STATE OF NEW JERSEY v. 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NOT FOR PUBLICATION WITHOUT THE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-2172-20
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MARK MARTIN,
Defendant-Appellant.
_______________________
Submitted October 6, 2022 – Decided October 25, 2022
Before Judges Accurso and Firko.
On appeal from the Superior Court of New Jersey, Law
Division, Gloucester County, Indictment No. 15-01-
0031.
Joseph E. Krakora, Public Defender, attorney for
appellant (Craig S. Leeds, Designated Counsel, on the
brief).
Christine A. Hoffman, Acting Gloucester County
Prosecutor, attorney for respondent (Jonathan I. Amira,
Special Deputy Attorney General/Acting Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Mark Martin appeals from the November 2, 2020 order
dismissing his petition for post-conviction relief (PCR) without an evidentiary
hearing. We affirm.
I.
On May 21, 2014, a Gloucester County grand jury returned an indictment
against defendant charging him with third-degree cocaine possession, N.J.S.A.
2C:35-10(a)(1) (count one); third-degree heroin possession, N.J.S.A. 2C:35-
10(a)(1) (count two); second-degree cocaine possession with the intent to
distribute, N.J.S.A. 2C:35-5(b)(2) (count three); third-degree heroin possession
with the intent to distribute, N.J.S.A. 2C:35-5(b)(3) (count four); second-degree
distribution "and/or" possession with intent to distribute "heroin and/or cocaine"
within a school zone, N.J.S.A. 2C:35-7 (count five); fourth-degree resisting
arrest, N.J.S.A. 2C:29-2(a)(2) (count six); second-degree possession of a firearm
while committing a drug offense, N.J.S.A. 2C:39-4.1(a) (count seven); and
second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b) (count
eight). The State dismissed count five prior to trial. 1
1
After count five was dismissed, counts six, seven, and eight were renumbered
as counts five, six, and seven. However, the judgment of conviction and order
for commitment do not reflect the renumbered counts.
A-2172-20
2
Defendant was tried before a jury over eight nonsequential days from
January 5 to 21, 2016, in a bifurcated trial. In the first trial, the jury found
defendant guilty of third-degree cocaine possession and fourth-degree resisting
arrest. He was acquitted of the other drug-related charges. The second phase
of the trial on the second-degree certain persons not to have weapons charge was
tried before the same jury on January 20 and 21, 2016. The jury found defendant
guilty of this charge.
On April 22, 2016, the trial judge sentenced defendant to a five-year term
of imprisonment with a two-and-a-half-year parole disqualifier on the cocaine
possession charge; eighteen months on the resisting arrest charge; and a
discretionary term of fifteen years subject to a parole disqualifier of seven -and-
a-half years on the certain persons not to have weapons charge. This court
affirmed defendant's conviction and sentence on direct appeal, State v. Martin,
No. A-4395-15 (App. Div. June 27, 2018), and the Supreme Court denied his
petition for certification, 236 N.J. 560 (2019).
On March 20, 2019, defendant filed a pro se PCR petition alleging his trial
counsel was ineffective for not investigating and challenging the State's case on
two credibility issues:
(1) Detective Eric Lokaj's statement that he was
familiar with defendant from "prior law enforcement
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3
experiences" but his counsel should have "discovered"
he never was arrested or had any contact with Lokaj.
Defendant asserts his trial counsel was ineffective for
not investigating his prior contacts with the Woodbury
police department; and
(2) trial counsel failed to challenge typographical errors
in Detective Dean Henry's supplemental report.
Specifically, defendant claims he asked his trial counsel
to question typographical errors relative to the date of
the raid and recovery of the revolver and the
investigation number being cited two different ways—
2014-00198-GGN and 2014-00023-GGN—on the same
page.
Defendant was assigned PCR counsel, who filed an amended petition and
supporting brief on May 1, 2020. On July 30, 2020, the PCR court conducted
oral argument. On August 5, 2020, defendant filed a pro se letter brief arguing
he was subject to double jeopardy because during the first phase of the trial, he
was acquitted of the possession of a firearm while in the act of a controlled
dangerous substance (CDS) offense. Therefore, defendant claims the certain
persons offense should not have been tried before the same jury in the second
phase of the trial.
On November 2, 2020, the PCR court concluded defendant failed to
satisfy the two-prong standard established in Strickland v. Washington, 466 U.S.
668 (1984) relating to the performance of his trial counsel. The PCR court also
found defendant's trial counsel's performance did not deprive him of a fa ir trial,
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and defendant could not show he was prejudiced in any way by counsel's
representation.
The court highlighted "trial counsel's decision not to discuss [defendant's]
criminal history and contact with the Woodbury [p]olice [d]epartment and not
to dwell on typographical errors constitute sound trial strategies." In addition,
the court noted had defendant's arguments been raised in front of the jury, they
"would [not] have damaged the credibility of [Lokaj or Henry] to such an extent
that the jury would have decided differently." Lokaj's observation of defendant
was corroborated by Henry's testimony that he saw defendant "run from the front
of the residence throughout the home out the back door." And, the residence
included mail for defendant's address, including utility bills. Defendant's
request for an evidentiary hearing was denied because the court found his claims
were "speculative." A memorializing order was entered.
Defendant appeals, reprising his arguments about the ineffectiveness of
trial counsel in the following three points:
POINT I
[DEFENDANT] WAS DENIED THE EFFECTIVE
ASSISTANCE OF TRIAL COUNSEL IN
VIOLATION OF THE UNITED STATES AND NEW
JERSEY CONSTITUTIONS AND THE LOWER
COURT ERRED IN CONCLUDING OTHERWISE.
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A. TRIAL COUNSEL WAS INEFFECTIVE BY
FAILING TO INVESTIGATE THE CONTACT
BETWEEN [DEFENDANT] AND LAW
ENFORCEMENT.
B. TRIAL COUNSEL WAS INEFFECTIVE BY
FAILING TO CHALLENGE THE ERRORS MADE IN
[THE] GLOUCESTER COUNTY PROSECUTOR'S
SUPPLEMENTAL REPORT.
POINT II
THE LOWER COURT ERRED IN DENYING
[DEFENDANT'S] PETITION FOR [PCR] WITHOUT
AFFORDING HIM AN EVIDENTIARY HEARING.
POINT III
THE MATTER SHOULD BE REMANDED FOR
CONSIDERATION OF THE ARGUMENTS NOT
ADDRESSED BY THE LOWER COURT. (Not
previously raised).
II.
We review a claim of ineffective assistance of counsel under the two-
prong test established by the United States Supreme Court in Strickland, 466
U.S. at 667, and subsequently adopted by our Supreme Court in State v. Fritz,
105 N.J. 42, 58 (1987). First, defendant must demonstrate that defense counsel's
performance was deficient. Strickland, 466 U.S. at 687. Second, a defendant
must show there exists "a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different."
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Id. at 694. Defendant's unsupported, self-serving allegations are not sufficient
to satisfy this standard. We will uphold a PCR court's factual findings "that are
supported by sufficient credible evidence in the record." State v. Nash, 212 N.J.
518, 540 (2013).
The mere raising of a claim of ineffective assistance of counsel does not
entitle the defendant to an evidentiary hearing. See State v. Cummings, 321 N.J.
Super. 154, 170 (App. Div. 1999). An evidentiary hearing is necessary only if
a petitioner presented sufficient facts to make out a prima facie claim of
ineffective assistance of counsel. State v. Preciose, 129 N.J. 451, 462-63 (1992);
R. 3:22-10(b). We apply an abuse of discretion standard to the trial court's
decision regarding an evidentiary PCR hearing. State v. Brewster, 429 N.J.
Super. 387, 401 (App. Div. 2013).
Here, defendant claims his trial counsel was ineffective for not
investigating all of his prior contacts with the Woodbury police department and
for failing to address typographical errors in Henry's supplemental report
regarding the date of the raid, recovery of the revolver, as well as conflicting
information—a wrong date and a three-digit discrepancy in the investigation
number—on one of the pages. Defendant's argument lacks merit.
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As the PCR court correctly determined under the first Strickland prong,
trial counsel is provided deference relative to "reasonable professional
assistance and trial strategy." Here, trial counsel's decision not to raise
defendant's prior extensive criminal history with the Woodbury police
department was an "exercise of judgment" insufficient to warrant overturning
his conviction. Nash, 212 N.J. at 542 (quoting State v. Echols, 199 N.J. 344,
358 (2009)). Moreover, defense counsel explained in his opening statement to
the jury that defendant left his residence at the time he was to be arrested because
he had outstanding traffic warrants. We are satisfied under the second
Strickland prong that the purported error committed was not "so serious as to
undermine the court's confidence in the jury's verdict or the result reached."
State v. Allegro, 193 N.J. 352, 367 (2008) (quoting State v. Castagna, 187 N.J.
293, 315 (2006)).
Defendant's contention that his trial counsel's failure to address
typographical errors in Henry's supplemental report is also devoid of merit and
does not constitute harmful error. Henry's five-page supplemental report states
the .32 revolver was recovered on February 26, 2014, but the indictment
indicates the date of the raid and recovery of the revolver was May 21, 2014.
And, the supplemental report cites two different investigation numbers on the
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same page—2014-00198-GGN and 2014-00023-GGN. While the two different
numbers appear to be an error, we discern no basis to conclude trial counsel was
inadequate for not making an issue of it at trial. "As a general rule, strategic
miscalculations or trial mistakes are insufficient to warrant reversal 'except in
those rare instances where they are of such magnitude as to thwart the
fundamental guarantee of [a] fair trial.'" Castagna, 187 N.J. at 315 (quoting
State v. Buonadonna, 122 N.J. 22, 42 (1991)).
Even assuming counsel erred in not pressing the typographical error in the
supplemental report, defendant has not shown the error denied him a fair trial
particularly in light of the overwhelming evidence of his guilt. A PCR petition
"must do more than make bald assertions" and "assert the facts" upon which the
claims are based. Cummings, 321 N.J. Super. at 170.
III.
In his final point, defendant asserts the matter should be remanded because
the PCR court did not address his arguments regarding double jeopardy and
inconsistent verdicts contained in his pro se supplemental PCR letter brief.
According to defendant, the second trial was "based on the same facts" as the
first trial and "[t]he State didn't have the right to try [him] a second time based
on the gun." In essence, defendant avers the "not guilty" verdict reached in the
A-2172-20
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first trial on count six, possession of a firearm while committing a drug offense,
should have barred the second trial. Again, we are unpersuaded. In a footnote
to the PCR court's opinion, the court declined to address defendant's argument
because we dealt with this issue in our June 27, 2018 opinion.
There, we held:
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.
....
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. 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.'
Moreover, defendant did not meet his burden of
proving that the possession of the weapon issue was
decided at the first trial, 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 distribute CDS.
A-2172-20
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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.
In addressing defendant's double jeopardy and inconsistent verdicts
argument, we underscored:
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. [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.] 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. As the [State v. Kelly, 201 N.J. 471, 491
(2010)] Court observed, 'divining whether the jury
decided an ultimate issue by a verdict of acquittal will
seldom be possible.' Inasmuch as the firearms
possession element was not established by the jury's
first verdict, the State was not collaterally estopped
from prosecuting the certain persons charge.
[Martin, No. A-4395 (slip op. at 4-7) (citations
omitted).]
Therefore, defendant's claims of double jeopardy and inconsistent verdicts
are precluded by way of PCR because we addressed these issues on his direct
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appeal and there is no need to remand to the PCR court. See R. 3:22-5 ("A prior
adjudication upon the merits of any ground for relief is conclusive whether made
in the proceedings resulting in the conviction or in any post-conviction
proceeding . . . or in any appeal taken from such proceedings.")
Defendant's remaining arguments lack sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
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