STATE OF NEW JERSEY VS. TAHIR T. SUTTON (13-09-0422, WARREN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-3660-19

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TAHIR T. SUTTON,

Defendant-Appellant.

________________________

Submitted December 2, 2021 – Decided December 10, 2021

Before Judges Alvarez and Haas.

On appeal from the Superior Court of New Jersey, Law

Division, Warren County, Indictment No. 13-09-0422.

Joseph E. Krakora, Public Defender, attorney for

appellant (John J. Bannan, Designated Counsel, on the

brief).

James L. Pfeiffer, Warren County Prosecutor, attorney

for respondent (Dit Mosco, Assistant Prosecutor, of

counsel and on the brief).

PER CURIAM

Defendant Tahir T. Sutton appeals from the January 21, 2020 Law

Division order denying his petition for post-conviction relief (PCR) without an

evidentiary hearing. We affirm.

We set forth the following pertinent facts of this matter in our prior

opinion on defendant's and co-defendant Dionte Powell's direct appeals of their

convictions and sentences:

In the early morning hours of March 15, 2013,

two men wearing dark clothing, hoodies, masks, and

gloves entered the employee breakroom of a

convenience store gas station. Both were carrying

handguns and one held a backpack. Once inside, the

men encountered two employees and demanded money.

The two men took approximately $1[,]000 from the

employees and some cigarettes and cigar packages from

the store shelves. As the men ran from the store, one

of them dropped his gun and a piece of it broke off

when it hit the floor. The man retrieved the gun, but

left the broken piece behind.

Approximately forty minutes later, a patrol

officer using a radar device observed a car traveling

over the speed limit. The officer activated his overhead

lights and siren, but the driver of the car refused to stop.

The officer pursued the vehicle until it crashed into a

telephone pole. Four occupants got out of the car and

all but one ran away. The officer was able to detain a

female passenger. The officer saw that the rear window

of the car was broken, there was a small sledgehammer

on the backseat, and the ignition had been broken with

a screwdriver. The officer also observed a backpack on

the rear floor of the car.

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At the police station, the female passenger

identified Powell as the driver of the car and Sutton as

one of the passengers. She told the police that she

called Powell to ask for a ride to her mother's house.

Shortly after she got into the car, the police chase

began.

The police located the registered owner of the

car, who gave his written consent to a police search of

the vehicle and all of its contents, including "[a]ny and

all containers found therein." Inside the backpack, the

police found two handguns, packages of cigars and

cigarettes, two ski masks, and other clothing. One of

the guns was broken and the piece found at the store fit

the missing part of the gun. Sutton's thumb print was

found on the exterior of the car. DNA found on one of

the ski masks matched Sutton, and DNA on the other

mask matched Powell. DNA on cigarette butts found

in the car also matched Sutton.

The police set up a surveillance outside the

female passenger's home. At approximately 6:00 a.m.,

the police saw Powell and Sutton walking down the

street. Their physical characteristics and clothing

matched the robbery suspects. The police arrested

defendants. A search incident to that arrest disclosed

that each defendant was carrying approximately $500.

[State v. Sutton, Nos. A-5597-14 and A-0414-15 (App.

Div. Sep. 22, 2017) (slip op. at 1-3), certif. denied, 232

N.J. 394 (2018).]

Based on these facts, a Warren County grand jury charged defendant and

Powell with:

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second-degree conspiracy to commit robbery, N.J.S.A.

2C:5-2(a)(1) and N.J.S.A. 2C:15-1(a)(1) (count one);

second-degree burglary, N.J.S.A. 2C:18-2(b) (count

two); first-degree robbery, N.J.S.A. 2C:15-1(a)(1)

(count three); second-degree possession of a weapon

for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1) (count

four); third-degree unlawful possession of a handgun,

N.J.S.A. 2C:39-5(b) (count five); third-degree theft of

an automobile, N.J.S.A. 2C:20-3 (count six); fourth-

degree resisting arrest, N.J.S.A. 2C:29-2(a) (count

eight); and fourth-degree obstructing administration of

law or other governmental function, N.J.S.A. 2C:29-1

(count nine). The indictment also separately charged

Powell with second-degree eluding, N.J.S.A. 2C:29-

2(b) (count seven).

[Id. at 3-4.]

On the first day of trial, Powell's attorney made an oral application to

sever the trial and try each defendant separately pursuant to Bruton v. United

States, 391 U.S. 123 (1968) (holding the Sixth Amendment right to confront

witnesses precluded a court from admitting into evidence a co-defendant's out-

of-court statement implicating the defendant in the crime at a joint trial).

Defendant's attorney joined in Powell's motion.

The law governing a severance motion is clear. "Two or more defendants

may be tried jointly 'if they are alleged to have participated in the same act or

transaction or in the same series of acts or transactions constituting an offense

or offenses.'" State v. Brown, 170 N.J. 138, 159-60 (2001) (Brown I) (quoting

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R. 3:7-7). Courts generally prefer to try co-defendants jointly, "particularly

when 'much of the same evidence is needed to prosecute each defendant.'" Id.

at 160 (quoting State v. Brown, 118 N.J. 595, 605 (1990) (Brown II)). "That

preference is guided by a need for judicial efficiency, to accommodate witnesses

and victims, to avoid inconsistent verdicts, and to facilitate a more accurate

assessment of relative culpability." Ibid.

A single joint trial, however, may not take place at the expense of a

defendant's right to a fair trial. State v. Sanchez, 143 N.J. 273, 290 (1996).

When considering a motion for severance, a trial court should "balance the

potential prejudice to defendant's due process rights against the State's interest

in judicial efficiency." Brown II, 118 N.J. at 605 (quoting State v. Coleman, 46

N.J. 16, 24 (1965)). Trial courts apply a rigorous test for granting severance.

Brown I, 170 N.J. at 160. A mere claim of prejudice is insufficient to support a

motion to sever. State v. Moore, 113 N.J. 239, 274 (1988). A defendant does

not have the right to severance simply because he or she believes a separate trial

"would offer defendant a better chance of acquittal." State v. Johnson, 274 N.J.

Super. 137, 151 (App. Div. 1994) (quoting State v. Morales, 138 N.J. Super.

225, 231 (App. Div. 1975)).

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Here, Powell's attorney stated he discussed the case with defendant's

counsel the day before and learned that defendant's attorney planned to concede

in his opening statement that defendant had been in the car at some point prior

to the robbery and subsequent pursuit. Powell's attorney argued that defendant's

position conflicted with his client's defense that he had never been in the car and

was not involved in either the robbery or the car chase. In response, defendant's

attorney stated his defense strategy "could be" antagonistic to Powell's position.

However, defendant's attorney also made clear defendant would not assert that

Powell was involved in the robbery or present in the car.

After considering the parties' arguments, the trial judge denied defendants'

severance motion. The judge concluded that Bruton did not apply because

defendant had not made an out-of-court statement implicating Powell in any of

the offenses. In addition, the judge found that defendant's and Powell's defenses

were not "so antagonistic, mutually exclusive or irreconcilable as to require

severance." Both defendants planned to argue they were not present during the

robbery or the eluding incident that followed, and neither planned to implicate

the other in any of the offenses.

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Following the joint trial, the jury convicted defendant and Powell of the

charges set forth in the indictment. Sutton, (slip op. at 4). The judge then

sentenced defendant to an aggregate fifteen-year prison term. 1 Id. at 5.

Defendant and Powell each appealed their convictions and sentences.

Ibid. We consolidated these appeals for purposes of issuing a single opinion.

Id. at 1. Neither defendant challenged the trial court's denial of their severance

motion. Id. at 5-7. For the reasons set forth in our opinion, we affirmed

defendant and Powell's convictions for counts one through six, reversed

defendant's convictions under counts eight and nine and Powell's convictions for

counts seven, eight, and nine, and remanded the matter to the trial court for

correction of the judgments of conviction. Id. at 7-14. On the remand, the trial

court granted the State's motion to dismiss counts eight and nine of the

indictment against defendant.

Defendant filed a timely PCR petition. In his brief, defendant argued that

defendant's "[t]rial counsel [d]id not [e]ffectively [a]rgue for [s]everance" and

his "[a]ppellate [c]ounsel was ineffective for [n]ot [r]aising this [s]everance

[i]ssue on [a]ppeal." Defendant asserted his trial attorney "did not cite any case

law" in support of the motion and "did [not] explain in detail exactly how

1

The judge sentenced Powell to an eighteen-year term. Id. at 4-5.

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prejudicial a joint trial would be for [defendant]." Defendant also alleged his

appellate attorney should have challenged the judge's denial of the motion "since

there was a good pre-trial record devoted to this [issue]."

After conducting oral argument, Judge John H. Pursel rejected each of

these contentions in an oral decision. The judge concluded defendant failed to

satisfy the two-prong test of Strickland v. Washington, 466 U.S. 668, 687

(1984), which requires a showing that trial counsel's performance was deficient

and that, but for the deficient performance, the result would have been different.

Judge Pursel found there was simply no legal basis for the Bruton

severance motion because neither defendant nor Powell made an out-of-court

statement implicating the other in any of the offenses, and their defenses were

therefore not antagonistic or mutually exclusive. Thus, regardless of the length

or comprehensiveness of defendant's trial attorney argument on the motion, he

would not have succeeded.

For similar reasons, Judge Pursel ruled that defendant's appellate attorney

properly exercised her discretion in choosing not to challenge the trial judge's

denial of the severance motion in her appellate brief. The judge noted that the

attorney was successful in securing the dismissal of two of the convictions and

identifying mistakes in the judgments of conviction that needed to be corrected.

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Therefore, the judge found that defendant's appellate counsel did not perform

ineffectively in connection with defendant's appeal. 2

On appeal, defendant raises the same contentions he unsuccessfully

presented before Judge Pursel. He asserts:

POINT I

BECAUSE [DEFENDANT] RECEIVED

INEFFECTIVE ASSISTANCE OF COUNSEL, THE

PCR COURT ERRED IN DENYING

[DEFENDANT'S] PETITION FOR PCR.

(A) Legal Standards Governing Applications For

[PCR].

(B) Trial and Appellate Counsel were Ineffective For

Failing to Appropriately Argue for a Severance

of the Trial.

POINT II

IN THE ALTERNATIVE, BECAUSE THERE ARE

GENUINE ISSUES OF MATERIAL FACT IN

DISPUTE, THE PCR COURT ERRED IN DENYING

AN EVIDENTIARY HEARING.

(A) Legal Standards Governing [PCR] Evidentiary

Hearings.

2

Powell also filed a PCR petition and argued his appellate attorney was

ineffective because he did not challenge the denial of the severance motion.

State v. Powell, Docket No. A-2163-19 (App. Div. Mar. 31, 2021) (slip op. at

10-11). The trial court denied the petition and another panel of this court

affirmed that determination. Id. at 14-18.

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(B) In the Alternative, [defendant] is Entitled to an

Evidentiary Hearing.

When petitioning for PCR, the defendant must establish, by a

preponderance of the credible evidence, that he or she is entitled to the requested

relief. State v. Nash, 212 N.J. 518, 541 (2013); State v. Preciose, 129 N.J. 451,

459 (1992). To sustain that burden, the defendant must allege and articulate

specific facts that "provide the court with an adequate basis on which to rest its

decision." State v. Mitchell, 126 N.J. 565, 579 (1992).

The mere raising of a claim for PCR does not entitle the defendant to an

evidentiary hearing and the defendant "must do more than make bald assertions

that he was denied the effective assistance of counsel." State v. Cummings, 321

N.J. Super. 154, 170 (App. Div. 1999). Rather, trial courts should grant

evidentiary hearings and make a determination on the merits only if the

defendant has presented a prima facie claim of ineffective assistance, material

issues of disputed facts lie outside the record, and resolution o f the issues

necessitates a hearing. R. 3:22-10(b); State v. Porter, 216 N.J. 343, 355 (2013).

We review a judge's decision to deny a PCR petition without an evidentiary

hearing for abuse of discretion. Preciose, 129 N.J. at 462.

To establish a prima facie claim of ineffective assistance of counsel, the

defendant is obliged to show not only the particular manner in which counsel's

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performance was deficient, but also that the deficiency prejudiced his right to a

fair trial. Strickland, 466 U.S. at 687; State v. Fritz, 105 N.J. 42, 58 (1987).

There is a strong presumption that counsel "rendered adequate assistance and

made all significant decisions in the exercise of reasonable professional

judgment." Strickland, 466 U.S. at 690. Further, because prejudice is not

presumed, Fritz, 105 N.J. at 52, the defendant must demonstrate "how specific

errors of counsel undermined the reliability" of the proceeding. United States

v. Cronic, 466 U.S. 648, 659 n.26 (1984).

Where, as here, a defendant asserts his attorney was ineffective by failing

to file a motion, he must establish that the motion would have been successful.

"It is not ineffective assistance of counsel for defense counsel not to file a

meritless motion . . . ." State v. O'Neal, 190 N.J. 601, 619 (2007).

In addition, an appellate attorney is not ineffective for failing to raise

every issue imaginable. State v. Gaither, 396 N.J. Super. 508, 515 (App. Div.

2007). Instead, appellate counsel is afforded the discretion to construct and

present what he or she deems are the most effective arguments in support of the

client's position. Ibid.

Having considered defendant's contentions in light of the record and the

applicable law, we affirm the denial of defendant's PCR petition substantially

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for the reasons detailed at length in Judge Pursel's oral opinion. We discern no

abuse of discretion in the judge's consideration of the issues, or in his decision

to deny the petition without an evidentiary hearing. We are satisfied that the

trial and appellate attorneys' performances were not deficient, and defendant

provided nothing more than bald assertions to the contrary. 3

Affirmed.

3

In his PCR petition, defendant asserted his "jury was tampered with" because

"[p]eople in the hallways were asking jurors" whether defendant and Powell

were guilty. Defendant also stated his trial attorney "failed to ask questions [he]

instructed him to during trial that would have proven [his] innocence."

Defendant did not repeat these allegations in the brief his assigned counsel filed

prior to oral argument before Judge Pursel and the judge did not address these

complaints in his oral decision. Defendant now asserts that the matter should

be remanded to permit the judge to consider these contentions. We disagree.

First, defendant waived these contentions by omitting them from his counseled

brief. In any event, we considered defendant's argument about the alleged jury

tampering in our opinion on defendant's direct appeal and concluded it lacked

"sufficient merit . . . to warrant discussion in a written opinion." Sutton, (slip

op. at 6-7). In addition, defendant's certification in support of his petition does

not provide any details concerning the nature of the questions he presented to

his attorney at the trial. Thus, defendant's argument on this point was

unsupported by cognizable evidence and was a classic "bald assertion" that did

not warrant consideration. Cummings, 321 N.J. Super. at 170.

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