                        NOT FOR PUBLICATION WITHOUT THE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-2487-14T1
STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

MARK EVANS,

        Defendant-Appellant.

________________________________________________________________

              Submitted June 21, 2016 – Decided June 15, 2017

              Before Judges Espinosa and Kennedy.

              On appeal from the Superior Court of New
              Jersey, Law Division, Camden County,
              Indictment Nos. 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 entered in December 2014 that

denied his motion to correct an illegal sentence pursuant to Rule

3:21-10(b).       We affirm.
       In 1991, defendant 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 stipulation.             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 indictable convictions, five of which were for

robbery.     The judge stated, "the protection of the public requires

imposition of extended term and [the] plea agreement specifically

contemplates that."

       The trial judge sentenced defendant in accordance with the

plea 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 probationary

term   conditioned      upon   the    successful    completion       of    the   drug

treatment program.

       After the anticipated modification of his sentence, defendant

was charged with two violations of probation and convicted of

additional offenses.       Defendant's probation was revoked and he was

                                         2                                  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 denial of that motion,

presenting the following 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.

                                     3                               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 years 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.       Defendant     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 judge 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 convictions.                 This argument

therefore lacks merit.

       Defendant   also    argues     that   the    finding      regarding    the

protection of the public had to be made by a jury.                 This precise

                                       4                                A-2487-14T1
argument was raised and rejected in State v. Pierce, 188 N.J. 155

(2006).   The Court observed 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, therefore, 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 as 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, not juries.

           [Id. at 170 (emphasis added.]

      Affirmed.



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