STATE OF NEW JERSEY v. MARK MARTIN

NOT FOR PUBLICATION WITHOUT THE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


                                      2                               A-4395-15T4
            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.

                                  3                         A-4395-15T4
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

                                   5                          A-4395-15T4
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)).



                                        7                              A-4395-15T4
     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.

                                        9                                   A-4395-15T4