State v. Auger

• Decision Date: 07 June 2002
• Docket Number: No. 2000–673.,2000–673.
• Citation: 802 A.2d 1209,147 N.H. 752
• Court: New Hampshire Supreme Court
• Parties: The STATE of New Hampshire v. Ryan AUGER.

147 N.H. 752

802 A.2d 1209

The STATE of New Hampshire

v.Ryan AUGER.

No. 2000–673.

Supreme Court of New Hampshire.

Submitted April 15, 2002.

Opinion Issued June 7, 2002.

Rehearing Denied July 18, 2002.

Philip T. McLaughlin, attorney general, (Stephen D. Fuller, senior assistant attorney general, and Karen E. Huntress, attorney, on the brief), for the State.

Christopher M. Johnson, chief appellate defender, of Concord (Richard E. Samdperil, assistant appellate defender, on the brief), for the defendant.

BROCK, C.J.

This is an interlocutory transfer without ruling from the Hillsborough District Court(Hatfield , J.), seeSup.Ct. R. 9, asking whether a non-criminal violation-level offense can trigger the imposition of a suspended sentence conditioned upon only the defendant's "good behavior."We respond in the negative.

"We accept the statement of the case presented in the interlocutory transfer."Trovato v. DeVeau,143 N.H. 523, 524, 736 A.2d 1212(1999).In November 1999, the defendant pleaded guilty to one count of possession of a controlled drug and one count of resisting arrest.He was sentenced to sixty days imprisonment and fined $200 on each count, all of which was deferred for six months.On June 5, 2000, the defendant's sentences were suspended for two years conditioned upon his continued good behavior.On July 21, 2000, the defendant was arrested for transporting alcoholic beverages by a minor, a violation-level offense.SeeRSA 265:81–a (1993).After pleading guilty, he was fined $300 and lost his license for sixty days.Thereafter, the State moved to impose the defendant's suspended sentences.

We have previously held that there is a condition of good behavior implied in both suspended and deferred sentences.SeeState v. Budgett,146 N.H. 135, 138, 769 A.2d 351(2001)(suspended sentences);State v. Graham,146 N.H. 142, 144, 769 A.2d 355(2001)(deferred sentences).The term "good behavior" is defined "as conduct conforming to the law" and does not include "non-criminal behavior for which the defendant must be given actual notice."Budgett,146 N.H. at 139, 769 A.2d 351.To impose a suspended or deferred sentence on the ground that the defendant has violated the implied condition of good behavior, a trial court must find that the defendant engaged in criminal conduct.Seeid.;see alsoState v. Palermo,146 N.H. 144, 146, 769 A.2d 349(2001)(trial court could not impose deferred sentence based upon defendant's prison disciplinary violations absent finding that these violations constituted criminal acts).

A suspended or deferred sentence need not expressly state that committing a crime will trigger its imposition because such a condition is "so basic and fundamental that any reasonable person would be aware of [it]."Budgett,146 N.H. at 138, 769 A.2d 351(quotation omitted).By contrast, a defendant must be given actual notice that engaging in non-criminal conduct could result in imposition of his sentence.Id. at 138–39, 769 A.2d 351.To satisfy due process, a suspended or deferred sentence must specify the types of non-criminal conduct that will trigger its imposition.Id. at 139, 769 A.2d 351."To hold otherwise would effectively modify the terms of the original sentencing order and result in fundamental unfairness."Id.

These principles apply with equal force to express conditions of "good behavior."Thus, a suspended or deferred...