State of New Jersey v. Kevin L. Martin ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-1994-22
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KEVIN L. MARTIN,
Defendant-Appellant.
___________________________
Submitted March 11, 2024 – Decided April 5, 2024
Before Judges DeAlmeida and Bishop-Thompson.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 91-12-5048.
Kevin Martin, appellant pro se.
Theodore N. Stephens, II, Essex County Prosecutor,
attorney for respondent (Hannah Faye Kurt, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Kevin Martin appeals from the October 19, 2022 order of the
Law Division denying his motion to correct an illegal sentence. We affirm.
I.
In 1992, a grand jury indicted defendant, charging him with: (1) second-
degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1
(count one); (2) first-degree robbery of Yamileth Virk, Harbans Virk, Tarun
Desai and Sanjay Kothari, N.J.S.A. 2C:15-1 (counts two, three, eleven and
fourteen); (3) third-degree theft by receiving movable property (a stolen car),
N.J.S.A. 2C:20-7 (count four); (4) third-degree unlawful possession of handguns
without a permit, N.J.S.A. 2C:39-5(b) (counts five and seven); (5) second-
degree possession of handguns and a shotgun with a purpose to use them
unlawfully against the person of another, N.J.S.A. 2C:39-4(a) (counts six, eight
and ten); (6) third-degree possession of a shotgun without a firearms purchaser
identification card, N.J.S.A. 2C:39-5(c)(1) (count nine); (7) first-degree
attempted murder of Eric Steele and Sanjay Kothari, N.J.S.A. 2C:5-1 and
N.J.S.A. 2C:11-3 (counts fifteen and sixteen); (8) felony murder of Otis
Thrasher, N.J.S.A. 2C:11-3(a)(3) (count seventeen); and (9) purposeful and
knowing murder of Otis Thrasher, N.J.S.A. 2C:11-3(a)(1) and (2) (count
eighteen).1
1
The indictment charged defendant with an additional eleven counts which
were severed prior to trial.
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2
The charges arose from defendant's participation with others in two armed
robberies of open businesses in Essex County on the same day. During the
robberies, defendant and his co-conspirators murdered Thrasher, a security
guard, by shooting him in the abdomen, repeatedly shot other victims, some of
whom were forced to lay on the floor at gunpoint, and stole money and other
items. Defendant and the others used a stolen car in the commission of the
robberies. At the time of the crimes, defendant was eighteen.
A jury convicted defendant of second-degree conspiracy to commit
robbery (count one), four counts of first-degree robbery (counts two, three,
eleven and fourteen), receiving stolen property (count four), the six weapons
offenses (counts five, six, seven, eight, nine and ten), attempted murder of
Kothari (count sixteen), and felony murder and murder of Thrasher (counts
seventeen and eighteen). The jury found defendant not guilty of attempted
murder of Steele, but convicted him of the lesser included offense of second-
degree aggravated assault of Steele (count fifteen).
On August 6, 1992, the trial court sentenced defendant. The court merged
defendant's conspiracy to commit robbery conviction (count one) into his
robbery convictions (counts two, three, eleven and fourteen) and two of his
weapon convictions (counts six and eight) into his aggravated assault and
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attempted murder convictions (counts fifteen and sixteen). In addition, the court
merged one of defendant's weapon convictions (count ten), two of his robbery
convictions (counts eleven and fourteen), and his purposeful and knowing
murder conviction (count eighteen) into his felony murder conviction (count
seventeen).
With respect to the first robbery, the court sentenced defendant to a thirty-
year period of incarceration during which he is ineligible for parole , for his
felony murder conviction (count seventeen) and imposed a consecutive
eighteen-year term of incarceration, with a six-year period of parole ineligibility
for the robbery of Yamileth Virk (count two). A concurrent eighteen-year
conviction with a six-year period of parole ineligibility was imposed for the
robbery of Harbans Virk (count three), along with four concurrent five-year
terms of incarceration for receiving stolen property (count four) and three
weapon offenses (counts five, seven and nine).
With respect to the second robbery, the court imposed a consecutive nine-
year period of incarceration, with a three-year period of parole ineligibility for
the aggravated assault of Steele (count fifteen) and a concurrent eighteen-year
term with a seven-year period of parole ineligibility for attempted murder of
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4
Kothari (count sixteen). The sentences resulted in an aggregate fifty-seven-year
term of incarceration, with a thirty-nine-year period of parole ineligibility.
We affirmed defendant's convictions and sentence on direct appeal. State
v. Martin, A-0995-92 (App. Div. Nov. 10, 1994). In addition to other arguments
we found unpersuasive, we rejected defendant's argument that the trial court
abused its discretion by making his sentence on the
conviction of . . . second-degree aggravated assault of
Eric Steele (lesser included offense of count fifteen)
consecutive to the sentence imposed on his conviction
of first-degree felony murder of Otis Thrasher (count
seventeen). Defendant maintains that the consecutive
nature of the sentences was excessive in view of the fact
that the crimes and their objectives were not
predominantly independent of each other.
[(Slip op. at 34).]
Citing State v. Yarbough, 100 N.J. 627 (1985), we held that defendant's
consecutive sentences were appropriate, given that the two robberies were
separate acts that took place hours apart and the shooting of multiple victims at
one of the robberies were separate acts of violence with multiple victims. (Slip
op. at 38-40). The Supreme Court denied certification. State v. Martin, 141 N.J.
94 (1995).
In 1999, defendant filed a petition for post-conviction relief, alleging
ineffective assistance of trial counsel. The trial court denied the petition. We
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affirmed. State v. Martin, No. A-2513-99 (App. Div. Nov. 19, 2001). The
Supreme Court denied certification. State v. Martin, 172 N.J. 358 (2002). 2
On December 20, 2021, defendant filed a motion in the Law Division to
correct an illegal sentence. In support of his motion, defendant submitted a
certification in which he stated that he should not have received an aggregate
thirty-nine-year period of parole ineligibility, but an aggregate thirty-six-year
period of parole ineligibility. Defendant certified that "[u]pon reviewing
sentencing transcripts, it is clear the sentencing [c]ourt erred in the accumulation
of the overall sentence and the mandatory minimum portion of the sentence for
count[s] 15 to 17." In addition, defendant argued that the court should have
merged the aggravated assault of Steele (count fifteen) with the four robbery
convictions (counts two, three, eleven and fourteen) because the court failed to
find aggravating factors justifying a consecutive sentence for count fifteen.
In a supplemental certification, defendant argued that "based on new law
2021 (sic) his age must be taken into account as a factor to deter a consecutive
sentence." A review of defendant's brief reveals that the supplemental
certification refers to defendant's argument that he is entitled to be resentenced
2
Defendant's petition for a writ of habeas corpus pursuant to 28 U.S.C.A. §
2254 was dismissed as untimely by the United States District Court. Martin v.
Hendricks, No. Civ. A. 03-5885 (WHW) (June 21, 2006).
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at a hearing that considers his age at the time of his crimes by virtue of the
holding in State v. Torres, 246 N.J. 246, 273 (2021).
On October 19, 2022, the trial court issued an order denying defendant's
motion. The court concluded that "the motion to correct a sentence [is] not
authorized by law pursuant to [R.] 3:21-10(b)(5)."
This appeal followed. Defendant raises the following arguments.
POINT I
DEFENDANT RECEIVED AN ILLEGAL
SENTENCE VIA [(SIC)] OF AN ADDITIONAL
CONSECUTIVE THREE[-]YEAR MANDATORY
MINIMUM THAT IS NOT AUTHORIZED BY THE
CODE OF CRIMINAL JUSTICE PURSUANT TO R.
3:21-10(b)(5).
POINT II
DUE TO ESTABLISHED PRECEDENT AND NEW
LAW DEFENDANT SHOULD RECEIVE A
HEARING FOR THE APPLICATION OF THE
YARBOUGH FACTORS FOR AN ILLEGAL
SENTENCE VIA THE IMPOSITION OF AN
ADDITIONAL CONSECUTIVE THREE[-]YEAR
MANDATORY MINIMUM THAT IS NOT
AUTHORIZED BY THE CODE OF CRIMINAL
JUSTICE PURSUANT TO R. 3:21-10(b)(5).
POINT III
THE STATE MAY ARGUE COLLATERAL
ESTOPPEL, BUT THE SENTENCING COURT
NEVER APPLIED THE YARBOUGH FACTORS TO
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THE FIRST CONSECUTIVE SENTENCE NOR THE
SECOND CONSECUTIVE SENTENCE[.]
[NEITHER] TRIAL COUNSEL NOR APPELLATE
COUNSEL SOUGHT THE APPLICATION OF THE
FACTORS WHICH REMAINS [(SIC)] BOTH
DEFENDANT[']S CONSECUTIVE SENTENCES
ARE ILLEGAL.
II.
A motion to correct an illegal sentence may be filed at any time. R. 3:21-
10(b)(5); State v. Schubert, 212 N.J. 295, 309 (2012). An illegal sentence
"exceed[s] the penalties authorized by statute for a specific offense." State v.
Murray, 162 N.J. 240, 246 (2000). "A sentence may also be illegal because it
was not imposed in accordance with law. This category includes sentences that,
although not in excess of the statutory maximum penalty," are not authorized by
statute. Id. at 247. "In addition, a sentence may not be in accordance with law
because it fails to satisfy required presentencing conditions" or "include a
legislatively mandated term of parole ineligibility." Ibid. We review de novo
the trial court's finding that a sentence is legal. Schubert, 212 N.J. at 303-04.
Having carefully reviewed the record in light of these principles, we agree
with the trial court's conclusion that defendant offers no cogent argument that
the sentence imposed on him was illegal. Defendant primarily reiterates
arguments raised in his direct appeal with respect to the trial court's imposition
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of consecutive sentences. We rejected those arguments. Our decision in the
direct appeal precludes his argument that his sentence is illegal because the
sentencing court misapplied the holding in Yarbough, 100 N.J. at 630. That
issue has been adjudicated and thoroughly addressed by this court and is,
therefore, not an appropriate basis for a motion to correct an illegal sentence.
See State v. Trantino, 60 N.J. 176, 180 (1972) (A prior adjudication on the merits
of an issue on direct appeal is conclusive and cannot be relitigated, even if of
constitutional dimension). As we previously held, the trial court's imposition of
consecutive sentences for the independent robberies, which resulted in the
murder of one man, and the shooting of multiple other victims, was appropriate
and imposed after the trial court's careful consideration of the record and the law
addressing sentencing.
We are also not persuaded by defendant's argument that he is entitled to a
resentencing hearing pursuant to Torres. In Torres, issued nearly thirty years
after defendant was sentenced, the Court explained its intention "to underscore"
and "promote" the "concepts of uniformity, predictability, and proportionality"
that underlie the sentencing factors it set forth in Yarbough. 246 N.J. at 252-53.
The Court stated,
[w]e reiterate the repeated instruction that a sentencing
court's decision whether to impose consecutive
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sentences should retain focus on "the fairness of the
overall sentence." [State v.] Miller, 108 N.J. [112,] 122
[(1987)]; see also State v. Abdullah, 184 N.J. 497, 515
(2005). Toward that end, the sentencing court's
explanation of its evaluation of the fairness of the
overall sentence is "a necessary feature in any
Yarbough analysis." [State v.] Cuff, 239 N.J. [321,]
352 [(2019)].
[Id. at 270.]
The Court in Torres did not announce a new rule. It renewed and
reemphasized the long-established requirement that a sentencing court provide
"an explanation of the overall fairness of [a] consecutive sentence . . . ." Ibid.Because the Court did not create a new rule of law, retroactivity is not
applicable. State v. Feal, 194 N.J. 293, 307 (2008); State v. Burstein, 85 N.J.
394, 403 (1981) (stating "retroactivity can arise only where there has been a
departure from existing law.").
We have considered defendant's remaining arguments and conclude they
are without sufficient merit to warrant discussion in a written opinion. R. 2:11-
3(e)(2).
Affirmed.
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