Rule 29. Sentencing Procedures

(a) General

(1) Following a finding or verdict of guilty the court shall hold a sentencing hearing and impose sentence without unreasonable delay. Sentencing hearings in violation and misdemeanor cases shall take place immediately following the finding or verdict of guilty unless the court orders otherwise. In felony cases, the sentencing hearing shall be scheduled for a later date unless the court orders otherwise.

(2) At all sentencing hearings the defendant has a right to be represented by retained counsel, and in class A misdemeanor and felony cases, has the right to be represented by appointed counsel if unable to afford counsel. The defendant also has the right to present witnesses and evidence, and to testify with regard to the sentence to be imposed. As provided in New Hampshire Rule of Evidence 1101(d)(3), the Rules of Evidence do not apply at the hearing.

(b) Pre-Sentence Report

(1) Upon a judgment of conviction or the filing of a notice of intent to plead guilty, the court may order the department of corrections to conduct a pre-sentence investigation pursuant to RSA 651:4.

(2) The contents of and any attachments to the pre-sentence report shall be confidential and shall not be disclosed to anyone except as required by statute or ordered by the court. Either party may refer to the contents, recommendations and attachments of the pre-sentence report in any sentence-related hearing, except where the court has ordered otherwise on the motion of a party or sua sponte. The defendant and the State shall be provided a reasonable opportunity to review the contents of the pre-sentence report and any attachments before sentencing.

(c) Sentencing Hearing

(1) Both the defendant and the State will be afforded the opportunity to address the court, call witnesses, and present evidence relevant to sentencing. The court shall review the pre-sentence report and afford the defendant and the State a reasonable opportunity to challenge, rebut or correct factual material contained within the report that might bear on the sentence.

(2) The victim or next of kin of the victim shall be afforded the opportunity, where provided by law, to address the court prior to the imposition of sentence. No person who gives a victim impact statement shall be subject to questioning by counsel. The prosecutor shall be responsible for informing the victim or next of kin of the right to so address the court.

(d) Extended Term. Prior to imposition of an extended term of imprisonment, the court shall hold a hearing to determine if the jury or the court has made the necessary factual findings.

(e) Monetary Assessments

(1) Fines, restitution or penalty assessments (hereinafter collectively referred to as “assessments”) imposed by the court shall be due and payable on the date the sentence is imposed.  Where a defendant indicates an inability to pay forthwith, the defendant shall complete a statement of resources, under oath, prior to leaving the courthouse.  The court will then determine whether the defendant has the financial ability to pay the assessment.

(2) The determination of a defendant’s financial ability to pay the assessment shall be made by comparing the defendant’s assets and income with the amount of the assessment. The defendant’s assets shall include all real and personal property owned in any manner by the defendant, unless exempt from execution, levy, attachment, garnishment, or other legal process under any state or federal law. The defendant’s income shall include all income, whether earned or not, from any source, unless exempt from execution, levy, attachment, garnishment, or other legal process under any state or federal law, and shall be reduced only by the amount of expenses which are reasonably necessary for the maintenance of the defendant and his dependents and by the amount of defendant’s anticipated or current obligation to repay the Office of Cost Containment for the cost of appointed counsel.  As a court may do when considering an obligor’s ability to pay child support, alimony, or other indebtedness, the court also may consider: (1) spousal, partner and family income or assets to the extent they are available to the defendant; (2) the defendant’s ability to access credit; and (3) the diligence exercised by the defendant in pursuing employment or other means of satisfying his financial obligations. 

(3) In any case where the court finds that the defendant is unable to pay the assessment either on the date the sentence is imposed or later, the court may, if otherwise permitted by law: (i) defer or suspend payment of all or part of the assessment or order periodic payment; or (ii) allow the defendant to perform community service, pursuant to a plan submitted to and approved by the court.  In any such deferral or order of periodic payment, the court shall, pursuant to RSA 490:26-a, II-a, include a $25.00 fee to be added to the assessment.  Every hour of verified community service shall be applied against a fine at the rate of $15.00 an hour.  A community service plan approved under this paragraph shall take into account the defendant’s circumstances including but not limited to age, disability, health, employment, and access to child-care and transportation.

(4) Conduct which the court finds is a willful failure to pay an assessment or to perform community service as ordered may be punishable as civil contempt of court subject to the provisions of RSA 618:9.  “Willful failure to pay” means a defendant has intentionally chosen not to pay the assessment when he has had the ability to do so.   Upon a showing satisfactory to the court that a defendant has failed to pay an assessment ordered by the court, the burden of proof shall be upon the defendant to establish by a preponderance of the evidence that he or she does not have the ability to pay and that he or she has exercised reasonable diligence in pursuing the means to pay. 

(5) No defendant shall be incarcerated for nonpayment of an assessment or non-performance of community service unless the Court, having conducted an ability-to-pay or ability-to-perform hearing which includes making specific inquiry of the defendant concerning his financial circumstances and his reasons for nonpayment or non-performance, concludes that the defendant willfully failed to pay the assessment or perform community service.

(6)  Prior to conducting an ability to pay or ability to perform hearing at which incarceration of the defendant for civil contempt may be imposed if the court finds that the defendant has willfully failed to pay an assessment or perform community service, the court shall provide the defendant with a financial affidavit or financial statement signed under oath and direct that the defendant complete the affidavit or statement and provide it to the court at the hearing.  The court also shall provide reasonable advance notice to the defendant of the following:

(a) that, as a result of the hearing, the defendant may be immediately incarcerated if the court finds that the defendant has willfully failed to comply with the court’s prior order(s) to pay an assessment or perform community service;

(b) that the issues at the hearing will be whether the defendant has the ability to pay the assessment or perform the community service previously ordered and has willfully failed to do so; that the defendant has the burden of proof with respect to these issues; and that the defendant should be prepared at the hearing to provide testimony and answer questions, present witnesses, and furnish documentation or other information bearing on the issues of his financial circumstances and ability to pay the assessment or perform the community service.  

(7)  The court may appoint counsel at state expense to represent an indigent defendant at an ability to pay or perform hearing held pursuant to this rule in a case in which the court finds that the issues are of sufficient complexity or that other special circumstances exist such that it would be fundamentally unfair to require the defendant to proceed without counsel.

(8) In any case where the court is considering the issuance of an order of commitment for willful nonpayment of an assessment, it may also consider whether an order of periodic payments is appropriate under the circumstances as well as the appropriateness of the options set forth in paragraph (3) above. The court shall also make findings in writing or on the record of the facts upon which the court has made its determination that the defendant has willfully failed to pay the assessment or perform community service as ordered. 

(f) Probation. The terms and conditions of probation, unless otherwise prescribed, shall be as follows. The probationer shall:

(1) Report to the probation/parole officer at such times and places as directed, comply with the probation/parole officer's instructions, and respond truthfully to all inquiries from the probation/parole officer;

(2) Comply with all orders of the court, board of parole or probation/parole officer, including any order for the payment of money;

(3) Obtain the probation/parole officer's permission before changing residence or employment or traveling out of state;

(4) Notify the probation/parole officer immediately of any arrest, summons or questioning by a law enforcement officer;

(5) Diligently seek and maintain lawful employment, notify probationer's employer of probationer’s legal status, and support dependents to the best of probationer’s ability;

(6) Not receive, possess, control or transport any weapon, explosive or firearm, or simulated weapon, explosive, or firearm;

(7) Be of good conduct and obey all laws;

(8) Submit to reasonable searches of probationer’s person, property, and possessions, as requested by the probation/parole officer, and permit the probation/parole officer to visit probationer’s residence at reasonable times for the purpose of examination and inspection in the enforcement of the conditions of probation or parole;

(9) Not associate with any person having a criminal record or with other individuals as directed by the probation/parole officer unless specifically authorized to do so by the probation/parole officer;

(10) Not indulge in the illegal use, sale, possession, distribution, or transportation, or be in the presence, of controlled drugs, or use alcoholic beverages to excess;

(11) Agree to waive extradition to New Hampshire from any state in the United States or any other place and agree to return to New Hampshire if directed by the probation/parole officer; and

(12) Comply with such of the following, or any other, special conditions as may be imposed by the court, the parole board or the probation/parole officer:

(A) Participate regularly in Alcoholics Anonymous to the satisfaction of the probation/parole officer;

(B) Secure written permission from the probation/parole officer prior to purchasing and/or operating a motor vehicle;

(C) Participate in and satisfactorily complete a specific designated program;

(D) Enroll and participate in mental health counseling on a regular basis to the satisfaction of the probation/parole officer;

(E) Not be in the unsupervised company of minors, or minors of a specific gender, at any time;

(F) Not leave the county without permission of the probation/parole officer;

(G) Refrain totally from the use of alcoholic beverages;

(H) Submit to breath, blood or urine testing for abuse substances at the direction of the probation/parole officer; and

(I) Comply with designated house arrest provisions.

(g) Conditional Discharge. A defendant may be sentenced to a period of conditional discharge as provided in RSA 651:2, VI.

(h) Subdivision of Suspended Sentences. Whenever a sentence, or any part thereof, is suspended, the court may thereafter subdivide said suspended sentence into two or more parts, and the defendant may be required to serve any part thereof, with the balance remaining suspended, until further order of the court, and the defendant may be required to serve the sentence in installments or by intermittent incarceration.

(i) Correction of Sentence. The court has the discretion to correct an illegal or illegally imposed sentence as provided by law.

(j) Reduction, Suspension or Amendment of Sentence. A party may seek reduction, suspension or amendment of a sentence as provided by law. Whenever any petition to suspend, amend, reduce or otherwise change the custody status of any person incarcerated in the New Hampshire state prison is filed with the court, a copy thereof shall be forwarded by counsel for the defendant to the prosecutor and the warden of the state prison. In the event that a self-represented defendant files such petition, the clerk shall forward a copy thereof to the prosecutor and the warden of the state prison. The prosecutor and the warden of the state prison shall have a period of thirty days in which to file a response thereto with copies thereof furnished to petitioner, or petitioner's counsel, if represented. This rule does not apply to petitions for habeas corpus. The victim of the crime or next of kin shall have an opportunity to address the court prior to the court reaching its decision where provided by law. The prosecutor shall be responsible for informing the victim or next of kin of the right to so address the court.

(k) Sentence Review

(1) (A) After notice and within thirty (30) days of imposition of a New Hampshire State Prison sentence by the Superior Court, the defendant may apply to have his or her sentence reviewed by the Sentence Review Division. Defendant's counsel has the duty to protect the defendant's interest by insuring that the defendant understands that:

(i) the defendant has a right to a review of any stand committed, deferred, or suspended state prison sentence imposed which is not mandated by law; and

(ii) sentence review may be sought within 30 days of imposition of the sentence but not thereafter absent good cause shown; and

(iii) if the defendant requests sentence review, the sentence may be increased, decreased, modified or affirmed.

(B) After notice and within thirty (30) days of imposition of a New Hampshire State Prison sentence by the Superior Court, the State may apply to have the sentence reviewed by the Sentence Review Division.

(2) Only state prison sentences, whether stand committed, suspended or deferred, are subject to sentence review. Sentence review is not available for those sentences mandated by statute.

(3) In any case in which a sentence is imposed that would allow a party to apply for review of the sentence by the Sentence Review Division, the Court, at the time of sentencing, shall provide the defendant and the prosecutor with an application for sentence review. The application shall state, and the parties shall be orally notified, that:

(A) the parties have a statutory right to a review of the sentence; and

(B) the Sentence Review Division may increase, decrease, modify or affirm any sentence entered by the Superior Court.

(4) Application for sentence review may be made by filing a completed application form with either the Secretary of the Sentence Review Division or with the Clerk of the sentencing court. Attorneys must file the application electronically.

(5) When application for sentence review is made directly to the Clerk of the Superior Court, the Clerk shall immediately mail a copy of the application to the Secretary of the Sentence Review Division, along with notice of the date such application was filed with the Clerk.

(6) The Secretary of the Sentence Review Division shall keep a record log in which shall be recorded the date the completed application for review was filed with the Secretary or Clerk, whichever was earlier. The Sentence Review Division record log shall be open for public inspection.

(7) Any application for sentence review that is filed after thirty (30) days from the date of sentencing shall be rejected and returned with notice to all parties that the application is denied as untimely. There is no right to appeal the return of untimely requests for sentence review, except that the Sentence Review Division may, for good cause shown, decide, by concurrence of at least two members, to consider the merits of an untimely request for sentence review.

(8) (A) Copies of the application for review of sentence filed by the defendant shall be forwarded by the Secretary of the Sentence Review Division to the following persons:

(i) The sentencing judge;

(ii) The County Attorney or Attorney General;

(iii) The defendant's attorney of record; and,

(iv) The Chief Justice of the Superior Court.

(B) Copies of the application for review of sentence filed by the State shall be forwarded by the Secretary of the Sentence Review Division to the following persons:

(i) The sentencing judge;

(ii) The defendant's attorney of record;

(iii) The defendant; and

(iv) The Chief Justice of the Superior Court

(9) (A) The Secretary shall contact the Clerk of the Sentencing court to arrange for production to the Sentence Review Division of a transcript of the sentencing hearing and of the materials set out in Sentence Review Division Rule 16.

(B) The Secretary shall provide copies of the application, the transcript of the sentencing hearing, and all such materials to the members of the Sentence Review Division.

(10) Each member of the Sentence Review Division shall review the application, transcript of the sentencing hearing, and such other materials as set out in Sentence Review Division Rule 16 and shall then inform the Secretary whether the member is requesting a hearing. Should none of the three members request a hearing, the Secretary shall issue a notice to the persons set out in Sentence Review Division Rule 8 that the sentence is affirmed without hearing. Should any member request a hearing, the Secretary shall issue a notice of hearing to the persons set out in Sentence Review Division Rule 8. Hearings before the Sentence Review Division shall normally be in accordance with the order the applications were recorded in the Sentence Review Division record log.

(11) In those instances where the Sentence Review Division has scheduled a hearing on an application, on his or her own initiative or at the request of the Sentence Review Division, the sentencing judge may provide the Sentence Review Division with a statement of reasons for imposing the sentence under review. If submitted, such statement shall be furnished to the parties prior to the date of any hearing before the Sentence Review Division.

(12) The filing of an application for sentence review does not stay execution of the sentence as originally imposed.

(13) Sentences may be reviewed that were imposed prior to the effective date of RSA 651:58 (August 5, 1975) and for those sentences the thirty (30) day rule will not apply. Sentences may be reviewed even if the sentence to the State Prison has been suspended or deferred or if the time to be served is less than one year because of credit for pre-sentence confinement.

(14) (A) Review may be sought for any state prison sentence resulting from a finding of guilty following trial, or as a result of entering a plea of guilty, or a finding of guilty following a plea of nolo contendere, where there is no agreement between the State and the defendant limiting the sentence to less than the maximum which could be imposed under the law (a so-called "naked plea").

(B) Sentences may also be reviewed following a re-sentencing if the original sentence has been set aside by judicial process other than by the Sentence Review Division.

(C) Review may not be sought for any sentence submitted to the sentencing judge where there is an agreement between the State and the defendant as to the sentence to be imposed in exchange for a plea (a so-called "negotiated plea"), or where there is an agreement between the State and the defendant limiting the sentence to less than the maximum which could be imposed under the law (a so-called "capped plea.") Before accepting any negotiated or capped plea, the sentencing judge shall confirm in writing or on the record the understanding of the parties that entry into such plea agreements results in waiver of the right to sentence review.

(15) Upon hearing, the Division can act in any of the following ways:

(A) It may increase the sentence imposed by the sentencing judge;

(B) It may decrease the sentence imposed by the sentencing judge;

(C) It may otherwise modify the sentence; or,

(D) It may affirm the sentence.

(16) The Sentence Review Division will only consider matters that are a part of the record of sentencing. In addition to a transcript of the sentencing hearing, the Division will require the production of the following material if it was considered by the sentencing judge in the imposition of sentence:

(A) Presentence reports;

(B) Any other records, documents or exhibits preserved in the record of the sentencing hearing.

(17) The Sentence Review Division will not consider any matter or development subsequent to the imposition of the sentence. Matters not to be considered include:

(A) Institutional adjustment;

(B) New social information;

(C) Institutional disciplinary actions pending or taken against the defendant;

(D) Work reports; or

(E) Inmate release plans.

(18) If a hearing is scheduled, the defendant shall have the right to appear in person or by videoconference and to be represented by counsel. Counsel should ordinarily be trial counsel below. Court appointed counsel shall be reimbursed as provided by law. No sentence may be increased, decreased, or modified without the opportunity for the defendant to appear and be heard, in person or by videoconference, and the opportunity to be represented by counsel. The State may be represented by the County Attorney of the county wherein the sentence was imposed or by the Attorney General.

(19) If the Sentence Review Division orders a different sentence, the Division shall issue a written order confirming the new sentence as modified.

(20) Any time served prior to increase, decrease, or modification of the sentence shall be counted in calculating the sentence as increased, decreased, or modified.

(21) The decision of the Sentence Review Division is final. The reasons for any change of sentence will be stated in a written order. In reaching its decision, the Sentence Review Division will give consideration, but is not limited to, the following objectives of the New Hampshire Criminal Code sanctions:

(A) Isolation of the offender from society to prevent criminal conduct during the period of confinement;

(B) Rehabilitation of the convicted offender into a non-criminal member of society;

(C) Deterrence of other members of the community who might have tendencies toward criminal conduct similar to those of the offender;

(D) Deterrence of the defendant, himself or herself;

(E) Reaffirmation of social norms for the purpose of maintaining respect for the norms themselves;

(F) The individual characteristics of the defendant prior to the imposition of the sentence, except that information, which does not affirmatively appear on the record or in the judge's statement of reasons for the sentence, shall be excluded;

(G) The facts and circumstances of the crime or crimes which affirmatively appear in the record of the proceedings; and

(H) Statistical information concerning the sentences imposed for the same crime committed by other individuals in the State of New Hampshire.

(22) The Secretary shall send the final order to the Clerk of Court for the court in which sentence was imposed, the sentencing judge, defendant, defense counsel, the Department of Corrections, and the County Attorney or the Attorney General's office.

(23) The scope of review of the Sentence Review Division shall be:

(A) The excessiveness or leniency of the sentence having regard for the nature of the offense, the protection of the public interest and safety, and the character of the offender; and

(B) The manner in which the sentence was imposed, including the sufficiency and accuracy of the information before the sentencing court.

(24) Unless, after hearing, at least two members of the Sentence Review Division concur in increasing, decreasing, or otherwise modifying a sentence, the sentence imposed by the sentencing judge shall stand.