[brief] Id. at 147-148.  Certain factors, such as N.J.S.A. 2C:35-14a(4) and (9) were deemed “discretionary,” which require the sentencing judge to engage in fact-finding.  Id. at 147.  For discretionary determinations, even if the lower court abuses its discretion “by making a clear error in judgement,” it will not result in an illegal sentence.  *Ibid.* (quoting *State v. S.N.*, 231 N.J. 497, 500 (2018)).  The State may not appeal a Recovery Court Special Probation order based upon the finding of one or more of the discretionary factors.  *Hyland*, 238 N.J. at 147.  However, the Court also deemed certain factors as “nondiscretionary,” which require objective, per se legal determinations.  *Id.* at 148.  These factors include N.J.S.A. 2C:35-14a(1), (6), (7) and (8).  *Ibid.*  Improper application by the Recovery Court as to one of the nondiscretionary factors constitutes a sentence that would be appealable as illegal under the Criminal Code.  *Ibid.*  In these instances, the State may appeal a Recovery Court decision only when the lower court judge “makes a plainly mistaken, nondiscretionary, non-factual finding under N.J.S.A. 2C:35-14(a). ”  *Hyland*, 238 N.J. at 139.  Notably absent from the list of discretionary and nondiscretionary factors are N.J.S.A. 2C:35-14a(2), (3), and (5).  The State submits that N.J.S.A. 2C:35-14a(5) (hereinafter referred to as “factor a(5)”) should be deemed a nondiscretionary, objective factor as the defendant possessed a firearm “at the time of any pending criminal charge. ”  N.J.S.A. 2C:35-14a(5).  As the State argues below, the plain language of the statute governs, and it is clear the phrase “any pending criminal charge” includes the Morris County charges.  The Essex firearm case was both initiated and concluded within the pendency of the Morris burglary and theft case.  Defendant pleaded guilty in a court of law to unlawfully possessing a firearm and was subsequently convicted for doing so.  Therefore, it is evident he unlawfully possessed a firearm during the period the Morris charges were pending.  Under these facts there is no room for discretion or fact-finding, it is strictly an objective observation that requires a per se legal determination.  The *Hyland* Court permits an appeal by the State when the decision by a Recovery Court judge results in the imposition of an illegal sentence.  An interest of justice exists for appellate review because if the lower court’s ruling, that the defendant is legally eligible under factor a(5) for Recovery Court Special Probation, is implemented, it will result in a sentence that is “not imposed in accordance with law. ”  *Hyland*, 238 N.J. at 148.  Furthermore, leave to appeal should be granted prior to the taking of the defendant’s guilty plea.  Irreparable harm can be caused due to the delay in determining the issues invoked in this case.  Defendant and the State need clarification regarding the imposition of an illegal sentence before the defendant pleads guilty in this case.  Otherwise, considerable judicial resources will be expended on a negotiation, plea colloquy, and sentence that cannot stand and was not knowingly and voluntarily entered into by the defendant if the expectation of the defendant is to be sentenced into Recovery Court.  Leave to appeal is necessitated in this case due to fundamental fairness to all parties.  As such, there is a good basis for this Court to grant leave to appeal.