2008-010, STATE OF NEW HAMPSHIRE v. ANGEL ALMODOVAR

The defendant, Angel Almodovar, appeals the decision of

on the brief and orally), for the defendant. Sheehan, Phinney, Bass & Green, P.A., of Manchester (Robert H. Miller

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

page is: http://www.courts.state.nh.us/supreme. THE STATE OF NEW HAMPSHIRE

No. 2008-010 editorial errors in order that corrections may be made before the opinion goes Grafton Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

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 deferral period, did he move to suspend the deferred sentences.

counsel and a hearing.

denied both. He has never done so nor, at the conclusion of the five-year 3, p. 2 2007, the Superior Court (

February 15, p. 2 2001, the Superior Court (

period of probation had expired; and (3) without providing the defendant with the deferred sentences: (1) consecutively; ( p. 2 2) after the statutory maximum placed on probation for a period of five years. On appeal, the defendant argues that the trial court erred in imposing and imposed. should not be imposed.” On all three of the charges, the defendant was also

motion to correct illegal sentences and motion for appointment of counsel, and remaining sentence was suspended. to annually petition for continuation of deferral of the sentences. Vaughan, J.) held a hearing on the defendant’s suspended sentence and after the period of probation had expired. On August the trial court erred in imposing the deferred sentences consecutively to the defendant, pro se, filed a motion to correct the illegal sentence, arguing that failed to petition to suspend the two concurrent deferred sentences. On defendant’s motion to correct the sentence. On December p. 2 22, 2006, the sentence, the deferral period on 94-S-476 and 94-S-478 ended. The defendant On February 20, 2004, the Superior Court (, J.) denied the January 4, 2001, while the defendant was still serving the imposed suspended

violation of probation and the Superior Court (The deferred sentences of January 4, 1996 are brought forward defendant may petition the Court to show cause why the deferred commitment

defendant was accepted into a program, and on May 15, 1998, the defendant’s As a [] condition of the defendant’s sentence, he was required

and-one-half to seven year suspended sentence in indictment 94-S-474. On

On July p. 2 26, 1999, the defendant was found chargeable on another Moreover, “[t]hirty (30) days prior to the expiration of the deferred period, the petition to continue deferral no later than January 4th of each year.” sentencing order for each deferred sentence provided: “Defendant shall file a suspension of the sentence following acceptance into a program. The one year in the house of corrections with the option of petitioning for for failing to complete a sex offender treatment program. He was sentenced to On June 26, 1997, the defendant was charged with a probation violation

years on each charge, to run concurrently, deferred for five years. The and 94-S-478, the defendant was sentenced to three-and-one-half to seven that the deferred sentences were consecutive to the suspended sentence, they

p. 3 consecutive to the suspended sentence. Because the trial court did not specify

are silent, however, as to whether the deferred sentences are concurrent or sentencing orders specify that 94-S-476 and 94-S-478 run concurrently. They indictments 94-S-476 and 94-S-478, the sentences were deferred. The

sentences p. 3 consecutive to the suspended sentence. We disagree. illegally modified the original sentence, effectively making the deferred

sentence. As to indictment 94-S-474, the sentence was suspended. As to

charges. Each sentence included a three-and-one-half to seven year prison

provided no notice that these sentences could run consecutively. The condition of good behavior inherent in a deferred sentence. must run concurrently. The defendant further argues that the negotiated plea imposed—because the defendant must immediately comply with the implied were concurrent or consecutive to the suspended sentence, the three sentences begins to run on the date the sentence is pronounced—not the date it is

deferred sentences.

Here, on January 4, 1996, the defendant was sentenced on all three

N.H. 56, 58 (2004).

later date and under what conditions the sentence may be modified.” because the sentencing order is silent as to whether the deferred sentences the extent to which the court retained discretion to impose punishment at a 2008); RSA 625:9, VIII (2007). We have further held that a deferred sentence and certain terms what punishment has been exacted by the court as well as Id.; see RSA 159:3-a, III (2002); RSA 331-A:26, III (Supp. 485 (1997). Nevertheless, we have said the legislature impliedly condones sentences lack explicit statutory authorization. State v. Rothe, 142 N.H. 483, Unlike suspended sentences, see RSA 651:20 (Supp. 2008), deferred

run concurrently.” State v. Rau, 129 N.H. 126, 130 (1987). are to run concurrently or consecutively, the presumption is that the sentences . . . is silent as to whether the sentences imposed on each count or indictment Stapleford v. Perrin, 122 N.H. 1083, 1087 (1982). “[W]hen a sentencing order

in imposing the deferred sentences consecutively. The defendant argues that defendant and the society which brought him to court must known in plain We have held that “[a]t the conclusion of the sentencing proceeding, a

federal sentencing, and that the defendant has the option to file a writ of responded that the defendant’s time served in jail could influence any future At oral argument, we asked the State whether this case is moot. The State

Initially, we address the defendant’s argument that the trial court erred

nobis. For these reasons, we conclude that this case is not moot.

defendant has completed serving the deferred sentences and has been released. Prior to addressing the defendant’s arguments, we note that the order was not error. p. 4 impose the deferred sentences consistent with the language of the sentencing

incarcerated for three-and-one-half to seven years. The trial court’s decision to

statutory authority. A trial court’s sentencing authority is statutory.

orders, the defendant had notice that after five years of probation he could be

sentences.

the trial court’s authority in imposing deferred sentences without clear

further hearing.” Thus, based upon the plain language of the sentencing prescribed time will result in imposition of the deferred commitment without the deferred commitment should not be imposed. Failure to petition within the 4

above, however, our legislature has not articulated the parameters of deferred

addressing this issue today, we are cognizant of the difficulty in interpreting deferred sentence only where application is filed during term of probation);

sentence must be filed before end of period);

of the deferred period, the defendant may petition the Court to show cause why courts usually apply the strict language of the statute.

See Rothe, 142 N.H. at 485. We thus look to those courts that

court’s authority to impose sentence is during deferral period). As stated State v. Ciarlo, 409 A.2d 1216, 1220 (R.I. 1980) (statute provides that the trial to impose a deferred sentence following the deferral or probationary period. In 975 (Okla. Crim. App. 1976) (statute provides that court may accelerate

2001—forty-three days after the expiration of the deferral period. P.3d 540, 543 (Mont. 2006) (statute provides that petition to revoke deferred authority to impose deferred sentence to set period); DeShields v. State, 132 Nichols, 140 P.3d 198, 200-01 (Colo. Ct. App. 2006) (statute limits trial court’s deferred for a period of five years” and “[t]hirty (30) days prior to the expiration See, e.g., People v. ch. 651 (2007 & Supp. 2008). Looking to other jurisdictions, we note that the sentencing orders on the deferred sentences provide: “All of the sentence is sentencing orders puts the defendant on notice of this possibility. Specifically, See RSA

We have not previously determined whether the trial court has authority

error for the trial court to impose the deferred sentences on February 15, defendant argues that his probation ended on January 4, 2001, and that it was imposing the deferred sentences following the period of probation. The We next address the defendant’s argument that the trial court erred in

appearance of consecutive sentences; however, the plain language of the

sentences and suspended sentences as separate concepts.”

The effect of imposing the deferred sentences may result in the

485.

stated, that the “rules of statutory construction counsel us to treat deferred signify that the sentences are consecutive. Instead, it signifies, as we have to impose the suspended and deferred sentences at different times does not run on January 4, 1996. See Clark, 1 p. 5 51 N.H. at 58. The trial court’s decision are concurrent. See Rau, 129 N.H. at 130. Thus, all three sentences began to defendant.

dismissal . . . .”

deferred sentences, which allow the trial court to retain jurisdiction over the revocation proceedings begin during the probationary period. revoke after the probationary period have since made exceptions where the sentence in “a timely fashion,”

period. Id. Because the defendant does not argue that the imposition pronouncement of sentence or until the court grants an order of could not reasonably do so.” prosecution has not ended and will not end until either the subsequent “[W]here the court elects to ‘defer’ or put off sentencing, the criminal probation period. See Matter of Myers, p. 5 579 P.2d 1006, 1009 (Wash. Ct. App. 1978).

the deferral or probationary period. This is consistent with the purpose of

Considering our analysis in Rau and the absence of strict statutory

petition for violation of probation may be filed following the probationary

petition is not filed before the end of the probationary period because the State the basis for the violation occurs when the defendant is on probation but a trial court retains jurisdiction as long as the proceedings commence during the case is distinguishable from those instances in which the conduct constituting failed to present the petition “in a timely fashion.” Id. We noted: “The present defendant’s probation. Id. Based upon those facts, we held that the State after the alleged incidents and six months after the expiration of the probationary period; however, the State failed to petition until several months the probationary period creates a strict limitation on the trial court’s authority. N.H. at 132. In that case, the alleged violations occurred during the revoke the defendant’s probation after the period of probation ended. Rau, 129 expiration. In Rau, we addressed whether the sentencing court had jurisdiction to

Center, p. 5 517 S.E.2d 17, 18-19 (Va. 1999). S.E.2d 818, 821 (N.C. Ct. App. 2006); Vincent v. Warden of Dillwyn Corr. Johnson, 637 N.E.2d 700, 701 (Ill. App. Ct. 1994); State v. Henderson, 632 a sentence following the period of probation. Some jurisdictions hold that the See People v.

account, a majority of jurisdictions disagree with the defendant’s position that Commonwealth v. Sawicki, 339 N.E.2d 740, 742 (Mass. 197 p. 5 5). By any

See, e.g., State v. Miller, 424 A.2d 1109, 1111 (Md. 1981);

jurisdictions hold that probation may be revoked within a reasonable time of 19 p. 5 59); People v. Speight, 389 N.E.2d 1342, 1347 (Ill. App. Ct. 1979). Other

Courts are split as to whether a trial court retains jurisdiction to impose

clear statutory authority. These cases usually involve a violation of probation. have addressed imposing a sentence after expiration of the set period without sentence be continued and the State contests the request.

p. 6 sentence, as opposed to implementing a new sentence. 6 hearing.” Thus, the State argues, the trial court was carrying out the original time will result in imposition of the deferred commitment without further due process.” has been afforded liberty, albeit conditional, which may not be revoked without to plain error. proposed remedy; and (6) whenever the defendant requests that a suspended some condition set by the court has not been met and incarceration is the proceedings. brought forward; (4) when a suspended sentence is to be revoked; (5) when

sentencing order explicitly states: “Failure to petition within the prescribed N.H. at 1088. In Gibbons, however, we stated that an already incarcerated

to due process and right to counsel. As the State points out, the defendant must seriously affect the fairness, integrity or public reputation of judicial defendant to serve an increased period of incarceration in violation of his right (2) violations of probation; (3) when a case marked continued for sentencing is liberty interest exists, worthy of due process protection: (1) parole violations; In Stapleford, we listed the following situations in which a significant

gaining his freedom.” Gibbons, 135 N.H. at 321. however, to hold that an incarcerated defendant has an equal liberty interest in

Stapleford, 122 N.H. at 1088. “It is quite another matter, State argues that the trial court’s decision was not error because the

N.H. 320, 321 (1992). As to criminal defendants, we have held “that when the potential deprivation of a liberty or property interest.” State v. Gibbons, 135 procedural due process applies to situations in which an individual faces a must be plain; (3) the error must affect substantial rights; and (4) the error argues that the State brought forward the deferred sentences causing the “Under the fourteenth amendment to the Federal Constitution,

circumstances in which a miscarriage of justice would otherwise result.

attention of the trial court.

We first address the defendant’s due process right to a hearing. The

Id.

For us to find error under the rule: (1) there must be an error; (2) the error counsel prior to the trial court imposing the deferred sentences. The defendant

However, the rule should be used sparingly, its use limited to those

The plain error rule allows us to consider errors not brought to the

See Sup. Ct. R. 16-A.

Finally, we address whether the defendant was entitled to a hearing and

address that issue. of his deferred sentences was not completed in a timely fashion, we do not assistance of counsel at ‘critical stages’ of criminal proceedings.” p. 7 proceedings, and once the right has attached, a defendant is entitled to the counsel attaches by virtue of the commencement of formal criminal

met.

at the time the deferral period expires. life,” and “may be living a relatively normal life” facing “lengthy incarceration” conclude that the third and fourth criteria of the plain error test have been with family and friends and to form the other enduring attachments of normal

punishable by deprivation of liberty shall have the right to counsel at the Article 15 reads: “Every person held to answer in any crime or offense Stapleford. Because we hold that a defendant is entitled to a hearing prior to at the ensuing hearing. The State’s position is dictated by both counsel pursuant to Part I, Article 15 of the New Hampshire Constitution. Parker and had filed a petition to suspend a deferred sentence, counsel must be appointed its termination “calls for some orderly process, however informal.” of the proceeding. imposing a deferred sentence falls squarely within the fifth situation listed in it furthers the goals of sentencing. The liberty interest involved is valuable and Id. Similarly, the State here agrees that if the defendant parties agreed that a hearing on a deferred sentence constitutes a critical stage be prevented”). condition of his sentence. We therefore find that the liberty interest involved in or petition to suspend the sentence. The trial court stated that this was a Parker, 155 N.H. 89, 91 (2007) (quotation and citation omitted). In Parker, the

court completely deprived the defendant of his right to due process, we liberty. As a result, the defendant “can be gainfully employed and is free to be

We reach the same conclusion when addressing the defendant’s right to

not simply a result of his inadvertent failure to file the correct petition, but that process requires notice and a hearing “at a time when the deprivation can still sentences because the defendant failed to petition for continuation of deferral Cf. Fuentes v. Shevin, 407 U.S. 67, 81 (1972) (holding procedural due

(error is plain when it is clear under current law). Moreover, because the trial hold that this error is plain. incarceration at a later time, and provides the defendant with conditional See State v. Lopez, 156 N.H. 416, 424 (2007) Because the liberty interest involved is specifically articulated in Stapleford, we court’s decision to impose the deferred sentences without a hearing was error.

(1972). A hearing is structured to assure that the defendant’s incarceration is

A deferred sentence allows a trial court to retain jurisdiction to impose

Stapleford.

not apply because the defendant was serving a separate sentence and not the at the time the trial court imposed the deferred sentences, but Gibbons does protections. Gibbons, 135 N.H. at 321. Here, the defendant was incarcerated defendant seeking to have his sentence suspended is not entitled to the same p. 8 8

the deferred sentences.

BRODERICK, C.J., and DALIANIS and HICKS, JJ., concurred.

We therefore vacate the trial court’s February 15, 2001 order imposing

counsel. The trial court’s failure to appoint counsel was plain error. the trial court imposing a deferred sentence, the defendant is also entitled to