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State v. Mottola

Supreme Court of New Hampshire

April 4, 2014

The State of New Hampshire
v.
Arthur Mottola

Argued January 9, 2014.

Hillsborough-northern judicial district.

Joseph A. Foster, attorney general ( Susan P. McGinnis, senior assistant attorney general, on the brief and orally), for the State.

Christopher M. Johnson, chief appellate defender, of Concord, on the brief and orally, for the defendant.

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

OPINION

Page 1235

[166 N.H. 174] Dalianis, C.J.

The defendant, Arthur Mottola, appeals his conviction on one count of possession of heroin following a jury trial in Superior Court ( Brown, J.), arguing that the trial court erred in denying his motion to suppress. See RSA 318-B:2, I, :26, I(c)(4) (2011). In addition to the issue raised on appeal, we ordered the parties to brief whether the thirty-day appeal period in criminal appeals set forth in Supreme Court Rule 7(1)(C) begins to run on the date of sentencing or on the date on which the mittimus is issued. We hold that a criminal appeal must be filed within thirty days of sentencing and dismiss the appeal as untimely.

Pursuant to Rule 7(1)(C), in the absence of a timely-filed post-trial motion, " [i]n criminal appeals, the time for filing a notice of appeal shall be within 30 days from the date of sentencing." Under Rule 7(1)(C), " [a] timely filed post-trial motion stays the running of the appeal period." Here, the defendant was sentenced on July 30, 2012, and no timely post-trial motion was filed. Consequently, the notice of appeal should have been filed on or before August 29, 2012. The notice of appeal was not filed, however, until October 11, 2012, and, accordingly, we originally dismissed the appeal as untimely filed.

In response, the defendant's trial counsel filed a motion to accept late filing of the appeal, noting that the trial court did not issue a mittimus until September 14, 2012, and that the notice of appeal was filed within thirty days of that date. We treated the pleading as a motion for reconsideration of the dismissal of the appeal and granted reconsideration, but deferred ruling upon the timeliness of the notice of appeal.

[166 N.H. 175] Rule 7(1)(C) is clear on its face. When no timely post-trial motion is filed, a notice of appeal in a criminal appeal must be filed " within 30 days from the date of sentencing." The " date of sentencing" is the date on which the court pronounces the sentence. As we have explained in another context:

Due process requires a sentencing court to communicate clearly to the defendant the exact nature of the sentence as well as the extent to which the court retains discretion to modify it or impose it at a later date. Due process thus imposes an outer limit upon the court's ability to correct a sentence after pronouncing it.

State v. Ortiz, 162 N.H. 585, 596, 34 A.3d 599 (2011) (citation omitted). Thus, the " date of sentencing" is the date on which the court " communicate[s] clearly to the defendant the exact nature of the sentence." Id.

The defendant contends that other Rules " undermine the clarity of Rule 7(1)[(C)] by suggesting that a notice of appeal is only deemed filed when the appellant has fully and completely ...


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