State v. Abram

• Decision Date: 15 January 2008
• Docket Number: No. 2007-036.,2007-036.
• Citation: 156 N.H. 646,941 A.2d 576
• Court: New Hampshire Supreme Court
• Parties: The STATE of New Hampshire v. Scott ABRAM.

156 N.H. 646

941 A.2d 576

The STATE of New Hampshire

v.Scott ABRAM.

No. 2007-036.

Supreme Court of New Hampshire.

Argued: Nov. 8, 2007.

Opinion Issued: Jan. 15, 2008.

Kelly A. Ayotte, attorney general (Ann M. Rice, associate attorney general, on the brief and orally), for the State.

Paul J. Garrity, of Londonderry, on the brief and orally, for the defendant.

DUGGAN, J.

The defendant, Scott Abram, appeals the sentence imposed by the Trial Court (McGuire, J.) upon remand from our decision in State v. Abram, 153 N.H. 619, 903 A.2d 1042 (2006). We vacate and remand.

The relevant facts are not in dispute. In 2004, the defendant was convicted by a jury of twenty-one counts of aggravated felonious sexual assault, RSA 632-A:2 (2007), four counts of endangering the welfare of a child, RSA 639:3 (2007), and one count of indecent exposure and lewdness, RSA 645:1 (2007).

On June 25, 2004, the trial court sentenced the defendant to an aggregate fifty to one hundred years in the state prison. This cumulative sentence consisted of: (1) concurrent ten to twenty-year terms for three convictions (indictment nos. 03-S-149 through 03-S-151), which were to run consecutive to; (2) concurrent ten to twenty-year terms for three convictions (indictment nos. 03-S-1079, 04-S-322 and 04-S-323), which were to run consecutive to; (3) concurrent ten to twenty-year terms for three convictions (indictment nos. 03-S-143, 03-S-144 and 03-S-146), which were to run consecutive to; (4) concurrent ten to twenty-year terms for three convictions (indictment nos. 03-S-140 through 03-S-142), which were to run consecutive to; (5) concurrent ten to twenty-year terms for nine convictions (indictment nos. 03-S-135 through 03-S-137 and 03-S-1070 through 03-S-1075). For the remaining convictions, the defendant was sentenced as follows: (1) concurrent three-and-a-half to seven-year terms for indictments numbered 03-S-1080, 03-S-1081, 03-S-1082 and 04-S-324, to be served concurrently with the sentences imposed for indictments 03-S-135 through 03-S-137; and (2) twelve months for indictment number 03-S-1076, also to be served concurrently with the sentences imposed for indictments 03-S-135 through 03-S-137.

Following sentencing, the defendant appealed his convictions to this court, arguing that the charges against him should have been severed under State v. Ramos, 149 N.H. 118, 818 A.2d 1228 (2003), because they arose from three "unrelated" courses of conduct. Abram, 153 N.H. at 623, 903 A.2d 1042. We agreed with the defendant that the trial court had improperly joined several of the charges, and consequently reversed the convictions on nine indictments:

nos. 03-S-140, 03-S-141, 03-S-142, 03-S-149, 03-S-150, 03-S-151, 03-S-1070, 03-S-1074 and 03-S-1075. Id. at 630, 903 A.2d 1042. However, we upheld the remainder of the defendant's convictions. Id. at 626, 903 A.2d 1042. Accordingly, our mandate stated that the case was "[a]ffirmed in part; reversed in part; and remanded." Id. at 633, 903 A.2d 1042.

Our reversal of nine of the twenty-one convictions caused a break in the sequences of sentences imposed by the trial court. Specifically, because all of the convictions underlying one of the ten to twenty-year sentences (indictment nos. 03-S-140 through 03-S-142) had been reversed, another ten to twenty-year sentence (indictment nos. 03-S-143, 03-S-144 and 03-S-146) was consecutive to a non-existent term. In addition, all of the convictions underlying another of the ten to twenty-year sentences (indictment nos. 03-S-149 through 03-S-151) were reversed. Both parties therefore agreed, upon remand, that some resentencing was required to alleviate this defect.

The State, however, requested that the trial court go further and restructure its sentence on the affirmed charges so that the defendant would "remain imprisoned for the same period of time as originally sentenced, a minimum of [fifty] years." The defendant argued, in contrast, that the trial court could amend the sentence solely to remedy the gap in sentencing noted above, but was not otherwise permitted to resentence him on the affirmed convictions. If the court had amended the sentence as the defendant requested, the resulting term of incarceration would have been thirty to sixty years.

On December 18, 2006, the trial court effectively reinstated its original fifty to one hundred-year sentence. It did so by dividing the convictions tied to one ten to twenty-year term (indictment nos. 03-S-135, 03-S-136, 03-S-137, 03-S-1071, 03-S-1072 and 03-S-1073) into two ten to twenty-year terms and making those terms consecutive, and dividing the convictions tied to another ten to twenty-year term (indictment nos. 03-S-143, 03-S-144 and 03-S-146) into two ten to twenty-year terms and making those terms consecutive. In support of its decision to impose the same period of incarceration as was imposed prior to the defendant's successful appeal, the trial court stated as follows:

[T]his abuse had been ongoing for two years. The acts that occurred that were reversed, those convictions occurred within two months of all of the other convictions, so that it would not have mattered in my sentencing. My view is the same, that [the defendant] is [a] very dangerous person, that he committed heinous acts against these children over a long period of time, and that he's very dangerous to the community regardless of those other nonconvictions [sic ]. So for those reasons I want him to spend the same amount of time in prison.

On appeal, the defendant argues that the court erred for two reasons: First, he contends that the trial court, in resentencing him on the affirmed convictions, went beyond the scope of the mandate in Abram. Second, he argues that the trial court's conduct infringed upon his due process rights under both Part I, Article 15 of the New Hampshire Constitution, and the Fifth and Fourteenth Amendments to the United States Constitution. We address each argument in turn.

I. Scope of the Mandate

The defendant contends that, because Abram did not address any issues concerning his sentence, the trial court was without authority to restructure his sentence on the affirmed charges upon remand. Instead, the defendant asserts our mandate limited the trial court's authority to ordering a retrial on the charges reversed in Abram. We disagree.

As a general proposition, a trial court is bound by the mandate of an appellate court on remand. Johnson v. Johnson, 53 Mass.App.Ct. 416, 759 N.E.2d 741, 744 (2001) ; 5 C.J.S. Appeal and Error § 1137 (2007) ; see also In re Sanford Fork & Tool Co., 160 U.S. 247, 255, 16 S.Ct. 291, 40 L.Ed. 414 (1895). After all, the " ‘mandate’ is the official notice of action of the appellate court, directed to the court below, ... and directing the lower court to have the appellate court's judgment duly recognized, obeyed, and executed." 5 Am.Jur.2d Appellate Review § 725 (2007). It follows a fortiori that a trial court is barred from "act[ing] beyond the scope of the mandate," In re Marriage of Ludwinski, 329 Ill.App.3d 1149, 264 Ill.Dec. 257, 769 N.E.2d 1094, 1098 (2002), or "vary[ing] it, or judicially examin[ing] it for any other purpose than execution," Wal-Mart Stores v. Regions Bank Trust Dept., 356 Ark. 494, 156 S.W.3d 249, 252 (2004) (quotation omitted); see also 5 C.J.S. supra § 1129.

However, in ascertaining what the mandate commands, the "[trial] court need not read the mandate in a vacuum, but rather has the opinion of the appellate court to aid it.... In this way, the [trial] court may examine the rationale of an appellate opinion in order to discern the meaning of language in the court's mandate." 5 Am.Jur.2d supra § 731. Indeed, it is necessary that "[p]roceedings in the trial court on remand ... [are] in accordance with both the mandate of the appellate court and the result contemplated in the appellate opinion." Id. ; see Scarborough v. R.T.P. Enterprises, Inc., 120 N.H. 707, 709, 422 A.2d 1304 (1980) ; Frost v. Liberty Mut. Ins. Co., 813 S.W.2d 302, 304-05 (Mo.1991) (en banc ).

For that reason, the issue presented is more properly framed as whether our opinion in Abram, read in toto, divested the trial court of authority to resentence the defendant on the affirmed charges. We do not believe that it did. Abram reversed the enumerated convictions and affirmed the remaining ones. Abram, 153 N.H. at 629-30, 633, 903 A.2d 1042. Neither the opinion nor the mandate addressed the issue of sentencing.

In arguing that the trial court was nevertheless in error because resentencing "was simply not authorized by the mandate," the defendant fails to appreciate the breadth of the trial court's discretion. Generally, a trial court is free upon remand to "take such action as law and justice may require under the circumstances as long as it is not inconsistent with the mandate and judgment of the appellate court." 5 C.J.S. supra § 1136. We therefore reject the defendant's implicit argument that trial courts are only permitted to engage in acts expressly authorized by the mandate. "Flexibility is necessary for trial courts, when reviewing decisions on remand, as appellate judgments are not self-executing." Id. § 1130. Thus, because our opinion in Abram neither expressly nor implicitly barred the trial court from re-sentencing the defendant on the affirmed charges, we reject the defendant's argument that the trial court went beyond the scope of the mandate.

II. Due Process

The defendant argues next that, in resentencing on the affirmed charges, the trial court violated his due process rights under Part I, Article 15 of the New Hampshire Constitution, and the Fifth and Fourteenth Amendments to the United States Constitution, in two distinct ways. First, he contends that the trial court's second sentence is effectively more severe than the first and, thus, is presumptively vindictive. See State v. Goding, 128 N.H. 267, 271, 513 A.2d 325 (1986). Second, he asserts that the trial court failed to warn him, at the initial...