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State v. Flanagan

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 The procedural history leading to the entry of defendant's guilty plea is contained in our prior unpublished opinion, responding to defendant's direct appeal, and affirming his conviction and sentence.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 ...


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