NOT FOR PUBLICATION WITHOUT THE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-5045-15T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MARCUS PHILLIPS,
Defendant-Appellant.
______________________________________
Submitted June 21, 2017 – Decided September 1, 2017
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,
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)).
2 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.
3 A-5045-15T4
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.
4 A-5045-15T4
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.
5 A-5045-15T4