2004-526, STATE OF NH v. JOSEPH LECOUFFE

one - half to fifteen year sentences in New Hampshire State Prison. 1995) on April 15, 1992. He is currently serving two consecutive seven and aggravated felonious sexual assault, see RSA 632 - A:2, I (1986) (amended 1992, The defendant was convicted of burglary, see RSA 635:1 (1996), and

vacate and remand. Superior Court (Burling, J.) denying his motion to modify his sentence. We DALIANIS, J. The defendant, Joseph LeCouffe, appeals an order of the

brief, as amicus curiae. Christ opher M. Johnson, chief appellate defender, of Concord, on the

Joseph LeCouffe, by brief, pro se.

brief), for the State. Kelly A. Ayotte, attorney general (Dianne H. Martin, attorney, on the

No. 2004 - 526 Grafton

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. O pinions are available on the Internet by 9:00 Errors may be reported by E - mail at the following address: errors in order that corrections may be made before the opinion goes to press. Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

at the New Hampshire State Prison is an educational Level p. 2 2 Substance Abuse Services program now offered The Court notes that it is uncontroverted that the

. . . .

petitioning this Court again fo r release.’ ‘The Defendant must complete Summit House prior to Court immediately upon completing Summit House. 651 to allow the Defendant to come back before the that Order, the Court waived the provisions of RSA attend and complete the Sum mit House program. In on October p. 2 22, 2002 ordered that the Defendant At the Defendant’s request, this Court (Smith, J.)

(Burling, J.) ruled as follows: under the October p. 2 22, 2002 order. Following a hearing, the Trial Court contended should be treated as the equivalent o f completing Summit House sentence. He alleged that he had completed the SAS program, which he On February 29, 2004, the defendant once again moved to modify his

would replace the Summit House program. of corrections indicated, in a notice issued to p risoners, that the SAS program a new program, the Substance Abuse Services (SAS) program. The department terminated on June 1, p. 2 2003. Thereafter, the department of corrections created minimum paro le date, March 23, 2007. Summit House, however, was which was a substance abuse program, until he was within two years of his The defendant was not allowed to enter the Summit House program,

to petitioning this Court again for release. The defendant must complete Summit House prior immediately upon completing Summit House. 651 to allow [the defendant] to come back before me The Court correctly waived the provisions of RSA attend and complete Summit House. [The order] should have required [the defendant] to

placed on defendant to achieve p robation.” The court stated: the motion to reconsider, the court indicated it had “misstated a requirement completed the prison sex offender program. In its October p. 2 22, 2002 order on de fendant moved for reconsideration on the grounds that he had already waived. May reapply after completion of prison sex offender program.” The sentence, the Superior Court (Smith, J.) held: “Provisions of RSA 651 are In response to the defendant’s June 6, 2002 motion for reduction of p. 3 3

651:20 (Supp. 1990) (amended 1992, 1994). The State concedes, without prisoner to petition the court to suspend his sentence every two years. RSA program was a boon to the defendant. RSA 651:20, at the time, allowed a state Initially, the r ecommendation that he complete the Summit House

misconstrues the procedural history of this case. he should have objected to it on these grounds earlier. This argument defendant’s sentence, or was otherwise an unsustainable exercise of discretion, imposed by the October 22, 2002 ord er unconstitutionally augmented the preserved for appeal. The State argues that if the treatment program condition We first address the State’s argument that these issues were not properly

modify his se ntence did not create an unconstitutional insurmountable barrier. and fourth, that the trial court’s order denying the defendant’s motion to trial court has broad discretion in determining whether to modify a sentence; has no constitutional right to a modification of his sentence, and because the denying the defendant’s motion to modify his sentence, because the defendant augment the defendant’s sentence; third, that the trial court did not err by below; second, that the October 22, 2002 order did not unconstitutionally that these issues were not preserved for appeal, as they were not timely raised The State makes several arguments in response. First, the State argues

violates equal protection and due process. in order to be eligible for parole, probation or a reduction of his sentence, argues that the requirement that he complete a program wh ich no longer exists completion of the SAS program as fulfillment of the condition. Finally, he protection. Second, he argues that the court erred in not accepting his This additional condition, the defendant argues, violates due process and equal that he complete a treatment program similar to the Summit House program. request for modification or suspension of his sentence; namely, a condition the c ourt has placed an additional condition upon him before it will consider a The defendant makes three arguments on appeal. First, he argues that

supplemental motion for reconsideration. The court also denied the defendant’s motion for reconsideration and

or a portion of his sentence is DENIED. Accordingly the Defen dant’s Motion to Suspend all

House program nor attended an equivalent program. after finding that he has neither attended [the] Summit program, this Court declines to suspend his sentence, Since the Defendant has not received a treatment it is not equivalent to th e Summit House program. program and not a treatment program, and therefore, p. 4 4

Therefore, we find that the trial court’s order did not violate the defendant’s rather, it denied the defendant’s request for suspension of his sentence. The June 8, 200 p. 4 4 order did not augment the defe ndant’s sentence;

desires.” State v. Gibbons, 135 N.H. 320, 321 (1992) (quotation omitted). deprived of a liberty one has . . . and being denied a conditional liberty that one interest in gaining his freedom. There is a crucial distinction between being another matter . . . to hold that an incarcerated defendant has an equal liberty due process, Stapleford v. Perrin, 122 N.H. 1083, 1088 (1982), “[i]t is quite has been afforde d liberty, albeit conditional, which may not be revoked without court retains the power to impose incarceration at a later time, the defendant sentence in violation of due process. While we have found that when a trial However, the order of June 8, 200 p. 4 4, did not augment the defendant’s

sentence. Id. revocation hearing or a hearing on whether to impose a deferred or suspended a later date, the court may not increase a defendant’s penalty at a probation terms of a sentence at the time it is imposed specifically allow augmentation at of the sentence. State v. Burgess, 1 p. 4 41 N.H. 51, 52 (1996). Thus, unless the sentencing order must clearly communicate to the defendant the exact nature later date and under what conditions the sentence may be modified. The as the extent to which the c ourt retains discretion to impose punishment at a sentencing in plain and certain terms what punishment it is exacting, as well Due process requires a sentencing court to make clear at the time of

guidance only. State v. Ball, 12 p. 4 4 N.H. 226, 231 - 33 (1983). address these claims under the State Constitution, and cite f ederal opinions for and equal protection under both the State and Federal Constitutions. We first that the additional condition imposed by the court’s order violates due process We now turn to the defendant’s arg uments. The defendant first argues

defendant has preserved these issues for appeal. raised for the trial court the issues before us today. Therefore we hold that the The defendant urged the trial court to reconsider its motion, and properly complete a treatment program to deny his request for a suspend ed sentence. June 8, 200 p. 4 4 was the first time the court used the defendant’s failure to to deny the defendant’s motion to suspend his sentence. The court’s order of attached to the defendant’s sentence – when the trial court later relied upon it However, the benefit became a burden – an additional requirement

another petition for sentence modification sooner than statutorily permitted. S ummit House program, which would have allowed the defendant to bring by allowing the defendant to petition the court again upon completion of the court attempted to waive this statutory time limit in its October 22, 2002 order, commenting on whether the trial court had authority to do so, that the trial p. 5 5

the October 22, 2002 order to deny the defendant’s motion was an However, we agree with the defendant that the trial court’s reliance upon

it. defendant’s sentence, but, instead, would afford him an opportunity to reduce defendant’s request because such conditions would not augment the served, may similarly impose conditions preceden t to its grant of the upon review of a timely - filed motion to suspend a sentence currently being sentence. See Stapleford, 122 N.H. at 1087. We now hold that a trial court, a defendant when de ciding whether to suspend all or part of a defendant’s We agree with the State that the trial court may impose conditions upon

analysis to a trial court’s decision to suspend a sentence. down by the sentencing court. Id. at 398. The State urges us to apply this participate in the program results only in his serving the full sentence handed augmentation of the prisoner’s sentence, because the prisoner’s refusal to released on parole. We found that this requirement did not constitute prisoner to comple te the prison’s sexual offender program prior to being found that the parole board has the independent authority to require a In Cable v. Warden, N.H. State Prison, 140 N.H. 39 p. 5 5, 397 (1995), we

early release from his sentence. State v. Carter, 146 N.H. 3 p. 5 59, 362 (2001). unsustainable exercise of discretion standard). The defenda nt has no right to 149, 151 (2000); cf. State v. Lambert, 147 N.H. 295, 296 (2001) (explaining if an unsustainable exercise of discretion is found. State v. Timmons, 145 N.H. sentence. Therefore, a trial court's sente ncing decision will be overturned only has broad discretion in deciding whether or not to grant a motion to suspend a suspension of any remaining portion of his sentence, and that the trial court The State correctly asserts that the defendant has no right to a

eligible for any relief from his sentence. this error required him to participate in a non - existent program in order to be trial court erred by not accepting his completion of the SAS program and that We next address the defe ndant’s second and third arguments, that the

State Constitution. we reach the same result under the Federal Constitution as we do under the N.H. at p. 5 52; Sattazahn v. Pennsylvania, 537 U.S. 101, 115 (2003). Accordingly, does the State Consti tution under these circumstances. State v. Burgess, 141 The Federal Constitution offers the defendant no greater protection than

(199 p. 6 6). protection claim, we decline to address it. State v. Schultz, 141 N.H. 101, 104 1088. Because the defendant failed to adequately brief or argue his equal due process rights under the State Constitution. See Stapleford, 122 N.H. at 6

RSA p. 6 651:20 to file another petition on June 6, 2004. As this case is remanded for the reasons stated above. The defendant would have been permitted by as February 29, 2004, the order issued i n response to that petition was flawed Though he may not have been legally permitted to file another petition as early entitled to have the trial court consider his motion to modify his sentence. provisions of RSA 65 1:20 in its August 26, 2002 order, the defendant is still Even if we assume that the trial court was incorrect in its attempt to waive the The defendant filed a motion for reduction of sentence on June 6, 2002.

petition the court for suspension of his sentence every two years. governed by the 1990 version of RSA p. 6 651:20. He is, therefore, entitled to 651:20. Following the rule laid out in Reynolds, the defendant’s sentence is prisoners to bring petitions to suspend their sentences every two years. RSA in 1990, and the version of RSA 651:20 in effect at the time allowed state Reynolds, 138 N.H. 519, 522 - 23 (1994). The defendant committed his crimes governed by the statutes in effect when he committed his crime. See State v. addressing wh en he is allowed to bring petitions to suspend his sentence, are The terms of a criminal defendant’s sentence, particularly those

the Summit House program, or an equivalent program, as a basis for its denial. only that it was an error for the trial court to rely upon his failure to complete the defendant is entitled to a suspension of his sentence, howe ver. It means defendant’s request to suspend his sentence. This holding does not mean that upon non - performance of an impossible condition in order to deny a defendant’s motion to suspend hi s sentence, because the trial court cannot rely We hold, therefore, that the trial court erred when it denied the

defendant cannot complete a program which does not exist. for the defendant to meet the conditions of the October 22, 2002 order. The substance abuse treatment program. Thus, the trial cou rt made it impossible treatment program. The department of corrections does not offer another order to complete Summit House because it was an educational program, not a the SAS program did n ot satisfy the requirements of the October 22, 2002 corrections does not currently offer such a program. The trial court found that his sentence may be suspended is impossible, because the department of The condition that the defendant complete a treatment program before

accord with these o bjectives. impossible condition upon a motion to modify a defendant’s sentence does not rehabilitation and deterrence. Timmons, 145 N.H. at 151. Imposing an sentencing to best meet the constitutional objectives of punishment, sentence. The legislature has vested in the trial court the power to adapt impossible conditions upon a defendant’s motion for suspension of his unsustainable exercise of discretion because the trial court may not impose p. 7 7

concurred. BRODERICK, C.J., and NADEAU, DUGGAN and GALWAY, JJ.,

time limits. for a new hearing, we note that the hearing on remand is withi n the statutory