                                NOT FOR PUBLICATION WITHOUT THE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-4632-17T5

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

MARK MELVIN,

     Defendant-Appellant.
___________________________

                    Argued March 4, 2019 – Decided July 8, 2019

                    Before Judges Messano, Fasciale and Rose.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Essex County, Indictment No. 13-05-1257.

                    Tamar Y. Lerer, Assistant Deputy Public Defender,
                    argued the cause for appellant (Joseph E. Krakora,
                    Public Defender, attorney; Tamar Y. Lerer, of counsel
                    and on the brief).

                    Matthew E. Hanley, Special Deputy Attorney
                    General/Acting Assistant Prosecutor, argued the cause
                    for respondent (Theodore N. Stephens II, Acting Essex
                    County Prosecutor, attorney; Matthew E. Hanley, of
                    counsel and on the brief).
PER CURIAM

      As we explained in our prior opinion, a jury convicted defendant Mark

Melvin of second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-

5(b), but deadlocked on the remaining counts of the indictment, including two

counts of first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2). State v. Melvin,

No. A-3003-14 (App. Div. Mar. 1, 2017) (slip op. at 5). The judge granted the

State's motion to impose a discretionary extended term, N.J.S.A. 2C:44-3(a),

and sentenced defendant to the maximum term of twenty years' imprisonment

with a ten-year period of parole ineligibility. Ibid.

      Although we affirmed defendant's conviction, we remanded the matter for

resentencing. Id. at 2. In particular, we rejected the trial judge's reliance upon

United States v. Watts, 519 U.S. 148 (1997), to permit his consideration of

evidence adduced at trial that defendant committed the murders in finding and

weighing the aggravating and mitigating sentencing factors. Melvin, slip op. at

12-14. Citing our decision in State v. Tindell, 417 N.J. Super. 530 (App. Div.

2011), we said:

                   Here, the judge also substituted his judgment for
            that of the jury. He considered the charges on which
            the jury was hung even though a new trial would occur.
            Defendant could later be punished again if convicted of
            these crimes, implicating double jeopardy issues. The
            judge improperly found aggravating factor two, the

                                                                          A-4632-17T5
                                        2
            gravity and seriousness of the harm inflicted on the
            victim, because there is no victim named in the
            unlawful possession of a weapon offense. The judge
            abused his discretion by finding defendant was the
            shooter by a preponderance of the evidence and
            considering that conduct in his sentencing decision.

            [Melvin, slip op. at 14-15 (emphasis added) (citation
            omitted).]

The Supreme Court denied cross-petitions for certification. State v. Melvin, 230

N.J. 597, 600 (2017).

      While the appeal was pending, the State retried defendant on the

deadlocked charges before the same judge. The second jury could not reach a

verdict on certain controlled dangerous substance-related offenses, which the

State subsequently dismissed, and acquitted defendant of the murders and

related offenses.   Defendant again faced the judge for resentencing on the

original conviction of unlawful possession of a handgun.

      After reviewing our prior decision, and again relying on Watts, the judge

concluded that if proven by a preponderance of the evidence, he could consider

defendant's conduct even though the jury acquitted defendant of the underlying

crimes. The judge then recounted the evidence at trial that convinced him

"[d]efendant was the shooter of the two individuals" that were killed and the

third that was injured. Following the Court's guidance in State v. Pierce, 188


                                                                        A-4632-17T5
                                       3
N.J. 155 (2006), the judge granted the State's motion for a discretionary

extended term. The judge found aggravating factors three, six and nine, N.J.S.A.

2C:44-1(a)(3), (6) and (9), and no mitigating factors. N.J.S.A. 2C:44-1(b). He

sentenced defendant to a sixteen-year term of imprisonment, which, in

accordance with our judgment, reflected the elimination of aggravating factor

two in the sentencing calculus and consideration of defendant's rehabilitative

conduct while incarcerated. Melvin, slip op. at 14-15. The judge imposed an

eight-year period of parole ineligibility.

      Defendant filed this appeal, listed originally on our Excessive Sentence

Oral Argument calendar. However, given the nature of defendant's arguments,

we placed the appeal on the plenary calendar for full briefing. Defendant raises

the following points:

            POINT I

            DEFENDANT HAS TWICE BEEN UNLAWFULLY
            PUNISHED FOR COMMITTING CRIMES A JURY
            DID NOT FIND HE COMMITTED. THE MATTER
            MUST BE REMANDED FOR RESENTENCING IN
            FRONT OF A JUDGE WHO IS NOT FIRMLY
            CONVINCED OF DEFENDANT'S GUILT OF
            CRIMES HE HAS BEEN ACQUITTED OF AND
            WHO IS NOT COMMITTED TO SENTENCING
            DEFENDANT FOR THOSE CRIMES.




                                                                        A-4632-17T5
                                         4
            POINT II

            DEFENDANT'S SENTENCE IS EXCESSIVE AND
            THE  RESULT    OF   IMPROPER   DOUBLE-
            COUNTING, AND THE BASIS FOR THE LENGTH
            OF    PAROLE      DISQUALIFIER     WAS
            INADEQUALTELY EXPLAINED.

            POINT III

            THE JUDGMENT OF CONVICTION MUST BE
            AMENDED TO REFLECT THE APPROPRIATE
            DISTRIBUTION OF JAIL CREDITS AND PRIOR
            SERVICE CREDITS.

We have considered these arguments in light of the record and applicable legal

standards. We affirm.

      "Appellate review of the length of a sentence is limited[,]" State v. Miller,

205 N.J. 109, 127 (2011), "and appellate courts are cautioned not to substitute

their judgment for those of our sentencing courts." State v. Case, 220 N.J. 49,

65 (2014) (citing State v. Lawless, 214 N.J. 594, 606 (2013)).

            The appellate court must affirm the sentence unless (1)
            the sentencing guidelines were violated; (2) the
            aggravating and mitigating factors found by the
            sentencing court were not based upon competent and
            credible evidence in the record; or (3) "the application
            of the guidelines to the facts of [the] case makes the
            sentence clearly unreasonable so as to shock the
            judicial conscience."




                                                                           A-4632-17T5
                                        5
            [State v. Fuentes, 217 N.J. 57, 70 (2014) (alteration in
            original) (quoting State v. Roth, 95 N.J. 334, 364-65
            (1984)).]

However, "a sentencing court must scrupulously avoid 'double-counting' facts

that establish the elements of the relevant offense." Id. at 74-75 (citing State v.

Yarbough, 100 N.J. 627, 645 (1985)).

      Defendant contends the judge failed to abide by our prior judgment, as

well as our decision in Tindell, because he once again considered evidence of

conduct for which the jury acquitted defendant. Defendant argues this violated

principles of due process, fundamental fairness and the right to trial by jury, as

expressed in Apprendi v. New Jersey, 530 U.S. 466, 489-90 (2000), and Blakely

v. Washington, 542 U.S. 296, 299 (2004).

      We reject any comparison between this resentencing proceeding and the

sentencing proceeding in Tindell.       In that case, the judge imposed five

consecutive maximum sentences, including maximum periods of parole

ineligibility. 417 N.J. Super. at 570. We cited extensively to the judge's

inappropriate comments at sentencing, id. at 568-70, and concluded his

"personal views as to the propriety of the jury's verdict irreparably tainted the

sentence he imposed on defendant." Id. at 572. Simply put, our review of the




                                                                           A-4632-17T5
                                        6
transcript convinces us that the sentence here was not the result of similar

judicial pique or obvious abuse of judicial discretion.

      We also reject the contention that our prior judgment necessarily

compelled the judge to ignore trial evidence that was probative of defendant's

conduct, even though the State proffered that evidence to prove offenses for

which the jury acquitted defendant. As noted above, because defendant faced

retrial on the deadlocked counts, our prior decision was firmly rooted in double

jeopardy concerns, which no longer existed at resentencing because the jury

acquitted defendant of some charges and the State dismissed all other counts of

the indictment.

      In State v. Tillery, decided after the briefs were filed and the appeal argued

before us, the Court addressed whether when imposing sentence, a court should

consider trial evidence pertaining to charges on which the jury deadlocked, but

which were still pending.        ___ N.J. ___ (2019) (slip op. at 37-38).

Distinguishing Watts, "which involved a sentencing court's reliance on evidence

presented as to a charge on which the defendant was acquitted," the Court

"caution[ed] courts not to consider evidence pertaining to charges as to which a

jury deadlocked in sentencing unless and until the defendant no longer faces the

prospect of prosecution for those charges." Id. at 38 (emphasis added).


                                                                            A-4632-17T5
                                         7
      Without expressly approving Watts's rationale, however, the Court clearly

stated:

                   When a judge presides over a jury trial regarding
            multiple offenses, he or she has the opportunity to
            evaluate the credibility of witnesses and to assess the
            evidence presented as to each of those offenses. If a
            jury is unable to return a verdict as to some offenses
            and convicts the defendant of others, and the State
            requests that the court consider evidence presented as
            to offenses on which the jury deadlocked, such
            information may constitute competent, credible
            evidence on which the court may rely in assessing the
            aggravating and mitigating factors. No Sixth
            Amendment or other constitutional principle, or
            statutory provision, generally bars a court from
            considering such evidence. And consideration of
            competent evidence presented in support of charges —
            even if the jury does not go on to convict defendant on
            those charges — does not raise concerns about drawing
            inferences from the mere fact that charges had been
            brought . . . .

            [Id. at 37 (citation omitted).]

The Court's opinion disposes of defendant's argument. In light of the above, we

also reject the argument that the judge double-counted by considering evidence

of the homicides and aggravated assault in finding the aggravating sentencing

factors.

      Defendant also argues the judge double-counted by using defendant's

prior criminal record to both impose an extended term and calculate the length


                                                                       A-4632-17T5
                                         8
of the sentence. See, e.g., State v. Vasquez, 374 N.J. Super. 252, 267 (App. Div.

2005) (reversing extended term sentence, "both allowed and required" by the

defendant's single prior conviction, because the judge used that prior conviction

to impose a sentence greater than the "presumptive" midpoint).          We again

disagree.

      The judge properly determined defendant was eligible for an extended

term based upon his four prior convictions.         The judge then weighed the

aggravating sentencing factors by considering not only defendant's prior record,

but also the nature of the offense and "other aspects of . . . defendant's record."

State v. Dunbar, 108 N.J. 80, 92 (1987). We find no mistaken exercise of

discretion in imposing a sixteen-year sentence of imprisonment.

      Defendant also argues the judge failed to explain the imposition of an

eight-year period of parole ineligibility. At the time of the offense, N.J.S.A.

2C:43-6(c) (2012) required the imposition of a minimum term "between, one-

third and one-half of the sentence."         Considering the entire sentencing

proceeding, which reflects the judge's thoughtful and comprehensive reasoning,

we find no basis to disturb the sentence imposed.

      Lastly, we agree with defendant that the judgment of conviction (JOC)

incorrectly includes the time defendant spent serving his sentence prior to the


                                                                           A-4632-17T5
                                        9
date of resentencing as jail credit instead of prior service credit. See State v.

Rippy, 431 N.J. Super. 338, 354 (App. Div. 2013) (time spent serving a sentence

should be reflected in the JOC as prior service credit). The State also agrees.

We therefore remand the matter to the judge to file a corrected JOC reflecting

that defendant earned prior service credit, not jail credit, from October 27, 2014

to the date of his resentencing.

      Affirmed; remanded to file a corrected JOC.




                                                                          A-4632-17T5
                                       10
