                        NOT FOR PUBLICATION WITHOUT THE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.




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