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State v. Long

Supreme Court of New Hampshire

August 19, 2016

THE STATE OF NEW HAMPSHIRE
v.
CHRISTOPHER LONG

          Argued: June 9, 2016

         Hillsborough-northern judicial district

          Joseph A. Foster, attorney general (Elizabeth C. Woodcock, assistant attorney general, on the brief and orally), for the State.

          David M. Rothstein, deputy director public defender, of Concord, on the brief and orally, for the defendant.

          LYNN, J.

         The defendant, Christopher Long, appeals an order of the Superior Court (Nicolosi, J.) imposing a portion of his previously-suspended sentences based upon its finding that he violated the "no-contact" provision of those sentences by filing in circuit court a petition to establish a parenting plan for his and the victim's child. We reverse.

         I

         The record reflects the following facts. In May 2012, the defendant kidnapped the victim, who, at the time, was pregnant with his child. The child was born soon after. In March 2013, the defendant pleaded guilty to six criminal charges for which prison sentences were imposed. Three of the sentences were imposed "stand committed, " requiring the defendant to be imprisoned immediately. The remaining three sentences were suspended for twelve years from the date of the defendant's eventual release from prison. All six of the defendant's sentences included the following provision, which we term the "no-contact" provision for the purpose of this appeal: "The defendant shall have no contact with [the victim] . . . or any members of her immediate family, by mail, phone, email, text message, social networking or through third parties. The defendant shall have no contact with these persons in any manner whatsoever."

         In August 2014, the defendant filed a petition in the circuit court to establish a parenting plan for his and the victim's child. In the petition, the defendant averred that he was the child's biological father and that he "would like a [m]ediator [a]ppointed to help [him and the victim] to create a Parenting Plan." The defendant also averred that he had had no contact with the child and that there was "currently a restraining order in full effect." He requested that the court send the victim "[a]ll copies of Motions, Notification[s], [and] Financial Affidavits" on his behalf. He did not mention the no-contact provision of his sentences. According to the defendant, and not apparently disputed by the State, the victim accepted service of the petition at the courthouse, after having been contacted by the court. Thereafter, she filed a petition to terminate the defendant's parental rights.

         On December 2, the State moved to impose a portion of the defendant's suspended sentences. Although the State conceded that the defendant's parental rights had not been terminated, it argued that he had violated the no-contact provision of those sentences by filing the parenting petition. Following a hearing on the State's motion, the trial court ruled on the record that the no-contact provision was clear and unambiguous and that, by filing the parenting petition, the defendant willfully violated it. Accordingly, the court granted the State's motion, imposing two to four years of the defendant's suspended sentences.

         II

         On appeal, the defendant argues that the trial court erred when it found that he violated the no-contact provision of his suspended sentences. He contends that because he could not reasonably have known that filing the parenting petition would violate the no-contact provision, imposing a portion of his suspended sentences infringed upon his state and federal due process rights. See N.H. CONST. pt. I, art. 15; U.S. CONST. amends. V, XIV. We first address the defendant's arguments under the State Constitution, relying upon federal law only to aid our analysis. State v. Ball, 124 N.H. 226, 231-33 (1983). We review questions of constitutional law de novo. State v. French, 163 N.H. 1, 3 (2011).

         "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." Id. (quotation and emphasis omitted). "The sentencing order must clearly communicate to the defendant the exact nature of the sentence." Id. (quotation omitted). "We have recognized that termination of freedom by revocation of a suspended sentence involves constitutional liberty interests protected by the [State] Due Process Clause." State v. Budgett, 146 N.H. 135, 137-38 (2001) (quotation omitted).

         Some sentencing terms are implied and "need not be explicitly stated to give fair warning to the [defendant], such as that if [he] commits a crime, he will lose the privilege of his conditional liberty." State v. Kay, 162 N.H. 237, 242 (2011). However, "[w]hen the deprivation of a defendant's conditional liberty rests upon the commission of a non-criminal act, he must be given some warning in order to ensure that he understands, in plain and certain terms, the conditions of his sentence." Id. "Due process mandates that a defendant be given actual notice that such conduct could result in the revocation of his conditional liberty." Id. "To hold otherwise would effectively modify the terms of the original sentencing order and result in fundamental unfairness." Id. The interpretation of a sentencing order is a question of law, which we review de novo. Id.

         On the surface, the disposition of this case might appear straightforward. The sentencing order plainly prohibits the defendant from having any contact "in any manner whatsoever" with the victim or her immediate family, including contact through third parties; by filing the parenting petition, the defendant caused such contact to occur. But we cannot simply say "end of story" and resolve the case on this basis because there are broader constitutional principles at stake. Here, the sentencing order did not give the defendant fair ...


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