence. Dr. Paul further opined it likely that defendant would remain competent as long as he continued with his medications.

Defendant was next evaluated on January 16, 2001 by Benito Marty, M.D., who concluded that defendant suffers from a Psychotic Disorder, not otherwise specified (NOS), compounded by a history of polysubstance dependence, but that he was competent to stand trial as long as he took his prescribed medications.1 Dr. Marty also concluded that defendant was sane at the time of the offense and at the time his confession was taken.

[I]n order to reconstruct the mental status of Mr. Derrick Harmon at the time of the offense, on April 26, 1999, I reviewed the discovery material provided and pertaining to his current charges. Mr. Harmon admitted to extensive substance abuse as a problem and that his current charges were apparently the result [of trying] to secure money to buy drugs at that time. In his statement given on May 27, 1999, the patient was completely aware of the incident and his statement was consistent with the statements given by the other witnesses. He was aware that this was the result of his drug problem, but he apologized to the victim finally about what he had done. It is my professional opinion, based on reasonable medical certainty, that Mr. Harmon was sane at the time of the offense on April 26, 1999 and at the time of the taking of the confession on May 27, 1999.

At a later competency proceeding on July 10, 2001, defendant refused to leave his jail cell and medical personnel at the jail reported that defendant was refusing to take his medication and that it was not the jail's policy to force him to do so. Defendant also signed a refusal of treatment form at the jail. In a signed, handwritten note to the court, dated March 23, 2001, defendant complained of the side effects from the medications. Defense counsel indicated that defendant refused to communicate with him and refused to be interviewed by the psychiatrist he had retained, Dr. Maureen Santina. Noting that defendant's prior competency report was six months old and Dr. Marty's opinion that defendant was competent to stand trial while medicated, the court stated:

[T]he Court finds that the defendant is competent to stand trial while medicated, however, if it appears that he has become incompetent or there is a question as to whether he is presently competent, due to his own accord and volition to voluntarily stop taking his prescribed medication, and thus he has waived his right to proceed as competent, and it further finds that defendant refused to see a psychiatric expert, retained by defense counsel, and the above refusal to cooperate with treatment and evaluation is not due to a mental disease or defect[.]

Pursuant to the court's July 23, 2001 order directing further examination, Dr. Marty again evaluated defendant for competency. Dr. Marty confirmed his prior diagnosis of a Psychotic Disorder, NOS, compounded by a history of polysubstance dependence. Dr. Marty deemed defendant competent to stand trial at that time, but noted that defendant will quickly decompensate and regress if off medication. Dr. Marty also noted that defendant "has the tendency to fake or exaggerate psychiatric symptoms based on psychological evaluation."

The final competency hearing occurred on February 12, 2002. The defense expert, Dr. Maureen Santina, had examined defendant a few weeks prior and her overall conclusion mirrored that of Dr. Marty. After the court questioned defendant to determine whether he understood the nature of the charges against him and the respective roles of the attorneys and jury, the court found defendant competent to stand trial. The court informed defendant that, under New Jersey law, if a defendant voluntarily makes himself incompetent by not taking his medication, he will be deemed competent nonetheless.

Defendant was subsequently tried on one of the armed robbery charges in Essex County, as well as related assault and weapons offenses, and was 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,2 and the Prosecutor agreed to recommend an eighteen-year term of imprisonment, subject to the eighty-five percent 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 the NERA's eighty-five percent 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 the eighty-five percent 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 the eighty-five percent NERA parole ineligibility, to be served consecutively to the sentences previously imposed in Essex County.

Defendant's appeals from the Essex and Union County judgments of conviction were consolidated. Therein, he argued, among other things, that all his convictions must be reversed because he was made competent to stand trial only by forced medication, without the State making the showing 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 argued that even if he were properly found competent to stand trial on February 12, 2002, the record did not indicate he was still competent at the time of his trial in Essex County or his guilty pleas in Essex and Union counties. State v. Harmon, A-0604-03T4, A-5600-03T4 (App. Div. June 14, 2007) (slip op. at 3-4). We rejected these arguments and affirmed defendant's convictions and sentence for the armed robberies committed in Essex County, reasoning in part:3

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[.]

. . . .

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.

[Id. at 8-9.]

Defendant's petition for certification was denied by the Supreme Court. State v. Harmon, 192 N.J. 478 (2007).

On July 9, 2008, defendant filed a PCR petition concerning his Essex County convictions, arguing that trial counsel was ineffective for failing to: (1) have defendant examined to determine if he suffered from a diminished mental capacity at the time of the crimes; (2) produce defendant's psychiatric history as ordered by the court; and (3) raise the competency issue in the nine-month interval between defendant's last competency evaluation and the onset of trial. On April 2, 2009, the PCR judge denied defendant's petition and request for an evidentiary hearing, concluding that defendant failed to satisfy either the prejudice or performance prongs of the Strickland/Fritz test.4

On appeal, defendant raises the following issues for our consideration:

I. THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.

A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST-CONVICTION RELIEF.

B. THE DEFENDANT DID NOT RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL AS A RESULT OF TRIAL COUNSEL'S FAILURE TO REQUEST THAT HIS CLIENT BE APPROPRIATELY EXAMINED TO DETERMINE THE VIABILITY OF ASSERTING A DEFENSE BASED UPON DIMINISHED DISEASE OR DEFECT.

C. THE DEFENDANT DID NOT RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL AS A RESULT OF TRIAL COUNSEL'S FAILURE TO RAISE THE ISSUE OF THE DEFENDANT'S COMPETENCY IMMEDIATELY PRIOR TO TRIAL, NINE MONTHS AFTER THE ISSUE OF HIS COMPETENCY HAD LAST BEEN ADDRESSED.

D. SINCE THE DEFENDANT PRESENTED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL, THE TRIAL COURT ERRED IN FAILING TO AFFORD HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION.

We have considered each of these issues in light of the record, the applicable law, and the arguments of counsel, and we are satisfied that none of them is of sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). Accordingly, we affirm substantially for the reasons stated in the PCR court's comprehensive letter opinion of April 2, 2009. We add, however, the following comments.

Although the PCR judge reached the merits of defendant's petition, we find it time-barred under Rule 3:22-12, having been filed more than five years after the entry of defendant's Essex County judgment of conviction. Moreover, we discern no reason in the record to relax the time bar since defendant has demonstrated neither excusable neglect, Rule 3:22-12(a)(1), nor a fundamental injustice by reason of its enforcement. R. 1:1-2; see also State v. Mitchell, 126 N.J. 565, 575-76 (1992).

Aside from being untimely raised, the competency issue is also barred because it was previously adjudicated on direct appeal. R. 3:22-5. "Prior adjudication of an issue, particularly on direct appeal, will ordinarily bar post-conviction relief." Pressler & Verniero, Current N.J. Court Rules, comment on R. 3:22-5 (2010). See, e.g., State v. Harris, 181 N.J. 391, 494 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). Here, we have previously ruled on direct appeal that defendant's conduct during trial, entry of guilty pleas, and sentencing demonstrates that he remained competent, even in the absence of a reevaluation within nine months of the trial. This ruling constitutes an adjudication on the merits of the competency issue. Although defendant now recasts the issue in ineffective-of-counsel terms (i.e., counsel was ineffective because he failed to raise defendant's competency immediately before trial), it remains the identical claim and is therefore procedurally barred under Rule 3:22-5.

Despite being procedurally barred, we will address the merits of defendant's claims. Specifically, defendant first contends that his trial counsel was ineffective because he did not have defendant examined to determine the viability of a diminished capacity defense when it was clear from his psychiatric history and irregular behavior during competency hearings that he "suffered from a diminished mental capacity for a lengthy period of time, undoubtedly predating the offenses in question and continuing thereafter." He also contends that counsel failed to raise the issue of defendant's competency immediately prior to trial, nine months after the issue of his competency had last been addressed.

It is virtually axiomatic that in order for defendant to obtain relief based on ineffective assistance grounds, he is obliged to show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial. See, e.g., Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d 693; State v. Fritz, supra, 105 N.J. at 58. We are persuaded that the alleged deficiencies here clearly fail to meet either the performance or prejudice prong of Strickland/Fritz test.

As to the claim concerning the diminished capacity defense, N.J.S.A. 2C:4-2 governs admission of evidence of mental disease or defect and provides:

Evidence that the defendant suffered from a mental disease or defect is admissible whenever it is relevant to prove that the defendant did not have a state of mind which is an element of the offense. In the absence of such evidence, it may be presumed that the defendant had no mental disease or defect which would negate a state of mind which is an element of the offense.

The burden of proof remains with the State and the jury may consider evidence of diminished capacity to determine if the State carried its burden of proving the mens rea of the offense. State v. Moore, 122 N.J. 420, 431 (1991); State v. Delibero, 149 N.J. 90, 98 (1997). A diminished capacity defense is feasible "if the record shows that experts in the psychological field believe that that kind of mental deficiency can affect a person's cognitive faculties, and the record contains evidence that the claimed deficiency did affect the defendant's cognitive capacity to form the mental state necessary for the commission of the crime." State v. Galloway, 133 N.J. 631, 647 (1993).

Here, after his initial refusal to be interviewed, defendant was evaluated by a defense psychiatrist, who agreed with the State's expert's general conclusion regarding defendant's competency. Moreover, there is no proof in the PCR record that defendant, in fact, suffered from a mental disease or defect at the time of the armed robberies for which he was convicted. Defendant has produced no medical records, expert reports, or any other evidence to support his claim. Rather, defendant merely states that a diminished capacity defense might apply if it had been pursued. However, such a bare assertion, without more, is simply insufficient to establish a prima facie claim to warrant an evidentiary hearing. State v. Preciose, 129 N.J. 451, 462 (1992); State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).

Nor does defendant's vague, conclusionary references to his "extensive psychiatric history" and irregular behavior during competency hearings provide the requisite prima facie proof. Indeed, the "extensive psychiatric history" to which defendant refers appears to be approximately ten detoxification programs and one inpatient substance abuse treatment program. In the three court-ordered mental health evaluations that defendant underwent (one with Dr. Paul and two with Dr. Marty), defendant denied any previous psychiatric history on each occasion. The record indicates that the only occasions on which defendant was hospitalized for mental health treatment were for the court-ordered evaluations, which occurred well after the robberies at issue. Thus, defendant s contention that he has an "extensive psychiatric history" that demonstrates that he suffered from a diminished capacity at the time of the robberies is simply not supported by the record.

Further, his irregular behavior during competency hearings,5 which we recognized and discussed in our previous opinion, Harmon, supra, slip op. at 8-9, is contradicted by numerous examples of defendant s direct participation in and conduct during pretrial and trial proceedings that demonstrate his competency and understanding of the proceedings against him. In any event, defendant's courtroom behavior alone does not support the claim of a potentially viable diminished capacity defense. Under N.J.S.A. 2C:4-2, in the absence of evidence that defendant suffered from a mental disease or defect, it is "presumed that the defendant had no mental disease or defect which would negate a state of mind which is an element of the offense." Accordingly, defendant has not met his burden of proving that his counsel s performance was either deficient or prejudiced the defense.

The same may be said for defendant's other contention that counsel failed to have defendant evaluated for competency closer to trial. Here, again, defendant has offered no proof expert or otherwise to support his ineffective assistance claim. On the contrary, as we determined on direct appeal, defendant was competent to stand trial and, therefore, the failure to have defendant evaluated closer thereto was neither constitutionally defective attorney performance nor prejudicial to defendant.

A

1 Dr. Marty also referenced the psychological evaluation that had been performed by Mitra Nayerahmadi, Ph.D., which revealed

evidence consistent with an individual who is faking or exaggerating psychiatric symptoms in hopes of gaining some legal advantage or escaping legal responsibility and further testing for competency. Results also show that he has adequate knowledge and comprehension of basic legal concepts and possesses adequate skills to assist in his own defense. The patient's paranoid and delusional thoughts are controlled to the extent that they do not interfere with his participation in the legal process. He possesses adequate knowledge and comprehension of basic legal concepts to actively participate in his own defense and is competent to stand trial at this time.

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

3 We vacated the pleas and sentences for the Union County armed robberies and remanded those cases to the trial court in Union County because defendant was subject to mandatory minimum twenty-year terms of imprisonment for those offenses and the trial court only imposed seventeen-year terms. Id. at 4.

4 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Fritz, 105 N.J. 42 (1987).

5 The courtroom incidents that defendant cites are: (1)"defendant's lengthy incoherent monologue"; (2) "numerous incoherent statements by the defendant centering around a conspiracy to convict him"; and (3) a statement "in which the defendant indicated he still heard voices at times."