State v. Aubert

• Decision Date: 30 October 1978
• Docket Number: No. 78-189,78-189
• Citation: 393 A.2d 567,118 N.H. 739
• Parties: The STATE of New Hampshire v. Ronald AUBERT.
• Court: New Hampshire Supreme Court

Page 567

393 A.2d 567

118 N.H. 739

The STATE of New Hampshire v.Ronald AUBERT.

No. 78-189.

Supreme Court of New Hampshire.

Oct. 30, 1978.

Thomas D. Rath, Atty. Gen. (Peter W. Heed, Asst. Atty. Gen. by brief and orally), for the State.

Cathy J. Green, Manchester, by brief and orally, for defendant.GRIMES, Justice.

The issue in this violation of probation proceeding is whether the trial justice who heard the matter was disqualified by reason of having presided when the defendant entered a plea of guilty, which was later withdrawn, and because of certain statements made by the justice during the proceeding.We hold that on the facts of this case there was no disqualification.

Defendant pleaded guilty in 1976 to selling a controlled drug, and was sentenced to twelve months in the house of correction.Sentence was suspended, and defendant was placed on probation for two years.In 1977, he pleaded guilty to burglary, was sentenced to twelve months in the house of correction, one month suspended, and placed on probation for two years upon release from confinement.He was released and put back on probation in September, 1977.In December, 1977, a violation of probation report was filed on the 1976 conviction alleging that defendant, had absconded, that his whereabouts were unknown, and that he had failed to report, failed to be employed and failed to pay his fine.Defendant pleaded guilty to the violation on January 11, 1978, and was ordered to serve 120 days of the original suspended sentence, probation to be continued upon his release.In March, 1978, defendant was released.A second violation report was filed against him in July 1978, this one alleging a failure to report, a failure to be employed and abscondence.The ensuing violation of probation proceeding gave rise to the dispute now before us.

Defendant entered a guilty plea to this violation in accordance with a negotiated agreement that he be ordered to serve three months and that probation be terminated.The judge, however, refused to accept the agreement and the plea was withdrawn with the court's permission.At that time, the judge stated "we'll have a hearing on the violations and I'll impose a sentence that I feel is appropriate, but I'm not going to accept the recommendation. . . ."When the matter came on for a hearing a few days later, defendant moved that the judge recuse himself because he had heard the plea of guilty as well as defense counsel's acknowledgment of the violation during argument concerning the State's recommendation.The motion was denied, a hearing was held, the defendant was found guilty of the violation and was ordered to serve the nine-month balance remaining on his sentence.Defendant's exceptions were transferred by Goode, J.

The defendant asserts that he was denied his constitutional right to a fair hearing.In Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656(1973), the Supreme Court announced the minima of due process requirements for probation revocation proceedings where sentence has already been imposed.The defendant, however, would have us adopt, in addition to those requirements, a per se rule of disqualification.We need not decide in this case the exact parameters of defendant's due process rights, but hold that there has been no denial in this case in any event and that a per se rule is not required.

The State properly concedes that defendant has at least the right to an impartial tribunal in determining whether he violated his probation.In some situations the probability of unfairness is so great that a per se rule of disqualification is required.Thus, for example, such a rule applies when the trier has a pecuniary interest in the outcome.Gibson v. Berryhill, 411 U.S. 564, 93 S.Ct. 1689, 36 L.Ed.2d 488(1973), or when he has become personally embroiled in criticism from the party before him, Taylor v. Hayes, 418 U.S. 488, 94 S.Ct. 2697, 41 L.Ed.2d 897(1974), or when he has heard evidence in secret at a prior proceeding, In re Murchison, 349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942(1955), or when he is related to a party, Sanborn v. Fellows, 22 N.H. 473(1851).See alsoWithrow v. Larkin, 421 U.S. 35, 95 S.Ct. 1456, 43 L.Ed.2d 712(1975).

The circumstances presented by this case do not call for the imposition of a per se rule.The fact that a judge presided when a plea of guilty was entered as part of a plea negotiation does not raise such a "probability of unfairness" as to require automatic disqualification.

Judges are quite able to put aside information gained at the time of a plea...