NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

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- 17T 4 STATE OF NEW JERSEY, Plaintiff

- Appellant,

v. 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, Cumberlan d 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. APPROVED FOR PUBLICATION June 12, 2019 APPELLATE DIVISION2 A

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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 trespass ing on his former girlfriend's property by refusing to leave and , on a separate day, hit ting her o n 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 prov ision, 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 res pond 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, 2019.3 A

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The victim wrote a letter to the judge seekin g leniency for defendant and , at the sentencing hearing, said she did not want to proceed with the prosecution
and did not wan t defendant to go to prison

. Although the State brought to the court's attention the statutory presumption of incarc eration 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 pen itent." 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 ar gues that it had the right to appeal this sentence, which it characterizes as "illegal." Our Supreme Court recently exp lained 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.4 A

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- 17 T4 . . correcting a s entence 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 , impos ing a presumption of incarceration on defendants convicted of third

- degree aggravated assault whe re 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. ___ (20 19) (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 , 2 15 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 t he Legislature seeks to import a part of one Code provision5 A

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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 cri me 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) ( e mphasis 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 Leg islature "missed synthesizing" the statute s when it fail ed to add a provision allowing the State to appeal a probationary sentence imposed upon conviction of third

- degree aggravated assault in a do mestic violence situation where defendant had6 A

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previously co mmitted domestic violence

. We need not "theorize" where the plain language of the statute is clear . T he 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 incor porated in the double jeopardy provisions of the Federal and State Constitutions." State v. Johnson , 376 N.J. Super. 163, 171 (App. Div. 2005). The se provisions provide "protection to a defendant , " including insulati on 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 term7 A

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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 allow s 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 pendin g appeal by the State . . . ." The State must ensure the st ay 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 arg ues double jeopardy does not control because the trial judge imposed an illegal sentence by inadequately explai n ing 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, those8 A

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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 Stat e 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 the9 A

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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 . . . ." Hyla nd , slip op. at 15

. The State was not permitted by statute to appeal ; t o remand for the imposition of a harsher sentence after defendant began serving the probationary sentence imposed would violate d ouble j eopardy 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 viol ence, 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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The appeal is d ismissed.