SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5045-15T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARCUS PHILLIPS,

Defendant-Appellant.

______________________________________

Submitted June 21, 2017 – Decided

Before Judges Fuentes and Koblitz.

On appeal from the Superior Court of New 

Jersey, Law Division, Essex County, Indictment 

No. 90-09-4369.

Marcus Phillips, appellant pro se.

Robert D. Laurino, Acting Essex County 

Prosecutor, attorney for respondent (LeeAnn 

Cunningham, Special Deputy Attorney 

General/Acting Assistant Prosecutor, on the 

brief).

PER CURIAM

On September 26, 1990, defendant Marcus Phillips was indicted 

by an Essex County grand jury and charged with codefendants Troy 

White and Artemus Terique Scott of committing first degree murder, 

NOT FOR PUBLICATION WITHOUT THE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.

September 1, 2017
2 A-5045-15T4

N.J.S.A. 2C:11-3a(1) and (2); third degree unlawful possession of 

a handgun, N.J.S.A. 2C:39-5b; and second degree possession of a 

handgun for an unlawful purpose, N.J.S.A. 2C:39-4a. Defendant was 

tried over six calendar days beginning on Tuesday, October 20, 

1992, and ending on Wednesday, October 28, 1992. The jury found

defendant guilty on all counts. 

On November 12, 1992, the trial judge sentenced defendant on 

the murder conviction to a term of life, with thirty years of

parole ineligibility, and imposed a concurrent term of five years 

on the third degree unlawful possession of a handgun. The second 

degree possession of a handgun for an unlawful purpose merged1

with the murder conviction. Defendant appealed arguing, inter 

alia, that "[t]he trial court abused its discretion by imposing 

an excessive base sentence of life imprisonment." We affirmed 

defendant's conviction and sentence, concluding that defendant's 

arguments were "clearly without merit[.]" State v. Marcus 

Phillips, A-2588-92 (App. Div. Jan. 31, 1995) (slip op. at 2) 

(quoting R. 2:11-3(e)(2)).

 

1 "The doctrine of merger is based on the concept that "an accused 

[who] committed only one offense . . . cannot be punished as if 

for two." State v. Tate, 216 N.J. 300, 302 (2013) (quoting State 

v. Davis, 68 N.J. 69, 77 (1975)).
3 A-5045-15T4

On January 9, 1997, defendant filed his first post-conviction 

relief (PCR) petition alleging he was denied the effective 

assistance of trial and appellate counsel and the right to a fair 

trial because of jury misconduct. Defendant was assigned counsel 

to prosecute this PCR petition. Defendant sought an evidentiary 

hearing before the PCR judge, but the judge denied it. We rejected 

defendant's arguments and affirmed the denial of his first PCR 

petition. State v. Marcus Phillips, A-5165-97 (App. Div. Oct. 27, 

1999) (slip op. at 3).

2 The Supreme Court denied defendant's 

petition for certification. State v. Phillips, 163 N.J. 76 (2000). 

Defendant filed a second PCR petition on June 7, 2000. State 

v. Marcus Phillips, A-2442-00 (App. Div. Feb. 5, 2002) (slip op. 

at 2). Citing Rule 3:22-6(b), the PCR judge found defendant had 

not shown good cause for the assignment of counsel in this second 

PCR petition. Id. at 9. The judge also found defendant's claims 

were barred by either Rule 3:22-4, because the arguments had been 

 

2 In this opinion, we noted that on March 31, 1995, we granted 

defendant's motion to file a pro se supplemental brief in support 

of his direct appeal, which had been decided and released to the 

parties two months earlier on January 31, 1995. State v. Phillips, 

supra, slip op. at 3. Defendant raised two arguments in this pro 

se supplemental brief: (1) an unknown juror's comments to other 

jurors during recess required a hearing to determine whether 

defendant was denied his right to a fair trial, and (2) defendant's 

right to a fair trial was "abridged" when the court admitted a

"highly prejudicial photograph[.]" Ibid. On May 2, 1995, we 

again affirmed defendant's conviction. Ibid. 
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decided in prior proceedings, or by Rule 3:22-5, because the 

arguments could have been raised in prior proceedings. Id. at 8. 

We agreed with the PCR judge, finding the argument raised attacking 

his decision "clearly has no merit." Id. at 11 (citing R. 2:11-

3(e)(2)).

Undaunted, defendant thereafter filed a petition for a Writ 

of Habeas Corpus in the United States District Court of New Jersey, 

which denied the petition on October 12, 2005. Phillips v. Moore, 

No. 02-2120 (D.N.J. Oct. 11, 2005). On June 10, 2011, defendant 

filed a pro se motion to correct his sentence arguing that 

"N.J.S.A. 2C:11-3b is unconstitutionally ambiguous, and as a

result, arbitrary and capricious sentences can [sic] be imposed 

against defendants who are convicted of similar crimes." In an 

order entered on June 8, 2016, Judge Richard T. Sules denied 

defendant's motion. Judge Sules explained his ruling in a 

statement of reasons incorporated as part of the order.

Defendant now appeals raising the following argument:

POINT ONE

DEFENDANT'S SENTENCE OF 30 YEARS TO LIFE 

IMPRISONMENT IS ILLEGAL AND UNCONSTITUTIONAL, 

IN THAT IT ALLOWS FOR UNEQUAL TREATMENT 

AMONGST SIMILARLY SITUATED DEFENDANTS IN 

VIOLATION OF THE STATE AND FEDERAL 

CONSTITUTIONS.
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We reject this argument and affirm. No further elaboration 

is needed because defendant's argument is clearly without merit. 

R. 2:11-3(e)(2).

Affirmed.