STATE OF NEW JERSEY v. BERNARD HUGHIE, a/k/a ISAIAH GIBBONS, and ISSAI GIBBONS

 SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2200-21
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
BERNARD HUGHIE, a/k/a
ISAIAH GIBBONS, and ISSAI
GIBBONS,
Defendant-Respondent.
__________________________
Argued September 27, 2023 – Decided November 27, 2023
Before Judges Gooden Brown and Puglisi.
On appeal from the Superior Court of New Jersey, Law
Division, Monmouth County, Indictment No. 19-01-
0146.
Alecia N. Woodard, Assistant Prosecutor, argued the
cause for appellant (Raymond S. Santiago, Monmouth
County Prosecutor, attorney; Alecia N. Woodard, of
counsel and on the brief).
Zachary G. Markarian, Assistant Deputy Public
Defender, argued the cause for respondent (Joseph E.
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
2 A-2200-21
Krakora, Public Defender, attorney; Elizabeth C. Jarit,
Deputy Public Defender, of counsel and on the brief).

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
PER CURIAM
The State appeals from the February 23, 2022, Law Division order
granting defendant's motion for admission to Recovery Court, notwithstanding
the State's legal rejection, and thereafter sentencing defendant to Recovery
Court Probation under Track Two for a term of five years by way of a March
23, 2022, judgment of conviction (JOC).1 The State argues that because
defendant was facing discretionary extended term sentencing as a persistent
offender under N.J.S.A. 2C:44-3(a), a presumption of imprisonment applied,
rendering defendant ineligible for sentencing as a Track Two applicant and
resulting in the imposition of an illegal sentence. We hold that defendant's
sentence is not illegal and "[b]ecause the State has no authority to appeal from
a legal third-degree sentence, we dismiss the appeal." State v. Thomas, 459 N.J.
Super. 426, 430 (App. Div. 2019).
1 Effective January 1, 2022, the Drug Court Program was renamed the New
Jersey Recovery Court Program to better reflect the primary goal of the program.
Admin. Off. of the Cts., Notice: Drug Court Name Change to New Jersey
Recovery Court (December 28, 2021). For clarity, throughout this opinion, we
refer only to Recovery Court despite various references to Drug Court in the
record.
3 A-2200-21
In January 2019, defendant was indicted on one count of third-degree theft
by deception, N.J.S.A. 2C:20-4, and convicted following a jury trial. The
conviction stemmed from evidence that in July 2018, defendant duped a
vulnerable resident of a residential healthcare facility into giving him rent
totaling $5,380 withdrawn from the resident's bank account. Prior to sentencing,
the State filed a motion for an extended term, asserting that defendant qualified
as a persistent offender pursuant to N.J.S.A. 2C:44-3(a). While the State's
motion was pending, defendant submitted an application to Recovery Court,
which the State opposed on the ground that it was seeking an extended term
sentence that would render defendant ineligible under Track Two and defendant
was not legally eligible as a Track One applicant.
In an order entered on March 26, 2021, the trial judge granted the State's
motion. In an oral opinion, the judge found that defendant qualified as a
persistent offender under N.J.S.A. 2C:44-3(a) based on his "criminal history
dating back to 1996." Specifically, the judge stated:
[Defendant's] list of convictions are as follows.
On January [10], 1996, defendant pled guilty to the
second[-]degree crime of aggravated assault and was
ultimately sentenced on a violation of probation to
seven years New Jersey State Prison on February [27],
1998[,] to run concurrent to his Passaic County robbery
conviction.
4 A-2200-21
On December [8], 1997[,] in Passaic County,
defendant pled guilty to the second[-]degree crime of
robbery and was subsequently sentenced to seven years
in New Jersey State Prison on February [13], 1998.
Again, these matters ran concurrent to each other.
On March [28], 2005, defendant pled guilty to
[thirteen] counts of the . . . crime of burglary,
third[-]degree offenses, and one count of third[-]degree
criminal attempted burglary. On July [8], 2005,
defendant was sentenced to a five-year term of
incarceration with an [eighteen]-month period of parole
ineligibility.
On August [27], 2012, defendant pled guilty to a
third[-]degree crime of burglary and a third[-]degree
crime of receiving stolen property and was
subsequently sentenced to three years in prison
on . . . those two offenses. He had two
different . . . crime dates, but sentenced on the same
day to three years in state prison on October [19], 2012.
At the time of the commission of . . . this crime,
defendant was [twenty-one] years of age or older, had
been previously convicted on at least two separate
occasions of two crimes, committed at different times
when he was at least [eighteen] years of age. . . .[2]
Further, because of the date of defendant's last
release from confinement, it's within ten years of the
date of the crime for which defendant is being
sentenced. All of the requirements of [N.J.S.A. 2C:44-
3(a)] have been met.
2 Defendant was then fifty-five years old.
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Although the judge granted the State's motion, he made no determination
on whether defendant would be sentenced in the extended term range because
defendant's Recovery Court appeal was still pending. In fact, the judge noted
he could grant the State's motion for extended term sentencing "and then not
apply it" depending on the court's evaluation of the aggravating and mitigating
factors. The judge stressed the determination that defendant "[met] the statutory
requirements" did not mean that defendant had to be sentenced in the extended
term range. "It also [did] not mean that . . . defendant would not get [into
Recovery Court]."
On February 23, 2022, the Recovery Court judge granted defendant's
motion to be admitted to Recovery Court notwithstanding the State's legal
rejection. See State v. Figaro, 462 N.J. Super. 564, 577 (App. Div. 2020) ("A
drug court prosecutor can recommend a legal rejection based on N.J.S.A. 2C:35-
14 and whether the applicant is a potential danger to the community." (emphasis
omitted) (quoting Admin. Off. of the Cts., Admin. Directive #2-02, Manual for
Operation of Adult Drug Courts in New Jersey (July 22, 2002))). On March 17,
2022, over the State's objection, the judge sentenced defendant to Recovery
Court Probation under Track Two for five years. The judge found aggravating
factors three, six, and nine based on defendant's high risk of re-offense,
6 A-2200-21
extensive prior criminal record, and need for deterrence, and mitigating factor
ten based on defendant's likelihood to respond affirmatively to probationary
treatment. See N.J.S.A. 2C:44-1(a)(3), (6), (9), (b)(10). A conforming JOC was
entered on March 23, 2022, and this appeal followed.
On appeal, the State raises the following single point for our
consideration:
THE TRIAL COURT WAS IN ERROR IN FINDING
THAT DEFENDANT IS A TRACK TWO DRUG
APPLICANT.
"Because the appealability of a sentence is a question of law, our review
is de novo." State v. Hyland, 238 N.J. 135, 143 (2019) (citing Manalapan
Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)). It is well
settled that "the State's right to appeal in a criminal proceeding is limited." Ibid.;
see R. 2:3-1(b) (delineating six circumstances in which the State may lodge an
appeal). "In the context of sentencing," the State "may appeal where there is
'express statutory authority' to do so," Hyland, 238 N.J. at 143 (quoting State v.
Roth, 95 N.J. 334, 343 (1984)), or "if the sentence imposed is illegal ," ibid.
(citing State v. Ciancaglini, 204 N.J. 597, 605 (2011)); see also 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 Justice.").
7 A-2200-21
The issue here is whether the sentence imposed is illegal, thereby allowing
the State's appeal.
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, [State v. Acevedo, 205 N.J. 40,
47 (2011)]. 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, 238 N.J. at 145-146.]
The sentence at issue falls under the purview of Recovery Court. By way
of background, "there are two separate and distinct 'tracks' for admission to
[Recovery] Court." State v. Harris, 466 N.J. Super. 502, 523 (2021) (quoting
Figaro, 462 N.J. Super. at 566). "Track One is available to those eligible for
special probation pursuant to N.J.S.A. 2C:35-14(a), and who otherwise satisfy
the statutory criteria." Figaro, 462 N.J. Super. at 566. To satisfy the statutory
criteria, offenders must be "ineligible for probation due to a conviction for a
8 A-2200-21
crime which is subject to a presumption of incarceration or a mandatory
minimum period of parole ineligibility" and cannot have been previously
convicted of certain disqualifying offenses. Id. at 572 (quoting N.J.S.A. 2C:35-
14(a)).
"Track Two 'permits applicants to be admitted into [Recovery] Court
"under the general sentencing provisions of the Code of Criminal Justice."'" Id.
at 566 (quoting State v. Clarke, 203 N.J. 166, 175 (2010)). Specifically, those
defendants may be admitted "pursuant to the statutory authority of the court to
impose a probationary sentence under N.J.S.A. 2C:45-1." Harris, 466 N.J.
Super. at 525. "N.J.S.A. 2C:45-1 is sometimes referred to as 'regular' probation
as distinct from 'special probation' authorized by N.J.S.A. 2C:35-14." Ibid.
"Eligibility for entry into [Recovery] Court via Track Two thus does not hinge
on satisfying the nine specified prerequisites for special probation enumerated
in N.J.S.A. 2C:35-14." Ibid.
Defendant is ineligible for Recovery Court under Track One, having been
previously convicted of a disqualifying crime—second-degree aggravated
assault. See N.J.S.A. 2C:35-14(a)(7) (making ineligible for Recovery Court an
offender "previously convicted . . . for . . . murder, aggravated manslaughter,
manslaughter, kidnapping, aggravated assault, aggravated sexual assault or
9 A-2200-21
sexual assault"). The State asserts defendant is also ineligible for sentencing
under Track Two and that his sentence is thereby illegal because defendant "was
facing a presumption of imprisonment as a result of an extended term" and was
therefore not eligible for regular probation under N.J.S.A. 2C:45-1. However,
a person's mere eligibility for a discretionary extended term sentence on a third-
degree offense does not trigger the presumption of imprisonment to render an
offender ineligible for regular probation under Track Two.
So long as the Code authorizes the imposition of a probationary sentence,
a judge may sentence an offender to Recovery Court under Track Two pursuant
to N.J.S.A. 2C:45-1. State v. Meyer, 192 N.J. 421, 433 (2007).
The [Penal Code] gives a court various options in
sentencing an offender, which include the imposition of
a term of imprisonment or probation. See N.J.S.A.
2C:43-2. If an offender has been convicted of a first-
or second-degree crime, he is subject to a presumption
of incarceration, which may only be overcome if the
court "is of the opinion that . . . imprisonment would be
a serious injustice which overrides the need to deter
such conduct by others." N.J.S.A. [2C:44-1(d)].
Conversely, if a first-time offender is convicted of a
crime other than one of the first or second degree, he is
subject to a presumption of non-incarceration. N.J.S.A.
[2C:44-1(e)]. If, as in this case, a defendant is
convicted of third- and fourth-degree crimes, but has a
prior record, he is not subject to either presumption.
See State v. Pineda, 119 N.J. 621, 622-23 (1990).
When that occurs, the sentencing court "must weigh the
aggravating and mitigating factors" enumerated in
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N.J.S.A. [2C:44-1(a) and (b)] "to determine whether a
probationary or custodial sentence is appropriate."
State v. Baylass, 114 N.J. 169, 173 (1989).
[Meyer, 192 N.J. at 433 n.5.]
"A defendant is not subject to the presumption of imprisonment because
he or she was previously convicted of a first or second-degree crime." Harris,
466 N.J. Super. at 534-35 (emphasis omitted). "[T]he Legislature knew how to
use prior convictions as a trigger for the presumption but did so only with respect
to repeat automobile theft offenders." Id. at 535.
We recognize that as a practical matter, a defendant's
prior convictions or past incarceration in state prison
may make it unlikely that a court in the exercise of its
discretion would sentence him to probation after
applying the pertinent aggravating and mitigating
factors . . . . We emphasize, however, that it would put
the cart before the horse to suggest that the practical
likelihood of a prison sentence triggers the presumption
of imprisonment defined in N.J.S.A. 2C:44-1(d) and
incorporated by reference in N.J.S.A. 2C:35-14(a).
[Id. at 535-536.]
N.J.S.A. 2C:44-1(d) applies the presumption of incarceration based upon
the degree of the crime for which the defendant stands convicted. Indeed, "[t]he
plain language" of the provision indicates that the presumption "is to be
determined not by the sentence imposed but by the offense for which a defendant
is convicted." State v. O'Connor, 105 N.J. 399, 404-05 (1987); see State v.
11 A-2200-21
Evers, 175 N.J. 355, 388 (2003) (quoting O'Connor, 105 N.J. at 404-05). That
said, contrary to the State's contention, the mere prospect of a discretionary
extended term sentence based on the offender's eligibility does not trigger the
presumption of imprisonment. No provision in the Code dictates such a result.
Instead, it is the degree of the underlying offense, rather than the alteration t o
the sentencing range, that controls whether the presumption of imprisonment
attaches.
In fact,
the range of sentences, available for imposition, starts
at the minimum of the ordinary-term range and ends at
the maximum of the extended-term range. By
recognizing that the top of the extended-term range is
the "top" applicable to a persistent offender, we do not
make mandatory a defendant's sentencing within the
enhanced range. Rather, we merely acknowledge that
the permissible range has expanded so that it reaches
from the bottom of the original-term range to the top of
the extended-term range. Where, within that range of
sentences, the court chooses to sentence a defendant
remains in the sound judgment of the court—subject to
reasonableness and the existence of credible evidence
in the record to support the court's finding of
aggravating and mitigating factors and the court's
weighing and balancing of those factors found.
[State v. Pierce, 188 N.J. 155, 169 (2006).]
It is undisputed that defendant was convicted of a third-degree offense and
his eligibility for extended term sentencing does not alter that fact. It merely
12 A-2200-21
signifies that his permissible sentencing range is from three to ten years'
imprisonment. See N.J.S.A. 2C:43-6(a)(3), -7(a)(4). Although his prior
criminal record makes him ineligible for the presumption of non-incarceration,
it does not make him subject to the presumption of incarceration. Instead, he is
subject to neither presumption. Nonetheless, subject to the weighing of the
aggravating and mitigating factors, the Code authorizes the imposition of a
probationary sentence on a third-degree conviction, as occurred here. See
N.J.S.A. 2C:45-1, :43-2(b)(2). "In general terms, a regular probationary
sentence is typically imposed for third- or fourth-degree offenses, which do not
contain a specific provision requiring a state prison sentence." State v. Maurer,
438 N.J. Super. 402, 411 (App. Div. 2014). Defendant's enhanced sentencing
range permitted a state prison sentence, it did not require it. Because the
sentence to Recovery Court Probation under Track Two is an authorized
disposition under the Code, it is not an illegal sentence. Thus, "we have no
jurisdiction to consider the State's appeal of defendant's . . . [Recovery] Court
sentence." Hyland, 238 N.J. at 148.
The appeal is dismissed.