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State v. Flanagan

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 3, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
THOMAS FLANAGAN, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 91-06-2858.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 5, 2010

Before Judges Fuentes and Gilroy.

Defendant Thomas Flanagan appeals from the July 29, 2008 order that denied his petition for post-conviction relief (PCR). We affirm.

On June 6, 1991, an Essex County Grand Jury charged defendant with second-degree attempted aggravated sexual assault, contrary to N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2a(2) (count one); third-degree aggravated criminal sexual contact, contrary to N.J.S.A. 2C:14-3a (count two); third-degree criminal restraint, contrary to N.J.S.A. 2C:13-2 (count three); and third-degree endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4 (count four). The charges arose from defendant allegedly exposing himself to Mary,*fn1 a then thirteen-year-old girl, on May 15, 1990. On December 2, 2002, defendant entered into a retraxit plea of guilty to count four in exchange for the State recommending a three-year term of imprisonment with no period of parole ineligibility, and dismissal of the remaining three counts. The procedural history leading to the entry of defendant's guilty plea is contained in our prior unpublished opinion, responding to defendant's direct appeal, and affirming his conviction and sentence. State v. Flanagan, No. A-1268-03 (App. Div. April 29, 2005).

On September 23, 2003, the trial court conducted a Horne*fn2 hearing to ascertain whether defendant was subject to the Sex Offender Act, N.J.S.A. 2C:47-1 to -10. Having found defendant subject to the Act, the court sentenced defendant to a three-year term to be served at the Adult Diagnostic and Treatment Center at Avenel, and directed defendant to register under Megan's Law.*fn3 Defendant appealed.

On appeal, defendant argued: 1) the trial court failed to personally inform him that he was subject to being involuntarily committed pursuant to the Sexually Violent Predator Act;*fn4 2) there was an insufficient factual basis to support the guilty plea; and 3) the State failed to prove that he was a repetitive and compulsive sex offender. We rejected these arguments and affirmed. Id. at 9. On July 11, 2005, the Supreme Court denied defendant's petition for certification. 185 N.J. 36.

On June 21, 2007, defendant filed a pro se petition for PCR arguing ineffective assistance of trial counsel, contending that his attorney had "withheld evidence that would have set [him] free." Defendant asserted that the attorney had withheld from the court Mary's May 29, 1990 affidavit, wherein she had recanted her allegations that implicated defendant. On October 23, 2007, assigned counsel filed a letter brief, supported by defendant's affidavit, again arguing ineffective assistance of trial counsel, based not only on counsel's failure to bring Mary's affidavit to the attention of the trial court, but on his failure to properly advise defendant concerning the effect of Mary's recantation as it pertained to the State's ability to prove the charges against him.

Defendant contended that if his trial counsel had properly instructed him regarding the effect of the victim's retraction, he would not have pled guilty. Lastly, defendant asserted that there was an insufficient factual basis upon which the court accepted his guilty plea, contending that because he had been drinking before the incident, the consumption of alcohol may have affected his ability to attest to the crime at the plea hearing. The State countered that the last argument was procedurally barred, having previously been raised and rejected on direct appeal.

On July 29, 2008, Judge Ravin entered an order, supported by a twenty-page written opinion, denying defendant's petition without conducting an evidentiary hearing.

On appeal, defendant argues:

POINT I. THE COURT BELOW ERRED IN FAILING TO CONDUCT AN EVIDENTIARY HEARING ON DEFENDANT'S CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT II. DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL WHEN HE ENTERED HIS GUILTY PLEA BECAUSE HIS ATTORNEY FAILED TO FULLY ADVISE HIM REGARDING THE EFFECT OF THE COMPLAINING WITNESS'S RECANTATION LEGAL ARGUMENT.

The decision whether to conduct an evidentiary hearing on a claim of ineffective assistance of counsel rests primarily on the trial court's determination whether a defendant has made a prima facie showing of the claim. Rule 3:22-1 does not require that an evidentiary hearing be granted in every PCR proceeding. State v. Preciose, 129 N.J. 451, 462 (1992). Where a "court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, . . . or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing, . . . then an evidentiary hearing need not be granted." State v. Marshall, 148 N.J. 89, 158 (internal citations omitted), cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed. 2d 88 (1997). Claims of ineffective assistance of counsel are governed by the standards set forth in Strickland v. Washington.*fn5 See State v. Fritz, 105 N.J. 42, 58 (1987) (holding the precepts of Strickland have been adopted by New Jersey). For a defendant to establish a prima facie case of ineffective assistance of counsel under Strickland, the defendant must show that defense "counsel's performance was deficient," and that "there exists 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Preciose, supra, 129 N.J. at 463-64 (quoting Strickland, supra, 466 U.S. at 694; 104 S.Ct. at 2068, 80 L.Ed. 2d at 698); see also State v. Allegro, 193 N.J. 352, 366 (2008).

"'The first prong of the [Strickland] test is satisfied by a showing that counsel's acts or omissions fell outside the wide range of professionally competent assistance considered in light of all the circumstances of the case.'" Allegro, supra, 193 N.J. at 366 (quoting State v. Castagna, 187 N.J. 293, 314 (2006)). To prove the second prong of Strickland, a defendant must prove "'that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. at 367 (quoting State v. Loftin, 191 N.J. 172, 198 (2007)). It is "an exacting standard: '[t]he error committed must be so serious as to undermine the court's confidence in the jury's verdict or the result reached.'" Ibid. (quoting Castagna, supra, 187 N.J. at 315).

We have considered defendant's arguments in light of the record and applicable law. We are satisfied that neither argument is of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Ravin in his written opinion of July 29, 2008. Nevertheless, we add the following comments.

Contrary to defendant's argument in his pro se petition, the record contains evidence that the trial court was aware of the victim's May 29, 1990 affidavit prior to accepting defendant's plea on December 2, 2002. Additionally, the transcript of the plea proceeding discloses that defendant affirmatively represented to the trial court that he had the opportunity to discuss his case with his trial counsel, and the attorney had explained all that he needed to know about the case before entering his plea. In this context, the PCR court properly rejected defendant's claim that he was unaware that the victim's recantation would make it more difficult for the State to meet its burden of proof.

Affirmed.


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