NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2876-22
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MARK TOMPKINS, a/k/a MARK L. TOMKINS, DONALD M. WILLIAMS, DWAYNE L. THOMAS, and MARK L. THOMPKINS,
Defendant-Appellant.
Submitted October 1, 2024 – Decided November 4, 2024
Before Judges Perez Friscia and Bergman.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 03-03-0893.
Jennifer Nicole Sellitti, Public Defender, attorney for appellant (Austin J. Howard, Assistant Deputy Public Defender, of counsel and on the briefs).
Theodore N. Stephens, II, Essex County Prosecutor, attorney for respondent (Lucille M. Rosano, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Mark Tompkins appeals from the February 19, 2022 Law
Division order denying his motion to correct an illegal sentence. Defendant
seeks to vacate his fifteen-year extended term sentence with a seven and one-
half year parole bar after a jury found him guilty of second-degree eluding
police, N.J.S.A. 2C:29-2(b). Based on our review of the record and applicable
legal principles, we affirm.
I.
On October 24, 2002, defendant was driving his automobile in Newark
when he refused a police officer signal to pull over. After fleeing, he was
involved in an accident with another vehicle. Although the officer initially
pursued defendant, he discontinued pursuit prior to the accident. After receiving
a call to respond to the accident, the officer arrived at the scene and conducted
his investigation.
On March 11, 2003, defendant was charged with second-degree eluding
police. On July 9, 2003, he pled guilty to the charge based on the State's three-
year sentencing recommendation. However, at the sentencing hearing, the judge
rejected the negotiated three-year sentence finding the sentence "was contrary
the interests of justice." The plea was retracted on April 30, 2004. Thereafter,
A-2876-22 2 the judge stated he would accept a five-year sentence recommendation.
Defendant did not accept the judge's proffer and instead exercised his right to a
jury trial. On July 29, defendant executed a plea cut off form acknowledging
that he was eligible for a discretionary extended term. After a jury trial on
September 16, defendant was found guilty of second-degree eluding.
On September 24, the State filed a motion to impose a discretionary
extended term against defendant as a persistent offender, N.J.S.A. 2C:44-3a.
The filing was within fourteen days of the verdict as required by Rule 3:21-4(e).
In support of the motion, the State certified defendant had been previously
convicted of second- and third-degree crimes under four separate indictments
and submitted the judgments of conviction. However, the sentences for those
convictions were imposed on the same date of October 2, 1998. Therefore, these
sentences did not satisfy the requirement defendant "was previously convicted
on at least two separate occasions" pursuant to N.J.S.A. 2C:44-3a.
Almost five months later, the State filed an amended certification in
support of its motion for an extended term. The amended certification listed
five convictions of second- and third-degree offenses with prior sentencing
dates. The State did not specify which two convictions qualified defendant as a
persistent offender.
A-2876-22 3 At sentencing, defendant argued the State's extended-term motion was
untimely because the original motion was deficient on its face, the amended
certification was not filed within the fourteen days permitted by Rule 3:21-4(e),
and the State failed to show "good cause" under the rule for the late filing.
The State read its amended certification into the record but still did not
identify the two qualifying convictions. Defense counsel stated he was aware
of the extent of defendant's criminal record because he and the prosecutor had
"went through the San[d]s/Brunson1 issue before trial and all of these judgments
were produced . . . [we] went through all of them." The judge granted the State's
motion for an extended term, finding "good cause" to excuse the untimely filing
of its amended certification under Rule 3:21-4(e) and found no prejudice to
defendant "who was clearly on notice of his exposure to [an] extended term"
based on his plea cut-off form and discussions concerning the qualifying
convictions at the Sands/Brunson hearing. The judge found the State satisfied
the requirements of N.J.S.A. 2C:44-3a to impose a discretionary extended term.
The judge sentenced defendant to a fifteen-year base term with a discretionary
seven-and-one-half-year parole bar, applying then-existing law, which restricted
the permissible base range to between the minimum and maximum of the
1 State v. Sands, 76 N.J. 127 (1978); State v. Brunson, 132 N.J. 377 (1993). A-2876-22 4 extended term range of between ten to twenty years which made fifteen years
the "presumptive" term, on which the judge relied.
In his direct appeal, defendant asserted the trial judge erred when it
imposed an extended term sentence based on the State's untimely motion. State
v. Tompkins, No. A-5006-04 (App. Div. Dec. 8, 2006). This court affirmed
defendant's conviction but remanded for resentencing relying upon State v.
Pierce, 188 N.J. 155, 163 (2005) (slip op. at 2), which had modified the range
for a discretionary extended term sentence to permit any term between the
minimum ordinary term and the maximum extended term. Id. at 9-10. We
reasoned "remand proceedings will present an opportunity for the State to notify
defendant of the prior convictions on which it relies for imposition of the
extended term and for defendant to defend against its imposition under N.J.S.A.
2C:44-3a. See R. 3:21-4(e)." Id. at 10.
At the resentencing hearing on March 15, 2007, the State recited three
prior convictions on the record. The State "ask[ed]" the court to sentence the
defendant to the same fifteen years with a seven and one-half year parole bar.
In response, defense counsel conceded that defendant's prior criminal record met
the prior-convictions criteria of N.J.S.A. 2C:44-3a. His counsel stated "given
[defendant's] record, given his age, . . . I would agree that the minimal criteria
A-2876-22 5 are met under the circumstances[,]" but asked that the State place on the record
"the specific offenses that it intends to rely on . . . in order for the extended term
in this particular case to apply at all." In support of the persistent offender
extended term request, the State listed three separate convictions, which
constituted at least two prior convictions committed at different times. Defense
counsel voiced no objection. No appeal was filed by defendant. The
resentencing judge granted the State's motion reciting the three prior convictions
and imposed the same sentence. The judge noted defendant's prior record
included "thirty-four arrests, seventeen indictable convictions, a disorderly
persons conviction and several parole violations."
II.
Before the motion judge, defendant again argued the State failed to file its
motion seeking a discretionary extended term within fourteen days of the verdict
as required by Rule 3:21-4(e), and therefore an extended-term sentence should
not have been imposed. Defendant also argued the State failed to comply with
our directives to specify which of defendant's prior convictions it was relying
upon to support the extended term during the resentencing hearing. Defendant
thus asserts his sentence was illegal and should be corrected.
A-2876-22 6 The State argued its motion for an extended term was timely filed on
September 24, 2004, within fourteen days of the September 16, 2004 verdict in
compliance with Rule 3:21-4(e), which provided sufficient notice the State was
seeking an extended term. Also, the State's amended motion certification dated
February 3, 2005 was served on defendant prior to the February 16 , 2005
sentencing and notified him of all prior convictions that qualified him for
extended-term sentencing.
On February 19, 2023, the motion judge issued a written order and
decision denying defendant's motion. The judge recognized that although
defense counsel had previously agreed defendant's criminal history made him
eligible as a persistent offender, "[t]he issue presented here is whether the State
complied with" the mandatory notice requirements. The judge stated the only
issue before him was whether the State's motion was timely filed in accordance
with R. 3:21-4(e).
In reviewing the State's notice, the judge acknowledged both of the State's
written filings were flawed. The State's first motion and certification, received
September 24, 2004, did not properly identify two predicate charges and the
State's amended certification filed February 3, 2005, though listing several prior
convictions, "still did not specify which prior convictions would qualify as
A-2876-22 7 proper predicate offenses." Even so, the judge determined the State complied
with our remand order of December 8, 2006, by orally "set[ting] forth the
specific charges" on the record at the resentencing on March 15, 2007, and
reasoned that our remand instruction to "notify defendant" assumed the State
could cure its notice deficiencies.
The judge found defendant "abandoned the argument that the extended
term is illegal because the State failed to notify [defendant] and the court which
prior offenses were to be relied upon as predicate convictions for the imposition
of the discretionary extended term." The judge added "[n]evertheless, prudence
dictates that the [c]ourt briefly addresses this argument."
The judge explained this court had rejected any argument the State had
failed to provide sufficient notice of the predicate prior convictions and had
merely directed the State to clarify which prior convictions, out of the numerous
qualifying convictions listed in the State's amended certification, it was relying
upon in support of the motion. The judge reasoned:
The Appellate Division, which remanded the case for resentencing, addressed this same argument and stated that "the remand proceedings will present an opportunity for the State to notify defendant of the prior convictions on which it relies for imposition of the extended term." Thus, the Appellate Division already contemplated and rejected this argument as evidenced by its decision to allow a resentencing in order for the
A-2876-22 8 State to clearly set forth the prior convictions relied upon for the extended term. If the Appellate Division found that the State had made an error the State could not cure, that finding would have been expressed in the Appellate Division's [o]pinion.
On June 12, 2023, we granted defendant's motion to file his notice of
appeal as within time. On March 19, 2024, the appeal was heard on this court's
sentencing oral argument calendar. Following argument, we entered an order
directing the matter be transferred to the plenary calendar and a scheduling order
issued. By consent of the parties, we required a limited correction of the
judgment of conviction to reflect the proper prior service credits, which was
amended on April 9, 2024.
On appeal, defendant raises the following point(s):
POINT 1
DEFENDANT'S DISCRETIONARY EXTENDED TERM AND PAROLE BAR ARE ILLEGAL AND MUST BE VACATED.
A. NO PROCEDURAL BAR PREVENTS THIS COURT FROM CORRECTING DEFENDANT'S ILLEGAL AND UNJUST EXTENDED SENTENCE.
B. THE STATE VINDICTIVELY PUNISHED DEFENDANT FOR EXERCISING HIS RIGHT TO A JURY TRIAL BY INITIALLY AGREEING TO A [THREE-] YEAR PLEA DEAL BUT THEN SEEKING A [FIFTEEN-]
A-2876-22 9 YEAR EXTENDED TERM SOLELY BECAUSE HE WENT TO TRIAL.
C. THE STATE REPEATEDLY FAILED TO PROVIDE THE STATUTORILY REQUIRED NOTICE DESPITE MULTIPLE CHANCES AND A PRIOR ORDER OF THIS COURT.
D. THE PROPER REMEDY IS TO VACATE DEFENDANT'S EXTENDED TERM AND PAROLE BAR AND IMPOSE THE MAXIMUM ORDINARY TERM AND PAROLE BAR TO PERMIT HIS IMMEDIATE RELEASE.
In response, the State argues we should affirm the motion judge's ruling
because defendant's claim the State failed to provide adequate notice of the
predicate prior convictions was already adjudicated, he waived the claim by
failing to appeal the resentencing discretionary extended term ordered . The
State further argues defendant’s "trial tax" argument, raised for the first time on
appeal, is an excessiveness claim which he presented as part of his argument in
mitigation at his original sentencing and resentencing and therefore should be
barred in this appeal.
The State further argues no error was made by the re-sentencing judge
because defendant’s belated claim that he should have received a written
submission detailing the qualifying prior convictions is "a weak attempt to
elevate form over substance." The State argues there is ample evidence in this
A-2876-22 10 record defendant "received sufficient notice that he was extended term eligible
and [fifteen years] have passed since defendant was resentenced and he did not
file an appeal." The State also points out the defendant has filed two PCR
petitions, a motion for a new trial, and a habeas petition, but did not "think to
raise this claim and there is no good reason to rehash the notice issue."
III.
Whether a sentence is illegal is an issue of law that we review de novo.
State v. Drake, 444 N.J. Super. 265, 271 (App. Div. 2016). "An illegal sentence
that has not been completely served may be corrected at any time without
impinging upon double-jeopardy principles." State v. Austin, 335 N.J. Super.
486, 494 (App. Div. 2000). Our Supreme Court has held "[t]here are two
categories of illegal sentences: those that exceed the penalties authorized for a
particular offense, and those that are not authorized by law." State v. Hyland,
238 N.J. 135, 145 (2019) (citing State v. Schubert, 212 N.J. 295, 308 (2012)).
These categories "have been 'defined narrowly'" Ibid. (quoting State v. Murray,
162 N.J. 240, 246 (2000)).
"[E]ven sentences that disregard controlling case law or rest on an abuse
of discretion by the sentencing court are legal so long as they impose penalties
authorized by statute for a particular offense and include a disposition that is
A-2876-22 11 authorized by law." Id. at 146. Under Rule 3:21-10(b)(5), "[a] motion may be
filed, and an order may be entered at any time . . . correcting a sentence not
authorized by law including the Code of Criminal Justice." See State v. Zuber,
227 N.J. 422, 437 (2017) ("A defendant may challenge an illegal sentence at any
time." (citing R. 3:21-10(b)(5))). Under Rule 3:22-5, "a prior adjudication upon
the merits of any ground for relief is conclusive whether made in the proceedings
resulting in the conviction or in any post-conviction proceeding brought
pursuant to this rule or prior to the adoption thereof, or in any appeal taken from
such proceedings."
At resentencing, defense counsel admitted defendant's prior convictions
qualified him for extended-term eligible sentencing. Defense counsel conceded
"the . . . two [convictions] are certainly within the time frame." Furthermore,
the judge found the aggravating factors "preponderate over the mitigating
factors." The judge listed all the aggravating factors on the record and
articulated why it led him to impose an extended sentence.
The record demonstrates there was a prior adjudication in 2007
concerning this issue at the resentencing hearing regarding the sentence being
beyond the statutorily authorized range for an ordinary second-degree offense.
A-2876-22 12 We conclude this adjudication is conclusive under Rule 3:22-5 and therefore
barred from re-argument in this appeal.
Even if the prior adjudication was not conclusive, under N.J.S.A. 2C:44-
3a, the criterion for the extended term is that defendant was "previously
convicted on at least two separate occasions for two crimes, committed at
different times, when he was at least [eighteen] years of age." Defendant fits
into this category since he had been previously convicted on two separate
occasions for two crimes at two different times when he was at least eighteen
years old. At the hearing, the State verbally represented the predicate
convictions on the record, and defendant's counsel stipulated the convictions
met the requirements for consideration of an extended sentence.
We conclude there was no prejudice to defendant because the State did
not delineate which two of the three qualifying convictions posited from
defendant's record were the operative convictions. We conclude at the original
sentencing hearing sufficient notice was provided to defendant of all the
qualifying convictions being relied upon by the State for its extended sentence
motion by way of its amended notice filed approximately thirteen days before
the sentencing hearing. Defendant was provided adequate notice and time to
respond to the State's amended notice and agreed on the record the convictions
A-2876-22 13 listed on the notice met the extended term requirements of the statute. The judge
finding good cause to allow the amended submission from the State was well
supported by the record.
We further conclude the State's failure to provide the specific qualifying
convictions in writing prior to the resentencing hearing was not sufficiently
prejudicial to defendant to support the vacation of the extended term sentence
imposed. The State orally placed the same qualifying convictions on the record
as relied upon at the 2005 sentencing hearing, and defendant agreed that the
convictions qualified as extended term eligible. At the time of resentencing,
defendant had been aware of the list of qualifying convictions the State was
relying upon for approximately two years. Other than defendant asserting the
qualifying convictions were not provided in writing, he fails to specify the actual
prejudice against him because of the State's alleged inadequate notice.
IV.
We now turn to defendant's argument that the State's extended term
request cannot be explained by "anything other than the vindictive punishment
of [defendant] for exercising his constitutional right to a trial" and his extended
term sentence should be vacated. Defendant argues the discretionary term was
vindictive because at the time the State had agreed to plead his second-degree
A-2876-22 14 eluding offense to a three-year flat sentence, it had not moved for an extended
term sentence. He argues before trial, an extended term sentence within the
first-degree range was "not on the table" at all. He then claims only after he
elected to proceed to trial did the State move for the extended sentence.
Defendant contends the increase was "drastic" and the State has yet to provide
"any non-vindictive reason" for why it sought the fifteen-year term only after he
went to trial.
"We generally 'decline to consider questions or issues not properly
presented to the trial court . . . unless the questions so raised on appeal go to the
jurisdiction of the trial court or concern matters of great public interest.'" State
v. Marroccelli, 448 N.J. Super. 349, 373 (App. Div. 2017) (quoting State v.
Robinson, 200 N.J. 1, 20 (2009)). Since we determine neither of these
exceptions apply, the defendant's argument lacks merit.
Addressing defendant’s argument for completeness, even though it was
not raised before the motion judge or below, we conclude our rules require that
any ground for relief not raised on direct appeal is procedurally barred if not
brought in a motion to reduce or change a sentence within sixty days after the
date of the judgment of conviction. See R. 3:21-10(a). No motion was filed by
defendant within the sixty-day requirement which bars his argument.
A-2876-22 15 Defendant also relies upon our Court's holding in State v. Hannah, 248
N.J. 148, 175-79 (2021) and asserts the sentence was a "fundamental injustice."
"A fundamental injustice occurs 'when the judicial system has denied a
defendant with fair proceedings leading to a just outcome or when inadvertent
errors mistakenly impacted a determination of guilt or otherwise wrought a
miscarriage of justice.'" Id. at 179 (quoting State v. Nash, 212 N.J. 518, 540
(2013)). "To demonstrate a fundamental injustice, a defendant must show 'that
an error or violation played a role in the determination of guilt.'" Ibid. (quoting
Nash, 212 N.J. at 547).
The State argues the extended term was "always on the table and
defendant knew [that]." Also, the State claims both judges involved in the
sentencing were not permitted to consider, nor did they consider, the failed
three-year plea agreement or the five-year recommendation rejected in
aggravation or mitigation of sentence.
"The essence of . . . prosecutorial vindictiveness is a violation of due
process by retaliating against a defendant for exercising a legal right." State v.
Gomez, 341 N.J. Super. 560, 571 (App. Div. 2001) (citing Blackledge v. Perry,
417 U.S. 21, 27-28 (1974)). "[A] defendant claiming prosecutorial
vindictiveness must present 'affirmative proof of actual vindictiveness,'" State
A-2876-22 16 v. Jeannotte-Rodriguez, 469 N.J. Super. 69, 105 (App. Div. 2021) (quoting
Gomez, 341 N.J. Super. at 578), or rather, proof showing "the prosecutor's action
was solely retaliation against [the] defendant for the exercise of a legal right,"
Gomez, 341 N.J. Super. at 575 (citing United States v. Goodwin, 457 U.S. 368,
380 (1982)).
Here, defendant was given notice of the possibility of receiving an
extended sentence when he undisputably checked off the two boxes on the plea
cut off form notifying him of a possible extended term sentence and by the
discussion of his convictions at the Sands/Brunson hearing before trial. The
sentence is within the time frame authorized by the persistent offender statute.
The length of the sentence for a second-degree eluding conviction extends from
five years, which is the bottom of the ordinary range, to twenty years, which is
the top of the extended range. N.J.S.A. 2C:43-6; N.J.S.A. 2C:43-7a(3). The
trial court is also permitted to impose a parole ineligibility term "not to exceed
one-half of the term set pursuant to subsection (a)" of N.J.S.A. 2C:43-7.
Defendant's term of fifteen years with a seven and one-half year parole
disqualifier fits squarely into this range. Therefore, defendant's sentence does
not exceed the permitted range. We discern, under these facts, defendant's
A-2876-22 17 sentence does not meet the vindictiveness standard because he had actual notice
the State may request an extended term sentence after trial.
To the extent we have not otherwise addressed defendant's arguments,
they are without sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(2).
Affirmed.
A-2876-22 18