Criminal Law

Sam Harkinson
Previously employed as an Assistant County Attorney, and as an insurance adjuster, now as an associate at Hoefle, Phoenix, Gormley & Roberts

No. 2018-0416
March 6, 2020
Vacated and Remanded

  • Whether a sentencing form that was silent on the issue of whether a sentence was to run consecutive or concurrent to a sentence that a defendant was then serving, should be construed in-favor of the defendant’s subjective belief that the sentence would be concurrent when the prosecution is aware that the defendant is currently serving a

In February, 2017, Mr. Nathaniel Smith (the “Defendant”) entered into a plea agreement with the State to plead guilty  to charges related to sale and possession of a controlled drug. As part of the plea agreement, there was an agreement on the sentences that would be requested by the State. Sentencing on the underlying matter was deferred pending the Defendant’s anticipated participation and cooperation in other prosecutions. However, after the plea agreement was executed, a dispute arose as to whether the sentences in the plea agreement were to run consecutive or concurrent to the sentence that the Defendant was then serving on an unrelated matter. This dispute concluded with the Defendant filing a Motion to Enforce the Plea Agreement.

In his motion, the Defendant argued that under the prevailing case law in New Hampshire, because the State was aware at the time of the plea agreement that the Defendant was serving time, and that the plea agreement was silent on the issue, that the sentences were required to be served concurrent. At a hearing on the matter, the State did not dispute that the Defendant subjectively believed that the sentences were to be served consecutively, but argued that the remedy was to have the Defendant withdraw his plea. The Trial Court, in considering the Defendant’s arguments, found that the case was distinguishable from the cases cited in the Defendant’s motion and, therefore, denied the Defendant’s motion. The Trial Court then concluded that the sentences in the plea agreement were to  be served consecutive to the sentence he was then serving. The Defendant’s appeal followed the denial of his motion.

In  reviewing the matter, the   Court noted that it found the earlier precedent addressed by the Defendant instructive and offered analysis based on those cases. Specifically, the Court found that the earlier decisions in State v. Rau and Crosby

  1. Warden to be instructive on the issue of how to interpret the plea agreement in the instant case. Citing Rau, the Court provided that, “[a]t the conclusion of the sentencing proceeding, a defendant and the society which brought him to Court must know in plain and certain terms what pun- ishment has been exacted by the Court.”

In vacating and remanding, the Court found that the bargaining power between the State and a defendant is unequal and, therefore, applied the rule of construction that plea agreements should be strictly interpreted against the drafter when a Court is forced to interpret ambiguous language. The Court further held that the State should be required to provide a defendant an agreement that is clear with respect to the promised sentence and that upon review, a Trial Court must consider the specific terms of the agreement as the defendant would reasonably understand them.

The Court also found that a presumption that sentences found in plea agreements are to be interpreted as being concurrent, is consistent with guidance from the New Hampshire Legislature. Finally, the Court reasoned that this rule would not limit the ability of prosecutors to offer a plea agreement that would be conditioned upon a consecutive sentence, as it would only require the prosecutor to state explicitly that the plea agreement was to run consecutive to the sentence.


Gordon J. MacDonald, Attorney General, with Gordon P. Landrigan, Assistant Attorney General on Memorandum of Law and orally for the State. Stephanie Hausman, Deputy Chief Appellate Defender, on the Brief and orally for the Defendant