STATE OF NEW JERSEY VS. MARK MARTIN (15-01-0031, GLOUCESTER 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NOT FOR PUBLICATION WITHOUT THE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-4395-15T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MARK MARTIN,
Defendant-Appellant.
____________________________
Argued telephonically June 8, 2018 —
Decided June 27, 2018
Before Judges Fisher, Moynihan and Natali.
On appeal from Superior Court of New Jersey,
Law Division, Gloucester County, Indictment
No. 15-01-0031.
Peter T. Blum, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender, attorney;
Peter T. Blum, of counsel and on the brief).
Dana R. Anton, Assistant Prosecutor, argued
the cause for respondent (Charles A. Fiore,
Gloucester County Prosecutor, attorney;
Margaret A. Cipparrone, Senior Assistant
Prosecutor, of counsel and on the brief;
Monica Bullock, Assistant Prosecutor, on the
brief).
PER CURIAM
Tried to a jury on an indictment charging: two counts of
third-degree possession of controlled dangerous substance (CDS),
N.J.S.A. 2C:35-10(a) (counts one and two); second-degree
possession of CDS with intent to distribute, N.J.S.A. 2C:35-
5(b)(2) (count three); third-degree possession of CDS with intent
to distribute, N.J.S.A. 2C:35-5(b)(3) (count four); second-degree
possession of CDS with intent to distribute within 1000 feet of
school property, N.J.S.A. 2C:35-7 (count five); fourth-degree
resisting arrest by flight, N.J.S.A. 2C:29-2(a)(2) (count six);
second-degree possession of a firearm while committing a CDS crime
(guns and drugs), N.J.S.A. 2C:39-4.1(a) (count seven); and in a
bifurcated trial before the same jury on second-degree certain
persons not to have weapons, N.J.S.A. 2C:39-7(b) (count eight),
defendant Mark Martin appeals from his convictions on counts one,
six and eight. He was sentenced to concurrent state prison terms
of five years with two-and-a-half years of parole ineligibility
on count one; a flat eighteen months on count six; and an extended-
term of fifteen-years with seven-and-a-half years of parole
ineligibility on count eight. He argues:
POINT I
THE SECOND GUN POSSESSION TRIAL SHOULD HAVE
BEEN BARRED BY THE DOUBLE JEOPARDY CLAUSE
BECAUSE THE JURY'S FINDING IN THE FIRST TRIAL
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THAT POSSESSION WAS NOT PROVEN COLLATERALLY
ESTOPPED A SECOND POSSESSION PROSECUTION.
POINT II
THE DISCRETIONARY EXTENDED TERM FOR GUN
POSSESSION -- FIFTEEN YEARS WITH A SEVEN AND
ONE-HALF YEAR PAROLE DISQUALIFIER -- WAS
EXCESSIVE.
We affirm.
Defendant's collateral estoppel argument rests on the jury's
verdict in the first trial finding defendant not guilty of all
crimes related to the CDS and the gun discovered in the bedroom
of the raided house in which police found defendant and another
man. "Given that no factual basis existed to distinguish the gun
from the [CDS found in the bedroom],"1 he argues, "this result can
be interpreted in just one way: the jurors had doubts about
[defendant]'s connection to all the items in the bedroom and
decided that he had not possessed them." That interpretation, he
contends, barred the bifurcated certain persons trial.
The Double Jeopardy Clause of the Fifth Amendment of the
United States Constitution, and Article I, Paragraph 11 of the New
1
The guns and drugs section of the verdict sheet – renumbered
from the original indictment because of a post-indictment
dismissal — asked only if defendant "did possess a firearm while
in the course of committing or attempting to commit a [CDS] crime,
that being possession with intent to distribute heroin." The
choices – not guilty and guilty – did not, as is usual, inquire
as to the separate elements of that crime.
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Jersey Constitution provide coextensive protections against an
individual from being twice placed in jeopardy for the same
offense. State v. Kelly, 201 N.J. 471, 484 (2010). Under both
measures, a defendant is safeguarded against three types of abuses:
"a second prosecution for the same offense after acquittal"; "a
second prosecution for the same offense after conviction"; and
"multiple punishments for the same offense." Ibid. Citing the
case defendant heavily relies upon, our Supreme Court observed:
In Ashe v. Swenson, 397 U.S. 436, 442-46
(1970), the United States Supreme Court
recognized that the Fifth Amendment's Double
Jeopardy Clause incorporates the doctrine of
collateral estoppel. Thus, "when an issue of
ultimate fact has . . . been determined by a
valid and final judgment" in one trial, the
State may be collaterally estopped from
relitigating that same exact issue in a second
trial. Id. at 443. The crucial inquiry is
"whether a rational jury could have grounded
its verdict [of acquittal] upon an issue other
than that which the defendant seeks to
foreclose from consideration." Id. at 444(citations omitted).
[Kelly, 201 N.J. at 486 (second alteration in
original).]
We agree with Judge Kevin T. Smith who rejected defendant's
argument after the first trial that the certain persons trial was
barred by double jeopardy.
In Ashe, defendant – accused of the robbery of six victims –
was tried for the robbery of one of those victims and acquitted
4 A-4395-15T4
because the "jury determined by its verdict that the [defendant]
was not one of the robbers" where identity was the main issue in
the case. 397 U.S. at 438-39, 446. Further prosecution for the
robbery of the five other victims was precluded by the jury's
finding. Id. at 445-47.
We do not countenance defendant's contention that his first
trial was a "dry run" on defendant's connection to the items in
the bedroom. See id. at 447. The bifurcated certain persons
trial was mandated to protect defendant; "[s]everance is customary
and presumably automatic where it is requested because of the
clear tendency of the proof of the felony conviction to prejudice
trial of the separate charge of unlawful possession of a weapon."
State v. Ragland, 105 N.J. 189, 194 (1986).
Moreover, defendant did not meet his burden of proving that
the possession of the weapon issue was decided at the first trial,
Kelly, 201 N.J. at 488, thereby barring the successive prosecution
of the certain persons offense. The not-guilty verdict on the
guns and drugs charge need not have rested on the jury's finding
that defendant did not possess the firearm found in the bedroom.
The State was required to prove: 1) there was a firearm; 2)
defendant possessed the firearm; and 3) at the time alleged in the
indictment, defendant was in the course of committing, attempting
to commit or conspiring to commit possession with intent to
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distribute CDS. Model Jury Charge (Criminal), "Possession of
Firearm While Committing Certain Drug Crimes (N.J.S.A. 2C:39-
4.1(a))" (approved Mar. 22, 2004). Contrary to defendant's
argument that the only interpretation of the jury verdict was that
defendant possessed neither the CDS or firearm, the acquittal
could very well have been based on a finding that defendant did
not attempt, conspire to or commit the possession of CDS with
intent to distribute – a charge of which defendant was also
acquitted.
This was an unusual case where the State did not charge
defendant with unlawful possession of a weapon under N.J.S.A.
2C:39-5(b). An acquittal by the jury on that charge at the first
trial would have established that issue thereby barring the certain
persons trial.2 Defendant's theory that the acquittal on the guns
and drugs charge resolved both the drugs and firearms possession
issues is the result of speculation in which our Supreme Court
declined to engage. Kelly, 201 N.J. at 491-92. As the Kelly
Court observed, "divining whether the jury decided an ultimate
issue by a verdict of acquittal will seldom be possible." Id. at
491. Inasmuch as the firearms possession element was not
2
Since defendant – a convicted felon – could not obtain a permit,
a not guilty verdict would mean the jury found he did not possess
a handgun.
6 A-4395-15T4
established by the jury's first verdict, the State was not
collaterally estopped from prosecuting the certain persons charge.
Defendant's arguments that the extended term sentence imposed
on the certain persons count was excessive because the trial court
"relied solely on [defendant's] prior criminal record" in finding
aggravating factors, in imposing an extended term and in imposing
"the highest possible parole disqualifier that should be attached
to the extended term," are belied by Judge Smith's comprehensive
and well-reasoned analysis set forth in over twenty pages of the
sentencing transcript.
We review a "trial court's 'sentencing determination under a
deferential standard of review.'" State v. Grate, 220 N.J. 317,
337 (2015) (quoting State v Lawless, 214 N.J. 594, 606 (2013)).
We may "not substitute [our] judgment for the judgment of the
sentencing court." Lawless, 214 N.J. at 606. We must affirm a
sentence if: (1) the trial court followed the sentencing
guidelines; (2) its findings of fact and application of aggravating
and mitigating factors were based on competent, credible evidence
in the record; and (3) the application of the law to the facts
does not "shock[] the judicial conscience." State v. Bolvito, 217
N.J. 221, 228 (2014) (quoting State v. Roth, 95 N.J. 334, 364-65
(1984)).
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Judge Smith followed the four-step process in imposing the
persistent offender extended term, N.J.S.A. 2C:44-3;3 he (1)
determined whether the minimum statutory predicates were met; (2)
decided whether to impose an extended term; (3) weighed aggravating
and mitigating factors to determine the base term of the extended
sentence; and (4) determined whether to impose a parole
ineligibility period. See State v. Pierce, 188 N.J. 155, 164
(2006). Notably, the judge based the extended term on only two
of defendant's nine prior indictable convictions in order to, in
Judge Smith's words, "avoid double counting."
Defendant's other prior indictable convictions certainly
factored into the judge's finding of aggravating factors: three,
N.J.S.A. 2C:44-1(a)(3) (risk of defendant committing another
offense); six, N.J.S.A. 2C:44-1(a)(6) (extent of defendant's prior
criminal record and seriousness of the offenses of which he has
been convicted); and nine, N.J.S.A. 2C:44-1(a)(9) (need to deter
defendant and others from violating the law). But he also
considered in finding aggravating factor three: defendant's ten
non-indictable convictions; nine violations of probation or
parole, and the intensive supervision program; and that defendant
was on bail for "two other similar CDS and weapons offenses when
3
Defendant does not challenge that he was persistent-term
eligible under the statutory criteria.
8 A-4395-15T4
he was arrested" for these crimes. In finding aggravating factor
six he noted defendant's "virtually nonstop" drug activity after
his first indictable conviction and the escalating nature of
defendant's convictions from CDS possession to the certain persons
charge. The judge found aggravating factor nine, in part, because
defendant continued to reoffend despite the imposition of state
prison terms, some with periods of parole ineligibility.
The judge's findings as to the aggravating factors are
buttressed by the record. The concurrent sentences were imposed
after Judge Smith balanced defendant's "vast" abysmal criminal
history and his involvement with drugs with the glowing reports
he received on defendant's behalf. The extended term sentence of
fifteen years on the second-degree certain persons count, during
half of which defendant is parole ineligible, does not shock the
judicial conscience, especially considering that is the aggregate
sentence for all crimes.
Our holding renders unnecessary our consideration of
defendant's arguments related to waiver of preclusion by
defendants who consent to separate trials. Whether or not
defendant waived preclusion by agreeing to a separate trial, the
State was not precluded from prosecuting the certain persons
offense.
Affirmed.
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