SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2487-14T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARK EVANS,

Defendant-Appellant.

________________________________________________________________

Submitted June 21, 2016 – Decided 

Before Judges Espinosa and Kennedy.

On appeal from the Superior Court of New 

Jersey, Law Division, Camden County, 

Indictment Nos. 90-05-1562 and 90-06-1782.

Mark Evans, appellant pro se.

Mary Eva Colalillo, Camden County 

Prosecutor, attorney for respondent (Nancy 

P. Scharff, Assistant Prosecutor, of counsel 

and on the brief).

PER CURIAM

Defendant appeals from an order entered in December 2014 that 

denied his motion to correct an illegal sentence pursuant to Rule

3:21-10(b). We affirm.

NOT FOR PUBLICATION WITHOUT THE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.

June 15, 2017
2 A-2487-14T1

In 1991, defendant entered a guilty plea to two counts of 

first-degree robbery, N.J.S.A. 2C:15-1, pursuant to a plea 

agreement in which he stipulated he was subject to an extended 

term as a persistent offender. 

The extended term imposed was not based merely upon 

defendant's stipulation. At sentencing, the trial judge also 

observed that defendant did not "barely qualify for an extended 

term"; he was "way over what's required for extended term." As 

the judge observed, these robbery convictions were defendant's 

eighth and ninth indictable convictions, five of which were for 

robbery. The judge stated, "the protection of the public requires 

imposition of extended term and [the] plea agreement specifically 

contemplates that."

The trial judge sentenced defendant in accordance with the 

plea agreement to an aggregate term of life in prison with fifteen 

years to be served without parole with the further provision that, 

after five years, if defendant were accepted into an in-patient 

drug treatment, the sentence would be modified to a probationary 

term conditioned upon the successful completion of the drug 

treatment program.

After the anticipated modification of his sentence, defendant 

was charged with two violations of probation and convicted of 

additional offenses. Defendant's probation was revoked and he was 
3 A-2487-14T1

remanded to serve the balance of the custodial term originally 

imposed. Defendant filed an appeal from that order but 

subsequently withdrew the appeal. 

Defendant later filed two motions for a change in custody to 

permit him to enter a drug treatment program, both of which were 

denied and the latter affirmed on appeal.

Defendant filed a motion to correct his sentence as illegal 

in November 2014 and now appeals from the denial of that motion, 

presenting the following constitutional challenge:

N.J.S.A. 2C:44-3a IS 

UNCONSTITUTIONAL TO THE EXTENT 

STATE V. DUNBAR REQUIRES A JUDGE 

TO FIND A FACTOR LEADING TO THE 

IMPOSITION OF DISCRETIONARY 

PERSISTENT OFFENDER EXTENDED TERM 

SENTENCE. U.S. CONST. AMENDS. V. 

VI, XIV; N.J. CONST. ART. 1 PAR. 

1-10.

Defendant argues the trial court had to make two factual 

findings, i.e., (1) defendant had the two predicate convictions 

required by N.J.S.A. 2C:44-3(a) and (2) an extended term was 

necessary for the protection of the public. He contends that his 

sentence is illegal because the two convictions relied upon did 

not provide a valid basis for the imposition of an extended term 

and because the protection of the public finding could not 

constitutionally be made by a judge. We reject each of these 

arguments. 
4 A-2487-14T1

N.J.S.A. 2c:44-3(a) authorizes the imposition of an extended 

term when

The defendant has been convicted of a crime 

of the first, second or third degree and is a 

persistent offender. A persistent offender 

is a person who at the time of the commission 

of the crime is 21 years of age or over, who 

has been previously convicted on at least two 

separate occasions of two crimes, committed 

at different times, when he was at least 18 

years of age, if the latest in time of these 

crimes or the date of the defendant's last 

release from confinement, whichever is later, 

is within 10 years of the date of the crime 

for which the defendant is being sentenced. 

It cannot be disputed that defendant has the requisite number 

of prior convictions to qualify as a persistent offender and 

defendant admits as much. Defendant argues that the two 

convictions relied upon were an "invalid" basis for the imposition 

of an extended term because he was sentenced on two offenses at a 

single sentencing proceeding. He has not, however, identified any 

portion of the record in which the trial judge explicitly relied 

upon two convictions entered on the same date and excluded 

defendant's other convictions from his consideration as predicate 

offenses. Indeed, the sentencing transcript includes the judge's 

reference to seven prior indictable convictions. This argument 

therefore lacks merit. 

Defendant also argues that the finding regarding the 

protection of the public had to be made by a jury. This precise 
5 A-2487-14T1

argument was raised and rejected in State v. Pierce, 188 N.J. 155 

(2006). The Court observed that "protection of the public" is not 

a finding statutorily required for a defendant to be eligible for 

an extended term; it is an "additional requirement[] to serve as 

a guide for sentencing courts engaged in discretionary extendedterm sentencing." Id. at 163. The added finding regarding 

protection of the public "promotes effective review of the 

discretionary judgment exercised as part of the sentencing 

decision" and "fosters consistency in extended-term sentencing." 

Id. at 166-67. It is, therefore, a finding that can be made by 

the court, consistent with legislative intent and without 

abridging a defendant's constitutional right:

The court may consider the protection of the 

public when assessing the appropriate length 

of a defendant's base term as part of the 

court's finding and weighing of aggravating 

factors and mitigating factors. The finding 

is not a necessary condition, however, to the 

court's determination whether defendant is 

subject to a sentence up to the top of the 

extended-term range. Thus, we rid our 

sentencing practice of any ambiguity 

suggestive of a Sixth Amendment transgression 

by means of a remedy that preserves what, we 

believe, the Legislature would prefer--

keeping the exercise of sentencing discretion 

in the hands of courts, not juries. 

[Id. at 170 (emphasis added.]

Affirmed.