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State of New Jersey v. Howard Reed

August 27, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
HOWARD REED, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 01-12-2455.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted August 22, 2012

Before Judges J. N. Harris and Fasciale.

Defendant Howard Reed appeals from an order dated February 2, 2010, denying his petition for post-conviction relief (PCR). We affirm.

In late 2001, after a waiver of the Family Part's jurisdiction and a referral to the Law Division pursuant to N.J.S.A. 2A:4A-26, defendant was charged in separate indictments with several crimes committed over a two-day span in July 2001 when he was seventeen years old. The first indictment (No. 01-12-2455) contained fifteen counts charging defendant and a co-defendant with several first-degree crimes, including murder, attempted murder, felony murder, and robbery. The second indictment (No. 01-10-1963) charged defendant alone with first-degree attempted murder, robbery, aggravated assault, and two weapons offenses.

In April and May 2002, at defense counsel's request, defendant underwent a psychological examination to ascertain whether defendant was competent to stand trial. The psychologist noted that defendant was illiterate and provided a provisional diagnosis, which indicated that defendant was suffering from major depression with psychotic features, and questioned his competency to stand trial. "[A] neurological evaluation and CT scan of the brain and/or other neurological testing deemed necessary by a neurologist" was recommended.

In July and October 2002, defendant was examined by the State's psychological expert. The State's psychologist opined that defendant was competent to stand trial but suffered from "malingering memory impairment."

In March 2004, without a formal competency review, defendant entered guilty pleas pursuant to a negotiated agreement, resulting in his conviction for first-degree robbery (No. 01-12-2455), N.J.S.A. 2C:15-1, and first-degree attempted murder (No. 01-10-1963), N.J.S.A. 2C:5-1 and 2C:11-3(a)(1). The plea arrangement called for a maximum sentence of twenty-two years, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, if the court ran the sentences consecutively. All other counts of the indictments were dismissed. On May 14, 2004, the Law Division sentenced defendant to the maximum imprisonment in accordance with the plea arrangement.

Defendant appealed the judgments of conviction pursuant to Rule 2:9-11, and we affirmed in an unpublished order. State v. Reed, No. A-000424-04 (App. Div. Jan. 11, 2006). The Supreme Court denied further review. State v. Reed, 186 N.J. 607 (2006).

In his August 2009 PCR petition, defendant alleged that his 2004 plea was not "knowing and voluntary," largely because he was unable to understand the terms concurrent and consecutive. He claimed that his ability to enter into a plea arrangement was compromised because he was "developmentally challenged mentally and borderline competent to stand trial." The petition did not directly challenge the effectiveness of defense counsel, but focused on the failure of the court to conduct a competency hearing or more fully address defendant during the plea and allocution procedure. Finally, the petition sought only "to amend [defendant's] sentence . . . to a concurrent sentence."

Following a non-evidentiary hearing on February 2, 2010, the PCR court denied defendant's petition. It held that the arguments concerning defendant's purported inability to understand the nature of the plea arrangement's potential consecutive sentencing were "totally without merit in light of the fact that they were discussed at least three times in open court." After an order was entered denying the petition, this appeal followed.

On appeal, defendant presents the following points for our consideration:

POINT I: THE PLEA HEARING WAS DEFICIENT UNDER R[ULE] 3:9-2 BECAUSE THE TRIAL COURT FAILED TO ASCERTAIN THAT THE DEFENDANT'S PLEA WAS KNOWING AND VOLUNTARY, AND FAILED TO PROPERLY INFORM THE DEFENDANT ABOUT ...


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