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In re State


December 12, 2007


On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 20-80.

Per curiam.


Submitted November 15, 2007

Before Judges Wefing and Lyons.

Phillip A. Wood (Wood), a Krol committee, appeals from two consent orders entered in this matter.*fn1 The first order, dated July 21, 2000, suspended Krol review hearings for Wood during the time that he was in the custody of the New Jersey Department of Corrections (DOC), but provided that ninety days prior to his parole or release date, the court would schedule a Krol hearing.*fn2

The second order, dated October 18, 2002, established a maximum limit of Krol supervision of thirty years, remanded Wood to the Burlington County jail and Ancora Psychiatric Hospital for psychiatric evaluation, vacated the suspension of Krol hearings, and established a Krol hearing for December 6, 2002. The following factual and procedural history is relevant to our consideration of the issues advanced on appeal.

In 1981, Wood was found not guilty by reason of insanity of felony murder and aggravated arson and was involuntarily committed to Ancora Psychiatric Hospital. During the course of his confinement, he received periodic Krol review hearings.

On December 22, 1999, Wood was arrested for third-degree aggravated assault of his psychiatrist at Ancora. On May 3, 2000, Wood was sentenced on charges of third-degree aggravated assault, pursuant to N.J.S.A. 2C:12-1(b)(7), and fourth-degree criminal mischief (amended from third-degree aggravated arson), pursuant to N.J.S.A. 2C:17-3(a). The criminal mischief charge related to Wood's arrest on August 5, 1999, for setting fire to bed linens at Ancora. Wood was sentenced to three years in prison on the assault charge and eighteen months on the criminal mischief charge to run concurrent with each other.

On July 21, 2000, Judge Victor Friedman signed a consent order that suspended Wood's Krol hearings while he was under the custody of the DOC. The order provided, however, that ninety days prior to his parole or release, the court was to be notified and a Krol hearing was to be scheduled. This order was consented to as to both form and substance by the prosecutor and counsel for Wood.

On August 2, 2002, the DOC advised the prosecutor that it did not see a need for involuntary commitment to the Anne Klein Forensic Center or the Special Treatment Unit, but noted that since Wood is on Krol status, a Krol hearing should be scheduled.

On October 18, 2002, Judge Thomas S. Smith signed the second consent order. This order was also consented to as to form and entry by the prosecutor and Wood's attorney. It provided that the maximum limit on Wood's Krol supervision would be thirty years; ordered that Wood was to be transported to Ancora for psychiatric evaluation; vacated the suspension of Krol review hearings; and ordered a Krol review hearing for December 6, 2002. Following the Krol hearing in December 2002, Judge Smith found that Wood, if released to the community, would pose a danger to himself, others, and property, and ordered him transferred to Ancora. This appeal followed.

On appeal, Wood presents the following argument for our consideration:



We note at the outset that both the July 21, 2000 order and the October 18, 2002, order were consent orders. Counsel for both parties consented to their entry, as well as the form of the orders. An order entered with the consent of the parties is ordinarily not appealable for the purpose of challenging its substantive provisions. Winberry v. Salisbury, 5 N.J. 240, 255, cert. denied, 340 U.S. 877 (1950). See also Pressler, Current N.J. Court Rules, comment 2.2.3 to R. 2-3 (2008).

We find that the entry of these consent orders is binding upon Wood. First of all, "[i]t is well established that a defendant may waive a constitutional right." State v. Fortin, 178 N.J. 540, 609 (2004) (citing Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 83 L.Ed. 1461, 1466 (1938)); State v. Capone, 215 N.J. Super. 497, 502 n.1 (App. Div. 1987). Secondly, an attorney is presumed to have his or her client's authority in a civil matter.

[I]t is the clear policy of our courts to recognize acts by the attorneys of the court as valid and presumptively authorized and, unless the contrary appears, it will be presumed that a stipulation was duly authorized. Consequently, an attorney is presumed to possess authority to act on behalf of the client, and the party asserting the lack of authority must sustain a heavy burden to establish that [his] attorney acted without any kind of authority in agreeing to the entry of judgment in the trial court. [Jennings v. Reed, 381 N.J. Super. 217, 231 (App. Div. 2005) (internal citations and quotations omitted).]

Accordingly, we hold that Wood unequivocally waived his right to receive Krol hearings during the period of his incarceration by virtue of the consent order entered on July 21, 2000.

We also note that individuals committed pursuant to N.J.S.A. 2C:4-8(b)(3) are entitled to periodic reviews under the standards applied to civil commitments. State v. Ortiz, 389 N.J. Super. 235, 239 (App. Div. 2006), certif. granted, 190 N.J. 256 (2007). See State v. Krol, 68 N.J. 236, 251 (1975). Rule 4:74-7 requires "periodic reviews of the commitment no later than (1) three months from the date of the first hearing, and (2) nine months from the date of the first hearing, and (3) 12 months from the date of the first hearing, and (4) at least annually thereafter, if the patient is not sooner discharged."

R. 4:74-7(f)(2). In State v. Fields, 77 N.J. 282, 295 (1978), our Supreme Court provided that "meaningful periodic" reviews are required for persons on Krol status. The court stated, "[committees] present dangerousness to themselves and others must be assessed at reasonable intervals." Ibid. The requirement, therefore, for an "annual" review as opposed to "periodic review" is found in the court rules and not in statutes or case law.

We note that the Rules of Court "shall be construed to secure a just determination . . . and the elimination of unjustifiable expense and delay. . . . [A]ny rule may be relaxed or dispensed with by the court . . . if adherence to it would result in an injustice." R. 1:1-2. If Wood had been afforded a Krol hearing while imprisoned, he would not have been released, even if it were determined he was no longer a danger to self or others. Because there was no purpose to be accomplished by a Krol review while Wood was incarcerated, a relaxation of R. 4:74-7 was appropriate, did not violate Wood's constitutional rights, and was in accordance with his consent. In addition, there is no showing by Wood that the suspension during the period of his imprisonment prejudiced him in any fashion.

Lastly, we note Wood's argument that N.J.S.A. 2C:4-8(c) holds that "[n]o person committed under this section shall be confined within any penal or correctional institution or any part thereof." Wood argues that this statute requires that a Krol committee may be transferred to prison only for a criminal conviction if his Krol status has been terminated. The State argues that this "could create a situation where any defendant under Krol supervision who commits a crime, pleads guilty, and is found by the court to be competent at that time to plead guilty and be sentenced to a jail or prison term could challenge their Krol status in the same manner set forth by defendant."

N.J.S.A. 2C:4-8 discusses the disposition of defendants that are found not guilty by reason of insanity (NGI) and was rewritten entirely after Krol. Cannel, New Jersey Criminal Code Annotated, comment 1 on N.J.S.A. 2C:4-8. Krol found that due process and equal protection required persons found NGI to be treated similarly to civil committees. Id. at comment 2. As such, persons found NGI should not be institutionalized unless necessary to prevent danger to self or the community. Ibid.

N.J.S.A. 2C:4-8(c) echoes this sentiment by ensuring that "[n]o person committed under this section" be placed in a correctional institution rather than a treatment facility for the crime which they were found NGI. The Legislature clearly did not intend to create a loophole for NGI committees to circumvent their maximum period of Krol confinement by forcing the State to choose whether to keep a committee on Krol status or to prosecute him for an offense which may result in a relatively short sentence. It is clear the Legislature intended the prohibition in N.J.S.A. 2C:4-8(c) to be with reference to the offense for which the committee was found NGI and not for other criminal acts.

In conclusion, we hold that Wood waived his Krol review hearings in the consent order. The trial court's suspension of annual review hearings during incarceration was appropriate under the circumstances and in no way prejudiced Wood.

Accordingly, we affirm.

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