STATE OF NEW JERSEY VS. BINH THACH

Defendant Binh Thach appeals from the dismissal of his

petition for post-conviction relief (PCR) following an

evidentiary hearing. He contends his plea counsel was

constitutionally deficient by failing to discover readily

available medical records suggesting defendant suffered from a

serious mental condition at the time he committed his crimes and

by failing to secure a competency evaluation before counseling

him to plead guilty to reduced charges. He also claims his

counsel was ineffective for failing to assert an insanity

defense. Because we conclude the Law Division 1) failed to

account for objective medical evidence of defendant's

significant brain damage and relate that to its analysis of

whether counsel was ineffective for failing to uncover

defendant's medical records and to have a competency evaluation

performed, and 2) failed to explain its acceptance of the

State's expert's opinion that defendant was competent to stand

trial as of the expert's evaluation in 2011, contrary to the

court's own 2011 finding that defendant was incompetent and

unfit to proceed on his PCR petition, we vacate denial of the

petition and remand for a new hearing.

I.

Defendant shot and killed two people and wounded a third in

Camden in 2003. All four were acquainted as they lived in the

same rooming house on Cramer Street. The victims were all

Vietnamese. Defendant is Cambodian, although he was born and

raised in Vietnam. Defendant had been in the United States for

A-2023-13T1 3

four years and had lived at the Cramer Street rooming house, the

address of which he could not remember after the shooting, for

four months. He was not employed and had been collecting

welfare for two years. He turned himself into the police the

day after the murders and made a full confession, waiving his

right to counsel. Because police interviewed him before taking

his statement, what we know of that confession is defendant's

largely one-word answers to leading questions posed by the

interviewer. As the confession and defendant's mental state at

the time he gave it are key facets of the present appeal, we

discuss them at some length.

Through an interpreter, defendant agreed with the

interviewer that defendant claimed Tam Nguyen, the man who lived

in the room next to his in the basement of the rooming house,

stabbed him "on the butt" with a folding knife two weeks before.

He agreed that Tam and another man who lived upstairs, Son Do,

and two other men defendant did not know were drinking in the

rooming house that night. He further agreed that, although

asked, he did not join them because he was sick. He agreed he

passed by the group a few times "and Son from Atlantic City

tickled you and you both laughed, correct?" The interviewer

asked, "Is it true, on the final pass, Tam stabbed you?"

A-2023-13T1 4

Defendant replied, "Yes, Son tickled me in the front and Tam

from the back . . . stabbed me."

Defendant agreed he did not confront Tam or ask why Tam

stabbed him, but instead walked back to his room. The

interviewer then asked whether it was correct that defendant had

a theory as to why Tam stabbed him, which was that Tam didn't

like him because Tam knew the man responsible for breaking

defendant's arm the year before. Defendant agreed with that

statement and added: "Yes, I think that those men broke my arm

so that I would have a reason to crack their heads, so they

would have a reason to make me pay restitution. But, if they

stabbed me and I didn't fight back, that makes me a coward."

Turning to the night before the murders, defendant agreed

with the interviewer that there was a party going on at the

rooming house, when at about 10:00 p.m. Tam cursed at him saying

"Fuck your mother. I'm going to beat you until you die."

Defendant agreed he cursed back and was attacked by Tam, Son and

two other men who lived in the house. He also agreed that the

men "twisted [his] head" until he couldn't breathe and only

stopped when Tam's girlfriend and two other women who lived at

the house yelled at them to stop. Tam continued to curse at

defendant, however, and the four men soon fell to beating him

again. Defendant agreed that the men again twisted his neck

A-2023-13T1 5

until he couldn't breathe and only stopped when the three women

again intervened. Defendant agreed he then went to bed.

The interviewer then asked whether it was correct defendant

was sitting on his bed smoking a cigarette the next morning

around 7:00 a.m. when he saw Tam leave his room and go upstairs

to the bathroom. Defendant agreed and also agreed that when Tam

returned downstairs, he ran into defendant's room and attacked

defendant again. Defendant confirmed he was trying to defend

himself when Tam, for what reason defendant did not know,

suddenly ran out of the room and up the stairs. Defendant

agreed that was when he returned to his bed and retrieved a

revolver from under the mattress.

Defendant confirmed he shot Tam on the staircase, and

chased him upstairs into the kitchen where he shot him two or

three times at close range. He agreed with the interviewer that

he then saw Tam's girlfriend start up the stairs from the

basement and then turn and run back into the room she shared

with Tam. He also agreed he fired once at Son who had run into

the kitchen from his room upstairs. When the interviewer asked

whether defendant also pointed the gun at another occupant, Cho,

but did not fire, defendant replied, "Because he ran to a room,

I could not shoot him." Defendant also agreed that when

defendant turned back to Tam, who was still alive, defendant

A-2023-13T1 6

reloaded his gun with the one bullet he had left and shot him

again at very close range. Finally, defendant agreed with the

interviewer that defendant never shot at Tam's girlfriend or any

of the other women in the house because the women had helped

him. When another officer asked if defendant's anger was the

result of Tam beating and stabbing him two weeks prior,

defendant answered, "That person did it intentionally."

In a statement to the police, the surviving victim, Tam's

girlfriend, gave a different account of the hours before the

shootings. She claimed there was no party, only the housemates

sharing dinner in the kitchen when defendant came home drunk and

tried to put Tam into a headlock. Son pulled defendant off Tam,

and the victim and another woman led him downstairs to his room.

The victim reported, "[h]e mumbling and yelling he mumbling, he

mumbling a lot." When asked whether she could hear what

defendant was mumbling, she replied, "I gonna kill you that next

day." She reported defendant was still mumbling to himself when

she and Tam went to bed sometime later.

Two other women in the house confirmed the victim's

account. Son's girlfriend said she came downstairs to shouting

in the kitchen and saw defendant and Tam fighting and defendant

saying "if Tam doesn't leave tonight, in the morning [defendant]

would kill Tam." Another woman living in the house only heard

A-2023-13T1 7

that defendant and Tam were fighting. She then went downstairs

to tell defendant to go to sleep. Neither woman appears to have

been in the house at the time of the shootings.

The victim claimed Tam went out as usual at 7:00 a.m. to

get coffee but did not return with it. When she heard Tam

screaming from the kitchen, she left their room and looked up

the stairs where she saw defendant in the kitchen standing next

to the stove. Defendant said nothing but simply pointed the gun

and shot her, hitting her in the left side of her chest. She

staggered back into her room and called the police.

Defendant was initially charged with two counts of first

degree murder as well as attempted murder. The prosecutor

subsequently downgraded those charges, and, after waiving

indictment, defendant entered a negotiated guilty plea to two

counts of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4

and second-degree aggravated assault, N.J.S.A. 2C:12-1b(1).

Judge Linda Baxter1 took the plea and sentenced him on the

manslaughter counts to concurrent thirty-year prison terms

subject to the periods of parole ineligibility and supervision

required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2,

and to a consecutive eight-year NERA term on the aggravated

assault.

1 Judge Baxter did not hear defendant's PCR petition.

A-2023-13T1 8

Defendant did not file a direct appeal. He filed a PCR

petition in 2008. Counsel was appointed and, a year later,

after obtaining defendant's medical records, filed an amended

petition alleging defendant was denied the effective assistance

of counsel by his plea counsel's failure to raise defendant's

competency to stand trial and to investigate and assert defenses

of insanity, diminished capacity and self-defense.

II.

This PCR matter has an unfortunately protracted history.

It has been handled by two different prosecutors and three

different judges over the course of five years. Although we do

not fault anyone for that, we conclude the fragmented approach

greatly contributed to the problems we find in the disposition

before us.

After assigned PCR counsel obtained defendant's medical

records and filed the amended petition, the first PCR judge

heard argument and granted defendant an evidentiary hearing in

January 2010. In April 2010, a second judge presided over the

first day of a two-day evidentiary hearing at which trial

counsel and an investigator from the public defender's office

were scheduled to testify. Following the direct examination of

defendant's plea counsel, the hearing was adjourned without date

to allow the defense to secure an expert report. Two months

A-2023-13T1 9

later, in June, the parties agreed that plaintiff would undergo

an MRI (magnetic resonance imaging) of his brain.

In November, defendant's MRI was reviewed by Reuben C. Gur,

Ph.D., Professor of Psychology in Psychiatry, Neurology and

Radiology, at the University of Pennsylvania School of Medicine.

Dr. Gur, who deliberately avoided acquiring any knowledge of the

facts of the case, issued a report concluding that "[s]tructural

imaging of [defendant's] brain shows extensive brain damage."

In his report, Dr. Gur detailed the damage he saw to specific

structures in defendant's brain and their likely repercussions

for his functioning and behavior.

Specifically, Dr. Gur identified structural abnormalities

in the frontal regions of defendant's brain which "interfere

with executive functions such as abstraction and mental

flexibility, planning, moral judgment, and emotional regulation,

moderating limbic arousal and impulse control." He also noted

"severe abnormalities in the corpus callosum and lateral

ventricles." He explained that "[d]amage to the corpus callosum

would lead to deficits in integrating verbal reasoning and

analytic processing modes of the left hemisphere with intuitive,

integrative and affect-related processing modes of the right

hemisphere."

A-2023-13T1 10

The large ventricles Dr. Gur observed in defendant's brain

were, in his opinion, "an indication of overall tissue loss

throughout the brain, as dystrophic or atrophic cells are

replaced by cerebrospinal fluid (CSF). These deficits, taken

together, are typical of Schizophrenia," which he defined as "a

disorder characterized by symptoms such as visual and auditory

hallucinations, disorganized speech and behavior, blunted

emotional expression, lack of motivation, and social and

occupational dysfunction." Because the volume loss in

defendant's brain appeared "more heavily focused on the right

side," Dr. Gur surmised the "deficits could be attributable to

Schizophrenia, but most likely reflect additional damage such as

can be caused by a head injury."

Dr. Gur also noted damage to defendant's "parietal lobe, in

particular the precuneus," which he identified as "involved with

higher order processing of visual information and integrative

behavior, i.e., connecting what one sees with what one does."

He opined that damage to that structure "can cause dissociation,

a process wherein an individual is aware of what he is doing but

feels as though he is observing himself from a distance without

the capacity to decide and act upon what he is observing."

The doctor also identified "pronounced tissue loss" in

defendant's right temporal lobe, which "plays a critical role in

A-2023-13T1 11

remembering objects and faces." Dr. Gur wrote that

"[i]ndividuals with damage to this area of the brain may not be

able to recall or accurately perceive faces," leading to

"misperceptions or delusions about observed actions and

behaviors that are based upon these erroneous memories."

Dr. Gur described the aspect of defendant's brain he found

most striking to be tissue loss in the amygdala and the cortical

regions. He stated the right side of defendant's amygdala was

four and a half standard deviations smaller than normal, and

opined that abnormally low volume in that area of the brain

"would lead to severe emotional deregulation." He opined that

the combined effects of these problems could be the appearance

of someone who would present as "very cool and seem to have no

emotions but then burst into a violent rage seemingly without

provocation. Because [defendant's] amygdala is so small, it

would take much less threat to stimulate it than a normal

person, resulting in an overabundance of fear and an impulse to

attack."

A month after Dr. Gur issued his report, the public

defender's office arranged to have defendant evaluated by a

forensic psychologist, Dr. Mark Siegert. Working through an

interpreter, Dr. Siegert interviewed defendant and obtained a

A-2023-13T1 12

history the doctor described as "consistent with [defendant's]

records."

Those records reveal defendant obtained a fifth grade

education in Vietnam, after which he left school to work in the

rice fields. Defendant was assaulted on various occasions in

Vietnam and hospitalized there several times for psychiatric

problems. He was inducted into the army and sent to Cambodia,

where he deserted because he did not want to fight the

Cambodians whose heritage he shared. He was imprisoned in

Vietnam and escaped to a refugee camp in Thailand where his

mental condition worsened. He returned to Vietnam where he was

again hospitalized for psychiatric problems. He emigrated to

the United States in 1998.

Dr. Siegert issued a report based on his review of

defendant's history, his interview of defendant and Dr. Gur's

findings. Dr. Siegert wrote that "[t]he most striking feature

of this evaluation was evident from the start; [defendant] often

misunderstood what was said or asked," notwithstanding the

interpreter's assessment that there was no language barrier as

defendant had "a good grasp of Vietnamese." Dr. Siegert

observed that in addition defendant

often responded in a manner that was related to some of the words or concepts used in various questions or topic[s], and because he was answering about a related matter, I

A-2023-13T1 13

often was under the impression that he understood what I was asking but upon careful questioning, I learned that he frequently did not.

Although oriented in all three spheres, defendant told the

doctor he "frequently dreams of people beating him, stabbing

him[,] and he has awakened finding himself hitting the wall. He

stated that he still feels a clawing in his head as animals try

to escape." The doctor opined defendant "showed an ongoing

delusion stating that doctors at Cooper Hospital wanted to cut

his head open to remove the animals and [defendant] said, 'I

don't want it. I don't want to die. But I hear them

crawling.'" Based on defendant's history, Dr. Gur's report of

the significant areas of damage to defendant's brain and his own

evaluation, Dr. Siegert concluded defendant was not competent to

waive his Miranda2 rights the day he confessed to the police in

2003, was not competent to participate in plea negotiations in

the fall of 2004, and was not competent to assist in the

prosecution of his PCR petition. Dr. Siegert also concluded

defendant was insane at the time of the murders.

Following defendant's service of the doctors' reports, the

second PCR judge reconvened the evidentiary hearing to hear

2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

A-2023-13T1 14

additional testimony of defendant's plea counsel and the

testimony of his investigator. There is no dispute that plea

counsel was a very experienced public defender and had

represented several defendants in capital cases asserting mental

health defenses. Counsel testified he was aware defendant was

taking psychotropic medications when he represented defendant

and knew of defendant's mental health history because he had

been able to secure defendant's records from Vietnam.

Plea counsel and his investigator both testified that

although counsel believed defendant was competent, he did have

concerns about defendant's mental health history and defendant's

report of severe headaches and tried, unsuccessfully, to find a

forensic psychologist or psychiatrist who spoke Vietnamese or

Cambodian who could evaluate him. Counsel testified that

defendant told him he sometimes felt as if there were "animals

running around" in his head. Counsel, however, "didn't think

that showed evidence of a delusion" but instead was simply "a

very colorful, clear way" of describing how he felt "that people

could understand."

Plea counsel and the investigator testified that defendant

could not provide them the names of doctors who had treated him.

The investigator, however, used contacts within the Vietnamese

community to locate some limited health records. Counsel

A-2023-13T1 15

admitted on cross-examination that defendant had relayed he had

been assaulted by a man with a baseball bat the year before the

murders and had been treated at Cooper Hospital for a broken

arm. Although in possession of signed authorizations that would

have allowed his investigator to obtain defendant's treatment

records from Cooper, counsel did not direct her to ask the

hospital for the records "because [he] just thought, oh, a

broken arm really isn't relevant on a mental health defense."

In his confession to the police, however, defendant linked the

man who assaulted him with the baseball bat to Tam, the victim

he claimed had poked him with a knife, twisted his neck and

beaten him.

Because the defense team did not ask Cooper for defendant's

records, plea counsel did not learn that in the weeks before the

shooting, defendant went several times to the hospital

complaining of "viruses in his head which bothered him at night

by making a lot of noise." Defendant reportedly told a

psychiatrist a month before the shooting "that the viruses only

stay in one part of his brain and mainly disturb him because of

the noise they make in trying to escape that one area." Two

weeks later, defendant went back to the hospital complaining of

a "headache because animals are crawling around his head."

Defendant on that occasion asked the doctor to "do an operation

A-2023-13T1 16

to take off his head." He was diagnosed as suffering from

chronic psychosis with delusional disorder and discharged on

anti-psychotic medication.

Less than ten days later, defendant was back at Cooper

complaining of "bugs in [his] head." In the last of the records

six days before the shooting, defendant appeared at a doctor's

office and demanded an antibiotic and other drugs. The

physician wrote of the visit, "he started screaming and banging

[on the] window that he has Medicaid and I am supposed to give

him whatever medicine he needs." The note continued: "Patient

started using foul language and threatening the staff . . . .

He kept screaming for a few more minutes and then left. We will

call police if this happens again." Also included in the Cooper

records was an MRI of defendant's brain taken in 2001 noting

abnormal findings.

When confronted with the Cooper records on cross

examination, and asked if he had seen those records and the 2001

MRI would he have had defendant evaluated, plea counsel

answered:

Absolutely. Especially with what you pointed out in your series of questions about the incidents within a month of the shooting and the several trips to Cooper Hospital showing that he looked like he might have been spiraling out of control. That combined information, none of which we

A-2023-13T1 17

had, would have definitely had me pursuing an independent evaluation.

Plea counsel stressed, however, that he was not aware of

defendant's treatment in the weeks before the murders and that

the facts he had, "even [defendant's] history of mental illness

in Vietnam, was not in any way linked to what happened." Plea

counsel explained:

None of the witnesses said that he was talking to himself or acting in very bizarre ways, you know, and he always told things as how he was tormented and picked on and maybe bullied you might say, and the outcast, so it looked to me like he just had his limit of being tormented and he exploded and reacted to it. He was tired of being the butt of these jokes and tormented.

The prosecutor on re-direct asked plea counsel why, when he was

unable to find someone fluent in Vietnamese or Cambodian to

evaluate defendant, had he given up on having defendant

evaluated instead of employing an interpreter. Counsel

responded:

That's a very good question and I believe the answer is probably, because I don't have a full recollection of my thought processes, but the best I could surmise is that the prosecutor was finally coming around to some realistic numbers in a case that I felt I had no defense, that they had a potential double life sentence plus twenty years facing him and hypothetically, it could have even been a death penalty case at the time, because a murder in the course of another murder is automatically qualifying for a death penalty.

A-2023-13T1 18

And there was evidence to suggest it was premeditated, so I didn't rule that out as a possibility, and so, when they finally started talking about possibly concurrent sentences with aggravated manslaughter and reducing the attempted murder to aggravated assault, I thought that the information I had gotten from Vietnam, suggesting this background and history, was enough to have the prosecutor, perhaps, have some empathy for the situation and to get into what I consider an appropriate range, because if I had gotten the evaluation without — I would have . . . done it more just to sort of be prophylactic to protect myself, but not with any real hope, it would have developed into anything.

After defense counsel and his investigator testified, the

State submitted the report of its forensic psychiatrist, Dr.

Pogos H. Voskanian. Dr. Voskanian reviewed defendant's medical

records, with the exception of the 2010 MRI and Dr. Gur's

interpretation of it, and interviewed defendant at length.

Defendant told Dr. Voskanian he did not actually "like

Vietnamese, not really . . . because Vietnamese killed a lot of

Khmer Krom people and took the land." The doctor concluded that

"[t]he centuries old ethnic conflict between Vietnam and

Cambodia appears to play a substantial role in [defendant's]

psychological development and perceptions."

Dr. Voskanian determined defendant "overemphasiz[ed] that

he is mentally ill," and he found no indication that defendant

had any "impaired ability or capacity to learn, understand,

A-2023-13T1 19

integrate and rationally manipulate learned information." The

doctor acknowledged that review of the 2001 MRI interpretation

"portrayed a picture of a completely impaired individual," but

found "clinically, during an extended interview, [defendant's]

presentation was remarkably in contrast of what one would expect

by reading the MRI report."

Although noting that defendant "expresses himself in an

idiosyncratic manner and his expressions are colored by ethnic

expressions," the doctor concluded that defendant's commission

of the offenses "was not the result of his diagnosis of mental

illness or schizophrenia. [Defendant] clearly denies any

delusional motives or symptoms of thought disturbance except for

anger and, as per his ethnic beliefs, catching a bad spirit."

Dr. Voskanian found defendant competent to stand trial at the

time of his guilty plea in 2003, and that he "is competent to

stand trial at the current time and . . . does not meet criteria

for [an] insanity defense or diminished capacity."

Following the submission of the expert reports, the second

PCR judge concluded it would be necessary to determine whether

defendant was competent to proceed on his PCR petition. The

matter was transferred to the third PCR judge who, in November

2011, conducted a competency hearing and assigned the State the

A-2023-13T1 20

burden of proving by a preponderance of the evidence that

defendant was currently competent.

After counsel and the court questioned defendant on the

record and counsel made their arguments, the court on November

28, 2011 determined defendant was not competent to proceed on

his petition. In making its determination, the court referenced

Dr. Gur's interpretation of defendant's 2010 MRI and relied on

the findings of Dr. Siegert and Dr. Voskanian "that the

defendant had a severe mental disorder, including brain damage."

In weighing the opinions of both parties' experts, the court

determined "that the conclusions reached by the defendant's

experts are more credible" in light of the testimony given by

defendant at the hearing. Although noting that defendant

demonstrated "a pretty fair understanding" of the roles of a

prosecutor, defense lawyer and the court in a criminal

proceeding, the judge found he lacked "the ability to

participate . . . in an adequate presentation of his case."

Specifically, the court noted in its November 28, 2011

opinion that it

allowed counsel some latitude in asking questions about the ultimate determination that has to be made if [the court] conclude[s] that the defendant is competent, and that is, does he want to keep the plea deal that he already made, resulting in the 38-year sentence, or does he want to take a chance in pursuing a request for ultimately

A-2023-13T1 21

a new trial, where if he's convicted, he could be facing a much more substantial sentence.

He was asked that every which way, and he couldn't — he never seemed to be able to grasp what that was all about, and what decision he'd be called upon to make strategically with his attorney, in terms of proceeding or not, with this post- conviction relief application.

The court noted its cognizance

of the fact that it may be, in some cases, that a person, if he's explained the sometimes complicated court proceedings, can be made to understand them, and then participate competently with counsel for the purposes of preparing a defense, or in this case, preparing a PCR application, and preparing for the proceeding.

However, in considering the repeated questions to this effect by [defense counsel], and by [the court], I have grave doubts as to whether he can ever tell [defense counsel] how he wants to proceed, or really understands what's at stake here, in terms of whether he should proceed in this challenge to this whole case, and the whole result of the guilty plea process, or whether he should keep the deal he has now as being in his best interests. And I don't think that if [defense counsel] is to meet with him and explain it again and again, that that's going to change.

So, that really gets to the ultimate final prong of this whole standard, which is whether he has the ability to participate in an adequate presentation of his case. I'm not satisfied he does. And I'm left to conclude, based on that, that he's not competent now to proceed on his own with this PCR application.

A-2023-13T1 22

In June 2012, the court appointed a guardian ad litem (GAL)

for defendant and charged the GAL with determining, in the first

instance, whether it was in defendant's best interest to proceed

on his petition. Although acknowledging that defendant's plea

agreement resulted in a substantial sentence, namely, an

aggregate thirty-eight-year NERA term, of which defendant had

already served nine years, the judge noted in a letter to the

GAL that the original charges would expose defendant to two

consecutive life sentences and to an additional consecutive term

of twenty years in State prison. Accordingly, the judge charged

the GAL with consulting with defendant's counsel to determine

whether it was in defendant's best interest to proceed on the

PCR application.

The GAL issued a report to the court and counsel in

September 2012 in which he concluded that defendant had a viable

PCR claim, that one of defendant's objectives was to be

transferred from State prison to a hospital for treatment, that

defendant's medical records both before and after the shooting

contain credible objective evidence that he suffers from brain

damage, and that defendant's return to competency was highly

unlikely. He also concluded that in the event defendant was

successful on his petition he would likely be found not

competent to stand trial to face the original charges but

A-2023-13T1 23

instead, because he was a danger to himself or others, be

transferred to a hospital for treatment. In light of those

considerations, the GAL determined it was in defendant's best

interest to proceed on his PCR petition.

In May 2013, the third PCR judge conducted another hearing

at which the State presented its expert, Dr. Voskanian. Dr.

Voskanian testified on direct in accordance with his report that

defendant was not insane or of diminished capacity when he

committed his crimes, that he was competent to stand trial when

he entered his plea and was equally competent to stand trial at

the time the doctor interviewed him in 2011. Asked by the

prosecutor whether a person with mental illness can still

understand external reality, the doctor responded:

Yes. Actually it's a good question. Yes, I do agree [defendant] has mental conditions. I do know he's got abnormal MRI. I do know at some point he was diagnosed with schizophrenia. He was diagnosed with [a] variety of mental disorders. I do know he had a hard life. He had depression, posttraumatic stress disorder diagnosis, considerable hardships in his life. However, that's one thing. On the other hand with all of his conditions he had a clear understanding of what was going on and he committed his crimes with clear understanding of what he was doing. He justifies his offenses by the fact that he was assaulted first and that's a factor for him, that he was made angry by other men. They insulted him by poking with a knife on his buttocks. They cursed him and cursing mother in his culture it's significant

A-2023-13T1 24

assault, verbal assault and therefore he shot them. Simple.

Defense counsel established on cross-examination that Dr.

Voskanian had not reviewed the 2010 MRI of defendant's brain,

nor Dr. Gur's interpretation of it and had not looked at Dr.

Siegert's report. When defense counsel asked the doctor to

assume Dr. Gur found defendant suffered from extensive brain

damage and Dr. Siegert deemed him incompetent, in considering

whether defendant "has the ability to weigh the import and

significance of the reports of those two doctors and is capable

of deciding whether to proceed ahead with a trial," the doctor

responded by saying that "was not the purpose of my interview.

The purpose of my interview was competency to stand trial. You

are going a few steps forward regarding his competency." When

defense counsel pressed for an answer, Dr. Voskanian replied "I

can answer the question that he's competent to stand trial and

he understands the consequences. He does understand what he's

facing."

Defendant's PCR counsel did not present live testimony from

his experts, but instead relied, without objection, on their

reports. After obtaining the permission of the parties to

review and rely on the transcripts of the testimonial hearings

presided over by the second PCR judge, the third PCR judge

A-2023-13T1 25

issued a written opinion on August 13, 2013 denying the

petition.

Relying on what he termed the credible testimony of plea

counsel, the judge found counsel

reasonably concluded that despite evidence of the Defendant's headaches and anxiety, including a sensation of "animals in his head," such evidence was not sufficient to negate the state of mind for the shootings in this case given the facts as discussed above. Instead, all evidence suggested that these shootings were part of a calculated plan to retaliate against the people who were harming and harassing the Defendant. (Similarly, [defense counsel] reasonably concluded that there was no basis for the defense of self-defense, given that the Defendant, while armed with a handgun, pursued unarmed victims, chasing one up the steps, and shooting him after he had fallen to the ground. This conclusion was likewise reasonable and not deficient.)

The judge likewise found plea counsel's decision to forego

a mental health evaluation of defendant not deficient. The

judge emphasized that

this is not a case where [plea counsel] ever made a determination that a competency evaluation was in fact required. . . . In the end, although [plea counsel] was not able to remember fully why he did not pursue any further the matter of obtaining a mental health evaluation of the Defendant, it appears that he ultimately was satisfied that no mental health defense had any viability, including the matter of competency.

A-2023-13T1 26

The judge also rejected defendant's claim that plea counsel

was deficient for failing to discover the medical records

reflecting defendant's mental health history in the weeks before

the shootings. Relying on Dr. Voskanian's report, the judge

wrote:

[E]ven considering the later-obtained Cooper records and other medical evidence, under the totality of circumstances, it does not appear that [defendant's] mental illness was the cause of his actions. That is to say, the Cooper records simply confirm what was already known about the Defendant — that he suffered from mental illness. However, none of the medical records now available, including those obtained and reviewed by [plea counsel] at the time of the plea, and those since acquired, supply any support for the proposition that the elements of insanity or diminished capacity could be made out, or that the direct observations of [plea counsel] relative to the competency of the Defendant were not valid. In short, the existence of mental illness does not compel the conclusion that a person suffers from insanity, or diminished capacity, as understood legally, nor does it necessarily equate to the legal notion of incompetency to proceed.

Finally, the court concluded that even assuming plea

counsel was deficient, defendant could not demonstrate

prejudice. The court reviewed the reports by Dr. Siegert and

Dr. Voskanian and noted that Dr. Siegert, but not Dr. Voskanian,

concluded that defendant did not understand the right to counsel

or against self-incrimination, or the role of the jury, and was

A-2023-13T1 27

not competent to engage in plea negotiations, enter a plea or

understand the consequences thereof, and was not capable of

adequate participation in the presentation of his defense.

In all of those areas, the court found Dr. Voskanian's

conclusions more credible than those of Dr. Siegert. The court

found with respect to several of the areas of disagreement in

which defendant did not express "a clear understanding" of the

concept at issue, that "it would appear, given those aspects of

the American justice system which the Defendant was able to

explain rather articulately, that the Defendant was likewise

teachable with respect to those areas that he did not

understand."

The court specifically rejected Dr. Siegert's opinion that

defendant "'could eventually be taught the factual information

about competency standards that he lacks, [but] he cannot

adequately process or understand statements or questions well

enough to adequately participate in his defense, even after

steady dispensing of medication for several years.'" The court

found Dr. Siegert's conclusion "is belied by the numerous

examples . . . where [defendant] manifests either a clear

understanding of the process and of his legal position, or

otherwise could have been brought to understand those details he

A-2023-13T1 28

lacks, by way of instruction from the [c]ourt as contemplated by

the Moya[3] case."

Because the court determined that plea counsel "reasonably

concluded that there was no basis in fact to pursue any question

of incompetency relative to the Defendant," and, relying on Dr.

Voskanian's report that "there is no reason now to conclude that

had the matter been pursued by way of an evaluation and

presentation of the issue to the [c]ourt, that the [c]ourt would

have concluded that the Defendant was incompetent," the court

found defendant had failed to carry his burden on the petition.

III.

Defendant raises the following issues on appeal.

POINT I

THE TRIAL COURT ERRED IN RULING THAT DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO HAVE MR. THACH PSYCHOLOGICALLY EVALUATED TO DETERMINE WHETHER HE WAS COMPETENT TO STAND TRIAL.

POINT II

THE TRIAL COUNSEL WAS INEFFECTIVE FOR NOT RAISING INSANITY AS A DEFENSE.

To succeed on a claim of ineffective assistance, defendant

must establish, first, that "counsel's representation fell below

an objective standard of reasonableness" and, second, that

3 State v. Moya, 329 N.J. Super. 499 (App. Div.), certif. denied, 165 N.J. 529 (2000).

A-2023-13T1 29

"there is a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have

been different." Strickland v. Washington, 466 U.S. 668, 687

88, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698

(1984). Both the United States Supreme Court and the New Jersey

Supreme Court have extended the Strickland standard to a

defendant's challenge to his guilty plea based on ineffective

assistance of counsel. See Lafler v. Cooper, 566 U.S. ___, ___,

132 S. Ct. 1376, 1384-85, 182 L. Ed. 2d 398, 406-07 (2012);

Missouri v. Frye, 566 U.S. ___, ___, 132 S. Ct. 1399, 1405, 182

L. Ed. 2d 379, 387 (2012); State v. DiFrisco, 137 N.J. 434, 456

57 (1994).

A defendant asserting ineffective assistance in connection

with his plea must establish with "reasonable probability" that

"the outcome of the plea process would have been different with

competent advice." Lafler, supra, 566 U.S. at ___, 132 S. Ct.

at 1384, 182 L. Ed. 2d at 407 (citing Frye, 566 U.S. ___, ___,

132 S. Ct. 1399, 1405, 182 L. Ed. 2d 379, 387 (2012)); see also

State v. Nuñez-Valdéz, 200 N.J. 129, 138-39 (2009). A defendant

must make that showing by a preponderance of the evidence.

State v. Gaitan, 209 N.J. 339, 350 (2012), cert. denied, ___

U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013).

A-2023-13T1 30

We begin our analysis by noting our agreement with the

second PCR judge's decision to convene a competency hearing once

doubt arose regarding defendant's competency to proceed on his

PCR petition. See State v. Purnell, 394 N.J. Super. 28, 47

(App. Div. 2007). We also agree with the third PCR judge's

decision to place the burden of proving defendant's competency

on the State as would occur under N.J.S.A. 2C:4-4, were the

court considering defendant's trial, conviction or sentence

instead of an application for post-conviction relief. See State

v. McNeil, 405 N.J. Super. 39, 49 (App. Div.), certif. denied,

199 N.J. 130 (2009).

Once the court determined defendant was incompetent to

proceed, the appointment of a GAL was appropriate given that

success on his petition would mean abandonment of his thirty

eight-year NERA prison term, of which he had already served nine

years, and exposure to two consecutive life terms plus a

consecutive term of twenty years. Cf. R. 4:26-2(b)(4)

(permitting the appointment of a GAL for a mentally

incapacitated person in an action on the court's own motion);

see also State v. Parker, 212 N.J. 269, 278 (2012) (noting that

post-conviction relief proceedings have been characterized as

civil in nature for some purposes, citing State v. Loray, 46

N.J. 417, 419 (1966)).

A-2023-13T1 31

As our Supreme Court has recently reminded, post-conviction

relief proceedings are not pro forma exercises, but instead

"play a critical role in our criminal justice system" as a

"'safeguard to ensure that a defendant was not unjustly

convicted.'" Parker, supra, 212 N.J. at 278 (quoting State v.

Afanador, 151 N.J. 41, 49 (1997)). A post-conviction relief

proceeding presents "a defendant's last chance to raise

constitutional error that may have affected the reliability of

his or her criminal conviction." State v. Rue, 175 N.J. 1, 18

(2002). Although we are well satisfied that the judges who

presided over this complicated PCR matter all grasped the

importance of the proceeding and the difficulties it presented,

we nevertheless conclude that the final disposition is flawed,

based largely, we suspect, on the protracted proceedings,

critical parts of which were handled by different judges.

Focusing on the first prong of the Strickland standard, it

is undisputed that plea counsel did not uncover readily

available medical records that detailed, in his words, "the

incidents within a month of the shooting and the several trips

to Cooper Hospital showing that [defendant] looked like he might

have been spiraling out of control." Counsel testified

unequivocally that had he seen those records he would have

A-2023-13T1 32

"absolutely" secured an independent evaluation of defendant's

competency.

The trial court did not focus on the implications of that

testimony. Instead of addressing what plea counsel testified he

would have done had he seen those records in judging his

constitutional effectiveness, the court limited its

consideration to counsel's actions in the absence of the

records.4 It concluded plea counsel was not ineffective for

having failed to have defendant evaluated because "this is not a

case where [plea counsel] ever made a determination that a

competency evaluation was in fact required." Acknowledging

counsel's initial concern about defendant's competency and his

corresponding efforts to search for a qualified expert who spoke

either Cambodian or Vietnamese to perform an evaluation, the

court concluded that "by the time that [plea counsel] was

negotiating with the prosecutor and reviewing with the Defendant

the plea agreement into which the parties eventually entered, he

had satisfied himself that Defendant was competent."

4 It is, of course, true that counsel's conduct is to be judged on the facts, viewed as of the time of counsel's conduct, State v. Echols, 199 N.J. 344, 358 (2009), in order to avoid the distortions of hindsight, State v. Marshall, 148 N.J. 89, 157 (1997). We, however, cannot fail to consider the ready availability of those records and counsel's unequivocal statement as to what he would have done had he seen them in considering whether he undertook a constitutionally adequate investigation in connection with defendant's plea.

A-2023-13T1 33

Based on plea counsel's testimony, we are not as convinced

as the trial court that counsel had so much satisfied himself

that defendant was competent, as concluded the prosecutor had

made a remarkably good offer in a case counsel believed he had

no realistic chance of winning. Without question, plea counsel

testified that by the time he was negotiating the plea he would

have only arranged an evaluation "more just to sort of be

prophylactic to protect myself, but not with any real hope, it

would have developed into anything." But he also testified that

he "believed the information [he] had gotten from Vietnam,

suggesting this background and history, was enough to have the

prosecutor, perhaps, have some empathy for the situation and to

get into what I consider an appropriate range." When asked why

he had given up on having defendant evaluated, plea counsel

testified that "the best I could surmise is that the prosecutor

was finally coming around to some realistic numbers in a case

that I felt I had no defense, that they had a potential double

life sentence plus twenty years facing him" and possibly the

death penalty.

The record makes clear that plea counsel very effectively

used defendant's mental health records acquired from Vietnam to

convince the prosecutor that defendant should not face murder

and attempted murder charges. He used those same records to

A-2023-13T1 34

convince Judge Baxter that defendant should not receive the

maximum sentence on his aggravated assault against the surviving

victim. The surviving victim spoke at sentencing of her

bewilderment over why defendant had shot "his friends," all of

whom had "treat[ed] him really nice." In speaking to the court

on behalf of his client, counsel addressed the victim's question

by saying defendant "had serious difficulties and serious mental

illness in his life [which] offers some explanation as to what

in many respects is not easily explainable."

Counsel argued to the court at sentencing that he did not

"believe there's any question about [defendant's] mental

illness" and referenced the many anti-psychotic medications

prescribed for him over the years. As to the shootings

themselves, counsel told the court that

[w]hether it's objectively accurate or not, [defendant] viewed himself as somebody who was made an outcast and picked upon. There was an incident that he spoke of in the confession . . . where he was stabbed a couple of weeks before the homicides. And it was apparently not seriously to really injure him, but more to belittle or pick on him. And apparently these incidents, coupled with the attack he had in Vietnam, made him hypersensitive to these feelings of alienation and being an outcast and not connecting, not having friends, and he flipped out on the morning [of the shootings].

A-2023-13T1 35

Judge Baxter considered those arguments, took "note of the

significant psychiatric records . . . presented" and found

mitigating factor four, that there were substantial grounds

tending to excuse defendant's conduct, though failing to

establish a defense.

The record is clear that, even without the medical

documents he did not acquire, plea counsel had significant

evidence about defendant's history of mental illness and, at

least initially, significant concern over defendant's

competence. In our view, the question of plea counsel's

effectiveness should not have been limited in the PCR

disposition to whether counsel earnestly believed his client was

competent. The question is whether in light of the information

counsel possessed, and the information readily available to him,

he sufficiently investigated defendant's condition before

counseling him to accept the plea to reduced charges the State

offered. As Justice O'Connor wrote for the Supreme Court in

Strickland:

[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable

A-2023-13T1 36

decision that makes particular investigations unnecessary.

[466 U.S. at 690-91, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695.]

In order to judge counsel's effectiveness under the first

prong of Strickland, the court was required to resolve whether

it was a reasonable professional judgment to have advised

defendant to plead guilty to charges the prosecutor had

substantially reduced based on defendant's history of mental

illness without obtaining all known medical records and securing

a competency evaluation to discover the existence or extent of

that mental illness. Put another way, could counsel have

reasonably evaluated the plea offered without securing his

client's available medical records or having professional advice

regarding the extent of defendant's impairment?

We think that presents a difficult question on this record.

Counsel's impression of defendant's mental state developed over

the course of his representation, the factor on which the trial

court focused, is certainly important. See Purnell, supra, 394

N.J. Super. at 48. But there are other facts that must also be

weighed in considering the reasonableness of counsel's actions.

See State v. Savage, 120 N.J. 594, 617 (1990) (noting the

inquiry under the deficiency prong "is whether counsel's

performance was 'reasonable considering all the circumstances'")

A-2023-13T1 37

(quoting Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2064,

80 L. Ed. 2d at 694).

The existence of medical records indicating long-standing

mental illness that was, perhaps, spiraling out of control in

the weeks before the shootings, the victim's account of

defendant's conduct the night before the shootings, including

his mumbling to himself for hours about killing Tam the

following day, and the link defendant made in his confession

between the man who assaulted him with a baseball bat and Tam

should all be considered as well. The inquiry must be made

"'applying a heavy measure of deference to counsel's

judgments.'" State v. Martini, 160 N.J. 248, 266 (1999)

(quoting Strickland, supra, 466 U.S. at 691, 104 S. Ct. at 2066,

80 L. Ed. 2d at 695). "[W]here 'reasonable professional

judgments' support a defense counsel's decision to limit an

investigation, the court should not find ineffective performance

of counsel." State v. Chew, 179 N.J. 186, 205 (2004) (citations

omitted) (quoting Martini, supra, 160 N.J. at 266). Of course,

as the Court has noted, "evidence clearly capable of altering

the outcome of a verdict that could have been discovered by

reasonable diligence at the time of trial would almost certainly

point to ineffective assistance of counsel in violation of the

A-2023-13T1 38

Federal and State Constitutions." State v. Ways, 180 N.J. 171,

192 (2004).

Because a defendant must succeed in proving both prongs of

the Strickland standard in order to succeed on an ineffective

assistance claim, and in light of the difficulties sometimes

presented in judging the reasonableness of trial or plea

counsel's actions years later and with the benefit of 20/20

hindsight, courts have leeway to choose to examine first whether

defendant was prejudiced by counsel's choices, and if not, to

dismiss the petition without consideration of whether counsel's

conduct was constitutionally deficient. See Gaitan, supra, 209

N.J. at 350. Accordingly, were we satisfied the court correctly

determined defendant suffered no prejudice by plea counsel's

failure to secure the Cooper records or have defendant evaluated

because doing so would not have affected the outcome, we would

affirm despite our misgivings about the court's consideration of

whether counsel's investigation of defendant's mental condition

was constitutionally adequate. We cannot do so, however,

because we are convinced the court's analysis of the prejudice

prong was also flawed.

When the third PCR judge assumed control of this case, he

conducted the competency hearing the second judge determined was

necessary. When he did so, he had in hand the evaluations of

A-2023-13T1 39

Drs. Siegert and Voskanian and Dr. Gur's interpretation of

defendant's 2010 MRI. At the conclusion of that hearing, after

listening to defendant respond to the questions put to him by

counsel and the court, the judge concluded "that the conclusions

reached by the defendant's experts [that defendant was not

competent] are more credible."

When the third PCR judge made his final determination on

the petition twenty-one months later, based on exactly the same

reports and hearing Dr. Voskanian testify, he came to the

opposite conclusion, finding "Dr. Voskanian more credible than

Dr. Siegert with respect" to those areas of disagreement in

their views as to defendant's competency.

In addition, after hearing defendant testify at the

competency hearing, the judge found him unable to grasp that

were he successful on his petition he would forfeit a very

favorable sentence with the risk he could spend the rest of his

life in prison. Moreover, the judge made an explicit finding

that he did not believe, were defendant's counsel to meet with

defendant "and explain it again and again, that that's going to

change." It was on that basis the judge deemed himself "not

satisfied" on "the ultimate final prong of this whole

[competency] standard," that defendant had "the ability to

participate in an adequate presentation of his case."

A-2023-13T1 40

Twenty-one months later in his opinion dismissing the

petition, the judge rejected Dr. Siegert's opinion in large

measure based on the judge's conclusion that "it would appear,

given those aspects of the American justice system which the

Defendant was able to explain rather articulately [to Dr.

Voskanian], that the Defendant was likewise teachable with

respect to those areas that he did not understand."

Nowhere does the judge explain this 180-degree shift in his

thinking or attempt to square his ultimate determination that

there was "no reason" to conclude that had plea counsel secured

an evaluation that Judge Baxter would have deemed defendant

incompetent to stand trial, with his own judgment that defendant

was not competent to proceed on his PCR petition. Although we

have considered whether the shift could have been based on a

deterioration in defendant's mental state between the time he

entered his plea and the incompetency hearing, nothing in the

court's opinion suggests it relied on any such significant

change in defendant's condition.

In addition, the record makes clear that Dr. Voskanian

opined that defendant was both competent to stand trial when he

entered his plea and competent to proceed on his petition. Dr.

Voskanian's conclusion that defendant "understands the

consequences" of proceeding on his petition is, of course,

A-2023-13T1 41

directly at odds with the court's conclusion, after reviewing

Dr. Voskanian's report, that defendant could not grasp the

consequences of proceeding on his petition, was unable to

participate in an adequate presentation of his case and thus not

competent to proceed on his petition.

The law is well settled that the decision as to a

defendant's competence "is for the judge and not for the experts

to make." State v. M.J.K., 369 N.J. Super. 532, 548 (App. Div.

2004), appeal dismissed, 187 N.J. 74 (2005). We do not doubt

the necessity of expert testimony here, as one would not expect

any judge to have sufficient knowledge or experience to assess

defendant's competence without the aid of mental health experts.

See id. at 549. That is especially true in this case given that

all the experts acknowledge defendant's significant brain

damage.

The judge was free, of course, to accept the conclusions of

the State's expert over those presented by defendant's expert.

See Torres v. Schripps, Inc., 342 N.J. Super. 419, 430 (App.

Div. 2001). The problem here is that the judge did not explain

why he abandoned his own earlier assessment of defendant's

competency after questioning him on the record in favor of Dr.

Voskanian's opinion to the contrary. Although that would be

enough to remand for an explanation, there is another flaw not

A-2023-13T1 42

so easily remedied, which we speculate may account for the

judge's shift in position.

When the judge determined that defendant was not competent

to proceed on his petition, he relied on Dr. Siegert's opinion,

which was heavily informed by Dr. Gur's interpretation of

defendant's 2010 MRI. Dr. Siegert found the "most striking

feature" of his evaluation of defendant was the extent he

misunderstood what the doctor was saying or asking, not

attributable to any language barrier. Because defendant

responded by using words or concepts relating to the topic the

doctor was asking about, however, the doctor was often left with

the initial impression defendant had understood his questions,

only to realize after further probing that defendant had not at

all grasped what the doctor was asking about. Dr. Siegert

concluded, based on Dr. Gur's interpretation of defendant's MRI,

that defendant "has a cognitive processing problem" which

rendered him incapable of understanding the proceeding.

After watching defendant respond to questions at the

competency hearing and questioning defendant himself, the third

PCR judge appears to have observed the same phenomena Dr.

Siegert noted. The judge observed that defendant

[a]fter . . . answering responsively a number of these questions, he answered . . . in an unresponsive way relative to the question as to his understanding of the PCR

A-2023-13T1 43

process, and really why he's here, to be able to repeat it back himself.

He — in response to the question about the PCR, said something to the effect of that he took his medications, he took the handgun to the police station which really wasn’t a responsive answer to the question about the PCR.

And after responding appropriately to a number of questions about these proceedings, when he was asked by counsel, or by the Court, to repeat back and put in his own words what he had just responded to, he was unable to do it.

It was those observations that led the judge to conclude

defendant would never grasp "the decision he'd be called upon to

make strategically with his attorney" no matter how many times

his counsel explained it to him.

Dr. Voskanian was not oblivious to defendant's odd

responses, he merely attributed them to defendant expressing

himself in an "idiosyncratic manner . . . colored by ethnic

expressions." Critically, however, Dr. Voskanian never reviewed

Dr. Gur's report or defendant's 2010 MRI. Dr. Voskanian also

never reviewed Dr. Siegert's report detailing how his own

understanding of defendant's presentation had been informed by

Dr. Gur's findings. Accordingly, Dr. Voskanian was never

confronted with whether there was another organic reason for

defendant's conduct or expression which the doctor attributed to

idiosyncratic manner and cultural differences.

A-2023-13T1 44

Dr. Voskanian's dismissal of defendant's 2001 MRI as

evidencing only congenital abnormality and not brain damage and

dismissal of all MRIs as irrelevant to a diagnosis of mental

illness without ever reviewing defendant's 2010 MRI or comparing

it to the 2001 MRI study renders Dr. Voskanian's conclusions on

those points questionable because they do not take into account

critical facts in the record. We do not suggest Dr. Voskanian's

opinion should have been excluded for his failure to have taken

into account what appears to be significant evidence of

defendant's severe brain damage, see Townsend v. Pierre, 221

N.J. 36, 53 (2015) (noting an expert's testimony should not be

excluded because it fails to account for certain facts in the

record if it is otherwise logically supported), but only that

the omission required probing to insure the opinion was

sustainable in light of other evidence in the record.

We need not resolve here whether the MRIs of defendant's

brain are most properly classified as fact or opinion. See

James v. Ruiz, 440 N.J. Super. 45, 66 n.15 (App. Div. 2015)

(declining to resolve whether a radiologist's findings are most

properly classified as "opinions," as "facts or data," or as

some combination of the two for purposes of analysis under

N.J.R.E. 703 and 808); see also Agha v. Feiner, 198 N.J. 50, 61

(2009) (referring to an MRI as objective medical evidence). We

A-2023-13T1 45

note only that both Dr. Gur's report of defendant's 2010 MRI and

Dr. Siegert's report relying on those MRI findings were both

admitted without objection, although neither testified. The

third PCR judge, while relying on Dr. Gur's report of

defendant's significant brain abnormalities in finding he was

not competent to proceed on his PCR petition, failed to mention

it at all in his opinion dismissing the petition and instead

relied on Dr. Voskanian who never reviewed those MRI findings.

Given the extent of the damage to defendant's brain reflected in

Dr. Gur's report, we cannot find a decision which overlooks it

without explanation to be one supported by sufficient credible

evidence in the record. See Estate of Hanges v. Metro. Prop. &

Cas. Ins., 202 N.J. 369, 388-89 (2010); see also Trantino v.

N.J. State Parole Bd., 166 N.J. 113, 191-93 (2001).

We accordingly vacate the order dismissing defendant's PCR

petition and remand for a new evidentiary hearing. Although we

have no hesitation in the court relying on the transcribed

testimony of defense counsel and his investigator on remand, we

urge strongly that the court hear the testimony of all of the

experts, including Dr. Gur, following the experts' review of all

of the evidence. We are very mindful of the long delay in

bringing this matter to a conclusion. Nevertheless, it is

A-2023-13T1 46

apparent to us that the fragmented nature of the proceedings has

greatly contributed to the concerns we have identified here.

Thus we direct the court to convene a case management

conference within thirty days to establish a schedule for 1) any

updated exams and exchange of expert reports the parties or the

court deems necessary, and 2) a hearing where it can

expeditiously hear the testimony of the experts and thus finally

bring this difficult matter to a conclusion. Unless there is

objection, the court on remand may continue to presume that

defendant lacks capacity to participate in the proceeding and

continue to use the services of a GAL.

Vacated and remanded for further proceedings not

inconsistent with this opinion. We do not retain jurisdiction.