STATE OF NEW JERSEY v. ANTHONY THOMAS

RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-0146-18T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

ANTHONY THOMAS,
a/k/a THOMAS ANTHONY,

     Defendant-Appellant.
______________________________

                    Submitted November 14, 2019 — Decided November 25, 2019

                    Before Judges Whipple and Mawla.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Essex County, Indictment No. 05-07-1837.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Monique D. Moyse, Designated Counsel, on
                    the brief).

                    Theodore N. Stephens II, Acting Essex County
                    Prosecutor, attorney for respondent (Frank J. Ducoat,
                    Special Deputy Attorney General/Acting Assistant
                    Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant appeals from an August 1, 2018 order denying his petition for

post-conviction relief (PCR) without an evidentiary hearing. We affirm.

      On January 4, 2006, defendant pled guilty to third-degree endangering the

welfare of a child,  N.J.S.A. 2C:24-4(a). Pursuant to the plea agreement, the

State agreed to dismiss the remaining count of sexual assault. On March 15,

2006, defendant was sentenced to four years of incarceration, Megan's law

registration, a psychological evaluation at the Adult Diagnostic Treatment

Center, DNA testing, mandatory fines, and parole supervision for life (PSL).

Defendant was on probation at the time of his offense; he previously pled guilty

to aggravated assault, which was amended from aggravated sexual assault, and

the terms of his probation included no contact with children under the age of

sixteen. As a result, his sentence in this case ran concurrent to a sentence for

violation of probation. Defendant did not appeal from his conviction and instead

filed a PCR petition in August 2017, over eleven years after entry of his

judgment of conviction, and six years beyond the five-year time bar set forth in

Rule 3:22-12(a)(1)(a).

      Defendant's PCR petition asserted his sentence to PSL was an illegal ex

post facto violation. He argued his plea counsel was ineffective and misled him

to believe he was entering a plea to "lewdness," not endangering the welfare of


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a child. Defendant also asserted the judge who accepted his plea did not explain

the consequences of the plea to him. Defendant argued the PCR judge should

consider his claims and not apply the time bar because neither the judge, nor his

counsel at the time of the plea or sentencing, explained there was a five-year

time limit to file a PCR petition or the time period for appeal.

      In a thorough, nineteen-page written decision, the PCR judge quoted the

sentencing transcript, wherein the sentencing judge expressly advised defendant

of the time period for appeal and defendant acknowledged the advice. Thus, the

PCR judge concluded defendant's claim he was not advised of his right to appeal

was "simply not true." Furthermore, the judge found:

            [t]his discrepancy with regard to [d]efendant's appeal
            rights casts doubt on the accuracy of his parallel claim
            that he was simply never told about [PCR]. Moreover,
            [defendant] was not as naïve to the criminal justice
            process as he depicts, as he was already serving a term
            of probation at the time of his plea and sentencing.

      The judge also concluded defendant's late PCR petition prejudiced the

State because the victim, who was seven years old at the time of the offense,

was now twenty and would not want to re-live the incident. The judge stated:

"Memories have faded with the passage of time.          The State's proofs have

spoiled."



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                                        3
      Defendant's arguments regarding ex post facto law and the legality of his

sentence were rejected. Relevant to the issues raised on this appeal, the judge

also found defendant understood "the nature and consequences of PSL . . . ."

Citing the plea transcript and the transcript of a subsequent hearing to review

the Megan's law form, the PCR judge noted the judge who took defendant's plea

reviewed the entirety of defendant's sentence with him, answered defendant's

questions, confirmed defendant had no questions of the court or his plea counsel,

and confirmed defendant was satisfied with plea counsel's services.

      The judge also cited the sentencing transcript wherein defendant claimed

he believed he pled guilty to "lewdness" as opposed to the endangerment. The

PCR judge noted defendant again acknowledged during his sentencing that he

understood the consequences of his sentence, including PSL, and had not lied to

the judge when he testified similarly during the plea.

      The judge concluded plea counsel was not ineffective because defendant

was charged with a second-degree offense and instead pled guilty to a third-

degree offense. The judge found defendant was aware of the consequences of

his sentence and only disputed his plea because "he has had to face the

consequences of [his] decision."




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      The PCR judge concluded there were no grounds for an evidentiary

hearing because defendant did not demonstrate a prima facie case of ineffective

assistance of counsel. Additionally, a hearing would not provide further details

to help understand defendant's claims, counsel's file from the time of defendant's

plea and sentence "long since disappeared," and the outcome would not change.

      Defendant raises the following points on appeal:

            POINT ONE – MR. THOMAS IS ENTITLED TO AN
            EVIDENTIARY HEARING ON HIS CLAIM THAT
            HIS ATTORNEY RENDERED INEFFECTIVE
            ASSISTANCE OF COUNSEL BY FAILING TO
            INFORM    HIM    ADEQUATELY     OF   THE
            REQUIREMENTS AND CONSEQUENCES OF HIS
            PLEA, INCLUDING PAROLE SUPERVISION FOR
            LIFE AND CIVIL COMMITMENT.

            POINT TWO – THE PCR COURT ERRONEOUSLY
            RULED THAT MR. THOMAS'S PETITION WAS
            TIME BARRED BECAUSE ANY DELAY IN FILING
            THE PETITION WAS DUE TO DEFENDANT'S
            EXCUSABLE NEGLECT AND THERE IS A
            REASONABLE PROBABILITY THAT IF THE
            DEFENDANT'S FACTUAL ASSERTIONS WERE
            FOUND TO BE TRUE, ENFORCEMENT OF THE
            TIME   BAR    WOULD    RESULT   IN    A
            FUNDAMENTAL INJUSTICE.

      "Our standard of review is necessarily deferential to a PCR court's factual

findings based on its review of live witness testimony. In such circumstances

we will uphold the PCR court's findings that are supported by sufficient credible


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                                        5
evidence in the record." State v. Nash,  212 N.J. 518, 540 (2013). However,

"where . . . no evidentiary hearing was conducted, we may review the factual

inferences the court has drawn from the documentary record de novo." State v.

Blake,  444 N.J. Super. 285, 294 (App. Div. 2016) (citing State v. Harris,  181 N.J. 391, 420-21 (2004)).

      After reviewing the record in light of the applicable legal standards, we

conclude defendant's arguments are uniformly without merit, and affirm

substantially for the reasons expressed by the PCR judge. R. 2:11-3(e)(2).

      Affirmed.




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