STATE OF NEW JERSEY VS. MARK EVANS90-05-1562 and 90-06-1782, CAMDEN COUNTY 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NOT FOR PUBLICATION WITHOUT THE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-2487-14T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MARK EVANS,
Defendant-Appellant.
________________________________________________________________
Submitted June 21, 2016 – Decided June 15, 2017
Before Judges Espinosa and Kennedy.
On appeal from the Superior Court of New
Jersey, Law Division, Camden County,
Indictment Nos. 90-05-1562 and 90-06-1782.
Mark Evans, appellant pro se.
Mary Eva Colalillo, Camden County
Prosecutor, attorney for respondent (Nancy
P. Scharff, Assistant Prosecutor, of counsel
and on the brief).
PER CURIAM
Defendant appeals from an order entered in December 2014 that
denied his motion to correct an illegal sentence pursuant to Rule
3:21-10(b). We affirm.
In 1991, defendant entered a guilty plea to two counts of
first-degree robbery, N.J.S.A. 2C:15-1, pursuant to a plea
agreement in which he stipulated he was subject to an extended
term as a persistent offender.
The extended term imposed was not based merely upon
defendant's stipulation. At sentencing, the trial judge also
observed that defendant did not "barely qualify for an extended
term"; he was "way over what's required for extended term." As
the judge observed, these robbery convictions were defendant's
eighth and ninth indictable convictions, five of which were for
robbery. The judge stated, "the protection of the public requires
imposition of extended term and [the] plea agreement specifically
contemplates that."
The trial judge sentenced defendant in accordance with the
plea agreement to an aggregate term of life in prison with fifteen
years to be served without parole with the further provision that,
after five years, if defendant were accepted into an in-patient
drug treatment, the sentence would be modified to a probationary
term conditioned upon the successful completion of the drug
treatment program.
After the anticipated modification of his sentence, defendant
was charged with two violations of probation and convicted of
additional offenses. Defendant's probation was revoked and he was
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remanded to serve the balance of the custodial term originally
imposed. Defendant filed an appeal from that order but
subsequently withdrew the appeal.
Defendant later filed two motions for a change in custody to
permit him to enter a drug treatment program, both of which were
denied and the latter affirmed on appeal.
Defendant filed a motion to correct his sentence as illegal
in November 2014 and now appeals from the denial of that motion,
presenting the following constitutional challenge:
N.J.S.A. 2C:44-3a IS
UNCONSTITUTIONAL TO THE EXTENT
STATE V. DUNBAR REQUIRES A JUDGE
TO FIND A FACTOR LEADING TO THE
IMPOSITION OF DISCRETIONARY
PERSISTENT OFFENDER EXTENDED TERM
SENTENCE. U.S. CONST. AMENDS. V.
VI, XIV; N.J. CONST. ART. 1 PAR.
1-10.
Defendant argues the trial court had to make two factual
findings, i.e., (1) defendant had the two predicate convictions
required by N.J.S.A. 2C:44-3(a) and (2) an extended term was
necessary for the protection of the public. He contends that his
sentence is illegal because the two convictions relied upon did
not provide a valid basis for the imposition of an extended term
and because the protection of the public finding could not
constitutionally be made by a judge. We reject each of these
arguments.
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N.J.S.A. 2c:44-3(a) authorizes the imposition of an extended
term when
The defendant has been convicted of a crime
of the first, second or third degree and is a
persistent offender. A persistent offender
is a person who at the time of the commission
of the crime is 21 years of age or over, who
has been previously convicted on at least two
separate occasions of two crimes, committed
at different times, when he was at least 18
years of age, if the latest in time of these
crimes or the date of the defendant's last
release from confinement, whichever is later,
is within 10 years of the date of the crime
for which the defendant is being sentenced.
It cannot be disputed that defendant has the requisite number
of prior convictions to qualify as a persistent offender and
defendant admits as much. Defendant argues that the two
convictions relied upon were an "invalid" basis for the imposition
of an extended term because he was sentenced on two offenses at a
single sentencing proceeding. He has not, however, identified any
portion of the record in which the trial judge explicitly relied
upon two convictions entered on the same date and excluded
defendant's other convictions from his consideration as predicate
offenses. Indeed, the sentencing transcript includes the judge's
reference to seven prior indictable convictions. This argument
therefore lacks merit.
Defendant also argues that the finding regarding the
protection of the public had to be made by a jury. This precise
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argument was raised and rejected in State v. Pierce, 188 N.J. 155(2006). The Court observed that "protection of the public" is not
a finding statutorily required for a defendant to be eligible for
an extended term; it is an "additional requirement[] to serve as
a guide for sentencing courts engaged in discretionary extended-
term sentencing." Id. at 163. The added finding regarding
protection of the public "promotes effective review of the
discretionary judgment exercised as part of the sentencing
decision" and "fosters consistency in extended-term sentencing."
Id. at 166-67. It is, therefore, a finding that can be made by
the court, consistent with legislative intent and without
abridging a defendant's constitutional right:
The court may consider the protection of the
public when assessing the appropriate length
of a defendant's base term as part of the
court's finding and weighing of aggravating
factors and mitigating factors. The finding
is not a necessary condition, however, to the
court's determination whether defendant is
subject to a sentence up to the top of the
extended-term range. Thus, we rid our
sentencing practice of any ambiguity
suggestive of a Sixth Amendment transgression
by means of a remedy that preserves what, we
believe, the Legislature would prefer--
keeping the exercise of sentencing discretion
in the hands of courts, not juries.
[Id. at 170 (emphasis added.]
Affirmed.
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