New Jersey v. Hyland

Annotate this Case
Justia Opinion Summary

On a night in March 2016, defendant Susan Hyland was driving an automobile, and struck and killed sixteen-year-old Q.T., then fled the scene. She was indicted on three counts.
The Prosecutor’s Office recommended against defendant’s admission into Drug Court 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.” Defendant pled guilty to all three charges in the indictment. The trial judge analyzed the factors required to impose a drug court sentence, found defendant was likely to respond affirmatively to Drug Court probation, and sentenced her to concurrent five-year special probation Drug Court terms. The State appealed. The Appellate Division found no neither an illegal sentence nor statutory authorization, and dismissed the appeal for lack of jurisdiction. The New Jersey Supreme Court concluded 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) required fact-finding and an exercise of the sentencing judge’s discretion, a sentence based on application of that factor was not appealable as an illegal sentence.

SYLLABUS

This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the
Clerk for the convenience of the reader. It has been neither reviewed nor approved by the
Court. In the interest of brevity, portions of an opinion may not have been summarized.

                       State v. Susan Hyland (A-29-18) (079028)

Argued April 24, 2019 -- Decided June 3, 2019

SOLOMON, J., writing for the Court.

       To 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.

        On a 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).

        The 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.

       Defendant 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.

       The 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).

       The Court granted the State’s petition for certification.  236 N.J. 110 (2018).


                                             1
HELD: 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.

1. In 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. (pp. 9-10)

2.  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. 9-12)

3. 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)
                                             2
4. For 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)

5. 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. 17)

       The judgment of the Appellate Division is AFFIRMED AS MODIFIED.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON,
FERNANDEZ-VINA, and TIMPONE join in JUSTICE SOLOMON’S opinion.




                                             3
        SUPREME COURT OF NEW JERSEY
              A-
29 September Term 2018
                         079028


                  State of New Jersey,

                  Plaintiff-Appellant,

                           v.

                      Susan Hyland,

                Defendant-Respondent.

        On certification to the Superior Court,
    Appellate Division, whose opinion is reported at
         452 N.J. Super. 372 (App. Div. 2017).

        Argued                       Decided
     April 24, 2019                June 3, 2019


 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 briefs, and Linda A. Shashoua, Camden County
 Assistant Prosecutor, on the briefs).

 Tamar 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).


JUSTICE SOLOMON delivered the opinion of the Court.




                            1
       To 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, we are called upon to determine 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.

       On a late night in March 2016, defendant Susan Hyland struck and killed

sixteen-year-old Q.T. as he walked across a roadway. 1 Defendant fled the

scene but was ultimately apprehended by the police. While in custody,

defendant confirmed that she was the driver of the vehicle that struck Q.T. and

admitted that she had consumed a half-pint of vodka earlier that day.

       Following a grand jury indictment, a substance abuse evaluation

reported that defendant was clinically eligible for Drug Court. After hearing

oral argument, the trial court concluded, over the State’s objection, that

defendant was also legally eligible for Drug Court under  N.J.S.A. 2C:35-14.

       Defendant pled guilty to second- and third-degree charges, including

knowingly leaving the scene of a fatal motor vehicle accident. The judge

sentenced her to concurrent five-year special probation Drug Court terms. The

State appealed, arguing that the sentencing judge improperly applied N.J.S.A.


1
    The child’s name has been redacted in the record.
                                        2
2C:35-14(a)(9) because defendant’s participation in Drug Court would present

a risk to public safety. The Appellate Division dismissed the State’s appeal,

finding that the Drug Court sentence was not illegal and, therefore, not

appealable.

      We conclude that 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. We therefore affirm as modified the judgment of the

Appellate Division.

                                        I.

                                       A.

      According to an accident report created by the Pennsauken Township

Police Department’s Traffic Safety Unit, on a night in March 2016, defendant,

who was driving an automobile, struck and killed sixteen-year-old Q.T. after

he climbed over the concrete median on Route 130. Defendant fled the scene.

A nearby gas station attendant heard the impact, saw Q.T. lying face-down in

an adjacent parking lot, and called the police.




                                        3
      While police surveyed the scene, defendant’s niece, who was in

defendant’s vehicle when she struck Q.T., called 9-1-1 to report the incident

and identified defendant as the driver. Law enforcement traced the phone call

to an address in Camden and found a vehicle with heavy front, hood, and

windshield damage. Officers located defendant inside the home, where she

admitted her involvement in the hit-and-run. According to the apprehending

officers, defendant exhibited multiple signs of intoxication.

      Police arrested defendant and transported her to police headquarters,

where she confirmed that she was the driver of the vehicle that struck and

killed Q.T. Defendant explained that she fled the scene because her driver’s

license had been “suspended for a long time.” She also admitted that she had

consumed a half-pint of vodka earlier that day.

                                       B.

      A Camden County Grand Jury indicted defendant for second-degree

knowingly leaving the scene of a fatal motor vehicle accident,  N.J.S.A. 2C:11- -

5.1; third-degree causing death while driving with a suspended or revoked

license,  N.J.S.A. 2C:40-22(a); and third-degree endangering an injured victim,

 N.J.S.A. 2C:12-1.2(a). 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.,


                                        4
defendant 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).

      The court ordered defendant to undergo a substance abuse evaluation,

which revealed that defendant suffered from five substance abuse disorders.

The evaluator thus concluded that defendant was clinically eligible for

admission into Drug Court. Following oral argument, the judge determined

over the State’s objection that defendant was legally eligible for a special

probation Drug Court sentence under  N.J.S.A. 2C:35-14. 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 view those facts to

establish that defendant would be a danger to the community if admitted to

Drug Court.

      Defendant pled guilty to all three charges in the indictment, and the State

reserved the right to object to defendant’s admission into Drug Court at

sentencing. During sentencing, the judge merged defendant’s third-degree

endangering-an-injured-victim conviction with her conviction for second-

degree knowingly leaving the scene of a fatal motor vehicle accident.

Analyzing the nine statutory factors required to impose a Drug Court sentence

under  N.J.S.A. 2C:35-14(a), the judge found that defendant was “likely to


                                        5
respond affirmatively to Drug Court probation” and sentenced her to

concurrent five-year special probation Drug Court terms on her convictions.

The State appealed, and the Appellate Division stayed defendant’s sentence

pending review of the appeal.

                                        C.

      Before the Appellate Division, the State argued that the sentencing

court’s error in assessing defendant’s risk to the community under  N.J.S.A.

2C:35-14(a)(9) rendered defendant’s Drug Court sentence illegal and

warranted reversal. Alternatively, the State contended that  N.J.S.A. 2C:44-

1(f)(2) -- which permits the State to appeal non-custodial or probationary

sentences for first- or second-degree offenders -- expressly authorizes its

appeal of defendant’s Drug Court sentence. 2 In response, defendant argued

that because her sentence was not illegal, the Appellate Division lacked

jurisdiction to address the merits of the appeal.

      Highlighting a 2012 amendment to  N.J.S.A. 2C:35-14 that repealed a

provision granting the State the authority to appeal a Drug Court senten ce, the

Appellate Division found “an unequivocal expression of the Legislature’s

intent to deprive the State of statutory authority to appeal special probation



2
  The State now agrees that  N.J.S.A. 2C:35-14 removes the presumption of
incarceration otherwise applicable to a defendant under  N.J.S.A. 2C:44-1(d).
                                        6
Drug Court sentences.” State v. Hyland,  452 N.J. Super. 372, 389 (App. Div.

2017). The Appellate Division also found that defendant’s Drug Court

sentence was not illegal, explaining that “'mere excessiveness of sentence

otherwise within authorized limits, as distinct from illegality by reason of

being beyond or not in accordance with legal authorization,’ does not render a

sentence illegal.” Id. at 381 (quoting State v. Acevedo,  205 N.J. 40, 46

(2011)). Because assessment of statutory factors relates to the term of the

sentence and not its legality, the Appellate Division rejected the State’s

contention that the court’s alleged error in assessing defendant’s danger to the

community under  N.J.S.A. 2C:35-14(a)(9) rendered the sentence illegal. Id. at

382. Finding neither an illegal sentence nor statutory authorization, the

appellate court dismissed the State’s appeal for lack of jurisdiction. Id. at 389.

      The State petitioned this Court for certification, which we granted.  236 N.J. 110 (2018).

                                        II.

      At various times throughout this case, the State has asserted its authority

to appeal based on both express statutory authority and illegality. Before this

Court, however, the State contends only that it has the authority to appeal

defendant’s sentence as illegal.




                                        7
      Additionally, the State argues that the Appellate Division mistakenly

equated the mandatory statutory eligibility criteria set forth in  N.J.S.A. 2C:35-

14(a)(1) to (9) with a court’s assessment of aggravating and mitigating factors

under  N.J.S.A. 2C:44-1. Citing State v. Ancrum,  449 N.J. Super. 526 (App.

Div.), certif. denied,  231 N.J. 222 (2017), the State contends that the Appellate

Division disregarded the fact that if even one of the Drug Court eligibility

criteria is not met, a Drug Court sentence is plainly illegal. In doing so, the

State argues that the Appellate Division “categorically insulated” Drug Court

sentences -- even those predicated on an abuse of discretion -- from any

appellate review, “rais[ing] serious concerns about uniformity in sentencing.”

      Defendant urges the Court to uphold her sentence on the ground that it is

legal and therefore not reviewable. She claims that because the Legislature

explicitly decided to both insulate Drug Court sentences from appeals by the

State and eliminate the prosecutor’s veto, a finding to the contrary would

undermine clear legislative intent and eviscerate the Judiciary’s independent

ability to sentence a defendant to Drug Court. Defendant also claims that the

State’s argument conflates review for an abuse of discretion with a pure issue

of law -- the illegality of a sentence. According to defendant, the State’s

ability to appeal whenever it is dissatisfied with judicial fact-finding at




                                         8
sentencing “would wreak havoc on our sentencing system [and] upend decades

of this Court’s jurisprudence.”

                                       III.

                                       A.

      Because the appealability of a sentence is a question of law, our review

is de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan,  140 N.J.
 366, 378 (1995); accord Ancrum,  449 N.J. Super. at 531. Our analysis

requires that we apply the law, as we understand it, and afford no special

deference to the trial court’s interpretation of the law or the legal consequences

that flow from established facts. State v. Miles,  229 N.J. 83, 90 (2017).

      We begin our de novo review by acknowledging that the State’s right to

appeal in a criminal proceeding is limited. See R. 2:3-1(b) (delineating six

circumstances in which the State may lodge an 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




                                        9
time . . . correcting a sentence not authorized by law including the Code of

Criminal Justice.”).

                                        B.

      Ascertaining whether the State has the statutory authority to appeal

special probation Drug Court sentences requires a brief analysis of  N.J.S.A.

2C:35-14 and its pertinent legislative history.  N.J.S.A. 2C:35-14 was enacted

in 1987 as part of the Comprehensive Drug Reform Act of 1987, L. 1987, c.

106, § 1, “to craft a new disposition alternative that allowed a court to divert

prison-bound defendants into an intensively monitored and long-term program

of rehabilitation,” State v. Meyer,  192 N.J. 421, 434 (2007). Consistent with

that purpose, the statute permits alternatives to imprisonment -- namely, the

imposition of special probation Drug Court sentences 3 -- for offenders “subject

to a presumption of incarceration or a mandatory minimum period of parole

ineligibility.”  N.J.S.A. 2C:35-14(a); see Meyer,  192 N.J. at 431-32. 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




3
  Defendant was admitted to Drug Court through the court’s imposition of a
sentence of special probation -- one of the two tracks for admission to Drug
Court. See Meyer,  192 N.J. at 431-32; State v. Bishop,  429 N.J. Super. 533,
540 (App. Div. 2013).
                                        10
for a term of five years. See generally  N.J.S.A. 2C:35-14. The statute,

however, has not been without significant revision.

      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. L. 1999, c. 376, § 2. In addition, the

amended statute permitted the prosecutor to “veto” a defendant’s admission to

Drug Court, thereby rendering the defendant ineligible for special probation.

See  N.J.S.A. 2C:35-14(c) (1999). Absent a “gross and patent abuse of [the

prosecutor’s] discretion” in exercising his veto power, the court could not

override that objection.  N.J.S.A. 2C:35-14(c) (1999). If the court found a

“gross and patent abuse of [the prosecutor’s] discretion” and sentenced a

defendant to special probation Drug Court over the State’s objection, the

statute expressly authorized the State to appeal. Ibid.

      In 2012, in an effort “to permit additional offenders who may benefit

from the [Drug Court] program to be diverted into the program instead of

being sentenced to a term of incarceration,” S. Budget & Appropriations

Comm. Statement to S. 881 1 (L. 2012, c. 23), the Legislature amended

 N.J.S.A. 2C:35-14 by removing subsection (c), thereby eliminating both the

prosecutorial veto and the State’s right to appeal Drug Court sentences, L.

2012, c. 23; compare  N.J.S.A. 2C:35-14, with  N.J.S.A. 2C:35-14(c) (2011). In


                                       11
doing so, the Legislature gave courts “greater discretion to place the person on

special probation, even if one or more of the enumerated discretionary factors

was not met by a particular defendant.” S. Budget & Appropriations Comm.

Statement to S. 881 1-2 (L. 2012, c. 23); see State v. Maurer,  438 N.J. Super.
 402, 414 (App. Div. 2014) (describing the 2012 amendment as reflecting “the

Legislature’s clear intention to broaden Drug Court access”).

      As a result, we agree with defendant -- and the State no longer disputes

-- that the repeal of  N.J.S.A. 2C:35-14(c) evinces a legislative intent to divest

the State of its statutory authority to appeal special probation Drug Court

sentences. Thus, the State has the right to appeal a special probation Drug

Court sentence only if it is illegal.

                                        C.

      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. State v. Schubert,  212 N.J. 295, 308 (2012). Those two categories of

illegal sentences have been “defined narrowly.” State v. Murray,  162 N.J. 240,

246 (2000). For example, while a sentence may be illegal if “it fails to satisfy

required presentencing conditions,” id. at 247, it is not illegal if the sentencing

judge fails to state the reasons for imposition of a sentence on the record as is

required by case law, but otherwise imposes an authorized sentence, Acevedo,


                                        12
 205 N.J. at 47. 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.

      Nevertheless, deciding whether defendant’s Drug Court sentence is

authorized by law necessarily requires an analysis of the Drug Court eligibility

criteria set forth in  N.J.S.A. 2C:35-14. In addition to other requirements, 4 the

court must find the following nine criteria on the record before a defendant

may be sentenced to special probation:

            (1) the person has undergone a professional diagnostic
            assessment to determine whether and to what extent the
            person is drug or alcohol dependent and would benefit
            from treatment; and

            (2) the person is a drug or alcohol dependent person
            within the meaning of  N.J.S.A. 2C:35-2 and was drug
            or alcohol dependent at the time of the commission of
            the present offense; and

            (3) the present offense was committed while the person
            was under the influence of a controlled dangerous
            substance, controlled substance analog or alcohol or
            was committed to acquire property or monies in order
            to support the person’s drug or alcohol dependency; and



4
  The court must also determine that a defendant was neither convicted of nor
adjudicated delinquent for the four categories of offenses enumerated in
 N.J.S.A. 2C:35-14(b). The parties do not dispute that defendant is not
precluded from Drug Court admission under  N.J.S.A. 2C:35-14(b).
                                        13
(4) substance use disorders treatment and monitoring
will serve to benefit the person by addressing the
person’s drug or alcohol dependency and will thereby
reduce the likelihood that the person will thereafter
commit another offense; and

(5) the person did not possess a firearm at the time of
the present offense and did not possess a firearm at the
time of any pending criminal charge; and

(6) the person has not been previously convicted on two
or more separate occasions of crimes of the first or
second degree, other than those listed in paragraph (7);
or the person has not been previously convicted on two
or more separate occasions, where one of the offenses
is a crime of the third degree, other than crimes defined
in  N.J.S.A. 2C:35-10, and one of the offenses is a crime
of the first or second degree; and

(7) the person has not been previously convicted or
adjudicated delinquent for, and does not have a pending
charge of murder, aggravated manslaughter,
manslaughter,    kidnapping,     aggravated      assault,
aggravated sexual assault or sexual assault, or a similar
crime under the laws of any other state or the United
States; and

(8) a suitable treatment facility licensed and approved
by the Division of Mental Health and Addiction
Services in the Department of Human Services is able
and has agreed to provide appropriate treatment
services in accordance with the requirements of this
section; and

(9) no danger to the community will result from the
person being placed on special probation pursuant to
this section.

[N.J.S.A. 2C:35-14(a).]


                           14
      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. See  N.J.S.A. 2C:35-14(a)(4), (9). Even if the court

abused its discretion “by making a clear error in judgment,” State v. S.N.,  231 N.J. 497, 500 (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 on the basis of the court’s application of  N.J.S.A. 2C:35-14(a)(9). 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.




                                       15
                                        D.

      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,

 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.” Acevedo,  205 N.J. at 45 (quoting Murray,  162 N.J. at
 247). 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.




                                        16
                                      IV.

      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.




    CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,
PATTERSON, FERNANDEZ-VINA, and TIMPONE join in JUSTICE
SOLOMON’S opinion.




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