State v. Sullivan

• Decision Date: 06 November 1997
• Docket Number: No. 96-278.,96-278.
• Citation: 142 N.H. 399,702 A.2d 339
• Court: New Hampshire Supreme Court
• Parties: The STATE of New Hampshire v. Michael SULLIVAN.

142 N.H. 399

702 A.2d 339

The STATE of New Hampshire

v.Michael SULLIVAN.

No. 96-278.

Supreme Court of New Hampshire.

Nov. 6, 1997.

Steven M. Houran, Acting Attorney General(Malinda R. Lawrence, attorney, on the brief and orally), for the State.

Gleason Law Offices, P.C., Haverhill, MA (Thomas J. Gleason and Scott F. Gleason, on the brief, and Scott Gleason, orally), for defendant.

BRODERICK, Justice.

The defendant, Michael Sullivan, pled guilty to one count of felonious sexual assault against a fourteen-year-old boy.SeeRSA 632-A:3 (1995).On appeal, the defendant argues that the Superior Court(Mohl, J.) erred at his sentencing hearing by improperly considering unsubstantiated evidence of other crimes and alleged coercion, and that prosecutorial misconduct deprived him of due process of law under the Federal and State Constitutions.We affirm.

At the defendant's sentencing hearing, the prosecutor recited the pertinent facts of the case, which the defendant agreed were true.After appropriate colloquy to ensure that the defendant's plea was lawfully entered, the trial court accepted the plea.In response to inquiry from the court, the defendant acknowledged he had reviewed the probation report offered at the hearing, found it to be accurate, and had no objection to it.The prosecutor then recommended a sentence of three to seven years, to run consecutive to a sentence the defendant was then serving in Maine.

In support of the recommended sentence, the prosecutor argued that although the assault on the victim did not constitute aggravated felonious sexual assault, it contained an "element of coercion."Referring to the probation report, the prosecutor characterized the victim's version of events as evidence that the victim had been unwilling to engage in sexual conduct and that, despite protest, the defendant continued his assault.Defense counsel did not object to this aspect of the prosecutor's presentation.When the prosecutor continued his argument by stating that according to the probation report, the defendant may have sexually assaulted others, defense counsel immediately objected and challenged the existence of any evidence supporting the assertion of other assaults.The court ruled that although the prosecutor was free to refer to information contained in the probation report, it did not consider the other assaults evidence to be reliable.The prosecutor then acknowledged on the record that he could not "represent that, in fact, there [had] been [other assaults]."

At the conclusion of the hearing, the court sentenced the defendant to serve three to six years in the New Hampshire State Prison, to run consecutively to his Maine sentence; ordered him to pay restitution; and recommended that he participate in a sexual offender program.This appeal followed.

We first address the defendant's contention that the trial court improperly considered allegations of other assaults.A trial court has "wide discretion in choosing the sources and types of evidence on which to rely in imposing sentence."State v. Rodrigue,127 N.H. 496, 500, 506 A.2d 299, 303(1985).The sentencing court's discretion, however, is not without limits.Judges are "to ignore unsubstantiated, unverified statements made in the probation report."State v. Cote,129 N.H. 358, 372, 530 A.2d 775, 783(1987).Allegations or conclusory statements of other criminal conduct should never be considered in imposing sentence unless they are based on evidence that raises "suspicion to the point of probability."State v. Tufts,136 N.H. 517, 519-20, 618 A.2d 818, 819-20(1992).

While the probation report contained a statement from the victim that he knew of other boys whom the defendant had also allegedly assaulted, the State conceded at the sentencing hearing that the other assaults had not been verified.The record reveals that the sentencing court disregarded the questioned allegations:

It certainly is not the kind of reliable testimonial evidence that the Court would feel comfortable with, and certainly perhaps enhancing what I might otherwise do, but it's in [the probation report], and [the State] certainly is free to comment on whatever is in the report.I don't place a lot of weight in it, frankly, given the manner in which it is presented to me.

The defendant argues that because the sentencing court stated that it did not place "a lot" of weight on the allegations of other assaults, it must have placed some weight on such evidence.The court's comment, however, must be read in the context of the entire record.Cf.State v. Aubert,118 N.H. 739, 742, 393 A.2d 567, 569(1978)(holding that trial judge's statement, in context of entire record, did not indicate predetermination of guilt based on previously withdrawn guilty plea).Such a review confirms that the sentencing court acted properly.Cf.State v. Wisowaty,133 N.H. 604, 608-09, 580 A.2d 1079, 1081(1990)(remanding for resentencing because it was unclear whether sentencing judge relied on unsubstantiated allegations of criminal conduct).The sentencing court stated that it determined the defendant's sentence "based on the facts [of]this case."The court observed "that the defendant took advantage of a young and impressionable fourteen year old boy, ... [which is] a serious criminal offense."The court expressly noted that the defendant did not have a criminal record in concluding that a "substantial punishment" was nonetheless appropriate based on the seriousness of the offense.As no improper evidence of other assaults was considered in deciding the defendant's sentence, remand is not warranted.SeeWisowaty,133 N.H. at 608-09, 580 A.2d at 1081.

The defendant next argues that the trial court impermissibly relied upon...