On June 3, 2019, the New Jersey Supreme Court decided the Camden County case of State v. Susan Hyland. The principal issue is whether the prosecution can appeal a trial court’s sentence of special probation (drug court) based on a finding that the defendant is not a danger to the community under N.J.S.A. 2C:35-14(a)(9).
Justice Solomon wrote for a unanimous Court and held in relevant part as follows: Certain eligibility criteria, such as N.J.S.A. 2C:35-14(a)(4) and (9), are discretionary determinations requiring the sentencing judge to engage in fact-finding. Here, for example, the judge applied defendant’s unique characteristics and circumstances — namely, that she was diagnosed with five serious substance abuse disorders and had a relatively non-violent and remote criminal history — and determined that she was amenable to treatment and not a risk to the community. Even if the court abused its discretion “by making a clear error in judgment,” State v. S.N. (2018), it did not impose an illegal sentence by finding that defendant satisfies N.J.S.A. 2C:35-14(a)(9).
Because this Court’s jurisprudence makes clear that sentences authorized by law but premised on an abuse of discretion are not illegal, we conclude that the State may not appeal a special probation Drug Court sentence based on the judge’s finding of one or more of N.J.S.A. 2C:35-14(a)’s discretionary factors. Accordingly, the State is not permitted to appeal defendant’s Drug Court sentence. A finding to the contrary would conflate sentence illegality with judicial abuse of discretion, and undermine this Court’s consistently narrow construct of which sentences it deems illegal.
For future guidance, we add the following. Not all of the eligibility criteria set forth in N.J.S.A. 2C:35-14(a) necessitate fact-finding or an exercise of discretion by the sentencing judge. Rather, some factors — for example, factors (1), (6), (7), and (8) — require objective, per se legal determinations. Because the sentencing court must find all nine factors under N.J.S.A. 2C:35-14(a) before imposing a special probation Drug Court sentence, improper application by the sentencing judge of one of the nondiscretionary factors would constitute a sentence that is “not imposed in accordance with law.” Acevedo, 205 N.J. at 45. Such a sentence would be appealable as illegal under our Criminal Code. See Ancrum, 449 N.J. Super. at 531, 539 (permitting appeal because the judge improperly interpreted N.J.S.A. 2C:35-14(b)(2), which bars the imposition of a Drug Court sentence for defendants convicted of disqualifying second-degree crimes).
In sum, when — and only when — a sentencing judge makes a plainly or clearly mistaken objective, rather than discretionary, finding under N.J.S.A. 2C:35-14(a), the State may appeal as illegal the imposition of a Drug Court sentence. Because defendant’s sentence is not illegal and an appeal is not expressly authorized by statute, we have no jurisdiction to consider the State’s appeal of defendant’s special probation Drug Court sentence. We therefore affirm as modified the judgment of the Appellate Division.
Since former Governor Christie passed legislation that expanded access to drug court and limited prosecutors’ discretion to reject applicants, the State has executed numerous appeals in an effort to regain some of their lost discretion. Most of their efforts have failed.
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