2004-062, 2004-206, CHRISTOPHER CROSBY v. WARDEN, NEW HAMPSHIRE STATE PRISON

petitioner pled guilty to two counts of felonious sexual assault. See RSA 632 - A:3 The record supports the following facts. On September 9, 1992, the

ineffective assistance claim as moot. corpus petition, and dismiss the appeal fr om the dismissal of his subsequent assistance of counsel claim. We reverse the order denying the petitioner’s habeas the dismissal by the Superior Court (Smukler, J.) of his subsequent ineffective Superior Court (Arnold, J.) de nying his habeas corpus petition. He also appeals NADEAU, J. The petitioner, Christopher Crosby, appeals a decision of the

general, orally), for the State. attorney general, on the brief, and Elizabeth A. Dunn, assistant attorney Kelly A. Ayotte, attorney ge neral (Michael A. Delaney, senior assistant

Michael J. Sheehan, of Concord, on the brief and orally, for the petitioner.

2004 - 206 Nos. 2 004 - 062 Merrimack

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

199 p. 2 2 if we determined that the petitioner’s claim of error had not been waived. for additional factual findings concerning the nature of the sentences imposed in At oral argument, we asked the State whether the case should be remanded

ext raordinary writ. See State v. Chesbrough, 151 N.H. 105, 106 ( p. 2 2004). object to a sentence at the time of its imposition does not bar the later filing of an for seven years. We have previously held, however, that a defendant’s failure to legality of the 1996 sentences by both agreeing to them and failing to seek review The State contends that the petitioner has waived his right to challenge the

order, we consolidated both cases. pending appeal of the underlying illegal sentence issue. After he appealed this dismissed it wi thout prejudice, finding that it was premature in light of his habeas corpus asserting his ineffective assistance of counsel claim. The trial court While his appeal was pending, the petitioner filed a second petition for

sentence in 1996. The petitioner then appealed to this court. assistance of counsel that was based upon the fact that counsel negotiated the The trial court also denied the petitioner’s motion to add a claim of ineffective assumed, but did not decide, that the original sentences had been concurrent. failing to appeal it for seven years. In reaching this decision, the trial court petitioner had waived the issue by both agreeing to the sentence in 1996 and consecutive sentences. The trial court denied the petition, finding that the his sentences had been improperly converted from concurrent sentences to for the first time the legality of the 1996 sentencing agreement. He argued that In August p. 2 2003, the petitioner filed a petition for habeas corpus challenging

felonious sexual assault sentences. for the first time that the burglary sent ence was to run consecutively to the another probation violation and entered into a sentencing agreement that specified probation violations and one review hearing. In 1996, the petitioner pled true to Between 199 p. 2 2 and 1996, t he petitioner returned to court for at least two

the house of corrections treated the sentences as concurrent or consecutive. the felonious sexual assault sentences. The record also does not indicate whether not indica te whether the burglary sentence was consecutive to or concurrent with received probation and incurred fines and restitution obligations. The record does month house of corrections sentence with all but thirty days suspended. He also RSA 635:1 (1996). The burglary occurred in October 1991. He received a twelve - On September 14, 199 p. 2 2, the petitioner pled guilty to a burglary charge. See

but ninety days suspended, and three years probation. received concurrent twelve - month sentences to the house of corrections, with all (1996). The assaults occurre d between February and September 1990. He p. 3 3

the petitioner’s first habeas corpus petition and remand for entry of an order aut hority to impose illegal sentence). Accordingly, we reverse the order denying Burgess, 141 N.H. at 54 (defendant cannot by agreement confer on court converted the sentences into consecutive sentences was unlawful. See State v. sentences were to run concurrently. Therefore, the plea agreement in 1996 that that the sentences were to be served consecutively, we conclude that the Given the record before us and the absence of any language indicating

14, 1992, the date of sentencing on the burglary charge. imposed for the sexual assault charges were to commence at noon on September sentencing order of September 9, 1992, specifically provided that the sentences apart and the trial judge imposing sentence was the same. Moreover, the two different dates for the underlying offenses, the dates were less than a week any presumption of consecutiveness. Although the petiti oner was sentenced on presumption applied, the procedural history of this case is sufficient to overcome dates are to be served consecutively. Even if we were to assume that such a adopt a presumption that sentences im posed for different crimes on different The State asserts that, in the absence of a controlling statute, we should

in its order.” Id. We see no reason to deviate from that reasoning in this case. intends to impose conse cutive sentences, it must specifically state that intention 1 p. 3 30. We have further advised that, “[i]f, in its discretion, a sentencing court consecutively, the presumption is that the sentences run concurrently.” Id. at senten ces imposed on each count or each indictment are to run concurrently or encompassing multiple counts or multiple indictments, is silent as to whether the Consistent with this principle, we have held that “when a sentencing order,

(1987). what punishment has been exacted by the court. State v. Rau, 129 N.H. 126, 129 the society which brought him to court must know in plain and certain terms ellipsis omitted). At the conclusion of a sentencing proceeding, a defendant and modified.” State v. Burgess, 141 N.H. 51, 52 (1996) (quotations, emphasis and punishment at a later date and under what conditions the sentence may be it is exacting as well as the extent to which the court retains discretion to impose make clear at the time of sentencing in plain and certain terms what punishment We have previously held that “[d]ue p rocess requires a sentencing court to

record before us. Accordingly, we will determine the nature of the 1992 sentences based upon the delay in seeking review of his 1996 sentences resulted in any prejudice to it. sentences. Moreover, we note that the Sta te does not argue that the petitioner’s likelihood that additional information existed concerning the nature of the 1992 The State responded that a remand was unlikely to be helpful as there was little p. 4 4

DALIANIS and DUGGAN, JJ., concurred.

dismissal without p rejudice of his second habeas corpus petition is moot. consistent with this opinion. In light of this holding, the appeal from the