2010-115 The State of New Hampshire v. Anthony Kay

Michael A. Delaney

No. 2010-115

Hillsborough-northern judicial district

Superior Court (Abramson LYNN, J. The defendant, Anthony Kay, appeals the decision of the

Dorothy E. Graham

any such failure was due to financial hardship. We affirm. of probation based upon his failure to pay child support as ordered because were never imposed by the sentencing court; and (2) erred in finding a violation committed plain error by finding that he violated probation conditions that imposing a sentence of imprisonment. He argues that the trial court: (1)

brief and orally, for the defendant.

THE SUPREME COURT OF NEW HAMPSHIRE 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 to modify his support payments at any time. p. 2 to his probation officer after becoming unemployed, and that he never sought thereafter became homeless. The defendant admits that he stopped reporting Fletcher Sandblasting after thirty to forty days of employment, and soon

resumed payments by wage assignment. The defendant was fired from unemployed until June, when he began working at Fletcher Sandblasting and February, his employment at Sterling Linen ended, and he remained thirty days and began making support payments by wage assignment. In Beginning in January, the defendant worked at Sterling Linen for about

or residence. contact with his office and inform him of any change in his employment status had gone into effect. Jeffrey also instructed the defendant to maintain weekly assignment and he was to make direct payments until such wage assignment was employed, the defendant was to make payments through a wage arrearage, and informed him where those payments were to be made. While he total payments of $91.65 per week for the two cases, including payments for At their subsequent meeting, Jeffrey instructed the defendant to make

only. shall be for the purposes of collection of child support payments

Health and Human Services, child support services. Probation this sentence. Probation shall be under the direction of the Dept of is ordered to be of good behavior and comply with all the terms of waived sentence review in writing or on the record. The defendant the New Hampshire State Prison. The defendant & the State have direction of the Probation/Parole Officer, the defendant shall tour

imposition of any suspended or deferred sentence. Under the

Failure to comply with these conditions may result in the

imposed or whether there is no incarceration ordered at all. 2

are applicable whether incarceration is suspended, deferred or

the underlying offense. The following conditions of this sentence probation and imposition of any sentence within the legal limits for

any of the terms of this sentence may result in revocation of call immediately to DHHS, Wayne Jeffrey. Violation of probation or through DHHS. Effective: Forthwith. The defendant is ordered to The defendant is placed on probation for a period of 5 year(s),

RSA 161:8 (2002). The sentencing order read, in relevant part: the New Hampshire Department of Health and Human Services (DHHS). See the state prison, deferred for ten years, and placed him on probation through Court (O’Neill, J.) sentenced him to two concurrent terms of two to five years at he owed a total of nearly $70,000 in two separate support cases. The Superior failure to pay child support. See RSA 639:4 (2007). At the time of sentencing, On January 9, 2008, the defendant pleaded guilty to two felony counts of supervision conditions. p. 3 that they comply with their probation, parole, or lifetime behavior through office, home, work, and other contacts to insure assist them in establishing law-abiding lives while monitoring their placed on probation, parole, or lifetime supervision, attempting to

II. To take charge of and to provide supervision to persons

and duties of probation and parole officers, including, in part: impose.” RSA 651:2, V(a) (2007). RSA 504-A:12 (2010) delineates the powers the probation service can provide under such conditions as the court may court finds that such person is in need of the supervision and guidance that The court may sentence a person convicted of a felony to probation “if the

find no error at all. fairness, integrity or public reputation of judicial proceedings. Id. Here, we error must affect substantial rights; and (4) the error must seriously affect the find plain error: (1) there must be an error; (2) the error must be plain; (3) the circumstances in which a miscarriage of justice would otherwise result. Id. To However, the rule should be used sparingly, its use limited to those errors not raised in the trial court. State v. Sideris, 157 N.H. 258, 264 (2008). Supreme Court Rule 16-A allows us to exercise our discretion to consider plain trial court, and asks that we review the trial court’s decision for plain error. The defendant acknowledges that he failed to raise this issue before the

State v. Ball, 124 N.H. 226, 232-33 (1983). arguments under the State Constitution, using federal cases for guidance only. art. 15; U.S. CONST. amends. V, XIV. We first examine the defendant’s due process under the State and Federal Constitutions. See N.H. CONST. pt. I, erroneously modified the conditions of his sentence in violation of his right to imposed by the original sentencing court. Thus, he contends, the trial court and adhere to a weekly payment schedule because such conditions were never violated probation conditions that he regularly report to his probation officer The defendant first argues that the trial court erred when it found he had

Prison. This appeal followed. defendant to three-and-one-half to seven years in the New Hampshire State charged probation violations. On December 1, 2009, the court sentenced the the superior court found that the State had met its burden of proving the $406.54 in support payments. After conducting a probation violation hearing, probation violation report was filed in August, the defendant made a total of Court Rule 107(a). From the time of his plea hearing in January until the to maintain weekly contact with his office as directed pursuant to Superior pursuant to the trial court order and Superior Court Rule 107(b), and by failing violated the terms of his probation by failing to make weekly support payments On August 22, 2008, Jeffrey reported to the court that the defendant his probation officer as unreasonable, but rather argues that the terms of his p. 4 officer. He does not challenge the terms of payment and regular contact set by completion of a state prison tour, and his immediate contact with his probation terms of his probation to the collection of child support payments, his The defendant contends that the original sentencing court limited the

dependents to the best of his or her ability; . . . . probationer’s employer of his or her legal status, and support (e) Diligently seek and maintain lawful employment, notify

. . . .

changing residence or employment or traveling out of State; (c) Obtain the probation or parole officer’s permission before

money; probation or parole officer, including any order for the payment of (b) Comply with all orders of the Court, board of parole or

the probation or parole officer; officer’s instructions, and respond truthfully to all inquiries from

and places as directed, comply with the probation or parole (a) Report to the probation or parole officer at such times

The probationer shall:

prescribed, shall be as follows:

The terms and conditions of probation, unless otherwise

probation, reading in part: Superior Court Rule 107 sets forth the standard terms and conditions of court for the conduct and behavior of a probationer.” RSA 504-A:1, VII (2010). “Probation conditions” are those “restrictions and limitations established by the in any welfare matters which may be before the court.” RSA 161:8 (2002). supervision of such court, the function of probation officer or agent of the court the department of health and human services shall perform, under the “If appointed by a court of competent jurisdiction, the commissioner of

believes to be appropriate. shall include recommendations as to any actions which the officer by the authority authorizing probation or parole. Such reports opinion of the officer, are serious enough to warrant consideration 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 defendant to pay child support and informed him that compliance was to occur p. 5 Here, the sentencing order plainly imposed an obligation on the

implemented. and every detail of the manner in which probation conditions are to be that to provide adequate notice the sentencing court must explicitly state each omitted). Contrary to the defendant’s implication, however, we did not hold rights were not violated. Merrill, 160 N.H. at 473 (quotation and brackets probation established by his probation officer, and therefore his due process aware at the time of sentencing that he was to abide by the conditions of terms of probation determined by the probation officer,” the defendant was defendant to probation “upon the usual terms of probation and any special sentencing order. In Merrill, we held that because the trial court sentenced the of his probation that he was found to have violated were not set forth in the his argument that his due process rights were violated because the conditions The defendant relies on State v. Merrill, 160 N.H. 467 (2010), to support

novo. See State v. Parker, 155 N.H. 89, 91-92 (2007). interpretation of a trial court order is a question of law, which we review de crime, he will lose the privilege of his conditional liberty. See id. at 138. Our give fair warning to the probationer, such as that if the probationer commits a implied by the imposition of probation itself and need not be explicitly stated to fundamental unfairness. Id. at 139. However, some terms of probation are effectively modify the terms of the original sentencing order and result in revocation of his conditional liberty. Id. at 138-39. To hold otherwise would that a defendant be given actual notice that such conduct could result in the sentence. State v. Budgett, 146 N.H. 135, 138 (2001). Due process mandates to ensure that he understands, in plain and certain terms, the conditions of his the commission of a non-criminal act, he must be given some warning in order (2007). When the deprivation of a defendant’s conditional liberty rests upon conditions the sentence may be modified. State v. Hancock, 156 N.H. 301, 305 it retains discretion to impose punishment at a later date and under what and certain terms what punishment it is exacting as well as the extent to which The sentencing court must make clear at the time of sentencing in plain

established by his probation officer. We disagree. provide support payments and maintain contact with DHHS in the manner trial court lacked authority to find that he violated his probation for failing to restitution, a specific payment schedule, or weekly contact with probation,” the to impose additional obligations,” and “did not order a certain amount of Rule 107, did not “expressly delegate to the probation department the authority probation or any special terms imposed by probation” under Superior Court sentencing court “did not order [him] to comply with the usual terms of further amended or supplemented. According to the defendant, because the probation had been established by the sentencing court and could not be legal error, our standard of review is de p. 6 Because a challenge to the sufficiency of the evidence raises a claim of

number of weeks between January and August 2008 that he worked (eight-and-one-half to ten). The State calculated these totals by multiplying the defendant’s weekly support obligation ($91.65) by the *

obligation, in spite of being employed and able to pay. defendant failed to pay between $372.48 and $509.96 of his weekly support obligation was between $779.02 and $916.50. Thus, the State argues, the * sixty to seventy days that he was employed, the defendant’s total support days in that period that he was employed. The State calculates that, for the support payments, all by wage assignment and all during the sixty to seventy violation report was filed in August, the defendant made a total of $406.54 in obligation. From the time of his plea hearing in January until the probation circumstances. Id periods when the defendant was employed, he still failed to meet his payment defendant no greater protection than does the State Constitution under these The State responds that, even limiting the scope of the issue to the defendant’s due process claim fails. The Federal Constitution affords the terms of his probation. Accordingly, there was no plain error, and the child support payments by wage assignment when he was working. he made bona fide efforts to fulfill his support payment obligation by making We find no error in the trial court’s ruling that the defendant violated the failure to pay was due to financial hardship while he was unemployed, and that probation by failing to pay child support. Specifically, he contends that any State presented sufficient evidence to warrant a finding that he violated his The defendant next argues that the trial court erred in finding that the

Constitution as we do under the State Constitution.

reporting requirement to monitor the defendant’s compliance. See id. support payments, including setting a payment schedule and a regular reasonable terms necessary to ensure and supervise the collection of child sufficient notice to the defendant that Jeffrey had the authority to establish of the defendant’s child support payments, we conclude that the order gave excluded the standard terms of Superior Court Rule 10 p. 7 7 unrelated to collection purpose of probation to the “collection of child support payments only” if we were to assume that the language of the sentencing order limiting the enforced the court’s order in the absence of imposing such requirements. Even not reasonably have understood otherwise. Indeed, Jeffrey could not have require the defendant to remain in contact with him, and the defendant could authority for Jeffrey to establish the amount of periodic payments and to through Jeffrey, his probation officer. Implicit in these conditions was 7

transportation, and that he eventually became homeless. The defendant Fletcher Sandblasting, he testified that he was fired because he lacked was told that the defendant had quit. As for the defendant’s employment at Jeffrey testified that when he contacted Sterling Linen to verify that claim, he workers’ compensation benefits, he was told to quit or he would be fired; ended. The defendant claimed that after injuring his back and being denied was disputed evidence as to how the defendant’s employment at Sterling Linen during these two periods of employment, and made no other payments. There days in June 2008. He made child support payments by wage assignment thirty days in January 2008 and at Fletcher Sandblasting for thirty to forty The record shows that the defendant worked at Sterling Linen for about

to pay his obligation. Id. make sufficient bona fide efforts to seek employment or borrow money in order 138 N.H. at 236. The court also may revoke probation if a probationer does not freedom. Dumont preponderance of the evidence that the defendant has violated the terms of his refused to pay when he had the means to do so, he may be imprisoned. Fowlie, at 244. If a probationer sentenced to make periodic payments has willfully Probation may be revoked, consistent with due process, upon proof by a obligation, including the diligence exercised in those efforts. Dumont, 145 N.H. bears the burden to demonstrate sufficient bona fide efforts to meet his the probationer raises inability to pay as a defense to a probation violation, he reasons for the failure to pay. State v. Fowlie, 138 N.H. 234, 23 p. 7 7 (1994). When failing to make a required payment, the court then must inquire into the the State shows that the defendant did not meet a condition of his sentence by the State, fails to support the trial court’s decision. Id. at 244. Where, as here, defendant must show that the evidence, viewed in the light most favorable to

, 145 N.H. at 243. In order to prevail on appeal, the

standard of review. evidence to support a finding that probation was violated under a de novo confusion we now clarify that we consider challenges to the sufficiency of the be imposed once a probation violation has been found, to avoid future reviewing a trial court’s discretionary decision as to the appropriate sanction to While an unsustainable exercise of discretion is the correct standard for reverse only where there has been an abuse of discretion.” (quotation omitted)). deference to a trial court’s decision in probation revocation proceedings and of discretion. See State v. Dumont, 145 N.H. 240, 244 (2000) (“We give standard of review for sufficiency of the evidence is an unsustainable exercise language in State v. Dumont which can be interpreted to suggest that the of law are reviewed de novo on appeal). We acknowledge that there is omitted)); State v. Lake Winnipesaukee Resort, 159 N.H. 42, 45 (2009) (matters legally sufficient to support the jury verdict as a matter of law” (quotation that legal standard which is applied to determine . . . whether the evidence is 456, 463-64 (200 p. 7 7) (“sufficiency of the evidence . . . is a term of art meaning p. 8 8

DALIANIS, C.J.