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 No s . 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 ente red 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 NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court . " A lthough 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, 20172 A - 2487
- 14T1

In 1991, d efendant 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 stipula tion. 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 indic table convictions, five of which were for robbery. The judge stated, "the protection of the public requires imposition of extended term and [the] plea agreement sp ecifically contemplates that." The trial judge sentenced defendant in accord ance with the pl ea 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 probatio nary term conditioned upon the successful completion of the drug treatment program. After the anticipated modification of his sentence, defendant was charged with two v iolations of probation and convicted of additional offenses. Defendant's probation was revoked and he was3 A - 2487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 de nial of that motion, presenting the fo llowing 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 year s 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. D efendant 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 j udge 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 convic tions. This argument therefore lacks merit. Defendant also argues that the f inding regarding the protection of the public had to be made by a jury. This precise5 A - 2487
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argument was raised and rejected in State v. Pierce , 188 N.J. 155 ( 2006 ) . The Court obser ved 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 extended
term 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, therefo re, 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 a s 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, n ot juries. [ Id. at 170 (emphasis added .] Affirmed.