NH Supreme Court - illegal Sentences

New Hampshire Supreme Court. Maximum Jail Sentence, and Maximum Fine, PLUS Probation = Illegal Sentence.

The State accused Hancock of urinating on a probation officer, charged as a misdemeanor due to a prosecutorial mistake in drafting the charge. The jury convicted Hancock, and Judge Barry sentenced Hancock to the maximum jail term, 12 months stand committed, and the maximum fine, $2000, PLUS the maximum term of probation, two years. The Court reversed, ruling that Hancock's sentence was illegal, and more importantly, holding that a contempt prosecution is not an available sanction for a probation violation. State v. Richard Hancock, _ N.H. (Oct. 16, 2007).

Appellate attorney Ted Lothstein contended that this sentence constituted plain error, because by imposing the maximum jail sentence and maximum fine, the trial court exhausted all of its sentencing authority, and could not also place defendant on probation. Therefore, the order of probation was an illegal sentence, because it could not be enforced by any sanction.

The State, however, advanced the following argument: 1) A sentence is a court order, 2) This sentence included probation, 3) Therefore the probation was a court order, 4) Violation of a court order is punishable by a contempt prosecution, 5) Therefore, violation of probation is punishable by a contempt prosecution, which carries a maximum sentence of a year in jail, INDEPENDENT of the penalties for the underlying offense.

At oral argument, defendant argued that the State's position could mean endless punishment as a trial court continues to impose terms of incarceration for probation violations even after the maximum term under law for the offense has been fully served.

The Court agreed with defendant. In an opinion authored by Associate Justice Linda Dalianis, held that a trial court cannot sentence a defendant to probation, unless the court has withheld some portion of the maximum jail sentence and/or maximum fine. Accordingly, the Court vacated the sentence and remanded for resentencing.

As the Court's decision to treat Hancock's issue as plain error illustrates, its never too late to challenge an illegal sentence. Don't worry if it was a negotiated plea, because even the defendant's agreement cannot confer authority upon the trial court to impose an illegal sentence. Crosby v. Warden, 152 N.H. 44, 47 (2005).

Read State v. Hancock

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