State v. Benner

• Decision Date: 17 May 2019
• Docket Number: No. 2017-0687,2017-0687
• Citation: 211 A.3d 702,172 N.H. 194
• Parties: The STATE of New Hampshire v. Laryssa J. BENNER
• Court: New Hampshire Supreme Court

172 N.H. 194

211 A.3d 702

The STATE of New Hampshire

v.Laryssa J. BENNER

No. 2017-0687

Supreme Court of New Hampshire.

Argued: February 20, 2019

Opinion Issued: May 17, 2019

Gordon J. MacDonald, attorney general (Stephen D. Fuller, senior assistant attorney general, on the memorandum of law and orally), for the State.

Eric S. Wolpin, assistant appellate defender, of Concord, on the brief and orally, for the defendant.

LYNN, C.J.

The defendant, Laryssa J. Benner, appeals a decision of the Superior Court (Bornstein, J.) imposing her deferred sentence. On appeal, she argues that the procedures employed by the trial court in imposing her sentence violated her due process rights under the State Constitution, and that the court further erred in finding that there was sufficient evidence that she violated certain conditions of her deferred sentence. We affirm.

The record reveals the following facts. On May 13, 2015, the defendant was sentenced to 12 months in the house of corrections for misdemeanor theft by deception. See RSA 637:4 (2016). The sentence was deferred for two years with the trial court retaining "jurisdiction up to and after the deferred period to impose or terminate the sentence." The sentencing order further provided that:

Thirty (30) days prior to the expiration of the deferred period, the defendant may petition the Court to show cause why the deferred commitment period should not be imposed. Failure to petition within the prescribed time will result in the immediate issuance of a warrant for the defendant's arrest.

The defendant was ordered to be of good behavior, undergo a drug and alcohol abuse evaluation within 90 days of sentencing, "abide by all treatment recommendations" provided by the counselor, and pay restitution in the amount of $ 63.00.

On May 12, 2017, the deferred period of the defendant's sentence expired. The defendant, however, did not petition the court as provided by the sentencing order, and the State did not move to impose the sentence. On May 18, 2017, pursuant to the terms of the sentencing order, the court issued a warrant for the defendant's arrest. The defendant was arrested on the warrant in October 2017.

Following her arrest, the defendant moved to close the case, arguing that the trial court "lack[ed] authority to impose the deferred sentence" because "a motion to impose was not filed in a timely fashion." The State objected, asserting that, based on the language of the sentencing order, the State bore no burden following the expiration of the deferred period because the order "clearly places the burden on the defendant to move for a show cause hearing" to establish whether the sentence should be imposed.

At the October 30 hearing, the trial court agreed with the State's position, noting that "[a] deferred sentence is different" because it will "be imposed unless the [d]efendant petitions in a timely manner and shows cause why the deferred commitment should not be imposed." In response to the court's decision, the defendant orally moved to terminate the sentence, but presented no evidence. Instead, the defendant took the position that merely failing to file the petition was not enough to impose the sentence, and argued that the sentence should terminate because imposition would not further the goals of sentencing given that she was then on probation in Vermont and being monitored by a bracelet. According to the defendant, the sentence could only be imposed if the State proved the conduct that was the basis for the imposition. Although the court made clear that the State bore no burden of proof, it permitted the State "to make a record" and call the defendant's sister to testify. The court reiterated, however, that even "if there was no evidence [it] could still impose the sentence unless the [d]efendant shows cause why the deferred commitment should not be imposed." Over the defendant's objections, the sister testified that the defendant pleaded guilty to charges in Vermont four weeks earlier and had not completed a drug treatment program. Specifically, the sister testified that the defendant told her that she was let out of her initial drug treatment program at Brattleboro College because her insurance expired, and also that she was informed by treatment providers that the defendant had recently been kicked out of a different program. As to the defendant's conviction in Vermont, while the sister testified that she could not "exactly" remember the specific date of the underlying acts, she testified that they occurred in late 2015 and early 2016. According to the sister, she provided her copy of the Vermont conviction paperwork to the defendant prior to the hearing because she and the defendant "got into an argument [that morning] and [the sister] ripped" the defendant's copy in half. The defendant, in turn, provided the copy to trial counsel, who then showed it to the State prior to the hearing. The sister further explained that the defendant was aware of the warrant for her arrest, but did not turn herself in because "she was worried that the deferred sentence was going to be imposed" and wanted to get her affairs in order.

At the conclusion of the hearing, the court asked the defendant's counsel whether the defendant "was surprised by any of the testimony [the sister] just" provided, to which trial counsel answered "no." Thereafter, the court ruled that the defendant had "not shown any cause why the deferred commitment should not be imposed," and thus imposed the sentence. The court clarified that it did not base its decision on the fact that the defendant did not file a petition at the end of the deferred period because doing so would not be proper grounds for imposing the sentence. Rather, the court reasoned that the burden was on the defendant to establish good cause why the sentence should not be imposed, and that she had failed to meet this burden. As a second, independent ground for its decision, the court found, based on the sister's testimony, that the defendant failed to comply with the conditions of her sentence. This appeal followed.

The defendant argues that the trial court violated her due process rights by placing the burden upon her to show good cause why the sentence should not be imposed. According to the defendant, the State bore the burden of proof to establish the basis for imposing the deferred sentence, and also was required to provide her with pre-hearing notice and discovery, including, among other things, a witness list, witness statements, and the alleged grounds for the violation. It follows, in the defendant's view, that the State's failure to meet these obligations deprived her of a hearing that comported with the requirements of due process under our State Constitution. Because the defendant's due process argument is grounded solely upon the State Constitution, "we base our decision upon it alone, citing federal cases for guidance only." Bleiler v. Chief, Dover Police Dep't, 155 N.H. 693, 696, 927 A.2d 1216 (2007). We review such constitutional questions de novo. State v. Abram, 156 N.H. 646, 651, 941 A.2d 576 (2008).

In general, "[t]rial judges are vested with broad discretionary powers with regard to sentencing." State v. Van Winkle, 160 N.H. 337, 340, 1 A.3d 592 (2010) (quotation omitted). Sentencing is "the process in which rehabilitation, deterrence, and punishment converge, and where the sentencing court, directed by the Criminal Code and common law, hands down society's punishment upon a defendant for his or her crime." State v. Rothe, 142 N.H. 483, 484, 703 A.2d 884 (1997). "Due process requires that the court inform the defendant at the time of sentencing in plain and certain terms what punishment it is exacting as well as the extent to which the court retains discretion to impose punishment at a later date and under what conditions the sentence may be modified." Id. (quotation omitted).

Here, the defendant's sentence was deferred for two years subject to certain conditions being met. Although not explicitly authorized by statute, as are suspended sentences, see RSA 651:20 (2016), deferred sentences are impliedly accepted by the legislature, see State v. Almodovar, 158 N.H. 548, 550, 969 A.2d 479 (2009). Where a sentence is deferred, the trial court retains jurisdiction over the defendant, and may "impose the sentence in a timely fashion ... following the expiration of the deferral ... period." Id. at 553, 969 A.2d 479 (quotation and citation omitted). In light of this power, "the defendant has been afforded liberty, albeit conditional, which may not be revoked without due process." Id. at 553-54, 969 A.2d 479 (quotation omitted).

Dealing first with the burden of proof, we note that there is a disparity between our case law addressing this issue and the language of the sentencing order. See State v. DiMaggio, 163 N.H. 497, 501, 44 A.3d 468 (2012) (noting that sentencing orders are interpreted based on their plain meaning). On its face, the sentencing order seems to place the burden of proof on the defendant to show compliance with the terms of the sentence at the end of the deferral period. Cf., e.g., 2A Richard B. McNamara, New Hampshire Practice Series: Criminal Practice and Procedure § 33.38, at 235-36 (2017) (noting that "[i]f a judge is willing to entertain a deferred sentence, the court will order that the defendant may come before the court at the expiration of the time of deferral to petition for the suspension of the sentence," and if "a hearing is held, the defendant bears the burden of showing the sentence should be suspended"). In contrast, for suspended sentences, the sentencing order typically makes clear that the sentence may be "imposed after [a] hearing at the request of the State," and makes no mention of any obligation placed on the defendant to bring the matter before the court. Thus, it appears that deferred sentences, on the one hand, and suspended sentences, on the other, are designed to provide the trial...