2007-295, STATE OF NH v. RONALD LAMARCHE

connection with separate New Hampshire charges. At that time, Chief 2005, he reported to the Carroll County probation office for bail supervision in THE SUPREME COURT OF NEW HAMPSHIRE was sentenced in a Massachusetts court to one year of probation. On June 6,

The record supports the following facts: On May 19, 2005, the defendant

, attorney general (Thomas E. Bocian, of Ossipee (Erland C. L. McLetchie

No. 2007-295 after a bench trial in Superior Court (Fitzgerald

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 I. Background reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

RSA 651-A:25, IX (2007). We affirm. New Hampshire without permission while on probation in another state. See Carroll , J.) of one count of being in DALIANIS, J. The defendant, Ronald Lamarche, appeals his conviction

brief and orally), for the defendant. McLetchie Law Office, PLLC 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, on the

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

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as specifically invoke a provision of the State Constitution in his brief. State v. p. 2 constitutional claim, the defendant must: (1) raise it in the trial court; and (2) Constitution, we hold that he has failed to preserve them. To preserve a state

To the extent that the defendant raises arguments under the State

challenges the denial of these motions. denied all three motions, and this appeal followed. On appeal, the defendant the State within seven days after having been ordered to do so. The trial court

asserting that it was defective because it did not allege that he failed to leave

a speedy trial had been violated. He also moved to quash the indictment, vague and interfered with his constitutional right to travel, and that his right to prisoners charge on the grounds that RSA 651-A:25, IX was unconstitutionally

Before trial, the defendant moved to dismiss the second parole of

and without permission (“parole of prisoners charge”). See of prisoners charge. arraignment until March 27, 2007, when he was convicted of the second parole

of law, which we review de

2006, he was arraigned on one count of being in this state while on probation

on July 26, 2006. The defendant was held in jail in lieu of bail from the II. Vagueness

both on its face and as applied. The constitutionality of a statute is a question

arrested in Ossipee for criminal trespass and resisting arrest. On February 22, Approximately six months later, on January 21, 2006, the defendant was prisoners charge. He was arraigned on the second parole of prisoners charge

The defendant first argues that RSA 651-A:25, IX is void for vagueness,

On July 7, 2006, the State re-indicted the defendant on the parole of remain in the State without receiving permission from a “designated officer.” id. of both. latter, we will limit our analysis of his issues to the Federal Constitution. See Hancock, 156 N.H. 301, 305 (2007). As the defendant has failed to do the

that he was required to leave New Hampshire within seven days and could not “NOTICE OF ORDER TO RETURN TO SENDING STATE,” which informed him criminal trespass and resisting arrest charges. The defendant was found guilty New Hampshire within seven days. She read the defendant a form entitled

prisoners charge, over the defendant’s objection, and went to trial on the in Massachusetts and, pursuant to RSA 651-A:25, IX, ordered him to leave On June 20, 2006, the State entered a nolle prosequi on this parole of Probation Officer Theresa Meyers realized that the defendant was on probation RSA 651-A:25, IX. or parolee must obtain permission before re-entering the state after leaving

p. 3 We recognize that the statute does not expressly state that a probationer

permission. prohibited from being present in New Hampshire at a later time without

within seven days. As long as they do so, the defendant argues, they are not

the statute merely requires probationers or parolees to leave New Hampshire may not re-enter the state without first obtaining permission. He asserts that they are present in the state without permission from a designated officer, they

ordinary intelligence that, upon being told to leave New Hampshire because

The defendant argues that the statute does not indicate to persons of

officer, is guilty of a class B felony.

remain in this state without the permission of the designated

writing by a law enforcement officer that the individual may not

does not leave this state within 7 days after being notified in this state designated under paragraph V of this section, and who who is present in this state without the permission of the officer of

An individual who is on parole or probation in another state,

understand and comply with.” Broadrick v. Oklahoma

constitutionality.” State v. MacElman burden of proof in view of the strong presumption of a statute's RSA 651-A:25, IX provides:

a reasonable opportunity to understand what conduct it prohibits.” Id Federal Constitution because it “fails to provide people of ordinary intelligence

that the ordinary person exercising ordinary common sense can sufficiently or even encourages arbitrary and discriminatory enforcement,” Hill v. Colorado

“A party challenging a statute as void for vagueness bears a heavy analysis to his as applied claim. See

402 U.S. 544, 546 (1971) (quotation omitted). could not reasonably understand to be proscribed.” Palmer v. City of Euclid, [person] should be held criminally responsible for conduct which he [or she] we address only whether RSA 651-A:25, IX is void for vagueness under the (1973) (quotation omitted). “The underlying principle [of vagueness] is that no

not unconstitutionally vague as long as its prohibitions “are set out in terms opportunity to understand what conduct it prohibits” or because it “authorizes

develop his argument that the statute is facially invalid, we further limit our . N.H. 709, 714 (2007). Because we conclude that the defendant has failed to

arbitrary and discriminatory enforcement claim in the trial court. Therefore, 530 U.S. 703, 732 (2000), he has failed to demonstrate that he raised his

either because it “fails to provide people of ordinary intelligence a reasonable (2007). Additionally, although the defendant argues that the statute is vague

p. 4 he failed to leave, he asserts that it is “defective and should be quashed.” We Hampshire on January 21, 2006, but does not allege that he was there because

the indictment alleges that the defendant was unlawfully present in New

leave within seven days after having been told to leave. Accordingly, because interprets RSA 651-A:25, IX, he could only have violated the law if he failed to necessary for the indictment to specify a particular date because, as he

specify when the RSA 651-A:25, IX violation occurred. He contends that it was

The defendant argues the indictment was insufficient because it did not

and that he may not remain in this State without her permission.

III. Sufficiency of the Indictment

A:25, V, that he was required to leave this State within seven days

without permission.

enforcement officer, and a designated officer pursuant to RSA 651-

permission to stay, would believe that he or she may return to New Hampshire

7, 2005 by Chief Probation/Parole Officer Theresa Meyers, a law the State of New Hampshire after being notified in writing on June the Commonwealth of Massachusetts, he was knowingly present in crime of Parole of Prisoners in that, while being on probation in

bar of future prosecutions for the same offense.” Hamling v. United States must defend, and, second, enables him to plead an acquittal or conviction in intelligence, told to leave New Hampshire because he or she does not have cross the border and re-enter the state. We conclude that no one of ordinary would only serve to force them out for only as long as it would take them to

On or about January 21, 2006, . . . [the defendant] did commit the

The indictment alleges:

offense charged and fairly informs a defendant of the charge against which he

the state without any restriction on when they could return, then the statute

Constitution, “an indictment is sufficient if it, first, contains the elements of the

officer to be in New Hampshire. If the statute only required individuals to leave probationers or parolees from out-of-state have permission from a designated to an absurd result. On its face, the statute is designed to ensure that

motion to quash the indictment because it was insufficient. Under the Federal The defendant next argues that the trial court erred in denying his

of common sense, we conclude that the defendant’s interpretation would lead within seven days. However, reading RSA 651-A:25, IX with an ordinary level p. 5 IV. Right to a Speedy Trial

to decide this issue on appeal, which is his burden. See

remaining Barker did not err in denying the defendant’s motion to quash the indictment. to notify the defendant of the charges against him. We hold that the trial court presumptively prejudicial. Barker The defendant argues that the entry of the nolle Because it spells out the elements of the statute, the indictment was sufficient mechanism”: we do not consider the remaining factors unless the delay is

is caused by the defendant.” Rashad v. Walsh

defendant is correct because he has failed to provide us with a record sufficient numerous motions in limine on the eve of trial.” We cannot determine if the partially responsible because he “sought a number of continuances and filed that it is so. Accordingly, the defendant is entitled to review under the reason for the delay. The State disagrees, arguing that the defendant is in Barker v. Wingo

without permission more than seven days after he was told to leave. It did so. The first factor, the length of the delay, is “to some extent a triggering (citation omitted), cert. denied, 537 U.S. 1236 (2003). because the State entered a nolle, 300 F.3d 27, 34 (1st Cir. 2002) cause delay, the delay does not count against the state at all. So too delay that how much weight to give the delay. Id and consider de. “[T]o the extent that valid reasons The second factor requires that we assess why the trial was delayed and

factors.

agree that the delay is presumptively prejudicial, we assume without deciding violated under the Federal Constitution, we apply the four-part test articulated, 407 U.S. at 530. Because both parties

state within seven days; it only needed to allege that he was in the state not necessary that the indictment allege that the defendant failed to leave the Finally, the defendant asserts he was denied his right to a speedy trial factual findings. State v. Allen, 150 N.H. 290, 292 (2003). officer if they are present in the state past the seven-day window. Thus, it was novo the court’s conclusions of law with respect to those the trial court’s factual findings unless those findings are clearly erroneous, the defendant caused by the delay. Barker, 407 U.S. at 530-32. We defer to the defendant’s assertion of his right to a speedy trial; and (4) the prejudice to balance four factors: (1) the length of the delay; (2) the reason for the delay; (3)

In determining whether a defendant’s right to a speedy trial has been

leave New Hampshire. It requires them to receive permission from a designated RSA 651-A:25, IX does more than require probationers or parolees to defense in any way. Id

p. 6 argue the most serious indication of prejudice: that the delay impaired his

to consider it. Hancock

substantially mitigates any prejudice attributable to his anxiety. He does not

right to interstate travel, he has not fully briefed this argument and we decline

BRODERICK, C.J.