2006-871, STATE OF NH v. JOHN BURGESS

The defendant, John Burgess, was convicted by a jury of

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 (Esther B. Piszczek, assistant attorney

editorial errors in order that corrections may be made before the opinion goes No. 2006-871 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 22 as holding cell.

p. 2 arrived to subdue him. The defendant was handcuffed and taken to the

defendant. The defendant continued to resist until several other court officers

between the inner and outer doors to the courtroom. Croteau then tackled the exit. Both individuals were forced through the doors into the small hallway the defendant ran into Deputy Sheriff Robert Croteau, who was stationed at the

shoes.

deputy sheriff yelled for the defendant to stop. Before he reached the exit door,

know where I got the shoelace from. You have my shoes.” Krieger testified obtained the lace used to disable the lock. The defendant responded: “You

run in a normal fashion. The lace had been cut from one of the defendant’s properly while standing. As a result, the defendant could bend his knee and “turned toward the right and bolted towards the doors.” Moran and another shoelace was holding the locking pin up such that the lock would not work behind his back, and as Moran attempted to handcuff him, the defendant back so that he could handcuff him. The defendant placed his right hand

Merrimack County Sheriff’s Department asked the defendant where he had During a subsequent interview, Lieutenant Robert Krieger of the

remove it, he observed part of a shoelace tied around the leg strap. The Later, when Deputy Sheriff Dennis Crawford unlocked the brace to defendant to face the front of the courtroom and place his hands behind his the defendant finished speaking with his attorney, Moran directed the Moran approached the defendant to escort him back to the holding cell. When window areas in the courtroom, seeing where each bailiff was positioned . . . .”

bend. The purpose of the brace was to prevent the defendant from running. defendant could unlock the brace by pulling a lever, thus allowing his knee to required the defendant to walk stiff-legged. While sitting, however, the mechanism that prevented the defendant’s knee joint from bending, which

noticed the defendant “[l]ooking at the different entrances and exits and the returned to the holding cell. Around this time, Deputy Sheriff Wayne Robie pursuant to normal practice, the trial court ordered that the defendant be defendant from the holding cell to the courtroom. At the end of the proceeding, On October 27, 2004, Deputy Sheriff James Moran escorted the

cell in the basement of the courthouse. The leg brace contained a locking Department placed a leg brace on the defendant while he was in the holding the proceeding, Lieutenant Leo Degreenia of the Merrimack County Sheriff’s was serving sentences for burglary and accomplice to theft. Each morning of County Superior Court for a judicial proceeding. At the time, the defendant October 25 and October 27, 2004, the defendant appeared in Merrimack The following facts were adduced at trial and sentencing. Between

six guards nearby. could have expected to escape from a courtroom with irrational act. I don’t think -- see how any individual a free man. . . . I think this was an impulsive and

aggressively towards” him. Thus, when Moran reached for his arm, he afraid” because he felt that a number of court officers were “moving very grabbed by a number of people.” He was “upset,” “nervous,” and “[s]omewhat

walk out of prison as a young man, a healthy man and his current situation that Mr. Burgess is ever going to in this case because I don’t think it’s likely that given family and I . . . would ask the Court for a little mercy

The defendant did not address the court during the hearing.

from Moran, he did not intend to escape, but was trying “to get out of being leniency, contending, in relevant part:

sentences the defendant already was serving. maximum extended term sentence of ten to thirty years, consecutive to the

to the person conducting the presentence investigation (PSI). man without hope, without a future and without a

Unfortunately, Mr. Burgess, as he sits before you, is a

from “pinching” him. The defendant further testified that when he turned away or [he] didn’t have a plan to do that.” deterrence and rehabilitation. Defense counsel asked the trial court for days of the proceeding, not with the intent to escape, but to prevent the brace out plan.” Instead, the defendant testified that he “said that was not my plan escape; (3) the nature and circumstances of the offenses; and (4) potential for keep the brace’s lock open. He testified that he disabled the lock on all three lock. However, he did not “think” that he “said it wasn’t a very well thought history, which included, among other convictions, three prior convictions for based this request upon: (1) the defendant’s character; (2) prior criminal

RSA 651:4 (2007). At the sentencing hearing, the State requested the

an implement for escape. Prior to sentencing, the defendant refused to speak The jury found the defendant guilty of attempted escape and possessing

found on the floor of the holding cell to cut his shoelace, which he then used to informing Krieger that he had used a lace from his shoe to disable the brace’s With respect to his interview with Krieger, the defendant admitted to

laughed . . . .”

At trial, the defendant admitted that he had used a paper clip that he

courthouse, the defendant “said it wasn’t a very well thought out plan and that, when he asked the defendant how he thought he would get out of the attributable to Mr. Burgess’ actions.

p. 4 again. The tragedy involved here is entirely

matters deliberately worse for himself time and time

years in any constructive way his situation, made

clarify whether it “considered the defendant’s silence at the sentencing hearing extended record, has simply not accepted over the To alleviate any uncertainty on the issue, the State asked the trial court to counsel in this case. We have a defendant who has an

court considered several other aggravating factors that supported the sentence. isn’t any real basis for mercy as asked for by defense let alone the injury to the process itself. the defendant’s silence prior to, or during, the sentencing hearing,” the trial responded that, despite “any alleged consideration that may have been given to participate in the PSI and his silence at the sentencing hearing. The State Hampshire and United States Constitutions by considering his failure to trial court violated his privilege against self-incrimination under both the New Mitchell v. United States not going to be tolerated at all., 526 U.S. 314 (1999), the defendant argued that the The defendant subsequently moved to vacate the sentence. Relying upon to be a very stern message sent out that this is simply enforcement and the judicial process and there needs (Emphasis added.)

along with the State’s position in this matter. There have much more seriously injured the people involved, situation and have concluded that I’m going to go this a number of times in the past and could very well to arguments of counsel, considered the defendant’s my mind clearly knew what he was doing, has done impulsivity on the part of Mr. Burgess, Mr. Burgess in To the degree that any of this had to do with

and safety of the personnel that are involved with law and the implements of escape go to the very integrity of crimes we’re talking about, the attempted escape a fairly deplorable one and at the same time the kind opportunities to do about his situation. The record is terms of telling any -- or talking to me as he’s had deal of thought, read the Pre-Sentence report, listened cooperated in terms of the Pre-Sentence report in

I very carefully considered this matter, given it a good

support of this sentence, the court stated, in pertinent part: The trial court imposed the maximum extended term sentence. In purpose.

p. 5 the pre-sentence investigation process, for any other the sentencing hearing, or his lack of involvement in The Court did not consider the defendant’s silence at these means pertaining to rehabilitation or leniency. presented any evidence from the defendant through declination obviously did not result in the Court being

convictions of Escape. The defendant’s silence and

court’s discretionary judgment. sentence, the record establishes an objective basis sufficient to sustain the trial presented with numerous other aggravating factors supporting the imposed was proper. Additionally, the State contends that because the trial court was both in and out of prison, including three (3) prior

for rehabilitation, and, therefore, its consideration of the defendant’s silence undisputed long history of disturbing criminal activity, assessment of defense counsel’s plea for mercy and the defendant’s potential any rehabilitation potential, or ability to alter his that the trial court limited its consideration of the defendant’s silence to its in assessing the degree, if at all, the defendant had not assert a violation of his federal constitutional rights. The State counters Constitution by using his silence as a factor in sentencing. The defendant does against self-incrimination under Part I, Article 15 of the New Hampshire On appeal, the defendant argues that the trial court violated his privilege

great weight of authority.” The court therefore denied the defendant’s motion. remain silent,” but, instead, “acted in a manner deemed appropriate by the “did not . . . impermissibly punish the defendant for exercising his right to Citing several cases from other jurisdictions, the trial court concluded that it

with the plea by his counsel for leniency or mercy, and

preparation process in a manner proscribed by his lack of involvement in the Pre-sentence Report

sentence investigation process in the context of dealing hearing and his declination to participate in the preconsidered the defendant’s silence at the sentencing sentencing hearing transcript reflects . . ., the Court Mitchell or other pertinent authorities. As the

[T]he Court did not consider the defendant’s silence or

In a written order, the trial court explained its decision:

sentencing.” or his lack of participation in the pre-sentence investigation as factors in his proceedings.”

p. 6 informal, where the answers might incriminate him in future criminal

official questions put to him in any other proceeding, civil or criminal, formal or against himself at a criminal trial . . . , but also privileges him not to answer stated that this privilege “not only permits [a defendant] to refuse to testify

only as it aids our analysis. claim, we address his claim under the State Constitution, and cite federal law

Knowles, 140 N.H. at 391 (quotation omitted). The United

defendant under Part I, Article 15, against compelled self-incrimination applies at sentencing. We have broadly Federal Constitution is comparable in scope to the privilege afforded to the We have never addressed whether and to what extent the privilege privilege against self-incrimination found in the Fifth Amendment to the accuse or furnish evidence against himself.” N.H. CONST. pt. I, art. 15. The (2005). Article 15 provides, in relevant part: “No subject shall be . . . compelled to self-incrimination under Part I, Article 15 of the State Constitution. Part I, See, e.g., State v. Barkus, 152 N.H. 701, 706

(2002). Here, because the defendant does not assert a federal constitutional than does the Fifth Amendment, see, e.g., State v. Roache, 148 N.H. 45, 49 determined that Part I, Article 15 provides greater protection to a defendant (1995), see U.S. CONST amend. V; although, in certain instances, we have

The defendant asserts that the trial court violated his privilege against

December 18, 2007) (“We review questions of constitutional law de novo.”). review that decision de novo. See State v. Decato, 156 N.H. ___, ___ (decided rights have been violated as a result of the trial court’s sentencing decision, we standard, id., where, as here, the defendant asserts that his constitutional court’s sentencing decision under our unsustainable exercise of discretion evidence no weight.” Id. (quotation omitted). While we normally review a trial sentence imposed must be reconsidered unless the trial court clearly gave that 96 (quotation omitted). “If improper evidence is admitted at sentencing, the unsubstantiated, resolved by acquittals, or the product of speculation.” Id. at allegations of other crimes by the defendant when such allegations are 295-96 (2001). For example, “judges in sentencing should not rely upon sentence, that discretion is not unlimited.” State v. Lambert, 147 N.H. 295, to choose the sources and types of evidence upon which to rely in imposing (2007) (quotation omitted). “Although a sentencing judge has broad discretion rehabilitation.” Duquette v. Warden, N.H. State Prison, 154 N.H. 737, 746 the traditional goals of sentencing – punishment, deterrence and exercise of its discretion,” including “whether the sentence imposed will meet requires the trial court to consider all the relevant factors necessary to the objective factors before imposing any sentence . . . . Part I, Article 18 . . . “The State Constitution requires the trial court to consider numerous

and at sentencing as a factor supporting the imposition of a lengthy prison that “the trial court erred in considering [his] silence during the PSI process The defendant urges us to apply the principles of Mitchell here and hold

the United States Sentencing Guidelines (1998).” Id. at 330. responsibility for purposes of the downward adjustment provided in § 3E1.1 of upon the determination of a lack of remorse, or upon acceptance of of whether a sentencing court may consider a defendant’s silence as it “bears the crime.” Id. at 328-29. However, the Court explicitly left open the question respect to all the crimes comprehended in the plea, regard to factual determinations respecting the circumstances and details of did not constitute a waiver of the privilege against self-incrimination with negative inferences applies with equal force at the sentencing phase “with id. at 32 p. 7 7-28 (citation omitted), the Supreme Court held that this rule against that no negative inference from the defendant’s failure to testify is permitted,” further incrimination.” Id. Noting that “[t]he normal rule in a criminal case is “there is no basis for the assertion of the privilege” because “there can be no sentence has been fixed and the judgment of conviction has become final,” crimes.” consequences from further testimony.” Id. at 326. In contrast, where “the defendant] had no right to remain silent with respect to the details of her not yet been imposed a defendant may have a legitimate fear of adverse applies at sentencing. Id. at 327. It explained that “[w]here the sentence has that, because sentencing proceedings are part of a criminal case, the privilege

The United States Supreme Court held that the defendant’s guilty plea

omitted). partly because the defendant did “not testify[ ] to the contrary.” Id. (quotation indicating that the defendant “had been a drug courier on a regular basis”

Id. In sentencing the defendant, the District Court credited testimony

“the District Court ruled that, as a consequence of her guilty plea, [the Government’s evidence about drug quantity.” unfettered exercise of his own will, and to suffer no penalty for such silence.” Id. at 319. After the testimony, sentencing, the defendant “put on no evidence” and did not “testify to rebut the guaranteed the right to remain silent unless he chooses to speak in the explicitly reserved the right to contest the amount of cocaine at issue. Id. At defendant pleaded guilty to distributing cocaine. Id. at 31 p. 7 7. However, she Mitchell, 526 U.S. at 328. In that case, without any plea agreement, the determining facts relating to the circumstances and details of the crime. may not draw an adverse inference from a defendant’s silence at sentencing in privilege against self-incrimination to sentencing. The Court held that a court In Mitchell, the United States Supreme Court specifically extended the

Estelle v. Smith, 451 U.S. 454, 468 (1981) (quotation omitted).

against self-incrimination “is fulfilled only when a criminal defendant is States Supreme Court has held that a defendant’s Fifth Amendment right sentencing process.”

may not draw any adverse inferences from the accused’s silence during the

in part upon the defendant’s failure to express remorse. defendant urges us to hold under our constitution that “a sentencing court violated the defendant’s right against self-incrimination by basing its sentence amenability to rehabilitation or deservingness of leniency.” Thus, the extended term sentence. The question therefore is whether the trial court drew “an adverse inference from the accused’s silence when considering declined defense counsel’s plea for leniency and imposed the maximum had a decreased potential for rehabilitation. Consequently, the trial court defendant was silent at the sentencing hearing, he lacked remorse, and, thus, In this case, the trial court appears to have reasoned that, because the

theories of punishment). criminal sentencing because its application does not serve the prominent Chi. L.J. 131 (Fall 2006) (arguing that remorse should not be relevant in (summarizing cases). But see Ward, Sentencing Without Remorse, 3 p. 8 8 Loy. U. determining sentence); Jennings v. State, 664 A.2d 903, 908 (Md. 1995) properly consider the defendant’s character and potential for rehabilitation in see also State v. Sweeney, 124 N.H. 396, 401 (1983) (noting that a court may accused for exercising his right to trial and testifying as to his innocence” if it We address each argument in turn. 03 (Conn. App. Ct. 1994); Jackson v. State, 643 A.2d 1360, 1379 (Del. 1994); rehabilitation efforts would be successful. improperly drew a negative inference from his failure to participate in the PSI. State v. Barnes, 637 A.2d 398, 402upon a defendant’s character and be pertinent in determining whether his silence at the sentencing hearing. Second, he contends that the trial court the theoretical grounds for considering such evidence are that it may reflect 144 N.H. 401, 408 (1999). While we have never previously articulated them, One such relevant factor is a defendant’s lack of remorse. State v. Hammond, evidence upon which to rely in imposing sentence.” Lambert, 147 N.H. at 295. A trial court has “broad discretion to choose the sources and types of

submits that a trial court would always “in some measure penaliz[e] the leniency or is amenable to rehabilitation is “unworkable.” The defendant crime and drawing the inference to determine whether the accused deserves First, he argues that the trial court erred in drawing an adverse inference from The defendant makes two distinct, albeit somewhat related, arguments.

negative inference from silence with regard to the facts and circumstances of a sentence.” He contends that the distinction between a court drawing a p. 9 9

1 p. 9 994); State v. Loveland, 684 A.2d 272 (Vt. 1996); cf. People v. Ward, 499 162 (Mich. 1987) (plurality opinion); State v. Tiernan, 645 A.2d 482, 486 (R.I. A.2d at 402-03; Jennings, 664 A.2d at 910; People v. Wesley, 411 N.W.2d 159, Bergmann v. McCaughtry, 65 F.3d 1372, 1379 (7th Cir. 1995); Barnes, 637 2007) (quoting State v. Kamana’o, 82 P.3d 401, 407 (Haw. 2003)); see also State v. Meister defendant’s right to remain silent., No. 30152, 2007 WL 2821981, at *15 (Idaho Ct. App. Oct. 1, individual has a reduced potential for rehabilitation, without violating the responsibility or failure to express remorse, and thus indicate that an remain silent and to appeal.” that a defendant’s silence after trial may be considered as a failure to accept of a criminal defendant’s right to due process, to defendant’s refusal to admit guilt as a factor in sentencing, some courts hold admit guilt, . . . the latter being a violation, inter alia, . . . and punishing a defendant for his or her refusal to

upon a defendant based on his or her lack of remorse, “[d]istinction between imposing a harsher sentence

draw a F.2d 1084, 10 p. 9 90 (7th Cir. 1990); Barnes, 637 A.2d at 402-03. These courts

finally adjudicating the guilt or innocence of a defendant.”

However, even though a court may not constitutionally consider a

State, p. 9 934 P.2d 235, 245-46 (Nev. 1997). defendant’s refusal to admit guilt as a factor in sentencing. See Brown v. after a jury trial, a sentencing court may not constitutionally consider a and chill his right to remain silent, Thomas, 368 F.2d at 945. Accordingly, these post-trial processes, Poteet v. Fauver, 517 F.2d 393, 396 (3d Cir. 1975), guilt after a jury has convicted him would jeopardize a defendant’s right to consider a defendant’s false trial testimony as a factor in sentencing, at 945. Allowing a sentencing court to penalize a defendant for not admitting a due process violation of the most basic sort.”). While a trial court may

collateral attack. Indeed, appeal is now an integral part of the trial system for opportunity to discover new evidence), appeal, petition for certiorari, and open to him [ar]e the processes of motion for new trial (including the defendant has “not been finally and irrevocably adjudged guilty” since “[s]till Murphy, 465 U.S. 420, 434 (1 p. 9 984). Even at the time of sentencing, a Thomas v. United States, 368 F.2d 941 (5th Cir. 1966); cf. Minnesota v. defendant’s punishment because he refuses to admit his guilt after conviction, States v. Grayson, 438 U.S. 41 (1978), it may not constitutionally increase a

punish a person because he has done what the law plainly allows him to do is n.20 (1 p. 9 968); see also Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978) (“To trial rather than pleading guilty. United States v. Jackson, 390 U.S. 570, 583 It is well established that a court cannot punish a defendant for standing p. 10 10

his innocence of the crime for which he was ultimately convicted and was

violated defendant’s Fifth Amendment rights where defendant had “maintained remorse”); Brake v. State, 939 P.2d p. 10 1029, 1033 (Nev. 1995) (sentencing court innocence throughout the criminal process, he has “no opportunity to express at 1391; see also Young, 987 P.2d at 894-95 (where a defendant maintains his maintains his innocence to express contrition or remorse.” Hardwick, 905 P.2d imply guilt, it would be irrational or disingenuous to expect or require one who expression of ‘remorse.’”). Accordingly, since “contrition or remorse necessarily (“Acknowledgement or admission of . . . ‘wrongdoing,’ . . . is foundational to the to admit guilt,” Hardwick, 905 P.2d at 1391; cf. Kamana’o, 82 P.3d at 407 “[d]efendant’s lack of contrition is, for legal purposes, tantamount to a refusal remorse “connote an acknowledgement of guilt on the part of a defendant,” a at 1090), the courts generally reason that, because the terms contrition and failure to show remorse,” Jackson, 643 A.2d at 1380 (citing Johnson, 903 F.2d punishing a defendant for remaining silent and proper consideration of his consideration of a lack of remorse note that there is a fine line between Jackson, 643 A.2d at 1380. Noting that “[e]ven courts which permit incrimination cannot be an aggravating factor in the defendant’s sentence.”); cf. privilege against self-incrimination.”); expression, which took the form of exercising the right against selfdecision to aggravate a [d]efendant’s sentence offends the Fifth Amendment remorse might have mitigated th[e] defendant’s sentence, the lack of such an irrelevant to a sentencing determination, and the trial court’s use of this Williams, 389 S.E.2d 830, 833 (N.C. Ct. App. 1990) (“[W]hile an expression of receive a harsher sentence violated [his] Fifth Amendment rights”); State v. Brown, 934 P.2d at 246 (“requiring [the defendant] to either express remorse or of remorse without violating his privilege against self-incrimination. the offense of which he stands convicted – i.e. that he is actually innocent”); where he has maintained, throughout the proceedings, that he did not commit negative inference of lack of remorse from the defendant’s silence at sentencing Shreves, 60 P.3d 991, 996 (Mont. 2002) (“sentencing court may not draw a lack of an expression of remorse as an aggravating circumstance”); State v. whether rehabilitation efforts would be fruitful. (Colo. Ct. App. 1999) (“court cannot constitutionally consider [a defendant’s]

defendant’s decision not to publicly admit guilt [by expressing remorse] is v. Hardwick, 905 P.2d 1384, 1391 (Ariz. Ct. App. 1995) (“A convicted

court may not consider a defendant’s silence at sentencing as indicating a lack Other courts have rejected this distinction and hold that a sentencing

*15; Barnes, 637 A.2d at 402-03; Wesley, 411 N.W.2d at 162-63.

accept responsibility or express remorse for the limited purpose of determining right is violated when the court considers the defendant’s silence as a failure to the defendant’s admission of guilt would reduce his sentence, no constitutional App. 1994). In these jurisdictions, unless the sentencing court suggests that N.E.2d 422, 425-27 (Ill. 1986); State v. Fuerst, 512 N.W.2d 243, 247 (Wis. Ct. p. 11 11

remain silent, see Jackson, 643 A.2d at 1379; Brake, 939 P.2d at 1033, a court criminal process to express remorse at sentencing is to forego his right to affirmative way for a defendant who maintains his innocence throughout the on the defendant.” Neville, 459 U.S. at 563. Accordingly, because the only incrimination “prevents the state from forcing the choice of this ‘cruel trilemma’ 553, 563 (1983); see Thomas, 368 F.2d at 945. The privilege against selfsilent and risk obtaining a greater sentence. South Dakota v. Neville, 459 U.S. post-trial remedies, testify falsely and risk a perjury conviction, or remain In either case, the defendant must admit wrongdoing and jeopardize his distress arising from a sense of guilt for past wrongs,” a defendant for refusing to admit guilt. “Remorse” is defined as “a gnawing unworkable, and unmanageable). 165, 166 & n.2 (Brickley, J., concurring) (criticizing distinction as illusory, express remorse and his refusal to admit guilt. See Wesley, 4 p. 11 11 N.W.2d at this respect, we see no practical difference between a defendant’s failure to remorseful for something he contends he did not do” (quotation omitted)). In innocence throughout the proceedings (Simon, J., dissenting) (“[a] defendant . . . can hardly be expected to be some degree acknowledge wrongdoing or guilt. inference from a defendant’s silence at sentencing when he has maintained his See Ward, 499 N.E.2d at 429 1214 (1966). Thus, for a defendant to truthfully express remorse, he must to factor in sentencing,” they reason that allowing a court to draw an adverse regret for wrongdoing,” Random House Dictionary of the English Language International Dictionary 1921 (unabridged ed. 2002), or “deep and painful

defendant’s silence to infer a failure to express remorse and using it to punish We agree with the courts rejecting the distinction between using a

389 S.E.2d at 833. dissenting); Wesley, 4 p. 11 11 N.W.2d at 168 (Brickley, J., concurring); cf. Williams, Shreves, 60 P.3d at 996-97; see also Ward, 499 N.E.2d at 429 (Simon, J.,

consider at sentencing and . . . that lack of remorse can be considered as a silent and suffer the imposition of a greater sentence.

or, in the alternative, stand on his right to remain (with respect to a crime he claims he did not commit) himself at the sentencing hearing and show remorse specifically, that the defendant must either incriminate . . . which is condemned by the Fifth Amendment[;] . . . would force upon the defendant the Hobson’s choice

While these courts recognize that “rehabilitation is an important factor to

not incriminate himself”). unable to express remorse and admit guilt . . . without foregoing his right to p. 12 12

is convicted, and only then admits guilt and expresses remorse.” U.S.S.G. to its burden of proof at trial by denying the essential factual elements of guilt, instances, however, “a determination that a defendant has accepted the section “is not intended to apply to a defendant who puts the government challenge to the applicability of a statute to his conduct).” Id. In these to factual guilt (e.g., to make a constitutional challenge to a statute or a “where a defendant goes to trial to assert and preserve issues that do not relate his constitutional right to a trial.” Id. For example, the section may apply acceptance of responsibility for his criminal conduct even though he exercises is only in “rare situations [that] a defendant may clearly demonstrate an automatically preclude a defendant from consideration for such a reduction,” it § 3E1.1 comment (application n.2). While “[c]onviction by trial does not

actions. U.S.S.G. § 3E1.1 comment (backg’d). Consistent with this purpose, sentence to a defendant who, in a timely fashion, takes responsibility for his standard of review on appeal). The purpose of this section is to give a lower Federal Sentencing Act making the guidelines mandatory and setting forth Booker, 543 U.S. 220 (2005) (declaring unconstitutional provisions of the “decrease the offense level by 2 levels.” U.S.S.G. § 3E1.1; see United States v. acceptance of responsibility for his offense,” the sentencing court may section 3E1.1. Under section 3E1.1, if a “defendant clearly demonstrate[s] We do not find this reasoning persuasive outside the unique structure of

See, e.g., Frazier, 971 F.2d at 1081-82. defendant, rather than imposing a penalty upon his exercise of the privilege. under section 3E1.1, a sentencing court is simply denying a benefit to the 3E1.1, because a defendant refuses to admit guilt or express remorse. 1989). These courts reason that, in refusing to grant a reduction of a sentence F.2d 623 (2d Cir. 1990); acceptance of responsibility provision of the Sentencing Guidelines, section United States v. Perez-Franco, 873 F.2d 455 (1st Cir. States v. Frierson, 945 F.2d 650 (3d Cir. 1991); United States v. Oliveras, 905 that have addressed the issue left open in 1989); United States v. Paz Uribe, 891 F.2d 396 (1st Cir. 1989). But see United 903 F.2d 91 (2d Cir. 1990); United States v. Henry, 883 F.2d 1010 (11th Cir. United States v. Rogers, 921 F.2d 975 (10th Cir. 1990); United States v. Parker, F.2d 1414 (5th Cir. 1992); United States v. Lyles, 946 F.2d 78 (8th Cir. 1991); States v. Frazier, 971 F.2d 1076 (4th Cir. 1992); United States v. Singer, 970 (9th Cir. 1997); United States v. Clemons, 999 F.2d 154 (6th Cir. 1993); United 171 F.3d 556 (7th Cir. 1999); United States v. Villasenor-Cesar, 114 F.3d 970 United States v. Cohen, 171 F.3d 796 (3d Cir. 1999); United States v. Larkin,

Fifth Amendment violation to deny a reduction of a sentence under the

We note that a majority, if not all, of the Federal Circuit Courts of Appeal

defendant’s silence at sentencing. may not constitutionally draw an adverse inference of lack of remorse from the his post-trial rights. 13

p. 13 and lose the opportunity for leniency, or speak and run the risk of jeopardizing

lack of remorse from a defendant’s silence at sentencing, we note that this In holding that a sentencing court may not draw a negative inference of

if he had” expressed remorse, IV the [defendant] and denying him the ‘leniency’ he claims would be appropriate right to remain silent. speak and express remorse is equivalent to penalizing him for exercising his sentencing scheme, denying a defendant leniency simply because he fails to rather than penalizing him for exercising his right to remain silent. he would have received had he accepted responsibility in a timely fashion, Frierson, 945 F.2d at 659. Accordingly, under our

choice has not disappeared after trial: the defendant must either remain silent maintained his innocence throughout the criminal process, the Hobson’s statutory limits for the specified crime. Moreover, for a defendant who has sentence. (1980), since, ultimately, the result is the same: a sentence within the Hampshire, trial courts have broad discretion to determine the length of a Roberts v. United States, 445 U.S. 552, 557 n.4

distinction may be drawn between ‘enhancing’ the punishment imposed upon Fischer), 152 N.H. 205, 211 (2005). Therefore, “[w]e doubt that a principled within the statutory limits at their discretion. Petition of State of N.H. (State v. mitigation or aggravation of a sentence, and, thus, may adjust a sentence Frierson section 3E1.1 may be reasonably interpreted as denying a defendant a benefit, 945 F.2d at 658. The trial courts determine which factors favor inconsistent with the reality of New Hampshire’s sentencing scheme. and jeopardize his post-trial rights by admitting wrongdoing. Therefore, See failure to express remorse as a “denied benefit” as opposed to a “penalty” is factual guilt, a defendant invoking section 3E1.1 does not incriminate himself characterizing a court’s refusal to grant leniency based upon a defendant’s

State v. Morehouse, 120 N.H. 738, 742 (1980). In this context,

encouraging defendants to accept responsibility early. Rather, in New Our sentencing scheme contains no similar provision explicitly for taking responsibility early.

not intended to apply to circumstances where a defendant refuses to admit United States, 397 U.S. 742, 751 (1970). Furthermore, since section 3E1.1 is 439 U.S. 212, 218-20 (1978); Bordenkircher, 434 U.S. at 364-65; Brady v. a guilty plea without violating the Fifth Amendment. Corbitt v. New Jersey, that the government may offer substantial benefits to a defendant in return for

guilty pleas by offering a defendant the benefit of a lower sentence in exchange Read in this context, it is clear that section 3E1.1 simply encourages

Id. (emphasis added). responsibility will be based primarily upon pre-trial statements and conduct.” p. 14 14

defense. Even if the killing had been in self-defense, question was whether or not the killing was in self- [The defendant] admitted killing the victim. The only

disagreed with the majority, explaining: foregoing his right to not incriminate himself.” Id. Chief Justice Shearing incrimination. unable to express remorse and admit guilt to first degree murder without remorse, rather than being penalized for exercising his privilege against self- instances, legitimately be considered as a lack of remorse. his innocence of the crime for which he was ultimately convicted and was receiving an additional benefit he would have received had he expressed committing those acts, the defendant’s silence at sentencing might, in certain was that he had killed [the victim] in self-defense; as such, he had maintained had the requisite mental state for the crime, or offers a legal justification for Fifth Amendment rights. Id. It reasoned that the defendant’s “theory at trial committing the acts underlying the charged crime, but disputes whether he Court of Nevada concluded that the sentencing court violated the defendant’s the maximum sentence. Id. at 1033. On appeal, the majority of the Supreme sentencing, citing the defendant’s failure to express remorse, the court imposed he had done so in self-defense. Id. The jury found the defendant guilty. Id. At 1031. At trial, the defendant admitted to shooting the victim, but claimed that In Brake, the defendant was charged with first degree murder. Id. at

at 1034 (Shearing, C.J., concurring in part and dissenting in part).

upon a defendant’s failure to express remorse is more akin to a defendant not by speaking. Accordingly, with a guilty plea, a court’s denial of leniency based longer present as this defendant does not risk jeopardizing his post-trial rights circumstances of each case. For example, where a defendant admits to The Hobson’s choice faced by defendants who maintain their innocence is no right to remain silent has been violated, we must examine the factual incrimination in all instances. To determine whether a particular defendant’s defendant’s silence at sentencing does not violate the privilege against self- Thus, a sentencing court’s inference of a lack of remorse from a

See Frazier, 971 F.2d at 1082-84.

his admission of wrongdoing, and, thus, must inevitably incriminate himself. defendant pleads guilty to a crime, he accepts a lower sentence in exchange for incriminating himself if he expresses remorse at sentencing. Where a maintains his innocence throughout the criminal process and risks Furthermore, this holding is limited to situations where a defendant

false trial testimony as a sentencing factor. Grayson, 438 U.S. at 53-54. 60 P.3d at 996. Nor does it prevent a trial court from considering a defendant’s defendant’s silence that indicates a defendant’s lack of remorse. See Shreves, holding does not preclude a court from considering other evidence besides a defendant to express remorse [wa]s to waive his right to remain silent,” p. 15 remorse. Because this is not a case in which “the only affirmative way for [the] asserted lack of intent to escape would not have conflicted with any feelings of was reacting to feelings of panic and anxiety. Therefore, the defendant’s

against self-incrimination under the State Constitution. court’s use of a defendant’s silence during a PSI would violate his privilege

court officers, he did not intend to escape from official custody, but, rather,

Accordingly, we do not address the separate question of whether a sentencing involvement” or “declination to participate” in the PSI as a sentencing factor. considered, not the defendant’s “silence” at the PSI, but his “lack of 15 trial court’s order on the defendant’s motion to vacate clarifies that the court

rehabilitation, which is an appropriate sentencing consideration. personnel without undermining his assertion that when he broke away from defendant could have expressed regret for endangering the safety of court post-trial rights by expressing remorse for his acts. For example, the because he would not have risked incriminating himself or jeopardizing his

“silence during the PSI process . . . as a factor supporting” his sentence. The

failure to participate in the PSI is relevant to the defendant’s potential for Here, the defendant never met with the officer conducting the PSI. This

being, when the defendant admits to the killing.

escape from official custody. His right to remain silent was not implicated defendant’s lack of feeling about killing a fellow human

The defendant also argues that the trial court improperly considered his

it denied him leniency based upon his silence at sentencing. court penalized him for exercising his privilege against self-incrimination when courtroom exit. The defendant denied only that he had the requisite intent to Jackson, 643 A.2d at 1379, we reject the defendant’s contention that the trial sentencing judge may legitimately consider a Moran attempted to handcuff him after the proceeding; and lunged towards the it to disable the locking mechanism of the brace; pulled away from Moran when

right to remain silent is not implicated. The remorse are not in conflict. Thus, . . . [the defendant]’s

underlying both crimes. He admitted that he cut the lace from his shoe; used defendant]’s claim of self-defense and a feeling of this case. As in Brake, the defendant confessed to committing the acts We find Chief Justice Shearing’s reasoning persuasive for the purposes of

Id. at 1034 (Shearing, C.J., concurring in part and dissenting in part).

legitimate consideration of the sentencing judge. [The [the defendant]’s lack of remorse would have been a p. 16 16

crimes with which he was charged.

to cooperate with the authorities on the simplest matters not relating to the

had a reduced potential for rehabilitation. defendant’s declination to participate in the PSI as a factor indicating that he BRODERICK, C.J., and DALIANIS, GALWAY and HICKS, JJ., concurred.

sentencing factors, we affirm. silence at the sentencing hearing and failure to participate in the PSI as invoking his right to remain silent at that time. Instead, the defendant refused privilege against self-incrimination under the State Constitution by using his with the PSI and still refused to discuss his factual guilt or possible remorse by Because the trial court in this case did not violate the defendant’s defendant to incriminate himself. For example, he could have been involved

court did not violate his privilege against self-incrimination when it used the information. have participated in the PSI without jeopardizing his post-trial rights, the trial defendant’s family history, prior criminal record, and other background basis for refusing to participate in the PSI. Given that the defendant could rehabilitation). A PSI contains, among other things, information pertaining to a 605, 644 (Pa. 2001). Thus, he could not properly invoke the privilege as a

(quotation omitted). Therefore, participation in the PSI did not require the defendant is charged.” State v. Ferbert, 113 N.H. 235, 237-38 (1973) “contain information bearing no relation whatever to the crime with which the

State v. Schulte, 119 N.H. 36, 39 (1979). In fact, a PSI may

cooperate with authorities gives rise to an inference of a decreased potential for the appropriate sentence . . . .”); cf. Roberts, 445 U.S. at 557 (failure to the PSI is certainly a valid factor for a trial court to consider in contemplating State, 36 P.3d 1133, 1141 (Wyo. 2001) (“A defendant’s failure to cooperate in