James Couch v. NH State Prison CV-96-547-B 07/13/99
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
James Couch
v. Civil No. 96-547-B
Michael Cunningham, Warden
O R D E R
James Couch has filed a habeas corpus petition alleging that
the State of New Hampshire revoked his probation and sentenced
him to the maximum prison term permitted by law for his offense
in violation of the Fifth Amendment's double jeopardy clause and
his Fourteenth Amendment right to substantive due process. The
state now moves for summary judgment. Because I determine that
Couch's claims have no merit, I grant the state's motion.
I. FACTS
Couch pleaded guilty to one count of felonious sexual
assault on February 6, 1993, in Cheshire County Superior Court.
Pursuant to his plea agreement. Couch was sentenced to 12 months in the Cheshire County House of Corrections and five years of
probation.1 He also received a 2-to-4-year state prison
sentence, which was deferred for one year following his release
from the House of Corrections. The sentencing judgment provided
that Couch could avoid the deferred sentence by demonstrating
that it should not be imposed 30 days prior to the expiration of
the deferral period. The judgment also specified that
"violation of probation . . . may result in revocation of
probation . . . and imposition of any sentence within the legal
limits for the underlying offense." Finally, the sentence
stated:
If the defendant has served the House of Corrections sentence portion of one (1) year, he is to receive confinement credit as against the seven (7) year maximum sentence for a Class B Felony, but only if the defendant is resentenced on a Violation of Probation to a State prison maximum sentence in excess of six (6) years; that is: After the defendant has served his year in the House of Corrections and if he is resentenced on a Violation of Probation, the defendant's maximum outstanding sentence could be not more than six (6) years nor less than three (3) years in the New Hampshire State Prison, stand committed
Couch served 12 months in the Cheshire County House of
Corrections. Upon release, he executed a probation contract
1 Couch's sentence provided that "violation of probation . . . may result in revocation of probation . . . and imposition of any sentence within the legal limits for the underlying offense."
-2- stating that he agreed to participate in and complete the
Monadnock Family Services sex offender treatment program. Couch
was subseguently denied admission to the Monadnock program. He
was arrested, charged with violating his probation, and sentenced
to 3-1/2 to 7 years in the state prison.2
With the assistance of counsel. Couch appealed to the New
Hampshire Supreme Court, alleging that the superior court's
determination that he violated probation was unsupported by the
record. The supreme court affirmed the superior court's
decision. Couch, acting pro se, subseguently filed a petition
for a writ of habeas corpus in the Cheshire County Superior
Court, alleging that the state breached his plea agreement and
that his probation revocation sentence constituted a double
jeopardy violation. The superior court denied Couch's petition
and his motion for reconsideration, which also alleged due
process violations based on the court's refusal to provide Couch
with transcripts of his plea agreement.
Couch did not appeal the superior court's decision. Rather,
he filed a petition for a writ of certiorari with the New
Hampshire Supreme Court. The supreme court denied Couch's
2 Couch received credit for 373 days served, which included his 12 months in the Cheshire County House of Corrections and pre-probation revocation hearing confinement.
-3- petition on September 30, 1996. Couch filed his petition for a
writ of habeas corpus in this court on November 1, 1996. He
subsequently sought a stay of proceedings to seek counsel and,
with the assistance of counsel, filed the amended petition now
before me.
II. DISCUSSION
A. Double Jeopardy
Couch argues that the trial court's decision to revoke his
probation and sentence him to the maximum prison term permitted
by law for his offense rather than imposing the deferred 2-to-4-
year sentence violates his right to be free from double jeopardy.
I disagree. In United States v. DiFrancesco, 449 U.S. 117, 137
(1980), the Supreme Court stated in dictum that "there is no
double jeopardy protection against the revocation of probation
and the imposition of imprisonment." Most recent federal and state court decisions addressing facts similar to
those at issue here have cited DiFrancesco in rejecting double
jeopardy challenges. See, e.g.. State v. White, 131 N.H. 555,
585 (1989); State v. McMullen, 452 N.E.2d 1292, 1294 (Ohio 1983);
State v. Jones, 418 N.W.2d 782, 785 (N.D. 1988); State v.
Griffith, 787 S.W.2d 340, 341 (Tenn. 1990); see generally, 23 ALR
4th 883; but see Nelson v. State, 617 P.2d 502, 503 (Alaska 1981)
(double jeopardy violated where state law did not allow for
imposition of greater sentence after revocation and court imposed
new sentence with a later parole eligibility date than the
original deferred sentence).
The present case presents no unusual facts that would
warrant a conclusion contrary to the general rule articulated in
DiFrancesco. New Hampshire law authorizes a judge after revoking
a defendant's probation to sentence the defendant to any term of
imprisonment authorized by law. N.H. Rev. Stat. Ann. § 651:2
VII; see State v. White, 131 N.H. 555 (1989) . Moreover, while
the sentencing court in this case included a deferred 2-to-4-
year sentence as a part of Couch's original sentence, it also
specified in the sentencing judgment that Couch could receive a sentence of up to 3-1/2 to 7 years if he violated the terms of
his probation. Under these circumstances. Couch had no right to
expect that the court would limit his sentence to 2 to 4 years if
he violated his probation. Accordingly, Couch's sentence did not
violate the Fifth Amendment's double jeopardy clause.
B. Substantive Due Process
Couch argues that the state violated his right to
substantive due process by revoking his probation based upon his
failure to obtain admission to the Monadnock Family Services Sex
Offender Program. I also reject this argument.
The state judge assigned to Couch's revocation proceeding
conducted a lengthy evidentiary hearing before deciding to revoke
his probation. Substantial evidence was produced at the hearing
to warrant a conclusion that Couch violated his probation by
failing to gain admission into the Monadnock program because (1)
he failed to express remorse for his victims or accept
responsibility for his criminal conduct; (2) he exhibited signs
Free access — add to your briefcase to read the full text and ask questions with AI
James Couch v. NH State Prison CV-96-547-B 07/13/99
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
James Couch
v. Civil No. 96-547-B
Michael Cunningham, Warden
O R D E R
James Couch has filed a habeas corpus petition alleging that
the State of New Hampshire revoked his probation and sentenced
him to the maximum prison term permitted by law for his offense
in violation of the Fifth Amendment's double jeopardy clause and
his Fourteenth Amendment right to substantive due process. The
state now moves for summary judgment. Because I determine that
Couch's claims have no merit, I grant the state's motion.
I. FACTS
Couch pleaded guilty to one count of felonious sexual
assault on February 6, 1993, in Cheshire County Superior Court.
Pursuant to his plea agreement. Couch was sentenced to 12 months in the Cheshire County House of Corrections and five years of
probation.1 He also received a 2-to-4-year state prison
sentence, which was deferred for one year following his release
from the House of Corrections. The sentencing judgment provided
that Couch could avoid the deferred sentence by demonstrating
that it should not be imposed 30 days prior to the expiration of
the deferral period. The judgment also specified that
"violation of probation . . . may result in revocation of
probation . . . and imposition of any sentence within the legal
limits for the underlying offense." Finally, the sentence
stated:
If the defendant has served the House of Corrections sentence portion of one (1) year, he is to receive confinement credit as against the seven (7) year maximum sentence for a Class B Felony, but only if the defendant is resentenced on a Violation of Probation to a State prison maximum sentence in excess of six (6) years; that is: After the defendant has served his year in the House of Corrections and if he is resentenced on a Violation of Probation, the defendant's maximum outstanding sentence could be not more than six (6) years nor less than three (3) years in the New Hampshire State Prison, stand committed
Couch served 12 months in the Cheshire County House of
Corrections. Upon release, he executed a probation contract
1 Couch's sentence provided that "violation of probation . . . may result in revocation of probation . . . and imposition of any sentence within the legal limits for the underlying offense."
-2- stating that he agreed to participate in and complete the
Monadnock Family Services sex offender treatment program. Couch
was subseguently denied admission to the Monadnock program. He
was arrested, charged with violating his probation, and sentenced
to 3-1/2 to 7 years in the state prison.2
With the assistance of counsel. Couch appealed to the New
Hampshire Supreme Court, alleging that the superior court's
determination that he violated probation was unsupported by the
record. The supreme court affirmed the superior court's
decision. Couch, acting pro se, subseguently filed a petition
for a writ of habeas corpus in the Cheshire County Superior
Court, alleging that the state breached his plea agreement and
that his probation revocation sentence constituted a double
jeopardy violation. The superior court denied Couch's petition
and his motion for reconsideration, which also alleged due
process violations based on the court's refusal to provide Couch
with transcripts of his plea agreement.
Couch did not appeal the superior court's decision. Rather,
he filed a petition for a writ of certiorari with the New
Hampshire Supreme Court. The supreme court denied Couch's
2 Couch received credit for 373 days served, which included his 12 months in the Cheshire County House of Corrections and pre-probation revocation hearing confinement.
-3- petition on September 30, 1996. Couch filed his petition for a
writ of habeas corpus in this court on November 1, 1996. He
subsequently sought a stay of proceedings to seek counsel and,
with the assistance of counsel, filed the amended petition now
before me.
II. DISCUSSION
A. Double Jeopardy
Couch argues that the trial court's decision to revoke his
probation and sentence him to the maximum prison term permitted
by law for his offense rather than imposing the deferred 2-to-4-
year sentence violates his right to be free from double jeopardy.
I disagree. In United States v. DiFrancesco, 449 U.S. 117, 137
(1980), the Supreme Court stated in dictum that "there is no
double jeopardy protection against the revocation of probation
and the imposition of imprisonment." Most recent federal and state court decisions addressing facts similar to
those at issue here have cited DiFrancesco in rejecting double
jeopardy challenges. See, e.g.. State v. White, 131 N.H. 555,
585 (1989); State v. McMullen, 452 N.E.2d 1292, 1294 (Ohio 1983);
State v. Jones, 418 N.W.2d 782, 785 (N.D. 1988); State v.
Griffith, 787 S.W.2d 340, 341 (Tenn. 1990); see generally, 23 ALR
4th 883; but see Nelson v. State, 617 P.2d 502, 503 (Alaska 1981)
(double jeopardy violated where state law did not allow for
imposition of greater sentence after revocation and court imposed
new sentence with a later parole eligibility date than the
original deferred sentence).
The present case presents no unusual facts that would
warrant a conclusion contrary to the general rule articulated in
DiFrancesco. New Hampshire law authorizes a judge after revoking
a defendant's probation to sentence the defendant to any term of
imprisonment authorized by law. N.H. Rev. Stat. Ann. § 651:2
VII; see State v. White, 131 N.H. 555 (1989) . Moreover, while
the sentencing court in this case included a deferred 2-to-4-
year sentence as a part of Couch's original sentence, it also
specified in the sentencing judgment that Couch could receive a sentence of up to 3-1/2 to 7 years if he violated the terms of
his probation. Under these circumstances. Couch had no right to
expect that the court would limit his sentence to 2 to 4 years if
he violated his probation. Accordingly, Couch's sentence did not
violate the Fifth Amendment's double jeopardy clause.
B. Substantive Due Process
Couch argues that the state violated his right to
substantive due process by revoking his probation based upon his
failure to obtain admission to the Monadnock Family Services Sex
Offender Program. I also reject this argument.
The state judge assigned to Couch's revocation proceeding
conducted a lengthy evidentiary hearing before deciding to revoke
his probation. Substantial evidence was produced at the hearing
to warrant a conclusion that Couch violated his probation by
failing to gain admission into the Monadnock program because (1)
he failed to express remorse for his victims or accept
responsibility for his criminal conduct; (2) he exhibited signs
of having abused alcohol prior to two assessment sessions; and
(3) he failed to complete a sexual assessment that was a
prereguisite to admission into the program. Substantial evidence was also produced to justify a conclusion that Couch was unlikely
to successfully complete any other sex offender program, given
his behavior and attitude concerning his offense. Finally, the
record contains ample evidence to warrant a conclusion that Couch
posed a substantial danger to society if he were allowed to
remain on probation without successfully completing a sex
offender program. This evidence provides ample justification for
the trial court's decision to revoke Couch's probation and
sentence him to the maximum prison term permitted by law for his
offense. See State v. Kochvi, 140 N.H. 662, 666 (1996)
(substantive due process not denied by revocation of probation
for failing to participate in sex offender program); State v.
Morrow, 492 N.W.2d 539, 546 (Minn. Ap p . 1992) (same); State v.
Nixon, 906 S.W.2d 369, 372 (Mo. 1995) (same); Davis v. Wright,
1989 WL 131262, at *3 (D. Or. 1989) (same).
III. CONCLUSION
For the reasons set forth above, defendant's motion for
summary judgment is granted.3
3 Because the state is entitled to summary judgment on the merits, I do not reach its claims that relief is barred because Couch failed to exhaust his state court remedies and independent and adeguate state law grounds support the state supreme court's rejection of his claims.
-7- SO ORDERED.
Paul Barbadoro Chief Judge
July 13, 1999
cc: Scott F. Johnson, Esq. Michael Delaney, Esq.
-8-