State v. Kay

• Decision Date: 21 July 2011
• Docket Number: No. 2010–115.,2010–115.
• Citation: 162 N.H. 237,27 A.3d 749
• Parties: The STATE of New Hampshirev.Anthony KAY.
• Court: New Hampshire Supreme Court

162 N.H. 237

27 A.3d 749

The STATE of New Hampshire

v.Anthony KAY.

No. 2010–115.

Supreme Court of New Hampshire.

Argued: May 12, 2011.Opinion Issued: July 21, 2011.

Michael A. Delaney, attorney general (Nicholas Cort, assistant attorney general, on the brief and orally), for the State.Dorothy E. Graham, assistant appellate defender, of Concord, on the brief and orally, for the defendant.LYNN, J.

The defendant, Anthony Kay, appeals the decision of the Superior Court ( Abramson, J.) finding that he violated his probation and imposing a sentence of imprisonment. He argues that the trial court: (1) committed plain error by finding that he violated probation conditions that were never imposed by the sentencing court; and (2) erred in finding a violation of probation based upon his failure to pay child support as ordered because any such failure was due to financial hardship. We affirm.

On January 9, 2008, the defendant pleaded guilty to two felony counts of failure to pay child support. See RSA 639:4 (2007). At the time of sentencing, he owed a total of nearly $70,000 in two separate support cases. The Superior Court ( O'Neill, J.) sentenced him to two concurrent terms of two to five years at the state prison, deferred for ten years, and placed him on probation through the New Hampshire Department of Health and Human Services (DHHS). See RSA 161:8 (2002). The sentencing order read, in relevant part:

The defendant is placed on probation for a period of 5 year(s), through DHHS. Effective: Forthwith. The defendant is ordered to call immediately to DHHS, Wayne Jeffrey. Violation of probation or any of the terms of this sentence may result in revocation of probation and imposition of any sentence within the legal limits for the underlying offense. The following conditions of this sentence are applicable whether incarceration is suspended, deferred or imposed or whether there is no incarceration ordered at all. Failure to comply with these conditions may result in the imposition of any suspended or deferred sentence. Under the direction of the Probation/Parole Officer, the defendant shall tour the New Hampshire State Prison. The defendant & the State have waived sentence review in writing or on the record. The defendant is ordered to be of good behavior and comply with all the terms of this sentence. Probation shall be under the direction of the Dept of Health and Human Services, child support services. Probation shall be for the purposes of collection of child support payments only.

At their subsequent meeting, Jeffrey instructed the defendant to make total payments of $91.65 per week for the two cases, including payments for arrearage, and informed him where those payments were to be made. While he was employed, the defendant was to make payments through a wage assignment and he was to make direct payments until such wage assignment had gone into effect. Jeffrey also instructed the defendant to maintain weekly contact with his office and inform him of any change in his employment status or residence.

Beginning in January, the defendant worked at Sterling Linen for about thirty days and began making support payments by wage assignment. In February, his employment at Sterling Linen ended, and he remained unemployed until June, when he began working at Fletcher Sandblasting and resumed payments by wage assignment. The defendant was fired from Fletcher Sandblasting after thirty to forty days of employment, and soon thereafter became homeless. The defendant admits that he stopped reporting to his probation officer after becoming unemployed, and that he never sought to modify his support payments at any time.

On August 22, 2008, Jeffrey reported to the court that the defendant violated the terms of his probation by failing to make weekly support payments pursuant to the trial court order and Superior Court Rule 107(b), and by failing to maintain weekly contact with his office as directed pursuant to Superior Court Rule 107(a). From the time of his plea hearing in January until the probation violation report was filed in August, the defendant made a total of $406.54 in support payments. After conducting a probation violation hearing, the superior court found that the State had met its burden of proving the charged probation violations. On December 1, 2009, the court sentenced the defendant to three-and-one-half to seven years in the New Hampshire State Prison. This appeal followed.

The defendant first argues that the trial court erred when it found he had violated probation conditions that he regularly report to his probation officer and adhere to a weekly payment schedule because such conditions were never imposed by the original sentencing court. Thus, he contends, the trial court erroneously modified the conditions of his sentence in violation of his right to due process under the State and Federal Constitutions. See N.H. CONST. pt. I, art. 15; U.S. CONST. amends. V, XIV. We first examine the defendant's arguments under the State Constitution, using federal cases for guidance only. State v. Ball, 124 N.H. 226, 232–33, 471 A.2d 347 (1983).

The defendant acknowledges that he failed to raise this issue before the trial court, and asks that we review the trial court's decision for plain error. Supreme Court Rule 16–A allows us to exercise our discretion to consider plain errors not raised in the trial court. State v. Sideris, 157 N.H. 258, 264, 951 A.2d 164 (2008). However, the rule should be used sparingly, its use limited to those circumstances in which a miscarriage of justice would otherwise result. Id. To find plain error: (1) there must be an error; (2) the error must be plain; (3) the error must affect substantial rights; and (4) the error must seriously affect the fairness, integrity or public reputation of judicial proceedings. Id. Here, we find no error at all.

The court may sentence a person convicted of a felony to probation “if the court finds that such person is in need of the supervision and guidance that the probation service can provide under such conditions as the court may impose.” RSA 651:2, V(a) (2007). RSA 504–A:12 (2010) delineates the powers and duties of probation and parole officers, including, in part:

II. To take charge of and to provide supervision to persons placed on probation, parole, or lifetime supervision, attempting to assist them in establishing law-abiding lives while monitoring their behavior through office, home, work, and other contacts to insure that they comply with their probation, parole, or lifetime supervision conditions.

III. To report promptly to the appropriate court or the parole board violations of probation or parole conditions which are required by statute, the parole board, or the court or which, in the opinion of the officer, are serious enough to warrant consideration by the authority authorizing probation or parole. Such reports shall include recommendations as to any actions which the officer believes to be appropriate.

“If appointed by a court of competent jurisdiction, the commissioner of the department of health and human services shall perform, under the supervision of such court, the function of probation officer or agent of the court in any welfare matters which may be before the court.” RSA 161:8 (2002). “Probation conditions” are those “restrictions and limitations established by the court for the conduct and behavior of a probationer.” RSA 504–A:1, VII (2010). Superior Court Rule 107 sets forth the standard terms and conditions of probation, reading in part:

The terms and conditions of probation, unless otherwise prescribed, shall be as follows:

The probationer shall:

(a) Report to the probation or parole officer at such times and places as directed, comply with the probation or parole officer's instructions, and respond truthfully to all inquiries from the probation or parole officer;

(b) Comply with all orders of the Court, board of parole or probation or parole officer, including any order for the payment of money;

(c) Obtain the probation or parole officer's permission before changing residence or employment or traveling out of State;

....

(e) Diligently seek and maintain lawful employment, notify probationer's employer of his or her legal status, and support dependents to the best of his or her ability;....

The defendant contends that the original sentencing court limited the terms of his probation to the collection of child support payments, his completion of a state prison tour, and his immediate contact with his probation officer. He does not challenge the terms of payment and regular contact set by his probation officer as unreasonable, but rather argues that the terms of his probation had been established by the sentencing court and could not be further amended or supplemented. According to the defendant, because the sentencing court “did not order [him] to comply with the usual terms of probation or any special terms imposed by probation” under Superior Court Rule 107, did not “expressly delegate to the probation department the authority to impose additional obligations,” and “did not order a certain amount of restitution, a specific payment schedule, or weekly contact with probation,” the trial court lacked authority to find that he violated his probation for failing to provide support payments and maintain contact with DHHS in the manner established by his probation officer. We disagree.

The sentencing court must make clear at the time of sentencing in plain and certain terms what punishment it is exacting as well as the extent to which it retains discretion to impose punishment at a later date and under what conditions the sentence may be modified. State v. Hancock, 156 N.H. 301, 305, 934 A.2d 551 (2007). When the deprivation of a defendant's conditional liberty rests upon the commission of a non-criminal act, he must be given some warning in order to ensure that he understands, in plain and certain terms, the...