State v. White

556 A.2d 308, 131 N.H. 555, 1989 N.H. LEXIS 26
CourtSupreme Court of New Hampshire
DecidedApril 7, 1989
DocketNo. 88-109
StatusPublished
Cited by16 cases

This text of 556 A.2d 308 (State v. White) 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. White, 556 A.2d 308, 131 N.H. 555, 1989 N.H. LEXIS 26 (N.H. 1989).

Opinion

Batchelder, J.

The defendant appeals a Superior Court (O’Neil, J.) sentence to incarceration following probation violations. For the reasons that follow, we affirm.

The facts of this case are not in dispute. On July 16, 1987, the trial court accepted the defendant’s guilty plea for the crime of attempted theft by unauthorized taking and sentenced him to twelve months in the house of correction, with credit for 219 days of pre-sentence confinement, and two years of probation to begin after his release from the house of correction. The trial court’s sentencing order included substance abuse counseling and drug testing as explicit conditions of the defendant’s probation, but did not include a suspended sentence.

The defendant served his twelve-month committed sentence completely and reported to the department of probation twice in the fall of 1987. Someone at the probation department read and explained to him the terms and conditions of the standard probation form. The form includes the following item: “I understand that if I violate any of the conditions of probation/parole, I will be subject to arrest with the court revoking my probation and imposing a sentence of confinement.” The defendant signed a copy of the form.

On November 23, 1987, the defendant’s probation officer filed a probation violation report with the court alleging that the defendant had failed to report to the probation office at the proper times and places, failed to notify the probation office of change of address and out-of-state travel, failed to enroll and participate in the required mental health counseling, failed to notify the probation department of arrests, and failed “to be of good conduct, obey all laws and be arrest free.”

[557]*557The court held a violation of probation hearing on February 18, 1988, and found “beyond all doubt that [the defendant] violated his probation in more than one area.” The court revoked the defendant’s probation and sentenced him to incarceration for two and one-half to five years at the New Hampshire State Prison, with one and one-half years of the minimum and two years of the maximum suspended, consecutive to the defendant’s current sentence and not to be brought forward after a period of two years after release. This appeal ensued.

On appeal, the defendant argues that the court’s imposition of a term of imprisonment upon his probation violation, when the original sentencing order did not contain a suspended sentence, constitutes an additional term of imprisonment without notice, which violates his constitutional right to due process and the prohibition against double jeopardy. The defendant contends that when a court imposes a sentence of incarceration and consecutive probation, with neither portion suspended, “there [is] nothing for the court to call forward subsequently and no further punishment leviable on the defendant.” The defendant also argues that, in his particular case, the court did not contemplate that anything should be done to this defendant upon probation violation, because defense counsel had requested probation “simply as something to further induce Mr. White to try to bring himself around . . . .”

Statutory law authorizes courts to impose fines or imprisonment upon probation violation up to the balance of the maximum which could have been imposed originally. RSA 651:2, VII; see also State v. Perkins, 121 N.H. 713, 715-16, 435 A.2d 504, 505 (1981). The issue in this case, then, is whether that statutory provision violates due process or puts defendants in double jeopardy when applied to cases wherein the initial sentencing order did not contain a suspended sentence.

The defendant in this case seems to join claims of violation of both double jeopardy and due process rights under the general assertion that his sentence was “impermissibly augmented.” Since federal law provides the defendant no greater rights than State law, we need not undertake an independent federal analysis of his claims. See United States v. DiFrancesco, 449 U.S. 117, 137 (1980) (double jeopardy); Morrissey v. Brewer, 408 U.S. 471, 480-490 (1972) (citing Gagnon v. Scarpelli, 411 U.S. 778, 781-82 (1973)) (due process).

The double jeopardy claim is not convincing because, at the time the defendant was sentenced, he was placed on probation for two years in addition to being committed to the house of correction [558]*558for twelve months. RSA 651:2 provided that he could be placed on probation for up to five years because his crime was a felony, and in the event his probation was revoked, he could be sentenced to imprisonment as authorized in paragraph II of RSA 651:2. When the defendant left the courtroom on July 16, 1987, he knew, or should have known, that he was committed to the house of correction for twelve months, that credit was given for 219 days pre-sentence confinement, and that he was to live under the aegis of the probation department for two years following release from the house of correction. He is presumed also to have known that if his probation terms were found by the court, after notice and hearing, to have been violated, he faced the possibility of further incarceration, not to exceed the limit prescribed by the legislature for (in his case) a class B felony. When he was found in fact to have violated his probation on February 18, 1988, it was not a case where there was no “further punishment leviable” because no part of the original term of commitment had been suspended; it was merely a case where the court took the next step in the original sentencing process which began in July of 1987. The court’s jurisidiction had been continued by reason of the provision for probation. Had there been no probation, we would be examining a horse of a different color, and the defendant’s argument would be more persuasive.

The “due process” segment of the defendant’s argument does not, for a number of reasons, salvage his claim of impermissible augmentation of his sentence. He places great faith upon our discussion of protected rights in the sentencing process as set forth in Stapleford v. Perrin, 122 N.H. 1083, 453 A.2d 1304 (1982); State v. Rau, 129 N.H. 126, 523 A.2d 98 (1987); and State v. Ingerson, 130 N.H. 112, 536 A.2d 161 (1987).

In this case the trial court, having sentenced the defendant to less than the statutory maximum for the crime for which he had pled guilty, and having not levied any fine, retained jurisidiction to limit the defendant’s liberty interest further because of the imposition of the two-year probationary period. When probation is imposed, the sentencing function is not ended, however strongly the parties may hope that it has. Stapleford stands for the proposition that a defendant whose retained liberty interest is to be revoked in whole or in part is entitled to a due process hearing and the opportunity to be heard to test the State’s case against him and to offer evidence in his own behalf in an effort to defeat the revocation. Stapleford, supra at 1088, 453 A.2d at 1307.

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Bluebook (online)
556 A.2d 308, 131 N.H. 555, 1989 N.H. LEXIS 26, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-white-nh-1989.