State of New Hampshire v. Michael R. Smith

1. Whether the Superior Court erred when it determined Appellant was competent to stand trial and to represent himself at trial.

Issue preserved by: Appellant’s Motion to Determine Competency, S.App. 3-5; the Superior Court’s order on that competency motion, S.App. 18-19; the Superior Court’s subsequent sua sponte Orders for Competency Evaluation, S.App. 20-28; and the Superior Court’s order, App. 16. To the extent the issue is deemed not preserved, the issue is raised as plain error. * 2. Whether the Superior Court erred when ordering restitution.

Issue preserved by: Defendant’s Sentencing Memorandum, App. 364-77; oral argument at sentencing hearing, SH 32-37; the Court’s sentencing order, App. 387-88; Appellant’s Motion for Evidentiary

Hearing on Restitution, App. 400-03; and the Superior Court’s December 14, 2022, Order denying that motion, App. 400. To the extent the issue is deemed not preserved, the issue is raised as plain error.

App. 3-12. All five alleged that Mr. Smith targeted Ms. Kibbe based upon her age or disability, under RSA §651 (1)(d). Id. All the offenses allegedly occurred in late 2017, involved Ms. Kibbe as the victim, and involved property valued at greater than $1, 500. Id.

II. Competency Mr. Smith’s competency to stand trial generally and competency to stand trial pro se were the topic of numerous motions, conferences, evaluations, and court orders. However, the Superior Court never held an evidentiary hearing on competency, and no specific findings of fact about Mr. Smith’s competence were ever made.

Mr. Smith’s first counsel filed a motion for competency evaluation on November 5, 2018. S.App. 3. Counsel was concerned that Mr. Smith appeared to have paranoid delusions; was unable to have meaningful discussions with his attorney; had filed several incoherent pro se motions; and had preexisting mental health issues. S.App. 3-5. The Superior Court promptly granted the motion for an evaluation. S.App. 6.

The Office of Forensic Examiner examined Mr. Smith and prepared a report. S.App. 10-17. The report noted Mr. Smith’s extensive history of mental illness and prescribed medications. Id. However, the examiner could not determine the extent of these deficits because of “poor effort” in the exam, i.e., malingering. S.App. 17. Based upon that examination and a video of a police interview of Mr. Smith, the examiner opined that he was competent to stand trial. S.App. 17.

On July 3, 2019, the court held a status conference. CONF. 1. Mr. Smith was not present. CONF 2:2-3. Appointed counsel disclosed to the Court and the prosecution that the defense had had its own evaluation, which agreed with the State. CONF. 2:17-19. The defense evaluation is not in the record and was not provided to the court.

Appointed counsel then told the court “we’re not asking for a further hearing.” 1 CONF. 2:21-22. Counsel represented that the defense was “assigned [sic] to a judicial finding that Mr. Smith is competent.” CONF. 2:24-25. The court replied that it would enter an order to that effect. CONF. 3:2-4. The court issued an order that same day. The order stated that the defendant did not contest competency, therefore, the court found defendant competent. S.App. 18. The court made no other findings of fact, nor did it reference the report by the State’s examiner. Id.

After the first competency order, Mr. Smith sought to dismiss his counsel and represent himself. App. 17. The Superior Court approved his request after a Faretta hearing. App. 14-15.

Mr. Smith proceeded to file numerous pro se motions, most of which sought to dismiss the case because of a belief that the execution of a search warrant had somehow violated Mr. Smith’s rights. As a result, the Superior Court developed bona fide concerns about Mr. Smith’s competence to stand trial. S.App. 20 & 24.

The Superior Cout, sua sponte, stayed proceedings pending a new competency evaluation, S.App. 23, which the Court specifically ordered to include competency to proceed pro se. S.App. 20-23. In a detailed, thoughtful order, the Superior Court recounted the competency proceedings to that date, including appointed counsel’s concerns about hallucinations, Mr. Smith’s documented mental illness, and the examiner’s finding of malingering. S.App. 24-27. The court found that Mr. Smith’s conduct as a pro se litigant caused the court to question whether he was competent to stand trial. S.App. 25-27. Although much of the court’s concern focused on self-representation by a defendant in the “borderline” or “gray-area” of competency, S.App. 26, it also ordered re-examination of competency to stand trial generally, not just competency to proceed pro se. S.App. 20-22 & 28. The court also cited Mr. Smith’s documented history of mental illness, including specific disorders. S.App. 28.

The State retained a new expert to evaluate Mr. Smith, 2 who examined him and prepared a report. S.App. 29-32. The State’s expert reviewed all the court records regarding competency and the prior evaluation. S.App. 29-30. During the examination, the State’s expert observed Mr. Smith was easily distracted and struggled to remain focused on relevant topics. S.App. p. 31. The State’s expert knew that the first evaluator concluded Mr. Smith had been malingering, S.App. 31, but he did not believe Mr. Smith was malingering now. Id. The State’s expert opined that Mr. Smith suffered from cognitive impairments caused by his medical condition and medication regimen. Id.

Ultimately, the State’s expert concluded that Appellant was competent to stand trial, but not competent to represent himself. S.App. 31. He based this opinion upon Mr. Smith’s fluctuations in perception and cognition, including hallucinations beyond his control or understanding. Id. Further, Mr. Smith’s concentration was impaired in ways that made it difficult or impossible for him to focus. Id.

On March 25, 2021, the parties convened with the court for a status conference. ST 2. Mr. Smith appeared telephonically. ST 3:9-11. The parties discussed what needed to occur next considering the evaluation, and stand-by counsel twice suggested the court hold a competency hearing. ST 5:15-17; 5:25-6:2. The court then asked if any party wanted to challenge the findings, and stand-by counsel deferred to Mr. Smith. ST 6:3-10. Mr. Smith then began arguing that the entire evaluation was incorrect and unreliable. ST 6:25 to 7:17.

The Superior Court then told Mr. Smith and the parties that if there was only one standard for competency, (i.e., no higher standard for pro se defendants) then the court would follow the previous competency finding without further inquiry. ST 7:18-25.

The court decided to have each of the attorneys involved submit a memorandum within several weeks and that it would then decide regarding Appellant’s competence to represent himself. ST 8:24-25 & 9:2-6. Mr. Smith asked the court if he should submit anything, and the court replied that stand-by counsel would be in a better position to prepare a legal memorandum. ST 9:1-6.

The attorneys promptly submitted their respective memorandums. S.App. 33 and S.App. 41. Stand-by counsel’s memorandum offered the legal opinion that under Hart v. Warden, there is only one standard for competency, but offered no position on Mr. Smith’s competence. S.App. 41-42. Mr. Smith, per the trial court’s instructions, submitted nothing.

The court issued an order that “because the defendant has been found by the court to be competent to stand trial, he is therefore competent to represent himself at this time.” Id. The court made no factual findings. Id. No evidentiary hearing was held, and Mr. Smith was never permitted to cross-examine the State’s evaluator.

III. The Trial And Sentencing

The State argued that Ms. Kibbe intended her estate to go to the U.S. Naval Academy, and that Mr. Smith knew that.

The State also argued that Mr. Smith forged several documents to transfer Ms. Kibbe’s estate to himself instead of the Naval Academy. T. 726. The State produced witnesses who testified they never signed or wrote documents purportedly from them, which were used by Mr. Smith. Joan Eldrige testified that she had never notarized the power of attorney bearing her signature and appearing to have been executed by Ms. Kibbe in favor of Appellant. T. 147-54. Nancy Wright testified that she notarized documents for Mr. Smith, but although he was present, Ms. Kibbe was not. T. 227, 230, 250-51. Attorney Greg Wirth testified that he did not write the letter (purportedly from him) that Mr. Smith sent to Mr. Richards, nor any of the letters from him that Mr. Smith gave to various banks. T. 574, 576-77. He also testified Mr. Smith apologized to him for forging letters from him.

Officer Calice Ducey testified to conducting a search of the Kibbe home (where Mr. Smith lived), and that during the search Mr. Smith told her he had drafted powers of attorney and last will and testament for Ms. Kibbe. T. 298-300. Ducey seized Mr. Smith’s computers, and copies of various drafts of powers of attorney and wills. T. 309-10.

A State forensic scientist examined the seized electronics. T. 454. He recovered documents created on the computer, including letters purporting to be from Attorney Greg Wirth, T. 472-73, 481, a general power of attorney for Ms. Kibbe, T. 474, and images of notary public stamps,

The State argued that Mr. Smith used these forged documents to access Ms. Kibbe’s financial accounts. T. 730, 739-740. The State’s case involved multiple financial accounts, but the largest and most significant was the Northeast Credit Union (“Northeast”) account. Christopher Roux, Northeast’s security fraud manager, testified that Mr. Smith added himself to Kibbe’s three accounts using a power of attorney. T. 188, 192. The document was notarized by Joan Eldridge and came with a letter from Attorney Wirth.

$452, 392.51. T. 211.

The jury returned verdicts of guilty on each offense and “yes” to each special factor. T. 790-94.

Representing himself, Mr. Smith pursued an unconventional defense. In his opening statement, he offered an apparent mea culpa: “The prosecution wants everybody to think that I did what I did. Well, God knows, and God forgave me for everything.” T. 42:17-19. The gist of Mr. Smith’s opening was that the government had broken the law when it executed a search warrant on the Kibbe residence.

Mr. Smith peppered his opening with other unusual assertions, such as he and Ms. Kibbe having a “sexual relationship, ” T. 35, that he took Ms. Kibbe’s vehicles and gave them away, and that his nephew was charged with theft of one of the vehicles. T. 44:2-45:3. He also told the jury someone had “hacked” his computer system and “downloaded 800, 000 documents onto my security video.” T. 41:25-42:1. He could not say what the documents were, though, because he was “not a computer person.” T. 42:7.

While cross-examining the first witness, Timothy Richards, Mr. Smith spontaneously admitted to forging documents and impersonating an attorney. T. 83:15-25. While cross-examining Mr. Richards about Exhibit 1, the forged letter from Attorney Wirth, Mr. Smith volunteered:

The rest of Mr. Smith’s case focused on the execution of a search warrant for Ms. Kibbe’s house. Mr. Smith took issue with the disabling of a security camera system at the outset of the search of the residence T. 613-18, 633-41, 670-75; his inability to leave during the search, T. 618-21, 636-42, 663-66; and other security precautions, T. 633-36, 642-43, 663-64. Mr. Smith’s own witnesses were all law enforcement officers called to testify about the search of his home. T. 607, 631, 655, 661, 669.

During his closing argument, Mr. Smith brought up, unbidden, his “three evaluations to say he’s not crazy.”

repeated to the jury his confession to forging a letter from an attorney. T. 706:15-23.

Mr. Smith did make some relevant arguments. For example, he pointed out that the State’s witness had conceded that remote access to a computer to forge documents was possible. T. 723:18-24. He then argued that someone could have taken over his computer by knowing his email address. T. 723:25-724:4. But his overwhelming focus was his contention that execution of the search warrant on the Kibbe home violated the law. T. 716:8-720:21.

In advance of sentencing, both the State and Mr. Smith submitted sentencing memoranda. App. 351-63; App. 364-77. The State sought stand-committed sentences of 10-20 years on two charges, with consecutive suspended sentences on the other three charges. App. 352; SH 2:15-20. The State sought restitution of $495, 043.53 for the benefit of the Estate of Mary G. Kibbe in connection. App. 352; SH 2:15-20.

At sentencing, the State introduced discrepancies regarding the total amount of funds taken and not recovered for purposes of restitution. The State’s written memorandum requested $495, 043.52 in restitution, App. 352, but during argument, the State requested $450, 000. SH 16:3-4. The State then corrected itself, stating that the total amount taken from Ms. Kibbe’s Citizen’s Bank accounts and her Northeast accounts was $495, 043.52. SH 32:11-14.

Before the court imposed sentence, counsel for the State raised a concern that the $495, 043.52 figure was not accurate. SH 35:21-36:23. In particular, the State was unsure whether some funds had been returned to the Kibbe estate. SH 36:5-17. The State said it would file an additional pleading to verify the amount. SH 36:24-37:5.

Following argument, the Court adopted the State’s sentencing recommendation. With respect to restitution, the Court ordered Appellant to pay $495, 043.53 for the benefit of the Estate of Mary G. Kibbe. App. 387-89.

After sentencing, Mr. Smith filed a motion for an evidentiary hearing on restitution. App. 400. He pointed out that the State had not filed, as it promised, any supplemental pleading confirming or correcting the restitution amount. Id. The court’s sentence provided for a hearing on the amount of restitution at defendant’s request. App. 388. The State filed an opposition, asserting that it “does not believe that any of the funds that were stolen … have been returned to the estate.” App. 404. The State provided no facts to explain its newfound certainty. Id. The court denied the motion on the pleadings. App. 400.

The Superior Court erred by failing to hold even one evidentiary hearing on Mr. Smith’s competency, despite twice ordering a competency evaluation. First, the court should have held a hearing on competency, or at least entered factual findings, notwithstanding Mr. Smith’s counsel’s waiver of the competency hearing. Instead, the court entered an order that because Mr. Smith did not contest competency, he was competent. That was error.

Second, the court erred when, after sua sponte ordering a second competency evaluation, it again failed to conduct an evidentiary hearing or make any factual findings. The court was correct that Hart v. Warden controls, but was incorrect that it could simply revert to the original competency order. Because the court raised a bona fide concern about competency, the law required factual findings and an evidentiary hearing. The error was compounded because the court’s decision also denied Mr. Smith his Faretta right to represent himself. Mr. Smith wanted to challenge the State’s expert report, but instead of allowing Mr. Smith to cross- examine the State’s expert, the court ordered stand-by counsel to prepare a memorandum of law.

Third, the Court should have revisited competency based upon Mr. Smith’s behavior during the trial. Mr. Smith’s unprompted admissions to forgery and volunteering of his criminal record, together with a Quixotic challenge to the State’s warrant, demonstrated a lack of rational understanding of the proceedings.

Alternatively, the Superior Court erred when it ordered Mr. Smith to pay restitution. First, the amount of restitution was not supported by the evidence presented at trial or the sentencing hearing, particularly considering the State’s admission at sentencing that it was unsure how much money had been recovered. Second and finally, the court’s delegation of sentencing authority to the Department of Corrections to determine the amount of restitution was unlawful. Restitution is part of a criminal sentence and must be determined by the court at a hearing attended by the defendant. This Court should vacate the restitution order and remand for a hearing on restitution.

The Superior Court erred when it found Mr. Smith competent to stand trial. The court should have held an evidentiary hearing or, at minimum, entered specific factual findings. On this record, this Court cannot assure itself that Mr. Smith was competent to stand trial.

Trial of an incompetent defendant is never fair. State v. Haycock, 146 N.H. 5, 6 (2001) (“The mental competence of a criminal defendant at the time of trial is an absolute basic condition of a fair trial.”). The constitutional right to not be forced to stand trial unless competent emanates from both the 14th Amendment of the United States Constitution and Part I, Article 15 of the New Hampshire Constitution. See Drope v. Missouri, 420 U.S. 162, 171 (1975); State v. Veale, 158 N.H. 632, 637 (2009) (“Undoubtedly, the state constitutional right to due process protects defendants from standing trial if they are legally incompetent.”). New Hampshire courts must sua sponte order an evidentiary hearing when doubts about a defendant’s competence arise, and at that evidentiary hearing the State must prove the defendant’s competence to stand trial. State v. Zorzy, 136 N.H. 710, 714-15 (1993); State v. Decato, 165 N.H. 294, 296-97 (2013) (“The State bears the burden to prove, by a preponderance of the evidence, that a defendant is competent to stand trial.”). The trial court’s obligation to order an evidentiary hearing arises whenever the court develops a legitimate doubt as to that defendant’s competence. State v. Kincaid, 158 N.H. 90, 93 (2008).

At that evidentiary hearing on competence, the State must prove that the defendant (1) has a sufficient present ability to rationally consult with and assist their attorney and (2) has a rational understanding of the charges and trial process. State v. Champagne, 127 N.H. 266, 270 (1985); see also Dusky v. United States, 362 U.S. 402, 402 (1960) (setting forth the test). The trial court must make “specific factual findings” that both circumstances affirmatively exist. See State v. Haycock, 146 N.H. at 7-8 (Holding that the trial court erred, in part because “[n]owhere does the court make specific findings supporting its conclusion that the defendant has a rational understanding of the proceedings against him.”); see also State v. Bertrand, 123 N.H. 719, 726 (1983). Once the trial court possesses a legitimate doubt regarding a defendant’s competence and the procedure and processes designed to safeguard that right have been triggered, a defendant cannot waive those processes. Pate v. Robinson, 383 U.S. 375, 384 (1966) (“[I]t is contradictory to argue that a defendant may be incompetent, and yet knowingly or intelligently "waive" his right to have the court determine his capacity to stand trial.”); Veale, 158 N.H. at 641 (“Competency determinations also concern the right not to be tried if incompetent, a right that is probably not subject to waiver.”).

This Court reviews decisions on competency for an unsustainable exercise of discretion. State v. Salimullah, 172 N.H. 739, 749 (2020).

The Superior Court erred when it determined Appellant competent to stand trial on July 3, 2019, because it failed to make specific factual findings about Mr. Smith’s present ability to consult with and assist his attorney with a reasonable degree of rational understanding, and Mr. Smith’s factual and rational understanding of the proceedings against him.

Although Mr. Smith and the State both agreed with the evaluator’s conclusion of competency, the court was required to make its own decision. Even with an agreement from the parties, the trial court should have made a written record of the findings to ensure it was satisfied with Mr. Smith’s competency. See Dusky, 362 U.S. at 788-789; State v. Bertrand, 123 N.H. at 726 (Holding that trial court erred when it failed to make specific factual findings regarding competency on the record, despite agreement of evaluators and the parties.).

Although Mr. Smith’s appointed counsel asked to waive a hearing on the first competency motion, accepting that waiver was error. The Superior Court was not free to accept the waiver of that process offered by Mr. Smith’s attorney (at a proceeding that Mr. Smith did not attend) so long as the court had bona fide doubts about Mr. Smith’s competence. See Pate, 383 U.S. at 384; Veale, 158 N.H. at 641. Instead, the Superior Court ordered the defendant competent on the sole basis that he did not contest competency. S.App. 18. That order is inadequate because (1) it appears to defer to a potentially incompetent defendant to determine his own competence, and (2) the order makes no specific factual findings for this Court to review. As in Bertrand, this Court should vacate and remand for a new trial.

After he was found competent, Mr. Smith commenced representing himself. Just over a month from that point, the Superior Court sua sponte ordered another competency evaluation of Appellant to determine (1) whether he was competent to represent himself and (2) whether he was competent to stand trial if represented by an attorney. The court was correct to order a further competency evaluation and hearing because it had a bona fide concern about Mr. Smith’s competence. Unfortunately, the process went awry when the Superior Court declined to hold an evidentiary hearing.

That both of the State’s experts had opined Mr. Smith was competent to stand trial (though not to represent himself) did not eliminate Mr. Smith’s right to an evidentiary hearing. As this Court has said before:

The court’s failure to hold a hearing after the first competency examination, although error, was understandable because Mr. Smith’s appointed lawyer sought to waive any hearing. But Mr. Smith did not waive a hearing on the second competency order. To the contrary, Mr. Smith’s stand-by counsel twice urged the court to hold a hearing. And Mr. Smith himself asserted that he disputed the entire competency examination and its findings.

The most analogous case to this one is State v. Bertrand, 123 N.H. 719 (1983). In Bertrand, the defendant was twice referred for competency evaluations and each of the resulting evaluations included the opinion that the defendant was competent to stand trial. Id. at 723. The matter proceeded to trial and during the trial, the defendant continued to engage in the same troubling behaviors, i.e., making incriminating statements. Id. at 724. Even though the Bertrand defendant was twice evaluated and both evaluators opined that he was competent, the trial court never held an evidentiary hearing and never made any specific findings to support competency ruling. Id. at 724-26. This Court held that was an unsustainable exercise of discretion and remanded the case. Id. at 723.

In this case, the court received two competency evaluations of Mr. Smith. Although each evaluator opined Mr. Smith was competent to stand trial, they each also raised concerns about his mental health, delusions, medication interference, and cognitive limitations. Moreover, Mr. Smith told the court that he wanted to contest the findings in the second evaluation. ST 7:7-17. Yet the court never held an evidentiary hearing.

Unfortunately, the Superior Court incorrectly believed it was bound by the prior competency order, and that the only question before it was whether a different standard applied for competency of a self-represented defendant. App. 16. That was an unsustainable exercise of discretion.

First, the court’s second competency order (which was entered as two sealed orders) was not limited to competency for self-representation. A fair reading of the two orders together is that the Superior Court held a bona fide doubt about Mr. Smith’s competence to stand trial both generally and as a pro se litigant. The order for a general competency evaluation was not gratuitous.

Competency issues had become more visible to the court because Mr. Smith was representing himself. Hart v. Warden, N.H. State Prison, 171 N.H. 709, 723 (2019). (“When a mentally ill defendant exercises his or her right to self- represent at trial there will be more occasions for the trial court to observe the condition of the defendant and assess whether the conduct of the defense threatens the fairness, integrity, or validity of the proceedings.”). But that did not mean the only issue was whether a new, higher standard applied.

Instead of grappling with these competency issues, the Superior Court ruled that “because the defendant has been found by the court to be competent to stand trial, he is therefore competent to represent himself at this time.” App. 16. Absent from that order are any specific factual findings. Id. And the prior decision referenced by the court relied entirely upon the defendant’s waiver of the competency issue. S.App. 18.

Second, the trial court’s failure to hold a hearing denied Mr. Smith his Faretta right to a self-directed defense. Mr. Smith was pro se at the time of the second competency evaluation and order, with stand-by counsel appointed by the court. Instead of holding a hearing at which Mr. Smith could challenge the State’s expert’s opinions—which he told the court he disputed—the court asked stand-by counsel, not Mr. Smith, to issue a memorandum of law.

Defendants have a fundamental right to represent themselves, and the core of that right is a self-directed defense. See McKaskle v. Wiggins, 465 U.S. 168, 178 (1984); State v. Ayer, 150 N.H. 14, 27, 834 A.2d 277, 290 (2003). By excluding Mr. Smith from the argument over his own competency and denying him a hearing at which he could cross-examine the State’s witnesses, the Court allowed stand-by counsel to override Mr. Smith’s choices on this “significant tactical decision.” Wiggins, 465 U.S. at 178. Even outside the presence of the jury, Mr. Smith had a fundamental right to control the presentation of his defense. Id. The failure to hold an evidentiary hearing denied Mr. Smith that right.

In sum, the Superior Court properly raised Mr. Smith’s competency sua sponte. But the court erred when, instead of holding an evidentiary hearing or making its own factual findings, it relied upon its prior competency order. This Court should vacate the convictions and remand for further proceedings.

The Superior Court erred a third time when it did not revisit the issue of Appellant’s competence based upon his behavior at trial.

The trial court’s duty to ensure defendant’s competency applies at all stages of a criminal proceeding. Salimullah, 172 N.H. at 748. Legitimate concerns regarding a defendant’s competence may arise at any point, including mid-trial, even after an earlier determination of that same defendant’s competence. Hart, 171 N.H. at 723-24; Bertrand, 123 N.H. at 726. Trial courts must scrutinize mentally ill defendants to ensure their competence throughout trial. Hart, 171 N.H. at 724 (“Therefore, when a mentally ill defendant exercises his or her right to self-represent at trial, the trial court must vigilantly scrutinize the ongoing proceedings so as to be able to address competency concerns in the event the defendant's mental condition jeopardizes the integrity, fairness and validity of the trial proceedings.”). Irrational behavior or arguments, such as unprompted confession, should prompt the court to inquire further about competency. Bertrand, 123 N.H. at 724.

In this case, Mr. Smith’s pro se conduct should have likewise prompted a sua sponte competency hearing. Mr. Smith began his case by saying in opening that the “prosecution wants everybody to think that I did what I did.”

all this information, the Superior Court erred by not sua sponte ordering a further competency hearing.

II. The Superior Court Erred When It Ordered Restitution. Superior Court erred when it imposed $495, 043.53 in restitution, because that amount was not supported by the evidence.

Determination of the amount of restitution is up to the trial court’s discretion. State v. Gedney, 174 N.H. 508, 510 (2021) (“Determining the appropriate restitution amount is within the discretion of the trial court.”). The State must prove the amount is connected to the offenses for which the defendant was convicted. State v. Schwartz, 160 N.H. 68, 71 (2010). While restitution is not tied to a defendant’s ability to pay or the availability of other funds, restitution “is not intended to compensate the victim more than once.” State v. Oakes, 161 N.H. 270, 286 (2010). While the trial court has broad discretion over the types of evidence it relies upon, the calculation must nonetheless be supported by evidence and a defendant must have an opportunity to challenge the veracity of that evidence. State v. Naughton, 139 N.H. 73, 78 (1994). The $495, 043.53 in restitution ordered was based on the State’s recommendation, but the State volunteered that the number might not be accurate. SH 35:21-36:23. The State asked to be allowed to verify the information and file an additional pleading. SH 36:24-37:5. However, the record shows the State never filed any additional information. The State had good reason to question whether the restitution number was accurate, because the trial evidence showed some discrepancies. Testimony at trial showed $36, 083 had been taken from Ms. Kibbe’s Citizen Bank accounts, T. 263-64 & 276, and $452, 392.51 had been taken from the Northeast bank accounts, T. 211, for a total of $488, 475. Mr. Roux testified that $182, 000 of that amount had been frozen by the bank for the estate’s recovery. T. 181. However, other testimony reflected only $258, 053 was withdrawn, which would leave $194, 339 remaining. 4

Mr. Smith also filed with the court a copy of a report of Ms. Kibbe’s estate’s administrator. App. 311-15. According to that report, “In the Equity Case, the Administrator was able to attach $184, 800.22, leaving a total of $306, 359.26 in unaccounted funds.” App. 313. That differs from the State’s numbers both in the amount recovered and the total amount taken. Even without the set-off for the recovered funds, the Estate’s own accounting pegs the loss $4, 000 lower than the State’s request.

For all these reasons, it was inappropriate for the Superior Court to order restitution of $495, 043.53. The evidence did not support the amount selected.

Finally, the Superior Court’s sentencing order included an unusual addition:

App. 389. Rather than determining whether the amount of restitution sought by the State was correct, the court appears in this paragraph to delegate the matter to the Department of Corrections. This was an unsustainable exercise of discretion.

A criminal order of restitution is part of a sentence and must be determined by the court in accordance with due process. The defendant has a right to see and challenge the evidence of restitution. See Naughton, 139 N.H. at 78. The State has the burden of proving the amount of restitution by a preponderance of the evidence. See Schwartz, 160 N.H. at 71. To the extent the court’s order is interpreted as delegating the restitution calculation to the Department of Corrections, that was error.

If the court was not delegating its authority, then it’s unclear why Mr. Smith was denied a hearing on restitution. The court’s sentence if Mr. Smith had a right to a hearing on the “amount or method” of restitution. App. 388. Yet when Mr. Smith requested an evidentiary hearing, noting that the State had promised additional documentation that it never provided, his request was denied. App. 400. The restitution order should be vacated, and the matter remanded for an evidentiary hearing at which the State must prove the amount of money lost.

WHEREFORE, Defendant-Appellant requests that this Court vacate the convictions and remand for a new trial. Alternatively, Defendant-Appellant asks this Court to vacate the restitution order and remand for an evidentiary hearing. Undersigned counsel requests ten minutes oral argument before a full panel.

The appealed decision was in writing and therefore is appended to the brief.

This brief complies with the applicable word limitation and contains 6735 words, calculated using Microsoft Word.

I hereby certify that a copy of this brief is being timely provided to the Criminal Bureau of the New Hampshire Attorney General’s office through the electronic filing system’s electronic service.

Jeremiah R. Newhall