STATE OF NEW JERSEY VS. MARCUS MARTIN (13-05-0677, BERGEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-5573-16T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARCUS MARTIN,

Defendant-Respondent.
_________________________________

Submitted August 7, 2018 – Decided August 13, 2018

Before Judges Sabatino and Mayer.

On appeal from Superior Court of New Jersey,
Law Division, Bergen County, Indictment No.
13-05-0677.

Joseph E. Krakora, Public Defender, attorney
for appellant (Karen A. Lodeserto, Designated
Counsel, on the brief).

Dennis Calo, Acting Bergen County Prosecutor,
attorney for respondent (Justin Blasi, Special
Deputy Attorney General/Acting Assistant
Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Marcus Martin, who pled guilty in 2014 to a second-

degree "certain persons" weapons offense, appeals from the trial

court's December 12, 2016 order denying his petition for post-
conviction relief ("PCR") without an evidentiary hearing. We

affirm.

The record shows defendant accidently shot himself in the leg

with his own handgun while standing in the driveway of his home.

He was rushed to the hospital by a friend and had emergency surgery

to repair an injured artery. Another friend hid the gun in the

basement of defendant's home. Police investigating the incident

obtained the written consent of defendant's wife to search the

home and her vehicle. The search uncovered a stolen .45 caliber

handgun in the basement.

The State charged defendant in a five-count indictment with

various weapons offenses and the receipt of stolen property.

Following negotiations, defendant entered into a plea agreement

with the State, agreeing to plead guilty to count five, the second-

degree "certain persons" not to possess weapons charge, N.J.S.A.

2C:39-7(b). The State agreed in turn to dismiss the remaining

counts of the indictment and to recommend a five-year custodial

sentence with a five-year parole ineligibility period consistent

with the Graves Act, N.J.S.A. 2C:43-6(c).

In January 2015, the court sentenced defendant to a five-year

term with the five-year mandatory parole disqualifier. The

remaining counts of the indictment were dismissed. Defendant

appealed his sentence, which we affirmed by order on June 1, 2015.

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 In October 2015, defendant filed the instant PCR petition.

He asserted his trial counsel was ineffective in failing to file

a motion to dismiss the indictment. After hearing oral argument,

Judge Margaret M. Foti denied the petition, issuing a detailed

eleven-page written opinion.

On appeal, defendant raises the following point in his brief:

DEFENDANT IS ENTITLED TO AN EVIDENTIARY
HEARING BECAUSE PLEA COUNSEL ALLOWED DEFENDANT
TO PLEAD GUILTY TO A CRIME FOR WHICH HE DID
NOT HAVE THE REQUISITE UNDERLYING CONVICTIONS.

We reject his arguments, substantially for the sound reasons

articulated in Judge Foti's written decision. We amplify that

conclusion with a few comments.

Under the Sixth Amendment of the United States Constitution,

a person accused of crimes is guaranteed the effective assistance

of legal counsel in his defense. See Strickland v. Washington,

466 U.S. 668, 687 (1984). To establish a deprivation of that

right, a convicted defendant must satisfy the two-part test

enunciated in Strickland by demonstrating that: (1) counsel's

performance was deficient, and (2) the deficient performance

actually prejudiced the accused's defense. Ibid.; see also State

v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part

test in New Jersey). In reviewing such claims, courts apply a

strong presumption that defense counsel "rendered adequate

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assistance and made all significant decisions in the exercise of

reasonable professional judgment." Strickland, 466 U.S. at 690.

In the specific context of claims of ineffectiveness of plea

counsel, a defendant must demonstrate a "reasonable probability"

that the result would have been different if his counsel had acted

differently. Lafler v. Cooper, 566 U.S. 156, 163 (2012).

Defendant first contends that his prior conviction in South

Carolina did not constitute an eligible predicate offense to

support the "certain persons" charge. The record reflects

defendant initially received a suspended sentence in South

Carolina of a charge of possession of a controlled dangerous

substance ("CDS") with intent to distribute it, provided defendant

complied with the requirements of probation. Defendant violated,

however, the probationary requirements under the South Carolina

plea agreement, and consequently was sentenced on the original

charge for possession of CDS with intent to distribute. S.C. Code

Ann. §44-53-370 (2018).

Like South Carolina, New Jersey comparably prohibits the

possession of CDS with intent to distribute. N.J.S.A. 2C:35-5.

Our CDS statute is one of the enumerated predicate offenses under

the certain persons statute. N.J.S.A. 2C:39-7(b). There is no

logical or legal reason to treat the South Carolina CDS offense

any differently.

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 During the plea colloquy in this case, defendant admitted he

was guilty of possession of CDS with intent to distribute in the

South Carolina matter. According to the express terms of

defendant's presentence criminal history report, defendant was

convicted of a felony according to the South Carolina Code of

Laws, namely possession of CDS with intent to distribute, and was

thus prohibited from possessing a gun under the certain persons

statute. Defendant did not dispute any of the offenses listed in

that report. Hence, there was sufficient documentary evidence to

support the trial court's determination that defendant was

sentenced in South Carolina for the predicate offense of possession

of CDS with intent to distribute.

Defendant unambiguously pled guilty to the certain persons

offense. The court was satisfied that the plea was voluntary, and

that there was an ample factual basis for his guilty plea. We

agree. There is no basis for PCR on this issue.

As a separate claim of ineffectiveness, defendant contends

his trial counsel was ineffective by not filing a motion to

suppress evidence of the gun. Judge Foti rightly concluded such

a motion would not have been meritorious, given that defendant's

wife had provided written consent to search their home. The

consent form advised defendant's wife of her right to refuse to

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consent and stated that, by signing the form, her consent was

given freely and voluntarily, without fear, threat, or coercion.

It would have been eminently reasonable for trial counsel to

refrain from filing a motion to suppress, in light of the signed

consent form, and the possibility that both the filing of such a

motion may have caused the State to withdraw the plea offer.

Moreover, as Judge Foti aptly found, even if the wife's consent

were not deemed valid, the gun nevertheless was likely to have

been recovered by the police. There was ample probable cause to

have obtained a search warrant for the home, considering the report

of defendant's self-inflicted gunshot wound and the statements of

himself and others connecting him to the firearm. Hence, the gun

would have been admissible, even without a consensual search,

under the doctrine of inevitable discovery. See State v. Johnson,

120 N.J. 263, 289 (1990).

For these reasons, the trial court rightly concluded that

defendant failed to present a prima facie case that his former

counsel was unconstitutionally ineffective. Consequently, there

was no need for an evidentiary hearing. See State v. Preciose,

129 N.J. 451, 462 (1992). Defendant's further contentions lack

sufficient merit to warrant dismissal. R. 2:11-3(e)(2).

Affirmed.

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