STATE OF NEW JERSEY VS. OMAR SHAHEER THOMASÂ (04-02-0173, 04-02-0174 AND 04-02-0175, MORRISCOUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-0469-15T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
OMAR SHAHEER THOMAS,
Defendant-Appellant.
______________________________
Submitted January 24, 2017 – Decided June 29, 2017
Before Judges Reisner and Sumners.
On appeal from Superior Court of New Jersey,
Law Division, Morris County, Indictment Nos.
04-02-0173, 04-02-0174, and 04-02-0175.
Joseph E. Krakora, Public Defender, attorney
for appellant (William Welaj, Designated
Counsel, on the brief).
Fredric M. Knapp, Morris County Prosecutor,
attorney for respondent (John McNamara, Jr.,
Supervising Assistant Prosecutor, of counsel
and on the brief).
PER CURIAM
Defendant Omar Shaheer Thomas appeals from a May 6, 2015
order denying his petition for post-conviction relief (PCR)
without an evidentiary hearing. Defendant argues on appeal:
POINT I
THE TRIAL COURT ERRED IN DENYING THE
DEFENDANT'S PETITION FOR POST CONVICTION
RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY
HEARING TO FULLY ADDRESS HIS CONTENTION THAT
HE FAILED TO RECEIVE ADEQUATE LEGAL
REPRESENTTION AT THE TRIAL LEVEL.
A. THE PREVAILING LEGAL PRINCIPLES REGARDING
CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL,
EVIDENTIARY HEARINGS AND PETITIONS FOR POST
CONVICTION RELIEF.
B. TRIAL COUNSEL DID NOT ADEQUATELY
REPRESENT THE DEFENDANT ARISING OUT OF
COUNSELS' FAILURE TO THOROUGHLY DISCUSS WITH
HIM ALL RELEVANT RAMIFICATIONS ASSOCIATED
WITH THE DECISION WHETHER OR NOT TO TESTIFY,
AS A RESULT OF WHICH HE DID NOT TESTIFY IN
HIS OWN DEFENSE AT TRIAL.
C. THE DEFENDANT DID NOT RECEIVE ADEQUATE
LEGAL REPRESENTATION FROM TRIAL COUNSEL AS
A RESULT OF THE FAILURE OF THE DEFENDANT TO
TESTIFY AT THE MIRANDA HEARING DUE TO
COUNSEL'S COERCION.
For the reasons that follow, we affirm.
The procedural history and trial evidence are detailed in our
eighty-nine page opinion affirming defendant's convictions for
robbery and unlawful possession of a weapon for an unlawful purpose
on direct appeal, and remanding for merger of weapons offenses.
State v. Thomas, A-3347-08 (App. Div. April 19), certif. denied,
216 N.J. 86 (2013). A brief summary will suffice here.
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Prior to the trial, Judge Salem Vincent Ahto conducted a
seventeen-day Miranda1 hearing and denied defendant's motion to
suppress his statement. Both our court and our Supreme Court
denied defendant's motion for leave to file an interlocutory
appeal.2 After a twenty-nine day trial, the jury found defendant
guilty of two counts of first-degree murder and related offenses
committed during an armed robbery of a computer-game retail store.
Judge Ahto sentenced defendant to two consecutive terms of life
imprisonment without parole eligibility for each murder
conviction, consecutive to an eighteen-year term of imprisonment,
subject to eighty-five percent parole ineligibility pursuant to
the No Early Release Act, N.J.S.A. 2C:43-7.2.
Defendant filed a PCR petition alleging that trial counsel3
was ineffective for coercing him in waiving his right to testify
at the motion to suppress hearing and at trial, and appellate
1
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
2
Defendant's subsequent motion for reconsideration of the motion
to suppress was denied by Judge Ahto.
3
Defendant was represented by two attorneys throughout the
proceedings, but did not specify which one, or that both were
ineffective.
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counsel failed to raise the issue on direct appeal.4 On May 6,
2015, Judge Ahto entered an order denying PCR relief without an
evidentiary hearing.
In his oral decision, the judge found that defendant failed
to meet the requirements of Strickland v. Washington, 466 U.S.
668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and
adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58
(1987), to establish a prima facie case of ineffective assistance
of counsel, and therefore was not entitled to an evidentiary
hearing. Judge Ahto noted that defendant did not certify what
facts he would have presented through his testimony that would
have altered the outcome of the trial. The judge cited the trial
transcript where he advised defendant of his right to testify, and
that defendant unequivocally exercised his right to remain silent.
The judge recalled that, even though defendant was told on multiple
occasions at trial he had the right to testify, at no time did he
"either by word or gesture indicate that he had a desire to
testify."
The judge further reasoned that counsel's decision not to
call defendant as a witness at the Miranda hearing or trial was
4
Defendant initially filed a pro se PCR petition that was
determined to be deficient. After defendant was appointed counsel,
an amended petition was filed to correct the deficiencies.
4 A-0469-15T3
strategic. If defendant had testified, he would have been cross-
examined regarding his inculpatory statements to police. In
addition, defendant's contacts with the victims, the crime scene,
and his co-defendants, would have been fodder for questioning and
would have plausibly connected him to the crime. Also, defendant's
credibility would have been further attacked based upon his prior
criminal record.
Because there was no merit to the claim that trial counsel
was ineffective for allegedly coercing defendant to waive his
right to testify at the Miranda hearing and at trial, Judge Ahto
found that appellate counsel was not ineffective for raising a
meritless claim.
Our examination of defendant's claims and review of the record
convinces us that defendant was not denied effective assistance
of trial counsel or appellate counsel, and there was no need for
an evidentiary hearing. We affirm substantially for the reasons
set forth in Judge Ahto's well-reasoned oral decision. We only
add that defendant's failure to present any competent evidence in
the form of a certification as to the substance of his potential
testimony rendered his PCR allegations nothing more than "bald
assertions," which fall short of establishing a prima facie claim
of ineffective assistance. See State v. Cummings, 321 N.J. Super.
154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).
5 A-0469-15T3
Affirmed.
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