State v. Matey

• Decision Date: 15 February 2006
• Docket Number: No. 2005–071.,2005–071.
• Citation: 153 N.H. 263,891 A.2d 592
• Court: New Hampshire Supreme Court
• Parties: The STATE of New Hampshire v. Karl MATEY.

153 N.H. 263

891 A.2d 592

The STATE of New Hampshire

v.Karl MATEY.

No. 2005–071.

Supreme Court of New Hampshire.

Argued: Jan. 11, 2006.

Opinion Issued: Feb. 15, 2006.

Kelly A. Ayotte, attorney general (Stephen D. Fuller, senior assistant attorney general, and Thomas D. Ralph, attorney, on the brief, and Mr. Ralph orally), for the State.

David M. Rothstein, deputy chief appellate defender, of Concord, on the brief and orally, for the defendant.

DUGGAN, J.

The defendant, Karl Matey, appeals a ruling of the Superior Court (Lynn, C.J.) finding him chargeable on multiple probation violations. On appeal, he contends that the trial court erred in extending his original term of probation, and by admitting evidence of a statement allegedly obtained in violation of his right to counsel. We vacate the defendant's sentence only to the extent that the defendant's term of probation exceeds five years, and remand to the trial court for resentencing in accordance with this opinion. In all other respects, we affirm.

The trial court could have found the following facts. On May 2, 2003, the defendant entered a plea of guilty to one count of possession of a controlled drug. See RSA 318–B:2 (2004). The Trial Court (Hicks, J.) sentenced the defendant to three and one-half to seven years in State Prison, which sentence was deferred for two years. The defendant was also placed on probation for four years, beginning immediately. The trial court added in its sentencing order that "[v]iolation 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. "

While on probation, the defendant was jointly supervised by a New Hampshire probation officer, Trisha Ford, and a Massachusetts probation officer, Patricia Gleason. On June 11, 2003, the defendant failed a drug test in New Hampshire, testing positive for marijuana. He subsequently failed drug tests in Massachusetts on four occasions, testing positive for marijuana on October 14, 2003, May 18, 2004, and August 24, 2004, and for both marijuana and cocaine on September 8, 2004. Whenever the defendant failed a drug test, Gleason discussed his drug use with him and "he was very forthcoming and [admitted] that he had some problems. He had difficulty sleeping. He used marijuana to help." Specifically, on July 13, 2004, the defendant admitted to having smoked marijuana a few weeks earlier.

On September 20, 2004, Ford filed a Violation of Probation alleging that the defendant, among other things, violated Rule 10 of the Rules of Probation by failing drug tests on five occasions and admitting to smoking marijuana on one occasion. The defendant was appointed counsel for the probation violations and was ordered to appear for a hearing on December 7, 2004.

Upon agreement of the parties, the December 7, 2004 hearing was continued. The defendant, who was late for the hearing, arrived only after the trial court had granted the continuance. Later that day, Ford called the defendant to find out why he had not been in court that morning, to ask him about his recent drug use, and to order him to report to her in New Hampshire on December 9, 2004. During this telephone conversation, Ford asked the defendant about a December 1 drug test, which was not the subject of the Violation of Probation. The defendant admitted that, around the time of the December 1 drug test, he had been smoking marijuana and snorting cocaine.

On December 9, 2004, the defendant failed to report to Ford as directed. On December 13, 2004, Ford filed a Supplemental Violation of Probation, alleging that the defendant failed to report to probation as directed on December 9 and that he had admitted to smoking marijuana and snorting cocaine.

The Trial Court (Lynn, C.J.) held a consolidated hearing on the Violation of Probation and Supplemental Violation of Probation on January 4 and 10, 2005. The court found the defendant chargeable on several counts, including the counts in the Violation of Probation and the Supplemental Violation of Probation alleging that the defendant used controlled substances in violation of Rule 10. The court sentenced the defendant to serve twelve months in the House of Correction, and three years of probation upon release. The court also ordered that the balance of the defendant's prison term be suspended upon his admission into a residential drug treatment program and the Nashua Academy Program.

On appeal, the defendant argues that the trial court erred by extending his initial term of probation and by admitting into evidence at the probation violation hearing his December 7, 2004 admission to Ford, which he contends was obtained in violation of his right to counsel. We address each argument in turn.

I. Extension of Probation

The defendant argues that the trial court, after finding him in violation of his probation, illegally extended his term of probation beyond the four years initially imposed. The defendant concedes, however, that he failed to object to the extension of the term of probation at the time it was imposed. Therefore, the issue has not been preserved for our review. See State v. Blackmer, 149 N.H. 47, 48, 816 A.2d 1014 (2003). Nevertheless, the defendant argues that we should review his sentence under the plain error rule. See Sup.Ct. R. 16–A.

The plain error rule allows us to consider errors not brought to the attention of the trial court. Id. However, "[t]he rule should be used sparingly, its use limited to those circumstances in which a miscarriage of justice would otherwise result." State v. MacInnes, 151 N.H. 732, 736–37, 867 A.2d 435 (2005). For us to find error under the rule: "(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. at 737, 867 A.2d 435.

At the time of sentencing on the probation violation, the defendant had already served one year, eight months, and eight days of the initial four-year term of probation. The defendant represented at oral argument that he was then incarcerated for nine months before he was released in September 2005, at which time he commenced serving the three-year term of probation imposed by the court for the probation violation. Thus, at the earliest, the defendant will complete his term of probation in September 2008, which is one year and four months later than he had expected when he was originally sentenced on the underlying charges.

The defendant first contends that his actual term of probation is approximately five years and four months, which extends his probation beyond the maximum five-year term of probation permitted by statute for his crime, a class B felony. See RSA 651:2, V(a) (Supp.2005). The State argues that the term of probation was effectively tolled for the nine-month period during which the defendant was incarcerated, and thus his actual term of probation is only four years, eight months, and eight days. The defendant argues that probation continued throughout the nine-month period during which he was incarcerated. Neither the defendant nor the State has pointed to anything in the record to support their positions. However, the State does concede that, if the term of probation exceeds the five-year maximum allowable under RSA 651:2, V(a), it is illegal and plain error. In light of this concession, we hold that, to the extent that the trial court sentenced the defendant to a term of probation exceeding five years, that sentence was error, and the error was plainly evident from the plain language of RSA 651:2, V(a). Because the sentence is illegal to the extent that it imposes a term of probation exceeding five years, the third and fourth elements of the plain error rule have been satisfied. See State v. Taylor, 152 N.H. 719, ––––, 886 A.2d 1012, 1014 (2005).

The defendant next argues that the trial court also committed plain error by extending his probation beyond the four years initially imposed at sentencing on the underlying charge, even if that extension ultimately results in the defendant serving no more than five years probation. The State, citing State v. White, 131 N.H. 555, 556 A.2d 308 (1989), argues that the extension of the defendant's term of probation is permissible so long as it is within the five-year limit prescribed by the legislature for the underlying crime. In response, the defendant contends that the State's reliance on White is misplaced, and instead argues that the extension of probation is tantamount to an impermissible increase in the time period during which the maximum sentence for the defendant's underlying crime may be "called forward," citing State v. Ingerson, 130 N.H. 112, 536 A.2d 161 (1987).

In White, 131 N.H. at 557–58, 559–60, 556 A.2d 308, we held that, where a defendant violates the terms of his probation, the imposition of a term of imprisonment within the statutory limits for the underlying offense is not illegal, even where the original sentencing order does not contain a suspended sentence. The defendant in that case had entered a plea of guilty to a class B felony and the trial court had sentenced him to twelve months incarceration and two years of probation to begin upon his release. Id. at 556, 558, 556 A.2d 308. After the defendant completed his term of incarceration and began his term of probation, the trial court found him chargeable on several probation violations and revoked his probation, sentencing him to incarceration for two and one-half to five years. Id. at 557, 556 A.2d 308.

However, unlike the defendant in this case, the defendant in White did not receive an additional term of probation. Thus, White did not address whether a defendant may be sentenced to an additional or increased term of probation as the result of a probation violation. Nevertheless, the State argues that we must conclude that, under White, a...