Criminal Law

Ryan M. Borden
Practicing at Ford, McDonald, McPartlin & Borden in Portsmouth,
NH with a focus on bankruptcy representation of
trustees, creditors and debtors, corporate law and commercial litigation.

No. 2019-0103
January 31, 2020

  • Whether the trial court erred in denying defendant’s motion to amend his sentence

In 2007, the defendant was sentenced on two felonies pursuant to a negotiated plea. He was sentenced to a stand-committed sentence of two and one-half years to nine years on the first felony, with the maximum sentence subsequently reduced to seven years. On the second felony, he was sentenced to three and one-half to seven years, which ran consecutively to the first sentence. The second sentence was suspended for ten years subject to conditions.

The defendant was paroled on his first sentence sometime before November 12, 2012. On November 12, 2012, the defendant committed second degree assault and his parole was revoked. Six days later, he resumed his sentence on his first conviction. The first sentence ended on March 9, 2014.

On March 6, 2013, the defendant’s bail was set at $10,000 on the assault charge. He was convicted in February 2014 and sentenced, which the trial court ordered to run consecutively with his second sentence. The trial court imposed his second sentence at that time.

In December 2018, the defendant moved to have his second and third sentences run concurrently, which the trial court denied. The defendant appealed.

On appeal, the defendant argued that the second and third sentences were required to run concurrently based on a plain reading of RSA 651:3, I. The statute provided that a sentence of imprisonment commences when imposed and if the defendant is in custody or surrenders into custody, or starts when the defendant is in custody. The Court held that trial courts retain common law authority to impose consecutive sentences. Nothing in RSA 651:3, I explicitly abrogated the common law and the trial court did not err in denying the defendant’s motion to amend his sentences.

The defendant had appealed the trial court’s denial of his motion to credit pretrial confinement, but the Court declined to rule on it the argument was not briefed was there- fore waived.

Gordon J. MacDonald, attorney general (Meghan C. Hagaman, attorney), for the State. Stephanie Hausman, deputy chief appellate defender, Concord, for the defendant.