NH Supreme Court - Sentencing and Remorse

02/28/2008. Sentencing Hearings, Remorse, and the Right Against Self-Incrimination.

In State v. John Burgess, 943 A.2d 727 (2008), an appeal briefed and argued by Theodore Lothstein, the Court analyzed whether a criminal defendant's "lack of remorse" could be used against him at sentencing, without violating the right against self-incrimination, when the accused's silence constitutes the only evidence of "lack of remorse."

Burgess was charged with attempted escape. He testified that he did tamper with his restraint device, and did run from the courtroom in the middle of his jury trial, but did not intend to escape. Not surprisingly, this jury trial swiftly led to a sentencing hearing. There, the trial judge said he took into account Burgess’s lack of remorse, and nonparticipation in the PSI, as aggravating sentencing factors.

The Court established the following principles of law:

1. The State Constitution’s (Pt I, Art. 15) privilege against self-incrimination applies not only in the pre-trial proceedings and trial, but extends throughout the sentencing process.

2. Lack of remorse is relevant to sentencing and the trial court may infer it from other facts and circumstances.

3. The trial court cannot punish defendant for standing trial rather than pleading guilty.

4. The trial court may punish a defendant for his false trial testimony.

5. BUT the trial court “may not constitutionally increase defendant’s sentence because he refuses to admit guilt after conviction.” “[U]nder our sentencing scheme, denying a defendant leniency simply because he fails to speak and express remorse is equivalent to penalizing him for exercising his right to remain silent.”

6. The trial court may not make an end run around proposition #5 by reasoning that defendant’s silence after conviction reflects his lack of remorse or lack of potential for rehabilitation. (Here, the Court recognizes a split of authorities, rejects the bad cases, and follows the good ones).

7. Proposition #5 is LIMITED by two substantial caveats, as follows.

8. First, proposition #5 holds only for those defendants who go to trial. If D pleads guilty, but remains silent at sentencing, the trial court CAN justify a “denial of leniency” based on that silence and failure to express remorse.

9. The second caveat is more complicated and can only be resolved on a case by case basis. Some trial defenses, notably mental state defenses, are not necessarily inconsistent with expressing remorse.

Some examples (from the author, not from the opinion): A person can claim self-defense, necessity or other justification defense, but still express remorse for the injuries suffered by the victim. A person can claim entrapment but still express remorse for getting involved in any manner in the drug trade.

10. To work through an example: A person charged with aggravated DWI resulting in a collision with serious bodily injury can claim she was not impaired when she drove her vehicle, but still express remorse for causing a motor vehicle collision resulting in the grave injuries suffered by the occupants of the other vehicle. Thus her silence at sentencing following an unsuccessful impairment defense at trial could be used against her.

If that same person testified that she neither was impaired nor caused the collision, I read Burgess as holding that the trial court in sentencing may not hold her silence at sentencing against her. The only elements of the offense left are operation, vehicle and public way and it would be absurd for someone to express remorse for operating a vehicle on a public way.

11. Finally, a sentencing court can hold defendant’s nonparticipation in a PSI against defendant, but limited as follows. Burgess did not even show up for his PSI, and this complete lack of nonparticipation the trial court properly could infer lack of amenability to rehabilitation.

Lawyers should encourage their clients to appear for the PSI and If a client participates in the PSI, but refuses to discuss the offense or background facts that could elevate the offense or establish other criminal liability, that silence cannot be used against defendant at sentencing. Note that the skilled lawyer must now take into account the principles in paragraphs 8-10 above in advising a client what she should talk about, and what she should not talk about, during the PSI.