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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Hillsborough–southern judicial district
No. 2012-802
THE STATE OF NEW HAMPSHIRE
v.
BARION PERRY
Argued: November 14, 2013
Opinion Issued: January 14, 2014
Michael A. Delaney, attorney general (Elizabeth C. Woodcock, assistant
attorney general, on the brief and orally), for the State.
David M. Rothstein, deputy chief appellate defender, of Concord, on the
brief and orally, for the defendant.
HICKS, J. The defendant, Barion Perry, appeals an order of the Superior
Court (Nicolosi, J.) imposing a suspended sentence. He argues: (1) the trial
court erred in imposing the sentence based on conduct that occurred before he
was released from custody; and (2) imposition of the sentence violated due
process. We affirm.
The record supports the following facts. On February 18, 2010, the
defendant pleaded guilty to one count of receiving stolen property (docket
number 09-S-1245), see RSA 637:7, and one count of stalking (docket number
09-S-1246), see RSA 633:3-a. At that time, the defendant was serving a
sentence of three to ten years on unrelated burglary and theft charges (docket
numbers 07-S-231 and 232). During the plea and sentencing hearing, the
court (Lynn, C.J.) engaged in a colloquy with the defendant. The pertinent
portions of the colloquy are as follows:
THE COURT: . . . As I understand it, the plea agreement here
calls for you to receive suspended sentences, right?
THE DEFENDANT: Yes, sir.
THE COURT: Here’s what I want to make sure you
understand. Let’s suppose that I accept this agreement and I
impose the suspended sentences, okay?
But, you know, sometime after you’re released from jail, but
while you’re still subject to the suspended sentences, you get into
some further trouble, at that point the State could ask that these
sentences be imposed, do you understand?
THE DEFENDANT: Yes, sir.
...
THE COURT: Can you tell me, please, what you understand the
terms of the agreement to be?
THE DEFENDANT: A suspended sentence - -
THE COURT: Pardon?
THE DEFENDANT: Three and a half - - three and a half to
seven suspended for five years. And it starts after my max is done
on my old charges.
THE COURT: Okay. Right, on - - okay. And these sentences
on these two new charges are concurrent with one another, but
they are consecutive to the sentences that you’re serving on the
current charges, is that right?
THE DEFENDANT: Yes, sir.
...
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THE COURT: . . . [T]he sentence on these two new charges,
1245 and 1246, would be three and a half to seven, consecutive to
docket numbers 07-231 and 232, which you’re already serving
sentences on.
All suspended for a period of five years from the date of your
release on the current ones that you’re serving, is that right?
THE DEFENDANT: Yes, sir.
(Emphasis added.) After the colloquy, the defendant pleaded guilty to both
charges. The court accepted the plea, and announced the defendant’s sentence
as follows:
. . . [U]pon Defendant’s plea of guilty, findings of guilty are entered
and the following sentences, which are concurrent with each other,
but consecutive to docket numbers 07-S-231 and 232 are
imposed.
The Defendant is sentenced to the New Hampshire State
Prison for not more than seven years, no less than three and a half
years. The sentences are to be served as follows.
All of the minimum sentence[s] and all of the maximum
sentences are suspended. Suspensions are conditioned upon good
behavior and compliance with all of the terms of this order. Any
suspended sentence may be imposed after a hearing brought by
the State within five years of the Defendant’s release on docket
numbers 07-S-231 and 232.
(Emphasis added.) The mittimi for docket numbers 09-S-1245 and 1246
both state, “Any suspended sentence may be imposed after a hearing
brought by the State within five years of release on 07-S-231-2.”
Additionally, an addendum to the sentence reads, “If the defendant
violates any of the terms and conditions of this addendum or the
sentencing order, the State may move at any time to have the suspended
or deferred sentence imposed.” (Emphasis added.)
Subsequently, on July 19, 2012, the defendant was convicted by a
jury of burglary and theft, arising from events occurring on November 14,
2011. At the time of the 2011 burglary and theft, the defendant was
serving the sentence on the prior burglary and theft charges (docket
numbers 07-S-231 and 232) on administrative home confinement.
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After the defendant’s conviction on the 2011 burglary and theft
charges, the State moved to impose the suspended sentence on docket
numbers 09-S-1245 and 1246. The defendant objected. He argued that
the five-year suspension period would not commence until his “release”
from custody on docket numbers 07-S-231 and 232, and that
administrative home confinement does not qualify as such a “release.”
The trial court disagreed, and imposed the suspended sentence.
On appeal, the defendant contends that the trial court erred in
imposing a suspended sentence based on conduct that occurred prior to
his release from custody. His argument rests on two premises: (1) the
terms of the suspended sentence, as discussed during the colloquy
between him and the court, dictate that it be applied only to conduct
occurring after his release from custody; and (2) although he was no
longer in prison at the time of the 2011 burglary and theft, he was
serving his prison term through administrative home confinement and
thus had not been released from custody. The defendant also argues
that the trial court’s imposition of the suspended sentence violated due
process because he did not have fair notice of the terms of his sentence.
In response, the State argues, in substance: (1) the language of the
colloquy and sentencing order is clear, and permits the imposition of the
suspended sentence; (2) under the sentencing order, the suspended
sentence could be imposed once the defendant was “released” on
administrative home confinement; and (3) imposition of the suspended
sentence did not violate due process because the trial court was not
unclear.
“We review a trial court’s decision to impose a suspended sentence
for an unsustainable exercise of discretion.” State v. Gibbs, 157 N.H.
538, 540 (2008). “To meet this standard, the defendant must
demonstrate that the trial court’s rulings were clearly untenable or
unreasonable to the prejudice of his case.” State v. Ainsworth, 151 N.H.
691, 694 (2005).
Assuming, without deciding, that the defendant had not been
released from custody when the trial court imposed the suspended
sentence, and that the suspension period did not commence until such a
release, we conclude that the court did not err in imposing the
suspended sentence. Under New Hampshire law, a suspended sentence
may be imposed after the sentence is announced, but before
commencement of the suspended sentence term. See State v. Kierstead,
141 N.H. 803, 804 (1997) (per curiam). For example, in Kierstead, the
trial court sentenced the defendant to three to six years on two charges,
to be served concurrently, and suspended a sentence of three and a half
to seven years on another charge, to be served consecutively. Id. at 803.
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The trial court later imposed a portion of the suspended sentence
because the defendant violated a no-contact provision of the sentence by
repeatedly telephoning the victim from prison. Id. at 803-04. On appeal,
the defendant argued that his suspended sentence could not be imposed
as a result of this violation because the suspension period had not
commenced. Id. at 804. We reasoned:
The defendant notes that on December 7, 1995, when he violated
the “no contact” order, his suspended sentence on the burglary
charge had not yet commenced to run. He argues that the trial
court was not authorized to impose a suspended sentence that was
not in effect at the time of its violation. Although the legislature
has determined that the trial court may suspend a sentence “at the
time of imposition of the sentence or at any time thereafter,” RSA
651:20, I (1996), the proper time period for the trial court to
impose a previously suspended sentence presents an issue of first
impression for this court. Today we join the overwhelming
majority of federal and state courts in holding that a suspended
sentence may be imposed or probation revoked for acts committed
by a defendant after imposition of the sentence but before
commencement of the suspended sentence or probationary term.
Id. (emphasis added).
Nevertheless, the defendant argues that this case is
distinguishable from Kierstead because here, unlike in Kierstead, the
imposition of the suspended sentence directly contradicted the language
of the trial court’s sentencing order and plea colloquy. In Kierstead,
there was no indication that the trial court provided the defendant with
any information contrary to the sentencing order. Id. The defendant
maintains that the resulting ambiguity here — which did not exist in
Kierstead — violated his due process rights. We disagree.
Because the defendant’s due process argument raises a question of
constitutional law, we will review it de novo. See State v. Van Winkle,
160 N.H. 337, 340 (2010). The defendant relies upon both the State and
Federal Constitutions. We first address his claim under the State
Constitution and rely upon federal law only to aid our analysis. State v.
Ball, 124 N.H. 226, 231-33 (1983).
“We have held that at the conclusion of the sentencing proceeding,
a defendant and the society which brought him to court must know in
plain and certain terms what punishment has been exacted by the court
as well as the extent to which the court retained discretion to impose
punishment at a later date and under what conditions the sentence may
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be modified.” State v. Almodovar, 158 N.H. 548, 550 (2009) (quotation
and brackets omitted). “Due process requires a sentencing court to
make clear at the time of sentencing in plain and certain terms what
punishment it is exacting as well as the extent to which the court retains
discretion to impose punishment at a later date and under what
conditions the sentence may be modified.” State v. Burgess, 141 N.H.
51, 52 (1996) (quotation, ellipses, and brackets omitted) (emphasis in
original). “The sentencing order must clearly communicate to the
defendant the exact nature of the sentence.” Id. (quotation and brackets
omitted).
Here, it was clear at the time of sentencing that the five-year
suspension period commenced upon the defendant’s “release on docket
numbers 07-S-231 and 232.” The trial court’s use of the term “release”
signified the start of the five-year sentence suspension that would follow
the period of incarceration. In addition, the trial court “ma[d]e clear . . .
the extent to which the court retains discretion to impose punishment at
a later date.” Burgess, 141 N.H. at 52. The language of the mittimi and
the addendum to the sentence clearly indicate that the suspended
sentence could be imposed prior to the commencement date. The
addendum to the sentence, which the defendant signed, states, “If the
defendant violates any of the terms and conditions of this addendum or
the sentencing order, the State may move at any time to have the
suspended or deferred sentence imposed.” (Emphasis added.) Moreover,
the language from the plea colloquy is not ambiguous. The phrases
“after you’re released from jail” and “five years from the date of your
release,” spoken by the trial court, and “starts after my max is done on
my old charges,” spoken by the defendant, all refer to the commencement
of the five-year suspension period, rather than the period in which the
sentence could be imposed. As we have noted, “a suspended sentence
may be imposed . . . for acts committed by a defendant . . . before
commencement of the suspended sentence” term. Kierstead, 141 N.H. at
804.
Finally, as noted by the trial court, the purpose of suspending a
sentence is to provide a criminal defendant with the opportunity to
display good behavior. See id. The defendant declined to take advantage
of this opportunity. Accordingly, we hold that the imposition of the
defendant’s suspended sentence was not a violation of his state
constitutional due process rights.
The Federal Constitution offers the defendant no greater protection
than does the State Constitution under these circumstances. See
Burgess, 141 N.H. at 52; Sattazahn v. Pennsylvania, 537 U.S. 101, 115
6
(2003). Accordingly, we reach the same result under the Federal
Constitution as we do under the State Constitution.
Affirmed.
DALIANIS, C.J., and CONBOY and BASSETT, JJ., concurred.
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