NOT FOR PUBLICATION WITHOUT THE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,

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, 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.

APPROVED FOR PUBLICATION

June 12, 2019

APPELLATE DIVISION
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A-4540-17T4

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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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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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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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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A-4540-17T4

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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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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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. 
10 A-4540-17T4

The appeal is dismissed.