On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 00-10-3130.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 4, 2010
Before Judges Sabatino and Alvarez.
This is an appeal of the denial of a petition for post-conviction relief ("PCR"). It raises questions about whether defendant, Irvin J. Frazier, was competent to stand trial and whether his trial attorney was constitutionally ineffective in not seeking a competency evaluation of defendant until the day before trial commenced.
The pertinent background is as follows. After a jury trial in June 2001, defendant was convicted of second-degree sexual assault of a fourteen-year-old girl, N.J.S.A. 2C:14-2c(1) and (4), and various other offenses. Defendant was sentenced to a thirty-year aggregate prison term, with a period of parole ineligibility that was later modified to thirteen and one-half years. It is undisputed that defendant, against the advice of his counsel, rejected a pre-trial plea offer that would have resulted in a more lenient disposition.
Defendant's conviction was upheld on direct appeal by this court in an unpublished opinion. State v. Frazier, No. A-1595-01 (May 1, 2003).*fn1 In addition to the arguments raised by his appellate attorney on various issues other than competency, defendant submitted a supplemental pro se brief. One of the points he asserted in that supplemental brief recited:
[THE] TRIAL COURT['S] REFUSAL TO ALLOW [THE] DEFENSE TO OBTAIN [A] PSYCHIATRIC EVALUATION OF DEFENDANT TO DETERMINE COMPETENCY AND WHETHER THERE EXISTED A POTENTIAL DIMINISHED CAPACITY DEFENSE DENIED DEFENDANT DUE PROCESS OF LAW AND [A] FAIR TRIAL IN VIOLATION OF THE CONSTITUTION OF THE UNITED STATES AND NEW JERSEY STATE LAW
Our unpublished opinion summarily rejected that pro se argument alleging a due process violation, characterizing it as "patently frivolous." Id., slip op. at 4. Certification was denied by the Supreme Court. 177 N.J. 572 (2003).
Defendant filed his PCR application with the Law Division in March 2004, and it was subsequently amended by his assigned PCR counsel. In essence, defendant argued that his trial attorney was ineffective in failing to seek a psychiatric evaluation until the day before trial. As defendant posits, if such an evaluation had been timely performed before trial, it allegedly would have demonstrated his incompetence to participate meaningfully in his own defense, as well as potentially shown that he committed the charged acts with a diminished mental capacity.
The transcripts reflect that, on the day before the trial began, defendant's trial attorney did raise concerns about defendant's competency to the trial judge, on the record. These concerns arose, after defendant rejected--irrationally in the view of his trial attorney--the State's plea offer. The trial attorney observed that defendant did not understand the legal elements of a sexual offense; defendant insisted that a fourteen-year-old victim could give lawful consent to sexual relations with an adult. The trial judge rejected the trial attorney's suggestion that defendant might be incompetent; at that time, the judge did not have the benefit of a competency evaluation of defendant by a mental health expert. Consequently, the matter proceeded to trial and defendant was convicted.
In support of the PCR application, the Law Division judge*fn2 was provided with a ten-page evaluation dated February 19, 2007 and authored by Frank J. Dyer, Ph.D., a licensed psychologist. Dr. Dyer's examination of defendant, on January 19, 2007, included the administration of several psychological tests.
Dr. Dyer noted in his report that defendant has suffered from hallucinations and has had numerous episodes of irrational behavior, especially more recently. Dr. Dyer queried defendant about his understanding of the criminal charges that had been prosecuted against him, and about why he had rejected the State's plea offer and had insisted on going to trial. Dr. Dyer characterized defendant as engaging in "autistic ...