State v. Burr

696 A.2d 1114, 142 N.H. 89, 1997 N.H. LEXIS 60
CourtSupreme Court of New Hampshire
DecidedJune 19, 1997
DocketNo. 96-232
StatusPublished
Cited by8 cases

This text of 696 A.2d 1114 (State v. Burr) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Burr, 696 A.2d 1114, 142 N.H. 89, 1997 N.H. LEXIS 60 (N.H. 1997).

Opinion

HORTON, j.

The defendant, Richard R. Burr, petitioned the Superior Court (Morrill, J.) for annulment of his criminal record. Relying on 1994 amendments to the statute governing annulment petitions, the superior court denied the defendant’s petition without prejudice. See Laws 1994, ch. 224 (currently codified at RSA 651:5 (1996)) (the new statute). On appeal, the defendant argues that the superior court erred in applying the new statute because the defendant relied on a prior version of the statute in agreeing to plead guilty in 1989. See RSA 651:5 (Supp. 1989) (the prior statute). We affirm.

The following facts are undisputed. In August 1989, the defendant pleaded guilty to theft by unauthorized taking, a class A felony. The defendant’s guilty plea resulted from negotiations between his attorney and the prosecuting attorney. Consistent with the prosecutor’s recommendations in the plea agreement, the superior court sentenced the defendant to ninety days of house arrest and probation for a period of five years beginning on September 15, 1989.

According to an “Agreed upon Statement of Facts” submitted to this court, “[a]t the time the parties negotiated the sentence, they clearly understood the impact of the sentence upon defendant’s ability to have his record annulled.” Furthermore, “at the time of the negotiations, the parties anticipated that defendant’s eligibility for an annulment of his record would be governed by the then-existing” version of the annulment statute. See RSA 651:5 (Supp. 1989).

At the time of the defendant’s conviction and sentencing in 1989, the prior annulment statute provided in part:

[91]*91If a person who has been sentenced to probation . . . has complied with the conditions of his sentence, he may, at any time after one year following [the] completion of the terms of his sentence, apply to the court in which the original sentence was entered for an order to annul the record of conviction and sentence.

RSA 651:5, I (Supp. 1989) (emphasis added). In May 1994, the legislature amended various provisions of the prior annulment statute by means of repeal and reenactment of RSA 651:5. See 1994 Laws, ch. 224 (currently codified at RSA 651:5 (1996)). The new statute provides, in relevant part, that a person convicted of a class A felony may petition for annulment “when the petitioner has completed all the terms and conditions of the sentence and has thereafter been convicted of no other crime” for a period of ten years. RSA 651:5, 111(e) (1996). By its express terms, the new statute generally applies to “any petition for annulment brought after” January 1, 1995. Laws 1994, 224:2, :4; see State v. Comeau, 142 N.H. 84, 87, 697 A.2d 497, 499 (1997).

In this case, the defendant filed a petition for annulment of his class A felony conviction on January 8, 1996 — more than one year after completing his sentence of probation. See RSA 651:5, I (Supp. 1989). The State objected to the petition, arguing that it was “premature” pursuant to the new statute. See RSA 651:5, 111(e) (1996). Following a hearing, the superior court denied the petition without prejudice and ruled that application of the new statute did not constitute an ex post facto law. This appeal followed.

The defendant’s brief advances two distinct arguments in support of his contention that the prior annulment statute should apply to his petition: (1) his agreement to plead guilty constituted a contract with the State and incorporated the prior statute as a specific contractual term or condition; and (2) retrospective application of the new statute would deny him a vested right in violation of the State and Federal Constitutions. We note that the defendant’s notice of appeal solely identified the following question for our review: “Whether a subsequent change in a statute can invalidate a negotiated plea agreement in which the defendant, in part, relied upon the statute as it was currently written in waiving his constitutional rights and entering a guilty plea.” “Although this question is far from the model of specificity we would prefer to encounter” in a notice of appeal, Hillside Assocs. of Hollis v. Maine Bonding & Cas. Co., 135 N.H. 325, 330, 605 A.2d 1026, 1029 (1992), we assume without deciding that the more specific issues addressed in the [92]*92defendant’s brief constitute questions subsidiary to the general question set forth in the notice of appeal. Cf. SUP. CT. R. 16(3)(b); Hillside Assocs., 135 N.H. at 330, 605 A.2d at 1029. We conclude, however, that the defendant’s failure to devote anything more than passing reference in his brief to retrospective laws and vested rights undér the Federal Constitution renders those federal claims waived. See State v. Chick, 141 N.H. 503, 504, 688 A.2d 553, 554 (1996). Our subsequent discussion of the defendant’s vestéd rights argument is therefore limited to the State Constitution, and we cite decisions to the extent that they rely upon federal law only as an aid to our analysis. See State v. MacLeod, 141 N.H. 427, 428, 685 A.2d 473, 475 (1996).

The defendant’s contract-based argument attempts to draw on the principle “that when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” Santobello v. New York, 404 U.S. 257, 262 (1971). Our function, therefore, is to determine the specific terms of the plea agreement as the defendant “reasonably understood them.” State v. Little, 138 N.H. 657, 660, 645 A.2d 665, 667 (1994).

Here, we hold that the defendant could not reasonably have understood the plea agreement to incorporate the prior annulment statute as a term or condition. The two-page plea agreement, signed by both the defendant and his attorney, is devoid of any references to the prior statute or to the annulment of criminal records generally. Moreover, the agreement expressly provides that

[n]o promises have been made to me by any member of the Prosecut[o]r’s Office or anyone else in an effort to have me enter this plea of GUILTY to the indictment, except as follows: House Arrest for 90 days; 5 Yrs. Probation; Restitution of $4,500.00.

Similarly, in a document notifying the superior court of the defendant’s intention to enter = a guilty plea, the defendant and his attorney never identified the prior statute or the annulment of criminal records generally. Instead, that document merely confirms that the defendant’s guilty plea was based on his understanding of the prosecution’s sentencing recommendations concerning house arrest, probation, and restitution.

Given the absence of any indication that the plea agreement resulted from prosecutorial promises or agreements relating to the defendant’s ability to petition for annulment, we consider the [93]*93defendant’s reliance on the parties’ general understandings or expectations misplaced.

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Cite This Page — Counsel Stack

Bluebook (online)
696 A.2d 1114, 142 N.H. 89, 1997 N.H. LEXIS 60, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-burr-nh-1997.