2005-859, STATE OF NH v. DARIN A. PARKER

and the Superior Court (

Court (

In November 1990, the defendant pled guilty to second-degree murder,

remand. deferred portion of his sentence. We reverse in part, vacate in part and defendant, Darin A. Parker, to assist him in seeking to avoid imposition of the Fitzgerald, J.) erred when it refused to appoint counsel for the BRODERICK, C.J. The sole issue on appeal is whether the Superior

brief and orally, for the defendant. Christopher M. Johnson, chief appellate defender, of Concord, on the

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 (Nicholas Cort, assistant attorney

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

editorial errors in order that corrections may be made before the opinion goes No. 2005-859 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any 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 anticipated hearing. Pretrial confinement credit 623 days. p. 2 the end of eighteen years if he meets said burden at the

the court.

sufficiently in advance to allow defendant to be paroled at

waive, but only after the matter has been thoroughly explained by expense of the state if need is shown; this right he is at liberty to deprivation of liberty shall have the right to counsel at the

assistance of counsel at “critical stages” of criminal proceedings, State v. 104, 108 (1988), and once the right has attached, a defendant is entitled to the commencement of formal criminal proceedings,” State v. Bruneau, 131 N.H. A defendant’s right to assistance of counsel attaches “by virtue of the is contemplated that the hearing shall be scheduled demonstrating that he no longer poses a threat to society. It separate federal analysis, hearing, the defendant shall have the burden of to counsel under our State Constitution. We therefore do not engage in a

Process Clauses of the State and Federal Constitutions. Every person held to answer in any crime or offense punishable by

Part I, Article 15 of the New Hampshire Constitution reads:

reconsideration, and this appeal followed. analysis. See State v. Scarborough, 124 N.H. 363, 368 (1983). deferred seven-year sentence. It also denied the defendant’s motion for process argument. Furthermore, we rely upon federal decisions only to aid our Ball, 124 N.H. 226, 232 (1983), and do not address the defendant’s due represented himself State v. Rothe, 142 N.H. 483, 484 (1997); State v. deferred commitment should not be imposed. At this this case, we hold that the 2005 hearing was conducted in violation of his right art. 15; U.S. CONST. amend. V, VI, XIV. Under the narrow circumstances of

during the 2005 proceeding, relying upon both the Right to Counsel and Due The defendant argues that he was entitled to the assistance of counsel

[did] not merit suspension of the deferred sentence,” the trial court imposed the

conducted a hearing in September 2005 during which the defendant not be imposed.” The trial court denied the motion, and subsequently defendant may petition the Court to show cause why the assist him “in a show cause hearing as to why a deferred commitment should 15 years. Prior to the expiration of the [deferral] period, the In August 2004, the defendant filed a motion for appointment of counsel to committed. 7 years of the sentence deferred for a period of

for not more than life nor less than 25 years. Stand The defendant is sentenced to New Hampshire State Prison p. 3 3

264, 267 (1995) (on appeal, questions of law are considered de novo). question of law which we review de novo. See State v. Grant-Chase, 140 N.H. assistance of counsel during the subsequent hearing in 2005 constitutes a sentencing phase against the defendant such that he was entitled to the corners of the 1990 sentencing order. Whether the order left open the sentencing order in this case. We therefore confine our review to the four does not cite any applicable statutes that would assist us in construing the State v. LeCouffe, 152 N.H. 148, 152 (2005) (emphasis in original). The State

of the sentence. order must clearly communicate to the defendant the exact nature what conditions the sentence may be modified. The sentencing retains discretion to impose punishment at a later date and under punishment it is exacting, as well as the extent to which the court the time of sentencing in plain and certain terms what [d]ue process requires a sentencing court to make clear at

defendant’s sentence. Indeed, The language of the sentencing order determines the nature of the

phase by considering whether to impose the deferred seven-year term. to the assistance of counsel in 2005 when the court concluded the sentencing complete the defendant’s sentencing in 1990. Thus, the defendant was entitled particular language of the 1990 sentencing order, the trial court did not full term of twenty-five years to life. We conclude, however, that under the defendant took any action, the defendant automatically would have served his twenty-five years of imprisonment. According to the State, if neither it nor the burden of proving that he committed any affirmative act in order that he serve was not granted or assured of any conditional liberty; and the State bore no concluded in 1990 because the defendant was immediately incarcerated; he (2001). The State contends, however, that the sentencing phase of this case deferred, not just a portion of it. See, e.g., State v. Graham, 146 N.H. 142, 14 p. 3 3 case of deferred sentencing, of course, the entire term of incarceration is the sentence, and thus necessarily postpones that decision.” In the typical a deferred sentence, it makes no decision as to whether to impose or suspend The State agrees that “in a typical case, when a sentencing court imposes

time of the 2005 proceeding. sentencing phase of the defendant’s criminal prosecution remained open at the sentencing decision regarding the seven-year deferred term so that the (1967). The dispute lies in whether the 1990 sentencing order postponed the critical stages of the proceeding. See Mempa v. Rhay, p. 3 389 U.S. 128, 13 p. 4 4-37 agree that sentencing, as well as a hearing on a deferred sentence, constitute Delisle, 137 N.H. 549, 550 (1993) (citation omitted). In this case, the parties 4

DALIANIS, DUGGAN, GALWAY and HICKS, JJ., concurred.

on whether the seven-year deferred sentence should be imposed. suspension of the seven-year deferred term, and remand for a further hearing defendant’s motion for appointment of counsel, vacate the decision denying against greater punishment). Accordingly, we reverse the order denying the 1 p. 4 41 N.H. 427, 434 (1996) (federal rule of lenity resolves ambiguity in statutes protecting a defendant’s constitutional right to counsel. Cf. State v. MacLeod, conclusion of the sentencing phase in 1990, we ought to err on the side of extent the language of the sentencing order is ambiguous concerning the defendant served the initial fifteen years of his sentence. Furthermore, to the sentencing decision of whether to impose the seven-year term until after the deferred). Nevertheless, the language of the 1990 order leaves open the be unusual. Cf. Graham, 146 N.H. at 143 (entire term of incarceration We acknowledge that the terms of the deferred sentence in this case may

deferred term. trial court postponed its sentencing decision with respect to the seven-year Id. In the matter before us, sentencing was not completed in 1990 because the constitutional right to counsel during a critical stage of criminal prosecution. right to procedural due process. Id. at 320-21. He did not assert his defendant, and, thus, he argued for appointment of counsel pursuant to his the circumstances before us. Sentencing had concluded for the Gibbons 651:20, was not entitled to court-appointed counsel. Gibbons is inapposite to who was incarcerated and seeking a sentence suspension pursuant to RSA N.H. 320, 322-23 (1992), in which the court held that the indigent defendant, We disagree with the State that this case is akin to State v. Gibbons, 135

sentencing decision was being postponed on that portion of the sentence. whether the seven-year deferred term would be imposed, indicating that a express purpose of the anticipated show cause hearing was to determine language indicates that this deferred term was not yet deemed “imposed.” The order specifically refers to seven years of the term as “deferred,” and the the deferred commitment should not be imposed.” (Emphasis added.) The the [deferral] period, the defendant may petition the Court to show cause why sentence [is] deferred for a period of 15 years, [and] [p]rior to the expiration of 25 years. Stand committed.” However, the order continues: “7 years of the sentenced to New Hampshire State Prison for not more than life nor less than The 1990 sentencing order begins by stating that the defendant “is