2010-537, State of New Hampshire v. Jon M. French

Michael A. Delaney

No. 2010-537

Grafton

Superior Court (Vaughan HICKS, J. The defendant, Jon M. French, appeals an order of the defendant pled guilty to two counts of felonious sexual assault. See The record supports the following facts. On April 22, 1996, the

Getman, Schulthess & Steere, P.A.

Hampshire State Prison for three-and-one-half to seven years, deferred for year, stand committed. On indictment 95-S-385, he was sentenced to the New 95-S-384, the defendant was sentenced to the House of Corrections for one 632-A:3 (1986) (amended 1997, 2003, 2006, 2008 and 2010). On indictment

and remand.

the brief and orally), for the defendant. THE SUPREME COURT OF NEW HAMPSHIRE , of Bedford (Andrew R. Schulman on

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 p. 2 The Superior Court (Morrill On April 1, 2003, the defendant moved to suspend his deferred sentence.

defendant remained in residential treatment for the seven-year deferral period. served a brief period of time at the House of Corrections. Thereafter, the In October 1996, the defendant pled true to a probation violation and

the entirety of his sentence. defendant’s probation be terminated and that the defendant serve

in which he is placed shall be authorized to request that the appropriate program within 48 hours of his arrest and the program placed, he shall be subject to arrest and shall be returned to the

leaves the premises of any residential program in which he is defendant, absent express authority from the program to do so, established by any program in which he is placed. In the event the

The defendant shall comply with all terms and conditions

sentencing order further provided: counseling, as well as individual psychotherapy.” The addendum to the defendant was also ordered to “receive individual and group sexual offender supervision provided by Lakes Region Community Services Council.” The compliance “with a structured, residential program with 24 hour per day

Deferral of the defendant’s sentence was conditioned upon his

Dr. Kenney testified that while the defendant had the “potential” to be a danger who had been providing services to the defendant since he was in high school. The defendant was also placed on probation for a period of five years. of Dr. Robin Kenney, clinical consultant to the defendant’s treatment facility, sentence. The court held a hearing, at which the State presented the testimony On May 14, 2010, the defendant moved to terminate his deferred

commitment without further hearing.

year deferral period. did not appeal. He remained in residential treatment for the additional sevensentence. The defendant’s motion to reconsider was denied and the defendant for another seven years subject to the same requirements as his original , J.) denied his request and deferred his sentence

prescribed time will result in imposition of the deferred commitment should not be imposed. Failure to petition within the

may petition the Court to show cause why the deferred days prior to the expiration of the deferred period, the defendant All of the sentence is deferred for a period of 7 years. Thirty (30)

sentencing order specifically provided: seven years, concurrent with his sentence on indictment 95-S- p. 3 384. The 3

the deferral period. Burgess order so as to enforce the terms that are at the time of . . . sentencing” that his sentence might be suspended following Here, the defendant’s original sentence failed to give him “explicit notice

State v. Burgess

Winkle, 160 N.H. at p. 3 340 (quotation omitted). requires that the sentencing process must at some point come to an end.” Van and properly decided must remain final. In regard to criminal proceedings this that there must be an end to litigation and that a matter judicially acted upon

, 141 N.H. 51, 52-5 p. 3 3 (1996). “It is basic to our judicial system

the sentence beyond such terms.

time of sentencing, we will not speculate about what sentence the “Due process requires a sentencing court to make clear at Likewise, if the terms of a sentence are not entirely clear at the

or suspended sentence.” State v. LeCouffe, 152 N.H. 148, 152 (2005). at a probation revocation hearing or a hearing on whether to impose a deferred increase in his punishment. We review questions of constitutional law de augmentation at a later date, the court may not increase a defendant’s penalty sentence” and, thus, the order suspending his sentence was an unlawful the terms of a sentence at the time it is imposed specifically allow of the terms of deferral, the court could nonetheless thereafter suspend [his] defendant the exact nature of the sentence.” Id contends that he was never put on notice that “if he successfully completed all. (quotation omitted). “[U]nless (quotation omitted). “The sentencing order must clearly communicate to the process under Part I, Article 15 of the New Hampshire Constitution. He later date and under what conditions the sentence may be modified.” Id suspend his sentence for an additional seven years violated his right to due. the extent to which the court retains discretion to impose punishment at a On appeal, the defendant argues that the trial court’s decision to sentencing in plain and certain terms what punishment it is exacting as well as

State v. Van Winkle, 160 N.H. p. 3 337, 340 (2010).

and conditions set out in the original mittimus of 1996.” defendant’s deferred sentence for a period of seven years “subject to the terms the law. On July 15, the trial court issued an order suspending the his therapy sessions, and, apart from the 1996 probation violation, not violated that, overall, the defendant has complied with his treatment program, attended knows that should be considered to be inappropriate.” He further testified here is his impulse to drift off that . . . course of treatment, to do things that he commitment to the New Hampshire Hospital. He stated that “[t]he real issue to himself or to society, he did not meet the criteria for involuntary p. 4 4

thereafter in response to a petition to suspend sentence which is timely sentencing court at the time of imposition of the sentence or at any time “the sentence to imprisonment of any person may be suspended by the Burgess, 1 p. 4 41 N.H. at 53; see also RSA 651:20, I (Supp. 2011) (providing that In this case, as in Parker the authority to suspend sua sponte the defendant’s deferred sentence. See impose or terminate the defendant’s deferred sentence. Thus, the court lacked language of the 1996 sentencing order the court retained only the authority to that is, to suspend his sentence following the deferral period. Under the However, it did not retain the authority to augment the defendant’s sentence – sentences is to allow the trial court to retain jurisdiction over the defendant). Almodovar, 158 N.H. 548, 553 (2009) (noting that the purpose of deferred the defendant’s three-and-one-half to seven year sentence. See Relying upon State v. Parker State v. Thus, the court retained discretion in its original sentencing order to impose portion of the defendant’s three-and-one-half to seven year deferred sentence. sentencing order left open the sentencing decision of whether to impose any

served the initial fifteen years of his sentence.” Id. decision of whether to impose the seven-year term until after the defendant We stated that “the language of the 1990 order leaves open the sentencing decision with respect to the [sentence’s] seven-year deferred term.” Id. at 92. “was not completed in 1990 because the trial court postponed its sentencing deferred portion of his sentence, we found that sentencing of the defendant entitled to appointed counsel to assist him in seeking to avoid imposition of the Id. (quotation omitted). In addressing whether the defendant was subsequently Court to show cause why the deferred commitment should not be imposed.” prior to the expiration of the deferral period, “the defendant may petition the fifteen years. Parker, 155 N.H. at 90. The sentencing order provided that, than twenty-five years, with seven years of the sentence deferred for a period of sentenced to the New Hampshire State Prison for not more than life nor less In Parker, the defendant pled guilty to second-degree murder in 1990 and was the sentencing process remained open during the fourteen-year deferral period. the trial court had the authority to suspend the defendant’s sentence because , 155 N.H. 89 (2007), the State argues that

p. 4 483, 48 p. 5 5 (1997) (same). notice that he was subject to a term of probation); State v. Rothe, 142 N.H. discretion to impose probation at a later date and, thus, did not give defendant sentence neither contained term of probation nor provided for retained defendant’s sentence at a later date. See Burgess, 141 N.H. at 53 (original did it contain a provision allowing the court to retain discretion to suspend the imprisonment, which it deferred for one year, to be suspended thereafter”). Nor N.H. 56, 56 (2004) (trial court sentenced defendant “to a six-month term of allowing for suspension of the defendant’s sentence. Cf. State v. Clark, 151 sentence was clear at the time it was imposed: it contained no provision 5

Reversed and remanded

within the notice of appeal. See briefed these issues sufficiently for our review and they are not encompassed the temporal limit to be applied to a deferred sentence. The parties have not authority to now impose the defendant’s deferred sentence. Nor do we address We do not address whether, upon remand, the trial court has the

DALIANIS, C.J.