Argued: February 20, 2019
J. MacDonald, attorney general (Stephen D. Fuller, senior
assistant attorney general, on the memorandum of law and
orally), for the State.
S. Wolpin, assistant appellate defender, of Concord, on the
brief and orally, for the defendant.
defendant, Laryssa J. Benner, appeals a decision of the
Superior Court (Bornstein, J.) imposing her deferred
sentence. On appeal, she argues that the procedures employed
by the trial court in imposing her sentence violated her due
process rights under the State Constitution, and that the
court further erred in finding that there was sufficient
evidence that she violated certain conditions of her deferred
sentence. We affirm.
record reveals the following facts. On May 13, 2015, the
defendant was sentenced to 12 months in the house of
corrections for misdemeanor theft by deception. See
RSA 637:4 (2016). The sentence was deferred for two years
with the trial court retaining "jurisdiction up to and
after the deferred period to impose or terminate the
sentence." The sentencing order further provided that:
Thirty (30) days prior to the expiration of the deferred
period, the defendant may petition the Court to show cause
why the deferred commitment period should not be imposed.
Failure to petition within the prescribed time will result in
the immediate issuance of a warrant for the defendant's
defendant was ordered to be of good behavior, undergo a drug
and alcohol abuse evaluation within 90 days of sentencing,
"abide by all treatment recommendations" provided
by the counselor, and pay restitution in the amount of
12, 2017, the deferred period of the defendant's sentence
expired. The defendant, however, did not petition the court
as provided by the sentencing order, and the State did not
move to impose the sentence. On May 18, 2017, pursuant to the
terms of the sentencing order, the court issued a warrant for
the defendant's arrest. The defendant was arrested on the
warrant in October 2017.
her arrest, the defendant moved to close the case, arguing
that the trial court "lack[ed] authority to impose the
deferred sentence" because "a motion to impose was
not filed in a timely fashion." The State objected,
asserting that, based on the language of the sentencing
order, the State bore no burden following the expiration of
the deferred period because the order "clearly places
the burden on the defendant to move for a show cause
hearing" to establish whether the sentence should be
October 30 hearing, the trial court agreed with the
State's position, noting that "[a] deferred sentence
is different" because it will "be imposed unless
the [d]efendant petitions in a timely manner and shows cause
why the deferred commitment should not be imposed." In
response to the court's decision, the defendant orally
moved to terminate the sentence, but presented no evidence.
Instead, the defendant took the position that merely failing
to file the petition was not enough to impose the sentence,
and argued that the sentence should terminate because
imposition would not further the goals of sentencing given
that she was then on probation in Vermont and being monitored
by a bracelet. According to the defendant, the sentence could
only be imposed if the State proved the conduct that was the
basis for the imposition. Although the court made clear that
the State bore no burden of proof, it permitted the State
"to make a record" and call the defendant's
sister to testify. The court reiterated, however, that even
"if there was no evidence [it] could still impose the
sentence unless the [d]efendant shows cause why the deferred
commitment should not be imposed." Over the
defendant's objections, the sister testified that the
defendant pleaded guilty to charges in Vermont four weeks
earlier and had not completed a drug treatment program.
Specifically, the sister testified that the defendant told
her that she was let out of her initial drug treatment
program at Brattleboro College because her insurance expired,
and also that she was informed by treatment providers that
the defendant had recently been kicked out of a different
program. As to the defendant's conviction in Vermont,
while the sister testified that she could not
"exactly" remember the specific date of the
underlying acts, she testified that they occurred in late
2015 and early 2016. According to the sister, she provided
her copy of the Vermont conviction paperwork to the defendant
prior to the hearing because she and the defendant "got
into an argument [that morning] and [the sister] ripped"
the defendant's copy in half. The defendant, in turn,
provided the copy to trial counsel, who then showed it to the
State prior to the hearing. The sister further explained that
the defendant was aware of the warrant for her arrest, but
did not turn herself in because "she was worried that
the deferred sentence was going to be imposed" and
wanted to get her affairs in order.
conclusion of the hearing, the court asked the
defendant's counsel whether the defendant "was
surprised by any of the testimony [the sister] just"
provided, to which trial counsel answered "no."
Thereafter, the court ruled that the defendant had "not
shown any cause why the deferred commitment should not be
imposed," and thus imposed the sentence. The court
clarified that it did not base its decision on the fact that
the defendant did not file a petition at the end of the
deferred period because doing so would not be proper grounds
for imposing the sentence. Rather, the court reasoned that
the burden was on the defendant to establish good cause why
the sentence should not be imposed, and that she had failed
to meet this burden. As a second, independent ground for its
decision, the court found, based on the sister's
testimony, that the defendant failed to comply with the
conditions of her sentence. This appeal followed.
defendant argues that the trial court violated her due
process rights by placing the burden upon her to show good
cause why the sentence should not be imposed. According to
the defendant, the State bore the burden of proof to
establish the basis for imposing the deferred sentence, and
also was required to provide her with pre-hearing notice and
discovery, including, among other things, a witness list,
witness statements, and the alleged grounds for the
violation. It follows, in the defendant's view, that the
State's failure to meet these obligations deprived her of
a hearing that comported with the requirements of due process
under our State Constitution. Because the defendant's due
process argument is grounded solely upon the State
Constitution, "we base our decision upon it alone,
citing federal cases for guidance only." Bleiler v.
Chief, Dover Police Dep't, 155 N.H. 693, 696 (2007).
We review such constitutional questions de novo.
State v. Abram, 156 N.H. 646, 651 (2008).
general, "[t]rial judges are vested with broad
discretionary powers with regard to sentencing."
State v. Van Winkle, 160 N.H. 337, 340 (2010)
(quotation omitted). Sentencing is "the process in which
rehabilitation, deterrence, and punishment converge, and
where the sentencing court, directed by the Criminal Code and
common law, hands down society's punishment upon a
defendant for his or her crime." State v.
Rothe, 142 N.H. 483, 484 (1997). "Due process
requires that the court inform the defendant at the time of
sentencing in plain and certain terms what punishment it is
exacting as well as the extent to which the ...