EASTON, Pa. — A Northampton County judge on Wednesday gave a Phillipsburg, New Jersey, man two months before he may have to return to prison for a sentence his lawyers say he effectively already served.
Judge Brian Panella ruled that Tahir Sutton, 29, must report to prison in 60 days unless the state Superior Court intervenes.
Sutton was convicted of robbing convenience stores in Wilson and Phillipsburg in 2013 while armed with a gun.
Because the robberies took place in two different states, two separate criminal prosecutions followed.
A New Jersey judge ultimately sentenced Sutton to 12 years in prison for the Philipsburg robbery.
A year later, Northampton County Judge Emil Giordano sentenced him to four to eight years for robbing the convenience store in Wilson.
Court records show Giordano first issued an order directing the sentences can be served concurrently — that is, Sutton’s time in a New Jersey prison counts toward his Northampton County sentence.
About a month later, Giordano’s office filed a new order indicating the sentences should be served consecutively, meaning Sutton can only begin his Pennsylvania sentence once released from custody in New Jersey.
The second order meant that when New Jersey authorities released Sutton on parole last year, he was transferred to a Pennsylvania state prison.
In response, Sutton’s attorney asked Judge Panella to free his client.
Agrees to release
After a short hearing in which county prosecutor Michael Weinert said prosecutors did not object, Panella agreed to order Sutton’s release.
However, a few months later, the Northampton County District Attorney’s office asked the court to enforce the second sentencing order and send Sutton back to jail. District Attorney Stephen Baratta said he was not aware Weinert agreed to the defense attorneys’ request until months later.
He contends that the order imposing concurrent sentences was a mistake on the part of Judge Giordano’s staff which the second corrected.
Panella never had the authority to release Sutton, Baratta argued.
“I think, this was a confluence of three very young lawyers” — Love, Panella and Weinert — “talking about this saying, ‘you know, we can do this,’” Baratta said. “What happened does not comply with not only the rules of court, but also the appellate case law.”
Elliot Love, a lawyer representing Sutton, argues that the first order is legally binding, the second order cannot be enforced, and Panella was right to free his client last year.
Love said it is unclear exactly who made the change and why. Sutton and his attorneys were not notified of the second sentencing order, Love said.
“I don't want the DA to confuse the issues. The issue is you cannot change a person’s sentence without notice,” Love said. “If they had told [Sutton] ‘we intend to change this,’ he would have had time to ask to withdraw his plea and proceed to trial.”
Panella agreed with prosecutors, and in January ordered that Sutton must return to prison.
Love appealed the decision to the Pennsylvania Superior Court, which will decide which of the two orders authorities should obey.
Incarceration delayed
The case went before the Northampton County court again Wednesday as Sutton’s attorneys asked Panella to keep Sutton out of jail while the appeal is pending.
Panella ruled that, because of the active appeal, he lacked the authority to pause Sutton’s incarceration.
However, after negotiations between county prosecutors and Sutton’s attorneys, the judge agreed to push back the date when Sutton must report to prison, giving him until early April.
In the coming weeks, the Superior Court will decide whether Sutton will wait in prison until his appeal is resolved.
