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State v. Harmon

June 14, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DERRICK HARMON, DEFENDANT-APPELLANT.



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.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 22, 2007

Before Judges Skillman, Holston, Jr. and Grall.

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*fn1 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 ...


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