Supreme Court At-a-Glance Contributor 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. 2020-0595

January 11, 2022



  • Whether the trial court unsustainably exercised its discretion and committed an error of law by re-imposing the same sentence on remand that it had previously imposed.
  • Whether the trial court violated defendant’s state and federal due process rights by relying on improper information and failing to set forth, in detail, the basis for its sentencing decision.


In 2015, defendant was indicted on five counts of theft by unauthorized taking in violation of RSA 637:3.  The jury heard evidence that defendant made several transactions using his father’s assets without consulting his father or defendant’s siblings, and after obtaining his father’s durable power of attorney, transferred his father’s assets from accounts and trusts in his father’s name to accounts only in defendant’s name.  The jury was instructed on sentence enhancements to determine whether the father was 65 years or older and whether defendant intended to take advantage of his father’s age.  The jury returned guilty verdicts on all five charges and the sentence enhancement factors.  Defendant was sentenced to nine and one-half years to twenty-five years.

Defendant appealed his convictions, which the Court affirmed in a 2018 non-precedential order.  Defendant then filed a motion for new trial based on ineffective assistance of counsel, which was denied.  On appeal of that denial, defendant argued his counsel was ineffective in counseling him on the merits of the State’s plea deal and his exposure to sentencing enhancements.  Had he accepted the plea, defendant would have received two years in the house of corrections, followed by two years of administrative home confinement, and four-to-ten year suspended sentence with a window of ten years after completion of his final year of home confinement.  The Court found trial counsel was ineffective, defendant demonstrated prejudice, and remanded to the trial court to allow it to exercise its discretion in determining whether to resentence the defendant to either the term offered in the plea, the sentence received at trial, or something in between.  On remand, the trial court reimposed the same sentence based upon its review of the charges and convictions, applicable law, including the remand order, and the pleadings and arguments made by counsel.  Defendant unsuccessfully moved for reconsideration.  Defendant appealed.

Applying its unsustainable exercise of discretion standard, the Court rejected defendant’s argument that the trial court failed to remove the taint of the ineffective assistance finding by imposing the same sentence.  The remand order specified that the trial court had the discretion to reimpose the same sentence.  The remand order also placed no boundaries on what factors or information the trial court could consider in imposing its sentence.  The Court held that the trial court did not unsustainably exercise its discretion in reimposing the same sentence.

Applying its de novo review standard, the Court addressed defendant’s due process arguments that the trial court improperly considered information other than that which ordinarily would have been available between the plea offer and sentence and because it failed to explain, in detail, the basis for its sentence.

The Court rejected defendant’s reading of Fitzgerald, 173 N.H. at 582 and Lafler, 566 U.S. at 171-72, which defendant interpreted as requiring the trial court, at resentencing, to limit its consideration to information that ordinarily would have been discovered between acceptance of the plea offer and sentencing.  The Court held that Lafler does not require trial courts to disregard what occurred at trial when attempting to neutralize the taint of ineffective assistance of counsel, the cases did not limit the trial court to information discovered between the plea offer and sentencing, and all other cases defendant cited did not support his arguments.

The Court rejected defendant’s argument that the trial court failed to fully set forth the basis for its sentencing decision.  The Court reviewed prior case law and stated that in instances where suspended sentences are revoked, the trial court must indicate in substance the evidence relied upon and reasons for imposing commitment.  Similarly, in cases on remand where harsher sentences are given, “vindictiveness is presumed” unless the judge states the reasons for the increased sentence on the record, and those reasons are based on objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentence procedure.  Abram, 156b N.H. at 652.  The Court declined defendant’s invitation to extend those rules to the defendant’s case and found that his two-day resentencing hearing at which he was represented by counsel afforded him all due process to which he was entitled.


John M. Formella, attorney general, and Anthony J. Galdieri, solicitor general (Gregory M. Albert, assistant attorney general on the brief), for the State.  Sheehan Phinney Bass & Green, Manchester (Michael D. Ramsdell on the brief), for the defendant.