State v. Merrill

• Decision Date: 30 June 2010
• Docket Number: No. 2009–811.,2009–811.
• Citation: 160 N.H. 467,999 A.2d 221
• Court: New Hampshire Supreme Court
• Parties: The STATE of New Hampshire v. Steven MERRILL.

160 N.H. 467

999 A.2d 221

The STATE of New Hampshire

v.Steven MERRILL.

No. 2009–811.

Supreme Court of New Hampshire.

Argued: May 4, 2010.

Opinion Issued: June 30, 2010.

Michael A. Delaney, attorney general (Susan P. McGinnis, senior assistant attorney general, on the brief and orally), for the State.

Jeffco & Starbranch, of Portsmouth (Harry N. Starbranch, Jr. on the brief and orally), for the defendant.

DUGGAN, J.

This is an interlocutory appeal from an order of the Superior Court (Nadeau, J.) granting defendant Steven Merrill's request to find him not chargeable with a probation violation. See Sup.Ct. R. 8. We reverse and remand.

The record supports the following. On December 7, 2007, the defendant pleaded guilty in the Superior Court (Nadeau, J.) to two counts of possession of child pornography. See RSA 649–A:3 (2007). The trial court sentenced him to a term in the Rockingham County House of Corrections and three years probation "upon the usual terms of probation and any special terms of probation determined by the Probation/Parole Officer." The trial court ordered the defendant "to participate meaningfully [in] and complete any counseling, treatment and educational programs as directed by the correctional authority or Probation/Parole Officer." The trial court added specific terms of probation requiring the defendant "to obtain [a] sex offender evaluation within 60 days of release and follow all recommended treatment," and ordered that he "have no unsupervised contact with children under the age of sixteen."

Following his release from the house of corrections in April 2008, the defendant met with a probation officer, and reviewed and signed a Terms and Conditions of Adult Probation form. In addition to the specific conditions of probation imposed by the trial court, the probation officer added a condition that the defendant have "no computer access," except for work purposes. Presumably the probation officer added this condition because during the investigation into the underlying offense, the defendant commented that he wanted to view child pornography only after viewing adult pornography on his computer.

In December 2008, two probation officers conducted a random visit and inspection of the defendant's home. They found a desktop computer and seized it. The defendant was arrested after a preliminary forensics examination of the computer revealed that it contained images of child pornography. One of the probation officers filed a violation of probation against the defendant, alleging that he had violated several conditions of his probation, including the condition that he have no computer access.

The defendant moved for a finding of not chargeable on the violation of the computer access condition, arguing that probation officers do not have the authority "to impose additional terms of probation." The trial court granted the defendant's request, and the State moved for an interlocutory appeal. The trial court granted the State's request and certified the following questions:

A. Whether probation officers have the authority to impose additional conditions of probation that are reasonably and particularly related to the goals of probation where that authority is specifically recognized in Superior Court Rule 107 and impliedly recognized in RSA 504–A:12, which gives probation officers the power and duty to take actions required to assist probationers in establishing law-abiding lives, and whether such authority violated the separation of powers clause of the New Hampshire constitution.

B. Whether defendants are given sufficient notice under the Due Process Clause of the New Hampshire Constitution that the sentencing court may later modify their sentences or impose additional punishment if they violate special conditions of probation imposed after sentencing by their probation officers where Rule 107, sentencing courts' statements, and mittimuses give defendants notice that probation officers may later impose special conditions of probation, and where the Terms And Conditions Of Probation forms signed by defendants give them actual notice of those special conditions.

As a preliminary matter, the State argues that we should review these questions under a plain error standard because the defendant failed to object to the imposition of the condition of probation in a timely manner. Specifically, the State argues that the defendant failed to challenge the computer access condition in superior court at the time the probation officer imposed it. We require parties to make a contemporaneous objection to afford the trial court an opportunity to rule upon issues and correct errors. See State v. Brum, 155 N.H. 408, 417, 923 A.2d 1068 (2007). Here, the trial court ruled on the issue when it was first presented with it. The State cites no cases in which we have required a defendant to object to a condition of probation at the time the probation officer reviews the Terms and Conditions of Adult Probation form. We see no reason to do so here, and, therefore, conclude that the questions are properly before us on review.

We turn now to the first certified question. Relying upon the language of RSA 504–A:12 (2010), the defendant argues that because only the trial court has the authority to impose additional conditions of probation, allowing probation officers to do so violates the Separation of Powers Clause of the State Constitution. The State counters that Superior Court Rule 107(l ) and RSA 504–A:12 grant probation officers the authority to impose special conditions of probation. The State also argues that sentencing is a shared function of the judicial, executive, and legislative branches.

We first address the defendant's argument that probation officers do not have the authority to impose additional conditions on probation. This requires us to interpret RSA chapter 504–A, RSA 651:2, I, and Superior Court Rule 107. The interpretation of a statute is a question of law, which we review de novo . State v. Kousounadis, 159 N.H. 413, 423, 986 A.2d 603 (2009). In matters of statutory interpretation, we are the final arbiters of the legislature's intent as expressed in the words of the statute considered as a whole. Id. We first look to the language of the statute itself, and, if possible, construe that language according to its plain and ordinary meaning. Id. We interpret a statute in the context of the overall statutory scheme and not in isolation. Id.

RSA 651:2, I (2007) provides that persons convicted of felony offenses "may be sentenced to ... probation." RSA 651:2, V(a) further provides that "[a] person may be placed on 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 504–A:12 delineates the powers and duties of probation and parole officers.

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.

"Probation conditions" are those "restrictions and limitations established by the court for the conduct and behavior of a probationer." RSA 504–A:1, VII.

Superior Court Rule 107 sets forth the terms and conditions of probation, and provides that probationers shall comply with "any other, special conditions as may be imposed by the Court, the parole board or the probation or parole officer." Super. Ct. R. 107(l ). This rule contemplates that probation officers may set probation conditions, in addition to the standard ones which probationers must follow.

The statutory language indicates the legislature has given "the court" the authority to establish probation conditions. Here, the mittimus states that the defendant is to be placed on probation upon "any special terms of probation determined by the Probation/Parole officer." Thus, the sentencing court in effect imposed the computer access condition, and it is a "probation condition" as defined by RSA 504–A:1, VII. Therefore, we reject the defendant's argument and conclude that the probation officer had the authority to impose additional conditions on probation.

We next address the defendant's argument that the addition of a probation condition by a probation officer violates the separation of powers guaranteed by Part I, Article 37 of the State Constitution because the executive branch is encroaching upon the judiciary's role in sentencing. The...