2005-186, STATE OF NH v. RANDY J. DUQUETTE

prison, as well as three terms of ten to twenty years and one term of three-andthree consecutive terms of ten to twenty years, stand committed, in the State

and one count of felonious sexual assault. He was subsequently sentenced to

defendant was convicted on six counts of aggravated felonious sexual assault The record supports the following facts. On June 13, 1997, the

part and remand. RSA 651:20 (1996 & Supp. 2005) without first granting a hearing. We affirm in Trial Court (Arnold, J.) denying his petition to suspend sentence pursuant to DALIANIS, J. The defendant, Randy J. Duquette, appeals an order of the

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

general, on the brief and orally), for the State. Errors may be reported by E-mail at the following address: Kelly A. Ayotte, attorney general (Nicholas Cort, assistant attorney

page is: http://www.courts.state.nh.us/supreme. v.

errors in order that corrections may be made before the opinion goes to press. No. 2005-186 Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Merrimack Readers are requested to notify the Reporter, Supreme Court of New ___________________________

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 suspension of his first sentence for lack of any rehabilitative purpose.

p. 2 defendant’s crimes and his alleged lack of remorse, the State also opposed the years thereafter.” RSA 651:20, I(a). minimum sentence, whichever is greater, and not more frequently than every 3 suspend sentence until such person has served at least 4 years or 2/3 of his particular aspect of the defendant’s interpretation of RSA 651:20, I(a).

not yet commenced serving the remaining sentences. Citing the severity of the suspension of the minimum and maximum of his first sentence only, as he had motion, contending that, under RSA 651:20, the defendant could at most seek limitations. “Any person sentenced to state prison shall not bring a petition to of his initial ten to twenty year sentence. The State concurs with this suspension after six-and-two-thirds years, or two-thirds of the minimum term the defendant would be entitled to petition the trial court for a sentence

Eighth Amendment to the Federal Constitution. The State objected to the and that he was accordingly entitled to a hearing on the matter. remaining minimum and maximum sentences was timely under RSA 651:20, 2005). The right to file such a petition, however, is subject to certain

imposed for multiple convictions. Under this interpretation of RSA 651:20, I(a),

State v. Horner, 153 N.H. __ (decided March 15, 2006).

one-half years of his accumulated sentences would be “in tension” with the requiring him to serve the remaining twenty-two-and-one-half to fifty-two-and- appeal, the defendant argues that his motion to amend or suspend his any person” in response to a timely-filed petition. RSA 651:20, I (1996 & Supp. maximum sentences, citing RSA 651:20. The defendant further asserted that imposed for an individual conviction, rather than the aggregate of sentences the term “minimum sentence” in RSA 651:20, I(a), refers to a single sentence unsustainable exercise of discretion is found. The defendant first contends that the word “sentence,” as it is used in

He was not granted a hearing or provided an explanation of the denial. On RSA 651:20, a sentencing court may suspend “the sentence to imprisonment of sentence, filed a motion to amend or suspend his remaining minimum and We first address the timeliness of the defendant’s motion. Pursuant to

Therefore, a trial court’s sentencing decision will be overturned only if an motion to suspend a sentence. State v. LeCouffe, 152 N.H. 148, 152-53 (2005). A trial court has broad discretion in deciding whether or not to grant a

On November 30, 2004, the trial court denied the defendant’s motion. seven-and-one-half years, or more than two-thirds, of the minimum of his first

On November 1, 2004, the defendant, having served approximately

consecutive terms. one-half to seven years to run concurrently with the last of the three suspend his first sentence.

p. 3 the limited purpose of specifically addressing the defendant’s petition to

defendant’s initial ten to twenty year sentence, we remand to the trial court for petition was timely for the trial court to have considered suspension of the trial court did not specify its reasons for doing so. Since the defendant’s

granting a hearing. However, in its order denying the defendant’s petition, the

the statute. concurrence in State v. Horner, 153 N.H. ___ (decided March 15, 2006), I would without a hearing, of all petitions not meeting the specific criteria prescribed in DUGGAN, J., concurring specially. Consistent with my special

court’s decision to deny the defendant’s petition to suspend sentence without specially. BRODERICK, C.J., and GALWAY, J., concurred; DUGGAN, J., concurred

mandated such a hearing. Remanded.

hearing his petition for sentence suspension pursuant to RSA 651:20.

filing of a petition to suspend a sentence, though it does mandate dismissal, applicable to sentence suspension proceedings.

Accordingly, we find no unsustainable exercise of discretion in the trial

RSA 651:20 are satisfied. language of RSA 651:20, pertinent Superior Court rules, or prior case law recognition of the trial court’s discretion to grant a hearing when the criteria of 138 N.H. at 98. We affirmed the trial court, noting that nothing in the

N.H. 97 (1993), a defendant appealed a trial court’s decision to deny without a a suspension of any remaining portion of his sentence). In State v. Roy, 138 320, 322-23 (1992); cf. LeCouffe, 152 N.H. at 152 (a defendant has no right to

Enterprises, 136 N.H. 490, 496 (1992). We have held that, in light of the The suspension of a sentence is not obligatory. State v. W.J.T.

criteria is entitled to a hearing. We disagree. At best, it reflects legislative of RSA 651:20, I(d) evinces a requirement that every petitioner meeting those

See RSA 651:20, I(d). The defendant theorizes that the inclusion

a sentence under RSA 651:20, I(a), he was entitled to a hearing on his petition. The defendant next asserts that, having filed a timely petition to suspend

which he had yet to serve any time. his initial ten to twenty year sentence, and not the remaining sentences, for note, however, that he was entitled only to petition to suspend the remainder of In the instant case, the defendant’s petition to suspend was timely. We p. 4 4

would note that in this case, unlike in aggregating the minimum sentences for each of the consecutive sentences. I

as it would be under my interpretation of the statute. upon the defendant’s sentence would be the same under the majority’s holding

“minimum sentence” under RSA 651:20, I(a) should be calculated by affirm the denial of the petition to suspend sentence because the defendant’s