NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1449-24
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MARVIN M. BROWN, a/k/a MYSTIFY BROWN, and TROY HILL,
Defendant-Appellant. ________________________
Submitted November 13, 2025 – Decided November 21, 2025
Before Judges Gummer and Vanek.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 98-11-4356.
Marvin M. Brown, self-represented appellant.
Theodore N. Stephens, II, Essex County Prosecutor, attorney for respondent (Frank J. Ducoat, Deputy Chief Assistant Prosecutor, of counsel and the brief).
PER CURIAM Defendant Marvin M. Brown appeals from an October 1, 2024 order
denying his motion to correct an illegal sentence. We affirm.
I.
We previously recounted the facts underlying defendant's conviction in
our decision on defendant's direct appeal, where we remanded for the entry of
an amended judgment of conviction (JOC). State v. Brown, No. A-3156-00
(App. Div. Dec. 12, 2002) (slip op. at 3-5). Therefore, we briefly summarize
only the facts material to the appeal of the amended JOC before us.
Defendant was convicted of the following as an accomplice in the 1997
murder of Terrence Hines: first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2);
third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b); and
second-degree possession of a handgun for an unlawful purpose, N.J.S.A.
2C:39-4(a). Defendant was also convicted of second-degree conspiracy to
commit murder, N.J.S.A. 2C:5-2 and 2C:11-3.
The sentencing judge merged the conspiracy and second-degree weapon
convictions into the murder conviction, for which defendant was sentenced to
an extended term of life imprisonment subject to an eighty-five percent parole
disqualifier under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The
extended term was mandatorily imposed because defendant had prior Graves
A-1449-24 2 Act convictions, N.J.S.A. 2C:43-7(a)(6).1 The sentence for murder was also
subject to a thirty-five-year parole disqualifier under the Graves Act, N.J.S.A.
2C:43-6(c) and 2C:43-7(a). During sentencing, defense counsel conceded the
Graves Act applied.
A concurrent five-year term was imposed on the third-degree weapons
conviction, and the aggregate sentence was ordered to run consecutively to the
sentence that defendant was serving for federal crimes. Statutory penalties were
also imposed.
Defendant appealed his conviction. We vacated the NERA portion of
defendant's sentence and remanded for entry of an amended JOC. We affirmed
the conviction "[i]n all other respects." Brown, slip op. at 18. After the amended
JOC was entered, the resultant sentence was life in prison subject to the
remaining thirty-five-year parole disqualifier under the Graves Act.
In May 2006, defendant filed a post-conviction relief (PCR) petition,
claiming ineffective assistance of counsel. The PCR judge denied the petition,
considering it time-barred under Rule 3:22-12(a). State v. Brown, No. A-5874-
1 N.J.S.A. 2C:43-6(c) renders the extended term mandatory and requires a sentence of "between [thirty-five] years and life imprisonment, of which the defendant shall serve [thirty-five] years before being eligible for parole." See N.J.S.A. 2C:43-7(a)(6). A-1449-24 3 06 (App. Div. Feb. 23, 2009) (slip op. at 1, 15), certif. denied, 199 N.J. 515
(2009). We affirmed the PCR judge's decision on both substantive and
procedural grounds.
In December 2023, defendant moved to correct an illegal sentence,
arguing the Graves Act cannot apply where there was no proof defendant had
actual or constructive possession of a qualifying firearm during commission of
the predicate offense. Judge John Zunic denied the motion in an order
accompanied by a comprehensive written decision.
Judge Zunic held that defendants are subject to the Graves Act if they
actually or constructively possessed a qualifying firearm or if they are found
guilty of the predicate offense as an accomplice. Judge Zunic found there was
no direct evidence of defendant's actual possession of the firearm or his intent
to use it unlawfully, but there was "clear evidence" of possession and intent
"implied through the concept of accomplice liability."
On appeal, defendant raises the following issues for our consideration:
I. THE LOWER COURT ERRED IN DENYING THE MOTION AND MUST BE REMANDED FOR PROPER CONSIDERATION OF ITS MERITS.
II. THIS MATTER MUST BE REMANDED FOR AN ERLINGER/CARLTON HEARING.
II.
A-1449-24 4 We review de novo orders concerning motions to modify sentencing
decisions pursuant to Rule 3:21-10(b) if the issue on appeal is whether the judge
applied the correct legal standard. State v. Drake, 444 N.J. Super. 265, 271
(App. Div. 2016). If the appeal challenges whether the facts presented to the
sentencing judge are sufficient to warrant relief under Rule 3:21-10(b), we apply
an abuse of discretion standard. State v. Arroyo-Nunez, 470 N.J. Super. 351,
376 (App. Div. 2022).
Rule 3:21-10 provides, in relevant part, that a motion to reduce or change
a sentence may be made at any time to "correct[ ] a sentence not authorized by
law including the Code of Criminal Justice." R. 3:21-10(b)(5). Further, Rule
3:22-2(c) permits a defendant to seek PCR from an illegal sentence when the
defendant claims:
[i]mposition of sentence [was] in excess of or otherwise not in accordance with the sentence authorized by law if [the claim is] raised together with other grounds cognizable under paragraph (a), (b), or (d) of this rule. Otherwise a claim alleging the imposition of sentence in excess of or otherwise not in accordance with the sentence authorized by law shall be filed pursuant to [Rule] 3:21-10(b)(5).
III.
Because we discern no error, we affirm the order denying defendant's
motion substantially for the same reasons expressed in Judge Zunic's written
A-1449-24 5 opinion. We add only the following, addressing defendant's new argument that
the application of the Graves Act to his sentence was illegal under Erlinger v.
United States, 602 U.S. 821 (2024), because his sentence relied on facts not
decided by the jury.
In Erlinger, the United States Supreme Court held that "the Fifth and Sixth
Amendments generally guarantee a defendant the right to have a unanimous jury
find beyond a reasonable doubt any fact that increases his [or her] exposure to
punishment." 602 U.S. at 828, 833-34. "Virtually 'any fact' that 'increase[s] the
prescribed range of penalties to which a criminal defendant is exposed' must be
resolved by a unanimous jury beyond a reasonable doubt (or freely admitted in
a guilty plea)." Id. at 834 (alteration in original) (quoting Apprendi v. New
Jersey, 530 U.S. 466, 490 (2000)) (internal quotation marks omitted).
In State v. Carlton, 480 N.J. Super. 311 (App. Div. 2024), we addressed
the implication of Erlinger on sentencing under the persistent-offender statute,
Free access — add to your briefcase to read the full text and ask questions with AI
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-1449-24
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MARVIN M. BROWN, a/k/a MYSTIFY BROWN, and TROY HILL,
Defendant-Appellant. ________________________
Submitted November 13, 2025 – Decided November 21, 2025
Before Judges Gummer and Vanek.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 98-11-4356.
Marvin M. Brown, self-represented appellant.
Theodore N. Stephens, II, Essex County Prosecutor, attorney for respondent (Frank J. Ducoat, Deputy Chief Assistant Prosecutor, of counsel and the brief).
PER CURIAM Defendant Marvin M. Brown appeals from an October 1, 2024 order
denying his motion to correct an illegal sentence. We affirm.
I.
We previously recounted the facts underlying defendant's conviction in
our decision on defendant's direct appeal, where we remanded for the entry of
an amended judgment of conviction (JOC). State v. Brown, No. A-3156-00
(App. Div. Dec. 12, 2002) (slip op. at 3-5). Therefore, we briefly summarize
only the facts material to the appeal of the amended JOC before us.
Defendant was convicted of the following as an accomplice in the 1997
murder of Terrence Hines: first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2);
third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b); and
second-degree possession of a handgun for an unlawful purpose, N.J.S.A.
2C:39-4(a). Defendant was also convicted of second-degree conspiracy to
commit murder, N.J.S.A. 2C:5-2 and 2C:11-3.
The sentencing judge merged the conspiracy and second-degree weapon
convictions into the murder conviction, for which defendant was sentenced to
an extended term of life imprisonment subject to an eighty-five percent parole
disqualifier under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The
extended term was mandatorily imposed because defendant had prior Graves
A-1449-24 2 Act convictions, N.J.S.A. 2C:43-7(a)(6).1 The sentence for murder was also
subject to a thirty-five-year parole disqualifier under the Graves Act, N.J.S.A.
2C:43-6(c) and 2C:43-7(a). During sentencing, defense counsel conceded the
Graves Act applied.
A concurrent five-year term was imposed on the third-degree weapons
conviction, and the aggregate sentence was ordered to run consecutively to the
sentence that defendant was serving for federal crimes. Statutory penalties were
also imposed.
Defendant appealed his conviction. We vacated the NERA portion of
defendant's sentence and remanded for entry of an amended JOC. We affirmed
the conviction "[i]n all other respects." Brown, slip op. at 18. After the amended
JOC was entered, the resultant sentence was life in prison subject to the
remaining thirty-five-year parole disqualifier under the Graves Act.
In May 2006, defendant filed a post-conviction relief (PCR) petition,
claiming ineffective assistance of counsel. The PCR judge denied the petition,
considering it time-barred under Rule 3:22-12(a). State v. Brown, No. A-5874-
1 N.J.S.A. 2C:43-6(c) renders the extended term mandatory and requires a sentence of "between [thirty-five] years and life imprisonment, of which the defendant shall serve [thirty-five] years before being eligible for parole." See N.J.S.A. 2C:43-7(a)(6). A-1449-24 3 06 (App. Div. Feb. 23, 2009) (slip op. at 1, 15), certif. denied, 199 N.J. 515
(2009). We affirmed the PCR judge's decision on both substantive and
procedural grounds.
In December 2023, defendant moved to correct an illegal sentence,
arguing the Graves Act cannot apply where there was no proof defendant had
actual or constructive possession of a qualifying firearm during commission of
the predicate offense. Judge John Zunic denied the motion in an order
accompanied by a comprehensive written decision.
Judge Zunic held that defendants are subject to the Graves Act if they
actually or constructively possessed a qualifying firearm or if they are found
guilty of the predicate offense as an accomplice. Judge Zunic found there was
no direct evidence of defendant's actual possession of the firearm or his intent
to use it unlawfully, but there was "clear evidence" of possession and intent
"implied through the concept of accomplice liability."
On appeal, defendant raises the following issues for our consideration:
I. THE LOWER COURT ERRED IN DENYING THE MOTION AND MUST BE REMANDED FOR PROPER CONSIDERATION OF ITS MERITS.
II. THIS MATTER MUST BE REMANDED FOR AN ERLINGER/CARLTON HEARING.
II.
A-1449-24 4 We review de novo orders concerning motions to modify sentencing
decisions pursuant to Rule 3:21-10(b) if the issue on appeal is whether the judge
applied the correct legal standard. State v. Drake, 444 N.J. Super. 265, 271
(App. Div. 2016). If the appeal challenges whether the facts presented to the
sentencing judge are sufficient to warrant relief under Rule 3:21-10(b), we apply
an abuse of discretion standard. State v. Arroyo-Nunez, 470 N.J. Super. 351,
376 (App. Div. 2022).
Rule 3:21-10 provides, in relevant part, that a motion to reduce or change
a sentence may be made at any time to "correct[ ] a sentence not authorized by
law including the Code of Criminal Justice." R. 3:21-10(b)(5). Further, Rule
3:22-2(c) permits a defendant to seek PCR from an illegal sentence when the
defendant claims:
[i]mposition of sentence [was] in excess of or otherwise not in accordance with the sentence authorized by law if [the claim is] raised together with other grounds cognizable under paragraph (a), (b), or (d) of this rule. Otherwise a claim alleging the imposition of sentence in excess of or otherwise not in accordance with the sentence authorized by law shall be filed pursuant to [Rule] 3:21-10(b)(5).
III.
Because we discern no error, we affirm the order denying defendant's
motion substantially for the same reasons expressed in Judge Zunic's written
A-1449-24 5 opinion. We add only the following, addressing defendant's new argument that
the application of the Graves Act to his sentence was illegal under Erlinger v.
United States, 602 U.S. 821 (2024), because his sentence relied on facts not
decided by the jury.
In Erlinger, the United States Supreme Court held that "the Fifth and Sixth
Amendments generally guarantee a defendant the right to have a unanimous jury
find beyond a reasonable doubt any fact that increases his [or her] exposure to
punishment." 602 U.S. at 828, 833-34. "Virtually 'any fact' that 'increase[s] the
prescribed range of penalties to which a criminal defendant is exposed' must be
resolved by a unanimous jury beyond a reasonable doubt (or freely admitted in
a guilty plea)." Id. at 834 (alteration in original) (quoting Apprendi v. New
Jersey, 530 U.S. 466, 490 (2000)) (internal quotation marks omitted).
In State v. Carlton, 480 N.J. Super. 311 (App. Div. 2024), we addressed
the implication of Erlinger on sentencing under the persistent-offender statute,
N.J.S.A. 2C:44-3(a), not the Graves Act provision at issue here. In Carlton, we
acknowledged that Erlinger precluded a sentencing court from determining the
factual predicates for consideration of enhanced sentencing under the persistent-
offender statute. Carlton, 480 N.J. Super. at 326. We held "a unanimous jury
must find beyond a reasonable doubt that all five of the [required] factual
A-1449-24 6 predicates are present, or the defendant must admit these predicates as part of a
knowing and voluntary waiver of the right to a jury trial with respect to
extended-term eligibility." Id. at 328-29.
Without reaching the merits, we conclude defendant's argument under
Erlinger is time-barred. In Carlton, we concluded that Erlinger applied
retroactively only to pipeline cases addressing the persistent-offender statute,
N.J.S.A. 2C:44-3(a). 480 N.J. Super. at 326-27. The Erlinger Court stated it
relied on established constitutional principles, 602 U.S. at 838-39, to "abrogate
New Jersey Supreme Court precedent that embraced a contrary interpretation of
the Apprendi doctrine, State v. Pierce, 188 N.J. 155 (2006)." Carlton, 480 N.J.
Super. at 316-17.
We similarly conclude Erlinger should be given only pipeline retroactivity
were it to apply to N.J.S.A. 2C:44-3(d). The Court has reached a similar
conclusion as to other decisional law affecting sentencing issues. See, e.g., State
v. Natale, 184 N.J. 458, 494 (2005) (affording pipeline retroactivity to Blakely
v. Washington, 524 U.S. 296 (2004)); State v. Grate, 220 N.J. 317, 335 (2015)
(affording pipeline retroactivity to Alleyne v. United States, 570 U.S. 99
(2013)). Pipeline retroactivity "best balances principles of fairness and repose,"
while "[f]ull retroactivity would overwhelm our courts with resentencings and
A-1449-24 7 impose a devastating burden on the judiciary." Natale, 184 N.J. at 494.
Because defendant's direct appeal was adjudicated on December 12, 2002, when
we vacated the NERA aspect of his sentence, it was not pending when Erlinger
was decided. Thus, we decline to consider defendant's arguments because they
are not subject to pipeline retroactivity.
We have considered all of defendant's arguments on appeal and, to the
extent we have not expressly addressed any of them, we have determined they
are without sufficient merit to warrant discussion in a written opinion. R. 2:11-
3(e)(2).
Affirmed.
A-1449-24 8