State v. Smith, 2010–685.

Decision Date14 December 2011
Docket NumberNo. 2010–685.,2010–685.
Citation35 A.3d 646,163 N.H. 13
PartiesThe STATE of New Hampshire v. Michael B. SMITH.
CourtNew Hampshire Supreme Court


Michael A. Delaney, attorney general (Nicholas Cort, assistant attorney general, on the brief and orally), for the State.

Lisa L. Wolford, assistant appellate defender, of Concord, on the brief and orally, for the defendant.


The defendant, Michael Smith, appeals an order of the Superior Court ( Smukler, J.) imposing portions of previously suspended sentences for felony convictions. We affirm.

The pertinent facts and procedural posture, as established by the record, are as follows. In February 2008, the defendant was charged with six class A misdemeanors. One charge, for criminal mischief, alleged that the defendant had damaged Danyelle Nichols's apartment. Subsequently, in March and April 2008, the defendant was indicted on six felony charges. One indictment, for witness tampering, alleged that the defendant attempted to influence Nichols's testimony in a domestic violence petition. The defendant pleaded guilty to the felony charges in December 2009. On three of the felony charges, docket numbers 08–S–753, –755, and –756, the defendant was sentenced to concurrent terms of between two and seven years at the state prison, with six months of the minimum and all of the maximum terms suspended for seven years. On the other three felony charges, docket numbers 08–S–491, –750, and –760, the defendant was sentenced to concurrent terms of between two and five years at the state prison, all suspended for a period of five years from release from his stand-committed prison sentences in docket numbers 08–S–753, –755, and –756, and consecutive to those sentences if imposed.

The sentencing orders in docket numbers 08–S–753, –755, and –756 contained the following provision:

Suspensions are conditioned upon good behavior and compliance with all of the terms of this [order.] ... Failure to comply with these conditions may result in the imposition of any suspended or deferred sentence.... The defendant is ordered to be of good behavior and comply with all the terms of this sentence.

In January 2010, the defendant pleaded guilty to the six misdemeanor charges and was sentenced to concurrent terms of six months in jail, these sentences also running concurrently with his felony sentences in docket numbers 08–S–753, –755, and –756. The misdemeanor sentencing orders included the same language as the felony sentencing orders and prohibited the defendant from contacting Danyelle Nichols.

Once incarcerated, the defendant attempted to contact Nichols through the prison's telephone system. Although the prison's system blocked his call, the State moved to impose the suspended sentences of all six felony convictions, arguing that the attempted call violated the condition of good behavior in those sentences. The superior court agreed that the call violated the good behavior condition, finding the call “in effect, an attempted indirect criminal contempt of the [misdemeanor] court orders”; consequently, it imposed six months of the minimum and one year of the maximum sentences in docket numbers 08–S–753, –755, and –756, leaving the other sentences suspended. This appeal followed.

The defendant argues that the superior court erred by imposing a portion of the suspended felony sentences based on his violation of the no-contact condition in his misdemeanor sentences because: (1) violation of the no-contact order is not a crime and, therefore, is not a violation of the condition of good behavior in his felony sentences; (2) it did so prior to determining whether the attempted call constituted criminal or non-criminal contempt; (3) there was insufficient evidence to prove the defendant violated the no-contact condition because his call never connected; and (4) when his felony sentences were imposed, he lacked notice that violating the conditions of his later misdemeanor sentences could result in imposition of portions of the suspended felony sentences. We examine his arguments in turn.


The defendant first argues that he did not violate the condition of good behavior in his felony sentencing orders because contempt of court is not a crime under the Criminal Code. He contends that criminal contempt is only considered a crime for purposes of establishing that a defendant charged with criminal contempt must be afforded the same due process guarantees as in ordinary criminal proceedings. We disagree.

We review the trial court's application of the law to the facts de novo. See State v. City of Dover, 153 N.H. 181, 185, 891 A.2d 524 (2006).

“To impose a suspended or deferred sentence on the ground that the defendant has violated ... [a] condition of good behavior, a trial court must find that the defendant engaged in criminal conduct.” State v. Kelly, 159 N.H. 390, 391, 986 A.2d 575 (2009) (quotations omitted). Violation of a sentence condition that occurs outside the presence of the court can constitute indirect criminal contempt of court. Cf. State v. Nott, 149 N.H. 280, 282, 821 A.2d 976 (2003). “Criminal contempt differs from civil contempt in that its purpose is to protect the authority and vindicate the dignity of the court....” Id. (quotations and citations omitted). A defendant convicted of criminal contempt “may be imprisoned for a determinate amount of time without the ability to purge the sentence because incarceration is punitive and not for the purpose of compelling the defendant to comply with a court order.” State v. Wallace, 136 N.H. 267, 270, 615 A.2d 1243 (1992).

We have long recognized that criminal contempt amounts to criminal conduct. See State v. Goodnow, 140 N.H. 38, 40, 662 A.2d 950 (1995) ( “Having been found in criminal contempt and sentenced therefor to imprisonment, the defendant has been punished for a criminal offense.”). “Contempt is an offense at common law—a specific and substantive offense that is separate and distinct from the matter in litigation out of which the contempt arose.” In the Matter of Kosek & Kosek, 151 N.H. 722, 726, 871 A.2d 1 (2005). We have expressly rejected the argument that contempt is not a crime simply because it is not defined in the Criminal Code. See State v. Martina, 135 N.H. 111, 116, 600 A.2d 132 (1991) (“RSA 625:6 does not in any way abolish the common law crime of criminal contempt ....” (emphasis added)). Similarly, the United States Supreme Court has consistently treated criminal contempt as a crime. See, e.g., Mine Workers v. Bagwell, 512 U.S. 821, 826, 114 S.Ct. 2552, 129 L.Ed.2d 642 (1994) (“Criminal contempt is a crime in the ordinary sense....”). Thus, having attempted to violate the no-contact order in the misdemeanor sentences, the defendant engaged in criminal conduct and violated the condition of good behavior in his felony sentencing orders.


Next, the defendant argues that the superior court prematurely convicted him of criminal contempt since it did so without holding a hearing to determine whether his contempt was, in fact, criminal or merely a violation-level offense. He argues that since contempt has no fixed penalty and its seriousness is only judged in retrospect based upon the punishment given, the superior court improperly imposed his suspended felony sentences without having held a hearing to determine the severity of his underlying offense. However, conviction of a crime is not a prerequisite to the imposition of a suspended sentence. Rather, when imposing portions of a previously suspended sentence, a trial court need only find, by a preponderance of the evidence, that the defendant committed a violation of a suspension condition. State v. Gibbs, 157 N.H. 538, 542, 953 A.2d 439 (2008). The State can meet this burden “either by establishing the fact of a criminal conviction for the acts which constitute the violation or by proof of the commission of the underlying acts.” Id. at 540, 953 A.2d 439. The mere fact that the classification of a contempt as criminal depends on the sentence actually imposed does not change this analysis because the law regarding criminal contempt is well-established and thus the defendant was on sufficient notice that his knowing violation of a court order could be treated as criminal conduct. Cf. United States v. Lanier, 520 U.S. 259, 271–72, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997) (in context of holding public official liable for violating federal civil rights statute, due process fair warning requirement is satisfied “if, but only if, in the light of preexisting law the unlawfulness [under the Constitution] is apparent” (quotations omitted)); State v. Fitanides, 139 N.H. 425, 427, 655 A.2d 411 (1995) (necessary specificity to avoid constitutional vagueness need not be contained in the statute itself, but may be gleaned from related statutes, prior decisions, or generally accepted usage). We review the trial court's imposition of a suspended sentence for an unsustainable exercise of discretion. Kelly, 159 N.H. at 391, 986 A.2d 575.

Here, the superior court found by a preponderance of the evidence that the defendant committed the underlying act of dialing Nichols's number, and also found that this conduct was sufficiently serious to constitute an attempted criminal contempt of court. Because the record supports those findings, we cannot say that the trial court unsustainably exercised its discretion. Cf. United States v. Chatelain, 360 F.3d 114, 124–25 (2d Cir.2004) (though defendant's state court...

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  • State v. Sloboda
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    ...a bail condition constitutes criminal contempt, which is a common law crime punishable by fines or imprisonment. State v. Smith , 163 N.H. 13, 35 A.3d 646, 649-50 (2011) ("We have expressly rejected the argument that contempt is not a crime simply because it is not defined in the Criminal C......
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    ...prevent the trial court from imposing additional conditions on a term of imprisonment, relying upon on our decision in State v. Smith, 163 N.H. 13, 35 A.3d 646 (2011). In Smith, however, we were not asked to consider whether the trial court had exceeded its statutory authority by imposing t......
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