               NOT FOR PUBLICATION WITHOUT THE
              APPROVAL OF THE APPELLATE DIVISION

                                   SUPERIOR COURT OF NEW JERSEY
                                   APPELLATE DIVISION
                                   DOCKET NO. A-4540-17T4

STATE OF NEW JERSEY,

     Plaintiff-Appellant,             APPROVED FOR PUBLICATION

                                                 June 12, 2019
v.
                                          APPELLATE DIVISION
KENNETH D. THOMAS,
a/k/a CHRISTOPH D.
THOMAS,

     Defendant-Respondent.
________________________

           Submitted May 15, 2019 – Decided June 12, 2019

           Before Judges Koblitz, Currier, and Mayer.

           On appeal from Superior Court of New Jersey, Law
           Division, Cumberland County, Indictment No. 17-06-
           0548.

           Gurbir S. Grewal, Attorney General, attorney for
           appellant (Sarah Lichter, Deputy Attorney General, of
           counsel and on the brief).

           Joseph E. Krakora, Public Defender, attorney for
           respondent (Al Glimis, Designated Counsel, on the
           brief).

     The opinion of the court was delivered by

KOBLITZ, P.J.A.D.
      The State appeals from a June 1, 2018 judgment of conviction imposing a

probationary sentence on defendant Kenneth D. Thomas for third-degree

aggravated assault, N.J.S.A. 2C:12-1(b)(2).1 Because the State has no authority

to appeal from a legal third-degree sentence, we dismiss the appeal.

      Defendant also pled guilty to fourth-degree criminal trespass, N.J.S.A.

2C:18-3(a). He admitted trespassing on his former girlfriend's property by

refusing to leave and, on a separate day, hitting her on the head with a liquor

bottle, causing a cut on the top of her head.

      The State unsuccessfully sought the imposition of a discretionary

extended term under the persistent offender provision, N.J.S.A. 2C:44-3(a). The

court found aggravating factors three, the risk defendant would reoffend; six,

the extent of his prior criminal record; nine, deterrence; and fifteen, that the

crime involved domestic violence and defendant had "committed at least one act

of domestic violence on more than one occasion." N.J.S.A. 2C:44-1(a) (3), (6),

(9) and (15). The court also found mitigating factors six, victim compensation;

ten, defendant was likely to respond to probation; and twelve, cooperation with

law enforcement. N.J.S.A. 2C:44-1(b)(6), (10) and (12).



1
  We transferred this appeal from the sentencing-only calendar on January 9,
2019.
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                                        2
       The victim wrote a letter to the judge seeking leniency for defendant and,

at the sentencing hearing, said she did not want to proceed with the prosecution

and did not want defendant to go to prison. Although the State brought to the

court's attention the statutory presumption of incarceration after a finding of

aggravating factor fifteen, the trial judge believed a prison sentence would create

a "serious injustice, which overrides the need to deter such conduct by others."

The trial judge found defendant to be "contrite" and "truly penitent." After

balancing the relevant aggravating and mitigating sentencing factors, the

victim's wishes, and defendant's "character and condition," the trial judge

sentenced defendant to probation for a total of four years on both charges.2

       The State argues that it had the right to appeal this sentence, which it

characterizes as "illegal." Our Supreme Court recently explained the State's

authority to appeal a sentence:

             In the context of sentencing, the State has the authority
             to appeal in two circumstances. The State may appeal
             where there is "express statutory authority" to do so.
             State v. Roth, 95 N.J. 334, 343 (1984); accord R. 2:3-
             1(b)(6) (permitting an appeal "as otherwise provided by
             law"). Alternatively, the State may appeal if the
             sentence imposed is illegal. State v. Ciancaglini, 204
             N.J. 597, 605 (2011); see R. 3:21-10(b)(5) ("A motion
             may be filed and an order may be entered at any time .


2
    The judge imposed a consecutive year of probation for trespassing.
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            . . correcting a sentence not authorized by law including
            the Code of Criminal Justice.").

            [State v. Hyland, ___ N.J. ___, ___ (2019) (slip op. at
            9-10).]

                           I. No statutory authority.

      The Legislature enacted N.J.S.A. 2C:44-1(d) in 2015, imposing a

presumption of incarceration on defendants convicted of third-degree

aggravated assault where aggravating factor fifteen has been found. The State

argues the Legislature mistakenly did not simultaneously include third-degree

crimes in N.J.S.A. 2C:44-1(f)(2), which allows the State to appeal a

probationary sentence imposed after a first- or second-degree conviction.

      When interpreting a statute, our role is to effectuate the intent of the

Legislature. State ex rel. D.M., ___ N.J. ___ (2019) (slip op. at 16-17). We

must look "first to the plain language of the statute, seeking further guidance

only to the extent that the Legislature's intent cannot be derived from the words

that it has chosen." Norfolk Southern Ry. Co. v. Intermodal Properties, LLC,

215 N.J. 142, 166 (2013) (quoting Pizzullo v. N.J. Mfrs. Ins. Co., 196 N.J. 251,

264 (2008)). "If the plain language yields the meaning of the statute, then [the

reviewing court's] task is complete." State v. Williams, 218 N.J. 576, 586

(2014). "[W]hen the Legislature seeks to import a part of one Code provision


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                                       4
into another, it expresses that intent in unambiguous terms." D.M., slip op. at

21-22.

      The statute provides:

            In cases of convictions for crimes of the first or second
            degree where the court is clearly convinced that the
            mitigating factors substantially outweigh the
            aggravating factors and where the interest of justice
            demands, the court may sentence the defendant to a
            term appropriate to a crime of one degree lower than
            that of the crime for which he was convicted. If the
            court does impose sentence pursuant to this paragraph,
            or if the court imposes a noncustodial or probationary
            sentence upon conviction for a crime of the first or
            second degree, such sentence shall not become final for
            [ten] days in order to permit the appeal of such sentence
            by the prosecution.

            [N.J.S.A. 2C:44-1(f)(2) (emphasis added).]

Thus, the statute explicitly allows the State to appeal within ten days when the

court sentences a defendant convicted of a first- or second-degree crime to

probation. Defendant, however, was sentenced to probation for third-degree

aggravated assault.

      The State asserts it is "reasonable to theorize" the Legislature "missed

synthesizing" the statutes when it failed to add a provision allowing the State to

appeal a probationary sentence imposed upon conviction of third-degree

aggravated assault in a domestic violence situation where defendant had


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                                        5
previously committed domestic violence. We need not "theorize" where the

plain language of the statute is clear. The Legislature could have amended

N.J.S.A. 2C:44-1(f)(2) in 2015 and chose not to do so. See D.M., slip op. at 21-

22.

                         II. Double jeopardy concerns.

      Defendant argues as well that the State cannot seek a harsher sentence

because defendant has already served over nine months of his probationary

sentence. When the State appeals a sentence, it implicates "the prohibitions

against multiple punishment incorporated in the double jeopardy provisions of

the Federal and State Constitutions." State v. Johnson, 376 N.J. Super. 163, 171

(App. Div. 2005).     These provisions provide "protection to a defendant,"

including insulation from the "imposi[tion] . . . [of] 'multiple punishments for

the same offense.'" State v. Schubert, 212 N.J. 295, 304–05 (2012) (quoting

Jones v. Thomas, 491 U.S. 376, 381 (1989)). "[T]he touchstone of the double

jeopardy analysis lies in the expectation of finality that a defendant vests in his

sentence." State v. Sanders, 107 N.J. 609, 619 (1987). Finality interests arise

after the "final judgment and commencement of the sentence." State v. Veney,

327 N.J. Super. 458, 461 (App. Div. 2000). If the sentence cannot be attacked

as illegal, double jeopardy attaches, and it "prohibits the increase of the term


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                                        6
imposed in a discretionary sentence." Ibid. (quoting State v. Kirk, 243 N.J.

Super. 636, 642 (App. Div. 1990)).

      In conjunction with N.J.S.A. 2C:44-1(f)(2), which allows the State to

appeal when first- or second-degree offenders are sentenced to probation, Rule

2:9-3(c) provides that the "execution of [a] sentence shall be stayed pending

appeal by the State . . . ." The State must ensure the stay of the execution of the

sentence is in effect in order to ensure double jeopardy will not apply. See State

v. Eigenmann, 280 N.J. Super. 331, 336 (App. Div. 1995); see also Sanders, 107

N.J. at 619.

      Double jeopardy thus restricts the State from appealing for a harsher

sentence on statutory grounds because the State failed to seek a stay of the

execution of defendant's sentence, and defendant has served over nine months

of probation.

                              III. Sentence is legal.

      The State argues double jeopardy does not control because the trial judge

imposed an illegal sentence by inadequately explaining why sentencing

defendant to a prison term would be a "serious injustice." Illegal sentences are

"(1) those that exceed the penalties authorized by statute for a particular offense

and (2) those that are not in accordance with the law, or stated differently, those


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                                        7
that include a disposition that is not authorized by our criminal code." Schubert,

212 N.J. at 308. "In other words, even 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 authorized by law." Hyland, slip op. at 13. "An illegal

sentence that has not been completely served may be corrected at any time

without impinging upon double-jeopardy principles." Schubert, 212 N.J. at 309.

(quoting State v. Austin, 335 N.J. Super. 486, 494 (App. Div. 2000)). The State

may petition to correct an illegal sentence at any time before the sentence is

complete. Ibid.; see also R. 3:21-10(b)(4).

      N.J.S.A. 2C:44-1(d) imposes a presumption of incarceration when a

defendant is convicted of a third-degree crime and the trial court finds

aggravating factor fifteen applies. The presumption may be overcome if the trial

judge finds, after considering the defendant's "character and condition,"

incarceration would cause a "serious injustice which overrides the need to deter

such conduct by others." Ibid. "Serious injustice" is generally difficult for a

defendant to prove and a defendant must show he or she is "so idiosyncratic that

incarceration . . . for the purposes of general deterrence is not warranted." State

v. Jarbath, 114 N.J. 394, 408-09 (1989) (finding "serious injustice" where the


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                                        8
defendant, convicted of manslaughter, could not comprehend that she committed

a crime due to her mental and emotional deficiencies); see also State v. E.R.,

273 N.J. Super. 262, 273-74 (App. Div. 1994) (finding "serious injustice" where

the defendant was a bed-ridden AIDS patient and imprisonment would not serve

a purpose).

      The State argues the sentence is illegal because the trial judge did not

adequately explain why he found defendant would be subject to "serious

injustice," the judge applied inappropriate facts when referring to defendant's

need to provide for his children, and defendant failed to show he was

"idiosyncratic." Even if the court's reasoning was inadequate, that deficiency

did not render the sentence illegal. "[S]entences authorized by law but premised

on an abuse of discretion are not illegal . . . ." Hyland, slip op. at 15.

      The State was not permitted by statute to appeal; to remand for the

imposition of a harsher sentence after defendant began serving the probationary

sentence imposed would violate double jeopardy protection; and the sentence

was not illegal.3


3
   We do not reach defendant's arguments that a noncustodial sentence was
appropriate because (1) aggravating factor fifteen did not apply as defendant had
no prior criminal convictions involving domestic violence, and (2) the trial court
advised defendant when he entered the guilty plea that a presumption of
incarceration would not apply.
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                                         9
The appeal is dismissed.




                                A-4540-17T4
                           10
