2010-269 The State of New Hampshire v. Hector Ortiz

Michael A. Delaney

No. 2010-269

Hillsborough-southern judicial district

which alleged pattern AFSA, see a jury on two counts of aggravated felonious sexual assault (AFSA), one of DALIANIS, C.J. The defendant, Hector Ortiz, appeals his convictions by

Dorothy E. Graham

informed him that the sentences would run concurrently. He also argues that to the sentence he received for the other AFSA charge after having initially indictment and making the sentence on the pattern AFSA charge consecutive that the Superior Court (Groff, J.) erred by failing to dismiss the pattern AFSA endangering the welfare of a child, see RSA 639:3 (2007). On appeal he argues felonious sexual assault (FSA), see RSA 632-A:3 (Supp. 2010), and one count of

brief and orally, for the defendant.

attorney general, on the brief and orally), for the State.

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 to press. Errors may be reported by E-mail at the following address: 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 not timely raise the issue. See p. 2 or forfeited his challenge to the allegedly defective indictment because he did within a period of 5 years.” The State counters that the defendant has waived RSA 632-A:2 . . . upon the same victim over a period of 2 months or more and c defines a “pattern of sexual assault” as “committing more than one act under not also include the statutory definition of the word “pattern.” RSA 632-A:1, I- The defendant argues that the indictment was defective because it did 2

his legal spouse, by engaging in intercourse with her.” however, he has waived his right to argue defectiveness of the indictment on juvenile female who was, at the time, less than thirteen years of age and not he knowingly engaged in a pattern of sexual assault with [the victim] . . . , a Cir. 2008) (“Because the defendant failed to raise the objection prior to trial, January 1, 1994, and May 19, 1996, the defendant committed AFSA “in that United States v. Lnu, 544 F.3d 361, 369 (1st Consistent with this statute, the pattern indictment alleged that on or between another person, not the actor’s legal spouse, who is less than 16 years of age.” assault when such person engages in a pattern of sexual assault against provides, in relevant part: “A person is guilty of aggravated felonious sexual pattern variant of AFSA. See The pattern variant of AFSA is set forth in RSA 632–A:2, III, which the State Constitution because it failed to contain all of the elements of the The defendant contends that the pattern indictment was defective under

other facts that are not essential to the elements of the crime.” Id. statute; it need not specify the means by which the crime was accomplished or indictment generally is sufficient if it recites the language of the relevant enough facts to notify the defendant of the specific charges. Id. “An State objected to the motion on the grounds that it was untimely, see constitutional, the indictment must contain the elements of the offense and include the definition of a pattern, as set forth in RSA 632-A:1, I-c (2007). The avoid double jeopardy. State v. Ericson, 159 N.H. 379, 384 (2009). To be defendant moved to dismiss this charge because the indictment failed to sufficient specificity to ensure that the defendant can prepare for trial and dismiss the pattern AFSA charge. At the close of the State’s case, the the State Constitution requires that an indictment describe the offense with The defendant first argues that the trial court erred when it did not N.H. CONST. pt. I, art. 15. Part I, Article 15 of

I. Motion to Dismiss Pattern AFSA Charge

motion, ruling that the indictment was not defective. defendant of the crime with which he was charged. The trial court denied the Ct. R. 98, and that, even if timely, the indictment adequately apprised the

mental state for the FSA charge and admitted certain lay testimony. We affirm. the trial court committed plain error when it instructed the jury on the wrong p. 3 3

case, was untimely under this rule. See defendant’s motion, brought in the middle of trial, after the State rested its cause shown or may provide for in a pretrial scheduling order.” The or within such other time in advance of trial as the Court may order for good less than forty-five (45) calendar days prior to the scheduled jury selection date jurisdictional. See requires that all pretrial motions, other than discovery motions, be filed “not Numerous state courts agree that defects in an indictment are not challenged the indictment in a timely manner. Superior Court Rule 98(F) court of subject matter jurisdiction, we next analyze whether the defendant Having concluded any defect in the indictment did not deprive the trial N.E.2d 1119, 1122 (Mass. 200 p. 3 3) (failing to object to defect in indictment before must be raised before trial or are deemed waived); Com. v. Lamont L., 784 try the case.” Ex parte Seymour 1225, 1227 (11th Cir. 2003) (per curiam) (challenges to defective indictment constitutional error, . . . the defect does not divest [a trial court] of the power to United States v. Ramirez, 324 F.3d

that defects in an indictment do not deprive a court of jurisdiction. United of subject matter jurisdiction. The United States Supreme Court has long held the purposes of this analysis, we assume was defective, deprived the trial court We first address the defendant’s assertion that the indictment, which, for, 946 So. 2d at 5 p. 3 39 (citations omitted).

power to adjudicate a case. While a defect “may be error – or even We also agree that a defective indictment does not deprive a trial court of its (citing cases); see also State v. Spreadbury, 257 P. p. 3 3d 392, 394 (Mont. 2011).

omitted). . . . goes only to the merits of the case.” Id. at 6 p. 3 31 (quotation and brackets case.” Id. Rather, “the objection that the indictment does not charge a crime indictment,” by contrast, “do not deprive a court of its power to adjudicate a power to hear a case, can never be forfeited or waived.” Id. “[D]efects in an “This latter concept of subject-matter jurisdiction, because it involves a court’s constitutional power to adjudicate the case.” Id. at 630 (quotation omitted). Court explained that jurisdiction refers to “the court’s statutory or had held that a defective indictment deprived a court of jurisdiction. Id. The overruled its decision in Ex parte Bain, 121 U.S. 1 (1887), in which the court States v. Cotton, 535 U.S. 625, 631 (2002). In Cotton, the Court expressly

sufficiency was waived). bring pretrial motion contesting the indictment, his argument about its 917 N.E.2d 7 p. 4 40, 746 n.6 (Mass. 2009) (holding that because defendant did not v. Burns, p. 3 392 N.E.2d 865, 867 (Mass. App. Ct. 1979). But see Com. v. Bell, proceedings. See State v. Demesmin, 159 N.H. 595, 597 (2010); see also Com. matter jurisdiction and, therefore, he was free to raise it any time in the essential element of the charged offense deprived the trial court of subject appeal.”). The defendant contends that the indictment’s failure to allege an 4

II. Plain Error settled to the contrary.” State v. Panarello should have been obvious in the sense that the governing law was clearly “For the purposes of the plain error rule, an error is plain if it was or

error rule. As previously explained, to find plain error: “(1) there must be an We turn next to the defendant’s additional arguments under our plain

See “unequivocally obvious” because this case presents an issue of first impression. The trial court’s error in this matter could not have been “clear” or

“pattern.” Accordingly, we find no plain error here. indictment must specifically include the statutory definition of the word id. We have not been asked previously to decide whether a pattern pattern indictment to stand. to demonstrate that the trial court committed plain error by allowing the the second criterion of the plain error rule is not met, the defendant has failed defective, and, thus, that the trial court erred. We hold, however, that because equivalently, obvious.” Id. (quotation omitted). We assume, for the purposes of this analysis, that the indictment was error.” Id. “‘Plain’ as used in the plain error rule is synonymous with clear or, unsettled at the time of appeal, a decision by the trial court cannot be plain (quotation omitted). “When the law is not clear at the time of trial and remains

trial court. State v. Russell The plain error rule allows us to consider errors not raised before the rule. Id. at p. 4 489-90. looked to federal plain error analysis for guidance in applying our plain error or public reputation of judicial proceedings.” Id. (quotation omitted). We have substantial rights; and (4) the error must seriously affect the fairness, integrity must be an error; (2) the error must be plain; (3) the error must affect Russell, 159 N.H. at 489 (quotation omitted). To find plain error: “(1) there circumstances in which a miscarriage of justice would otherwise result.” “However, the rule should be used sparingly, its use limited to those the attention of the trial court or the supreme court.” Sup. Ct. R. 16-A. affects substantial rights may be considered even though it was not brought to

v. Horner, 93 p. 5 5 N.E.2d 26 (Ohio 2010). Colon, 893 N.E.2d 169, 171 (Ohio 2008), overruled on other grounds by State 2010); United States v. Sinks, p. 4 473 F.3d 1315, 1321 (10th Cir. 2007); State v. our review to plain error. See United States v. Troy, 618 F.3d 27, 34 (1st Cir. in a timely fashion does not preclude all appellate review, but rather confines 12(b)(3)(B). We agree with numerous courts that the failure to raise this claim trial ordinarily waives any argument pertaining to defect); Fed. R. Crim. P. 5

or gratification.” See “which can reasonably be construed as being for the purpose of sexual arousal the FSA indictment was that he knowingly had the victim touch his penis, 626:2, II(a) (2007). The specific conduct of which the defendant was accused in cause the result or engage in the conduct that comprises the element.” RSA respect to a material element of an offense when his conscious object is to overwhelming and essentially uncontroverted. “A person acts purposely with In the instant case, the evidence that the defendant acted purposely was

intentional touching . . . of the victim’s or actor’s sexual or intimate parts”; the

Similarly, in Richard

“essentially uncontroverted.” Id

the plain error test was not met. Id. prove guilt beyond a reasonable doubt, we concluded that the fourth prong of and because the trial court properly instructed the jury that the State had to and fact-intensive basis.” Russell the evidence that the defendant did not act in self-defense was overwhelming reputation of judicial proceedings, “is meant to be applied on a case-specific defendant did not act in self-defense. Richard, 160 N.H. at 788-89. Because whether the trial court’s error seriously affected the fairness, integrity or public jury that the State had the burden to prove beyond a reasonable doubt that the The fourth prong of the plain error test, under which we must decide A. Jury Instruction, the trial court had erred by failing to instruct the

the plain error rule was not satisfied because the evidence that the defendant the armed robbery. Id. at 489. However, we concluded that the fourth prong of that the jury had to find unanimously that the defendant used a firearm during Russell, we ruled that the trial court erred when it failed to instruct the jury instructing the jury that the mens, 1 p. 5 59 N.H. at 491 (quotation omitted). In The defendant argues that the trial court committed plain error by

proceedings.” State v. Richard, 160 N.H. 780, 789 (2010) (quotation omitted). not “seriously affect the fairness, integrity or public reputation of judicial affected substantial rights because even if it did, we conclude that the error did felonious sexual assault is purposely). We need not decide whether the error the error was plain. See State v. Pond, 132 N.H. 472, 47 p. 5 5 (1989) (mens rea for instead of “purposely.” The State concedes that the trial court erred, and that rea for the FSA charge was “knowingly,”

omitted). reputation of judicial proceedings.” Russell, 1 p. 5 59 N.H. at 489 (quotation and (4) the error must seriously affect the fairness, integrity or public error; (2) the error must be plain; (3) the error must affect substantial rights; p. 6 A. Correct.

she did not believe her daughter? Q. And at that point [the victim’s mother] remained adamant that

A. I think so.

Q. Right.

A. After the interview?

victim’s mother] and the pastor, right? Q. After [the victim] said it didn’t happen, you met again with [the

constituted improper lay opinion testimony: The defendant likewise argues that the following testimony by Blue

A. Not that I recall.

Q. Okay. There were no major inconsistencies, though?

A. Yes.

Q. Is that common that there would be minor inconsistencies?

A. Yes.

for a while, right? Q. Minor. Okay. And you worked in the youth services division

A. Minor.

A. Yes.

in [the victim’s] statement -- Q. . . . [J]ust to be clear, when you say you noticed inconsistencies

Masella was inadmissible: testimony. The defendant argues that the following testimony by Detective Children, Youth & Families (DCYF), to give improper lay witness opinion former child protective service worker for the New Hampshire Division for when it allowed Michael Masella, a retired police detective, and Barbara Blue, a The defendant next argues that the trial court committed plain error

B. Lay Witness Opinion Testimony

purpose of sexual arousal or gratification.” Id penis and this contact “[could] be reasonably construed as being for the The jury found that the defendant knowingly had the victim touch his

that the fourth prong of the plain error test has not been met. arousal or gratification, or purposely, see Pond, 132 N.H. at 475, we conclude the overwhelming evidence that the defendant acted for the purpose of sexual “[t]he white stuff would come out, and it would just go down [her] hand.” Given defendant “had [her] jerk him off” with her hand, and that after she did so,

construed as being for the purpose of sexual arousal or gratification”). definition “includes only that aforementioned conduct which can be reasonably testimony and that the error was plain. See p. 7 We assume, without deciding, that it was error to admit the challenged

testified that “there were signs of previous irritation and trauma to the hymen.” had been some sort of trauma or injury to the hymen.” The pediatrician also prepubertal girl who has not had sex would have an intact hymen unless there outside” and that her hymen was not intact. He testified: “Typically, a genitalia showed a large area of “generalized redness of the labia on the before, and she shyly said yes.” His examination revealed that the victim’s A. Oh, yes. Right. put his penis inside her, she said yes.” He asked her “if this had happened years old” at the time. The pediatrician asked the victim if the defendant “had “to evaluate her for an allegation of sexual abuse.” The victim “was about ten The pediatrician who examined the victim testified that he examined her

Q. And let’s them know that she doesn’t believe them?

description in vivid detail, of the various sexual acts.” Gonzalez A. Right.

taken to a physician for a physical exam. occurred. Thereafter, she was interviewed by the police, sent to counseling and that she told her mother about the assaults shortly after the last assault recalled that the defendant’s ejaculate “fell on the floor.” The victim testified apartment “laid [her] on the floor . . . [and] had sex with [her].” The victim mother, the victim testified that the defendant once took her to an empty to assaulting the victim in the home she shared with the defendant and her defendant once asked the victim to “suck his dick like a lollipop.” In addition Here, “the evidence most damaging to the defendant was the victim’s ejaculated and his ejaculate ran down her hand. She also testified that the Q. Okay. Especially when their mother does not believe them? victim testified that the defendant also made the victim touch his penis until he lock the door. The defendant would then assault the victim on his bed. The that he would ask her to clean his room and then he would enter the room and bedroom the defendant shared with the victim’s mother. The victim testified defendant “put his penis in [her] vagina.” The assaults took place in the years earlier. See id. She testified that on at least five occasions, the of trial, was able to remember the details of assaults that occurred thirteen 79 (quotation omitted). The victim, who was twenty-three years old by the time

State v. Cassavaugh A. Right., 161 N.H. 90, 101 (2010). defendant must show that the error affected the outcome of the proceeding. the error affected the defendant’s substantial rights. To satisfy this prong, the (2003). We turn, therefore, to the third prong of the plain error test -- whether

children to recant? Q. And at that point, you said to her it’s not uncommon for sentenced to New Hampshire State Prison for not more than 20

p. 8 concurrent sentence. That was incorrect. That sentence was, I read to you for [the AFSA pattern charge], I told you that was a realized that I had read this sentence wrong. . . . The sentence that Mr. Ortiz, I apologize for this, but as I walked off the bench I

explaining: Nine minutes later, at 10:26 a.m., the court reconvened the hearing,

charge. The court recessed the hearing at 10:17 a.m. years in prison; this sentence was to be concurrent to the sentence on the FSA court sentenced the defendant to no more than ten years and no less than five AFSA charges. Finally, on the endangering the welfare of a minor charge, the this sentence was to be consecutive to the sentences on the AFSA and pattern sentenced to no more than ten years and no less than five years in prison, and

sentence imposed on [the AFSA charge].” On the FSA charge, he was and the sentencing judge stated this sentence “will run concurrent with the years in prison. He received the same sentence on the pattern AFSA charge, the defendant was sentenced to no more than twenty and no less than ten The trial court sentenced the defendant as follows. On the AFSA charge,

and a lifetime of suspended prison time.” committed . . . , five years of parole, a lifetime registration as a sex offender,

sentences.” By contrast, the defense recommended “five years, stand multiple . . . consecutive acts, not all at once[,] [h]e should receive consecutive “lived with consecutive assaults on her body” and the defendant “committed

III. Pattern AFSA Charge Sentence

consecutive sentence.” The prosecution reasoned that because the victim proceeding. Cf to 85 years in state prison.” The prosecution asked “for each conviction a opinions offered by Masella and Blue did not affect the outcome of the hearing, the prosecution recommended that the defendant be sentenced to “27 evidence demonstrating that she had been assaulted, we conclude that the of concurrent with, the sentence on the other AFSA charge. At the sentencing Given the victim’s detailed accounts of the assault and the physical the sentence on the pattern AFSA charge so that it ran consecutive to, instead Finally, the defendant argues that the trial court impermissibly changed

plain error test. hold, therefore, that the defendant has failed to satisfy the third prong of the inadmissible lay witness opinion testimony under harmless error analysis). We

. id. at 79-80 (reaching similar conclusion regarding

normal.” The pediatrician testified that the redness of the victim’s labia was “not process rights. See p. 9 to correct, and ruled that in doing so, it did not violate the defendant’s due The trial court ruled that its error was clerical, which it retained the authority

resentencing. original sentencing hearing and the Court’s return to the bench for

sentences. Only nine (9) minutes elapsed between the end of the

error had been made and imposed the intended consecutive return the parties to the courtroom. The Court explained that an confirming the error. Court officers were immediately directed to

concurrent sentences [on the pattern AFSA and AFSA charges],

immediately reviewed the sentencing sheets and saw the

sentence imposed was not the sentence intended. The Court then

the bench, the Court immediately became concerned that the After remanding the defendant into the State’s custody and leaving intended. The Court did not immediately realize its error . . . .

sentence on [the AFSA charge], rather than consecutive, as it had

the sentence [on the pattern AFSA charge] run concurrent with the

recommendation to reflect this sentence, the Court erred. It made

However, when the Court attempted to modify the State’s totaling 25 to 50 years in the New Hampshire State Prison. The Court ultimately decided to impose stand committed sentences severe, and the defendant’s recommendation was too lenient. . . . The Court believed that the State’s recommendation was too

the AFSA charge. In denying the motion, the trial court explained: ten to twenty years in state prison, to run concurrently with the sentence on impose the sentence on the pattern AFSA charge that it originally pronounced, A few days later, the defendant filed a motion requesting that the court

process. See the trial court violated his state and federal constitutional rights to due charge so that it ran consecutively to the sentence on the other AFSA charge, I apologize for that, for error on my part. The defendant argues that by changing the sentence on the pattern AFSA sentence in total of 25 to 50 years in New Hampshire State Prison.

Constitution, he relies only upon state cases construing our State Constitution Fletcher, 158 N.H. 207, 209 (2009). Although the defendant cites the Federal the issue before us is one of constitutional law, we review it de novo. State v.

N.H. CONST. pt. I, art. 15; U.S. CONST. amends. X, IV. Because

as well, which means that the sentence I’m imposing on you is a State v. Stern, 150 N.H. 705, 713-14 (2004).

the same, and the terms of the other two sentences are the same

imposed [on the AFSA charge]. The other terms of the sentence are

committed, and that sentence will run consecutive to the sentence years, no less than 10 years. . . . That sentence is stand subsequent amendment. Van Winkle p. 10 retains jurisdiction over a defendant’s sentence, thereby allowing for

We have recognized two circumstances in which the sentencing court

subsequently increase a defendant’s penalty. See specifically allow augmentation at a later date, the trial court may not

sentence. We limit our analysis accordingly. process analysis -- whether the trial court had the authority to amend the In this case, the defendant focuses solely upon the first part of our due

340. Van Winkle, 160 N.H. at

circumstances, unless the terms of a sentence at the time it is imposed court imposed sentence that was in excess of that allowed by law). In all other court retains discretion to modify it or impose it at a later date. Fletcher N.H. 126, 129 (1954) (trial court retained jurisdiction to correct sentence when defendant the exact nature of the sentence as well as the extent to which the sentence is illegal and void. Fletcher, 158 N.H. at 210; see State v. Richard, 99 pay costs and be imprisoned). Second, jurisdiction is retained where an initial inadvertently sentenced defendant to pay costs or be imprisoned, instead of to O’Dowd, 85 N.H. 402, 402-03 (1932) (court may correct sentence when court months” instead of “three months” of the sentence would be deferred); Doyle v. at 714 (court may correct sentencing form that mistakenly stated “all but three is retained where there is a clerical error. Id. at 341; see, e.g., Stern, 150 N.H.

process. See Due process requires a sentencing court to communicate clearly to the

two-part inquiry. See 6 F.3d 32, 35 (1st Cir. 1993). State in seeking the change. Stern To decide whether a due process violation has occurred, we engage in a, 150 N.H. at 714; see DeWitt v. Ventetoulo, the prejudice to the defendant from the change; and (5) the diligence of the mistake; (3) the reasonableness of the defendant’s intervening expectations; (4) attempted increase in sentence; (2) whether the defendant contributed to the factors were instructive: (1) the lapse of time between the mistake and the Fletcher, 158 N.H. at 210. In Stern, we held that the following the sentence, we then examine whether the amended sentence offends due that occurred. Id. If we decide that the trial court had the authority to amend Winkle, 160 N.H. 337, 340 (2010). This requires ascertaining the type of error the trial court had authority to amend the defendant’s sentence. State v. Van

ability to correct a sentence after pronouncing it. Stern, 150 N.H. at 713-14. N.H. at 209-10. Due process thus imposes an outer limit upon the court’s

233 (1983). upon federal authority, we do so for guidance only. State v. Ball, 124 N.H. 231, Constitution. We limit our analysis accordingly. To the extent that we rely and does not separately develop any argument based upon the Federal p. 11 11

unambiguous, a sentencing judge always error doctrine. Regardless of whether a sentencing order is clear and reflects a clerical error. Such an interpretation runs counter to our clerical amending a clear and unambiguous original sentencing order, even if the order Taken out of context, this language appears to preclude a trial court from

inherent in the court’s sentencing authority. See Doyle, 85 N.H. at 402 (court error. The judge does not have to reserve this jurisdiction specifically. It is

In Fletcher

at 341, 342. intent. To support his argument, the defendant relies upon Fletcher examine the record to determine whether the sentence reflected the trial court’s omitted). We repeated this language nearly verbatim in Van Winkle, 160 N.H. that because the original sentence was clear and unambiguous, we may not sentencing judge.” Fletcher, 158 N.H. at 2 p. 11 11-12 (quotation and citations even if the sentence reflected a clerical error. The defendant likewise implies in the sentencing order must be presumed to reflect the original intent of the unambiguous and legally valid, the court lacked any authority to correct it, court retained jurisdiction. Where there is no ambiguity, the intent expressed The defendant contends that because the original sentence was clear, the sentencing order to determine if the intent is clear, and thus if the trial This type of error is akin to the clerical or scrivener’s error in Stern authority to increase the sentence. . . . Accordingly, we look to the language of clear as to the intent and is legal, the sentencing court does not have the

, we stated the following: “[W]here the original sentence is

Winkle. We take this opportunity to clarify our prior case law on this issue.

conform the record to reflect its original intent. See id. Stern, when the trial court corrected the error nine minutes later, it did so to consecutive, sentence on the defendant for the pattern AFSA charge. As in court misread the sentencing sheets, imposing a concurrent, instead of a conform the record to reflect its original intent. Id. Similarly here, the trial corrected its error a mere two hours after the sentencing hearing ended to instead of ‘three months’ to be deferred.” Stern, 150 N.H. at 714. The court but three months’ of the defendant’s twelve-month sentence was to be deferred, Stern, “[t]he court read from a sentencing form that mistakenly stated that ‘all

mistake on already existing sentencing forms.” concurrent sentence contrary to its intention. This was simply an editing the sheets were read at the hearing, the court “erroneously provided for a court modified the sentencing sheets provided by the prosecution, but when sentence wrong.” In the trial court’s order, the court further explained that the sheets. At the sentencing hearing, he explained that he just “read [the] disagree. The record reveals that the trial judge merely misread his sentencing The defendant argues that the error in this case was not clerical. We p. 12 12

sentence. Id confinement because he had already served one year in prison on the 1990 half years to five years of imprisonment; he received 365 days of pretrial additional probation violations, the defendant was sentenced to two and one- In 1992, after the three-year suspension period expired, following hearing. Id. at 37-38. based upon the 1990 sentencing agreement and the transcript of the 1992 referred to the assault charge. Id. at 37-38. The trial court so concluded 1992 sentence was actually on the drug charge, even though the sentence itself The language in Fletcher charge, because, by that time, the suspension period had expired, but that the additional 2 years on probation.” Id would have been unlawful to sentence the defendant in 1992 on the assault would serve twelve months in prison on the assault charge and “serve an The language in Fletcher challenging the legality of his 1992 sentence. Id petitioner violated probation and he and the State agreed that, as a result, he. The trial court agreed that it In 1990, before the expiration of the three-year suspension period, the. The petitioner then filed a petition for writ of habeas corpus

applied. Id. did not specify the charge to which the additional two years of probation

to the drug charge sentence, suspended for a period of three years. Id. assault charge, he was sentenced to one to three years in prison, consecutive twelve months of imprisonment followed by two years of probation. Id. For the assault. Webster, 138 N.H. at 36. For the drug charge, he was sentenced to case was originally sentenced in 1988 for sale of cocaine and second-degree Webster v. Powell, Commissioner, 138 N.H. 36 (1993). The petitioner in that , repeated in Van Winkle, first appeared in

error has occurred. the language of the original sentencing order to determine whether a clerical because it was the result of a clerical error. order itself. A close look at our case law reveals that we routinely look beyond unambiguous on its face, the trial court had inherent authority to amend it sentence imposed reflects a clerical error except to look beyond the sentencing unambiguous on its face. There may be no other way to determine whether the matter, a sentencing order that reflects a clerical error may often be clear and interpretation is also contrary to our clerical error doctrine. As a practical not look beyond it to determine whether a clerical error has occurred. This of the sentencing order itself; if it is clear and unambiguous on its face, we will determining whether a clerical error has occurred, we look only to the language

sentence). Thus, here, even though the original sentence was clear and has inherent authority to correct error inadvertently made in its record of p. 13 13

The sentence originally imposed in Stern

to write ‘3 months deferred’ on the sentencing order. As a result of the scrivener’s error, the Court wrote ‘all but 3 months deferred’ when it intended intended to impose. Id Similarly, in Van Winkle. at 712- p. 13 13. As the trial court explained: “By record revealed, however, that this sentence was not the sentence the court years.” Stern, 150 N.H. at 712 (quotation, brackets and ellipsis omitted). The stand committed, with all but three months of the sentence deferred for three The court originally sentenced the defendant to “twelve months imprisonment,

Van Winkle, 160 N.H. at 341. trial court intended to impose one sentence but mistakenly wrote another.” explaining that “the sentencing hearing transcript does not indicate that the to determine whether the sentence imposed reflected the trial court’s intent, , we looked at the sentencing hearing transcript

result of scrivener’s error. Id. at 212. Accordingly, we concluded that the original sentence was not the anything in the record that indicates that this was the trial court’s intent.” Id. original intent was that this . . . sentence be served consecutively. Nor is there Consistent with Webster the trial court’s original intent: “At no point . . . did the trial court state that its at 209. We noted that there was nothing in the record to indicate that this was sentences so that it would be served consecutively instead of concurrently. Id. committed on this one sentence, the trial court amended one of the other consecutive to the other three sentences. Id. at 212. After the defendant was Fletcher, 158 N.H. at 212- p. 13 13. The sentence issued made one sentence the trial court stated that the sentence issued did not reflect its intent. originally issued sentence was “clear” and “valid,” we also looked to whether unambiguous. In Fletcher, for instance, even though we stated that the reflects the trial court’s intent, even if the order itself is clear and looked beyond the language of a sentencing order to determine whether it

referred in Webster was the lack of ambiguity in the record. (citation omitted). In context, therefore, the lack of ambiguity to which we order must be presumed to reflect the intent of the sentencing judge.” Id. sentences. Where there is no ambiguity, the intent expressed in the sentencing that sentencing orders will clearly communicate the exact nature of their 39. We then explained: “Defendants in criminal cases have the right to expect ambiguity with respect to the intentions of the parties and the court.” Id. at Id. at 38. Neither the 1990 agreement nor the 1992 hearing “betray[ed] . . . assault charge in the 1992 sentence was not the result of a scrivener’s error. well as the transcript of the 1992 hearing, we decided that reference to the the State, including how the handwritten indictment numbers were written, as After examining at length the 1990 agreement between the petitioner and p. 14 14

Affirmed

DUGGAN, HICKS and CONBOY, JJ., concurred.

occurred. beyond the sentencing order’s language to discern whether such an error clear and unambiguous on its face, because a clerical error is alleged, we look In the instant case, therefore, even though the original sentence was

Id. at 712 (quotation omitted). scrivener’s error, the Court also orally read the sentencing form incorrectly.”