STATE OF NEW JERSEY VS. GEORGE GAYMON (14-01-0311 AND 15-01-0003, ESSEX COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4013-17T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
GEORGE GAYMON, a/k/a
JOSHUA GRENNEN,
Defendant-Appellant.
__________________________
Argued telephonically May 26, 2020 –
Decided July 22, 2020
Before Judges Messano and Vernoia.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment Nos. 14-01-0311
and 15-01-0003.
Zachary Gilbert Markarian, Assistant Deputy Public
Defender, argued the cause for appellant (Joseph E.
Krakora, Public Defender, attorney; Zachary Gilbert
Markarian, of counsel and on the briefs).
Barbara A. Rosenkrans, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued the cause
for respondent (Theodore N. Stephens II, Acting Essex
County Prosecutor, attorney; Barbara A. Rosenkrans,
of counsel and on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant George Gaymon appeals from his conviction by a jury of
twenty offenses arising out of an armed robbery, two carjackings, a theft of a
motor vehicle, possession of weapons, and fraudulent use of credit cards that
occurred during a three-week crime spree in March and April 2014. He also
appeals from the court's imposition of an aggregate sixty-five-year sentence on
those convictions and his convictions for two offenses to which he pleaded
guilty under a separate indictment.
Defendant's appeal from his convictions following the jury trial is founded
on a singular claim; that the trial court erred by failing to sua sponte hold a
hearing to determine his competency to stand trial. He also challenges his
sentence, arguing it is excessive and was based on the court's consideration of
improper factors. Having reviewed the record in light of the applicable legal
principles, we affirm defendant's convictions, vacate his sentence, and remand
for resentencing.
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2
I.
In November 2016, defendant had two pending indictments against him.
Indictment No. 14-01-0311 charged defendant with third-degree receiving
stolen property, N.J.S.A. 2C:20-7, and fourth-degree hindering his own
apprehension, N.J.S.A. 2C:29-3(b)(4). Indictment No. 15-01-0003 charged
defendant with fifty-eight offenses arising out of a crime spree allegedly
conducted with his co-defendant Mario McClain on various days between March
5 and April 2, 2014. The indictment alleged defendant committed armed
robberies, two carjackings, theft of three automobiles, and various related theft,
conspiracy, and weapons offenses.
Defendant Pleas to Indictment No. 14-01-0311
While jury selection was underway in the trial on Indictment No. 14-01-
0311, defendant pleaded guilty to the two charges in the indictment without the
benefit of a plea agreement. During the plea proceeding, defendant testified
under oath he understood the charges against him and his sentencing exposure.
He waived his constitutional rights to cross-examine the witnesses against him
and to a jury trial. He provided a factual basis for his guilty pleas to the charges
of third-degree receiving stolen property, a motor vehicle, and hindering his own
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3
apprehension by giving a false name to a police officer. Defendant also
expressed satisfaction with the services provided by his counsel.
The court found defendant was "very alert" and "not under the influence
of any medication or anything that would impair his ability to understand these
proceedings." The court determined defendant pleaded "freely and voluntarily"
with a full understanding of the plea form he completed and signed , and the
maximum sentence and penalties that could be imposed. The court agreed to
adjourn defendant's sentencing until the disposition of the charges in Indictment
No. 15-01-0003.
The Trial On Indictment No. 15-01-0003
Thirteen months later, defendant's trial on the charges in Indictment No.
15-01-0003 began. Defendant was represented by the same counsel who
represented him during his plea in the prior proceeding. As the judge attempted
to address pretrial issues, including defendant's insistence that he appear at trial
in his county jail jumpsuit, defendant repeatedly interrupted. When the judge
told defendant it was not appropriate for him to address the court directly,
defendant disagreed, stating he was "the one" against whom "the State has
alleged . . . these offenses." Defendant then instructed the judge not to speak
with his counsel and to "speak to [him] direct[ly]" and reminded the court that
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4
he "stated previously . . . that [he did] not need counsel." When the judge
advised defendant not to interrupt him as he addressed defendant 's counsel,
defendant again asserted, "[h]e is not my counsel."
The judge told defendant he intended to bring jurors into the courtroom,
but defendant interrupted the judge, stating, "[t]here's no – going – to be no
jury," and that he did not consent to a jury. The court said it would address only
defendant's counsel, and defendant again stated, "[h]e is not – my attorney" and
that the court was "depriving [defendant] of [his] rights."
The judge explained that defendant served the court with pro se
submissions asserting "claims or defenses" including lack of subject matter
jurisdiction, lack of personal jurisdiction, claims arising under the common law
writs of mandamus and quo warranto, and defenses under admiralty law,
maritime law, and the Uniform Commercial Code. The court also noted "certain
judicial decisions and a scholarly article regarding the assertion of the alleged
'flesh and blood' defense" had been provided. 1
1
The submissions which were marked as court exhibits C-1 through C-8 are not
included in the record on appeal. It is unclear from the record whether one of
the parties or the court provided the scholarly article and judicial decisions
concerning the "flesh and blood" defense. See James Erickson Evans, The
"Flesh and Blood" Defense, 53 William & Mary L. Rev. 1361 (2012) (discussing
the origins and characteristics of the flesh and blood defense).
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The court addressed defendant directly regarding his submissions.
Defendant asserted none of the "statutes" applied to him because the court
lacked jurisdiction. Defendant declared he was a "blood and flesh" man and a
"[s]overeign citizen." Defendant acknowledged he was in a "tribunal" in the
"Essex County Court" in Newark, and he asserted that because he was "free
born," none of the laws applied to him. Defendant asserted he
"never . . . knowingly, willingly – volunteered, [to] waive or agree to have [his]
rights infringed upon by this quasi . . . court."
The judge noted that defendant sought to represent himself in a matter in
which he could receive a sentence that might keep him in prison for the rest of
his life, and that defendant's legal arguments had no merit. Defendant said he
did not understand, and that he relied on the arguments in his submissions to the
court challenging its jurisdiction and identifying the law that should be applied. 2
The judge described defendant's pro se submissions to the court as
follows: "temporary restraining order, dated March"; "un-prejudiced reservation
of rights, dated November"; "[a] lien claim in April"; "[a] cease and desist order
in December"; an "[a]ffidavit of denial of corporate existence, dated December";
2
Defendant argued to the court that the laws of Oregon applied and that an
unidentified "original bill of rights" applied that defendant explained was
different than "the Bill of Rights that protect . . . government officials."
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and two letters from defendant to the court. The court asked defendant if those
were the submissions upon which he relied in support of his arguments.
Defendant did not respond directly and instead stated, "[l]ike I've said in the past
– you speak of these [] serious charges . . . therefore serious criminal matter
offense[s], whatever." Defendant then stated he did not know what the charges
were.
The judge reminded defendant he had been previously arraigned on the
charges in open court and his counsel had been provided a copy of the charges.
The court informed defendant the charges would be reviewed with him again,
but the court first reviewed each of defendant's arguments based on his claim he
was a sovereign citizen and his assertion of what defendant described as his
"flesh and blood" status. The court provided a summary of the flesh and blood
defense; noted defendant's reliance on the defense; and rejected defendant's
claims the court lacked subject matter and personal jurisdiction, defendant's
requests for writs of mandamus and quo warranto, and defendant's requests for
relief under the Uniform Commercial Code and maritime law.
The court next addressed defendant's request to appear pro se. Based on
defendant's submissions to the court and prior statements, the court asked if it
was defendant's intention "to not accept [his assigned counsel as] his counsel."
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In response, defendant stated, "I don't need counsel." The court noted
defendant's answer was not responsive and asked defendant if he wanted to
represent himself. Defendant responded, "I told you. [] I'm representing myself.
I do not need counsel."
Defendant reiterated that he did not know what the charges were, and the
court directed the assistant prosecutor read the charges to defendant and, for
each, state the maximum sentence that could be imposed if defendant was
convicted.3 When the prosecutor completed the recitation, the court asked
defendant to confirm he was aware of the charges. In response, defendant, who
had no apparent difficulty hearing the judge's question, said he did not "hear"
the prosecutor's recitation. The court, however, found the prosecutor's recitation
was clearly audible.
The court also asked defendant if he heard the court's rulings on the
defenses and claims made on his pro se submissions, and defendant said, "[n]o."
The judge also asked defendant if he would comply with the court's rulings, and
defendant again said, "[n]o."
3
The court also noted the State did not intend to proceed against defendant on
all the charges in the indictment. The State proceeded against defendant on only
twenty-six of the charges in the indictment. The prosecutor's description of the
charges against defendant detailed only those charges for which defendant was
to be tried by the jury.
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8
The court next addressed defendant's request to represent himself at trial
and questioned defendant for the purpose of developing a record on whic h the
request would be decided. In response to the court's inquiry, defendant said he
did not understand that if he represented himself "the same laws, rules of
procedure, rules of evidence appl[ied] to [him], as would apply to any
duly . . . qualified attorney that appears before [the] [c]ourt." Asked if he would
comply with the court's rulings during the trial, defendant said, "[n]o."
Defendant admitted graduating from high school and informed the court
he had previously represented himself in a criminal proceeding. When asked
where he previously represented himself, defendant stated, "[i]n these
tribunals." Defendant stated he did not remember entering the plea to receiving
stolen property and hindering apprehension in November 2016, and he said he
took "psych medication." The court reviewed with defendant his prior criminal
convictions, and defendant stated he could not remember whether he was
represented by counsel or represented himself in any of them.
Defendant denied knowing the elements of the offenses charged against
him, and the court asked how defendant could present a defense to the charges
if he was unaware of their elements. In response, defendant asserted the flesh
and blood defenses the court rejected at the outset. Defendant argued the laws
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9
under which he was charged did not apply to him, the courts operate under the
Uniform Commercial Code, and the judge was an "Article One Judge, that's
dealing with commerce." The court noted it had already rejected those defenses,
and defendant again asserted the charges "don't apply to" him, and said,
"[w]hatever it is that you say the charges are, I still don't understand or know
what the charges are."
The court reminded defendant the prosecutor had just detailed all the
charges against him. The court also explained the jury's purpose was to
determine whether defendant would be convicted or acquitted of the charges,
and, again, defendant said he did not know what the charges were.
The judge repeated defendant's sentencing exposure on the charges and
reminded defendant that if he represented himself and was convicted of all the
charges, he faced a sentence of up to eighty years subject to the No Early Release
Act (NERA), N.J.S.A. 2C:43-7.2. Defendant said he did not understand.
Defendant also said he did not understand the court's statement that he could not
talk directly to the jury about the case but that he could elect to testify at trial
and be subject to cross-examination. In addition, defendant said he did not
understand that if he continued to defy the court's orders, he could lose his right
to be physically present during the trial.
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10
When asked if he was familiar with the Rules of Evidence and the rules
applicable to criminal procedure, defendant simply answered, "[n]o." He also
stated he did not understand that the applicable rules would not be relaxed if he
represented himself at trial.
The court rendered an opinion from the bench on defendant's request to
represent himself at trial. The court noted that it questioned defendant to address
the factors relevant to its determination in accordance with our Supreme Court's
decision in State v. Crisafi, 128 N.J. 499 (1992). The court noted defendant's
pretrial submissions asserted arguments and defenses consistent with the "so
called 'flesh and blood' defense," and the court had "rejected them as a matter of
law." The court further noted that the flesh and blood defense is "a legally
frivolous argument" because "it simply ignores the law as it currently exists and
fails every time."
The court also found defendant made a "conscious decision not to
affirmatively respond to [its] inquir[ies]." The court noted defendant disavowed
the court's jurisdiction and reserved all rights, but the court then misspoke and
inaccurately stated defendant said he "would follow the lawful rulings of the
[c]ourt." Alert, and demonstrating a clear understanding of the court's rulings,
defendant immediately recognized the court's error and asked, "[y]ou said I am
A-4013-17T3
11
gonna follow rules?" Moments later, defendant pointed out to the court, "I never
said I was gonna follow the rules." The judge thanked defendant for the
correction, stating, "I understand that. Thank you for . . . reaffirming that on the
record. Because that further supports the [c]ourt's conclusion . . . you would not
follow the rules."
The court concluded defendant's intention to assert the flesh and blood
defense, his unfamiliarity with the Rules of Evidence and the Rules of Court,
and his stated intention of ignoring the court's orders during trial would
"virtually guarantee his own conviction of several very serious charges here."
The court denied defendant's request to represent himself at trial. 4
The court next addressed defendant's decision to wear jail garb during the
trial. Defendant's counsel advised the court he informed defendant that wearing
the jail garb would be "extremely prejudicial to [defendant's] right to a fair trial,"
and that the jury would "immediately make assumptions about why" he is
wearing the garb. Counsel, however, reported that defendant "wish[ed] to wear
the jail garb," and, even though counsel "advised him numerous times that he
4
Defendant does not appeal from the court's denial of his request to represent
himself at trial, and he makes no argument on appeal that the court erred by
denying his request. An issue that is not addressed in a party's initial merits
brief is deemed waived. Drinker Biddle & Reath LLP v. N.J. Dep't of Law &
Pub. Safety, 421 N.J. Super. 489, 496 n.5 (App. Div. 2011).
A-4013-17T3
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needs to put the trial clothes on," defendant "refuse[d] to do so." Counsel
confirmed he advised defendant of "the severely potentially prejudicial
effect . . . his appearance in jail garb" would have, and defendant "unequivocally
represented that he wishes to appear in court wearing" it.
The prosecutor noted that defendant appeared in "trial clothes" at his
November 2016 plea proceeding, and the prosecutor asserted defendant chose
to wear jail garb at this trial as a stalling tactic. Defendant had no difficulty
understanding the prosecutor's argument; defendant asserted the "reason [he]
came dressed [at his plea was] [be]cause they told me at the jail to put that on. "
The court directed defendant to abide by its prior instruction not to address
the court directly and to communicate through his counsel. Defendant defiantly
said he would continue to speak "directly to" the judge because there "is nothing
. . . prohibiting [him] from speaking directly to" the judge.
The court instructed defendant that his continuing defiance of the court 's
order that he not speak directly to the court could result in a sanction because
the court was required to "preserve the integrity of [the] proceeding." The court
reiterated that it denied defendant's request to represent himself, and that
defendant would not be permitted to address the court or the jury directly, but
instead must address the court through his counsel. Defendant said he did not
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13
understand the court's decision and directive, and he continued to speak to the
court directly.
Defendant continued to direct comments to the court, and the court took a
break in the proceedings to permit defendant and his counsel to confer and
discuss whether defendant wished to change out of the jail garb and into trial
clothes. Later, defense counsel reported to the court he had advised defendant
to wear "trial clothes" but defendant "indicates that he's refusing." Defendant
asked the court what the trial clothes were for and what he was "participating
in," and the court reminded defendant he was ordered not to address the court
directly. Defendant responded, stating "I'm gonna continue to speak to you
directly. I told you that." Defendant also said, "I told you. I'm here; I don't
speak to someone else to speak to the person that I'm talking to."
The prosecutor explained he had been in court on multiple occasions with
defendant during the proceedings in the case, and that defendant never before
had difficulty conversing with the court or the prosecutors. The prosecutor
characterized defendant's sudden claims he did not understand the charges as
"playing" and a "brand new" "tactic" to delay his trial, "to get evaluated or to
claim something." The prosecutor noted that in all prior proceedings defendant
"has been able to articulate and . . . proceed." The prosecutor noted defendant
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14
pleaded guilty in November 2016 "and was able to articulate facts and was able
to understand everything."
Defendant asserted that his prior plea was "because of cohersion [sic] and
threats," and the court found defendant's "reference back to that proceeding
supports the suggestion made by the State . . . that [defendant was] engaged in
some sort of a delay tactic, or a malingering tactic to forestall the jury trial" in
this case. The court told defendant, "[t]hat tactic is not going to work."
Defendant continued to direct comments to the court, and he was
undeterred by the court's numerous requests and orders that he stop doing so.
Defendant refused to communicate with the court through his counsel and told
the judge, "[m]y communication is directly to you," indicating he would
continue to make statements directly to the judge during the trial.
When the court reiterated that defendant was represented by counsel,
defendant pointed out he sent the court a document stating "all rights reserved,
UCC 301." The court questioned defendant about the document, and defendant
explained "UCC" meant "Uniform Commercial Code," which he asserted is "the
system that this court[] operate[s] under." Defendant further claimed the court
was "trying to sell the copyright of a statute and trying to merge that against
[his] blood and flesh, [to] which [he did] not consent." The judge explained the
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Uniform Commercial Code Section 301 applied to the reservation of rights in
the performance of a contract for the sale of goods, but defendant asserted the
provision was applicable to his case because he was "converted into a trust," a
"[c]orporate fictition [sic]" and "[g]overnment only has lawful jurisdiction over
corporate fictitions [sic]. Not blood and flesh."
Defendant continued to ignore the very patient court's requests and orders
that he not address it directly. The court determined defendant's defiance of the
orders constituted a "conscious, intentional decision to waive his right to be
physically present before the court" and directed that he not be physically
present at trial. The court found defendant's "repeated unwillingness . . . to
comply with the order of the [court] . . . that he communicate through counsel,
and his . . . representation . . . he will directly communicate to the [c]ourt, even
when there's a jury . . . represents an unequivocal waiver of his right to be
physically present at . . . trial." The court arranged for defendant to listen to the
proceedings and communicate via computer with his counsel in real time during
the trial, and to explain defendant's physical absence from the trial to the jury. 5
5
Defendant does not challenge on appeal the court's finding defendant should
be physically removed from the court during trial or the arrangements made by
the court to facilitate defendant's access to the proceedings and his trial counsel
from a remote location during trial. The argument is deemed waived. Drinker
Biddle & Reath LLP, 421 N.J. Super. at 496 n.5.
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The following day, defendant refused to leave his cell at the county jail to
be transferred to the courthouse for his trial. He was extracted from his cell and
brought to the court, where the judge asked defendant if he planned to continue
to defy the order that he not directly address the court. Defendant did not
respond to the court's inquiry, and the court and defendant's counsel construed
defendant's refusal to respond as an affirmation that he would continue to
address the court directly if present in the court during trial. The court
reaffirmed that arrangements were made allowing defendant to hear the
proceedings and communicate with his counsel via a computer from a nearby
cell.
Later, jury selection was interrupted because defendant made statements
from the nearby cell that could be heard in the courtroom. The court interrupted
jury selection and, in defendant's presence, discussed defendant's statements
with counsel. Counsel and the court explained defendant's statements were
heard in the courtroom. For example, defense counsel reported he heard
defendant say, "[y]ou're violating my rights," and the prosecutor stated he heard
defendant say, "I didn't waive my rights." Counsel agreed the prospective jurors
were able to hear defendant's statements.
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The court asked defendant if he would continue "to speak out [from his
location] while the jury is in [court]room?" Defendant responded, "[y]es, my
rights are being violated." Defendant explained his position, "[l]ike I said
previously[,] . . . I've reserved my rights . . . . I do not consent to none of these
proceedings."
The court asked if it would be "fair to say" that defendant would continue
to conduct himself as he had "over the last several days," and defendant
explained, "I'm not consentin' to none of this." Defendant further explained he
would "continue to defend [himself] and argue that – what you all are doing is
wrong," and he would "basically keep – not consentin' to these court
proceedings."
Defendant reaffirmed his intention to be defiant and disruptive. He told
the court, "I will continue to deny the [c]ourt's actions, jurisdiction, etcetera."
He also declared he would "continue to object, refute, abate – all of that."
Leaving no doubt he recognized and understood his conduct was not only
disruptive but was intentionally undertaken for the purpose of interrupting the
trial, defendant told the court, "[m]y disrupting is not – it's me not consenting to
what's going on."
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The court excused the jurors who heard defendant's statements and
selected a jury from another panel of prospective jurors. The location from
which defendant was able to hear the proceedings and communicate with his
counsel via computer was moved so that any statements defendant made in his
effort to disrupt the trial could not be heard in the courtroom.
The trial proceeded in defendant's absence. In summary, the evidence
showed that on March 24, 2014, defendant pointed a handgun at a gas station
attendant, who turned over money in response to defendant's demand.
Defendant then joined his co-defendant, McClain, who was waiting nearby in a
stolen motor vehicle, a Dodge Intrepid. The robbery was recorded on a security
camera, and at trial McClain admitted his participation in the robbery, identified
defendant as the individual threatening the attendant with the handgun , and
explained he and defendant had stolen the vehicle in which they escaped.
The evidence also showed later that day, defendant drove the Intrepid into
the rear of another vehicle, an Infiniti. Defendant then exited the Intrepid,
approached the Infiniti, and displayed a handgun and knife. Defendant ordered
the driver of the Infiniti out of the vehicle, and defendant entered the Infiniti and
drove off. Again, McClain testified at trial concerning this carjacking and his
and defendant's involvement in it.
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Three days later, defendant and McClain drove the stolen Infiniti into the
rear of another vehicle, a Mercedes Benz. At gunpoint, defendant and McClain
carjacked the Mercedes Benz and drove off in it. McClain described at trial
defendant's and his participation in the carjacking. The trial evidence also
showed defendant used the credit cards stolen from the driver of the Mercedes
Benz to make purchases at various retail stores.
Following presentation of the evidence, counsel's closing arguments, and
the court's instructions on the law, the jury found defendant guilty of: conspiracy
to commit first-degree robbery and first-degree robbery; two separate
conspiracies to commit two carjacking's; two carjacking's; three counts of
unlawful possession of a handgun and possession of a handgun for an unlawful
purpose; possession of a knife for an unlawful purpose; theft of a motor vehicle;
receiving stolen property, a motor vehicle; conspiracy to commit credit card
fraud; and four counts of credit card fraud.
At sentencing, the court explained it received a submission from
defendant in pertinent part claiming that he entered his November 9, 2016 plea
based on "coercion and threat tactics." Defendant claimed his counsel, the
prosecutor, and the plea judge had "full knowledge that [defendant] was not in
[his] own state of mind and that [he] was . . . under heavy psychiatric medication
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for [his] depression, anxiety[,] and stress." Defendant asserted the individuals
"conspired with another" and placed him under duress.
Defendant's counsel informed the court that he spoke to defendant about
the submission and understood defendant sought to withdraw his November 9,
2016 plea. Defendant's counsel also explained he represented defendant at the
plea, and there were "extensive discussions" about the plea, defendant "brought
to [counsel's] attention that he wished to plea," and counsel "had no reason to
believe that it was not voluntary."
The court addressed defendant's putative application to withdraw the plea,
rejecting defendant's claim his status as a sovereign citizen required granting the
requested relief. The court explained it rejected defendant's request to withdraw
his plea based on his claimed sovereign citizen status for the same reasons it
previously rejected defendant's arguments and defenses based on the status when
the trial commenced.
The court addressed defendant's request to withdraw his plea under the
factors explained by the Court in State v. Slater, 198 N.J. 145, 157-58 (2009).
The court noted defendant made no claim of innocence, and the court explained
it reviewed the plea form completed by defendant on November 9, 2016, and
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listened to the recording of the plea proceeding.6 The court observed that on the
plea form defendant responded in the negative to question asking if defendant
had been threatened into pleading guilty, and defendant responded in the
affirmative to the question asking if he was satisfied with the services of his plea
counsel. Thus, the court concluded the reason defendant proffered for the
requested withdrawal of the plea—that he pleaded under duress and threats—
was undermined by defendant's sworn representations when he pleaded.
The court further found the plea was entered pursuant to a plea agreement
and the State would suffer prejudice if the plea was withdrawn. The court
therefore denied defendant's putative motion to withdraw his November 9, 2016
guilty plea.7
The court proceeded to sentence defendant on the two charges to which
he pleaded guilty and the twenty charges for which he was convicted at trial.
The court noted the presentence investigation report included "a reference . . .
6
The court also played the recording of the November 9, 2016 plea proceeding
during the sentencing proceeding following his trial.
7
Defendant does not appeal from the court's denial of his motion to withdraw
his November 9, 2016 guilty pleas to the two charges in Indictment No. 14-01-
0311.
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regarding mental health. Poor mental health."8 The court asked counsel if he
had any reason to question defendant's competency during the case in which
defendant pleaded. Counsel advised the court he did not "see anything" during
his interactions with defendant in that matter suggesting defendant was not
competent. Defense counsel also informed the court he did not perceive
anything during the trial suggesting defendant was not competent. The court
observed that the recording of the plea proceeding showed defendant was alert
and cooperative in that matter.
The court requested that the prosecutor detail the plea negotiations that
took place in the case that went to trial. The prosecutor explained there were
extensive plea negotiations, with defendant's active participation, including
making counteroffers to those proposed by the State. The State made a final
offer of twenty years just prior to the commencement of jury selection, which
defendant indicated was acceptable with the condition that he be released from
custody pending sentencing. The State rejected the offer because it would not
8
Defendant refused to be interviewed for a presentence investigation report
following his convictions by the jury at trial. The presentence investigation
report, however, stated that during defendant's December 2016 interview for the
presentence investigation report following his November 9, 2016 plea,
defendant self-reported he is "bipolar," has a "split personality," had two one-
month hospital admissions in 2003 and another one-month hospital admission
in 2006 "for mental health," and takes "various meds for mental health."
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23
allow defendant's release pending sentencing. Thus, the court found there were
communications about resolving the case through a negotiated plea up until jury
selection was to begin, and the court noted, without objection from defense
counsel, that defense counsel would not have engaged in those negotiations
without defendant's authorization.
The court stated throughout the trial it was aware that if it had a bona fide
doubt about defendant's competency to proceed to trial under N.J.S.A. 2C:4-4,
it was required to order further proceedings on the issue of defendant's
competency. The court explained, however, the course of the plea negotiations
through the commencement of jury selection "demonstrated an ability [by
defendant] to participate in the presentation of his defense and engage[] in
negotiations."
The court further found that during the colloquy with defendant during the
Crisafi hearing, defendant elected to rely on his written submissions and would
not provide responsive answers to the court's questions. The court determined
defendant's actions did not reflect a lack of comprehension, but instead
constituted "a tactical decision not [to] engage in a pointed inquiry that would
result in the . . . record that would reject [his] position."
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Defense counsel represented to the court his interactions with defendant
never provided any reason to question defendant's competency to stand trial.
Defense counsel said:
Your Honor, I'd just like to reiterate, I have never seen
any reason for the [c]ourt to order a competency
evaluation. I have dealt with [defendant], I have
represented him for – I believe it's about four years
right now. I have had numerous interactions with him
at the County Jail, in person, Your Honor. I have never
seen anything that would require a competency
evaluation, Your Honor.
The court also explained that its determination defendant could not
represent himself at trial was not based on a finding defendant was unable to
understand what was going at the trial, but instead was founded on a
determination defendant would not abide by the court's order that he speak
through his counsel. The court further noted that its concern about defendant's
unwillingness to comply with its orders was validated when, after defendant was
removed from the courtroom and relocated to a nearby cell, he made
inappropriate comments for the purpose of tainting the jury. The court also
observed that defendant's pretrial submissions, comments, and conduct in the
courtroom at the outset of the trial were consistent with the "'sovereign citizen'
belief system" and not evidence of a lack of competence to stand trial or be
sentenced.
A-4013-17T3
25
The court reviewed the circumstances attendant to the robbery,
carjackings, and other crimes for which defendant was convicted, as well as
defendant's significant prior criminal history.9 The court found aggravating
factors three, the risk defendant would reoffend, N.J.S.A. 2C:44-1(a)(3); six, the
nature and extent of defendant's prior record, N.J.S.A. 2C:44-1(a)(6); nine, the
need to deter defendant and others from violating the law, N.J.S.A. 2C:44 -
1(a)(9); and thirteen, the defendant used or possessed a stolen motor vehicle
during the commission of the crimes, N.J.S.A. 2C:44-1(a)(13). The court further
determined there were no mitigating factors and, after weighing the factors,
concluded the aggravating factors preponderated over the non-existent
mitigating factors.
Based on those findings, the court imposed a five-year sentence on the
third-degree receiving stolen property charge under Indictment No. 14-01-0311
and a concurrent time-served sentence of 1,452 days on the fourth-degree
hindering charge.
9
Based on defendant's criminal history, he was eligible for extended term
sentences as a persistent offender under N.J.S.A. 2C:44-3. For reasons it
expressed during the sentencing proceeding, the court denied the State's motion
for imposition of an extended term sentence.
A-4013-17T3
26
The court explained the crimes for which defendant was convicted under
Indictment No. 15-01-0003 were committed while he was on pretrial release on
the charges in Indictment No. 14-01-0311, and, as such, there was a presumption
the sentences on the former indictment would run consecutive to the sentence
imposed on the latter. See N.J.S.A. 2C:44-5(h). Nonetheless, the court engaged
in an analysis under State v. Yarbough, 100 N.J. 627 (1985), to determine if
consecutive or concurrent sentences should be imposed on the sentences on the
separate indictments, as well as those in Indictment No. 15-01-0003.
Applying the Yarbough standard, the court found the crimes charged in
the two indictments were committed at wholly different times and involved
different victims, and therefore the sentences imposed on the two indictments
should be consecutive. With regard to the crimes for which defendant was
convicted under Indictment No. 15-01-0003, the court found the robbery of the
gas station attendant and the two carjackings also constituted distinct acts and
involved separate victims, incidents, and separate acts of violence. Thus, the
court determined consecutive sentences were appropriate for defendant's
commission of those offenses.
The court sentenced defendant to a twenty-year term on the first-degree
robbery charge subject to NERA's requirements, consecutive to the sentence
A-4013-17T3
27
imposed under Indictment No. 14-01-0311. The court imposed a thirty-year
consecutive sentence on the March 24, 2014 carjacking. Noting that McClain
was the more active participant in the March 27, 2014 carjacking and
considering the overall length of the aggregate sentence to be imposed, the court
imposed a ten-year consecutive term on that charge.
The court found all the other offenses either merged with the offenses for
which the court imposed the custodial terms, or it imposed concurrent sentences
on the convictions that did not merge. Thus, the court's aggregate sentence on
the two indictments was sixty-five years, with sixty years subject to the
requirements of NERA. This appeal followed.
Defendant presents the following arguments for our consideration:
POINT I
[DEFENDANT'S] RIGHT TO A FAIR TRIAL WAS
VIOLATED BECAUSE THE TRIAL COURT
FAILED TO ORDER A PSYCHIATRIC
EXAMINATION TO DETERMINE WHETHER HE
WAS COMPETENT TO STAND TRIAL.
A. Evidence Raising "Bona Fide Doubt" as to
[Defendant's] Competence.
B. The Court Violated [Defendant's] Right to Due
Process by Failing to Order a Psychiatric Evaluation to
Ensure He Was Not Tried While Incompetent.
A-4013-17T3
28
POINT II
[DEFENDANT'S] SENTENCE IS EXCESSIVE
BECAUSE THE COURT IMPROPERLY WEIGHED
HIS PRO SE FILINGS AGAINST HIM IN
AGGRAVATION AND FAILED TO JUSTIFY ITS
IMPOSITION OF CONSECUTIVE MAXIMUM
SENTENCES.
II.
Defendant presents a singular argument in his appeal from his convictions
of twenty offenses following his trial. He argues the court erred by failing to
sua sponte order a psychiatric examination to determine whether he was
competent to stand trial. Defendant does not contend he was not competent to
stand trial; he asserts only that the court was presented with information raising
a bona fide doubt about his competency and, for that reason, the court should
have ordered a psychiatric examination to determine his competency.
We first consider the legal principles governing defendant's argument.
The Due Process Clause of the Fourteenth Amendment prohibits states from
trying, convicting, or sentencing mentally incompetent defendants. Pate v.
Robinson, 383 U.S. 375, 378 (1966). A court's failure to invoke "procedures
adequate to protect a defendant's right not to be tried or convicted while
incompetent to stand trial deprives him of his due process right to a fair trial. "
Drope v. Missouri, 420 U.S. 162, 172 (1975); see also State v. Purnell, 394 N.J.
A-4013-17T3
29
Super. 28, 47 (App. Div. 2007); State v. M.J.K., 369 N.J. Super. 532, 547 (App.
Div. 2004).
Consistent with a defendant's due process rights, our Criminal Code
provides that "[n]o person who lacks capacity to understand the proceedings
against him or to assist in his own defense shall be tried, convicted or sentenced
for the commission of an offense so long as such incapacity endures." N.J.S.A.
2C:4-4(a). A person is considered mentally competent to stand trial on criminal
charges if the proofs satisfy the requirements of N.J.S.A. 2C:4-4(b). See State
v. Gorthy, 226 N.J. 516, 531-32 (2016). At a minimum, the defendant must have
sufficient present ability to consult with his or her lawyer with a reasonable
degree of rational understanding and a rational as well as factual understanding
of the proceedings against him or her. Purnell, 394 N.J. Super. at 47 (citing
Dusky v. United States, 362 U.S. 402, 402 (1960)). "In New Jersey, the test for
competence to stand trial on criminal charges [is] [ ] codified in N.J.S.A. 2C:4-
4." M.J.K., 369 N.J. Super. at 547-48.
A court may sua sponte "'appoint at least one qualified psychiatrist to
examine and report upon the mental condition of the defendant' whenever a
defendant's fitness to proceed appears questionable." State v. Harris, 181 N.J.
391, 457-58 (2004) (quoting N.J.S.A. 2C:4-5(a)). Where, as here, a defendant
A-4013-17T3
30
challenges a court's decision not to sua sponte order a competency examination,
our standard of review "is a strict one." Id. at 458 (quoting State v. Spivey, 65
N.J. 21, 37 (1974)); see also M.J.K., 369 N.J. Super. at 548 (describing "our role
in reviewing the decisions of a trial judge respecting competence as 'typically,
and properly, highly deferential'" (quoting State v. Moya, 329 N.J. Super. 499,
506 (App. Div. 2000))). A court's failure to exercise its authority to order a
competency evaluation "will not be reviewed on appeal, unless it clearly and
convincingly appears that the defendant was incapable of standing trial."
Spivey, 65 N.J. at 37 (quoting State v. Lucas, 30 N.J. 37, 73-74 (1959)). In
order to satisfy "[t]he 'clear and convincing' standard of review" on appeal, a
defendant must show a "'bona fide doubt' as to [his] competence to stand trial."
Ibid. (citing Pate, 383 U.S. at 385) (alteration in original).
"The evidence necessary to establish the requisite bona fide doubt as to a
defendant's competence is difficult to articulate . . . ." State v. Lambert, 275
N.J. Super. 125, 129 (App. Div. 1994). "[T]here are 'no fixed or immutable
signs which invariably indicate the need for further inquiry to determine fitness
to proceed.'" Gorthy, 226 N.J. at 530 (quoting Drope, 420 U.S. at 180). In
Drope, the United States Supreme Court explained, for example, that "evidence
of a defendant's irrational behavior, his demeanor at trial, and any prior medical
A-4013-17T3
31
opinion on competence to stand trial are all relevant in determining whether
further inquiry is required, but that even one of these factors standing alone may,
in some circumstances, be sufficient." 420 U.S. at 180. The "'[m]ere suggestion'
of incapacity is not sufficient," Spivey, 65 N.J. at 36, and a court is not required
to conduct a competency hearing "in the absence of . . . substantial evidence of
the existence of a degree of mental disorder which would unfit the defendant
from conducting his cause or instructing his counsel," id. at 36-37 (citations
omitted).
The clear and convincing standard of review of a court's decision not to
sua sponte hold a competency hearing "is consistent with the view that defense
attorneys are in a better position to assess a defendant's competency . . . ."
Harris, 181 N.J. at 458. Counsel's failure to raise the issue of competency
weighs against a finding there was clear and convincing evidence a defendant is
incompetent because "judges must depend to some extent on counsel to bring
[these] issues into focus." Ibid. (alteration in original) (quoting Drope, 420 U.S.
at 176-77). "[B]ecause defense attorneys are in a better position than the trial
court to question a defendant's competency, the fact that [counsel finds] no
reason to question [a defendant's] competency must be given substantial weight"
in determining whether a hearing was required. Ibid. A court is not required to
A-4013-17T3
32
accept counsel's representations concerning a defendant's competency but "a
lawyer's representations concerning the competence of [a] client, . . . is
unquestionably a factor which should be considered." Drope, 420 U.S. at 177
n.13 (citations omitted).
Measured against these standards, we do not discern any basis to reverse
defendant's convictions based on any purported error by the trial court in not sua
sponte ordering a psychiatric examination to assess defendant's competency to
stand trial. Defendant fails to demonstrate there was clear and convincing
evidence he was incompetent to stand trial, and the record before the trial court
did not establish a bona fide doubt about defendant's competence to stand trial.
See Spivey, 65 N.J. at 37.
We begin by noting defendant's counsel represented defendant over a
four-year period in two separate criminal proceedings and found no reason to
suggest defendant was not competent to stand trial. Counsel never raised the
issue of defendant's competence on his own, and, when questioned by the court,
he affirmatively represented that during his representation of defendant in the
initial case in which defendant pleaded guilty, as well as the case that was tried,
he found nothing in his interactions with defendant suggesting defendant was
incompetent. The court could reasonably infer from counsel's decision never to
A-4013-17T3
33
request a competency hearing, and his affirmative representations to the court,
that counsel determined defendant was able to communicate to him about the
case during trial and to assist in his own defense. See Dusky, 362 U.S. at 402
(explaining, in part, the standard for determining competency to stand trial is
"whether [the defendant] has sufficient present ability to consult with his lawyer
with a reasonable degree of rational understanding").
We are mindful that defense counsel's perception of defendant is not
dispositive of the issue of defendant's competence, Harris, 181 N.J. at 458, but
the court did not err in relying on defense counsel's decision not to raise the
issue and counsel's affirmation that there was no basis to challenge defendant's
competence as weighing heavily against any bona fide doubt as to defendant's
competency during trial. "It is to be ordinarily expected that defense counsel,
who is in a far better position than the trial judge to assay the salient facts
concerning the defendant's ability to stand trial and assist in his own defense,
would originate the request that such an inquiry be conducted." Spivey, 65 N.J.
at 37 (quoting Lucas, 30 N.J. at 73-74). Counsel's view of defendant's
competence can be properly afforded "substantial weight." Harris, 181 N.J. at
458.
A-4013-17T3
34
Moreover, the record before the court showed that defendant
demonstrated his understanding of the proceedings, the pendency of the charges
against him, and that he would be tried in a court before a jury. He filed a series
of pro se requests for relief with the court, including requests for dismissal of
the charges and the proceedings founded on claims that the court lacked subject
matter jurisdiction and personal jurisdiction. He also sought leave to act as his
own attorney during trial. In other words, defendant not only expressly sought
dismissal of the charges, he also asserted that if the charges were not dismissed,
he should be permitted to represent himself before the jury at trial. To be sure,
and as the trial court fully addressed and explained, defendant's arguments
supporting his requests were based on misconceptions about, and
misinterpretations of, the applicable law. His requests, however, reflected a
clear and cogent understanding of the proceedings against him; he asserted
defenses to the court's jurisdiction to conduct the trial and asserted a meritless,
but mindful, strategy to obtain a dismissal of the charges before the trial began.
His actions belie any claim the court was presented with a bona fide doubt about
his competence.
The record also shows that until the commencement of the trial, defendant
actively participated with his counsel in attempting to resolve the charges
A-4013-17T3
35
against him with a plea bargain. If the State had accepted the conditions he
offered, it can be reasonably inferred defendant was willing to plead guilty to
certain charges in order to minimize his sentencing exposure and end the case
before trial. Indeed, through a series of offers and counteroffers exchanged
between the State and defendant, it appears the matter would have been resolved
but for the State's rejection of defendant's request that his plea be accepted on
the condition he be released from custody pending sentencing. Defendant's
interactions with his counsel to almost bring the matter to a negotiated resolution
confirms his understanding of the charges, his ability to interact and
communicate with counsel, and his recognition that if he did not accept the
State's final plea offer, the matter would proceed to trial before a jury.
Defendant's pretrial submissions to the court, and his statements and
actions in the court once the trial began, expressed his intention to rely on his
status as a purported sovereign citizen and the sovereign citizen's flesh and blood
defense to the charges against him. Defendant's misguided reliance on the
principles espoused by individuals adopting the sovereign citizen philosophy in
response to the proper prosecution of criminal offenses is nothing new. Courts
have uniformly rejected the claim defendant makes here; that espousal of
meritless and nonsensical sovereign citizen defenses, reliance on sovereign
A-4013-17T3
36
citizen's beliefs and principles, and trial conduct consistent with those beliefs
and principles, created a bona fide doubt about his competence to stand trial. In
United States v. Neal, the Ninth Circuit Court of Appeals found:
It is not disputed that [the defendant] made numerous
comments and filed a variety of documents disputing
jurisdiction and other "nonsensical" issues (e.g., [the]
United States is a corporation. . . . as a corporation it
cannot interact with human beings; "the sale of bonds
based on Petitioners [sic] conviction by the court
creates a financial conflict of interest".). However, [the
defendant] also professed a "sovereign citizen" belief
system. His comments and conduct were indicative of
that belief, not a lack of competence. [The defendant]
cannot now use those beliefs as an expression of
incompetency. "In the absence of any mental illness or
uncontrollable behavior, [the defendant] had the right
to present [his] unorthodox defenses and argue [his]
theories to the bitter end."
[776 F.3d 645, 657 (9th Cir. 2015) (emphasis added)
(footnote omitted) (quoting United States v. Johnson,
610 F.3d 1138, 1147 (9th Cir. 2010)).]
Similarly, in United States v. Brown, the First Circuit Court of Appeals
found a proclaimed sovereign citizen's meritless legal arguments, "did not
evidence confusion on [the defendant's] part about the legal proceedings against
him, but rather reflected firmly held, idiosyncratic political beliefs punctuated
with a suspicion of the judiciary." 669 F.3d 10, 18 (1st Cir. 2012); see also
United States v. DiMartino, 949 F.3d 67, 73 (2d Cir. 2020) ("agree[ing] with
A-4013-17T3
37
other circuits that have held that political views derived from tax protester
movements—however they appear to the uninitiated—are not, by themselves,
sufficient evidence of mental incompetence"); United States v. Gooch, 595 Fed.
App'x 524, 527-28 (6th Cir. 2014) (finding the defendant's use of "the
incomprehensible babble of . . . the 'Sovereign Nation'" did not provide grounds
to question the defendant's competence because "delusional and irrational" tax-
protestor beliefs are irrelevant to the defendant's competence); United States v.
James, 328 F.3d 953, 955-56 (7th Cir. 2003) ("Many litigants articulate beliefs
that have no legal support . . . . Sometimes these beliefs are sincerely held,
sometimes they are advanced only to annoy the other side, but in neither event
do they imply mental instability or concrete intellect so deficient that trial is
impossible. . . . One person with a fantastic view may be suspected of delusions;
two people with the identical view are just oddballs.").
Defendant's reliance on his status as a sovereign citizen and the flesh and
blood defense in his pretrial submissions provided context for the court's
consideration of whether his conduct at trial established a bona fide doubt about
his competence. Defendant's refusal to comply with the court's orders, his
refusal to provide responsive answers to the court's questions, and his self-
serving claims he did not understand the charges or what was occurring in the
A-4013-17T3
38
court were properly viewed as consistent with his view the court had no personal
or subject matter jurisdiction over him based on his status as a sovereign citizen.
Defendant's conduct did not demonstrate incompetence, and he told the
court so. As noted, he provided a cogent and unequivocal explanation of his
conduct that is consistent with the court's decision there was no basis to question
defendant's competency: he declared he would "continue to deny the [c]ourt's
actions [and] jurisdiction" and "continue to object, refute, abate – all of that"
because his "disrupting" was "[him] not consenting to what's going on." In other
words, defendant admitted the actions and conduct he now contends created a
bona fide doubt about his competence were undertaken for the intended purpose
of interfering with the orderly conduct of his trial.
In sum, based on all the circumstances presented, there is no basis to
conclude the record before the trial court established a bona fide doubt about
defendant's competence. The court did not err by failing to sua sponte order a
psychiatric exam of defendant to determine his competence.
III.
Defendant also appeals from his sentence. He claims that the court erred
in imposing the aggregate sixty-five-year sentence by improperly finding and
weighing aggravating factor nine, and by failing to justify its imposition of
A-4013-17T3
39
consecutive maximum sentences on the receiving stolen property charge to
which he plead, the first-degree robbery charge, and the March 24, 2014
carjacking offense for which he was convicted at trial.
We review a "trial court's 'sentencing determination under a deferential
[abuse of discretion] standard of review.'" State v. Grate, 220 N.J. 317, 337
(2015) (quoting State v. Lawless, 214 N.J. 594, 606 (2013)); see also State v.
Pierce, 188 N.J. 155, 169-70 (2006) ("On appellate review, the court will apply
an abuse of discretion standard to the sentencing court's explanation for its
sentencing decision within the entire range."). We affirm a sentence if: (1) the
trial court followed the sentencing guidelines; (2) its findings of fact and
application of aggravating and mitigating factors were "based upon competent
credible evidence in the record"; and (3) the application of the law to the facts
does not "shock[] the judicial conscience." State v. Bolvito, 217 N.J. 221, 228
(2014) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)). When reviewing a
trial court's sentencing decision, we will not "substitute [our] judgment for that
of the sentencing court." State v. Fuentes, 217 N.J. 57, 70 (2014).
Defendant argues the court erred by finding aggravating factor nine, the
need to deter defendant and others from violating the law, N.J.S.A. 2C:44 -
1(a)(9). The court found aggravating factor nine based on defendant's
A-4013-17T3
40
continuing course of criminal conduct reflected in his significant juvenile and
adult records. The court also noted defendant's adherence to the "sovereign
citizen doctrine" and explained it had no validity in our legal system. The court
found there was a need to deter others from engaging in the type of criminal
conduct that led to defendant's conviction, and also there was a need to deter
others from adhering to the sovereign citizen doctrine.
We agree with defendant's claims the court erred by finding a need to deter
others from adhering to the sovereign citizen doctrine as a basis for finding
aggravating factor nine. Aggravating factor nine requires a determination of
whether there is a need to deter defendant from violating the law, N.J.S.A.
2C:44-1(a)(9), not from deterring an individual from adhering to a nonsensical
and baseless set of beliefs about our laws and legal system. We do not, however,
find the court's brief reference of the need to deter acceptance of the sovereign
citizen doctrine requires reversal of defendant's sentence because defendant's
extensive and significant prior record, and his course of conduct in committing
the very serious offenses for which he was convicted, otherwise provide ample
support for the court's finding of aggravating factor nine.
Defendant also claims the court erred by imposing maximum consecutive
sentences on three of the offenses for which he was convicted, and by failing to
A-4013-17T3
41
consider the overall length of the aggregate sentence. We first observe the court
conducted a thoughtful and detailed review of the Yarbough factors in
determining whether to impose the consecutive sentences, see Yarbough, 100
N.J. at 643-44, and the record supports the court's findings. The crimes were
separate and distinct from each other, committed at different times and locations,
and involved separate victims. Ibid. The robbery and the carjackings also
involved separate threats of violence. Ibid.
Our Supreme Court has cautioned "against the imposition of multiple
consecutive maximum sentences unless circumstances justifying such an
extraordinary overall sentence are fully explicated on the record." State v.
Randolph, 210 N.J. 330, 354 (2012). "The focus should be on the fairness of
the overall sentence, and the sentencing court should set forth in detail its
reasons for concluding that a particular sentence is warranted." State v. Miller,
108 N.J. 112, 122 (1987).
As noted, the court conducted a well-supported and reasoned analysis of
the Yarbough factors supporting its imposition of consecutive sentences. The
court also separately explained its reasons for imposing maximum sentences for
defendant's convictions for the receiving stolen property charge to which he
pleaded and the first-degree robbery and March 24, 2014 carjacking for which
A-4013-17T3
42
he was convicted at trial. The court further explained the reason it imposed the
minimum sentence on defendant for his participation in the March 27, 2014
carjacking—the primary role in that carjacking was played by McClain.
Beyond explaining its decision to impose the maximum sentences for the
three offenses and separately explaining its decision to make the four sentences
consecutive, the court did not satisfy our Supreme Court's requirement in
Randolph. The sentencing court did not explicate the reasons supporting its
imposition of three consecutive maximum sentences totaling fifty-five years,
and the court made no findings addressing the overall length of the sentence
imposed. Randolph, 210 N.J. at 354.
We therefore vacate defendant's sentence and remand for resentencing. In
doing so, we offer no opinion on the length of the sentence imposed and our
opinion should not be read to the contrary. That decision is left to the sound
discretion of the sentencing court.
Defendant's convictions are affirmed. We vacate his sentence and remand
for resentencing. We do not retain jurisdiction.
A-4013-17T3
43