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State of New Jersey v. Francis Thomson

April 5, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
FRANCIS THOMSON, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 02-06-1321.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 9, 2011

Before Judges Sapp-Peterson and Simonelli.

Defendant Francis Thomson appeals from the December 1, 2008 order denying his petition for post-conviction relief (PCR). We affirm.

At approximately 4:00 a.m. on August 24, 2001, defendant, then a juvenile, stabbed an unarmed gas station attendant multiple times, severing his jugular vein, cutting the arch of his aorta, and slicing through one of his lungs. The victim died as a result of his wounds. Defendant was charged with juvenile delinquency for acts which, if committed by an adult, would constitute murder, N.J.S.A. 2C:11-3, and other offenses.

Following the denial of his motion to suppress his statements to the police, defendant entered a conditional guilty plea to an amended charge of aggravated manslaughter, reserving his right to challenge the denial of his motion to suppress. The judge imposed a twenty-year term of imprisonment with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and five years of parole supervision following release.

Defendant appealed his conviction and sentence. We affirmed defendant's sentence but remanded for a determination of whether defendant had stated during the interview that he wanted to go home. State v. Thomson, No. A-1404-03 (App. Div. Dec. 27, 2004) (slip op. at 17-19). The trial judge subsequently found that neither defendant nor his mother, who was present during the interview, ever asked to leave. Defendant appealed, and we affirmed. State v. Thomson, No. A-0133-06 (App. Div. Dec. 10, 2007) (slip op. at 13), certif. denied, 195 N.J. 422 (2008).

Defendant subsequently filed a PCR petition grounded, in part, on ineffective assistance of trial, appellate and PCR counsel. Defendant argued that trial counsel failed to (1) provide him with discovery indicating that the victim died as a result of the failure of emergency medical service (EMS) personnel failure to treat him; (2) properly prepare for the Miranda*fn1 hearing or provide discovery to or discuss it with defendant; and (3) conduct a full and complete pretrial investigation. Defendant also argued that appellate and PCR counsel were ineffective for failing to raise trial counsel's deficiencies.

Judge Donald Venezia denied the petition without a hearing, concluding defendant failed to establish a prima case of ineffective assistance of trial or appellate counsel. The judge found that the record "clearly indicates that trial counsel reviewed the entire file with . . . defendant" and "there's not one iota of circumstance that would dictate . . . that [trial counsel] was ineffective at all." The judge also found that even if counsel's performance was deficient, "it wouldn't change anything in this case one iota because the guilt of this defendant is overwhelming based on the evidence." This appeal followed.

On appeal, defendant raises the following arguments:

I. THE ORDER DENYING DEFENDANT'S MOTION FOR [PCR] MUST BE REVERSED BECAUSE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF PLEA COUNSEL, APPELLATE COUNSEL AND [PCR] COUNSEL

A. Defendant received the ineffective assistance of plea [c]counsel when plea counsel failed to request that the court order a new presentence report that would contain important information about the defendant's background or to correct the Judge's misperception of the plea agreement at sentencing. Defendant again received the ineffective assistance of appellate counsel and PCR counsel when both counsel failed to raise the issue of the Court's erroneous belief that the negotiated sentence called for imposition of a 20 year sentence and when PCR counsel failed to identify and argue that plea counsel was ineffective at the sentencing proceedings.

II. THE PCR COURT ERRED IN NOT ANALYZING ALL OF THE ARGUMENTS ADVANCED BY THE DEFENDANT. THE COURT CONCLUDED WITHOUT ANY EVIDENCE BEFORE IT THAT DEFENDANT DID NOT RECEIVE INEFFECTIVE ASSISTANCE OF COUNSEL. THE ...


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