State v. Burgess, 94-600

• Decision Date: 23 May 1996
• Docket Number: No. 94-600,94-600
• Citation: 141 N.H. 51,677 A.2d 142
• Parties: The STATE of New Hampshire v. Kenneth BURGESS.
• Court: New Hampshire Supreme Court

Page 142

677 A.2d 142

141 N.H. 51

The STATE of New Hampshire v. Kenneth BURGESS.

No. 94-600.

Supreme Court of New Hampshire.

May 23, 1996.

Jeffrey R. Howard, Attorney General (Ann M. Rice, Assistant Attorney General, on the brief and orally), for the State.

James E. Duggan, Chief Appellate Defender, Concord by brief and orally, for defendant.

BROCK, Chief Justice.

The question in this appeal is a narrow one: Where the trial court imposed a specific sentence and deferred its execution, and the sentence did not provide for probation, did the court have the authority thereafter to add a term of probation at a later hearing on the deferred sentence? In the circumstances of this case, we hold that it did not.

In February 1993, the defendant, Kenneth Burgess, pled guilty to one count of disobeying a police officer. RSA 265:4 (1993). On April 27, 1993, the Superior Court (Barry, J.) sentenced Burgess to one to three years in the New Hampshire State Prison, execution of which was deferred for one year. The sentence did not include a term of probation. In March 1994, Burgess moved to suspend the deferred sentence. The State objected to the motion on the basis that Burgess had been charged with driving while intoxicated during the deferral period, a charge to which he ultimately pled nolo contendere. On August 3, 1994, the Superior Court (Lynn, J.) denied the motion to suspend and imposed a sentence of 153 days, stand committed, with sixty-three days of pre-trial credit, and three years probation upon Burgess' release from jail.

On appeal, Burgess argues that the court did not have the authority to add the term of probation when his original sentence contained no such term. We agree.

Due process requires a sentencing court to make clear at the time of sentencing "in plain and certain terms what punishment [it is] exact[ing] ... as well as the extent to which the court retain[s] discretion to impose punishment at a later date and under what conditions the sentence may be modified." Stapleford v. Perrin, 122 N.H. 1083, 1087, 453 A.2d 1304, 1306 (1982). The sentencing order must clearly communicate to the defendant "the exact nature of [the] sentence." State v. Ingerson, 130 N.H. 112, 116, 536 A.2d 161, 163 (1987).

Thus, unless the terms of a sentence at the time it is imposed specifically allow augmentation at a later date, the court may not increase a defendant's penalty at a probation revocation hearing or a hearing on whether to impose a deferred or suspended sentence. See, e.g., State v. Huot, 136 N.H. 96, 99-101, 612 A.2d 362, 364 (1992) (where original sentencing order was clear in making suspended sentences on multiple charges concurrent, the trial court, in revoking probation has no authority to alter the sentence by imposing the sentences consecutively rather than concurrently); State v. Timmons, 130 N.H. 831, 836, 547 A.2d 312, 315 (1988) (where sentencing order was plain that the defendant was given two years to complete an alcohol rehabilitation program, the trial court erred in finding, prior to the expiration of the two-year window, that the defendant had violated the conditions of his deferred sentence; order imposing the sentence reversed). Likewise, if the terms of a sentence are not entirely clear at the time of sentencing, we will not speculate about what sentence the court might have intended; rather, we will construe the sentencing order so as to enforce the terms that are clear but not to augment the sentence beyond such terms. See, e.g., State v. Rau, 129 N.H. 126, 130, 523 A.2d 98, 101 (1987).

The present situation fits squarely within the rules of Stapleford and its progeny. The sentencing court failed to give Burgess "explicit notice at the time of the original sentencing," Huot, 136 N.H. at 101, 612 A.2d at 364, that he might be subjected to a term of probation. On the contrary, the sentence was clear at the time it was imposed: it contained no term of probation. See Timmons, 130 N.H. at 836, 547 A.2d at 315. Because the original sentence did not include such a term, and because the court did not retain discretion to add probation at a later date, see Stapleford, 122 N.H. at 1087, 453 A.2d at 1306, the court had no more authority to add probation at Burgess' deferred sentence hearing than the Huot court had to augment that defendant's sentence at the probation revocation hearing. See Huot, 136 N.H. at 99-101, 612 A.2d at 364; Ingerson, 130 N.H. at 114, 536 A.2d at 162; Rau, 129 N.H. at 131-32, 523 A.2d at 102.

Even though a sentencing court ordinarily has no authority to add a term of probation at a later date unless the original sentence clearly notifies the defendant that it retains discretion to do so, the State argues that a statute specifically authorizes such an action where a suspended sentence is later revoked. In such circumstances, RSA 651:21 (1986) permits the court to impose probation during the time that any portion of the sentence remains suspended. If RSA 651:21 applied to this case, then the State's position might have merit. Cf. State v. White, 131 N.H. 555, 558, 556 A.2d 308, 310 (1989) (where court previously sentenced defendant to probation and defendant violated probation, Stapleford notwithstanding, due process is not violated by a statute which authorizes courts to impose, upon probation violation, the maximum sentence that could have been imposed originally).

The State argues that, although Burgess' sentence was "labeled" a "deferred sentence," it falls within the category of suspended sentences governed by RSA 651:21 and that the superior court's 1994 order was in part a revocation of this deferred sentence. W...