On appeal from Superior Court of New Jersey, Law Division, Morris County, Indictment No. 04-10-1302.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 1, 2009
Before Judges Lihotz and Ashrafi.
Defendant Tywan Echols entered into a plea agreement and pleaded guilty to sexual assault, reserving the right to appeal the trial court's decision that he was competent to stand trial. We affirm his conviction and sentence.
Defendant is a mildly retarded man, now thirty-three years old, who has been a resident of the New Lisbon Development Center in Burlington County since 1998, after he was found incompetent to stand trial on a previous charge of aggravated sexual assault. In March 2002, he was at a Special Olympics event with a group of residents from New Lisbon, staying overnight at a hotel in Morris County. The State alleged that, in the middle of the night, he forced his way into the room of a nurse-chaperone for the group and raped and threatened to kill her. Defendant was indicted on charges of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(3); second-degree burglary, N.J.S.A. 2C:18-2a(1); and third-degree making terroristic threats, N.J.S.A. 2C:12-3a. The only issue contested in judicial proceedings was defendant's competence to stand trial.
According to the presentence investigation report prepared after defendant's guilty plea, the victim reported that she heard a desperate knock on her door at 2:30 a.m. She opened the door thinking that a New Lisbon resident was in need of help. She described the man who entered as a black man with "a white eye." Defendant is African-American and blind in one eye. According to the victim, the assailant pushed his way into the room and put his hand over her mouth. He threatened to kill her if she made noise. He took off her pajamas and raped her, penetrating her vagina with his penis to the point of ejaculation. Laboratory analysis matched defendant's DNA with semen recovered from the victim's pajamas. Defendant did not deny that he had been in the victim's room, but he claimed that she had invited him there and that they had only kissed and lay on the bed with their clothes on, all instigated by her.
Before the trial court, the defense alleged that defendant was not competent to stand trial because of his mental retardation. According to defendant's brief on appeal, he had been found incompetent to stand trial on three prior occasions for sexual crimes that were subsequently dismissed. The trial court in this case ordered a mental evaluation and appointed psychologist Peter D. Paul, Ph.D., to examine defendant. Dr. Paul concluded that defendant was cognitively impaired and that he did not meet the criteria set forth in N.J.S.A. 2C:4-4b for mental competence to stand trial.
The State had defendant examined by psychiatrist Azariah Eshkenazi, M.D., who reached the opposite conclusion based on his ninety-minute examination of defendant. Dr. Eshkenazi concluded that defendant had adequate understanding of court procedures, roles of the participants in a trial, his rights, and a potential defense to the charges.
A third expert, psychologist Guillermo Parra, Ph.D., examined defendant on behalf of the defense. Dr. Parra had examined defendant in 1996 after one of his previous sexual charges and concluded that defendant was incompetent. His testing placed defendant in the mild retardation category with an IQ of 57. In examining defendant on the pending charges, Dr. Parra administered psychological tests, including a test designed specifically to determine competency to stand trial. He concluded that defendant's cognitive impairment had not improved and in fact may have worsened since the 1996 examination. Dr. Parra concluded again that defendant was not competent to stand trial.
Over several hearing dates, the trial court heard testimony from the three experts. It later questioned defendant directly about his knowledge and understanding of criminal proceedings and rights as outlined in N.J.S.A. 2C:4-4b. In October 2006, the court determined that defendant had expressed a sufficient understanding of some of the proceedings and rights listed in the statute and that he might be "educable" as to the others. The court ordered that the competency hearing be continued for ninety days, during which time the State would undertake to educate defendant about the matters listed in the statute that were not fully within his understanding. Specifically, the court ordered that defendant be instructed about the right not to testify, the ability to enter into plea negotiations with the prosecution, the rights he would be waiving through a guilty plea, and the need to assist his attorney in presenting a defense. See N.J.S.A. 2C:4-4b(e)-(g).
The competency hearing resumed in February 2007. The State presented testimony from psychologist Augustine Bessong, Ph.D., who was defendant's treating therapist at the New Lisbon Developmental Center, and from Rodney Boone, the director of the moderate security unit at New Lisbon, the unit in which defendant was housed. The defense presented no additional witnesses and the court did not again question defendant personally. At the conclusion of the hearing, the court found that defendant was mentally competent to stand trial.
In May 2007, defendant entered into a plea agreement conditioned on his right to appeal the finding of competency. He pleaded guilty to a down-graded second-degree charge of sexual assault, which, under the plea agreement, would be further downgraded under N.J.S.A. 2C:44-1f(2) to be sentenced within the third-degree range.
In January 2008, the court sentenced defendant to four years' incarceration subject to eighty-five percent of the term to be served before parole under the No Early Release Act, N.J.S.A. 2C:43-7.2, followed by three years of parole supervision, community supervision for life, Megan's law registration and notification requirements, and mandatory monetary fees as provided by statute. At the time of sentencing, defendant was given jail time credit of 1,430 days, a period of custody that he had spent primarily at the New Lisbon facility. Although the parties have not discussed the jail time credits in their appellate briefs, it appears that defendant had completed his ...