February 8, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MARQUIS GILCHRIST A/K/A JOHN A. JACKSON, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Criminal Part, Hudson County, Indictment Nos. 04-05-0720, 04-05-0846, and 04-07-1116.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE COMMITTEE ON OPINIONS
Submitted January 13, 2010
Before Judges Graves and Newman.
On January 23, 2008, defendant Marquis Gilchrist pled guilty to first-degree aggravated sexual assault, in violation of N.J.S.A. 2C:14-2(a) (count one of Indictment No. 04-07-1116).
In exchange for his plea, the State agreed to recommend that defendant's sentence would not exceed fifteen years with an eighty-five percent period of parole ineligibility, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The State also recommended concurrent sentences for two other offenses*fn1 and agreed to dismiss additional charges. On May 23, 2008, defendant was sentenced consistent with the plea agreement. The court imposed a fifteen-year prison term for aggravated sexual assault with a mandatory period of parole ineligibility under NERA; concurrent sentences were imposed on the burglary and resisting arrest charges; and appropriate fines, penalties, and Megan's Law conditions were imposed.
On appeal, defendant presents the following arguments:
THE SECOND TRIAL JUDGE ERRED IN DETERMINING THAT DEFENDANT WAS COMPETENT ONLY MONTHS AFTER THE FIRST TRIAL JUDGE FOUND HIM INCOMPETENT, PARTICULARLY WHERE THE SECOND JUDGE DID NOT CONSIDER THE EVALUATIONS AND OPINIONS WHICH THE FIRST JUDGE HAD FOUND CREDIBLE IN REACHING THE OPPOSITE CONCLUSION.
DEFENDANT'S GUILTY PLEA WAS INVALID; HE SHOULD HAVE BEEN PERMITTED TO WITHDRAW IT BEFORE SENTENCING.
REMAND FOR HEARING AND CONSIDERATION OF DEFENDANT'S SUPPRESSION MOTION IS REQUIRED (WITH DIRECTION THAT THE TRIAL COURT HOLD THE HEARING WHEN DEFENDANT IS COMPETENT).
DEFENDANT'S SENTENCE IS IMPROPER AND EXCESSIVE.
Based on our review of the record, we are satisfied that all of defendant's arguments are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11- 3(e)(2). Nevertheless, we will comment briefly as follows.
As noted in the adult presentence report, the police obtained a DNA sample from the victim of the aggravated sexual assault that matched a DNA sample taken from defendant. Thus, the evidence of defendant's guilt was overwhelming.
Defendant was initially incarcerated at the Hudson County Jail. However, after he alleged he was incompetent to stand trial, he was transferred to the Ann Klein Forensic Center (Ann Klein) for an evaluation. Following a competency hearing on February 22, 2007, the trial court found that further evaluations were necessary to determine whether defendant was "being overmedicated":
What I want to do is . . . order a thorough evaluation of his medications, whether they are the appropriate medications for him, whether he's being overmedicated. There's no reason that he should be as sleepy as he is all the time whenever he comes here. . . . I would like to revisit this case in three months with a further report from Anne Klein which specifically addresses the medications that he's receiving . . . I am simply not comfortable today that Mr. Gilchrist is competent, but . . . I feel comfortable that if he's given the appropriate treatment he can become competent, and we can approach this case in a few months time.
The next hearing was scheduled for June 11, 2007, but the matter was transferred to a different judge and the second hearing did not take place until November 30, 2007. The only witness to testify was Dr. Elizabeth Hogan, a psychiatrist.
Based on her testimony and written report, the court found defendant was competent to stand trial. The court's findings included the following:
The Court's had the opportunity to review in detail the report that's been marked J-2 in evidence, as well as the curriculum vitae of Dr. Hogan and [has] had the benefit of observing her during the course of her testimony. I'm satisfied, based upon that testimony and the report, that the defendant is, in fact, competent to stand trial.
He's indicated an orientation as to time and place. And he's indicated he understands his right to an attorney, his right to confer with that attorney, the fact that his attorney is there to assist him in opposition to the Prosecutor, who seeks to punish him. He's aware that a plea bargain has been offered to him. He understands and apparently rejects the offer that has been provided to him, not just out of hand, but because it's too long, indicating a conscious effort on his part to weigh the pluses and minuses of that offer and to make a rejection for a specific reason.
Likewise, the report also indicates the defendant is aware of each individual date of his multiple arrests and is able to provide an accounting suitable or favorable to himself to explain his behavior on each of those occasions. He's indicated he understands the resolution of these issues will take place in a courtroom, that the Prosecutor is his adversary. He's indicated he's aware that there'll be a judge and a jury in the room. He's able to provide specific details concerning each of the incidents that he's charged with having committed and to weigh the pluses and minuses of a plea bargain.
So I'm satisfied, given all of the circumstances and all of the facts and circumstances explained in this report, that he's presently competent to stand trial.
"Under New Jersey law, the State bears the burden of proving by a preponderance of the evidence that a defendant is competent to stand trial." State v. McNeil, 405 N.J. Super. 39, 49 (App. Div.), certif. denied, 199 N.J. 130 (2009). Moreover, "it is the judge and not the experts who must make the ultimate determinations as to competency." State v. Moya, 329 N.J. Super. 499, 506 (App. Div.), certif. denied, 165 N.J. 529 (2000). Our review of the trial court's determination "is typically, and properly, highly differential." Ibid.
In the present matter, the court carefully considered Dr. Hogan's testimony and her report in light of the statutory requirements set forth in N.J.S.A. 2C:4-4(b), and determined defendant was mentally competent to stand trial. We conclude from our review of the record that the trial court's findings are supported by sufficient credible evidence and its conclusion based on those findings is legally sound. Accordingly, the court did not err when it determined defendant was competent to stand trial.
In his next point, defendant contends that even if his competency was properly established prior to the entry of his guilty pleas, he should have been allowed to withdraw his pleas based on the following colloquy, which occurred during the sentencing hearing on May 23, 2008:
[THE COURT]: Mr. Gilchrist, do you have anything to say before you're sentenced?
THE DEFENDANT: I wanted to go to trial. I wasn't there. I wasn't in my right state of mind.
THE COURT: Do you have anything to say?
THE DEFENDANT: I can't make a decision. I wasn't in my right state of mind. I was just listening to my lawyer. She said 15 at sentencing. That's not what's happening.
THE COURT: Anything else?
THE DEFENDANT: That's it.
Defendant never filed a notice of motion to withdraw his guilty plea and, based on the record before us, we are satisfied the trial court conscientiously complied with the requirements of Rule 3:9-2 when defendant entered his pleas. Moreover, defendant has failed to assert either a colorable claim of innocence or strong reasons for the withdrawal of his pleas, which were entered pursuant to a negotiated plea bargain. State v. Slater, 198 N.J. 145, 157-58 (2009). Under these circumstances, we find no abuse of discretion or reversible error by the trial court.
Defendant also claims his sentence is excessive. We do not agree. "An appellate court should disturb the sentence imposed by the trial court only in situations where the sentencing guidelines were not followed, the aggravating and mitigating factors applied by the trial court are not supported by the evidence, or applying the guidelines renders a particular sentence clearly unreasonable." State v. Roach, 146 N.J. 208, 230, cert. denied, 519 U.S. 1021, 117 S.Ct. 540, 136 L.Ed. 2d 424 (1996).
In the present matter, the trial court's findings regarding the aggravating and mitigating factors were based on competent and credible evidence in the record. The court correctly applied the sentencing guidelines enunciated in the Criminal Code and, in applying the facts to the law, reached a conclusion that could have reasonably been made upon a weighing of the relevant factors. See State v. O'Donnell, 117 N.J. 210, 215 (1989); State v. Ghertler, 114 N.J. 383, 388-89 (1989). As a reviewing court, we may modify a sentence "when the application of the facts to the law is such a clear error of judgment that it shocks the judicial conscience." State v. Roth, 95 N.J. 334, 364 (1984). This is not such a case.