2012-802, State of New Hampshire v. Barion Perry

The defendant, Barion Perry, appeals an order of the Superior

brief and orally, for the defendant. David M. Rothstein, deputy chief appellate defender, of Concord, on the

attorney general, on the brief 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

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as seven suspended for five years. And it starts after my max is done

p. 2 THE DEFENDANT: Three and a half - - three and a half to

. . .

THE DEFENDANT: Yes, sir. THE COURT: Pardon?

THE DEFENDANT: A suspended sentence - -

current charges, is that right? they are consecutive to the sentences that you’re serving on the 2 on these two new charges are concurrent with one another, but terms of the agreement to be? THE COURT: Can you tell me, please, what you understand the

But, you know, sometime after you’re released from jail, but

THE COURT: Okay. Right, on - - okay. And these sentences

. . .

impose the suspended sentences, okay?

on my old charges.

THE DEFENDANT: Yes, sir.

understand. Let’s suppose that I accept this agreement and I THE COURT: Here’s what I want to make sure you

sentences be imposed, do you understand? some further trouble, at that point the State could ask that these while you’re still subject to the suspended sentences, you get into

09-S-1246), see RSA 633:3-a. At that time, the defendant was serving a

THE DEFENDANT: Yes, sir.

calls for you to receive suspended sentences, right? THE COURT: . . . As I understand it, the plea agreement here

portions of the colloquy are as follows: court (Lynn, C.J.) engaged in a colloquy with the defendant. The pertinent numbers 07-S-231 and 232). During the plea and sentencing hearing, the sentence of three to ten years on unrelated burglary and theft charges (docket the State within five years of the Defendant’s release on docket

p. 3 suspended sentence may be imposed after a hearing brought by

behavior and compliance with all of the terms of this order. Any sentences are suspended. Suspensions are conditioned upon good All of the minimum sentence[s] and all of the maximum

years. The sentences are to be served as follows. Prison for not more than seven years, no less than three and a half The Defendant is sentenced to the New Hampshire State

sentencing order, the State may move at any time to have the suspended

imposed.

violates any of the terms and conditions of this addendum or the Additionally, an addendum to the sentence reads, “If the defendant brought by the State within five years of release on 07-S-231-2.” numbers 07-S-231 and 232) on administrative home confinement. serving the sentence on the prior burglary and theft charges (docket 2011. At the time of the 2011 burglary and theft, the defendant was

but consecutive to docket numbers 07-S-231 and 232 are and the following sentences, which are concurrent with each other, . . . [U]pon Defendant’s plea of guilty, findings of guilty are entered

both state, “Any p. 3 suspended sentence may be imposed after a hearing

jury of burglary and theft, arising from events occurring on November 14, Subsequently, on July 19, 2012, the defendant was convicted by a All suspended for a period of five years from the date of your

or deferred sentence imposed.” (Emphasis added.)

as follows: charges. The court accepted the plea, and announced the defendant’s sentence (Emphasis added.) After the colloquy, the defendant pleaded guilty to both

(Emphasis added.) The mittimi for docket numbers 09-S-1245 and 1246

numbers 07-S-231 and 232.

sentences on. docket numbers 07-231 and 232, which you’re already serving

THE DEFENDANT: Yes, sir.

1245 and 1246, would be three and a half to seven, consecutive to THE COURT: . . . [T]he sentence on these two new charges,

release on the current ones that you’re serving, is that right? for an unsustainable exercise of discretion.” State v. Gibbs, 157 N.H. p. 4 “We review a trial court’s decision to impose a suspended sentence

unclear. sentence did not violate due process because the trial court was not administrative home confinement; and (3) imposition of the suspended

sentence could be imposed once the defendant was “released” on

suspended sentence; (2) under the sentencing order, the suspended colloquy and sentencing order is clear, and permits the imposition of the In response, the State argues, in substance: (1) the language of the

process because he did not have fair notice of the terms of his sentence.

that the trial court’s imposition of the suspended sentence violated due

thus had not been released from custody. The defendant also argues serving his prison term through administrative home confinement and longer in prison at the time of the 2011 burglary and theft, he was

occurring after his release from custody; and (2) although he was no

commencement of the suspended sentence term. See State v. Kierstead,

between him and the court, dictate that it be applied only to conduct to seven years on another charge, to be served consecutively. Id. at 803. terms of the suspended sentence, as discussed during the colloquy his release from custody. His argument rests on two premises: (1) the

may be imposed after the sentence is announced, but before

to be served concurrently, and suspended a sentence of three and a half imposing a suspended sentence based on conduct that occurred prior to On appeal, the defendant contends that the trial court erred in

The trial court disagreed, and imposed the suspended sentence. suspended sentence. Under New Hampshire law, a suspended sentence release, we conclude that the court did not err in imposing the sentence, and that the suspension period did not commence until such a

unreasonable to the prejudice of his case.” State v. Ainsworth, 151 N.H. trial court sentenced the defendant to three to six years on two charges, 141 N.H. 803, 804 (1997) (per curiam). For example, in Kierstead, the

administrative home confinement does not qualify as such a “release.”

released from custody when the trial court imposed the suspended Assuming, without deciding, that the defendant had not been

691, 694 (2005).

demonstrate that the trial court’s rulings were clearly untenable or 538, 540 (2008). “To meet this standard, the defendant must

from custody on docket numbers 07-S-231 and 232, and that the five-year suspension period would not commence until his “release” numbers 09-S-1245 and 1246. The defendant objected. He argued that

charges, the State moved to impose the suspended sentence on docket After the defendant’s conviction on the 2011 burglary and theft majority of federal and state courts in holding that a suspended

p. 5 punishment at a later date and under what conditions the sentence may

impression for this court. Today we join the overwhelming impose a previously suspended sentence presents an issue of first 5 651:20, I (1996), the proper time period for the trial court to

as well as the extent to which the court retained discretion to impose plain and certain terms what punishment has been exacted by the court a defendant and the society which brought him to court must know in “We have held that at the conclusion of the sentencing proceeding,

Constitution and rely upon federal law only to aid our analysis. State v.

time of imposition of the sentence or at any time thereafter,” RSA constitutional law, we will review it de novo. See State v. Van Winkle, Because the defendant’s due process argument raises a question of

Ball, 124 N.H. 226, 231-33 (1983).

Federal Constitutions. We first address his claim under the State 160 N.H. 337, 340 (2010). The defendant relies upon both the State and has determined that the trial court may suspend a sentence “at the not in effect at the time of its violation. Although the legislature court was not authorized to impose a suspended sentence that was Kierstead — violated his due process rights. We disagree. maintains that the resulting ambiguity here — which did not exist in any information contrary to the sentencing order. Id. The defendant there was no indication that the trial court provided the defendant with commenced. Id. at 804. We reasoned: of the trial court’s sentencing order and plea colloquy. In Kierstead, imposition of the suspended sentence directly contradicted the language distinguishable from Kierstead because here, unlike in Kierstead, the repeatedly telephoning the victim from prison. Id. at 803-04. On appeal, Nevertheless, the defendant argues that this case is

Id. (emphasis added).

charge had not yet commenced to run. He argues that the trial commencement of the suspended sentence or probationary term. by a defendant after imposition of the sentence but before sentence may be imposed or probation revoked for acts committed

as a result of this violation because the suspension period had not

because the defendant violated a no-contact provision of the sentence by The trial court later imposed a portion of the suspended sentence

the “no contact” order, his suspended sentence on the burglary The defendant notes that on December 7, 1995, when he violated

the defendant argued that his suspended sentence could not be imposed commencement of the suspended sentence” term. Kierstead, 141 N.H. at

p. 6 than does the State Constitution under these circumstances. See may be imposed . . . for acts committed by a defendant . . . before The Federal Constitution offers the defendant no greater protection

constitutional due process rights.

sentence could be imposed. As we have noted, “a suspended sentence a later date.” Burgess, 141 N.H. at 52. The language of the mittimi and of the five-year suspension period, rather than the period in which the my old charges,” spoken by the defendant, all refer to the commencement defendant’s suspended sentence was not a violation of his state

display good behavior. See id. The defendant declined to take advantage

the sentencing order, the State may move at any time to have the Burgess, 141 N.H. at 52; Sattazahn v. Pennsylvania, 537 U.S. 101, 115

the extent to which the court retains discretion to impose punishment at the period of incarceration. In addition, the trial court “ma[d]e clear . . . release,” spoken by the trial court, and “starts after my max is done on of this opportunity. Accordingly, we hold that the imposition of the signified the start of the five-year sentence suspension that would follow sentence is to provide a criminal defendant with the opportunity to Finally, as noted by the trial court, the purpose of suspending a

defendant violates any of the terms and conditions of this addendum or 804. addendum to the sentence, which the defendant signed, states, “If the sentence could be imposed prior to the commencement date. The

conditions the sentence may be modified.” State v. Burgess, 141 N.H.

“after you’re released from jail” and “five years from the date of your numbers 07-S-231 and 232.” The trial court’s use of the term “release” the language from the plea colloquy is not ambiguous. The phrases suspended or deferred sentence imposed.” (Emphasis added.) Moreover,

the addendum to the sentence clearly indicate that the suspended

discretion to impose punishment at a later date and under what

suspension period commenced upon the defendant’s “release on docket Here, it was clear at the time of sentencing that the five-year be modified.” State v. Almodovar, 158 N.H. 548, 550 (2009) (quotation

omitted). defendant the exact nature of the sentence.” Id. (quotation and brackets original). “The sentencing order must clearly communicate to the 51, 52 (1996) (quotation, ellipses, and brackets omitted) (emphasis in

punishment it is exacting as well as the extent to which the court retains make clear at the time of sentencing in plain and certain terms what and brackets omitted). “Due process requires a sentencing court to p. 7 7

A f f i r m e d .

Constitution as we do under the State Constitution. (2003). Accordingly, we reach the same result under the Federal

DALIANIS, C.J., and CONBOY and BASSETT, JJ., concurred.