Petition of Warden, New Hampshire State Prison

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Merrimack
No. 2015-203

PETITION OF WARDEN, NEW HAMPSHIRE STATE PRISON
(State v. Roberts)

Argued: May 7, 2015
Opinion Issued: July 10, 2015

Joseph A. Foster, attorney general (Elizabeth A. Lahey, assistant attorney
general, and Richard W. Head, senior assistant attorney general, on the brief,
and Mr. Head orally), for the State.

Catherine J. Flinchbaugh, public defender, of Concord, on the brief and
orally, for the respondent.

LYNN, J. The issue before us in this Rule 11 petition for certiorari
review1, see Sup. Ct. R. 11, filed by the State, is whether the Adult Parole
Board (APB) exceeded its authority or otherwise violated the rights of the
respondent, Jerry Roberts, when it paroled him to a consecutive sentence —

1Although the State filed its appeal as a request for certiorari review, we note that the trial court’s
decision is a final order, which would arguably permit review as an appeal pursuant to Supreme
Court Rule 7. In light of the facts that neither party raises this issue, the appeal was timely filed
under either Rule 7 or Rule 11, and the basis of our decision is the trial court’s error of law, we
conclude that the specific mechanism by which the case came before us is of no particular
consequence, and we therefore do not consider the issue further.
the maximum of which had been suspended — but then refused to release him
from prison upon his completion of the minimum term of that sentence. We
hold that the APB’s actions were not improper and we therefore reverse the
order of the Superior Court (Anderson, J.), which granted the respondent’s
petition for habeas corpus relief.

The pertinent facts are not in dispute. The respondent was convicted of
aggravated felonious sexual assault (AFSA) and sentenced to four-to-ten years
at the New Hampshire State Prison (prison). The respondent also received a
sentence of one-to-two years for related conduct; that sentence was suspended.
The respondent began serving his four-to-ten year sentence in 2008. On April
1, 2013, the respondent was classified as a C-1 inmate and resided in a
halfway house at the prison. While at the halfway house, the respondent was
arrested and consequently returned to general population status in the prison.
Following his arrest, the State moved to impose his one-to-two year suspended
sentence. The Superior Court (O’Neill, J.) partially granted the State’s motion:
it imposed the one-year minimum sentence, which was to be served
consecutively to the four-to-ten year sentence, but suspended the two-year
maximum of the sentence.

On August 15, 2013, the respondent appeared before the APB, as he had
served the minimum four years of his AFSA sentence. See RSA 651-A:6, I
(2007) (subsequently amended). At that time, he was “approved for parole to
consecutive,” and his parole hearing paperwork indicated that he must have
“review prior to release consideration” with the Administrative Review
Committee (ARC). The respondent thus began serving his one-year consecutive
sentence. On October 2, 2013, the ARC evaluated the respondent and
recommended that he return to the prison’s sexual offender treatment
program.

Upon completion of his one-year consecutive sentence in August 2014,
the respondent was not released from the prison into the community. Instead,
he continued serving his original four-to-ten year sentence. The State asserted
that the respondent was not released because he had not yet completed the
required sexual offender treatment program. The respondent filed a petition for
a writ of habeas corpus, claiming that he was entitled to immediate release
from the prison because he had been paroled from his four-to-ten year
sentence to his one-year consecutive sentence, and he had completed the one-
year sentence. The State moved to dismiss the petition, arguing that the
respondent was not entitled to immediate release because the APB had not
granted him “parole to release” from prison, but instead had merely granted
him “parole to a consecutive sentence,” and thus the APB retained the
authority to determine whether he should be released upon completion of the
consecutive sentence. Following a hearing, the court denied the State’s motion

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to dismiss, granted the respondent’s petition, and ordered that the respondent
be released from prison. Thereafter, the State sought certiorari review of the
trial court’s order, which we stayed pending our decision.2

“Certiorari is a remedy that is not granted as a matter of right, but rather
at the discretion of the court.” Petition of State of N.H., 166 N.H. 659, 662
(2014); see Sup. Ct. R. 11. “Certiorari is available to review whether the trial
court acted illegally with respect to jurisdiction, authority or observance of the
law, or unsustainably exercised its discretion or acted arbitrarily,
unreasonably, or capriciously.” Petition of State of N.H., 166 N.H. at 662-63.
The issue on appeal is whether the trial court properly granted the
respondent’s petition for habeas corpus relief, a determination that turns upon
whether the APB’s refusal to release him into the community upon completion
of his consecutive sentence constituted “a present deprivation of a protected
liberty interest.” See Brennan v. Cunningham, 126 N.H. 600, 603-04 (1985)
(quotation omitted).

III

We begin our analysis by briefly reviewing the relevant statutory
framework governing sentencing and parole, specifically considering the
authority of the APB. The legislature has articulated the following as its goals
in establishing the parole system:

It is the intent of the legislature that the state parole system
provide a means of supervising and rehabilitating offenders
without continued incarceration and a means by which prisoners
can be aided in the transition from prison to society. It is also the
intent of the legislature that the policies, procedures and actions of

2 By letter dated June 15, 2015, respondent’s counsel advised the court that the respondent had
been released from prison on parole. She asserts that, as a result, “the appeal is now moot as to
him.” In light of this letter, we directed the State to file a response setting forth its position as to
whether the appeal is moot. In its response, the State contends that the appeal is not moot
because, in light of the trial court’s order that the respondent had been released on traditional
parole by virtue of the APB’s August 2013 order, there is an open issue as to the validity of
conditions imposed by the APB in connection with respondent’s subsequent release. The State
also asserts that the issues raised in this appeal are of pressing public interest to insure the
proper functioning of the parole system, and satisfy the exception to mootness for cases that are
“capable of repetition yet evading review.” State v. Carter, 167 N.H. 161, 164-65 (2014). On the
latter point, the State cites a case from the Hillsborough County Superior Court-North, which
presents a scenario similar to that involved herein, and raises the question of whether a prisoner
who has been paroled to a consecutive sentence that is thereafter suspended must be immediately
released into the community. For the reasons articulated by the State, we conclude that this case
is not moot.

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the adult parole board and the department of corrections relative
to the administration of this system emphasize the need to protect
the public from criminal acts by parolees.

RSA 651-A:1 (2007); see also Knowles v. Warden, N.H. State Prison, 140 N.H.
387, 390 (1995). The statute defines “parole” as “a conditional release from the
state prison which allows a prisoner to serve the remainder of his term outside
the prison, contingent upon compliance with the terms and conditions of
parole as established by the parole board.” RSA 651-A:2, II (2007). The APB is
“responsible for paroling prisoners from the state prison.” RSA 651-A:4, I
(Supp. 2014). To fulfill this responsibility, “the legislature has granted broad
authority to the parole board to enact rules regarding the conduct of parole
hearings, the criteria used to evaluate prisoners who seek parole, conditions for
parolee conduct, and the procedures for parole revocation.” Knowles, 140 N.H.
at 390; see RSA 651-A:4, III (2007).

There is no right to parole in New Hampshire. See Baker v.
Cunningham, 128 N.H. 374, 380-81 (1986) (“Although any State legislature is
free to provide that parole is a matter of right rather than a subject of
discretion, the General Court of this State has not done so” and, “[i]n the
absence of some provision grounded in State law mandating a prisoner’s
release upon proof of certain ascertainable facts, there is no right to parole.”
(citation omitted)); see also N.H. Admin. Rules, Par 301.02 (“Parole shall be
considered a privilege, something to be earned rather than automatically given
. . . .”). Rather, the grant of parole rests squarely within the discretion of the
APB, and “[w]e have held that the parole board’s broad discretion to deny
parole is not limited by RSA chapter 651-A, or by its administrative rules.”
Knowles, 140 N.H. at 390. “As long as the decision [to grant parole] rests upon
. . . essentially discretionary determinations, a prisoner’s interest in parole fails
to rise above the level of a hope.” State v. Gibbons, 135 N.H. 320, 322 (1992)
(quotation omitted); see Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 11
(1979) (“That the state holds out the possibility of parole provides no more than
a mere hope that the benefit will be obtained.”).

The starting point for analysis of the specific issue before us requires us
to consider the nature of the APB’s act of paroling a prisoner from the sentence
he is currently serving to another sentence ordered to be served consecutively
to the first. As stated, the APB is tasked with paroling prisoners from the state
prison into the community. RSA 651-A:4, I. When a prisoner is serving one
sentence, the transition from prison to society is a straightforward one: he or
she is eligible for traditional parole into the community upon completion of the
minimum of the sentence. RSA 651-A:6, I. When a prisoner is serving
multiple sentences, one or more of which is consecutive to another, however,
this transition to society is no longer a one-step process: instead, the prisoner
must first transition from one sentence to another before finally transitioning
into the community. Faced with this situation, the APB has developed an

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intermediate step in the traditional parole process that allows prisoners to
parole into a consecutive sentence upon completion of the minimum of a prior
sentence. The effect of this practice is to restructure the order of sentences by
allowing a prisoner to serve time on a consecutive sentence while continuing to
serve time on the initial sentence, and thus potentially earn conditional release
into the community more quickly.

Although no provision of RSA chapter 651-A or the administrative rules
governing parole specifically authorizes the APB to grant parole to a
consecutive sentence, neither do the statutes or the rules prohibit it from doing
so; and, given the APB’s longstanding history of exercising this power, we agree
with the State that the legitimacy of this practice is now beyond question. See
N.H. Retirement System v. Sununu, 126 N.H. 104, 109 (1985) (“[T]he long-
standing practical and plausible interpretation [of a statute] applied by the
agency responsible for its implementation, without any interference by the
legislature, is evidence that the administrative construction conforms to the
legislative intent.” (quotation omitted)); see also Appeal of Town of Seabrook,
163 N.H. 635, 644 (2012).

The respondent argues that the APB, upon deciding to parole him to his
consecutive and final sentence, could not then “continue to hold [him] on the
prior AFSA sentence after he ha[d] completed serving the consecutive one-year
sentence.” We disagree. As part of its broad discretion to administer the
parole process, the APB has the authority to deny parole altogether in
appropriate circumstances. It thus follows that, within this discretion, the APB
has the lesser authority to utilize the intermediate mechanism of parole to a
consecutive sentence without thereby committing to release the prisoner into
the community upon completion of that sentence.3 We are likewise not
persuaded by the respondent’s additional argument that such a result
impermissibly alters the ordering of the sentences as imposed by the court.
Paroling a prisoner to a consecutive sentence necessarily — and permissibly —
has the effect of changing the order of sentences, i.e., in consolidating the
unexpired portion of both an initial sentence and a consecutive sentence; and
no meaningful alteration results from a prisoner continuing to serve the
unexpired portion of the first-imposed sentence after completing the
consecutive sentence.

The respondent also contends that the APB’s act of paroling him to his
consecutive sentence entitled him to a revocation hearing before he could be
“returned” to serving his four-to-ten year sentence. Again, we disagree. This
3We note that, in cases where the maximum of the consecutive sentence has not been
suspended, as happened here, the issue of whether the APB can parole to a consecutive sentence,
while retaining the authority to decide later whether to release the prisoner on that sentence, may
have lesser practical significance because, regardless of whether such authority exists, the APB
would have discretion to decide whether the prisoner should be granted parole to release on the
consecutive sentence upon completion of the minimum term of that sentence.

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argument is premised upon two incorrect assumptions: first, that a prior
sentence is extinguished when a prisoner is paroled to a consecutive sentence;
and second, that the act of paroling the respondent to his consecutive sentence
gave him a liberty interest in conditional release upon completion of that
sentence. Because the respondent’s four-to-ten year sentence was not
completed, and was not put on hold, at the time he was paroled to his
consecutive sentence, he could not have been “returned” to his prior sentence,
as he never “left it” in the first place.

More importantly, the parole-to-consecutive practice does not, as the
respondent urges, invariably constitute a determination by the APB that the
prisoner shall be conditionally released into the community upon completion of
the consecutive sentence. Rather, “parole to consecutive” means what it says:
parole to a consecutive sentence, not traditional parole to conditional release
into the community. That distinction is critical because a prisoner’s desire to
obtain parole release — unlike his interest in remaining in the community once
released — does not trigger constitutional protection against the deprivation of
a liberty interest.

A decision to deny parole thus remains qualitatively different from
a decision to revoke parole once granted. While the decision to
revoke is characteristically circumscribed by the burden on the
government to prove facts amounting to a violation of parole
conditions, the decision to deny is discretionary. Therefore,
though the State may not revoke without procedural due process,
the decision to deny is not so circumscribed.

Baker, 128 N.H. at 381 (citations omitted); see Greenholtz, 441 U.S. at 9-10
(discussing the “crucial distinction” between parole release and parole
revocation, and quoting Judge Henry Friendly’s observation that “there is a
human difference between losing what one has and not getting what one
wants” (quotation omitted)). Because the APB’s practice of paroling to a
consecutive sentence does not contemplate conditional release into the
community, but rather is an intermediate step that occurs prior to parole
release consideration, the APB’s act of paroling the respondent to his
consecutive sentence did not trigger a liberty interest such that the APB was
required to hold a parole revocation hearing before requiring him to continue
serving time on his AFSA sentence. See Baker, 128 N.H. at 380-81 (no right to
parole release in New Hampshire).

Our conclusion that the APB has the authority to parole to a consecutive
sentence, while retaining discretion to determine later whether the prisoner
should be released into the community, also furthers public policy. By not
requiring it to commit to eventual release at the time it determines whether a
prisoner can start serving a consecutive sentence, the APB may be encouraged
to grant parole to consecutive sentences in close cases where it would not do so

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if that decision carried with it the requirement that the prisoner be released
upon completion of that sentence. However, were we to accept the
respondent’s argument that the APB loses the ability to later reevaluate a
prisoner’s readiness for release because the parole-to-consecutive practice
creates a liberty interest in a future conditional release upon completion of the
consecutive sentence — an event that may not come to fruition for five, ten, or
fifteen years, or longer — the APB might well be reticent to utilize this practice.
The inevitable result would be a decreased likelihood of paroling a prisoner to a
consecutive sentence upon completion of the minimum term of his or her initial
sentence, thereby jeopardizing the practice’s presumptive benefits to prisoners.
In short, by allowing prisoners to serve a consecutive sentence concurrently
with a prior sentence, and earn conditional release more quickly, the APB
effectuates the legislature’s goal that, in administering the parole process, it
both supervise and rehabilitate prisoners without unnecessarily prolonging
their incarceration, a beneficial result that we will not undo. See RSA 651-A:1.

In the alternative, the respondent argues that, even assuming that the
practice of paroling to a consecutive sentence without automatic release at the
conclusion thereof is permissible, “the habeas court properly found that [the
respondent] had been ‘paroled in the traditional sense’” rather than paroled to
a consecutive sentence. We are not persuaded.

In its order, the trial court concluded that, because “the APB ha[d] failed
to clearly state that [the respondent] was being administratively paroled,”4 he
“was paroled in the traditional sense to his one-year imposed consecutive
sentence,” and therefore was entitled to be released when that sentence ended.
In reaching this conclusion, the trial court relied upon the APB Form, which
states, under the heading “Parole Board Notes,” that the respondent was
“approved for parole to consecutive, must have ARC review prior to release
consideration.”

The respondent, noting that “principles of due process require that
orders relating to the imposition of criminal sentences be expressed in clear
terms,” asserts that, because there is no “meaningful distinction” between a
parolee “receiving an order regarding the grant or denial of parole and a
criminal defendant receiving a sentence from a judge,” the same due process
requirement of clarity of terms should also govern the APB’s actions. See State
v. Fletcher, 158 N.H. 207, 209-10 (2009) (“Due process requires a sentencing
court to clearly communicate to the defendant the exact nature of the sentence

4 By “administrative parole,” the trial court apparently meant to describe a kind of parole, such as
parole to a consecutive sentence, in which the prisoner is not entitled to automatic release at
some point in the future. We are advised by the State that the APB does not utilize the term
“administrative parole” to describe the practice of parole to a consecutive sentence.

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as well as the extent to which the court retains discretion to modify it or
impose it at a later date.” (quotation omitted)). Even if we were to assume
without deciding that this analogy is appropriate, our reading of the APB’s form
does not lead us to conclude that it provides support for granting the
respondent the relief he seeks.

We interpret written documents de novo. See Edwards v. RAL Auto.
Group, 156 N.H. 700, 705 (2008) (“The interpretation of final judgments, like
the interpretation of other written documents, is a question of law, which we
review de novo.”). Accordingly, the respondent’s suggestion, that we must
accept the trial court’s finding regarding the APB form because it represents a
factual determination supported by the record, is misplaced. Based upon its
plain language, we conclude that the APB Form was sufficiently clear, in that it
notified the respondent that he was being paroled to a consecutive sentence,
and that such action did not create a reasonable expectation that the
respondent was automatically entitled to conditional release upon the
completion of his consecutive sentence. It states that the respondent would
need ARC review prior to release consideration, thus indicating that, at the
time he was paroled to the consecutive sentence, the APB had not yet
considered him for release into the community. Because we conclude that the
form was sufficiently clear to notify the respondent that he was only being
paroled to his consecutive sentence, we reject his argument to the contrary.

For the foregoing reasons, we conclude that the trial court erred as a
matter of law in granting the respondent habeas corpus relief. We therefore
reverse its judgment.

Reversed.

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