STATE OF NEW JERSEY v. MARLON D. HARGIS, a/k/a MARLON D. HARGIS, JR and MARION D. HARGIS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARLON D. HARGIS, a/k/a

MARLON D. HARGIS, JR. and

MARION D. HARGIS,

Defendant-Appellant.

_______________________________

Submitted May 18, 2016 Decided May 25, 2016

Before Judges Haas and Manahan.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 08-07-1816.

Joseph E. Krakora, Public Defender, attorney for appellant (Peter B. Meadow, Designated Counsel, on the brief).

JamesP. McClain,Atlantic CountyProsecutor, attorney forrespondent (CourtneyM. Cittadini, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

This case returns to us following a remand to permit the trial court to provide additional findings of fact and conclusions of law concerning its denial of defendant Marlon Hargis's motion to suppress evidence, and the sentence it imposed following defendant's guilty pleas to a number of offenses. State v. Hargis, No. A-5001-10 (App. Div. March 5, 2014) (slip op. at 1). Defendant appeals, claiming that the trial court should have held an evidentiary hearing concerning his suppression motion, and that the sentence was excessive. We affirm.

I.

We begin by referencing the essential background facts as set forth in our earlier opinion. In July 2008, an Atlantic County grand jury issued an indictment (the 2008 Indictment) charging defendant with third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1); and third-degree manufacture, distribution, dispensing, or possession of heroin with intent to do so, N.J.S.A. 2C:35-5(a)(1). Hargis, supra, slip op. at 1-2.

Following his release on bail, defendant was arrested on October 30, 2008 after a traffic stop. Id. at 2. While fleeing on foot, defendant discarded heroin and a handgun. Id. at 2-3. In January 2009, an Atlantic County grand jury issued an indictment (the 2009 Indictment), charging defendant

with multiple third-degree drug offenses, including possession of heroin with the intent to distribute, N.J.S.A. 2C:35-5(a)(1) (count six); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count nine); third-degree possession of a handgun, N.J.S.A. 2C:29-5(b) (count eight); and second-degree certain person not to possess a firearm, N.J.S.A. 2C:39-7 (count thirteen).

[Id. at 2.]

On August 12, 2009, defendant was arrested a third time. Ibid. On April 7, 2010, an Atlantic County grand jury issued an indictment (the 2010 Indictment), charging defendant

with three counts of second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (counts one, two[,] and five); three counts of second-degree certain person not to possess a firearm, N.J.S.A. 2C:39-7 (counts six through eight); fourth-degree possession of hollow-point bullets, N.J.S.A. 2C:39-3(f) (count three); and third-degree receiving stolen property, N.J.S.A. 2C:20-7 (count four[.]

[Id. at 2-3.]

Defendant subsequently filed a motion to suppress the heroin and handgun seized after the October 30, 2008 traffic stop. Id. at 3. The parties drew the relevant facts from the police report, which

stated that officers were conducting a "traffic check point." One officer used a handheld radar gun and directed vehicles into a parking lot "after a violation was observed." While doing so, an officer observed defendant driving while talking on a hand-held cell phone in violation of N.J.S.A. 39:4-97.3. That violation prompted the stop. As defendant handed over his license and registration, an officer observed bags of suspected drugs in defendant's jacket pocket. The police ordered defendant to exit the vehicle in order to conduct a pat down. Defendant pushed one officer away, and fled across the street. He discarded the drugs as he ran. He later pointed a handgun at a pursuing officer, prompting the officer to discharge his weapon. Police ultimately arrested defendant and recovered his handgun.

[Id. at 3-4.]

In its motion brief, the State "argued that the officers had a reasonable and articulable suspicion to justify stopping defendant's vehicle, and had probable cause to arrest him for resisting arrest and CDS offenses." Id. at 4. In response, defendant's attorney filed a brief, arguing that the officers had set up an unconstitutional "roadblock[,]" and that he fled the scene because he feared he was going to be assaulted. Ibid. Defendant "supplied unsworn witness statements." Ibid. Defendant requested an evidentiary hearing. Ibid.

However, the State submitted an investigation report from the county prosecutor's office, indicating that "the police were not conducting a 'roadblock,' and had stopped defendant only after observing him commit a motor vehicle violation." Id. 4-5. This satisfied defendant's attorney and, on July 13, 2009, he "withdrew defendant's request for a hearing and consented to a decision on the papers." Id. at 5. The motion judge thereafter denied defendant's motion to suppress, but did not provide a statement of his findings of fact and conclusions of law. Ibid.

Pursuant to a negotiated plea agreement, defendant then pled guilty to several of the charges in the three indictments. Ibid. Specifically,

[t]he agreement provided that defendant would plead to: (1) third-degree possession of heroin as charged in the 2008 Indictment, and the State would recommend a flat five-year term; (2) second-degree certain persons offense and third-degree possession of heroin with intent to distribute, as charged in the 2009 Indictment, and the State would recommend a ten-year term, with a five-year parole bar on the former offense, consecutive to an extended term of six-years,[] with a three-year parole bar on the latter offense, with the combined sixteen-year term and eight-year parole bar to run concurrent to the sentence under the 2008 Indictment; and (3) second-degree certain persons offense, as charged in the 2010 Indictment, and the State would recommend a five-year term, with a five-year parole bar, to run concurrent to the other sentences.

[Id. at 5-6.]

A different judge (the sentencing judge) sentenced defendant in accordance with the plea agreement. Id. at 6. However, the judge "did not address the imposition of the consecutive terms, except to note it was part of the 'negotiated sentence.'" Ibid.

Defendant appealed. Ibid. With regard to his motion to suppress, defendant argued that the motion judge should have "held a testimonial hearing" on the motion "[b]ecause important facts in this matter were in dispute[.]" Id. at 7. We remanded the matter to the motion judge so that he could supply a statement of reasons in support of the order denying defendant's motion to suppress. Id. at 7-8. Significantly, we did not order the motion judge to conduct an evidentiary hearing on the remand.

We also directed the sentencing judge to resentence defendant, and provide a statement of reasons addressing the applicable aggravating and mitigating factors, and his reasons for imposing consecutive sentences. Id. at 7-11. We did not retain jurisdiction. Id. at 12.

On remand, the motion judge rendered a thorough oral opinion fully explaining his reasons for denying defendant's motion to suppress.1 The judge found that the police properly stopped defendant after observing him speaking on his cell phone while driving his car. The officer then saw bags of suspected drugs in plain view in defendant's jacket pocket. When the officer asked defendant about the bags, defendant made sudden movements toward the door and the center console, which prompted the officer to order defendant to get out of the car. Another officer came over to assist. After defendant exited the vehicle, he pushed one of the officers and fled on foot, discarding heroin and a handgun as the officers pursued him. Citing State v. Williams, 192 N.J. 1, 11 (2007), the judge found that even if the initial traffic stop had been invalid in any way, once defendant pushed the officer and ran away, "the officers had probable cause to arrest [him] for resisting arrest, . . . obstruction of justice, along with the charges of possession of heroin and any charge related thereto[,]" and to recover the heroin and handgun he discarded as he fled.

The sentencing judge then resentenced defendant. In accordance with our directions, the judge reviewed each of the applicable aggravating and mitigating factors, and explained his reasons for his assessment of them. In compliance with State v. Jaffe, 220 N.J. 114, 124 (2014), the judge also considered the efforts at rehabilitation defendant had allegedly made while incarcerated. The judge imposed the same sentence as he had originally, including the imposition of consecutive sentences. In doing so, however, the judge fully addressed the factors set forth in State v. Yarbough, 100 N.J. 627, 643-45 (1985). This appeal followed.

II.

On appeal, defendant raises the following contentions

POINT I

THE TRIAL COURT ERRED IN FAILING TO HOLD AN EVIDENTIARY HEARING ON DEFENDANT'S MOTION TO SUPPRESS AS THERE WERE DISPUTED ISSUES OF MATERIAL FACT RELEVANT TO THE DETERMINATION OF THE MOTION (not raised below)[.]

A. Preliminary Statement[.]

B. Standards Of Review: The Trial Court's Factual And Legal Findings Are Not Entitled To Deference By This Court On Appeal[.]

C. Under Rule 3:5-7([c]), An Evidentiary Hearing Was Mandated On The Motion To Suppress As Material Facts Were In Dispute[.]

D. Trial Counsel's Apparent Waiver of An Evidentiary Hearing was Ineffective[.]

POINT II

DEFENDANT'S SENTENCE WAS MANIFESTLY EXCESSIVE, UNDULY PUNITIVE[,] AND THE COURT IMPROPERLY BALANCED AGGRAVATING AND MITIGATING FACTORS AS REQUIRED BY LAW[.]

Contrary to defendant's contentions in Point I, the motion judge was not required to conduct an evidentiary hearing on the remand. The scope of the remand was clear. We ordered the motion judge to provide a statement of reasons in support of the order denying the motion to suppress. Hargis, supra, slip op. at 7-11. By limiting the remand in this fashion, we implicitly rejected defendant's contention, raised in the first appeal, that an evidentiary hearing should have been conducted. Therefore, no evidentiary hearing was warranted. See Flanigan v. McFeely, 20 N.J. 414, 420 (1956) (noting that "the trial court is under a peremptory duty to obey . . . the mandate of the appellate court precisely as it is written").

In addition, defendant's argument ignores the fact that his attorney expressly withdrew his request for an evidentiary hearing in his July 13, 2009 letter to the motion judge. The attorney acknowledged that, once the State verified that the police were not conducting an improper roadblock on the day of defendant's arrest, there was no need for an evidentiary hearing.

Thus, even if an error occurred by not conducting a hearing, it was invited by defendant. "A defendant cannot request the trial court to take a course of action, and upon adoption by the court take his chance on the outcome of the trial, and, if unfavorable, then condemn the very procedure which he urged, claiming it to be error and prejudicial." State v. Sykes, 93 N.J. Super. 90, 95 (App. Div. 1966) (citing State v. Pontery, 19 N.J. 457, 471 (1955)). The doctrine of invited error "is designed to prevent defendants from manipulating the system." State v. Jenkins, 178 N.J. 347, 359 (2004). It is applied if the trial court relies on a defendant who is able to convince or mislead the court into taking a position that defendant now urges is error on appeal. Ibid. That is clearly the case here.

Finally, an evidentiary hearing is only required on a motion to suppress when the defendant "places material facts in dispute . . . ." State v. Green, 346 N.J. Super. 87, 90-91 (App. Div. 2001) (citing State v. Hewins, 166 N.J. Super. 210, 213-15 (Law Div. 1979), aff'd, 178 N.J. Super. 360 (App. Div. 1981)); see also Rule 3:5-7(c) (stating that "[i]f material facts are disputed, testimony thereon shall be taken in open court"). Once the question of whether the police set up an unconstitutional roadblock was resolved, there was no dispute as to any of the material facts in this case.

Defendant now argues that the officer's claim that he saw bags of drugs in defendant's jacket was "simply beyond logical belief." However, defendant presented no certification or other evidence contradicting the officer's statement. His newly-minted blanket denial of "the truth of the State's allegations" is insufficient to "place material issues in dispute[.]" Green, supra, 346 N.J. Super. at 91 (citing Hewins, supra, 166 N.J. Super. at 214).

Contrary to defendant's contention, the three unsworn witness statements he submitted with his motion corroborated the police report. All three witnesses stated that they saw the officers taking defendant out of the car before defendant ran away with the officers in pursuit. Thus, the existence of these statements did not require the motion judge to conduct an evidentiary hearing. Therefore, we also reject defendant's contentions on this point.

III.

In Point II of his brief, defendant argues that his sentence was excessive. We disagree.

Trial judges have broad sentencing discretion as long as the sentence is based on competent credible evidence and fits within the statutory framework. State v. Dalziel, 182 N.J. 494, 500 (2005). Judges must identify and consider "any relevant aggravating and mitigating factors" that "'are called to the court's attention[,]'" and "explain how they arrived at a particular sentence." State v. Case, 220 N.J. 49, 64-65 (2014) (quoting State v. Blackmon, 202 N.J. 283, 297 (2010)). "Appellate review of sentencing is deferential," and we therefore avoid substituting our judgment for the judgment of the trial court. Id. at 65; see State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Roth, 95 N.J. 334, 365 (1984).

We are satisfied that the sentencing judge made findings of fact concerning aggravating and mitigating factors that were based on competent and reasonably credible evidence in the record, and applied the correct sentencing guidelines enunciated in the Code. The sentence the judge imposed, including the imposition of consecutive sentences, does not shock our judicial conscience. Case, supra, 220 N.J. at 65; O'Donnell, supra, 117 N.J. at 215-16. Accordingly, we discern no basis to second-guess the sentence.

Affirmed.

1 In compliance with our remand order, the motion judge did not conduct an evidentiary hearing, and defendant did not request that he do so.