2011-083, State of New Hampshire v. Robert L. Baker

The defendant, Robert Baker, appeals an order of the

for the defendant. ___________________________ Decato Law Office on the brief and orally), THE SUPREME COURT OF NEW HAMPSHIRE

general, on the memorandum of law and orally), for the State.

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

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

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as petitions, stating, in pertinent part: p. 2 Following the hearing, the trial court denied all of the defendant’s

he liked “waking up in the morning with a clear head.”

told the court that Alcoholics Anonymous was “a big part” of his life, and that alcohol was his “best friend,” it was really his “worst enemy.” The defendant He told the court that it took him some time to realize that although he thought

that he took “full responsibility for everything” that had happened in his life.

The defendant also addressed the court at the hearing, telling the court

license and that he now is “a delivery guy,” who “drives a tractor trailer.”

free. The attorney reported that the defendant has a commercial driver’s

defendant’s wife has also ceased drinking, and the household is now alcohol-

worked through their issues and recently celebrated nine years together. The couple” of the offenses involved the defendant’s wife and that the couple had weekly and sponsoring others in that program. The attorney said that “a

meets on Sunday mornings and Alcoholics Anonymous, attending two meetings

said, the defendant has been actively involved in a “Living Sober” group that defendant had “made efforts to turn his life around.” Since 2003, the attorney the product of alcohol abuse,” and that since his last conviction in 2003, the

The defendant’s attorney explained that the convictions at issue “were

attorney were present; the State did not appear. annulment petitions based upon offers of proof. The defendant and his

In November 2010, the trial court held a hearing on the defendant’s

record. them. The DOC opined that these were mistaken entries on the defendant’s and there were “definitely” no records to show that he had been convicted of

which the defendant was never prosecuted, the DOC noted that there were no appeared to be “beneficial[ ]” to him. With regard to the two 2004 offenses for petitions regarding offenses for which he was convicted because the petitions

(DOC). The DOC recommended that the court grant each of the defendant’s

investigations conducted by the New Hampshire Department of Corrections To support his petitions, he submitted the results of the annulment

simple assault, see

631:4 (2007) (amended 2010). arrest for criminal threatening for which he was never prosecuted, see RSA for which he was never prosecuted, see RSA 631:2-a; and (7) a reported 2004

RSA 631:4 (Supp. 2002) (amended 2003, 2010); (5) his 2003 conviction for (2007) (amended 2007); (4) his 2003 conviction for criminal threatening, see annulment under our unsustainable exercise of discretion standard. See p. 3 We review the trial court’s denial of the defendant’s petitions for

thus, it appears that inclusion of these two “arrests” on the defendant’s record

The DOC’s records state that there were “no arrest[s]” for the 2004 offenses;

State “[took] no position” on the defendant’s motion. This appeal followed.

appeal does not demonstrate that these offenses even involved actual arrests. action taken” with regard to these offenses. Moreover, the record submitted on observes that “there is no evidence that any charges were filed or any other

contributing to his problems and become a valuable member of society.” The many offenders do; take responsibility for his actions, stop the behavior that is his letter, the chief observed that the defendant was “doing what we hope so

denial of his petitions to annul the records of the two 2004 arrests. The State

letter from the chief of his town’s police department to support his motion. In

with the public welfare.” RSA 651:5, I; see

The State does not oppose the defendant’s appeal of the trial court’s

in accordance with the provisions of this section.”

The defendant unsuccessfully moved for reconsideration and submitted a

grant these petitions.

annulment will assist in the petitioner’s rehabilitation and will be consistent response to a timely petition for annulment “if in the opinion of the court, the conviction and sentence of any person may be annulled . . . at any time” in

It would be inappropriate, and inconsistent with the public welfare, to

defendant in this case was convicted or arrested, “the record of arrest,

finding of not guilty, or whose case was dismissed or not prosecuted, may crimes). Under RSA 651:5, II, “[a]ny person whose arrest has resulted in a imprisonment term are not eligible for annulment), XIII (defining violent

a significant period of time, and was incarcerated on multiple occasions. defendant has a long record of violent criminal behavior, stretching over counts of the same offenses, is consistent with the public welfare. The

certain defined crimes, which do not include any of the offenses for which the RSA 651:5 (Supp. 2012) provides, in pertinent part, that except for

of obstruction of justice, and any offense for which petitioner received extended

Disorderly Conduct, together with his records of arrests for additional

(2001) (explaining unsustainable exercise of discretion). v. Meister, 125 N.H. 435, 438 (1984); cf. State v. Lambert, 147 N.H. 295, 296

conviction for Criminal Threatening, Simple Assault, Resisting Arrest and Court is not persuaded that annulment of this defendant’s record of annulment if it finds it to be “consistent with the public welfare.” The

have his criminal record annulled, but rather the court “may” grant The statute makes it clear that the defendant is not entitled to p. 4 Reversed in part; vacated in

consider any relevant factor.

identifying potential factors, we do not intend to limit the court’s discretion to to pursue a calling otherwise prohibited to those convicted of a crime. By rehabilitation – for example, by allowing him to obtain a professional license or

and the particular manner in which annulment would aid the defendant’s

of public record. Cf last conviction, against the public interest in keeping his convictions a matter

defendant’s age at the time of each conviction, the time span of the convictions, such factors as the number and circumstances of the convictions at issue, the (quotations omitted)). Thus, in exercising its discretion, the court may consider

such as evidence of the defendant’s exemplary conduct and character since his

certain crimes are eligible for annulment, and others are not. See a person freed from any disabilities” associated with criminal record circumstances that led to them. The legislature has already determined that

public welfare, the trial court should weigh the factors in favor of annulment, convicted of that offense. In deciding whether annulment is consistent with the determined is eligible for annulment, solely because the defendant was DALIANIS, C.J, and HICKS and LYNN, JJ., concurred.

part; and remanded with the public welfare. See prove that “need for the availability of records” outweighs “desirability of having defendant’s convictions without considering the specific facts and it was not persuaded that annulling the defendant’s convictions was consistent The trial court stated that based upon the 2004 reported arrests, in part,

deny a petition to annul the record of an offense, which the legislature has

2012) (discussing expunging criminal records under statute requiring State to On remand, the trial court may not consider simply the fact of the. In re Lobasso, 33 A.3d 540, 548 (N.J. Super. Ct. App. Div.

circumstances test); cf

proceedings. See considered the 2004 arrests, we vacate its decision and remand for further Accordingly, it would be inconsistent with legislative intent for a trial court to

clearly gave that evidence no weight). threatening. admitted in sentencing, sentence must be reconsidered unless trial court annul the records of the 2004 reported arrests for simple assault and criminal Accordingly, we reverse the trial court’s denial of the defendant’s petitions to. Lambert, 147 N.H. at 296 (if improper evidence is when unclear weight trial court gave to factors comprising totality of

State v. Sousa, 151 N.H. 297, 305 (2004) (remand required

on the record before us how the trial court would have ruled had it not

trial court erred when it denied these two petitions for annulment. was the result of mistake. Under these circumstances, we conclude that the