State v. Theodosopoulos, 82-294

• Decision Date: 06 May 1983
• Docket Number: No. 82-294,82-294
• Citation: 123 N.H. 287,461 A.2d 100
• Parties: The STATE of New Hampshire v. Thomas H. THEODOSOPOULOS.
• Court: New Hampshire Supreme Court

Page 100

461 A.2d 100

123 N.H. 287

The STATE of New Hampshire v. Thomas H. THEODOSOPOULOS.

No. 82-294.

Supreme Court of New Hampshire.

May 6, 1983.

Gregory H. Smith, Atty. Gen. (Gregory W. Swope, Concord, on brief and orally), for the State.

Wadleigh, Starr, Peters, Dunn & Kohls, Manchester (Eugene M. Van Loan, III, Manchester, on brief and orally), for defendant.

BOIS, Justice.

The issue in this appeal is whether the Trial Court (Dalianis, J.) correctly ruled that the defendant was not eligible in April 1982 to seek a suspension of his sentence. We affirm.

On April 18, 1981, the defendant pleaded guilty to two charges of aggravated assault stemming from events occurring in 1977. The trial court sentenced him to two concurrent terms of two-and-one-half to five years in State prison. On April 21, 1982, after serving one year of his sentence, the defendant filed a motion to reduce the sentence.

At the time of the defendant's crime in 1977, RSA 651:20 provided, in pertinent part, that:

"[T]he sentence to imprisonment of any person may be suspended, at the time of sentence or at any time while any part thereof remains unserved ...."

(Emphasis added.) See Laws 1971, 518:1.

In 1979, the legislature amended these provisions to read as follows:

"[T]he sentence to imprisonment of any person may be suspended, at the time of sentence or no later than 180 days after imposition of the sentence, unless otherwise ordered by the court at the sentencing ...."

(Emphasis added.) See Laws 1979, 407:3. The 1979 provisions were in effect at the time of the defendant's sentencing and during the first four months of his sentence.

In 1981, the legislature again revised the provisions for suspension of sentences. The 1981 revisions, which were in effect when the defendant filed his motion for suspension, provided:

"[T]he sentence to imprisonment of any person may be suspended, at the time of sentence unless otherwise ordered by the court, or at any time while any part of the sentence remains unserved, but a petition to suspend sentence may not be brought less than 2 years after commencement of said sentence nor more frequently than every 2 years thereafter...."

Laws 1981, 516:1. Subsequent revisions in sentencing procedures, see Laws 1982, 36:3 (codified, at RSA 651:20 (Supp.1982)), are not involved in this appeal.

At the time of the defendant's motion for suspension, the State failed to apprise the trial judge of the various changes in RSA 651:20. When the State finally brought the statutory issue to her attention, the trial judge denied the defendant's motion. She ruled that the 1979 version of RSA 651:20, which was in effect at the time of the defendant's plea bargain and sentencing, precluded any suspension of the sentence, because the defendant had failed to file his motion within 180 days of his sentencing. The defendant appealed to this court, claiming that the 1977 version of RSA 651:20 provided the applicable law and that the trial judge therefore erred in applying the 1979 statute.

The defendant first argues that the legislature did not intend either the 1979 or 1981 sentence suspension provisions to apply to individuals who, like himself, were serving sentences on those dates but whose crimes had been committed prior to those dates. We disagree. It is axiomatic that statutes are intended to speak from the time they go into effect unless otherwise indicated. Breest v. Helgemoe, 117 N.H. 40, 42, 369 A.2d 612, 613 (1977). Here, the legislature did not limit the applicability of the 1979 and 1981 amendments only to those defendants committing crimes after the respective dates of such amendments. Consequently, we conclude that the legislature intended the provisions to apply to all defendants under sentence at the time the provisions went into effect.

The defendant also argues that the application of the sentence suspension provisions enacted after the commission of his crimes constitutes a violation of the constitutional ban against ex post facto laws.

Both the State and Federal Constitutions prohibit the retroactive application of any law enacted after one's crime or sentence, which would result in the imposition of more severe punishment. Weaver v. Graham, 450 U.S. 24, 30, 101 S.Ct. 960, 965, 67 L.Ed.2d 17 (1981); State v. Breest, 116 N.H. 734, 754, 367 A.2d 1320, 1335-36 (1976); see Shepard v. Taylor, 556 F.2d 648, 654 (2d Cir.1977); U.S. Const. art. I § 9; N.H. Const. pt. I, art. 23. See generally State v. Lambert, 119 N.H. 881, 884, 409 A.2d 794, 796 (1979). The constitutional prohibition "was intended to secure substantial personal rights against arbitrary and oppressive legislation." Dobbert v. Florida, 432 U.S. 282, 293, 97 S.Ct. 2290, 2298, 53 L.Ed.2d 344 (1977) (citing Malloy v. South Carolina, 237 U.S. 180, 183, 35 S.Ct. 507, 508, 59 L.Ed. 905 (1915)). The prohibition does not bar the retroactive application of a law whose impact is procedural or insubstantial. Dobbert v. Florida, 432 U.S. at 293, 97 S.Ct. at 2298.

In deciding whether the application of the sentence suspension provisions enacted after the defendant committed his crimes violates the ex post facto prohibition, we must determine whether their application substantially disadvantages the...