Criminal Law

Laura D. Devine
Civil Litigation Attorney
Boyle Shaughnessy Law
Manchester, NH

No. 2017-0687
May 17, 2019


  • Whether procedures employed by trial court in imposing a deferred sentence violated a defendant’s due process rights and whether the trial court erred in finding sufficient evidence that conditions of deferred sentence were violated

The defendant was sentenced to twelve months in the house of corrections for a misdemeanor theft. The sentence was deferred two years. The sentencing order provided that thirty days prior to the expiration of the period, the defendant may petition the court to show cause why the deferred sentence should not be imposed. Here, the deferred period for the sentence expired. The defendant did not petition the court and the State did not move to impose the sentence. Then, pursuant to the terms of the sentencing order, the court issued a warrant for the defendant’s arrest. The defendant was subsequently arrested. The defendant moved to close the case and argued that the trial court lacked the authority to impose the deferred sentence because a motion to impose was not timely filed. The State objected and asserted that the State bore no burden and that the order clearly placed the burden on the defendant to move for a show cause hearing. A hearing was held and the court indicated it agreed with the State’s position that a deferred sentence is different because it will be imposed unless the defendant timely petitions and shows cause as to why it should not be imposed. This appeal followed.

The Court noted that the relevant facts were as follows: At the hearing, the defendant made an oral motion to terminate the sentence, but presented no evidence. The deferred sentence included requirements that the defendant undergo a drug and alcohol abuse evaluation and abide by any treatment recommendations and be of good behavior. The trial court noted that the State bore no burden, but allowed it to present evidence to make a record. The State called the defendant’s sister to testify. The defendant’s sister reported that the defendant had pleaded guilty to criminal charges in Vermont four weeks earlier and had not completed a drug treatment program.

On appeal, the defendant argued that the trial court violated her due process rights by placing the burden upon her to establish good cause as to why the sentence should not be imposed. The defendant also argued that there was insufficient evidence for the court to conclude that the good behavior and drug treatment provisions of the sentence were violated. Last, the defendant argued that there was no evidence that her guilty plea was to a crime as opposed to a violation. The Court conducted a de novo review. The Court also noted that trial judges possess broad discretionary powers with regard to sentencing.

The Court observed that there is a disparity between the case law addressing the issue of the burden of proof. The Court decided the case on the view that the State bore the burden of proof because the State did not dispute that it bore the burden of proof. On appeal, the defendant challenged the notice and disclosure requirements. The Court observed that the defendant failed to establish she was prejudiced by the State’s failure to provide her with advance notice of the evidence it relied on at the hearing. The Court noted that the defendant stated on the record that she was not surprised by her sister’s testimony. The Court also noted that it did not matter whether the guilty plea was to a crime or a violation because the conditions of the sentence required her to be of good behavior, not simply to not commit crimes.


Andrew Wolpon, assistant appellate defender, Concord, for the defendant. Gordon MacDonald, attorney general (Stephen Fuller, assistant attorney general), for the State.