STATE OF NEW JERSEY VS. MARCUS MARTIN (13-05-0677, BERGEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-5573-16T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MARCUS MARTIN,
Defendant-Respondent.
_________________________________
Submitted August 7, 2018 – Decided August 13, 2018
Before Judges Sabatino and Mayer.
On appeal from Superior Court of New Jersey,
Law Division, Bergen County, Indictment No.
13-05-0677.
Joseph E. Krakora, Public Defender, attorney
for appellant (Karen A. Lodeserto, Designated
Counsel, on the brief).
Dennis Calo, Acting Bergen County Prosecutor,
attorney for respondent (Justin Blasi, Special
Deputy Attorney General/Acting Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Marcus Martin, who pled guilty in 2014 to a second-
degree "certain persons" weapons offense, appeals from the trial
court's December 12, 2016 order denying his petition for post-
conviction relief ("PCR") without an evidentiary hearing. We
affirm.
The record shows defendant accidently shot himself in the leg
with his own handgun while standing in the driveway of his home.
He was rushed to the hospital by a friend and had emergency surgery
to repair an injured artery. Another friend hid the gun in the
basement of defendant's home. Police investigating the incident
obtained the written consent of defendant's wife to search the
home and her vehicle. The search uncovered a stolen .45 caliber
handgun in the basement.
The State charged defendant in a five-count indictment with
various weapons offenses and the receipt of stolen property.
Following negotiations, defendant entered into a plea agreement
with the State, agreeing to plead guilty to count five, the second-
degree "certain persons" not to possess weapons charge, N.J.S.A.
2C:39-7(b). The State agreed in turn to dismiss the remaining
counts of the indictment and to recommend a five-year custodial
sentence with a five-year parole ineligibility period consistent
with the Graves Act, N.J.S.A. 2C:43-6(c).
In January 2015, the court sentenced defendant to a five-year
term with the five-year mandatory parole disqualifier. The
remaining counts of the indictment were dismissed. Defendant
appealed his sentence, which we affirmed by order on June 1, 2015.
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In October 2015, defendant filed the instant PCR petition.
He asserted his trial counsel was ineffective in failing to file
a motion to dismiss the indictment. After hearing oral argument,
Judge Margaret M. Foti denied the petition, issuing a detailed
eleven-page written opinion.
On appeal, defendant raises the following point in his brief:
DEFENDANT IS ENTITLED TO AN EVIDENTIARY
HEARING BECAUSE PLEA COUNSEL ALLOWED DEFENDANT
TO PLEAD GUILTY TO A CRIME FOR WHICH HE DID
NOT HAVE THE REQUISITE UNDERLYING CONVICTIONS.
We reject his arguments, substantially for the sound reasons
articulated in Judge Foti's written decision. We amplify that
conclusion with a few comments.
Under the Sixth Amendment of the United States Constitution,
a person accused of crimes is guaranteed the effective assistance
of legal counsel in his defense. See Strickland v. Washington,
466 U.S. 668, 687 (1984). To establish a deprivation of that
right, a convicted defendant must satisfy the two-part test
enunciated in Strickland by demonstrating that: (1) counsel's
performance was deficient, and (2) the deficient performance
actually prejudiced the accused's defense. Ibid.; see also State
v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part
test in New Jersey). In reviewing such claims, courts apply a
strong presumption that defense counsel "rendered adequate
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assistance and made all significant decisions in the exercise of
reasonable professional judgment." Strickland, 466 U.S. at 690.
In the specific context of claims of ineffectiveness of plea
counsel, a defendant must demonstrate a "reasonable probability"
that the result would have been different if his counsel had acted
differently. Lafler v. Cooper, 566 U.S. 156, 163 (2012).
Defendant first contends that his prior conviction in South
Carolina did not constitute an eligible predicate offense to
support the "certain persons" charge. The record reflects
defendant initially received a suspended sentence in South
Carolina of a charge of possession of a controlled dangerous
substance ("CDS") with intent to distribute it, provided defendant
complied with the requirements of probation. Defendant violated,
however, the probationary requirements under the South Carolina
plea agreement, and consequently was sentenced on the original
charge for possession of CDS with intent to distribute. S.C. Code
Ann. §44-53-370 (2018).
Like South Carolina, New Jersey comparably prohibits the
possession of CDS with intent to distribute. N.J.S.A. 2C:35-5.
Our CDS statute is one of the enumerated predicate offenses under
the certain persons statute. N.J.S.A. 2C:39-7(b). There is no
logical or legal reason to treat the South Carolina CDS offense
any differently.
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During the plea colloquy in this case, defendant admitted he
was guilty of possession of CDS with intent to distribute in the
South Carolina matter. According to the express terms of
defendant's presentence criminal history report, defendant was
convicted of a felony according to the South Carolina Code of
Laws, namely possession of CDS with intent to distribute, and was
thus prohibited from possessing a gun under the certain persons
statute. Defendant did not dispute any of the offenses listed in
that report. Hence, there was sufficient documentary evidence to
support the trial court's determination that defendant was
sentenced in South Carolina for the predicate offense of possession
of CDS with intent to distribute.
Defendant unambiguously pled guilty to the certain persons
offense. The court was satisfied that the plea was voluntary, and
that there was an ample factual basis for his guilty plea. We
agree. There is no basis for PCR on this issue.
As a separate claim of ineffectiveness, defendant contends
his trial counsel was ineffective by not filing a motion to
suppress evidence of the gun. Judge Foti rightly concluded such
a motion would not have been meritorious, given that defendant's
wife had provided written consent to search their home. The
consent form advised defendant's wife of her right to refuse to
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consent and stated that, by signing the form, her consent was
given freely and voluntarily, without fear, threat, or coercion.
It would have been eminently reasonable for trial counsel to
refrain from filing a motion to suppress, in light of the signed
consent form, and the possibility that both the filing of such a
motion may have caused the State to withdraw the plea offer.
Moreover, as Judge Foti aptly found, even if the wife's consent
were not deemed valid, the gun nevertheless was likely to have
been recovered by the police. There was ample probable cause to
have obtained a search warrant for the home, considering the report
of defendant's self-inflicted gunshot wound and the statements of
himself and others connecting him to the firearm. Hence, the gun
would have been admissible, even without a consensual search,
under the doctrine of inevitable discovery. See State v. Johnson,
120 N.J. 263, 289 (1990).
For these reasons, the trial court rightly concluded that
defendant failed to present a prima facie case that his former
counsel was unconstitutionally ineffective. Consequently, there
was no need for an evidentiary hearing. See State v. Preciose,
129 N.J. 451, 462 (1992). Defendant's further contentions lack
sufficient merit to warrant dismissal. R. 2:11-3(e)(2).
Affirmed.
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