Thayer, J., did not sit; the others concurred.
1. Constitutional Law--Ex Post Facto Laws--Generally
A law or an application of a law is ex post facto if it makes an action done before the passing of the law, and which was innocent when done, criminal, and punishes such action; or aggravates a crime, and makes it greater, than it was when committed; or changes the punishment, and inflicts greater punishment, than the law annexed to the crime when committed. N.H. Const. pt. I, art. 23. 520
2. Constitutional Law--Ex Post Facto Laws--Particular Cases
Application of amended law limiting when prisoners could petition for sentence suspension would violate the State's proscription against ex post facto laws, where new law did not exist when defendant committed crime for which she was sentenced, and inflicted greater punishment on defendant, potentially extending her period in prison. N.H. Const. pt. I, art. 23, RSA 651:20, I(a).
3. Constitutional Law--Ex Post Facto Laws--Generally
One is not barred from challenging change in penal code on ex post facto grounds simply because punishment he received under new law was not more onerous than that which he might have received under old; ex post facto clause looks to standard of punishment prescribed by statute, rather than to sentence actually imposed.
4. Constitutional Law--Ex Post Facto Laws--Generally
The presence or absence of an affirmative, enforceable right is not relevant to the ex post facto prohibition.
The opinion of the court was delivered by: Johnson
The Superior Court (Dickson, J.) transferred without ruling the question whether application of RSA 651:20, I(a) (Supp. 1993) to the defendant's pending petition for sentence suspension would violate the State and federal constitutional proscriptions against ex post facto laws. We hold that such an application would violate part I, article 23 of the State Constitution.
In 1986, the defendant, Anne Marie Reynolds, pled guilty to second degree murder. On the date of her crime, RSA 651:20 (1986) (the old law) permitted prisoners to petition for sentence suspension every two years. Reynolds filed such a petition in January 1990, without success. In 1992, the legislature amended the old law, effective January 1, 1993, to preclude violent offenders such as Reynolds from petitioning for sentence suspension more often than every four years. Laws 1992, 254:13 (codified at RSA 651:20, I(a) (Supp. 1993)) (the new law). In April 1993, Reynolds filed the pending petition. The State objected to it as premature under the new law. Reynolds responded that application of the new law to her petition would violate the State and federal constitutional prohibitions against ex post facto laws. The superior court then transferred this question to us pursuant to Supreme Court Rule 9. Although Reynolds invokes both the State and Federal Constitutions in making her ex post facto argument, we decide this case solely under part I, article 23 of the New Hampshire Constitution. As we recently said in Petition of Hamel, 137 N.H. 488, 494, 629 A.2d 802, 806 (1993) (citations omitted):
"Both article 1 , section 10 of the Federal Constitution and part I, article 23 of the New Hampshire Constitution forbid ex post facto penal laws. As the protection afforded by both provisions in this regard is the same, we decide this issue under the State Constitution with reference to federal decisions to the extent that they may aid our analysis."
See State v. Ball, 124 N.H. 226, 231, 471 A.2d 347, 350 (1983); see also Michigan v. Long, 463 ...