2005-333, PETITION OF GREGORIO B. GUARDARRAMOS-CEPEDA

The petitioner, Gregorio B. Guardarramos-Cepeda,

general, on the brief and orally) for the State. to press. Errors may be reported by E-mail at the following address: Kelly A. Ayotte, attorney general (Brian R. Graf, senior assistant attorney

brief and orally, for the petitioner. David M. Rothstein, deputy chief appellate defender, of Concord, on the

PETITION OF GREGORIO B. GUARDARRAMOS-CEPEDA

editorial errors in order that corrections may be made before the opinion goes No. 2005-333 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Original Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

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 objection is required to preserve an issue for appellate review. p. 2 term of imprisonment under the statute . . . .” This appeal followed. preserve it for appeal. The general rule is that a contemporaneous and specific over ten (10) times the quantity of heroin necessary to trigger the maximum Sentence Review Division hearing effectively waived the issue and failed to

sentences of ten to twenty years, “[g]iven the fact that the [petitioner] possessed either his objection to the State’s application for sentence review or during the

150 N.H. at 298. Rather than relying upon this procedural barrier, however, require such relief.” could not have considered this issue in the first instance. See Petition of State, jurisdiction to consider the constitutionality of RSA 651:58, I, and, therefore, court. The board increased the petitioner’s sentences to two concurrent petitioner’s failure to raise the issue of the constitutionality of RSA 651:58, I, in appeal and not the reviewing court. Id. In this case, the board lacked were reasonable in light of the facts and circumstances presented to the trial previously recognized that preservation is a limitation on the parties to an however, asked the board to affirm the original sentences, arguing that they absolute. Baines v. N.H. Senate President, 152 N.H. 124, 128 (2005). We have the appellate court.” Id. (quotations omitted). This rule, however, is not discretion or acted arbitrarily, unreasonably, or capriciously.” opportunity to rule on issues and to correct errors before they are presented to sense and judicial economy, recognizes that trial forums should have an Blackmer, 149 N.H. 47, 48 (2003). “This rule, which is based on common

but rather at the court’s discretion “when the substantial ends of justice

consider his claim on certiorari. Before addressing the merits, we address the State’s contention that the

large quantity of heroin involved—approximately 70 grams. The petitioner, direct appeal of a sentence review decision. of New Hampshire, 150 N.H. 296, 297 (2003).

a conclusion which could not legally or reasonably be made, or abused its respect to jurisdiction, authority or observance of the law, whereby it arrived at omitted). “Certiorari review is limited to whether the agency acted illegally with

Certiorari is an extraordinary remedy, which is not granted as a matter of right,

that the petitioner alleges a violation of his constitutional rights, we will 2005); Bell v. State Super. Ct. Review Div., 117 N.H. 474, 475 (1977). Given

sentences to two concurrent sentences of fifteen to thirty years based upon the statutory scheme governing Sentence Review Procedures does not provide for a appeal under Supreme Court Rule 7. See Sup. Ct. R. 7(1)(B). The applicable As a preliminary matter, the petitioner filed this action as a discretionary

At that hearing, the State requested an increase of the petitioner’s

sentence review board (the board) conducted a hearing on March 18, 2005. petitioner’s timely objection to the State’s application was denied, and the a defendant in double jeopardy.

p. 3 defendant’s sentence.

further penalty up to the maximum prescribed by the statute. date, and under what conditions the sentence may be modified.

originally imposed neither violates a defendant’s due process rights nor places

that if he violated the conditions of his probation, he faced the possibility of extent to which the court retains discretion to impose punishment at a later

probation violation up to the balance of the maximum the court could have

where the defendant requested the Sentence Review Division hearing after Thus, the defendant was provided with statutory notice of the extent to which

cite federal authority as an aid to our analysis under the State Constitution. reasoned that at the time of sentencing, the defendant was presumed to know State Constitution, we will not engage in a separate federal analysis, but will sentencing in plain and certain terms what punishment it is exacting, the State v. White, 131 N.H. 555, 557 (1989). We the New Hampshire Constitution. Because the petitioner relies solely upon the division.

statute which authorizes courts to impose fines or imprisonment upon limits fixed by law.” Bell, 117 N.H. at 476. We have also stated that a result in a decrease or increase of the minimum or maximum term within the II. This notice must inform the defendant that a review of the sentence “may Sentence Review Division can constitutionally increase a defendant’s sentence LeCouffe, 152 N.H. 148, 152 (2005). We have previously held that the

Due process requires a sentencing court to make clear at the time of the due process and double jeopardy protections of Part I, Articles 15 and 16 of rendered an application for review of the sentence by the review the defendant. Id.

notice to the defendant of his right to request a sentence review. RSA 651:58, sentence is imposed, the statute also requires the clerk to give oral and written filed within 30 days after the date the sentence was imposed . . . .” Id. When a RSA 651:58, I (emphasis added). An application for sentence review “may be

seek sentence review—and a subsequent increase in his sentence—it violates 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

RSA 651:58 provides, in pertinent part:

See State v. McLellan, 149 N.H. 237, 240 (2003).

The petitioner argues that to the extent RSA 651:58, I, allows the State to

judicial economy, we will address the issue. we conclude that because this is an important issue and in the interest of not violate the Due Process Clause of the State Constitution. p. 4 result in its being increased. Therefore, we conclude that RSA 651:58, I, does

Double Jeopardy Clause.

addressed this issue in

multiple punishments or the prohibition against multiple trials embodied in the

United States Constitution.

was a dangerous special offender within the meaning of the statute. after a hearing conducted by the board. Moreover, as set forth in RSA 651:58, jurisdiction was retained to either increase or decrease the imposed sentence Constitution. While recognizing that the United States Supreme Court has Id. at 139-40. While recognizing that the Court within thirty days of the imposition of that sentence, and the extent to which appeals for sentence review. § 3576 is constitutional and does not violate either the prohibition against The United States Supreme Court reversed, holding that 18 U.S.C. “dangerous special offender,”

an appeal by the Government, violates the Double Jeopardy Clause of the subject the respondent to the risk of substitution of a greater sentence, upon the Federal Constitution regarding this issue. The court of appeals dismissed the Government’s appeal, concluding that to

district court abused its discretion in light of its findings that the respondent States sought review of the sentences under section 3576, arguing that the the sentence in violation of the Double Jeopardy Clause of the State respondent was sentenced to two concurrent ten-year sentences, the United statutory notice of the State’s right to seek a review of the petitioner’s sentence after a review hearing conducted at the State’s request impermissibly augments DiFrancesco, 449 U.S. at 118-20. After the yet addressed whether the board’s decision to increase a defendant’s sentence United States the right, under specified conditions, to petition the court of

U.S.C. § 3576, which authorizes increasing the sentence of a convicted In DiFrancesco, the respondent challenged the constitutionality of 18

petitioner urges us to find that the State Constitution is more protective than

a review of his sentences. RSA 651:58, I and II provided the petitioner with Clause in Part I, Article 16 of the New Hampshire Constitution. We have not We next consider whether RSA 651:58, I, violates the Double Jeopardy

underlying statute does not require such notice. State’s intent to request an extended term of imprisonment when the Constitution does not require that a defendant be given actual notice of the

Here, the defendant was given statutory notice of the State’s right to seek

Warden, 131 N.H. 68, 70-71 (1988).

we have also recognized that the Due Process Clause of the New Hampshire the court retained jurisdiction to impose a sentence at a later date. Moreover, within the State.”

interpretation of the State Double Jeopardy Clause in other contexts.

much as it prevents appeals from judgments of acquittal.” Clause should preclude government appeals from sentencing decisions very Sentence Review Division “to address a perceived inconsistency in sentencing had passed. We have previously recognized that the legislature created the expectation of finality until the thirty-day period to request a sentence review

acquittal. See which are double jeopardy considerations barring reprosecution after an the New Hampshire Constitution. This conclusion comports with our sentence.” and similarly conclude that it does not violate the Double Jeopardy Clause of as a result of that appeal, “there can be no expectation of finality in the original a trial on the basic issue of guilt or innocence,” DiFrancesco, 449 U.S. at 136, that “[t]his limited appeal does not involve a retrial or approximate the ordeal of

analogous to a determination of guilt or innocence that the Double Jeopardy

review hearing before the board. Thus, the petitioner could have had no notice to the defendant that the imposed sentence may be increased after a issue in DiFrancesco, RSA 6 p. 5 51:58, I, provides for both statutory and actual We find the majority’s reasoning persuasive. Like the federal statute at anxiety, insecurity, and possibility of being found guilty even though innocent, guarantees of certainty and finality in sentencing. specifically provided that a sentence is subject to appeal and may be increased petitioner argues that the dissent’s view comports with New Hampshire’s

a sentence, stating: “The sentencing of a convicted criminal is sufficiently there are fundamental distinctions between an acquittal and the imposition of DiFrancesco dissent. The dissent challenged the majority’s conclusion that The petitioner urges us to adopt the rationale underlying the

Id. at 137, 139. sentence does not subject the defendant to the same embarrassment, expense,

would diminish the particular significance of an acquittal. authorized by Congress, the Court held that where the legislature has against revocation of probation and the imposition of imprisonment when indictment or information. Id. Just as there is no double jeopardy protection more of an ordeal than any government appeal from the dismissal of an it does so only for a finite period provided by statute. Id. Therefore, it is no may prolong the period of anxiety for the defendant, the Court concluded that

Id. at 136. Thus, while acknowledging that an appeal of a sentence

noted that the prosecution’s statutorily granted right to seek a review of a

sentence and an acquittal,” and the failure to recognize such distinctions The Court reasoned that there are “fundamental distinctions between a and conclusiveness that attaches to a jury’s verdict of acquittal. Id. at 132. a criminal sentence, once imposed, is not accorded the constitutional finality how erroneous its decision,” id. at 130 (emphasis in original), it concluded that “necessarily afford[s] absolute finality to a jury’s verdict of acquittal - no matter p. 6 6

therefore, deny the petitioner’s petition for writ of certiorari.

nor double jeopardy protections of the New Hampshire Constitution. We,

Double Jeopardy Clause).

BRODERICK, C.J., and DALIANIS, and DUGGAN, JJ., concurred.

Accordingly, we hold that RSA p. 6 651:58, I, violates neither the due process

of the maximum that could have been originally imposed did not violate State imposition of fines or imprisonment upon probation violation up to the balance at original sentencing); White, 131 N.H. at 557-58 (statute authorizing sexual offender on remand, where trial court applied wrong standard of proof its federal counterpart, did not bar State from seeking enhanced sentence for McLellan, 149 N.H. at 242-43 (New Hampshire’s Double Jeopardy Clause, like