Criminal Law – Sentencing:

Bethany M. Whitmarsh, LeClairRyan Providence, R.I.
Experienced litigator represented clients in a wide range of financial service and real estate litigation.

Cheshire, No. 2016-0530, September 11, 2018

Reversed and remanded.

  • Whether the trial court properly denied the defendant’s request for pretrial confinement credit toward  suspended sentence.

In 2011, Defendant pled guilty to receiving stolen property and was sentenced to four to 14 years in state prison, suspended for 15 years, with the condition that Defendant be of good behavior. On October 10, 2015, Defendant was arrested for an August 31, 2015 burglary and he was unable to post bail so remained in prison pending resolution of the charges. On July 8, 2016, the State moved to impose Defendant’s 2011 suspended sentence based on the violation of the good behavior condition because of the commission of the 2015 burglary. On August 24, 2016, the trial court imposed three to six years of the 2011 sentence.

Defendant moved for pretrial confinement credit pursuant to RSA 651:3 and RSA 651-A:23 on the basis that he had remained in prison solely due to his indigence and had he not been indigent, and posted bail, then he would have been released on bail until the August 24, 2016 finding entered.

The trial court denied Defendant’s motion on the grounds that Defendant was being held pursuant to the new charges and he would receive pretrial credit on any sentence he received if convicted of those charges. Defendant appealed arguing that he would serve nearly an additional year over the imposition of the suspended sentence due to his indigency and such constituted impermissible discrimination intended to be prohibited by the presentence confinement statute.

Noting the purpose of the presentence confinement credit statutes to be prevention of an indigent defendant from serving a different amount of time from an otherwise identically situated defendant with the ability to furnish bail, the court interpreted the statutes to allow Defendant to receive credit for time served prior to imposition of the suspended sentence. The court explained that the trial court conducted the equivalent of a trial regarding Defendant’s violation of the good behavior condition of his 2011 sentence and found that Defendant’s presentence confinement related to the 2011 “criminal episode” because the sentence was imposed based on the 2011 suspended sentence.

The court remanded with instructions for the trial court to grant pretrial credit toward the 2011 suspended sentence.


Gordon J. MacDonald, attorney general, and Elizabeth C. Woodcock, assistant attorney general, for the State; Christine C. List, assistant appellate defender, for the defendant.