RSA 651:6 · Extended Term of Imprisonment

651:6 Extended Term of Imprisonment. –

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I.

A convicted person may be sentenced according to paragraph III if the jury also finds beyond a reasonable doubt that such person:

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(a)

Based on the circumstances for which he or she is to be sentenced, has knowingly devoted himself or herself to criminal activity as a major source of livelihood;

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(b)

Has been subjected to a court-ordered psychiatric examination on the basis of which the jury finds that such person is a serious danger to others due to a gravely abnormal mental condition;

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(c)

Has manifested exceptional cruelty or depravity in inflicting death or serious bodily injury on the victim of the crime;

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(d)

Has committed an offense involving the use of force against a person with the intention of taking advantage of the victim's age or physical disability;

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(e)

Has committed or attempted to commit any of the crimes defined in RSA 631 or 632-A against a person under 13 years of age;

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(f)

Was substantially motivated to commit the crime because of hostility towards the victim's religion, race, creed, sexual orientation as defined in RSA 21:49, national origin, sex, or gender identity as defined in RSA 21:53;

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(g)

Has knowingly committed or attempted to commit any of the crimes defined in RSA 631 where he or she knows the victim was, at the time of the commission of the crime, a law enforcement officer, a paid firefighter, volunteer firefighter, on-call firefighter, or licensed emergency medical care provider as defined in RSA 153-A:2, V acting in the line of duty;

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(h)

Was an on-duty law enforcement officer at the time that he or she committed or attempted to commit any of the crimes defined in RSA 631;

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(i)

Has committed a crime listed in RSA 193-D:1 in a safe school zone under RSA 193-D;

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(j)

Possesses a radio device with the intent to use that device in the commission of robbery, burglary, theft, gambling, stalking, or a violation of any provision of RSA 318-B. In this section, the term "radio device" means any device capable of receiving a wireless transmission on any frequency allocated for law enforcement use, or any device capable of transmitting and receiving a wireless transmission;

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(k)

Has committed or attempted to commit negligent homicide as defined in RSA 630:3, I against a person under 13 years of age who was in the care of, or under the supervision of, the defendant at the time of the offense;

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(l)

Has committed or attempted to commit any of the crimes defined in RSA 637 or RSA 638 against a victim who is 65 years of age or older or who has a physical or mental disability and that in perpetrating the crime, the defendant intended to take advantage of the victim's age or a physical or mental condition that impaired the victim's ability to manage his or her property or financial resources or to protect his or her rights or interests;

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(m)

Has committed or attempted to commit aggravated felonious sexual assault in violation of RSA 632-A:2, I(l) or RSA 632-A:2, II where the defendant was 18 years of age or older at the time of the offense;

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(n)

Has committed or attempted to commit aggravated felonious sexual assault in violation of RSA 632-A:2, III, and one or more of the acts comprising the pattern of sexual assault was an offense under RSA 632-A:2, I(l) or RSA 632-A:2, II, or both, and the defendant was 18 years of age or older when the pattern of sexual assault began;

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(o)

Has purposely, knowingly, or recklessly with extreme indifference to the value of human life committed an act or acts constituting first degree assault as defined in RSA 631:1 against a person under 13 years of age where the serious bodily injury has resulted in brain damage or physical disability to the child that is likely to be permanent;

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(p)

Has committed murder as defined in RSA 630:1-b against a person under 13 years of age;

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(q)

Has knowingly committed any of the following offenses as a criminal street gang member, or for the benefit of, at the direction of, or in association with any criminal street gang, with the purpose to promote, further, or assist in any such criminal conduct by criminal street gang members:

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(1)

Violent crime as defined in RSA 651:5, XIII.

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(2)

A crime involving the distribution, sale, or manufacture of a controlled drug under RSA 318-B:2.

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(3)

Class A felony theft where the property stolen was a firearm.

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(4)

Unlawful sale of a pistol or a revolver.

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(5)

Witness tampering.

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(6)

Criminal street gang solicitation as defined in RSA 644:20; or

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(r)

Has committed an offense under RSA 637 where such person knowingly activated an audible alarm system to avoid detection or apprehension, or cause a distraction during the commission of the offense. I-a. As used in this section:

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(a)

"Law enforcement officer" means a sheriff or deputy sheriff of any county, a state police officer, a constable or police officer of any city or town, an official or employee of any prison, jail, or corrections institution, a probation-parole officer, a juvenile probation and parole officer, or a conservation officer.

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(b)

"Criminal street gang member" means an individual to whom 2 or more of the following apply:

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(1)

Admits to criminal street gang membership;

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(2)

Is identified as a criminal street gang member by a law enforcement officer, parent, guardian, or documented reliable informant;

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(3)

Resides in or frequents a particular criminal street gang's area and adopts its style of dress, its use of hand or other signs, tattoos, or other physical markings, and associates with known criminal street gang members; or

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(4)

Has been arrested more than once in the company of individuals who are identified as criminal street gang members by law enforcement, for offenses that are consistent with usual criminal street gang activity.

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(c)

"Criminal street gang" means a formal or informal ongoing organization, association, or group of 3 or more persons, which has as one of its primary objectives or activities the commission of criminal activity, whose members share a common name, identifying sign, symbol, physical marking, style of dress, or use of hand sign, and whose members individually or collectively have engaged in the commission, attempted commission, solicitation to commit, or conspiracy to commit 2 or more the following offenses, or a reasonably equivalent offense in another jurisdiction, on separate occasions within the preceding 3 years:

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(1)

Violent crimes, as defined in RSA 651:5, XIII;

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(2)

Distribution, sale, or manufacture of a controlled drug in violation of RSA 318-B:2;

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(3)

Class A felony theft;

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(4)

Unlawful sale of a pistol or revolver; or

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(5)

Witness tampering.

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II.

A convicted person may be sentenced according to the terms of paragraph III if the court finds, and includes such findings in the record, that such person:

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(a)

Has twice previously been convicted in this state, or in another jurisdiction, on sentences in excess of one year;

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(b)

Has previously been convicted of a violation of RSA 630:3, II, RSA 265-A:3, I(b) or II(b), or any crime in any other jurisdiction involving driving or attempting to drive a motor vehicle under the influence of controlled drugs, prescription drugs, over-the-counter drugs, or any other chemical substances, natural or synthetic, which impair a person's ability to drive or intoxicating liquors, or both, and such person has committed a crime as defined under RSA 630:3, II or RSA 265-A:3, I(b) or II(b); or

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(c)

Has been previously convicted of driving or operating under the influence of drugs or liquor under RSA 265-A:2, aggravated driving while intoxicated under RSA 265-A:3, or negligent homicide under RSA 630:3, II, or under reasonably equivalent offenses in an out-of-state jurisdiction, and such person is charged with an offense under RSA 630:3, II or RSA 265-A:3, I(b) or II(b).

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III.

If authorized by paragraph I or II, and if written notice of the possible application of this section is given the defendant at least 21 days prior to the commencement of jury selection for his or her trial, a defendant may be sentenced to an extended term of imprisonment. An extended term is, for a person convicted of:

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(a)

Any felony, other than murder, manslaughter, negligent homicide under RSA 630:3, II, or aggravated driving while intoxicated under RSA 265-A:3, I(b) or II(b) under circumstances where the person caused serious bodily injury as defined in RSA 625:11 to another, a minimum to be fixed by the court of not more than 10 years and a maximum to be fixed by the court of not more than 30 years;

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(b)

A misdemeanor, a minimum to be fixed by the court of not more than 2 years and a maximum to be fixed by the court of not more than 5 years;

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(c)

Manslaughter, a minimum to be fixed by the court of not more than 20 years and a maximum to be fixed by the court of not more than 40 years;

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(d)

Murder, life imprisonment;

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(e)

Two or more offenses under RSA 632-A:2, life imprisonment without parole;

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(f)

A third offense under RSA 632-A:3, life imprisonment;

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(g)

Any of the crimes listed under RSA 651:6, I(j), a minimum to be fixed by the court of not less than 90 days and a maximum of not more than one year;

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(h)

Negligent homicide under RSA 630:3, II or aggravated driving while intoxicated under RSA 265-A:3, I(b) or II(b) under circumstances where the person caused serious bodily injury as defined in RSA 625:11 to another, provided that the court may consider an enhanced sentence of not less than 10 years or more than 20 years where the person has once previously been convicted under RSA 265-A:2, I, RSA 265-A:3, or RSA 630:3, II, or under a reasonably equivalent offense in an out-of-state jurisdiction; or

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(i)

Negligent homicide under RSA 630:3, II or aggravated driving while intoxicated under RSA 265-A:3, I(b) or II(b) under circumstances where the person caused serious bodily injury as defined in RSA 625:11 to another, provided that the court may consider an enhanced sentence of not less than 15 years or more than 30 years where the person has, on 2 or more prior occasions, been convicted under RSA 265-A:2, I, RSA 265-A:3, or RSA 630:3, II, or under a reasonably equivalent offense in an out-of-state jurisdiction.

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IV.

If authorized by subparagraphs I(m), (n), or (o) and if notice of the possible application of this section is given to the defendant prior to the commencement of trial:

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(a)

There is a presumption that a person shall be sentenced to a minimum to be fixed by the court of not less than 25 years and a maximum of life imprisonment unless the court makes a determination that the goals of deterrence, rehabilitation, and punishment would not be served, based on the specific circumstances of the case, by such a sentence and the court makes specific written findings in support of the lesser sentence. Before the court can determine whether the presumption has been overcome, the court shall consider, but is not limited to, the following factors:

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(1)

Age of victim at time of offense.

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(2)

Age of the defendant at the time of the offense.

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(3)

Relationship between defendant and victim.

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(4)

Injuries to victim.

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(5)

Use of force, fear, threats, or coercion to the victim or another.

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(6)

Length of time defendant offended against victim.

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(7)

Number of times defendant offended against victim.

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(8)

Number of other victims.

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(9)

Acceptance of responsibility by defendant.

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(10)

Defendant's criminal history.

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(11)

Use of a weapon.

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(12)

Medical or psychological condition of the victim at the time of the assault.

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(b)

The sentence shall also include, in addition to any other penalties provided by law, a special sentence of lifetime supervision by the department of corrections. The defendant shall comply with the conditions of lifetime supervision which are imposed by the court or the department of corrections. Violation of any of the conditions of lifetime supervision shall be deemed contempt of court. The special sentence of lifetime supervision shall begin upon the offender's release from incarceration, parole, or probation. A defendant who is sentenced to lifetime supervision pursuant to this paragraph shall not be eligible for release from the lifetime supervision pursuant to RSA 632-A:10-a, V(b).

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(c)

Any decision by the superior court under subparagraph (a) may be reviewed by the sentence review division of the superior court at the request of the defendant or at the request of the state pursuant to RSA 651:58.

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V.

If authorized by subparagraph I(p) and if notice of the possible application of this section is given to the defendant prior to the commencement of trial, a person shall be sentenced to an extended term of imprisonment as follows: a minimum to be fixed by the court of not less than 35 years and a maximum of life imprisonment.

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VI.

A person shall be sentenced according to the terms of paragraph VII if the court finds, and includes such findings in the record, that such person: (a)(1) Committed a violation of RSA 632-A:2, I(l), RSA 632-A:2, II, or RSA 632-A:2, III, in which one or more of the acts comprising the pattern of sexual assault was an offense under RSA 632-A:2, I(l) or RSA 632-A:2, II, or both, after having previously been convicted of an offense in violation of one of the aforementioned offenses or any other statute prohibiting the same conduct in another state, territory or possession of the United States, and

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(2)

The person committed the subsequent offense while released on bail on the earlier offense or the sentence for the earlier conviction involved a term of incarceration, probation, parole, or other supervised release; or (b)(1) Committed a violation of RSA 631:1 after having previously been convicted of an offense in violation of RSA 631:1, or any other statute prohibiting the same conduct in another state, territory or possession of the United States, if the earlier offense also involved a victim under 13 years of age where the serious bodily injury resulted in brain damage or physical disability to the child that is likely to be permanent; and

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(2)

The person committed the subsequent offense while released on bail on the earlier offense or the sentence for the earlier conviction involved a term of incarceration, probation, parole, or other supervised release; or (c)(1) Committed a violation of RSA 630:1-b after having previously been convicted of an offense in violation of RSA 630:1-b, or any other statute prohibiting the same conduct in another state, territory, or possession of the United States; and

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(2)

The person committed the subsequent offense while released on bail on the earlier offense or the sentence for the earlier conviction involved a term of incarceration, probation, parole, or other supervised release.

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VII.

If the court has made the findings authorized by RSA 651:6, VI, and if notice of the possible application of this section is given to the defendant prior to the commencement of trial, a person shall be sentenced to an extended term of imprisonment of life without parole. Source. 1971, 518:1. 1973, 370:3. 1981, 511:1. 1985, 228:7, 8. 1990, 68:1; 140:2, XI. 1992, 3:1. 1994, 355:4. 1995, 131:1, 2. 1996, 198:1. 1997, 108:16. 1998, 301:1, 2. 1999, 296:2. 2003, 33:1. 2006, 89:1, 2; 197:1; 260:35; 327:17-20. 2007, 110:1. 2008, 379:1, 2. 2009, 209:5. 2012, 267:18, eff. Jan. 1, 2013. 2019, 332:9, eff. Oct. 15, 2019. 2021, 213:2-4, eff. Jan. 1, 2022.

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