Breest v. Helgemoe, 7498

Decision Date31 January 1977
Docket NumberNo. 7498,7498
Citation369 A.2d 612,117 N.H. 40
PartiesRobert BREEST v. Raymond A. HELGEMOE, Warden, New Hampshire State Prison.
CourtNew Hampshire Supreme Court

Robert Breest, pro se.

David H. Souter, Atty. Gen. and James L. Kruse, Asst. Atty. Gen. by brief, for defendant.

KENISON, Chief Justice.

This is a petition for habeas corpus filed in the Merrimack County Superior Court. Keller, C.J., transferred the petition for consideration by this court. Robert Breest was convicted of first degree murder in March 1973 and was sentenced to life imprisonment. On April 5, 1973, the court certified the killing as psychosexual in nature RSA 607:41-b, -c (Supp.1972) now RSA 651:45-b, -c; see State v. Breest, N.H., 367 A.2d 1320, decided December 17, 1976. The plaintiff alleges that certain changes made by the legislature in 1975 in the parole eligibility laws have operated to his detriment and violate the federal constitutional prohibitions against ex post facto laws and bills of attainder. U.S.Const. art. 1, § 9.

Senate bill 163 (Laws 1975, 244:1), entitled 'Uniformity of Parole Eligibility Requirements' states in pertinent part:

'Except for prisoners serving sentences governed by RSA 651:45-a and 45-b, for the purpose of determining eligibility for release on parole only, the minimum term of a prisoner who has been sentenced prior to the effective date of this code shall be deemed to be either the longest minimum sentence which could have been imposed for a class A felony under RSA 651:2, II, or his actual minimum sentence, whichever is shorter.'

This provision was to have become effective on September 2, 1975, but on June 26, 1975, the legislature passed and the Governor approved Senate bill 352 (Laws 1975, 506:1) which amended Senate bill 163 (Laws 1975, 244:1) as follows:

'506:1 Uniformity of Parole Eligibility Requirements. Amend RSA 651:45, III as inserted by 1973, 370:37, as amended by 1975, 244:1, by striking out said paragraph and inserting in place thereof the following:

'III. The release of prisoners sentenced to the state prison in accordance with sentencing provisions of law in effect prior to the effective date of this code shall be governed by the law in effect immediately prior to said effective date. However, except for prisoners serving sentences pursuant to conviction of murder in violation of RSA 585:1, murder which is psychosexual in nature as defined in RSA 607:41-d, and manslaughter in the first degree in violation of RSA 585:8, and for the purpose of determining eligibility for release on parole only, the minimum term of a prisoner who has been sentenced in accordance with sentencing provisions in effect prior to the effective date of this code shall be deemed to be either the longest minimum sentence which could have been imposed for a class A felony under RSA 651:2, II, or his actual minimum sentence, whichever is shorter.'

This law, instead of Senate bill 163, became effective on September 2, 1975.

Senate bill 163 lessened the severity of parole eligibility standards for pre-code convicts except those whose sentences are governed by RSA 651:45-a and : 45-b, the code provisions relating to eligibility of parole for persons convicted of psychosexual murder. The plaintiff believes that he stood to benefit from this bill because he is a pre-code convict who is not 'serving sentence governed by RSA 651:45-a and 45-b.' His sentence is governed by RSA 607:45-a and :45-b-the substantially identical predecessors of RSA 651:45-a and :45-b. It is true that Senate bill 352 takes away whatever benefit might...

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8 cases
  • Breest v. Perrin
    • United States
    • U.S. District Court — District of New Hampshire
    • 22 Agosto 1980
    ...as their attempts at habeas corpus relief on both state and federal levels have met with an equal lack of success. See Breest v. Helgemoe, 117 N.H. 40, 369 A.2d 612 (1977) (re parole eligibility); Breest v. Helgemoe, 579 F.2d 95 (1st Cir.), cert. denied, 439 U.S. 933, 99 S.Ct. 327, 58 L.Ed.......
  • State v. Breest
    • United States
    • New Hampshire Supreme Court
    • 17 Febrero 2017
    ...416, 387 A.2d 643 (1978), cert. denied, Breest v. New Hampshire, 442 U.S. 931, 99 S.Ct. 2864, 61 L.Ed.2d 300 (1979) ; Breest v. Helgemoe, 117 N.H. 40, 369 A.2d 612 (1977).2 The State initially moved to dismiss the defendant's request for a new trial, arguing that he was not entitled to such......
  • Piper v. Perrin
    • United States
    • U.S. District Court — District of New Hampshire
    • 16 Febrero 1983
    ...meant minimum sentence, not time served. See Nichols v. Helgemoe, 117 N.H. 57, 61-62, 369 A.2d 614, 617-18 (1977); Breest v. Helgemoe, 117 N.H. 40, 369 A.2d 612 (1977). Any New Hampshire Supreme Court decision to the contrary would be sufficiently unforeseeable as to prohibit its retroactiv......
  • Breest v. Perrin, Civ. No. 79-206-D.
    • United States
    • U.S. District Court — District of New Hampshire
    • 1 Noviembre 1979
    ...corpus must be, and they hereby are, denied. SO ORDERED. 1 Subsequent attempts at habeas corpus relief on both state (Breest v. Helgemoe, 117 N.H. 40, 369 A.2d 612 1977) and federal (Breest v. Helgemoe, 579 F.2d 95 1st Cir. 1978) levels met with equal lack of 2 The motion for new trial was ......
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