2010-685, State of New Hampshire v. Michael B. Smith

Michael A. Delaney

No. 2010-685

Merrimack

2008, the defendant was indicted on six felony charges. One indictment, for had damaged Danyelle Nichols’s apartment. Subsequently, in March and April Superior Court (Smukler misdemeanors. One charge, for criminal mischief, alleged that the defendant LYNN, J. The defendant, Michael Smith, appeals an order of the are as follows. In February 2008, the defendant was charged with six class A The pertinent facts and procedural posture, as established by the record,

Lisa L. Wolford

sentences for felony convictions. We affirm.

and orally, for the defendant.

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 good behavior in his felony sentences; (2) it did so prior to determining whether p. 2 contact order is not a crime and, therefore, is not a violation of the condition of condition in his misdemeanor sentences because: (1) violation of the noof the suspended felony sentences based on his violation of the no-contact The defendant argues that the superior court erred by imposing a portion

suspended. This appeal followed. in docket numbers 08-S-753, -755, and –756, leaving the other sentences imposed six months of the minimum and one year of the maximum sentences criminal contempt of the [misdemeanor] court orders”; consequently, it the good behavior condition, finding the call “in effect, an attempted indirect behavior in those sentences. The superior court agreed that the call violated convictions, arguing that the attempted call violated the condition of good

the State moved to impose the suspended sentences of all six felony the prison’s telephone system. Although the prison’s system blocked his call, Once incarcerated, the defendant attempted to contact Nichols through

defendant from contacting Danyelle Nichols. included the same language as the felony sentencing orders and prohibited the numbers 08-S-753, -755, and -756. The misdemeanor sentencing orders

sentences also running concurrently with his felony sentences in docket charges and was sentenced to concurrent terms of six months in jail, these In January 2010, the defendant pleaded guilty to the six misdemeanor

and comply with all the terms of this sentence.

. . . The defendant is ordered to be of good behavior

the imposition of any suspended or deferred sentence.

Failure to comply with these conditions may result in

compliance with all of the terms of this [order.] . . .

Suspensions are conditioned upon good behavior and

contained the following provision: The sentencing orders in docket numbers 08-S-753, -755, and -756

and –756, and consecutive to those sentences if imposed. from his stand-committed prison sentences in docket numbers 08-S-75 p. 3 3, -755, years at the state prison, all suspended for a period of five years from release –760, the defendant was sentenced to concurrent terms of between two and five years. On the other three felony charges, docket numbers 08-S-491, -750, and months of the minimum and all of the maximum terms suspended for seven concurrent terms of between two and seven years at the state prison, with six numbers 08-S-753, -755, and -756, the defendant was sentenced to felony charges in December 2009. On three of the felony charges, docket testimony in a domestic violence petition. The defendant pleaded guilty to the witness tampering, alleged that the defendant attempted to influence Nichols’s 3

conduct. See criminal contempt as a crime. See We have long recognized that criminal contempt amounts to criminal, e.g., Mine Workers v. Bagwell, 512 U.S. added)). Similarly, the United States Supreme Court has consistently treated any way abolish the common law crime of criminal contempt . . . .” (emphasis Code. See State v. Martina, 1 p. 3 35 N.H. 111, 116 (1991) (“RSA 625:6 does not in that contempt is not a crime simply because it is not defined in the Criminal Kosek, 151 N.H. 722, 726 (2005). We have expressly rejected the argument matter in litigation out of which the contempt arose.” In the Matter of Kosek & law – a specific and substantive offense that is separate and distinct from the been punished for a criminal offense.”). “Contempt is an offense at common criminal contempt and sentenced therefor to imprisonment, the defendant has State v. Goodnow, 140 N.H. 38, 40 (1995) (“Having been found in

find that the defendant engaged in criminal conduct.” State v. Kelly N.H. 267, 270 (1992). defendant has violated . . . [a] condition of good behavior, a trial court must “To impose a suspended or deferred sentence on the ground that the compelling the defendant to comply with a court order.” State v. Wallace, 1 p. 3 36 sentence because incarceration is punitive and not for the purpose of imprisoned for a determinate amount of time without the ability to purge the citations omitted). A defendant convicted of criminal contempt “may be We review the trial court’s application of the law to the facts de authority and vindicate the dignity of the court . . . .” Id. (quotations and contempt differs from civil contempt in that its purpose is to protect the ordinary criminal proceedings. We disagree. contempt of court. Cf criminal contempt must be afforded the same due process guarantees as in. State v. Nott, 149 N.H. 280, 282 (2003). “Criminal occurs outside the presence of the court can constitute indirect criminal considered a crime for purposes of establishing that a defendant charged with 390, 391 (2009) (quotations omitted). Violation of a sentence condition that crime under the Criminal Code. He contends that criminal contempt is only behavior in his felony sentencing orders because contempt of court is not a, 159 N.H. The defendant first argues that he did not violate the condition of good

See State v. City of Dover, 15 p. 3 3 N.H. 181, 185 (2006). felony sentences. We examine his arguments in turn. novo. misdemeanor sentences could result in imposition of portions of the suspended imposed, he lacked notice that violating the conditions of his later

because his call never connected; and ( p. 4 4) when his felony sentences were insufficient evidence to prove the defendant violated the no-contact condition the attempted call constituted criminal or non-criminal contempt; ( p. 3 3) there was 4

release). crime under state law, thereby violating the terms of his federal supervised before federal court was sufficient to establish that his conduct constituted a defendant’s state court guilty plea was only to a violation-level offense, evidence United States v. Chatelain, 360 F.3d 11 p. 4 4, 124-25 (2d Cir. 2004) (though cannot say that the trial court unsustainably exercised its discretion. Cf. criminal contempt of court. Because the record supports those findings, we also found that this conduct was sufficiently serious to constitute an attempted the defendant committed the underlying act of dialing Nichols’s number, and Here, the superior court found by a preponderance of the evidence that

unsustainable exercise of discretion. Kelly, 159 N.H. at 391. usage). We review the trial court’s imposition of a suspended sentence for an may be gleaned from related statutes, prior decisions, or generally accepted avoid constitutional vagueness need not be contained in the statute itself, but omitted)); State v. Fitanides, 139 N.H. p. 4 425, 427 (1995) (necessary specificity to existing law the unlawfulness [under the Constitution] is apparent” (quotations process fair warning requirement is satisfied “if, but only if, in the light of preof holding public official liable for violating federal civil rights statute, due conduct. Cf conviction. United States v. Lanier, 520 U.S. 259, 271-72 (1997) (in context that his knowing violation of a court order could be treated as criminal hearing to determine the severity of his underlying offense. However, contempt is well-established and thus the defendant was on sufficient notice improperly imposed his suspended felony sentences without having held a imposed does not change this analysis because the law regarding criminal judged in retrospect based upon the punishment given, the superior court the classification of a contempt as criminal depends on the sentence actually He argues that since contempt has no fixed penalty and its seriousness is only proof of the commission of the underlying acts.” Id whether his contempt was, in fact, criminal or merely a violation-level offense.. at 540. The mere fact that the fact of a criminal conviction for the acts which constitute the violation or by him of criminal contempt since it did so without holding a hearing to determine N.H. 538, 542 (2008). The State can meet this burden “either by establishing Next, the defendant argues that the superior court prematurely convicted defendant committed a violation of a suspension condition. State v. Gibbs, 157 a trial court need only find, by a preponderance of the evidence, that the II sentence. Rather, when imposing portions of a previously suspended sentence, condition of good behavior in his felony sentencing orders. of a crime is not a prerequisite to the imposition of a suspended

sentences, the defendant engaged in criminal conduct and violated the Thus, having attempted to violate the no-contact order in the misdemeanor 821, 826 (199 p. 4 4) (“Criminal contempt is a crime in the ordinary sense . . . .”). the evidence standard that, with the purpose of contacting Nichols in violation p. 5 from the prison was sufficient to establish by the requisite preponderance of conclude that the defendant’s conduct in dialing Nichols’s telephone number comply with the order.” Based upon our review of the record, however, we challenges the sufficiency of the evidence to prove his “intentional failure to his knowledge of that order; thus, we do not address those issues. Rather, he The defendant does not challenge the validity of the no-contact order, or

for the crime that was attempted . . . .” RSA 629:1, IV (2007). RSA 629:1, I (2007). “The penalty for attempt is the same as that authorized

of the crime.

constituting a substantial step toward the commission

as he believes them to be, is an act or omission

omits to do anything which, under the circumstances with a purpose that a crime be committed, he does or A person is guilty of an attempt to commit a crime if,

proceeding in question. Cf State, could have found guilt by the standard of proof applicable to the defendant had knowledge.” State v. Hancock evidence and all reasonable inferences from it in a light most favorable to the defendant has intentionally failed to comply with a valid order of which the the defendant must prove that no rational trier of fact, viewing all of the “Criminal contempt is a sanction imposed by the trial court when a In general, to prevail on his challenge to the sufficiency of the evidence,

conditions had occurred.” Gibbs proved, by a preponderance of the evidence, that a violation of the suspension failure to comply with the order. Nott, 149 N.H. at 282. Further: “independently evaluat[e] the evidence before it to determine whether the State order, the defendant’s knowledge of the order, and the defendant’s intentional prove indirect criminal contempt, the State must prove the existence of a valid judge having personal knowledge of every element of contempt.” Id. at 305. To “Indirect contempt is committed outside the presence of the judge, without the , 156 N.H. 301, 304 (2007).

this claim of legal error is de evidence to find an attempted criminal contempt. We disagree. novo. See State v. Kay, 162 N.H. 237, 243 (2011). blocked his telephone call to Nichols and, thus, the State had insufficient, 157 N.H. at 542. Our standard of review on

When imposing a previously suspended sentence, the trial court must

condition of his misdemeanor sentences because the prison phone system Next, the defendant argues that he did not violate the no-contact

Affirmed

under the Federal Constitution. no greater protection than the State Constitution, we reach the same result Since, in this area of law, the Federal Constitution affords the defendant

DALIANIS, C.J.