State of New Hampshire v. Jerry Newton

trial court (Brown, J.) sentenced the defendant to serve, among other things, 7½ -15 years in the New Hampshire State Prison, stand committed. S 45. At that time, the defendant moved, pursuant to RSA 597:1-a, for release pending appeal. See S 46. The trial court denied his motion. Id. The defendant then filed a timely mandatory appeal notice to this Court. See NOA. The defendant did not, either at that time or since, challenge the trial court’s initial determination denying his release pending appeal. On May 31, 2019, this Court stayed the defendant’s direct appeal, allowing him the opportunity to file and litigate a post-conviction motion for new trial in the trial court. The defendant filed his motion for a new trial (based on ineffective assistance of counsel) with the trial court on June 17, 2019.

On March 24, 2020, the trial court (Brown, J.) denied the defendant’s motion for a new trial. DNOA 16. The trial court found trial counsel’s disclosure of certain text message communications to the State prior to trial was deficient. Id. at 28. Nonetheless, the trial court concluded that the guilty verdicts were not prejudiced because the State presented overwhelming evidence to prove the defendant’s guilt. Id. at 31. The trial court agreed, however, to schedule a sentence review hearing because it acknowledged it relied heavily on the text messages during sentencing. Id. at 34.

On July 13, 2020, at the State’s request, the trial court (Brown, J.) stayed the sentence review hearing to allow for both parties to file discretionary appeals from the its rulings. Id. at 38 The defendant did not

“S__” refers to the transcript of the sentencing hearing held on October 4, 2018 and page number.

object to the stay, nor did he make any request at that time for release pending appeal. Id. On July 24, 2020, the defendant appealed the trial court’s denial of his motion for a new trial. DNOA 1-4. The State timely cross-appealed the trial court’s deficiency determination and its grant of a sentence review hearing. See generally CNOA 1-12. This Court accepted the discretionary appeals and consolidated them with the defendant’s direct appeal.

On December 23, 2020, the defendant filed a motion for bail pending appeal based on “extenuating circumstances” in this Court. On December 28, 2020, the defendant filed a nearly identical motion in the trial court. He then withdrew his motion in this Court. The State objected to the defendant’s motion filed in the trial court. On January 11, 2021, the trial court (Brown, J.) denied the defendant’s motion. The defendant now appeals that decision.

RSA 597:1-a governs a defendant’s release pending appeal. See State v. Clarke, 151 N.H. 56, 58 (2004). “Granting bail pending appeal is within the discretion of the trial judge.” State v. Marini, 117 N.H. 71, 73 (1977). Unless specifically challenged, this Court “assumes that the trial court made all findings necessary to support its decision.” State v. Silva, 158 N.H. 96, 102 (2008). “The Court will reverse the trial court’s decision only on evidence of a compelling nature.” Marini, 117 N.H. at 73. RSA 597:1-a requires the trial court to deny release for a defendant who has been found guilty of a felony, sentenced to a term of imprisonment, and made a good faith representation that he or she shall file a timely appeal, unless the defendant can prove: (1) By clear and convincing evidence, taking into consideration the nature of the crime and the length of the sentence imposed, that the person is not likely to fail to appear to answer the judgment following the conclusion of the appellate proceeding, or to pose a danger to himself or herself or to any other person or the community, or to intimidate witnesses, or otherwise to interfere with the administration of justice; and (2) By a preponderance of the evidence, that the appeal will not likely be frivolous or taken merely for delay.

RSA 597:1-a, III(a)(1)-(2).

1. The Trial Court Did Not Err in Rejecting the Defendant’s Argument that Extenuating, Temporary Circumstances Necessitated His Release on Bail.

The defendant argued in the trial court for release based on what he termed “extenuating circumstances.” See BA 15. 2 These extenuating circumstances included temporarily caring for his spouse while she recovers from surgery (approximately six weeks), and also working during this period. See id. The defendant’s bail request relied upon these extenuating, temporary circumstances as independent grounds for release on bail, wholly apart from the factors under RSA 597:1-a, III(a). See id. at 6. That is, the defendant made no argument to the trial court that these extenuating, temporary circumstances made it any more likely that he would not flee the jurisdiction once released. See id. The trial court rejected his argument and sustainably exercised its discretion in doing so. The legislature has set forth the exclusive considerations for release pending appeal, which are set forth above. See RSA 597:1-a, III(a)(1)-(2). There is no support for the defendant’s argument that extenuating, temporary circumstances necessitate his release. The defendant cited no statute, rule, or relevant legal principle before the trial court to support this argument. The defendant is not entitled to a medical parole under these circumstances, see RSA 651-A:10-a, nor does he cite authority for compassionate release under such circumstances.

In his memorandum before this Court, the defendant abandons this original argument. Instead, he now couches the “extenuating circumstances” directly under the factors set forth in RSA 597:1-a, III(a). He cannot do so, however, because he did not make this argument to the trial court, and as a result, his argument on this basis is not preserved for review. See State v. Plantamuro, 171 N.H. 253, 258 (2018) (the Court does not consider arguments raised on appeal that were not presented to the trial court).

Even assuming a legal mechanism exists for granting release outside of RSA 597:1-a, III(a), the temporary circumstances alleged here do not support release. The trial court (Brown, J.) already rejected the defendant’s request that he not be incarcerated, and instead be allowed to work. At sentencing, the defendant’s trial counsel stressed, “If [the defendant is] incarcerated, for even a brief amount of time, his business probably will not make it.” S 37. The trial court then not only imposed a lengthy stand committed prison sentence, but also, at the same hearing, denied his motion for release pending direct appeal. S 46. The defendant attempts to make the same argument here, but this time with less force given the temporary nature of the alleged “need” to work. The trial court sustainably exercised its discretion in rejecting his argument once again. That leaves the defendant’s argument that he must provide care to his spouse during her temporary recovery. But, this argument is undercut by his dual assertion that he intends to also work during this time. Further, the defendant’s release is not necessary to care for his spouse. While the defendant would like to care for his spouse while she recovers, he is not the only individual able to do so, as is evidenced by his memorandum. The

defendant states that the surgery went well and that his adult daughter is caring for his spouse. See DM 3. The defendant’s spouse is being taken care of and she will be recovered in approximately one month. There is no need to release the defendant on this basis.

2. The Trial Court Did Not Err in Rejecting the Defendant’s Additional Rationale for Release.

Though the defendant’s claims of extenuating circumstances formed the primary basis for his requested relief below, he also argued, separately, that he could satisfy the elements of RSA 597:1-a, III(a). The trial court sustainably exercised its discretion in denying the defendant’s motion on this basis.

First, RSA 597:1-a, III(a) does not authorize a defendant’s release on the basis of a discretionary appeal following a post-conviction proceeding. The language of RSA 597:1-a, III(a) is substantially similar to the Federal Bail Reform Act of 1984, see 18 U.S.C.A. § 3143(b). That Act provides, in pertinent part: The judicial officer shall order that a person who has been found guilty of an offense and sentenced to a term of imprisonment, and who has filed an appeal or a petition for a writ of certiorari, be detained, unless the judicial officer finds: (A) by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if released... and (B) that the appeal is not for the purpose of delay and raises a substantial question of law or fact likely to result in (i) reversal, (ii) an order for a new trial, (iii) a sentence that does not include a term of imprisonment, or (iv) a reduced sentence to a term of imprisonment less than the total of the time already served plus the expected duration of the appeal process.

Federal courts interpret this Act to “not apply to [defendants] seeking post-conviction relief.” United States v. Mett, 41 F.3d 1281, 1282 (9th Cir. 1994); see also United States v. Kelly, 790 F.2d 130, 139 (D.C. Cir. 1986). This Court should interpret RSA 597:1-a, III(a) so that it does not apply to a defendant who is seeking post-conviction relief. The defendant’s argument in the trial court as to RSA 597:1-a below was premised on the purported lack of frivolousness of his discretionary appeal issues in a “post-conviction review proceeding.” See Sup. Ct. R. 3 (decisions on motions for new trial are post-conviction review proceedings excluded from the mandatory appeal definition). He did not purport to argue any issues in his original direct appeal notice were not frivolous (and in fact, the defendant has not argued any of those issues in his recent brief). RSA 597:1-a, III(a), which is similar in language to the Federal Bail Reform Act, simply does not allow for relief under these circumstances.3 The State acknowledges that the defendant has not yet exhausted his direct appeal, and the parties’ discretionary appeals have been consolidated with the direct appeal. But this does not alter the fact that the defendant’s argument for release was premised solely on his post-conviction motion for a new trial. The defendant does not challenge, nor has he ever challenged, the trial court’s original denial of release prior to his direct appeal, and it is far too late for him to do so now. This bars the defendant’s requested relief.

The defendant contends this interpretation would prevent consideration of bail “even for a post-conviction defendant who had DNA evidence demonstrating her innocence of the offense, a reliable confession by the person who actually committed the crime, etc.” DM 5. However, in the defendant’s hypothetical, the post-conviction defendant could anticipate that the post-conviction court would vacate his conviction and, as a consequence, his sentences. In this circumstance, RSA 597:1-a simply is not the appropriate statute for release.

The defendant also argues that if the State’s interpretation is correct, then this Court should look to the final issue on appeal: “the lower court’s exclusion of evidence of out-of-court statements probative of his mental state, in determining whether his appeal is nonfrivolous.” DM 6. This Court cannot do so, however, because the defendant never made this argument before the trial court in support of his release. See generally BA 1-7. Thus, this argument is not preserved. See Plantamuro, 171 N.H. at 258. While the defendant only added this issue recently and after the trial court’s order, this does not excuse the fact that the defendant did not raise it in time for the trial court to consider it as part of his bail motion. Even if defendants seeking post-conviction appeals are eligible to seek relief under RSA 597:1-a, III(a), the defendant’s argument on this basis was far too late. RSA 597:1-a, III(a) requires motions for release pending appeal, in the first instance, be made prior to appeal. “In matters of statutory interpretation, this Court is the final arbiter of the legislature’s intent as expressed in the words of the statute considered as a whole.” State v. Papillon, 173 N.H. 13, 34 (2020). This Court looks to “the language of the statute itself, and, if possible, constue[s] that language according to the

plain and ordinary meaning.” Id. The Court interprets “legislative intent from the statute as written and will not consider what the legislature might have said or add language it did not see fit to include.” Id. By its terms, the introductory paragraph of section III(a) limits its application to a defendant: (1) who has been found guilty of a felony; (2) who has been sentenced to a term of imprisonment; and (3) who has made a good faith representation that he or she shall file a timely appeal. Id. The word “shall, ” expresses future conduct. Webster’s Third Int’l Dictionary, at 2085 (2002) (defining “shall” as an expression of “what will likely happen in the future.”). Importantly, this supports a reading that once the appeal is filed, a defendant has simply waived his opportunity to seek release in the first instance, particularly where he could have made the same argument prior to the appeal.

The language of the Federal Bail Reform Act is again relevant here. The language of the Act requires a defendant to actually file his appeal prior to consideration of bail pending appeal. See 18 U.S.C. § 1343(b)(1) (applying to a defendant “who has filed an appeal.”). The legislature, which clearly borrowed from the Federal Bail Reform Act in RSA 597:1-a, did not adopt this language. Instead, the legislature limited requests for relief to defendants who “made a good faith representation that he or she shall file a timely appeal.”

Here, the defendant’s post-conviction motion was decided in March 2020, and the court thereafter stayed the sentence review hearing. The defendant had ample time in which to raise the issue of bail pending appeal. He chose not to. Instead, he filed his discretionary appeal on the post-

conviction motion July 24, 2020. The time for the defendant’s request has simply come and gone.

The defendant now argues that the plain and obvious purpose of the language is to prevent people from seeking bail who have no intention of filing an appeal, thereby misleading the sentencing court. He argues that the State’s interpretation would lead to an “absurd” result if a “highly- prepared” advocate filed an appeal before seeking bail. He, however, provides no rationale for why this would be “absurd.” Statutes and rules mandating the appropriate timing to raise an issue exist in all levels of the courts, and do so for a reason. Here, by using the word shall, as opposed to the language Federal Bail Reform Act, the legislature established a requirement that the initial request take place before the filing of the notice of appeal.

The defendant also cites State v. Gubitosi, 153 N.H. 79, 81 (2005) in support of an alternative reading, and notes that, below, the State agreed that the trial court retains jurisdiction to consider “issues of bail” pending appeal. DM 6. The defendant’s argument wholly misses the point. The State is not arguing that the trial court lacked jurisdiction to consider the defendant’s bail argument. Rather, the State contends the bail statute requires the defendant move for release, in the first instance, prior to filing an appeal. If the defendant fails to do so, he may not thereafter seek relief. The argument is one of timing and waiver, not of jurisdiction. Finally, assuming the Court reaches the merits, the trial court sustainably exercised its discretion in denying bail. The trial court found the State’s evidence overwhelming to convict the defendant on three class A felony counts of financial exploitation of a vulnerable adult. That is, the

defendant was convicted of taking more than $300, 000 from his mother, who suffered from dementia. The defendant was thereafter sentenced to a lengthy stand committed term. Both of these are factors that weigh in support of rejecting bail. See RSA 597:1-a, III(a)(1) (the court may consider the nature of the crime and the length of the sentence in determining whether the defendant poses a danger to the community or will otherwise interfere with the administration of justice.). Moreover, the fact that the trial court determined the State’s evidence to convict was of an overwhelming nature supports that his arguments to challenge his convictions are frivolous.

Based on the foregoing, the trial court sustainably exercised its discretion in denying the defendant’s motion for bail based on extenuating circumstances. The State requests that the Court deny prayer B of the defendant’s motion.

I, Bryan J. Townsend, II, hereby certify that a copy of the foregoing State’s memorandum in opposition to defendant’s prayer to revoke trial court’s detention order was served on Theodore M. Lothstein, Esquire, counsel for the defendant, through this Court’s electronic filing system.

January 29, 2021 /s/Bryan J. Townsend, II Bryan J. Townsend, II