2008-055, STATE OF NH v. DEAN FLETCHER

Hampshire State Prison. More specifically, the trial court imposed concurrent State’s recommendation to a total of fifteen to thirty years in the New

27, 2007, the trial court sentenced the defendant in accordance with the (amended 1986, 1992, 1994, 1995, 1997, 1998, 1999, 2003). On December occurring between 1981 and 1984. See RSA 632-A:2 (1975 & Supp. 1981) convicted of four counts of aggravated felonious sexual assault for acts The record reveals the following. After a jury trial, the defendant was

Superior Court (Nadeau, J.) to amend his sentence. We reverse. DUGGAN, J. The defendant, Dean Fletcher, appeals the decision of the

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

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

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

editorial errors in order that corrections may be made before the opinion goes No. 2008-055 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Rockingham 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 and an anticipated parole eligibility date of just under fifteen years. comply with its original intent. p. 2 resulting in a total sentence of twenty-two and a half years to forty-five years the trial court to change one of the sentences from concurrent to consecutive,

itself plain error. The State responds that the trial court corrected an error to

mistake of law at the time the defendant was sentenced.” The State requested

proceeding, a defendant and the society which brought him to court must

Constitutions. He further argues that the increase in the maximum term is by

probation department, the State and the trial court were “operating under a

129 (1987). It is fundamental that, “[a]t the conclusion of the sentencing conditional or unconditional discharge, or a fine.” State v. Rau, 129 N.H. 126, sentencing. They may provide for terms of imprisonment, probation, department, which called for a sentence of ten to twenty years. his sentence violated his due process rights under the State and Federal “Trial judges are vested with broad discretionary powers with regard to appropriate.” It declined to adopt the recommendation of the probation sentence before he is eligible for parole.” The State further argued that the Marti, 143 N.H. 608, 611 (1999). years stand committed before he is eligible for parole to less than a 10 year 231 (1983), and cite federal authority for guidance only. Id. at 232; State v. sentences effectively converts the anticipated sentence of a minimum of 15 defendant’s claim under the State Constitution, State v. Ball, 124 N.H. 226, novo. State v. Abram, 156 N.H. 646, 651 (2008). We first address the Because the issue before us is one of constitutional law, we review it de

On appeal, the defendant argues that the trial court’s decision to amend to this victim, the Court believes that the State’s recommendation is defendant serve 15 years at the prison before becoming eligible for parole.” recommendation, stating “it was always the court’s intention that the the sentences, arguing that “application of [the statute] to the defendant’s articulated in State v. Stern, 150 N.H. 705 (2004). It adopted the State’ s In granting the State’s motion, the trial court applied the factors

charges, because of the incredible serious, intractable harm that’s been caused of the minimum term. The court noted that “because of the nature of these added to the minimum sentence a disciplinary period of 150 days for each year Supp. 1982) (repealed 1983). On January 10, 2008, the State moved to amend credit pursuant to a subsequently repealed statute, RSA 651:55-b (1979 & that because of the dates of the defendant’s offenses, he is entitled to good time After the defendant was committed, prison officials informed the State

term of seven and a half to fifteen years on the fourth charge. The trial court terms of seven and a half to fifteen years on three charges, and a consecutive p. 3 3

and (5) the diligence of the State in seeking the change.” clerical errors in judgment”). under the following exceptions: (1) to correct a void sentence, and (2) to correct

error that occurred. sentenced him to a fine or imprisonment. Doyle, 85 N.H. at 402. We stated: the defendant’s sentence at all. In doing so, we must ascertain the type of In Doyle, the defendant was convicted of petit larceny and the trial court

intervening expectations; (4) the prejudice to the defendant from the change; courts “retain jurisdiction over their own final judgments in criminal cases to correct this kind of error.” 126, 129 (1954). See State v. Schmitt, 888 N.E.2d 479, 48 p. 3 3 (Ohio 2008) (trial 402, 403 (1932), or the sentence is illegal and void, State v. Richard, 99 N.H. to correct an error. defendant’s sentence where there is a clerical error, Doyle v. O’Dowd, 85 N.H. We have held that the sentencing court retains jurisdiction of the

factors apply, we must first determine if the trial court had authority to amend (error in calculating pretrial custody credit). Thus, in deciding if the Stern p. 3 34 (error where higher sentence was required by law); Hanson, 718 A.2d at 573 contributed to the mistake; (3) the reasonableness of the defendant’s involved errors that the court had authority to correct. See DeWitt, 6 F.3d at

we acted under the assumption “that the trial court had the inherent authority

original intent of the sentencing court and the amendment to the sentence was The parties in Stern, however, agreed that the new sentence reflected the

10 p. 3 32 (1994); Hanson v. State, 718 A.2d 572, 573-74 (Me. 1998)). DeWitt v. Ventetoulo, 6 F.3d 32, 35 (1st Cir. 1993), cert. denied, 511 U.S. must at some point come to an end.” Id. at 714 (citing

properly decided must remain final.” the mistake and the attempted increase in sentence; (2) whether the defendant jurisdictions that applied the following factors: “(1) the lapse of time between concluding that the correction did not violate due process, we looked to other p. 3 3 months deferred” instead of the intended “3 months deferred.” Id. at 712. In The trial judge in Stern had inadvertently, by scrivener’s error, written “all but by the State’s interest in correcting this clerical error.” Stern, 150 N.H. at 715. In Stern, we held that “the defendant’s interest in finality is outweighed

“In regard to criminal proceedings this requires that the sentencing process

there must be an end to litigation and that a matter judicially acted upon and at a later date.” Stern, 150 N.H. at 71 p. 3 3. “It is basic to our judicial system that well as the extent to which the court retains discretion to modify it or impose it to clearly communicate to the defendant the exact nature of the sentence as court . . . .” Id. (quotation omitted). “Due process requires a sentencing court know in plain and certain terms what punishment has been exacted by the p. 4 4

time it is imposed.”

the court had no . . . authority to add probation” at a later hearing. and because the court did not retain discretion to add probation at a later date,

that provision cannot later be added. In

the statutory balance consecutively upon revocation of probation, it must give decrease his sentence on a petition from the defendant or the State). at 130. “[I]f the sentencing court intends to reserve the discretion to impose court omitted the term “consecutively,” it cannot later be added. Rau, 129 N.H. the distinction is the concern that “a sentence must be determinable at the to limit defendant’s liberty interest). We have also stated that where the trial . . . impose a new sentence . . . .”). (where original sentence includes a term of probation, court retains jurisdiction authority after the sentence imposed has been served, in whole or in part, to 1 p. 4 41 N.H. at 53 (citation omitted); see State v. White, 131 N.H. 555, 558 (1989)

we stated: “Because the original sentence did not include [a term of probation],

For example, we have held that, where the trial court has omitted a term, does not have authority to later increase the sentence.

statutory notice that the sentence review division could either increase or 15 p. 4 4 N.H. 7, 10-11 (2006) (no due process violation where the defendant had errors or void sentences and modifying a valid sentencing order. Underlying But see Petition of Guardarramos-Cepeda,

judgment and sentence has been rendered in a criminal case, the court has no judicial error.”); authorized by law.” State v. Carte, 138 P.2d p. 4 429, 432 (Kan. 1943) (“When a valid record to correct clerical mistakes, it cannot amend the record to correct a (N.C. 2008) (“While our courts have held that a trial court may amend the sentence of five years. Comm’r, 138 N.H. 36, 39 (1993); see State v. Lawrence, 667 S.E.2d 262, 264

the authority to reduce, modify or correct it at any time. the original sentence is clear as to the intent and is legal, the sentencing court

correcting clerical error)). We have, however, distinguished between authority to correct clerical

accord with the facts.” had the authority to amend the sentence because it was “in excess of that

sentenced to not more than eight years on a charge that carried a maximum 110 N.H. 190, 190 (1970). In Richard, for example, the defendant was

Similarly, where the case involves an illegal sentence, the trial court has

829 F.2d p. 4 423, 427-29 (3d Cir. 1987) (no double jeopardy concern where mistakes); see also Stern, 150 N.H. at 715 (citing United States v. Guevremont, correct arithmetical, technical or clear error); Mass. R. Crim. P. 42 (clerical

was a mere inadvertence. If so, he has jurisdiction to correct the record to “Apparently the use of the conjunction ‘or’ instead of ‘and’ by the trial justice p. 5 5 the sentences that I just read, and the same conditions apply. than seven and a half years. This is to be served consecutive with

original sentence was not a result of scrivener’s error.

one of the sentences to be served consecutively instead of concurrently. New Hampshire State Prison for not more than 1 p. 5 5 years nor less After the defendant was committed on this sentence, the trial court amended good time credit pursuant to RSA 651:55-b. of fifteen years but failed to consider that the defendant would be entitled to 712. Instead, the trial court intended to sentence the defendant to a minimum contact with the victim or her family.

the record that indicates that this was the trial court’s intent. Thus, the was that this third sentence be served consecutively. Nor is there anything in order.”). At no point, however, did the trial court state that its original intent impose consecutive sentences, it must specifically state that intention in its Rau, 129 N.H. at 130 (“If, in its discretion, a sentencing court intends to

those sentences concurrently and one sentence consecutive to the other three. See RSA 6 p. 5 51:2, II(a). The trial court sentenced the defendant to serve three of exposed him to four terms of seven and a half to fifteen years in State Prison. presumed to reflect the intent of the sentencing judge.” convictions on four felony counts of aggravated felonious sexual assault counseling and the sexual offender program, and you shall have no thirty years stand committed. This sentence is valid. The defendant’s The original sentencing order clearly sentenced the defendant to fifteen to

In docket number zero – these three sentences are

there is no ambiguity, the intent expressed in the sentencing order must be years. The Court recommends drug and alcohol treatment and Prison for not more than 1 p. 5 5 years nor less than seven and a half 1613, and 1614, you’re sentenced to the New Hampshire State [T]he State’s recommendation is fully adopted. In 05-S-1612,

the following: Here, at the conclusion of the sentencing hearing, the trial court imposed

given two years to complete an alcohol rehabilitation program.”). 39; see Timmons, 130 N.H. at 836 (“The order is plain that the defendant was

if the intent is clear, and thus if the trial court retained jurisdiction. “Where Accordingly, we look to the language of the sentencing order to determine

Huot, 13 p. 6 6 N.H. 96, 100-01 (1992). the defendant explicit notice at the time of the original sentencing.” State v. 6

make the entire sentence void. address the factors in

specifically state that intention in its order.”

authority to amend the sentence.

such authority to amend.

the offenses prior to its enactment. An unlawful provision, however, does not the trial court did not have the authority to amend the sentence, we do not

discretion, a sentencing court intends to impose consecutive sentences, it must modification. See Huot, 13 p. 6 6 N.H. at 100-01. “If, in its error, however, does not make the defendant’s original sentence void requiring Because the original intent was clear, the trial court did not have the offenses, he could be entitled to good time credit under RSA 651:55-b. This determination”). be unlawful.”). Thus, the defendant’s fifteen to thirty year sentence is not void. its mind . . . because it made a legal or factual mistake in making its original sentence is not invalid even though the condition on which it is suspended may term), with Doyle, 85 N.H. at 402 (“[I]t is the rule in this jurisdiction that a (2008) (vacating sentence where entire sentence exceeded permissible statutory

sentence. good conduct provision not applicable to the defendant because he committed year sentence unlawful in its entirety is without merit. RSA p. 6 651:2, II-e is a court was simply correcting a clerical error. period pursuant to RSA 651:2, II-e (2007) makes the original fifteen to thirty Any argument that the trial court’s decision to include a disciplinary

original sentence, did not consider that, based upon the date of the defendant’s

(200 p. 6 6) (mistakes that cannot be changed are those in which “the court changes had a better understanding of the law.”); 46 Am. Jur. 2d Judgments § 142 tribunal would have made the latter decision if the members of the court had be amended so as to make an entirely different decision upon proof that the

See Brown’s Petition, 51 N.H. 3 p. 6 67, 369 (1871) (“[T]he record cannot

grounds to amend where the mistake of law does not result in an invalid

See Richard, 99 N.H. at 129. A mistake of law does not create fifteen year increase. On the facts of this case, we cannot say that the trial

sentence was thirty years, whereas the modified maximum is forty-five years, a increase of the maximum sentence. The defendant’s original maximum sentenced.” Specifically, the State’s recommendation, and the trial court’s court were “operating under a mistake of law at the time the defendant was The State argued that the probation department, the State and the trial

defendant’s rightful expectations.”). transcription, copying, or calculation, but are those that trample the 9 p. 6 64, 966 (Mass. 1993) (“Material or substantial errors are not ones of

ensure that the defendant serve at least fifteen years resulted in a dramatic Moreover, the trial court’s modification of the minimum sentence to p. 7 7

address the defendant’s argument under the Federal Constitution. argument. In light of our ruling under the State Constitution, we also need not

BRODERICK, C.J.