2006-186, STATE OF NH v. RICHARD HANCOCK

The defendant, Richard Hancock, appeals his conviction

and orally, for the defendant. Theodore Lothstein, assistant appellate defender, of Concord, on the brief

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 (Benjamin J. Agati, assistant attorney

editorial errors in order that corrections may be made before the opinion goes No. 2006-186 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Hillsborough-northern judicial district 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 p. 2 22 as 2

preserved for review.

statute considered as a whole. final arbiter of the intent of the legislature as expressed in the words of a

[chapter] 630.” RSA 651:1, I. Trial courts have discretion to “assign different govern the sentencing for every offense . . . , except as provided by RSA concedes that he did not raise this issue in the trial court, and, thus, it is not Pursuant to RSA 651:1 ( p. 2 2007), “The provisions of indirect criminal contempt, to punish probation violations. The defendant [RSA chapter 651] have broad discretion to utilize alternative avenues of punishment, such as (2007). to the fair import of their terms and to promote justice. Id.; see RSA 625:3 N.H. 737, 740 (2007). We construe provisions of the Criminal Code according

our prior cases for guidance. In matters of statutory interpretation, we are the Resolving this issue requires us to look to the language of RSA 651: p. 2 2 and

proceedings.” Id. (quotation omitted). error must seriously affect the fairness, integrity or public reputation of judicial the error must be plain, (3) the error must affect substantial rights; and (4) the sentencing parameters of RSA 651: p. 2 2 are not exclusive and that trial courts brackets omitted). To find error under this rule: “(1) there must be error; (2) otherwise result.” State v. Matey, 153 N.H. 263, 266 (2006) (quotation and committed, a $2,000 fine and two years probation. use limited to those circumstances in which a miscarriage of justice would court. See Sup. Ct. R. 16-A. “However, the rule should be used sparingly, its Under the plain error rule, we may consider errors not raised in the trial

the court to consider the issue under our plain error rule. turn. State v. Blackmer, 149 N.H. 47, 48-49 ( p. 2 2003). He asks the scope of his cross-examination of Valente. We address each argument in enforce probation. The defendant also argues the trial court erred in limiting

to permit future enforcement of compliance. The State argues that the contends that the trial court must suspend a portion of the maximum sentence simple assault, the trial court sentenced him to twelve months in jail, stand addition to the maximum fine and maximum period of incarceration. He further questioning about it. After the jury found the defendant guilty of (amended p. 2 2006), a trial court cannot sentence a defendant to probation in the suit. Once Valente admitted he was aware of it, the trial court prevented The defendant asserts that, pursuant to RSA 651:2 (1996 & Supp. 2006)

plain error because the trial court left itself no sentencing power with which to On appeal, the defendant argues that sentencing him to probation was

sued Valente civilly. At trial, defense counsel cross-examined Valente about The defendant was charged with misdemeanor simple assault. Later, he p. 3 3

imposes probation. mechanism for probation is provided by RSA 651:2, VII. misdemeanor, probation may not exceed two years. two, it may not sentence a defendant to both statutory maximums if it also Id. at 715-16. Perkins sentence a defendant to incarceration, impose a fine, or a combination of the, 121 N.H. at 715. We disagreed, concluding that the enforcement RSA chapter 651 because there was no mechanism to enforce probation. imprisonment under RSA 651:2, II. Though the trial court has discretion to defendant had argued that sentencing him to probation was inconsistent with defendant to both the maximum term of imprisonment and probation. The determined that a trial court has discretion under RSA 651:2 to sentence a Similarly, in State v. Perkins, 121 N.H. 71 p. 3 3, 715-16 (1981), we

imposition of the two-year probation period.” Id. at 558. jurisdiction to limit the defendant’s liberty interest further because of the the crime for which he had pled guilty, and having not levied any fine, retained court, having sentenced the defendant to less than the statutory maximum for which could have been imposed originally.” conditions as the court may impose.” RSA 651:2, V(a). For a class A Id. at 557. “In this case, the trial imprisonment upon probation violation up to the balance of the maximum supervision and guidance that the probation service can provide under such explained that “[is also available “if the court finds that such person is in need of the enforced exclusively through imposing a fine, under RSA 651:2, IV, or s] tatutory law authorizes courts to impose fines or maximum of imprisonment and no fine. White, 1 p. 3 31 N.H. at 556-57. We The defendant had previously been sentenced to less than the statutory defendant who was sentenced to incarceration when he violated probation. White, 131 N.H. 555, 557-58 (1989), for instance, we upheld the sentence of a This interpretation is consistent with our prior case law. In State v.

is one year and the maximum fine is $2,000. RSA 651:2, II(c), IV(a). Probation We interpret RSA 651:2, VII to mandate that probation violations be

(emphasis added). sentenced to imprisonment as authorized by paragraph II.” RSA 651:2, VII imposed in addition to the probation . . . . Otherwise the defendant shall be the defendant may be fined, as authorized by paragraph IV, if a fine was not provides how probation may be enforced: “When a probation . . . is revoked,

Under RSA 651:2, the maximum prison term for a class A misdemeanor

unconditional discharge, or a fine.” Id.; see RSA 651:2, I. judge [is limited] to a choice of imprisonment, probation, conditional or Evans, 127 N.H. 501, 505 (1985). However, “the discretion of the sentencing of punishment, deterrence, protection of society and rehabilitation.” State v. sentences, suspend sentence, or grant probation in order to achieve the goals p. 4 4

plain and certain terms what punishment it is exacting as well as the extent to Process requires a sentencing court to make clear at the time of sentencing in of correction. Further, the State’s argument raises due process concerns. “[trial court wishes to impose a sentence of greater than six months in the house D] ue

afford the defendant due process. 328, 330 (200 p. 4 4). statute that the legislature did not see fit to include. State v. Simone, 151 N.H. knowledge of every element of contempt. We will not consider what the legislature might have said or add words to the afforded trial courts discretion to punish a probation violation with contempt. to the authority it has been given by RSA 651:2. The legislature has not sentencing. However, as we noted above, the trial court’s discretion is limited We agree with the State that a trial court has broad discretion in

Id. at 788-89.

a misdemeanor and the alleged contemnor must be accorded a jury trial if the

summarily punished, indirect contempt requires procedural formalities that

committed outside the presence of the judge, without the judge having personal 651:2 and our case law, the error was plain. in the presence of the court and in its immediate view. failed to do so in this case, the trial court erred. Given the language of RSA Id. Indirect contempt is (2006). Contempt is either direct or indirect. retain a portion of its sentencing power as an enforcement mechanism. Having Id. Direct contempt is committed defendant had knowledge. rule have been met here. A trial court must, in order to impose probation, Mortgage Specialists v. Davey, 153 N.H. 76 p. 4 4, 788 defendant has intentionally failed to comply with a valid order of which the Criminal contempt is a sanction imposed by the trial court when a

that a trial court may use its criminal contempt power to enforce probation. sentences according to the needs of each case. In particular, the State argues The State argues that the trial court has broad discretion to structure

sentence. Accordingly, we conclude that the four elements of the plain error probation only through retaining a portion of a defendant’s maximum made it clear that the trial court, under RSA 651:2, VII, is limited to enforcing violations may be punished outside of RSA 651:2. However, in both cases we Neither Perkins nor White specifically addressed whether probation

involved.” Id. he has been sentenced to the maximum period of incarceration for the crime trial court cannot sentence him to additional periods of incarceration because cautioned that “[i] n the event that the defendant here violates probation . . . the a fine and, thus, he could be fined if he violated probation. Id. at 716. We Further, we upheld the sentence because his original sentence did not include p. 5 5

DUGGAN, GALWAY and HICKS, JJ., concurred.

deemed waived. State v. Mountjoy, 142 N.H. 648, 6 p. 5 53 (1998). All issues raised by the defendant in his notice of appeal, but not briefed, are arguments and we decline to consider them. See Blackmer, 149 N.H. at 49. remand for resentencing consistent with this opinion. violated the New Hampshire Rules of Evidence, he has not fully briefed these could be punished at all. Accordingly, we vacate the defendant’s sentence and To the extent that he argues that limiting the scope of cross-examination time of sentencing; in fact, there was uncertainty as to whether the defendant the terms of their probation. Here, no further penalty was ascertainable at the done neither, we will not perform a State constitutional analysis. Id. at 633. brief. State v. Dellorfano, 128 N.H. 628, 632 (1986). As the defendant has court; and (2) specifically invoke a provision of the State Constitution in his our review. To preserve this issue, the defendant must: (1) raise it in the trial this violated the State Constitution, he has failed to preserve this argument for limiting the scope of his cross-examination. To the extent that he argues that We next turn to the defendant’s assertion that the trial court erred in

sentencing authority as well as the potential repercussions should they violate White, the defendants were put on notice of the trial court’s continuing State Prison, 1 p. 5 52 N.H. 44, 46 (2005) (quotation omitted). In both Perkins and under what conditions the sentence may be modified.” Crosby v. Warden, N.H. which the court retains discretion to impose punishment at a later date and