NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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. A-4540-17T4 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. A-4540-17T4 3 . . 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
A-4540-17T4 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
A-4540-17T4 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
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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. A-4540-17T4 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. A-4540-17T4 3 . . 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
A-4540-17T4 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
A-4540-17T4 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
A-4540-17T4 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
A-4540-17T4 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
A-4540-17T4 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. A-4540-17T4 9 The appeal is dismissed.
A-4540-17T4 10