April 24, 2019
certification to the Superior Court, Appellate Division,
whose opinion is reported at 452 N.J.Super. 372 (App. Div.
Jennifer E. Kmieciak, Deputy Attorney General, argued the
cause for appellant (Gurbir S. Grewal, Attorney General,
attorney; Jennifer E. Kmieciak, of counsel and on the
Y. Lerer, Assistant Deputy Public Defender, argued the cause
for respondent (Joseph E. Krakora, Public Defender, attorney;
Tamar Y. Lerer, of counsel and on the briefs, and Linda A.
Shashoua, Camden County Assistant Prosecutor, on the briefs).
SOLOMON, J., writing for the Court.
impose a Drug Court sentence, a sentencing judge must ensure
that the nine requirements set forth in N.J.S.A. 2C:35-14(a)
are satisfied. In this appeal, the Court considers whether a
judge's finding under N.J.S.A. 2C:35-14(a)(9) -- that a
defendant would not be a danger to the community while on
special Drug Court probation -- may render a sentence
appealable by the State as an illegal sentence.
night in March 2016, defendant, who was driving an
automobile, struck and killed sixteen-year-old Q.T. and then
fled the scene. She was indicted on three counts. The Camden
County Prosecutor's Office recommended against
defendant's admission into Drug Court. According to the
prosecutor, because defendant left the scene of a fatal
accident and failed to help Q.T., she was not the type of
non-violent offender intended for Drug Court and would be a
"danger to the community." N.J.S.A. 2C:35-14(a)(9).
judge determined over the State's objection that
defendant was legally eligible for a special probation Drug
Court sentence. The judge acknowledged defendant's
"slew of arrests and convictions" -- six in
Superior Court and eleven in Municipal Court -- and stressed
that defendant had made a "terrible choice" after
striking Q.T. But the judge did not agree that defendant
would be a danger to the community if admitted to Drug Court.
pled guilty to all three charges in the indictment. During
sentencing, the judge analyzed the nine statutory factors
required to impose a Drug Court sentence under N.J.S.A.
2C:35-14(a), found that defendant was "likely to respond
affirmatively to Drug Court probation," and sentenced
her to concurrent five-year special probation Drug Court
terms on her convictions.
State appealed. Finding neither an illegal sentence nor
statutory authorization, the Appellate Division dismissed the
appeal for lack of jurisdiction. 452 N.J.Super. 372, 389
(App. Div. 2017).
Court granted the State's petition for certification. 236
N.J. 110 (2018).
The State may appeal a Drug Court sentence only when the
sentencing judge makes a plainly mistaken, non-discretionary,
non-factual finding under N.J.S.A. 2C:35-14(a). Because
application of N.J.S.A. 2C:35-14(a)(9) requires fact-finding
and an exercise of the sentencing judge's discretion, a
sentence based on application of that factor is not
appealable as an illegal sentence.
the context of sentencing, the State has the authority to
appeal in two circumstances: where there is express statutory
authority to do so, or if the sentence imposed is illegal.
N.J.S.A. 2C:35-14 was enacted in 1987 as part of the
Comprehensive Drug Reform Act of 1987. The statute permits
alternatives to imprisonment -- namely, the imposition of
special probation Drug Court sentences -- for offenders
"subject to a presumption of incarceration or a
mandatory minimum period of parole ineligibility."
N.J.S.A. 2C:35-14(a). Where certain statutory requirements
are satisfied, and upon notice to the prosecutor, the court
may place a drug or alcohol dependent person on special
probation for a term of five years. In 1999, the Legislature
amended N.J.S.A. 2C:35-14 and expressly authorized the State
to appeal the imposition of a special probation Drug Court
sentence under certain circumstances. The amended statute
also permitted the prosecutor to "veto" a
defendant's admission to Drug Court. In 2012, the
Legislature amended N.J.S.A. 2C:35-14 by eliminating both the
prosecutorial veto and the State's right to appeal Drug
Court sentences. In doing so, the Legislature gave courts
greater discretion to place the person on special probation.
As a result, the State has the right to appeal a special
probation Drug Court sentence only if it is illegal. (pp.
There are two categories of illegal sentences: those that
exceed the penalties authorized for a particular offense, and
those that are not authorized by law. Those two categories
have been defined narrowly, and 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. Deciding whether
defendant's Drug Court sentence is authorized by law
necessarily requires an analysis of the nine Drug Court
eligibility criteria set forth in N.J.S.A. 2C:35-14, which
the court must find on the record before a defendant may be
sentenced to special probation. 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 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, it did not impose an
illegal sentence by finding that defendant satisfies N.J.S.A.
2C:35-14(a)(9). Because sentences authorized by law but
premised on an abuse of discretion are not illegal, 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. (pp. 12-15)
future guidance, the Court adds that 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,
N.J.S.A. 2C:35-14(a)(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. Such a sentence
would be appealable as illegal. (p. 16)
Because defendant's sentence is not illegal and an appeal
is not expressly authorized by statute, the Court has no
jurisdiction to consider the State's appeal of
defendant's special probation Drug Court sentence. (p.
judgment of the Appellate Division is AFFIRMED AS
JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON,
FERNANDEZ-VINA, and TIMPONE join in JUSTICE SOLOMON'S