NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0964-22
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SAMUEL TOLBERT, a/k/a SAM TOLBERT, and SAMUEL J. TOLBERT,
Defendant-Appellant. _______________________
Argued December 13, 2023 – Decided December 27, 2023
Before Judges Vernoia and Walcott-Henderson.
On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 16-03- 0235.
Kayla Elizabeth Rowe, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Kayla Elizabeth Rowe, on the briefs).
Boris Moczula, Deputy Attorney General, argued the cause for respondent (Matthew J. Platkin, Attorney General, attorney; Boris Moczula, of counsel and on the brief).
PER CURIAM
Defendant Samuel Tolbert pleaded guilty to the first-degree armed
robbery of a Washington Township gas station and the court imposed a ten-year
sentence subject to the requirements of the No Early Release Act, N.J.S.A.
2C:43-7.2. On the direct appeal from his sentence, defendant argued in part the
court erred in its calculation of jail credits, but we rejected that argument and
others made on his behalf, and we affirmed his conviction and sentence. State
v. Tolbert, No. A-0405-18 (App. Div. Feb. 11, 2020).
Defendant filed a timely post-conviction relief (PCR) petition generally
alleging he was denied the effective assistance of plea counsel. Defendant later
filed an amended verified petition asserting in part he was entitled to PCR for
the reasons set forth in PCR counsel's brief "as well as" defendant's "pro se
brief."1
1 Defendant's appendix on appeal includes PCR counsel's brief to which defendant refers in the amended verified petition. The appendix does not include defendant's pro se brief to which he refers in the amended verified petition. The absence of defendant's pro se brief in the record on appeal is in accord with Rule 2:6-1(a)(2), and defendant does not make any arguments on appeal requiring consideration of his pro se brief to the PCR court. A-0964-22 2 Relying on a detective's report, PCR counsel's brief to the trial court
summarized the facts supporting the charge against defendant—first-degree
armed robbery. More particularly, counsel explained a Washington Township
detective had reported that gas station attendant Pawam Jung Rayamajhi "was
held up at gun point by a white male and white female." According to the
detective's report, the male had worn "a black hoodie with CSI wording on the
front, a bandana across his face, and yellow work gloves."
The detective's report further explained the male had entered the gas
station store holding a handgun, which he pointed at Rayamajhi while directing
Rayamajhi to open the cash drawer. The male removed approximately $600
from the drawer after it was opened.
The female removed several packs of cigarettes and lottery tickets from
behind the counter. As explained in PCR counsel's brief, the detective reported
the female dropped a cigarette package as she exited the store and a fingerprint
recovered from that package was later determined to be a positive match for
Natashia Johnson. After exiting the store, the male and female ran to a "waiting
vehicle" in the store's parking lot. Johnson later provided a statement to the
A-0964-22 3 police inculpating defendant and another individual, Geana M. Carr, in the
commission of the robbery.2
A surveillance recording captured the robbery and showed the male
"holding a small revolver and wearing a black sweatshirt with 'CSI' on the front."
An "Evidence Examination Request Worksheet" completed by the Washington
Township detective who investigated the robbery stated the sweatshirt
"was . . . found on the side of the road" and requested a DNA test of the
sweatshirt. An "Evidence Receipt" for the sweatshirt was later completed by
the New Jersey State Police Office of Forensic Sciences. The receipt generally
describes the gas station robbery, notes the suspect had held a small revolver
and had worn a "black sweatshirt with 'CSI' on the front," and states the
sweatshirt was "found outside the gas station and [is] believed to have been worn
by the suspect." It is undisputed that subsequent testing of the sweatshirt
revealed defendant's DNA.
Based on those facts, defendant argued plea counsel was ineffective by
failing to move to suppress the sweatshirt on grounds it was seized unlawfully
2 Counsel's brief submitted to the PCR court, that defendant incorporated by reference into his amended verified petition, explained that Carr pleaded guilty to second-degree conspiracy to commit robbery and testified she agreed with defendant and Johnson to commit the robbery, acting as the "getaway driver." A-0964-22 4 without a warrant. Defendant also claimed the court imposed an illegal sentence
because it did not grant defendant jail credits to which he claimed he was
entitled. Defendant further asserted that plea counsel was ineffective by failing
to argue defendant's ten-year sentence was grossly disproportionate to the five-
year sentences imposed on Johnson and Carr.
The PCR court heard argument on defendant's PCR petition. In a decision
from the bench, the court found defendant's claim plea counsel was ineffective
by failing to move to suppress the sweatshirt lacked merit because the sweatshirt
had been abandoned and, therefore, there was no basis to assert its warrantless
seizure was improper. The court was also unpersuaded by defendant's claim his
sentence was illegal. The court explained defendant's contention he had not
been awarded jail credits to which he was entitled had been rejected on his direct
appeal. The court further determined defendant otherwise failed to sustain his
burden of establishing his plea counsel was ineffective and entered an order
denying the PCR petition without an evidentiary hearing. This appeal followed.
In his merits brief on appeal, defendant presents the following arguments:
POINT I
PLEA COUNSEL AND PCR COUNSEL WERE BOTH INEFFECTIVE WITH RESPECT TO THE APPROPRIATE CHALLENGE TO THE
A-0964-22 5 SWEATSHIRT RECOVERED AT OR NEAR THE GAS STATION.
POINT II
THE PCR COURT FAILED TO CALCULATE CUSTODY CREDIT.
POINT III
THE PCR COURT FAILED TO ADEQUATELY ADDRESS PLEA COUNSEL'S FAILURE TO ARGUE FOR A MORE PROPORTIONAL SENTENCE FOR [DEFENDANT].
In his brief in reply to the State's opposition, defendant presents the
following arguments:
THE SWEATSHIRT ISSUE NEEDS TO BE ADJUDICATED: THE PCR COURT MUST DEVELOP THE FACTS ON THE RECORD AND, WITH THE ASSISTANCE OF NEW COUNSEL, [DEFENDANT] SHOULD BE ALLOWED TO PRESENT AN APPLICABLE LEGAL ARGUMENT.
THE SENTENCING CREDIT ISSUE MUST BE RESOLVED[] BECAUSE THE PCR COURT MADE NO FINDINGS ON THE DATES THAT WILL CONTROL THE CREDIT TO WHICH [DEFENDANT] IS ENTITLED.
A-0964-22 6 POINT III
THE PROCEDURAL BARS DO NOT APPLY HERE.
We review the legal conclusions of a PCR court de novo. State v. Harris,
181 N.J. 391, 419 (2004). The de novo standard of review also applies to mixed
questions of fact and law. Id. at 420. We may "conduct a de novo review" of
the court's "factual findings and legal conclusions" where the PCR court has not
conducted an evidentiary hearing. Id. at 421; see also State v. Lawrence, 463
N.J. Super. 518, 522 (App. Div. 2020). We apply these standards here.
In Strickland v. Washington, 466 U.S. 668, 687 (1984), the Court
established a two-part standard, later adopted under the New Jersey Constitution
by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987), to determine
whether a defendant has been deprived of the effective assistance of counsel.
Under the standard's first prong, a petitioner must show counsel's performance
was deficient by demonstrating counsel's handling of the matter "fell below an
objective standard of reasonableness" and that "counsel made errors so serious
that counsel was not functioning as the 'counsel' guaranteed [to] the defendant
by the Sixth Amendment." Strickland, 466 U.S. at 687-88.
Under the "second, and far more difficult prong of the" Strickland
standard, State v. Gideon, 244 N.J. 538, 550 (2021) (quoting State v. Preciose,
A-0964-22 7 129 N.J. 451, 463 (1992)), a defendant "must show that the deficient
performance prejudiced the defense[,]" State v. O'Neil, 219 N.J. 598, 611 (2014)
(quoting Strickland, 466 U.S. 687). To establish prejudice, "[t]he defendant
must show that there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome." Gideon, 244 N.J. at 550-51 (alteration in original) (quoting
Strickland, 466 U.S. at 694). Proof of prejudice under Strickland's second prong
"is an exacting standard." Id. at 551 (quoting State v. Allegro, 193 N.J. 352,
367 (2008)). A defendant seeking PCR "must affirmatively prove prejudice"
satisfying the second prong of the Strickland standard. Ibid. (quoting Strickland,
466 U.S. at 693).
Where, as here, a defendant alleges counsel was ineffective during a
criminal proceeding in which the defendant pleaded guilty, satisfaction of
Strickland's second prong requires the presentation of evidence showing "'a
reasonable probability that, but for counsel's errors, [the defendant] would not
have pleaded guilty and would have insisted on going to trial.'" State v.
O'Donnell, 435 N.J. Super. 351, 376 (App. Div. 2014) (quoting Hill v. Lockhart,
474 U.S. 52, 59 (1985)). A defendant must further demonstrate that "had he
A-0964-22 8 been properly advised, it would have been rational for him to decline the plea
offer and insist on going to trial and, in fact, that he probably would have done
so." State v. Maldon, 422 N.J. Super. 475, 486 (App. Div. 2011) (citing Padilla
v. Kentucky, 559 U.S. 356, 372 (2010)).
A failure to satisfy either prong of the Strickland standard requires the
denial of a PCR petition founded on an ineffective assistance of counsel claim.
Strickland, 466 U.S. at 700. "With respect to both prongs of the Strickland test,
a defendant asserting ineffective assistance of counsel on PCR bears the burden
of proving his or her right to relief by a preponderance of the evidence." State
v. Gaitan, 209 N.J. 339, 350 (2012) (citations omitted).
Defendant has abandoned his claim plea counsel was ineffective by failing
to move to suppress the sweatshirt based on grounds it was seized during an
improper warrantless search. Defendant acknowledges plea counsel was not
ineffective by failing to make a meritless motion, see State v. O'Neal, 190 N.J.
601, 619 (2007) (explaining "[i]t is not ineffective assistance of counsel for
defense counsel not to file a meritless motion"), and he concedes there is no
basis in law or the pertinent facts supporting a claim that the seizure of the
sweatshirt violated the constitutional protections against unreasonable searches
A-0964-22 9 and seizures, see generally State v. Vanderee, 476 N.J. Super. 214, 229-30 (App.
Div. 2023).
Instead, for the first time on appeal, defendant argues plea counsel was
ineffective by failing to challenge the admissibility of the sweatshirt on grounds
that the State could not prove a proper chain of custody of the sweatshirt. And,
recognizing the newly minted argument was not presented to the PCR court,
defendant claims he is entitled to a remand for the court to consider and
determine whether PCR counsel was ineffective by failing to argue that plea
counsel was ineffective by failing to investigate or challenge the chain of
custody of the sweatshirt.
Defendant's argument is founded on the singular contention there were
grounds to challenge the chain of custody because the Washington Township
detective's "Evidence Examination Request" stated the sweatshirt was found "on
the side of the road" and the State Police receipt for the sweatshirt stated the
sweatshirt was found "outside the gas station." Based on what he claims are
those inconsistent reports as to where the sweatshirt was found, defendant argues
PCR counsel should have argued that plea counsel was ineffective by failing to
move to suppress the sweatshirt on chain-of-custody grounds.
A-0964-22 10 Defendant's right to the effective assistance of counsel includes the right
to the effective assistance of PCR counsel. State v. Rue, 175 N.J. 1, 18-19
(2002). PCR counsel was obligated to investigate claims that support
defendant's PCR petition and advance them on defendant's behalf. State v.
Webster, 187 N.J. 254, 257 (2006). The remedy for an alleged failure of PCR
counsel to provide effective assistance "is a new PCR proceeding," State v.
Vanness, 474 N.J. Super. 609, 626-27 (App. Div. 2023), because "resolution of
claims against PCR counsel generally involves matters outside the record," id.
at 627; see also State v. Armour, 446 N.J. Super. 295, 317 (App. Div. 2016).
The record presented on appeal does not permit a determination as to
whether plea counsel erred by failing to challenge the chain of custody of the
sweatshirt such that we may assess whether PCR counsel was ineffective by
failing to argue plea counsel was ineffective under the Strickland standard. "To
satisfy the requirement of authenticating or identifying an item of evidence, the
proponent of the evidence must present evidence sufficient to support a finding
that the item is what its proponent claims." N.J.R.E. 901. The State bore that
burden of proof as to the sweatshirt.
To satisfy its burden of establishing the proper foundation for admission
of the sweatshirt, the State was required to "show[] . . . an uninterrupted chain
A-0964-22 11 of possession." State v. Brunson, 132 N.J. 377, 393 (1993). Stated differently,
"where the incriminating object has passed out of the possession of the original
receiver and into the possession of others, the 'chain of possession' must be
established to avoid any inference that there has been substitution or tampering."
State v. Brown, 99 N.J. Super. 22, 27 (App. Div. 1968).
Defendant does not point to sufficient evidence in the record on appeal
supporting a determination that PCR counsel was ineffective by not asserting
that plea counsel erred by failing to challenge the chain of custody of the
sweatshirt. The claimed contradiction between the detective's statement—in the
"Evidence Examination Request"—that the sweatshirt was found on the street
and the State Police laboratory's reference—in its receipt for the sweatshirt—
that the sweatshirt was found outside the gas station does alone establish a break
in the chain of custody such that we may conclude defendant had a meritorious
argument supporting a chain-of-custody challenge. Indeed, it is unclear if the
two statements are, in fact, contradictory. In our view, they are not necessarily
inconsistent or contradictory; they both could be true and accurate and there may
be additional evidence not included in the record pertinent to a proper chain of
custody determination.
A-0964-22 12 In any event, we do not offer an opinion on the merits of defendant's newly
minted claim PCR counsel was ineffective by failing to argue plea counsel erred
by not challenging the chain of custody of the sweatshirt. We determine only
that the record on appeal does not permit a proper disposition of defendant's
claim PCR counsel was ineffective, and resolution of the claim "involves matters
outside the record," that "are better suited for a PCR petition." Vanness, 474
N.J. Super. at 627. Defendant's ineffective assistance of counsel claim against
PCR counsel may therefore be pursued under the Strickland standard in a
separate PCR petition filed in accordance with the requirements of Rule
3:22-12(a)(2). Ibid.; see also Armour, 446 N.J. Super. at 317.
We are also unpersuaded by defendant's claim the court erred by rejecting
his claim his sentence is illegal because he was not awarded jail credits to which
he claims he is entitled. The claim is without sufficient merit to warrant
discussion, R. 2:11-3(e)(2), other than to note it is barred under Rule 3:22-5
because the identical argument was raised and rejected on defendant's direct
appeal,3 see State v. Marshall, 173 N.J. 343, 351 (2002) (explaining Rule 3:22-5
3 During oral argument on defendant's direct appeal, his counsel expressly raised defendant's claim the sentencing court erred by failing to award jail credits "from the time of [defendant's] arrest until the date of his sentence" based on the court's finding he also served a sentence for a parole violation during a
A-0964-22 13 precludes "consideration of an argument presented in a [PCR] proceeding . . . if
the issue is identical or substantially equivalent to that adjudicated previously
on appeal" (citations omitted)).
We are also unpersuaded by defendant's contention the court erred by
rejecting his claim that plea counsel was ineffective by failing to argue
defendant received a sentence disproportionate to Johnson's.4 As noted, the
court imposed a ten-year sentence on defendant's conviction for the first-degree
robbery to which he pleaded. See N.J.S.A. 2C:43-6(a)(1) (providing an ordinary
sentencing range of ten to twenty years for a conviction of a first-degree
offense). The sentence was in accordance with defendant's plea agreement and
is the minimum sentence within the statutory range for first-degree offenses.5
See ibid. Johnson also pleaded guilty to first-degree robbery pursuant to a plea
portion of the time. Defendant made the identical argument in support of his PCR petition, and makes it again on this appeal, but we rejected the argument and affirmed defendant's sentence on his direct appeal. Tolbert, slip op. at 1. 4 Defendant does not argue on appeal his sentence was disproportionate to the sentence imposed on Carr. We therefore do not address Carr's sentence. 5 Defendant does not argue there is evidence supporting a determination he was entitled to sentencing within the second-degree range as permitted under N.J.S.A. 2C:44-1(f)(2). A-0964-22 14 agreement permitting the court to impose a five-year sentence within the range
for a second-degree offense as authorized under N.J.S.A. 2C:44-1(f)(2).
We recognize that "[d]isparity [in sentencing] may invalidate an otherwise
sound and lawful sentence." State v. Roach, 146 N.J. 208, 232 (1996).
However, a sentence "is not erroneous merely because a co-defendant's sentence
is lighter." Ibid. (quoting State v. Hicks, 54 N.J. 390, 391 (1969)). The primary
issue presented by a sentencing disparity claim is "whether the disparity is
justifiable or unjustifiable." Id. at 233. A court must determine "whether the
co-defendant is identical or substantially similar to the defendant regarding all
relevant sentencing criteria," ibid., and if "'there is an obvious sense of
unfairness in having disparate punishments for equally culpable perpetrators ,'"
id. at 232 (quoting State v. Hubbard, 176 N.J. Super. 174, 177 (App. Div. 1980)).
Defendant correctly notes the PCR court did not make express findings
supporting its rejection of his claim plea counsel was ineffective by failing to
argue the court incorrectly imposed a sentence on defendant that he claims is
disproportionate from Johnson's sentence. Even in the absence of such findings,
our de novo review of the issue in the absence of an evidentiary hearing, Harris,
181 N.J. at 421, permits our consideration and rejection of defendant's claim.
A-0964-22 15 Most simply stated, although defendant and Johnson both pleaded guilty
to first-degree robbery, defendant's sentence is not impermissibly disparate from
Johnson's because defendant and Johnson are not substantially similar under the
relevant sentencing guidelines. Roach, 146 N.J. at 233. Johnson cooperated
with law enforcement from the outset, implicating herself and defendant in the
commission of the robbery and agreeing to continue her cooperation as a
condition of her plea agreement. Defendant offered no similar cooperation, and
it can be reasonably inferred that Johnson's cooperation with law enforcement
assisted the State in obtaining Johnson's plea to the first-degree robbery charge.
Johnson's criminal history included only convictions for disorderly
persons offenses. In contrast, defendant had numerous juvenile adjudications,
three prior criminal convictions, including a conviction for aggravated
manslaughter, and defendant was on parole when he committed the gas station
robbery. Moreover, defendant wielded the gun during the robbery and
threatened the gas station attendant with it. Johnson did not.
Additionally, defendant pleaded guilty to first-degree robbery and the
court imposed the minimum permissible sentence for that offense, see N.J.S.A.
2C:43-6(c), in accordance with his plea agreement. The court could only have
imposed a five-year sentence on defendant if he presented evidence he was
A-0964-22 16 entitled to be sentenced within the second-degree range as permitted under
N.J.S.A. 2C:44-1(f)(2). Defendant does not argue such evidence existed and the
record, including defendant's significant prior criminal record, does not disclose
any basis for a meritorious argument he was entitled to be sentenced to the five-
year term within the second-degree range to which Johnson was sentenced in
accordance with her plea agreement under N.J.S.A. 2C:44-1(f)(2). In other
words, the court lacked any basis in the record to sentence defendant under
N.J.S.A. 2C:44-1(f)(2) to the same five-year sentence imposed on Johnson.
Plea counsel was not ineffective by failing to make a meritless disparate
sentencing argument. O'Neal, 190 N.J. at 619. The PCR court therefore
correctly rejected that claim and denied defendant's petition.
To the extent we have not expressly addressed any of defendant's
remaining arguments, they are without sufficient merit to warrant discussion.
R. 2:11-3(e)(2).
Affirmed.
A-0964-22 17