2005-353, PETITION OF CHAD EVANS

The petitioner, Chad Evans, challenges the

brief and orally, for the petitioner. David M. Rothstein, deputy chief appellate defender, of Concord, on the to press. Errors may be reported by E-mail at the following address:

attorney general, on the brief and orally), for the State. Kelly A. Ayotte, attorney general (N. William Delker, senior assistant

2005-354 editorial errors in order that corrections may be made before the opinion goes Nos. 2005-353 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Strafford Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

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. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as require such relief.” p. 2 right, but rather at the court’s discretion “when the substantial ends of justice certiorari. Certiorari is an extraordinary remedy, granted not as a matter of

review decision.

omitted). Certiorari review is limited to whether the agency acted illegally with

(decided Aug. 2, 2006). Accordingly, we consider only the petition for writ of

See Petition of Guardarramos-Cepeda, 153 N.H. ___, ____

sentence review procedures does not provide for direct appeal of a sentence Rule 7. See Sup. Ct. R. 7(1)(B). The applicable statutory scheme governing writ of certiorari and a discretionary notice of appeal under Supreme Court eight to forty-three years. As a threshold matter, we note that the petitioner filed both a petition for division increased the petitioner’s minimum term of imprisonment from twentyof those sentences. It left the remaining sentences unchanged. Thus, the statutory construction. facto laws; and (4) retrospective application of RSA 651:58, I, ignored rules of

constitutional prohibitions against double jeopardy; (3) application of RSA to due process; (2) RSA 651:58, I, on its face, violates state and federal application of RSA 651:58, I, violated his state and federal constitutional rights reinstate the original sentence imposed by the trial court because: (1) The petitioner asks us to vacate the division’s April 26, 2005 order and

year sentence on another count of second-degree assault, consecutive to each years to life for second-degree murder. It imposed an additional ten-to-thirtycount of second-degree assault, consecutive to the sentence of twenty-eight Division (division) imposed a sentence of five to ten years in prison on one By order dated April 26, 2005, the Superior Court Sentence Review

ripe unless the division increased his sentence. things, the petitioner’s requests for rulings on constitutional claims were not dismiss and for declaratory and injunctive relief, ruling that, among other The Trial Court (Mohl, J.) denied the petitioner’s subsequent motions to rights.” Petition of the State of New Hampshire, 150 N.H. 296, 299 (2003). that granting the State’s petition would violate the [petitioner’s] due process division’s dismissal order because it “exceeded its jurisdiction when it ruled seek sentence review. Upon a petition for writ of certiorari, we vacated the was not specifically informed at the time of sentencing of the State’s right to such consideration would violate the petitioner’s due process rights because he The division originally dismissed the State’s petition, concluding that

January 1, 2002), as amended. State filed a petition for sentence review pursuant to RSA 651:58, I (effective suspended sentences on the felony assault and endangering charges. The serve twenty-eight years to life on the second-degree murder charge, and On April 16, 2002, the Superior Court (Nadeau, J.) sentenced the petitioner to p. 3 3

Hampshire and United States Constitutions preclude the State from seeking Specifically, he contends that the Double Jeopardy Clauses of the New We next consider the petitioner’s facial challenge to RSA 651:58, I.

the New Hampshire Constitution. we reach the same result under the United States Constitution as we do under 448, 452 (1962)). The petitioner does not argue to the contrary. Accordingly, Cunningham, Warden, 1 p. 3 31 N.H. 68, 70 (1988) (citing Oyler v. Boles, 368 U.S. Constitution under circumstances similar to those before us. Stewart v. the petitioner no greater due process protection than does the New Hampshire Id. We have previously recognized that the United States Constitution offers the sentence was imposed . . . . does not violate the Due Process Clause of the New Hampshire Constitution. division. The application may be filed within 30 days after the date Guardarramos-Cepeda rendered an application for review of the sentence by the review, 153 N.H. at ____. We thus held that RSA 651:58, I, imposed sentence after a hearing conducted by the division. See the extent to which jurisdiction was retained to either increase or decrease the with statutory notice of the State’s right to seek a review of his sentence, and We recently concluded that RSA 651:58, I and II provided a defendant

current or retired superior court justices. RSA 651:57 (1996). RSA 651:58, I (Supp. 2005) (emphasis added). The division consists of three

of the superior court for the county in which the judgment was prison, . . . or the state of New Hampshire, may file with the clerk Any person sentenced to a term of one year or more in the state

part: exercised its discretion or acted arbitrarily, unreasonably, or capriciously. the State’s right to seek sentence review. RSA 651:58, I, provides, in pertinent trial court did not provide individualized notice at the time of his sentencing of petitioner’s state and federal constitutional rights to due process because the We first review whether the application of RSA 651:58, I, violated the

714 (2006). New Hampshire (State v. Theodosopoulos), 15 p. 3 3 N.H. ____, ____, 893 A.2d 712, Petition of the State of New Hampshire, 150 N.H. at 297; Petition of State of

a conclusion which could not legally or reasonably be made, or unsustainably respect to jurisdiction, authority or observance of the law, whereby it arrived at punishment, than the law annexed to the crime when committed. p. 4 committed; or . . . changes the punishment, and inflicts greater aggravates a crime, and makes it greater, than it was when

not upon whether a law imposes disadvantages or additional burdens, but federal constitutional inquiry, the focus in the State ex post facto analysis is State v. Reynolds, 138 N.H. 519, 521 (1994) (quotation omitted). Like the

Supreme Court narrowly construed protection than the United States Constitution, because the United States innocent when done, criminal, and punishes such action; or . . . makes an action done before the passing of the law, and which was protection, law is ex post facto if it: federal opinions for guidance only. Id. at 232-33. A law or an application of a Section 10 of the United States Constitution forbid Hampshire Constitution, State v. Ball, 124 N.H. 226, 231 (1986), and cite We will first address the petitioner’s ex post facto claim under the New

us in sentenced him after the effective date. Comeau. Department of Corrections v. Morales, 514 U.S. 499 (1995), a case not before

however, that the New Hampshire Constitution actually provides him greater

State v. Comeau, 142 N.H. 84, 87 (1997). The petitioner contends,

494 (1993), and we have stated that both constitutions afford the same level of Dobbert v. Florida, 432 U.S. 282, 292 (1977); Petition of Hamel, 137 N.H. 488,

Both Part I, Article 23 of the New Hampshire Constitution and Article I,

convicted prior to the effective date of amended RSA 651:58, I, the trial court post facto laws. Although the petitioner committed his offenses and was process has concluded. ex We next review whether the claimed retrospective application of RSA

of the New Hampshire Constitution. IV. Ex Post Facto Laws

Constitution. under the United States Constitution as we do under the New Hampshire DiFrancesco, 449 U.S. at 136, 138-39. Accordingly, we reach the same result States Constitution under these circumstances. Id. at ____; United States v. Hampshire Constitution provides at least as much protection as the United

that the defendant had no “expectation of finality” until the sentence review Relying upon United States v. DiFrancesco, 449 U.S. 117 (1980), we recognized

recently held that RSA 651:58, I, does not violate the Double Jeopardy Clause review of a criminal defendant’s sentence pursuant to RSA 651:58, I. We suitability hearings violated the federal

p. 5 three years for convicted multiple murderers, such as Morales. the law and held that the application of the new law to the defendant would violate

retrospective application of a statute that could operate to defer parole

federal habeas corpus review, he argued that retrospective application of the

authorize the parole board to defer subsequent suitability hearings for up to hearings. Id. at 503. The California legislature later amended the statute to suspension statute was substantive or procedural, we examined federal case Id. at 502. At that time, a statute entitled him to annual parole suitability U.S. at 509. The defendant in Morales committed murders in 1971 and 1980.

The United States Supreme Court subsequently examined whether the suspend her sentence every two years thereafter. any sooner under the old law. See id. at 522. though there was no guarantee that the defendant would have been released prison longer than the old law.” Id. at 521. We reached this conclusion even Ex Post Facto Clause because “the new law could operate to keep her in

Although we did not analyze whether the change to the sentence

legislature amended the statute to preclude violent offenders from filing criminal act. Id. Six years later, the sentenced for second-degree murder, the law permitted her to petition to Constitution. Reynolds, 138 N.H. at 520. At the time the defendant was suspended sentence would violate the Ex Post Facto Clause of the State whether the application of a new law to the defendant’s petition for a States Constitution under these circumstances. In Reynolds, we examined Constitution offers him greater ex post facto protection than does the United The petitioner argues that pursuant to Reynolds, the New Hampshire circumstances, does not implicate the Id. (citation and quotation omitted).

criminal defendant remain static from the time of the alleged with the constitutional requirement that substantial rights of a refinement of the criminal adjudication and corrections process an attempt to reconcile the necessity for continuous legislative [The] substance/procedure dichotomy in ex post facto analysis is

N.H. at 494.

from a procedural change to a criminal statute, which, under most increases the range of sentences that could be imposed for the charged crime, substantive change to a criminal statute, which augments the crime or N.H. at 88 (quotation and brackets omitted). We have also distinguished a an offense, or changes the ultimate facts required to prove guilt.” Comeau, 142 rather upon whether it “increases the punishment for or alters the elements of constitutional disability. p. 6 held that section 3742(e), as amended, could be applied retrospectively without which have not addressed the issue, every federal circuit court of appeals has 2003). With the exception of the Third and Sixth Circuit Court of Appeals,

court’s application of the sentencing guidelines. 18 U.S.C. § 3742(e) (Supp. review factual findings for clear error, they would review de novo the district amended section 3742(e) to provide that while appellate courts would still United States, 518 U.S. 81, 97-99 (1996). In 2003, however, Congress discretion while affording “substantial deference” to the district court. Koon v. reviewed its decision to depart from the sentencing guidelines for abuse of of appeals reviewed a district court’s factual findings for clear error and circumstances. 18 U.S.C. § 3742(a), (b) (2000). Prior to 2003, a federal court and the government with the right to appeal a sentence under various Title 18, section 3742 of the United States Code provides a defendant

Clause. to seek de novo review of criminal sentences, violated the federal Ex Post Facto application of a federal sentence review statute, which allowed the government 522-23, we will examine opinions addressing whether the retrospective application of the State Ex Post Facto Clause, see, e.g., Reynolds, 138 N.H. at suspension hearings. Insofar as federal case law has regularly informed our increasing the measure of punishment for covered crimes.” imposed and concerned the availability of parole suitability and sentence speculative and attenuated possibility of producing the prohibited effect of statutory changes in those cases occurred long after the sentences were manner akin to Morales, factually distinguishable from the case before us. The Reynolds. Assuming without deciding that Reynolds is still good law, it is, in a State argues that Morales undermines both the analysis and the holding in constitutional prohibition against ex post facto laws in light of Morales. The predecessor. We have not heretofore been called upon to analyze the state fixing a parole release date using substantive standards identical to those of its an inmate of an annual hearing. Id. at 510-14. and the parole board was required to make a special finding before depriving that, among other things, the amended parole statute was remedial in purpose

in the frequency of parole suitability proceedings “create[d] only the most attached to the covered crimes.” Id. at 509. The Court held that the decrease the law created “a sufficient risk of increasing the measure of punishment retroactive application of such a law could violate the Ex Post Facto Clause if

Id. at 507-08. The Court acknowledged, however, that the

applicable to the covered crimes; it simply altered the method to be followed in The amended parole statute did not change the sentencing range

05. increased the “standard of punishment” applicable to his crimes. Id. at 504amended parole eligibility statute violated the Ex Post Facto Clause because it under which departures are permitted. It change[d]

p. 7 mean or median outcome. 7 reduces the variance of decisionmaking but should not affect the

facto clause.” Id. The Seventh Circuit, thus, held that amended section don’t tinker with substance as a side effect are compatible with the ex post the statutory maximum—is unchanged.” Id. “Procedural innovations that punishment that ‘the law’ annexed to [the defendant’s] crime—which is to say, calculation of the Guidelines range, or alter the circumstances legislation, which encompasses four traditional categories, and that “[t]he Id. It further reasoned that the Ex Post Facto Clause applied only to penal

increase in the number of judges who must consider an issue appellate judges now decide whether a departure is justified. An standards for that decision. Instead of one district judge, three federal judiciary makes a particular decision, but not the legal

d[id] not change the statutory penalties for [the] crime, affect the

contention, the Seventh Circuit reasoned that amended section 3742(e): consequences of his completed criminal conduct.” Id. at 946. In rejecting his of review would violate the Ex Post Facto Clause because it “would alter the The defendant argued that retrospective application of the new standard

Mallon, 345 F.3d at 945. conviction, however, Congress adopted the new de novo standard of review. at 945; see also 18 U.S.C. § 3742(e) (2000) (amended 2003). Subsequent to his offense, the appellate court reviewed such an issue for abuse of discretion. Id. departure. Id. at 944-45. At the time that the defendant committed his one months’ imprisonment. Id. The government appealed the downward significant downward departure from the sentencing range of forty-one to fiftysentenced the defendant to twenty-one months’ imprisonment, which was a to engage in sexual activity.” Mallon, 345 F.3d at 944. The district court international communication in an effort to entice a female under the age of 18 section 3742(e) did not implicate the defendant pleaded guilty to the crime of “using the means of interstate and in Mallon particularly instructive on the issue before us. In Mallon, the We find the reasoning employed by the Seventh Circuit Court of Appeals

Morales. 2006); Riley, 376 F.3d at 1165. None of the circuit courts has referenced (7th Cir. 2003); United States v. Andrews, 447 F.3d 806, 809-10 (10th Cir. denied, 541 U.S. 953 (2004); United States v. Mallon, 345 F.3d 943, 946-47 See United States v. Stockton, 349 F.3d 755, 764 n.4 (4th Cir. 2003), cert. amendment made only a procedural, and not a substantive, change in the law.

circuits specifically have held that the retrospective application of amended 1164-65 n.3 (D.C. Cir. 2003) (listing all circuit court decisions). Several p. 8 8

amount of time an inmate spends in prison, in relation to the sentence he is “to create an avenue through which the State may seek an increase in the its effect.” Specifically, he contends that the primary purpose of RSA 651:5 p. 8 8, I, Post Facto Clause because the amendment is “punitive in both its purpose and and another before the Division.” With the imposition of a The petitioner also contends that applying RSA 651:58, I, violates the Ex chances at obtaining the sentence it desired, one at the sentencing hearing, committed.” Reynolds, 138 N.H. at 521 (quotation omitted). “inflict[] greater punishment, than the law annexed to the crime when and that the division’s enhancement of the trial court’s sentence did not amendment to RSA 651:58, I, created only a procedural change in the statute, the defendant’s sentence. See RSA 651:57. We, therefore, conclude that the three current or retired superior court judges are empowered to decide finally decision. See Mallon, 345 F.3d at 946. Instead of one superior court judge, who made the final sentencing decision, but not the legal standards for that In a manner akin to former section 3742(e), RSA 651:58 merely changed

hearing and before the reviewing tribunal. was subject to the same potential punishment at both his original sentencing The petitioner argues that RSA 651:5 p. 8 8, I, as amended, “gave the State two eliminated any applicable defense. Thus, under either statute, a defendant range for which a defendant was eligible as a result of a conviction, or statute altered the definition of underlying offenses, increased the sentencing relying upon U.S.C. § 3742(d) (2000); Super. Ct. Sentence Rev. Div. R. 15-16. Neither considered by the original sentencing court at the time of sentencing. See 18 sentence, they also prohibited it from considering any material or facts not both statutes afforded the reviewing tribunal broad discretion to modify a review, however, former section 3742(e) operated to the same end. Although review. de novo standard of

accordingly, excised from section 3742(e) the provision setting forth the Former section 3742(e) and RSA 651:5 p. 8 8, I, are similar in practical effect.

Morales in analyzing this issue.

review). Nor did the Supreme Court suggest the circuit courts erred by not no ex post facto violation by application of former de novo standard of sentence F.3d at p. 8 809-10 (recognizing, in post- Booker decision, that defendant suffered to sentencing decisions produced no ex post facto violation. See Andrews, 447 courts’ holdings that retrospective application of a de novo standard of review

Id. at 260-61. It said nothing, however, to undermine the circuit

62 (2005). It adopted “unreasonableness” as the new standard of sentence standard of sentence review. United States v. Booker, 543 U.S. 220, 245, 260-

§ 3553(b) (Supp. 2006) making the sentencing guidelines mandatory and, The Supreme Court later struck down the portion of 1 p. 8 8 U.S.C.A.

sentence review. Id. at 947. 3742(e) was procedural only and could be applied retrospectively upon preserve an issue for appellate review. p. 9 general rule is that a contemporaneous and specific objection is required to Constitution as we do under the New Hampshire Constitution. these circumstances. Thus, we reach the same result under the United States

(2003). Preservation did not bar our recent consideration of the

for review, and, thus, did not preserve the issue for appellate review. The construction to the trial court or division after the filing of the State’s petition sentence [wa]s too severe, or too light.” him no greater protection than does the New Hampshire Constitution under State’s argument that the petitioner did not present a claim of statutory before the amendment’s effective date. As a preliminary matter, we address the 651:58, I, apply to an offender, such as himself, who committed his crimes statutory construction, the legislature did not intend that amended RSA Finally, we review the petitioner’s contention that, as a matter of

amendment because there were “times when the [State] believe[d] that the The petitioner acknowledges that the United States Constitution offers leave the sentence unchanged.” violate the Ex Post Facto Clause of the New Hampshire Constitution. Accordingly, we hold that application of RSA 651:58, I, to the petitioner did not circumstances, could benefit a defendant. See Turgeon, 140 N.H. at 54. was to achieve greater uniformity in sentencing, which, under some perceived inconsistency in sentencing within the state. indicates that the purpose of both RSA 651:58, I, and its 2001 amendment, review. Laws 1975, 267:1. The legislature created the division to address a the purpose of the statute is punitive. To the contrary, the legislative history in order to permit a criminal defendant in superior court to request sentence nothing in the text of RSA 651:58 or the legislative history that suggests that

amendment and the legislative history reveals the State requested the sentence reduction, RSA 651:58, I, is silent concerning the purpose of the the sentence, increase the sentence, change the sentence in some other way, or Laws 2001, 45:1. While we recognize that the State might be unlikely to seek a uniformity among sentences . . . [in that] the [division] is empowered to lower amended RSA 651:58, I, to permit the State also to apply for sentence review. whether requested by the defendant or the State, is “intended to create greater fit[] the same sentence” and not otherwise. Id. In 2001, the legislature 54. The legislature intended the division “to make sure that the same crime

remedial rather than punitive. In 1975, the legislature established the division We agree with the State that the purpose of amended RSA 651:58, I, is

amended statute is purely remedial, and that the sentence review process, received from his trial judge.” The State counters that the purpose of the any defenses otherwise available. legislature intended RSA 651:58, I, as amended, to apply retrospectively. p. 10 or eliminate any available defenses. Accordingly, we presume that the sentencing range for which a defendant was eligible as a result of a conviction,

DUGGAN and GALWAY, JJ., concurred.

punish a previously innocent act, alter the elements of the crime, or eliminate window” because it did not change the ultimate facts needed to prove guilt, burden on a criminal defendant than merely extending the prosecutorial 651:58, I, did not alter the definition of underlying offenses, increase the the “substantive-or-procedural” dichotomy, similar to that present in our decision, but not the legal standards for that decision. As in Hamel, RSA constitutional claims for that same reason. Insofar as this issue turns upon procedural change in the statute by altering who made the final sentencing As addressed above, the amendment to RSA 651:58, I, created a

defendants’ substantive rights and could not apply retrospectively). aggravating factors that court could consider in imposing sentence affected Johnson, 134 N.H. 570, 573-74 (1991) (holding that statute that changed

393, 395-96. We reasoned that the amendment did not “place[] a greater applied retrospectively in the absence of an explicit legislative directive. Id. at enhancement of his sentence, in light of its refusal to address his in child sexual assault cases was a procedural change and could, thus, be Hamel, we concluded that an amendment extending the statute of limitations substantive or procedural rights. State v. Hamel, 138 N.H. 392, 394 (1994). In our interpretation turns upon whether the statute affects the defendant’s is silent as to whether a statute should apply prospectively or retrospectively, considered it. retroactivity of amended RSA 651:58, I. We have held that when the legislature Even if the petitioner had presented the issue below, the division may not have Neither party argues that the legislature has expressly addressed the statutory construction claim below, we will, nonetheless, review this issue. post facto analysis, judicial economy also supports its consideration.

review furthered the interest of “judicial economy.” court would have considered the petitioner’s argument prior to the division’s division’s statutory jurisdiction.”). Furthermore, it is arguable whether the trial whether the sentence is appropriate and consistent, it is well beyond the (“[B]ecause the due process claim is a constitutional issue wholly apart from

Cf. Petition of the State of New Hampshire, 150 N.H. at 298

Assuming without deciding that the petitioner did not present his

153 N.H. at ___.

jurisdiction to consider the constitutional claims in the first instance, and our constitutionality of RSA 651:58, I, however, because the division lacked