Submitted May 15, 2019
appeal from Superior Court of New Jersey, Law Division,
Cumberland County, Indictment No. 17-06-0548.
S. Grewal, Attorney General, attorney for appellant (Sarah
Lichter, Deputy Attorney General, of counsel and on the
E. Krakora, Public Defender, attorney for respondent (Al
Glimis, Designated Counsel, on the brief).
Judges Koblitz, Currier, and Mayer.
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). Because the State has no authority to
appeal from a legal third-degree sentence, we dismiss the
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.
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).
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.
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
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 . . . correcting a sentence not
authorized by law including the Code of Criminal
[State v. Hyland, __N.J.__, __ (2019) (slip op. at