Big Changes for NH's Sentence Review Division

Effective March 1, 2013, the Supreme Court has promulgated new rules for NH's Sentence Review Division, rules which may prevent the prosecution from seeking sentence review in certain instances, but which also may result in many accused citizens having no hearing at all.

The Sentence Review Division is a panel of three Superior Court judges that convene to review a sentence imposed after a plea or trial in the Superior Court, but only if the defendant or prosecutor requests sentence review. Sentence Review must be considered with extreme caution by both sides, but especially by the defendant, because the panel of judges has the authority to decrease, affirm, or increase the defendant's sentence. Typically, the most persuasive argument at sentence review will not concern the general "fairness" of the sentence, but rather, whether the sentence is far more harsh or lenient than sentences received by other defendants who committed similar crimes and are otherwise similarly situated. An experienced NH criminal attorney will know exactly how and when such arguments are appropriate.

Here's what's new: 1) the prosecution can no longer appeal any sentence to the house of correction. The criminal defendant and prosecutor can only appeal a state prison sentence (stand committed, deferred or suspended). Thus, for example, if the prosecutor requests a five year sentence in an aggravated driving while intoxicated case where a car accident inflicted bodily injury, but the trial judge only imposes a 12 month house of correction sentence, the prosecutor cannot request sentence review. This change benefits criminal defendants because it gives a "free pass" to an especially lenient judge. No such limitation on the prosecution can be found in the statute which authorizes sentence review, only in the (newly modified) court rules.

When representing a defendant facing significant sentencing exposure, the criminal defense lawyer should now consider whether it would be more prudent to request a house of correction sentence, even if that means substantial jail time, rather than requesting a suspended prison sentence - with the goal of thwarting sentence review.

2) The second change under the new rules is that the judges of the Sentence Review Division will now routinely review the sentencing hearing transcript and other relevant materials and then decide to affirm the sentence prior to any hearing. Thus, many criminal defendants may not have any hearing at all on their application for sentence review. However, if the judges are inclined to increase or decrease the sentence, a hearing must be scheduled. Previously, I believe that the practice of the Sentence Review Division was to grant a hearing on every sentence review application, even though the vast majority of applications resulted in no change to the sentence. Now, the very scheduling of a hearing signals that one or more judges is inclined to modify the sentence in some way.

3) The third change under the new rules is that neither the defendant nor the prosecution can seek sentence review if the parties agreed to what is called a "capped plea" at the time of sentencing. A "capped plea" is a negotiated agreement where the parties set a maximum limit on the sentence which is less than the maximum prison term authorized by law, e.g., a "cap" of 2-1/2 to 5 years in prison on a class B felony conviction that would otherwise carry up to a 3-1/2 to 7 year prison term. Thus, it is now advantageous for the defendant to seek a "cap" in a sentencing proceeding, even if the "cap" is very close to the maximum term under law, if the defendant feels that the sentencing judge will likely impose a fair or lenient sentence. That way, the defendant is protected because the prosecutor cannot seek sentence review.

These rules are promulgated on a "temporary basis." Stay tuned! Read the new rules here. Contact us if you have additional questions for our criminal defense attorney.