State v. Perkins
| Decision Date | 10 August 1981 |
| Docket Number | No. 80-161,80-161 |
| Citation | 121 N.H. 713,435 A.2d 504 |
| Parties | The STATE of New Hampshire v. Nelson E. PERKINS. |
| Court | New Hampshire Supreme Court |
Gregory H. Smith, Atty. Gen. (Donald J. Perrault, Asst. Atty. Gen., on the brief and Martha Gordon, Asst. Atty. Gen., orally), for the State.
James E. Duggan, Appellate Defender, by brief and orally, for defendant.
In this criminal case, the defendant, Nelson E. Perkins, was tried before a jury on a charge of aggravated felonious sexual assault, RSA 632-A:2 XI (Supp.1979). The jury acquitted him of that charge but returned a guilty verdict on the lesser-included charge of sexual assault, RSA 632-A:4 (Supp.1979), and the Trial Court (Cann, J.) deferred sentencing pending the defendant's evaluation at the New Hampshire Hospital. RSA ch. 173-A. After the evaluation was completed, a sentencing hearing was held and the trial court found that the defendant was a dangerous sexual offender. RSA 173-A:2. The court sentenced the defendant to the forensic unit of the State hospital for a period of twelve months and placed him on probation for a period of two years. No part of the defendant's sentence was suspended.
On this appeal, the defendant claims that: (1) it was error for the trial court to sentence him to the maximum term of imprisonment provided by law for the offense of which he was found guilty and to a period of probation where none of the commitment was suspended; (2) the trial court improperly endorsed the victim's credibility before the jury; (3) there was insufficient evidence to support the finding that the six-year-old victim was competent to testify and (4) there was insufficient evidence to support the finding that the defendant was a dangerous sexual offender.
It is not necessary to relate the details of the incident upon which the criminal charge against the defendant were based in order to discuss the merits of his appeal. We do note, however, that the police obtained a signed confession from the defendant while he was under investigation. The confession was introduced at trial, and when the defendant filed his notice of appeal in this court, he alleged that the confession should not have been admitted. In his brief, however, the defendant did not address this issue, and we, therefore, regard it as having been waived. Moreover, our review of the record reveals that there was more than sufficient evidence to establish, beyond a reasonable doubt, that this confession was given voluntarily, knowingly and intelligently by the defendant. See State v. Gullick, 118 N.H. 912, 915, 396 A.2d 554, 555-56 (1978).
The defendant first argues that the trial court could not lawfully impose a sentence of two-years probation when it had already imposed the maximum term of imprisonment for a misdemeanor, twelve months, with no part suspended. In support of his argument, the defendant claims "that probation, under such circumstances, lacks any enforcement mechanism and is therefore inconsistent with the statutory scheme (of RSA ch. 651)." We disagree.
The defendant was sentenced to a one-year term of imprisonment after being found guilty of a misdemeanor. Because that is the maximum term of imprisonment for a misdemeanor, RSA 651:1 II, the defendant cannot be subjected to additional periods of incarceration for this offense even if he violates probation. That is not to say, however, that a probation enforcement mechanism is not contemplated by RSA ch. 651. RSA 651:2 VII provides that "(w)hen a probation is revoked ... the defendant may be fined, as authorized by paragraph IV, if a fine was not imposed in addition to the probation...." Under paragraph IV a defendant may be fined up to $1,000 for a misdemeanor. The court may, therefore, enforce the probationary period by imposing a fine, not to exceed a total of $1,000, upon the defendant if he violates the terms of his probation.
As an alternative argument, the defendant contends that if such a fine were subsequently imposed, in the event he violates the terms of his probation, this would constitute double jeopardy because a suspended fine was not part of his original sentence. The defendant argues that upon revocation of probation a court cannot add to the sentence it originally imposed and can only impose that portion of the sentence which was suspended under the terms of the original sentence.
In 1943, a similar double jeopardy issue was before the United States Supreme Court in the case of Roberts v. United States, 320 U.S. 264, 64 S.Ct. 113, 88 L.Ed. 41 (1943). The Court, however, did not reach the double jeopardy issue raised in that case concerning the imposition of a new or additional sentence upon revocation of probation but based its decision on its interpretation of the then applicable federal Probation Act. Id. at 265, 64 S.Ct. at 114. In a dissenting opinion, however, Justice Frankfurter and two other justices addressed the double jeopardy issue and concluded that the fifth amendment prohibition against double jeopardy does not prevent the imposition of a new sentence after a defendant violates probation. Id. at 273-77, 64 S.Ct. at 117-19 (Frankfurter, J., dissenting).
More recently, other courts have considered the question of whether a court may impose a new sentence upon a defendant who violates probation and held that a more severe sentence may be imposed when the defendant violates probation and that the courts are not limited to imposing only that portion of the original sentence which was suspended. Williams v. Wainwright, 493 F.Supp. 153, 155 (S.D.Fla.1980); State v Jones, 327 So.2d 18, 20 (Fla.1976); Smith v. State, 261 Ind. 510, 513-15, 307 N.E.2d 281, 283 (1974). We similarly hold that no violation of the fifth amendment bar against double jeopardy has occurred in the present case. In the event that the defendant here violates probation, however, the trial court cannot sentence him to additional periods of incarceration because he has been sentenced to the maximum period of incarceration for the crime involved.
The defendant's next issue on appeal is the trial judge's statement during trial, in finding the six-year-old victim competent to testify, that "the court is satisfied that this witness will tell the truth." Defendant argues that the statement was highly prejudicial to him and constituted reversible error.
The defendant filed a pretrial motion for determination of the competency of this witness to testify. A hearing before Souter, J., resulted in a finding of competency. At trial, just before...
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State v. Glidden
...at trial and therefore the issue of whether this evidence should have been admitted is not before us on appeal. State v. Perkins, 121 N.H. 713, 717, 435 A.2d 504, 506 (1981). Evidence of the $1,000 offer had already been properly admitted in the testimony of Marceau. Thus, even if the admis......
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State v. Berry, 81-469
...raised by the defendant in his notice of appeal were not briefed; therefore, we regard those issues as waived. State v. Perkins, 121 N.H. 713, 715, 435 A.2d 504, 505 (1981). SOUTER, J., did not sit; the others concurred. ...
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State v. Graca, 96-124
...appear in his brief, we treat them as waived. See State v. Penn, 127 N.H. 351, 351, 499 A.2d 1014, 1015 (1985); see also State v. Perkins, 121 N.H. 713, 715, 435 A.2d 504, 505 (1981); Davis v. State, 94 N.H. 321, 323, 52 A.2d 793, 795 We have reviewed the record with respect to the defendan......
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State v. Martin
..."options to adapt [a] sentence to a particular individual in the manner best suited to accomplish the constitutional objectives"). In State v. Perkins, for example, the trial court sentenced the defendant to the State hospital for one year—the statutory maximum—and placed him on probation f......