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State v. Thoms

February 19, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
KENNETH J. THOMS, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Accusation No. A-00-02-0190.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 19, 2007

Before Judges Axelrad and Sapp-Peterson.

Petitioner, Kenneth Thoms, appeals from the May 30, 2007 order of the Law Division denying his motion to vacate the guilty plea he entered on February 14, 2000 to second-degree sexual assault, N.J.S.A. 2C:14-2(b). We affirm.

On October 20, 2002, as part of a negotiated plea agreement, defendant was sentenced, as a third-degree offender, to a four-year custodial term, together with community supervision for life (CSL). Appropriate fines and penalties were also imposed. No appeal was taken of the conviction and sentence imposed.

On January 24, 2002, however, defendant moved for post-conviction relief (PCR) pursuant to Rule 3:22-1. Defendant cited ineffective assistance of counsel, alleging that defense counsel (1) failed to present the court with his psychiatric history, (2) failed to have him psychologically evaluated for competency to enter the guilty plea, and (3) advised defendant to plead guilty to second-degree aggravated sexual assault. The PCR judge denied defendant's motion, concluding that it was frivolous. No appeal of that decision was filed.

On February 1, 2007 defendant filed a motion to vacate his guilty plea pursuant to Rule 3:21-1, arguing that his plea was illegal because (1) defense counsel failed to adequately inform him of the consequences of his guilty plea, specifically the CSL aspect of the sentence; (2) defense counsel joined the prosecutor's office shortly after representing him, creating a conflict of interest; and (3) during the colloquy between the court and defendant, there was no mention of the CSL. The motion judge denied the motion, finding that the issue raised had been the subject of the prior PCR filed in 2002, during which defendant's PCR counsel "firmly discussed the issue . . . raised before the Court on this application. This is the same exact application." The court concluded that characterizing the matter as a motion to vacate the entry of guilty plea did not alter the fact that the issue had been previously raised and addressed in a prior proceeding from which no appeal was taken. The present appeal followed.

On appeal defendant raises the following points for our consideration:

POINT I

THE DEFENDANT'S MOTION TO VACATE HIS GUILTY PLEA SHOULD HAVE BEEN GRANTED.

POINT II

THE PETITION FOR POST[-]CONVICTION RELIEF SHOULD HAVE BEEN GRANTED OR AN EVIDENTIARY HEARING HELD - PETITIONER ...


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