STATE OF NEW JERSEY VS. MARK MELVIN (13-05-1257, ESSEX 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NOT FOR PUBLICATION WITHOUT THE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-4632-17T5
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MARK MELVIN,
Defendant-Appellant.
___________________________
Argued March 4, 2019 – Decided July 8, 2019
Before Judges Messano, Fasciale and Rose.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 13-05-1257.
Tamar Y. Lerer, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Tamar Y. Lerer, of counsel
and on the brief).
Matthew E. Hanley, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued the cause
for respondent (Theodore N. Stephens II, Acting Essex
County Prosecutor, attorney; Matthew E. Hanley, of
counsel and on the brief).
PER CURIAM
As we explained in our prior opinion, a jury convicted defendant Mark
Melvin of second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-
5(b), but deadlocked on the remaining counts of the indictment, including two
counts of first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2). State v. Melvin,
No. A-3003-14 (App. Div. Mar. 1, 2017) (slip op. at 5). The judge granted the
State's motion to impose a discretionary extended term, N.J.S.A. 2C:44-3(a),
and sentenced defendant to the maximum term of twenty years' imprisonment
with a ten-year period of parole ineligibility. Ibid.
Although we affirmed defendant's conviction, we remanded the matter for
resentencing. Id. at 2. In particular, we rejected the trial judge's reliance upon
United States v. Watts, 519 U.S. 148 (1997), to permit his consideration of
evidence adduced at trial that defendant committed the murders in finding and
weighing the aggravating and mitigating sentencing factors. Melvin, slip op. at
12-14. Citing our decision in State v. Tindell, 417 N.J. Super. 530 (App. Div.
2011), we said:
Here, the judge also substituted his judgment for
that of the jury. He considered the charges on which
the jury was hung even though a new trial would occur.
Defendant could later be punished again if convicted of
these crimes, implicating double jeopardy issues. The
judge improperly found aggravating factor two, the
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gravity and seriousness of the harm inflicted on the
victim, because there is no victim named in the
unlawful possession of a weapon offense. The judge
abused his discretion by finding defendant was the
shooter by a preponderance of the evidence and
considering that conduct in his sentencing decision.
[Melvin, slip op. at 14-15 (emphasis added) (citation
omitted).]
The Supreme Court denied cross-petitions for certification. State v. Melvin, 230
N.J. 597, 600 (2017).
While the appeal was pending, the State retried defendant on the
deadlocked charges before the same judge. The second jury could not reach a
verdict on certain controlled dangerous substance-related offenses, which the
State subsequently dismissed, and acquitted defendant of the murders and
related offenses. Defendant again faced the judge for resentencing on the
original conviction of unlawful possession of a handgun.
After reviewing our prior decision, and again relying on Watts, the judge
concluded that if proven by a preponderance of the evidence, he could consider
defendant's conduct even though the jury acquitted defendant of the underlying
crimes. The judge then recounted the evidence at trial that convinced him
"[d]efendant was the shooter of the two individuals" that were killed and the
third that was injured. Following the Court's guidance in State v. Pierce, 188
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N.J. 155 (2006), the judge granted the State's motion for a discretionary
extended term. The judge found aggravating factors three, six and nine, N.J.S.A.
2C:44-1(a)(3), (6) and (9), and no mitigating factors. N.J.S.A. 2C:44-1(b). He
sentenced defendant to a sixteen-year term of imprisonment, which, in
accordance with our judgment, reflected the elimination of aggravating factor
two in the sentencing calculus and consideration of defendant's rehabilitative
conduct while incarcerated. Melvin, slip op. at 14-15. The judge imposed an
eight-year period of parole ineligibility.
Defendant filed this appeal, listed originally on our Excessive Sentence
Oral Argument calendar. However, given the nature of defendant's arguments,
we placed the appeal on the plenary calendar for full briefing. Defendant raises
the following points:
POINT I
DEFENDANT HAS TWICE BEEN UNLAWFULLY
PUNISHED FOR COMMITTING CRIMES A JURY
DID NOT FIND HE COMMITTED. THE MATTER
MUST BE REMANDED FOR RESENTENCING IN
FRONT OF A JUDGE WHO IS NOT FIRMLY
CONVINCED OF DEFENDANT'S GUILT OF
CRIMES HE HAS BEEN ACQUITTED OF AND
WHO IS NOT COMMITTED TO SENTENCING
DEFENDANT FOR THOSE CRIMES.
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POINT II
DEFENDANT'S SENTENCE IS EXCESSIVE AND
THE RESULT OF IMPROPER DOUBLE-
COUNTING, AND THE BASIS FOR THE LENGTH
OF PAROLE DISQUALIFIER WAS
INADEQUALTELY EXPLAINED.
POINT III
THE JUDGMENT OF CONVICTION MUST BE
AMENDED TO REFLECT THE APPROPRIATE
DISTRIBUTION OF JAIL CREDITS AND PRIOR
SERVICE CREDITS.
We have considered these arguments in light of the record and applicable legal
standards. We affirm.
"Appellate review of the length of a sentence is limited[,]" State v. Miller,
205 N.J. 109, 127 (2011), "and appellate courts are cautioned not to substitute
their judgment for those of our sentencing courts." State v. Case, 220 N.J. 49,
65 (2014) (citing State v. Lawless, 214 N.J. 594, 606 (2013)).
The appellate court must affirm the sentence unless (1)
the sentencing guidelines were violated; (2) the
aggravating and mitigating factors found by the
sentencing court were not based upon competent and
credible evidence in the record; or (3) "the application
of the guidelines to the facts of [the] case makes the
sentence clearly unreasonable so as to shock the
judicial conscience."
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[State v. Fuentes, 217 N.J. 57, 70 (2014) (alteration in
original) (quoting State v. Roth, 95 N.J. 334, 364-65
(1984)).]
However, "a sentencing court must scrupulously avoid 'double-counting' facts
that establish the elements of the relevant offense." Id. at 74-75 (citing State v.
Yarbough, 100 N.J. 627, 645 (1985)).
Defendant contends the judge failed to abide by our prior judgment, as
well as our decision in Tindell, because he once again considered evidence of
conduct for which the jury acquitted defendant. Defendant argues this violated
principles of due process, fundamental fairness and the right to trial by jury, as
expressed in Apprendi v. New Jersey, 530 U.S. 466, 489-90 (2000), and Blakely
v. Washington, 542 U.S. 296, 299 (2004).
We reject any comparison between this resentencing proceeding and the
sentencing proceeding in Tindell. In that case, the judge imposed five
consecutive maximum sentences, including maximum periods of parole
ineligibility. 417 N.J. Super. at 570. We cited extensively to the judge's
inappropriate comments at sentencing, id. at 568-70, and concluded his
"personal views as to the propriety of the jury's verdict irreparably tainted the
sentence he imposed on defendant." Id. at 572. Simply put, our review of the
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transcript convinces us that the sentence here was not the result of similar
judicial pique or obvious abuse of judicial discretion.
We also reject the contention that our prior judgment necessarily
compelled the judge to ignore trial evidence that was probative of defendant's
conduct, even though the State proffered that evidence to prove offenses for
which the jury acquitted defendant. As noted above, because defendant faced
retrial on the deadlocked counts, our prior decision was firmly rooted in double
jeopardy concerns, which no longer existed at resentencing because the jury
acquitted defendant of some charges and the State dismissed all other counts of
the indictment.
In State v. Tillery, decided after the briefs were filed and the appeal argued
before us, the Court addressed whether when imposing sentence, a court should
consider trial evidence pertaining to charges on which the jury deadlocked, but
which were still pending. ___ N.J. ___ (2019) (slip op. at 37-38).
Distinguishing Watts, "which involved a sentencing court's reliance on evidence
presented as to a charge on which the defendant was acquitted," the Court
"caution[ed] courts not to consider evidence pertaining to charges as to which a
jury deadlocked in sentencing unless and until the defendant no longer faces the
prospect of prosecution for those charges." Id. at 38 (emphasis added).
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Without expressly approving Watts's rationale, however, the Court clearly
stated:
When a judge presides over a jury trial regarding
multiple offenses, he or she has the opportunity to
evaluate the credibility of witnesses and to assess the
evidence presented as to each of those offenses. If a
jury is unable to return a verdict as to some offenses
and convicts the defendant of others, and the State
requests that the court consider evidence presented as
to offenses on which the jury deadlocked, such
information may constitute competent, credible
evidence on which the court may rely in assessing the
aggravating and mitigating factors. No Sixth
Amendment or other constitutional principle, or
statutory provision, generally bars a court from
considering such evidence. And consideration of
competent evidence presented in support of charges —
even if the jury does not go on to convict defendant on
those charges — does not raise concerns about drawing
inferences from the mere fact that charges had been
brought . . . .
[Id. at 37 (citation omitted).]
The Court's opinion disposes of defendant's argument. In light of the above, we
also reject the argument that the judge double-counted by considering evidence
of the homicides and aggravated assault in finding the aggravating sentencing
factors.
Defendant also argues the judge double-counted by using defendant's
prior criminal record to both impose an extended term and calculate the length
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of the sentence. See, e.g., State v. Vasquez, 374 N.J. Super. 252, 267 (App. Div.
2005) (reversing extended term sentence, "both allowed and required" by the
defendant's single prior conviction, because the judge used that prior conviction
to impose a sentence greater than the "presumptive" midpoint). We again
disagree.
The judge properly determined defendant was eligible for an extended
term based upon his four prior convictions. The judge then weighed the
aggravating sentencing factors by considering not only defendant's prior record,
but also the nature of the offense and "other aspects of . . . defendant's record."
State v. Dunbar, 108 N.J. 80, 92 (1987). We find no mistaken exercise of
discretion in imposing a sixteen-year sentence of imprisonment.
Defendant also argues the judge failed to explain the imposition of an
eight-year period of parole ineligibility. At the time of the offense, N.J.S.A.
2C:43-6(c) (2012) required the imposition of a minimum term "between, one-
third and one-half of the sentence." Considering the entire sentencing
proceeding, which reflects the judge's thoughtful and comprehensive reasoning,
we find no basis to disturb the sentence imposed.
Lastly, we agree with defendant that the judgment of conviction (JOC)
incorrectly includes the time defendant spent serving his sentence prior to the
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date of resentencing as jail credit instead of prior service credit. See State v.
Rippy, 431 N.J. Super. 338, 354 (App. Div. 2013) (time spent serving a sentence
should be reflected in the JOC as prior service credit). The State also agrees.
We therefore remand the matter to the judge to file a corrected JOC reflecting
that defendant earned prior service credit, not jail credit, from October 27, 2014
to the date of his resentencing.
Affirmed; remanded to file a corrected JOC.
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