On June 12, 2019, a three-judge appellate division panel decided the Cumberland County case of State v. Kenneth D. Thomas. The principal issue was whether under N.J.S.A. 2C:44-1 the State could appeal the defendant’s sentence to probation on a third-degree aggravated assault conviction in which he was subject to a presumption of incarceration.
Presiding Judge Ellen Koblitz wrote for the panel and held in relevant part as follows: 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 that include a disposition that is not authorized by our criminal code. 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.” The State may petition to correct an illegal sentence at any time before the sentence is complete.
In the context of a defendant being sentenced to probation for a first or second degree offense, the State would have had a right to appeal because an appeal is authorized by 2C:44-1. Here, because the crime was one of the third degree, there was no right to appeal. If there was a right to appeal, the State would have almost certainly prevailed because the only precedent supporting a finding of an “idiosyncratic” defendant involves cases of severe mental defects, i.e. old cases in which the defendants were referred to as “mentally retarded.”