2009-811, State of New Hampshire v. Steven Merrill

pleaded guilty in the Superior Court (

to a term in the Rockingham County House of Corrections and three years of child pornography. See RSA 649-A:3 (2007). The trial court sentenced him

The record supports the following. On December 7, 2007, the defendant

and remand. him not chargeable with a probation violation. See Sup. Ct. R. 8. We reverse Superior Court (Nadeau, J.) granting defendant Steven Merrill’s request to find DUGGAN, J. This is an interlocutory appeal from an order of the

and orally), for the defendant. Jeffco & Starbranch, of Portsmouth (Harry N. Starbranch, Jr. on the brief

assistant attorney general, on the brief and orally), for the State. Michael A. Delaney, attorney general (Susan P. McGinnis, senior 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. 2009-811 editorial errors in order that corrections may be made before the opinion goes Rockingham Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any 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 questions: p. 2 appeal. The trial court granted the State’s request and certified the following constitution.

granted the defendant’s request, and the State moved for an interlocutory the separation of powers clause of the New Hampshire establishing law-abiding lives, and whether such authority violated computer. power and duty to take actions required to assist probationers in

the authority “to impose additional terms of probation.” The trial court

wanted to view child pornography only after viewing adult pornography on his recognized in RSA 504-A:12, which gives probation officers the

probation, including the condition that he have no computer access.

age of sixteen.” and ordered that he “have no unsupervised contact with children under the the computer access condition, arguing that probation officers do not have evaluation within 60 days of release and follow all recommended treatment,” investigation into the underlying offense, the defendant commented that he is specifically recognized in Superior Court Rule 107 and impliedly Presumably the probation officer added this condition because during the particularly related to the goals of probation where that authority against the defendant, alleging that he had violated several conditions of his that the defendant have “no computer access,” except for work purposes. additional conditions of probation that are reasonably and pornography. One of the probation officers filed a violation of probation A. Whether probation officers have the authority to impose examination of the computer revealed that it contained images of child seized it. The defendant was arrested after a preliminary forensics

The defendant moved for a finding of not chargeable on the violation of specific terms of probation requiring the defendant “to obtain [a] sex offender

probation imposed by the trial court, the probation officer added a condition

inspection of the defendant’s home. They found a desktop computer and In December 2008, two probation officers conducted a random visit and

correctional authority or Probation/Parole Officer.” The trial court added counseling, treatment and educational programs as directed by the ordered the defendant “to participate meaningfully [in] and complete any Conditions of Adult Probation form. In addition to the specific conditions of defendant met with a probation officer, and reviewed and signed a Terms and Following his release from the house of corrections in April 2008, the

probation determined by the Probation/Parole Officer.” The trial court probation “upon the usual terms of probation and any special terms of function of the judicial, executive, and legislative branches. p. 3 conditions of probation. The State also argues that sentencing is a shared RSA 504-A:12 grant probation officers the authority to impose special

the trial court an opportunity to rule upon issues and correct errors.

according to its plain and ordinary meaning.

expressed in the words of the statute considered as a whole. State Constitution. The State counters that Superior Court Rule 107(l) and

imposed it. We require parties to make a contemporaneous objection to afford 107. The interpretation of a statute is a question of law, which we review

are properly before us on review. RSA 651:2, I (2007) provides that persons convicted of felony offenses We see no reason to do so here, and, therefore, conclude that the questions probation officer reviews the Terms and Conditions of Adult Probation form. context of the overall statutory scheme and not in isolation. notice of those special conditions. Id. Conditions Of Probation forms signed by defendants give them Id. We interpret a statute in the to the language of the statute itself, and, if possible, construe that language special conditions of probation, and where the Terms And give defendants notice that probation officers may later impose Id. We first look statutory interpretation, we are the final arbiters of the legislature’s intent as probation officers to do so violates the Separation of Powers Clause of the has the authority to impose additional conditions of probation, allowing novo. State v. Kousounadis, 159 N.H. 413, 423 (2009). In matters of computer access condition in superior court at the time the probation officer RSA 504-A:12 (2010), the defendant argues that because only the trial court de Specifically, the State argues that the defendant failed to challenge the us to interpret RSA chapter 504-A, RSA 651:2, I, and Superior Court Rule to the imposition of the condition of probation in a timely manner. have the authority to impose additional conditions on probation. This requires We first address the defendant’s argument that probation officers do not

have required a defendant to object to a condition of probation at the time the

where Rule 107, sentencing courts’ statements, and mittimuses

We turn now to the first certified question. Relying upon the language of

questions under a plain error standard because the defendant failed to object

issue when it was first presented with it. The State cites no cases in which we State v. Brum, 155 N.H. 408, 417 (2007). Here, the trial court ruled on the

probation imposed after sentencing by their probation officers additional punishment if they violate special conditions of sentencing court may later modify their sentences or impose

As a preliminary matter, the State argues that we should review these actual

Process Clause of the New Hampshire Constitution that the B. Whether defendants are given sufficient notice under the Due authority to impose additional conditions on probation.

p. 4 defendant’s argument and conclude that the probation officer had the condition” as defined by RSA 504-A:1, VII. Therefore, we reject the court in effect imposed the computer access condition, and it is a “probation

executive branch is encroaching upon the judiciary’s role in sentencing. The

probation determined by the Probation/Parole officer.” Thus, the sentencing

guaranteed by Part I, Article 37 of the State Constitution because the

the defendant is to be placed on probation upon “any special terms of

probation condition by a probation officer violates the separation of powers

the authority to establish probation conditions. Here, the mittimus states that

believes to be appropriate. shall include recommendations as to any actions which the officer We next address the defendant’s argument that the addition of a by the authority authorizing probation or parole. Such reports probation or parole officer.” special conditions as may be imposed by the Court, the parole board or the

supervision conditions. the court for the conduct and behavior of a probationer.” RSA 504-A:1, VII. that they comply with their probation, parole, or lifetime behavior through office, home, work, and other contacts to insure The statutory language indicates the legislature has given “the court”

ones which probationers must follow. probation officers may set probation conditions, in addition to the standard opinion of the officer, are serious enough to warrant consideration Super. Ct. R. 107(l). This rule contemplates that

probation, and provides that probationers shall comply with “any other, Superior Court Rule 107 sets forth the terms and conditions of

“Probation conditions” are those “restrictions and limitations established by

them in establishing law-abiding lives while monitoring their

required by statute, the parole board, or the court or which, in the board violations of probation or parole conditions which are III. To report promptly to the appropriate court or the parole under such conditions as the court may impose.” in need of the supervision and guidance that the probation service can provide

on probation, parole, or lifetime supervision, attempting to assist II. To take charge of and to provide supervision to persons placed

officers. RSA 504-A:12 delineates the powers and duties of probation and parole

“[a] person may be placed on probation if the court finds that such person is “may be sentenced to . . . probation.” RSA 6 p. 5 51:2, V(a) further provides that officers to impose conditions of probation.

information be kept up to date.” both at home and outside it,” and that “[i]t is equally important that this his personal habits, his relationships with other persons, and what he is doing,

barriers between the branches.” conditions and to vacate them if they are unreasonable. Thus, the separation probation, the judiciary retains the ultimate authority to review those unlimited authority in this area, as conditions of probation must “further the executive branch may be authorized by the court to impose conditions of cert. denied, p. 5 522 U.S. 995 (1997). Probation officers, however, do not have

thorough understanding of the [probationer] and his environment, including enforces sentences imposed by the courts. Moreover, we have recognized that probation officers need to “have a

a sentence. imposing mandatory sentences or circumscribing the court’s power to suspend efficient operation of government is not served by the erection of “impenetrable may constrict the independent exercise of judicial discretion in sentencing by distinct, must “move in concert” whenever possible, as the practical and have recognized, however, that the three branches of government, while The trial court retains the power to sentence defendants, and although the detract from the power of the courts. Cf. N.H. Bar Assoc., 1 p. 5 51 N.H. at 118. Here, the executive branch assists the judiciary, and does not usurp or

(197 p. 5 5). The executive branch can offer sentencing recommendations and

Duquette, 1 p. 5 54 N.H. at 747; State v. Dean, 115 N.H. 520, 523

branches participate in the sentencing process. For example, the legislature Cunningham, Warden, 132 N.H. 747, 7 p. 5 55 (1990), the executive and legislative independent of each other, as the nature of a free government will admit.” We Although sentencing is an exclusively judicial function, Bussiere v.

actions are unconstitutional. N.H. Bar Assoc., 1 p. 5 51 N.H. at 116. defeat or materially impair the inherent functions of another branch, such Duquette, 154 N.H. at 747. When the actions of one branch of government violated only when one branch usurps an essential power of another. 116 (2004) (quotation omitted). The doctrine of separation of powers is

legislative, executive, and judicial, ought to be kept as separate from, and government of this state, the three essential powers thereof, to wit, the Article 37 of the State Constitution provides, in pertinent part: “In the Duquette v. Warden, N.H. State Prison, 1 p. 5 54 N.H. 737, 746 (2007). Part I, branches of government is an important part of its constitutional fabric. The separation of powers among the legislative, executive and judicial

delegation by the judiciary is lawful. State counters that this does not violate the separation of powers and any violated.

probation established by his probation officer, his due process rights were not aware at the time of his sentencing that he was to abide by the conditions of probation determined by the [probation officer].” Because the defendant was

Federal Constitution as we do under the State Constitution.

may be modified. impose punishment at a later date, and under what conditions the sentence punishment it is imposing, the extent to which the court retains discretion to BRODERICK, C.J., and DALIANIS, HICKS and CONBOY, JJ., concurred.

probation “upon the usual terms of probation and any special terms of Reversed and remanded.

20 F.3d 7, 12 (1st Cir. 1994). Accordingly, we reach the same result under the sentence. does the State Constitution under these circumstances. United States v. Gallo, The Federal Constitution offers the defendant no greater protection than

See LeCouffe, 152 N.H. at 152.

clearly state at the time of sentencing, in plain and certain terms, what

process rights. The trial court sentenced the defendant to three years of analysis. Here, the imposition of the condition did not violate the defendant’s due

Id.

order must clearly communicate to the defendant the exact nature of the defendant.” State v. LeCouffe, 152 N.H. 148, 152 (2005). The sentencing

imposed at the sentencing hearing. Due process requires a sentencing court to except for work purposes violated his due process rights because it was not that the additional probation condition prohibiting him from using a computer

State v. Ball, 124 N.H. 22 p. 6 6, 231-33 (1983). The defendant argues

arguments under the State Constitution, using federal cases only to aid in our We now turn to the second certified question. We first consider the

Id. at 31.

“essential to ensure the effective rehabilitation and supervision of the condition the probation officer imposed was reasonable because it was when he is at the computer looking at adult pornography. Therefore, the told police officers that his urges to view child pornography always happen rehabilitation or supervision of the defendant.” Id. at 30. Here, the defendant