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Bar Journal - September 1, 2000

Extended Term Sentencing Under RSA 651:6 After Apprendi v. New Jersey

By:

I. INTRODUCTION

Criminal practitioners in New Hampshire’s Superior and District Courts are well acquainted with the Extended Term of Imprisonment statute, RSA §651:6, which provides for enhanced penalties, in the form of increased minimum and maximum terms of imprisonment, upon the finding of certain aggravating factors.  The duty to make such findings, and to include them in the record, falls on the sentencing judge.2

On June 26, 2000, the United States Supreme Court decided Apprendi v. New Jersey,3 holding that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”4 The decision struck down a procedure required by a New Jersey statute—but, significantly, not the statute itself—that increased the maximum prison term for certain offenses from ten years to twenty years based on a finding by the sentencing judge, by a preponderance of the evidence, that the defendant “acted with a purpose to intimidate an individual or group of individuals because of race, or other characteristics.”5 After Apprendi, any factual finding—other than that of a prior conviction—that increases the maximum statutory sentence must be made by the jury on proof beyond a reasonable doubt, even if the fact was previously treated as a “sentencing enhancement factor” to be determined by the court, or by some other standard of proof.

This article  will provide a general overview of extended term sentencing under §651:6 of the New Hampshire Criminal Code, a brief discussion of the Apprendi case and opinion, an analysis of Apprendi’s effect on extended term sentencing, and a non-exhaustive list of options available to judges and criminal practitioners in dealing with the post-Apprendi world of sentencing criminal defendants.

II. EXTENDED TERM SENTENCING UNDER THE NEW HAMPSHIRE CRIMINAL CODE

Enacted by the Legislature in 1971, the Extended Term of Imprisonment statute6 provides for enhanced penalties - - in the form of lengthier periods of imprisonment - - under fourteen different circumstances ranging from “exceptional cruelty or depravity in inflicting death or serious bodily injury,”7 to committing certain crimes in a “safe school zone,”8 to devoting oneself to criminal activity as a major source of livelihood.9 The list of enhanced penalty-triggering circumstances is set forth at RSA §651:6 (I)(a):

§651:6  Extended Term of Imprisonment

I. A convicted persosn may be sentenced according to paragraph II if the court also finds, and includes such findings in the record, that:

  1. the circumstances for which he is to be sentenced show that he has knowingly devoted himself to criminal activity as a major source of livelihood;10 or
  2. the court has subjected him to a psychiatric examination on the basis of which the court finds that he is a serious danger to others due to a gravely abnormal mental condition;11 or
  3. He has twice previously been imprisoned, in this state or in any other jurisdiction, on sentences in excess of one year; or
  4. He manifested exceptional cruelty or depravity in inflicting death or serious bodily injury on the victim of his crime;12 or
  5. He has committed a felony involving the use of force against a person with the intention of taking advantage of the victim’s age or physical disability; or
  6. He has committed or attempted to commit any of the crimes defined in RSA 631 or 632-A against a person under 13 years of age;13 or
  7. He was substantially motivated to commit the crime because of hostility towards the victim’s religion, race, creed, sexual orientation as defined in RSA 21:49, national origin or sex; or
  8. He has knowingly committed or attempted to commit any of the crimes defined in RSA 631 where he knows the victim was,  at the time of the commission of the crime, a law enforcement officer acting in the line of duty;14 or
  9. He was an on-duty law enforcement officer15 at the time that he committed or attempted to commit any of the crimes defined in RSA 631; or
  10. Such person has committed a crime listed in RSA 193-D:116 in a safe school zone under RSA 193-D; or
  11. Such person possesses a radio device with the intent to use that device in the commission of robbery, burglary, theft, gambling, stalking, or a violation of any provision of RSA 318-B.17 In this section, the term “radio device” means any device capable of receiving a wireless transmission on any frequency allocated for law enforcement use, or any device capable of transmitting and receiving a wireless transmission; or
  12. Such person has previously been convicted of a violation of RSA 630:3, II, RSA 265:82-a, I(b) or II(b), or any crime in any other jurisdiction involving driving a motor vehicle under the influence of controlled drugs or intoxicating liquors, or both, and such person has committed a crime as defined under RSA 630:3, ii or RSA 265:82-a, I(b) or II(b); or
  13. Such person has twice previously been convicted in this state or any other jurisdiction, for driving a motor vehicle under the influence of intoxicating liquors or controlled drugs, or both, and such person has committed a crime as defined under RSA 630:3,II or RSA 265:82-A, I(b) or II(b).
  14. Such person has committed or attempted to commit negligent homicide as defined in RSA 630:3,I against a person under 13 years of age who was in the care of or under the supervision of the defendant at the time of the offense.

The statute expressly provides that it is the court’s function, and not that of the jury, to make the requisite factual findings under RSA §651:6, I(a) through (n).18 Once the sentencing court has made one or more of the above-listed findings, the Extended Term statute authorizes the imposition of several different imprisonment term enhancements based on the classification of the crime of conviction.19 For murder,20 and for a third sex offense under RSA §632– A:2 or RSA §632-A:3,  the statute authorizes the court to impose a sentence of life imprisonment.21 For felonies other than murder, the statute authorizes a ten-year minimum, and a thirty-year maximum, term of imprisonment.22 For misdemeanors, a two-year minimum and a five-year maximum, are authorized.23 A minimum sentence of fifteen years and a maximum of life imprisonment without parole are authorized for a class A felony under RSA §632-A:2, I(l) if the defendant is also convicted of a subsequent separate offense under the same statute.24 If a person possesses a radio device25 in the commission of robbery, burglary, theft, gambling, stalking, or a violation of the Controlled Drug Act,267 the statute authorizes a 90-day minimum sentence, and a one year maximum.27

III. APPPRENDI V. NEW JERSEY

Charles Apprendi’s case came to the United States Supreme Court after his conviction in New Jersey state court of second-degree possession of a firearm for an unlawful purpose.28 A few nights before Christmas, 1994, Apprendi fired several 22-caliber rounds into the home of an African-American family.29 Arrested about an hour after the shooting, Apprendi explained to the Vineland, New Jersey police that although he did not know the family, he objected to their recent move into an all white neighborhood.30

Second-degree possession normally carried a penalty range of five to ten years imprisonment.31 At the sentencing hearing, however, the trial judge found by a preponderance of the evidence that Apprendi’s actions were undertaken “with a purpose to intimidate” and that “the crime was motivated by racial bias.”32 Applying New Jersey’s “hate crime law,” which authorized the court to impose an “extended term” of imprisonment if it found by a preponderance of the evidence that the defendant committed the crime “with a purpose to intimidate an individual or a group of individuals because of color, race, gender, handicapped, religion, sexual orientation, or ethnicity,”33 the judge sentenced Apprendi, over his constitutional objection,34 to a 12-year term of imprisonment.35 Both the Appellate Division of the Superior Court of New Jersey36 and the New Jersey Supreme Court37 affirmed the conviction.

On certiorari,38 the United States Supreme Court reversed.  Writing for a 5-4 majority, Justice Stevens announced the rule of law established by the case: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”39 Basing its holding on the Due Process Clause of the Fourteenth Amendment and the Sixth Amendment rights to a jury trial and conviction only upon proof beyond a reasonable doubt,40 the Court concluded that the New Jersey state legislature’s placement of the “purpose to intimidate” factor in a sentencing enhancement provision, as opposed to including it an as an element of a substantive offense, was irrelevant.  It reasoned  that “when the term ‘sentence enhancement’ is used to describe an increase beyond the maximum authorized statutory sentence, it is the functional equivalent of an element of a greater offense than the one covered by the jury’s guilty verdict.”41

The Court did not overrule its prior decision in Almendarez-Torres v. United States,42 which held that prior conviction of a crime may constitutionally be treated as a sentencing factor to be found by a sentencing judge rather than a jury, regardless of whether it increases the applicable statutory maximum. The court minimized that decision, however, as a “narrow exception to the general rule” and noted that “it is arguable that Almendarez-Torres was incorrectly decided.”43

Although the opinion referred to facts that increase the statutory maximum as the “functional equivalent” of elements and held that those facts must be found by the jury beyond a reasonable doubt,  the Court did not resolve whether such facts must be treated as elements in every sense and for all purposes.  The Court did not expressly hold, for example, that such maximum sentence-enhancing facts must be charged in the indictment, as opposed to only included in the  jury charge as elements which the prosecution must prove beyond a reasonable doubt.  The Court’s footnoted dictum in Jones v. United States44 was more explicit on this point.45 The New Hampshire Supreme Court has an opportunity to interpret, apply, and define the scope of Apprendi as it applies to indictments, informations and grand jury practice in a case pending before it, State v. Jay Ouellette.46

Finally, the Court was careful to note that “nothing [in the history of American constitutional jurisprudence] suggests that it is impermissible for judges to exercise discretion–taking into consideration various factors relating both to offense and offender–in imposing a judgement within the range prescribed by statute.”47

IV. EXTENDED TERM SENTENCING AFTER APPRENDI

Although reasonable minds may differ as to the most efficient,  most constitutionally sound, and most advantageous (to the prosecution on one hand and the defense on the other) approaches after Apprendi, one thing is certain:  extended term sentencing, as it has been applied procedurally since 1971, can not stand.  It is no longer permissible for a sentencing judge to make the various factual findings which trigger extended term sentences.  The Extended Term statute provides, and the traditional practice has been, that the sentencing court makes the requisite findings under RSA §651:6, I (a) through (n) at a sentencing hearing.  Those findings now must be made by a jury, and must be proven beyond a reasonable doubt.

Because the majority opinion specifically exempted prior convictions from its holding, however, it is arguable that certain provisions of the Extended Term statute–specifically the three subsections that involve prior convictions48 — are unaffected by Apprendi.  Because of the express doubts apparently held by a majority of the Court as to the correctness of the Almendarez-Torres decision, some prosecutors may wish to proceed with caution and address those provisions in the same ways (see infra at Part IV-B) as the extended term-triggering facts which do not involve prior convictions and are clearly covered by Apprendi.

The options available to prosecutors, defense counsel, and trial judges include, but are not limited, to: (1) rejecting the Extended  Term statute as unconstitutional; (2) presenting indictments to grand juries which allege as material elements the various extended term-triggering factors listed in the statute; (3) presenting indictments that include alternative counts including or excluding extended term-triggering facts; (4) special verdicts; (5) lesser-included offense jury instructions; and (6) bifurcated trials.

A. Rejecting RSA §651:6 As Unconstitutional

Quoting his concurrence in Jones v. United States, Justice Stevens wrote: “It is unconstitutional for a legislature to remove from the jury the assessment of facts that increase a wide range of penalties to which a criminal defendant is exposed.”49 Defendants are likely to cite this language in support of arguments that RSA §651:6 has been invalidated as unconstitutional by Apprendi.  The state would  likely counter with an argument that Apprendi does not invalidate the Extended Term statute as unconstitutional because the Supreme Court  did not strike down the New Jersey hate-crime statute as unconstitutional.  Rather, it invalidated the procedure utilized by the New Jersey court under the statute, and required that statutory factors triggering increased maximum sentences be applied in a manner consistent with its holding — proved to a jury, and beyond a reasonable doubt.  “Legislative enactments are construed to avoid conflict with constitutional rights, and provisions may be cured through judicial construction.”50 The Legislature clearly intended to impose more severe punishment on defendants for crimes committed under certain circumstances, the argument would go, and the Extended Term statute should be construed and applied in a manner that preserves its constitutionality, not simply stricken from the books.

B. Imposing Extended Term Sentences In Accordance With Apprendi’s Constitutional Requirements

1. Alleging Extended Term-Triggering Facts in Indictments as Material Elements

One approach to preserving the constitutional viability of extended term sentencing is for prosecutors to include the extended term-triggering factors set forth in RSA §651:6, I in their charging documents — in other words, presenting to the grand jury indictments which specifically allege those factors.  Assuming the grand jury returned such an indictment, the petit jury would be required to unanimously find that an extended-term triggering factor had been proven beyond a reasonable doubt in order to return a guilty verdict, thus enabling the judge to impose an extended term sentence without violating Apprendi’s requirements.

Defendants would likely object to the inclusion in indictments of certain factors — prior convictions, for example51 — that would require the grand jurors to hear potentially prejudicial evidence in their consideration of whether there is a sufficient probable cause basis to return an indictment.  Petit jurors would also hear evidence of prior convictions as the clerk of court reads the indictment at the beginning of trial, as well as substantive evidence of such prior convictions in satisfaction of the state’s burden of proof.  It is unlikely that defense counsel would idly submit to such a procedure.

One solution to some of these prejudice-based objections is for the parties to agree, or for the court to order, redaction from the indictment of prejudicial information which the jury would not normally hear such as allegations and evidence of prior convictions.52 This may require that the defendant waive his right to a jury trial as to any extended term-triggering fact he deems too prejudicial to be included in the indictment.

Alleging sentencing-enhancing facts in the bodies of indictments  would also require prosecutors to decide,  at the time of indictment, whether to seek an extended term sentence.  This would implicate a more troubling (to a prosecutor) question: whether to risk an outright acquittal even after proving the substantive elements of the substantive statutory offense beyond a reasonable doubt.  Prosecutors might worry that a jury could return a verdict of acquittal even if it found that the prosecution had proven the elements of the substantive offense beyond a reasonable doubt, but failed to prove an extended term-triggering fact.  This is not simply a matter of a prosecutor’s competitive desire to prevail at trial.  Regardless of one’s views on jury nullification, few would argue that the public would be well served by a process that routinely produces acquittals in violent crime cases, even where the state presents evidence that proves guilt of a substantive offense beyond a reasonable doubt.

Measures could be undertaken, however,  to alleviate the risk of an unintended outright acquittal based on a jury’s failure to find proof beyond a reasonable doubt of a single extended term-triggering fact.  These include, but are not limited to, the utilization of alternative counts, special verdicts, lesser-included offense jury instructions, and bifurcated trials.

2. Alternative Counts

One way of avoiding an unintended outright acquittal based solely on jury’s failure to find an extended term-triggering factor, while complying with the constitutional mandate of Apprendi, is charging offenses with  multiple indictments or a single indictment with multiple counts.  With multiple counts, the grand jury can allege alternative counts concerning the same substantive conduct and offense, either including or excluding allegations of extended term-triggering facts.

For example, with multiple alternative counts, a prosecutor could present to the  grand jury a two-count  indictment.  Count One would  allege First Degree Assault by listing its substantive elements under RSA §631:1.   Count Two would allege “cruel and depraved” First Degree Assault by listing those same substantive elements, plus an allegation of extreme cruelty and depravity under RSA §651:6, I(d).   In this way, a jury that found that the state had proven First Degree Assault could convict the defendant on Count One, but acquit the defendant on Count Two if it found that the state failed to prove beyond a reasonable doubt that the defendant had manifested exceptional cruelty or depravity in inflicting serious bodily injury.   The conviction would stand, but the sentencing judge would be prohibited by Apprendi from imposing an extended term sentence.  If the jury found that the prosecution had proven exceptional cruelty or depravity under RSA §651:6, I(d), the sentencing court would be free under Apprendi to impose an extended term sentence.

3. Special Verdicts

Another method of preserving substantive convictions while allowing for the possibility of extended term sentencing without running afoul of Apprendi would be the utilization of special jury verdicts.  More commonly utilized in civil trial practice, special verdict forms require the jury foreman to indicate, by checking off appropriate entries on the form itself, the jurors’ unanimous finding (or lack thereof) as to each element on which it has been asked to deliberate.

Again using the  “cruel and depraved” First Degree Assault example presented above, if the state provided the required notice53 of its intent to prove exceptional cruelty and depravity, a jury could be instructed to deliberate on the substantive elements of First Degree Assault under RSA §631:6, as well as on the extended term-triggering fact: exceptional cruelty and depravity.

Under this scenario, the jury would indicate on a special verdict form whether it had found  that the state had proven beyond a reasonable doubt the substantive elements of First Degree Assault as well as whether the state had proven beyond a reasonable doubt that the assault had been committed with exceptional cruelty or depravity.  In this way, the court could constitutionally impose an extended term sentence if the jury unanimously found cruelty and depravity, and be precluded from doing so if the jury did not so find.

This would protect the defendant, as Apprendi requires, from an enhanced sentence based on facts that had not been proven to the jury.  At the same time, the risk to the prosecution (and by extension to the public) of an outright acquittal — notwithstanding proof beyond a reasonable doubt of the substantive elements of the offense —- would be alleviated.

4. Lesser-Included Offense Jury Instructions

Another method of preserving a defendant’s constitutional rights under Apprendi while eliminating the risk of an unintended and unjustified acquittal is the utilization of lesser-included offense jury instructions.  “Lesser-included” instructions have long been accepted and are often used. For example, in Second Degree Murder cases,  the Superior Court Judge will often instruct the jury that if it  acquits the defendant of “knowingly” causing the decedent’s death,54 it may consider whether the defendant committed Manslaughter — even though the indictment contains no Manslaughter count — by deliberating on whether the defendant “recklessly” caused the decedent’s death.55 In the event of an acquittal on the lesser-included Manslaughter charge, the Court instructs, the jury may consider whether the defendant committed Negligent Homicide by ”negligently” causing the decedent’s death.56

This procedure similarly could be employed in the context of extended term sentencing.  Again utilizing the First Degree Assault example, the Superior Court Judge would first charge the jury to consider whether the defendant committed “cruel and depraved” First Degree Assault, consisting of both the elements of First Degree Assault under RSA §631:1 and the sentence enhancing provision referencing cruelty and depravity under RSA §651:6,I(d).  If convicted of that charge, the court would be free under Apprendi to impose an extended term sentence.  If acquitted  based only on the jury’s failure to find that exceptional cruelty and depravity were proved beyond a reasonable doubt, the jury could move on to deliberate on a charge of traditional First Degree Assault, consisting only of the elements under RSA §631:1.  If convicted of traditional First Degree assault, the sentencing judge would be precluded by Apprendi from imposing an extended term sentence.

5.  Bifurcated Trials

A bifurcated trial procedure would also protect both the constitutional rights of the accused at stake and the integrity of a guilty verdict on the underlying substantive offense.  Conducted procedurally like a Capital Murder or insanity-defense trial, the proceeding would be split into two parts.  If the jury convicted the defendant of the substantive offense, an immediate second trial  before the same jury would determine whether beyond-reasonable-doubt proof exists of an extended term-triggering factor.  Only if the State prevailed on the second part of the trial could the court impose an extended term sentence.

C. Legislative Reform

Although opinions may differ on whether it would constitute “reform” in the true sense of the word, the Legislature conceivably could  undertake to preserve judicial sentencing discretion while complying with the letter, if not the spirit, of Apprendi.  As Justice O’Connor pointed out in her dissent in Apprendi, a state legislature could amend its criminal code to set an extremely high maximum term of imprisonment for any given offense, and then authorize the sentencing judge to impose any sentence within the maximum range, accounting for any number of factors.57 As the majority pointed out, however, structural democratic constraints exist to discourage legislatures from enacting penal statutes that would expose all criminal defendants to disproportionately high penalties simply to maximize the discretion of sentencing courts.58 Justice O’Connor’s example is probably best understood as an illustration of her point that the rule announced by the Apprendi majority amounts to “meaningless formalism.”59

V. CONCLUSION

Precisely how the United States Supreme Court’s constitutional pronouncements in Apprendi will play out remains to be seen.  Much depends on how prosecutors attempt to comply with the decision, how defense counsel attempt to invalidate extended term sentencing as unconstitutional or otherwise employ Apprendi in their defense strategies, and how Superior Court Judges, and ultimately the New Hampshire Supreme Court, interpret Appprendi.  Regardless, it is indisputable that the discretion afforded to sentencing judges under the Extended Term statute–for better or worse–has been drastically reduced.

ENDNOTES

1. The views expressed in this article are those of the author alone, and should not be construed as opinions or policies of the United States Department of Justice or the Office of the United States Attorney for the District of Massachusetts.

The author is grateful to two experienced criminal law practitioners for their contributions and comments in the writing of this article: Eric R. Wilson of the Nashua law firm of Wilson, Durkin, & Bush; and Assistant Attorney General Christopher H.M. Carter of the Homicide Unit at the Attorney General’s Office. 
2. RSA § 651:6,I (2000).
3. 120 S.Ct. 2348(2000).
4. Id. at 2362-2363.
5. Id. at 2351-52.
6. RSA §651:6.
7. RSA §651:6,I(d).  Aside from the recidiv.sm-based factors listed at subsections I(c),(l), and (m), “exceptional cruelty or depravity” apparently has been the most frequently litigated factor. See, e.g. State v. Dean, 129 N.H. 744 (1987); Lavallee v. Perrin, 124 N.H. 33 (1983); State v. Beaupre, 123 N.H. 155 (1983); State v. Morehouse, 120 N.H. 738 (1980); State v. Lavallee, 119 N.H. 207 (1979); State v. Colby, 116 N.H. 790 (1976); State v. Martineau, 116 N.H.797 (1976).
8. RSA §651:6,I(j).
9. RSA §651:6,I(a).  See, e.g. State v. Gallant, 133 N.H. 138 (1990).
10. Id.
11. See, e.g. State v. Hudson, 119 N.H. 963 (1979).
12. See supra at n. 7.
13. See, e.g. State v. Hennessey, 142 N.H. 149 (1997).
14. See, e.g. State v. Tallard, 143 N.H. 228 (1998).
15. In the context of extended term sentencing, “law enforcement officer” is a sheriff, deputy sheriff, state trooper, city or town police officer, correctional facility employee or official, probation-parole officer, or conservation officer. RSA  §651:6,I(a).
16. RSA §193-D:3 applies to acts of “theft, destruction, or violence ....”
17. RSA §318-B is the Controlled Drug Act.
18. RSA §651:6,I.
19. RSA §651:6,II.
20. Unless “murder” includes Manslaughter under RSA §630:2 and Negligent Homicide under RSA §630:3, the Extended Term statute does not provide for enhanced sentencing for murder convictions— despite the plain language of RSA §651:6,II(c)—because both First Degree Murder and Second Degree Murder are punishable by life imprisonment without any enhancement.  See RSA §630:1-a, III; RSA 630:1-b, II.
21. RSA §651:6, II(c); RSA §651:6,II(d).
22. RSA §651:6,II(a).  The statute does not distinguish between class A and class B felonies.
23. RSA §6515:6, II(b); but see Kiluk v. Potter, 133 N.H. 67 (1990)(District Court may not impose sentence for offense where maximum term of sentence of imprisonment exceeds one year).
24. RSA §651:6, II(e).
25. In the context of extended term sentencing, a radio device is any device capable of receiving a wireless transmission on any frequency allocated for law enforcement use, or any device capable of transmitting or receiving a wireless transmission.  RSA §651:6, I(k).
26. RSA §318-B(2000).
27. RSA §651:6,II(f).
28. 120 S.Ct. at 2352; See N.J. Stat. Ann. §2C:39-4(a)(West 1995).
29. 120 S. Ct. at 2351.
30. Id.
31. N.J. Stat. Ann §2C:43-6(a)(2).
32. 120 S. Ct. at 2352.
33. 120 St. Ct. at 2351; see N.J. Stat. Ann. §2C:44-3(e)(West Supp. 2000).  The provision is substantially similar to the “hate crime” provision in New Hampshire’s Extended Term statute, RSA §651:6, I(g). 
34. Apprendi did not assert a constitutional claim based on the lack of any reference to sentence enhancement or racial prejudice in the indictment.  He relied solely on his right to a trial by jury under the due process clause of the Fourteenth Amendment, and the right to have every element of the offense proven beyond a reasonable doubt. 120 S. Ct. 2356 n.3; see also infra at n. 46.
35. 120 S. Ct. at 2352.
36. 120 S.Ct. at 2352-53.
37. Id. at 2353-54.
38. 528 U.S. 1018, 120 S. Ct. 525, 145 L. Ed. 2d 407(1999).
39. 120 S. Ct. at 2362-63.
40. Id. at 2355-56.
41. Id . at 2365 n. 19. 
42.  523 U.S. 224, 118 S. Ct. 1219, 140 L. Ed.2d 350 (1998). 
43. 120 S. Ct. at 2362.
44. 526 U.S. 227, 119 S. Ct. 1215, 143 L.Ed.2d 311 (1999).
45. “We there noted that “under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximium penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.” Apprendi, 120 S. Ct. at 2355 (emphasis added)(quoting Jones, 526 U.S. at 243 n. 6). 
46. New Hampshire Supreme Court, Docket #98-636.  On July 6, 2000, the Appellate Defender’s Office filed in the Supreme Court a request for leave to present late authority, citing Apprendi.  The State, represented by the Attorney General’s Office, did not object to the Court’s consideration of Apprendi, but argued that it was not controlling.
47. 120 S. Ct. at 2357; see infra at Part IV-C.
48. See RSA §651:6, I (c), (l), (m).
49. 526 U.S. 227, 252-253 (1999)(Stevens, J., concurring).
50.  State .v Smith, 127 N.H. 433, 439 (1985); see also White v. Lee, 124 N.H. 69, 77-78 (1983).
51. Although Apprendi specifically exempted prior convictions from its holding, 120 S. Ct., at 2362-63, the majority opinion strongly suggested that recidivism-based sentence enhancers might also require proof to a jury beyond a reasonable doubt and that the Court might issue a ruling to that effect if squarely presented with the opportunity.  Id. at 2361-63; id. at 2367 (Scalia, J., concurring); id. at 2367-80(Thomas, J., concurring).  Thus, it is possible that cautious prosecutors will allege prior convictions in the post-Apprendi indictments they present to grand juries.  See supra at Part III for a discussion of the Apprendi Court’s exception of prior convictions from its holding.  
52. See id.
53. RSA §651:6,II.
54. RSA §630:1-b(a).
55. RSA §630:2,I(b).
56. RSA §630:3, I.
57. 120 S. Ct. at 2389 (O’Connor, J., dissenting).
58. Id. at 2363 n. 16.  The Court further warned that even if a state legislature took this course, “we would be required to question whether the revision was constitutional under this Court’s prior decisions.” Id.
59. Id. at 2388-90.


The Author
Attorney Joseph N. Laplante works in Boston at the United States Attorney’s Office for the District of Massachusetts, and is assigned part-time to Campaign Financing Task Force in the Criminal Division of the United States Department of Justice in Washington, D.C.  He lives in Nashua.

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