2010-277 The State of New Hampshire v. John Mwangi

Michael A. Delaney

No. 2010-277 Hillsborough-northern judicial district

Superior Court (O’Neill LYNN, J. The defendant, John Mwangi, appeals the decision of the

David M. Rothstein

See RSA 651-A:23 (2007). We affirm. habitual offender sentence on which he was charged with a parole violation. trial court erroneously allocated a portion of his incarceration to a prior sentence for a robbery conviction. See RSA 636:1 (2007). He argues that the

brief and orally, for the defendant.

assistant 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 during that time. See p. 2 on October 29, 2009, and was not serving any other sentence of confinement from the date of his arrest on November 11, 2008, until his sentencing hearing was entitled to 353 days because he had been in custody on the robbery charge alternatively, fifty-five days to correct a calculation error. He argued that he The defendant moved to reconsider, requesting 353 days of credit, or

sentenced on his robbery conviction. completed his habitual offender sentence, to October 29, 2009, when he was served in November 2008 and the time from September 8, 2009, when he at the Hillsborough County House of Corrections, which included two days awarded him fifty-three days of pretrial confinement credit for his incarceration to be served consecutively to his habitual offender sentence. The trial court sentence of not more than seven years, nor less than three and one half years, confinement credit toward the robbery sentence. Ultimately, he received a incarceration commencing November 11, 2008, should be calculated as pretrial the hearing, the parties disputed whether the entire period of the defendant’s until his sentencing hearing on the robbery conviction on October 29, 2009. At returned to the Hillsborough County House of Corrections, where he remained completed serving the habitual offender sentence at the prison and was bail was revoked pending sentencing. On September 8, 2009, the defendant A jury found the defendant guilty of robbery on August 11, 2009, and

revocation hearing and did not receive a sentence on that violation. never confined for the parole violation because he was not afforded a final

State Prison. Hearing . . . .” On November 14, he was transferred to the New Hampshire transported to NH State Prison pending my appearance at a Revocation . . . I hereby waive these rights. If I am a parolee, I understand I will be acknowledged: “Having been informed of my rights to a Preliminary Hearing charges, and signed a waiver regarding a preliminary hearing. Specifically, he The defendant met with a parole officer, received notice of the parole violation armed robbery on November 11, and by failing to report to his parole officer. all laws and remain arrest free” stemming from his alleged commission of that the defendant had violated parole by failing “to be of good conduct[,] obey On November 12, a detention order was issued based upon allegations

Corrections. bail and remained in the custody of the Hillsborough County House of robbery, and, the following day, bail was set at $5,000. He was unable to post November 2006. On November 11, 2008, the defendant was arrested for minimum of one year and a maximum of four years. He was paroled in habitual offender. He was sentenced to the New Hampshire State Prison for a the defendant was convicted for the felony offense of driving while certified as a The record supports the following undisputed facts. On April 19, 2006, sentence and not under any sentence of confinement p. 3 confined in jail awaiting and during trial prior to the imposition of

2010). The parole board may with the latter to occur within forty-five days. RSA 651-A:17 (2007) (amended equal to the number of days during which the prisoner was credits or other time reduction to which he is entitled. RSA 651-A:19. preliminary hearing and then a revocation hearing before the parole board, recommitted shall serve the remainder of his maximum sentence” less any Under the parole statutes, a parolee once arrested is entitled to a 2010); see also RSA 651-A:23. If not re-paroled, the “prisoner who is served as a portion of the maximum sentence.” RSA 651-A:19 (2007) (amended to prison after his arrest and revocation of parole shall be considered as time of corrections,” RSA 651-A:17, and “[t]he time between the return of the parolee revoked, the parolee “shall be recommitted to the custody of the commissioner for a parolee who is convicted of a felony. RSA 651-A:18 (2007). Once parole is See violates the conditions of his parole or violates the law, but shall revoke parole confinement credit is governed by RSA 651:3 (2007) and RSA 651-A:23 (2007). revoke parole for a parolee who, for example, sentencing, pretrial confinement credit, and parole. The allocation of pretrial against both the maximum and minimum terms of his sentence of correction, any jail or any other place shall be granted credit

court’s discretion to allocate pretrial confinement credit. Id. presentence detention is often the result of indigency). It is within the trial confinement credit statutes stem principally from the recognition that (Emphasis added.) See Edson, 153 N.H. at 49 (explaining that pretrial

We first outline the interplay among several statutes governing

Any prisoner who is confined to the state prison, any house

term authorized by RSA 651:2 or 6.” RSA 651-A:23 provides in part: the maximum term of imprisonment that is imposed and against any minimum sentenced shall be credited in the manner set forth in RSA 651-A:23 against “All the time actually spent in custody prior to the time [a defendant] is State v. Edson, 153 N.H. 45, 49 (2005). RSA 651:3, I, provides in part:

time served on his habitual offender sentence. This appeal followed. fifty-five days and allocated the defendant’s incarceration at the state prison as corrections confinement credit on the robbery sentence from fifty-three days to his robbery sentence. After a hearing, the trial court increased the house of complete his habitual offender sentence and as pretrial confinement credit on parole violation, and that it could not be counted as both time served to 8, 2009, constituted time served on his habitual offender sentence due to his incarceration at the state prison from November 14, 2008, through September but contested the defendant’s request for additional time. It argued that his The State, in response, agreed to the requested fifty-five days of credit, procedural requirement would entail. p. 4 fiscal and administrative burdens that the additional or substitute

Government’s interest, including the function involved and the additional or substitute procedural safeguards; and finally, the through the procedures used, and the probable value, if any, of

“whether the challenged procedures concern a legally protected interest.” Id Our threshold determination in a procedural due process claim is

second, the risk of an erroneous deprivation of such interest First, the private interest that will be affected by the official action;

544. In so doing, we balance three factors: the procedure at issue afforded the requisite safeguards. Haley, 141 N.H. at (quotation omitted). If such an interest is at stake, we then determine whether

fair play. Veale, 158 N.H. at 637. government conduct conform to the community’s sense of justice, decency and (quotation and brackets omitted)). Fundamental fairness requires that take action which will deprive them of their property or liberty interests” citizens are entitled to fundamental fairness when the government seeks to using federal cases only to aid in our analysis. State v. Ball consideration, the notion that no matter how rich or how poor, all of our We first consider the defendant’s argument under the State Constitution, (“due process under our constitutional republic has, as a primary fundamental fairness. Id. at 637; see State v. Haley, 141 N.H. 541, 544 (1997) The ultimate standard for judging a due process claim is the notion of his right to due process under the State and Federal Constitutions. See of law.” State v. Veale sentence effectively imposed a sentence for the parole violation in violation of, 158 N.H. 632, 636, cert. denied, 130 S. Ct. 748 (2009). N.H. CONST. pt. I, art. 15. “Law of the land in this article means due process his incarceration at the state prison as time served for the habitual offender liberty, or estate, but by the judgment of his peers, or the law of the land . . . .” of the robbery case. According to the defendant, the trial court’s allotment of privileges, put out of the protection of the law, exiled or deprived of his life, under RSA 651-A:23 for that violation while incarcerated during the pendency part: “No subject shall be . . . deprived of his property, immunities, or order on the parole violation, he was not serving a “sentence of confinement” 231-33 (1983). Part I, Article 15 of the State Constitution provides, in relevant a parole revocation hearing,” and that absent such a hearing and a sentencing that RSA 651-A:18 and :19 do not “suspend[ ] the due process requirement for, 124 N.H. 226, to serve the remainder of his habitual offender sentence. However, he contends him of felony robbery, his re-confinement was mandatory, and he was required CONST. pt. I, art. 15; U.S. CONST. amends. V, XIV. scheme, his parole was revoked “by operation of law” when the jury convicted N.H.

The defendant acknowledges that as a consequence of this statutory p. 5 Stapleford

counsel, to be appointed by the court if the defendant is indigent.

reasons for imposing commitment; and (6) representation by

court indicating in substance the evidence relied upon and the

or at any time prior to the robbery trial. See afford him a final parole revocation hearing within forty-five days of his arrest and does not contend that his due process rights were violated by any failure to Here, the defendant waived his statutory right to a preliminary hearing, examine adverse witnesses; (5) a statement in the record by the

(here, robbery). While acknowledging that “[a] jury has already decided the that he be afforded one even after his conviction of a new felony level crime did not waive his right to a final revocation hearing, and due process requires present witnesses and evidence; (4) the right to confront and crossis a strategic choice, though a difficult one). Nevertheless, he contends that he against him; (3) the opportunity to be heard in person and to suspended or deferred sentence occurring prior to related criminal prosecution testify or present evidence, or to remain silent, at hearing for imposition of charges. Cf. State v. Flood, 159 N.H. 353, 355 (2009) (defendant’s decision to resolved at trial prior to going before the parole board on the parole violation acknowledged to the trial court that he was waiting for the robbery charge to be

violation. See seeks to revoke parole and incarceration may be the sanction of a parole worthy of due process protection under our State Constitution when the State We have recognized that a significant liberty interest exists which is of whether the facts as determined warrant revocation”). “lead[s] to a final evaluation of any contested relevant facts and consideration incarceration; (2) disclosure to the defendant of the evidence (1) written notice of the conduct which triggers the sought-after decision is discretionary, parolee must be afforded opportunity for hearing that 408 U.S at 488 (under Federal Constitution, to revoke parole when revocation

, 122 N.H. at 1088; see Moody, 127 N.H. at 554; see also Morrissey,

individual of conditional liberty). The due process to be afforded includes: Morrissey v. Brewer, 408 U.S. 471, 480 (1972) (parole revocation deprives Cunningham, 127 N.H. 550, 553 (1986); Baker, 128 N.H. at 378, 381; see also

p. 5 Stapleford v. Perrin, 122 N.H. 1083, 1088 (1982); Moody v.

limitation on the right.” (citations omitted)). right or expectation in question and to the public interest that justifies a required varies and must be determined with reference both to the individual Cunningham, 128 N.H. 374, 379 (1986) (“The degree of procedural protection (quoting Wilkinson v. Austin, 545 U.S. 209, 224 (2005)); see Baker v. protections as the particular situation demands.’” Id. at 642 (brackets omitted) requirements of due process are flexible and call for such procedural Veale, 158 N.H. at 639 (quotation omitted). Further, we are mindful that “‘the safeguards that were afforded the defendant in this case. See p. 6 defendant’s felony conviction would add little, if any, value to the procedural Requiring the parole board to conduct a revocation hearing after the

issue that he was not the same person who was on parole, he should have jury’s verdict convicting him of robbery. However, had there been a serious is correct insofar as his status as a parolee was not an issue resolved by the convicted of the felony is the same person who was on parole.” The defendant hearing after his felony conviction to ensure that “the person who was defendant’s argument that it remains necessary to conduct a revocation the revocation is based on conviction of another crime.”). We reject the determined against him in other forums, as in the situation presented when the charge on the basis of reliable evidence and verified facts. See Morrissey violation is to ensure that a fact-finder will make an accurate determination of, 408 U.S. at 490 (“Obviously a parolee cannot relitigate issues the purpose of the due process protections afforded a parolee for that charged id.; see also of the robbery. When parole revocation is mandatory for a charged violation, associated with the parole violation charge that stemmed from his commission revocation hearing was no longer necessary to protect his due process rights deprivation of private interest through procedures used). Once the defendant was convicted of felony robbery, a final parole requisite safeguards, court considers, among other things, risk of erroneous felony. See Veale, 158 N.H. at 639 (to evaluate whether procedure afforded conditional liberty for a parole violation that stemmed from his commission of a longer a meaningful risk of an erroneous deprivation of the defendant’s upon that conviction. See RSA 651-A:18. Thus, post-conviction, there was no reasonable doubt and the law required revocation of his parole based solely to parole revocations”). A jury found him guilty of felony robbery beyond a the full panoply of rights due a defendant in such a proceeding does not apply U.S. at 480 (“revocation of parole is not part of a criminal prosecution and thus the robbery charge. See Stapleford, 122 N.H. at 1088; see also Morrissey, 408 more procedural protections than those already afforded to him at the trial on Here, a final parole revocation hearing would not provide the defendant with finding of a parole violation will be based on verified facts” (emphasis added)). revocation hearing is to provide procedural protection “to assure that the N.H. at 554; Morrissey, 408 U.S. at 484 (one purpose of informal parole

imposed outweighs its burden and cost.” We are not persuaded. proceeding at which the sanction called for by RSA 651-A:18, II is formally the parole sanction.” According to the defendant, “the relative benefit of some the felony trial, but nonetheless, a necessary prerequisite to the imposition of of the felony is the same person who was on parole – an issue not resolved by to resolve “the sole remaining issue [of] whether the person who was convicted to the revocation of parole or sentencing,” he argues that a hearing is necessary merits of the felony and the [parole] [b]oard thus has no discretion with regard provides at least as much protection under these circumstances. See p. 7 same result under the Federal Constitution because the State Constitution confinement credit on his sentence for the robbery conviction. We reach the process of law under the State Constitution when it calculated his pretrial We conclude that the trial court did not deprive the defendant of due attack on his habitual offender sentence. Also, we deem waived issues the confinement credit on his robbery sentence amounts to an improper collateral the State’s argument that the defendant’s attempt to gain additional pretrial Because the defendant’s appeal fails on the merits, we need not address

N.H. State Prison for Women, 159 N.H. 465, 468-70 (2009). Morrissey, 408 U.S. at 489; Sneed, 993 F.2d at 1243-44; Barnet v. Warden, burdens on the state. Cf compel an unnecessary task that would impose fiscal and administrative parole board to convene and conduct an informal hearing in this case would A:18, II is formally imposed outweighs its burden and cost.” Requiring the Constitution. See proceeding at which the sanction [of mandatory revocation under] RSA 651- several jurisdictions that have considered this issue under the Federal with such a hearing is minimal” and that “the relative benefit of some a final parole revocation hearing in this context accords with decisions in We disagree with the defendant that “the time and expense associated procedural protections as the particular situation demands). Our holding that due process does not require that a parolee be afforded 158 N.H at 642 (requirements of due process are flexible and call for such revocation hearing after a parolee has been convicted of a felony. See Veale, a situation could arise in which due process would require a final parole 965 P.2d 162, 170-71 (Haw. Ct. App. 1998). We need not decide today whether Boulder v. Parke, 791 S.W.2d 376, 377-78 (Ky. Ct. App. 1990); Ringor v. State, Butler, 814 F.2d 237, 240-41 (5th Cir.), cert. denied, 484 U.S. 924 (1987); United States v. Cornog, 945 F.2d 1504, 1512 (11th Cir. 1991); Pickens v.

Sneed v. Donahue, 993 F.2d 1239, 1243-44 (6th Cir. 1993);

correct petition, but rather that it furthers the goals of sentencing). incarceration is not simply a result of defendant’s inadvertent failure to file the (hearing on imposition of deferred sentence required to assure that

at the time he was convicted of a new felony. for a final revocation hearing while openly acknowledging that he was on parole hearing on his motion for reconsideration. Even on appeal before us, he argues did not raise an identity issue either at the sentencing hearing or at the later defendant’s incarceration associated with his parole violation. The defendant expressly disputed the calculation of pretrial confinement credit given the raised it at the sentencing hearing for the robbery. At that hearing, the parties p. 8 8

Affirmed

DALIANIS, C.J.