- New Hampshire provides defendants with two avenues of sentence appeal: (1) challenging the constitutionality of the sentence via the traditional appellate court system and (2) appealing the length of the sentence to a three-judge sentence review panel.
Art. 18. Penalties to be Proportioned to Offenses; True Design for Punishment: All penalties ought to be proportioned to the nature of the offense. No wise legislature will affix the same punishment to the crimes of theft, forgery, and the like, which they do to those of murder and treason. Where the same undistinguishing severity is exerted against all offenses, the people are led to forget the real distinction in the crimes themselves, and to commit the most flagrant with as little compunction as they do the lightest offenses. For the same reason a multitude of sanguinary laws is both impolitic and unjust. The true design of all punishments being to reform, not to exterminate mankind.
Sentences reviewed by three-judge panel:
Anyone sentenced to more than one year in prison (except when the defendant is serving a mandatory sentence) may appeal his sentence to an impartial three-judge panel. N.H. Rev. Stat. §651:58. The panel has the power to overturn the sentence and substitute another in its place if the panel so decides. N.H. Rev. Stat. §651:59. The panel’s decisions are not appealable unless the defendant argues that the panel’s decision violated his constitutional rights. Bell v. Superior Court Sentence Review Division, 117 N.H. 474, 475 (1977). Likewise, the panel does not have the power to determine the constitutionality of a sentence. Petition of Turgeon, 140 N.H. 52, 54 (1995).
Sentences are reviewed under an “unsustainable exercise of discretion” (abuse of discretion) standard; however, when a defendant asserts that his constitutional rights have been violated by a sentencing decision, the standard of review is de novo. State v. Willey, 163 N.H. 532, 541 (2012). To show that a trial court’s decision was not “sustainable,” a defendant must show that the court’s ruling “was clearly untenable or unreasonable” and prejudiced his case. State v. Johnson, 145 N.H. 647, 648 (2000).
Sentencing courts must consider a number of objective factors before imposing a sentence, including “whether the sentence imposed will meet the traditional goals of sentencing–punishment, deterrence, and rehabilitation.” State v. Burgess, 156 N.H. 746, 751 (2008).
Sentencing judges have broad, but not unlimited, discretion in determining the types of objective evidence upon which to rely in imposing a sentence. Burgess, 156 N.H. at 751. Lack of remorse is one such factor, as it may shed light on whether an effort to rehabilitate would be successful. Id. at 754. A sentencing court, however, may not draw an adverse inference from a defendant’s decision to remain silent at sentencing. Id. at 735-36.
A sentence must be reconsidered if improper evidence is admitted at sentencing, unless it can be shown that the trial court gave the evidence no weight. Id. at 751-52.
Continue reading below
Courts “should not rely upon allegations of other crimes by the defendant when such allegations are unsubstantiated, resolved by acquittals, or the product of speculation.” State v. Lambert, 147 N.H. 295, 295-96 (2001). Sentencing judges cannot hold trial counsel’s defense strategies—including a defense that accuses another, uncharged, individual of wrongdoing—against a defendant at sentencing. Willey, 163 N.H. at 543.
Three-judge sentence review panel has the authority to increase a sentence upon appeal. Bell v. State Superior Court Sentence Review Division, 117 N.H. 474, 476 (1977).
The state constitution forbids only “gross disproportionality between offense and penalty.” State v. Elbert, 125 N.H. 1, 15 (1984) (finding no gross disproportionality between a 15-30 year sentence and offense of attempted second-degree murder).
Continue reading below
Pre-Trial Suppression & Fourth Amendment Issues
This Trial Guide is a topical and practical handbook examining the nuts and bolts of the most current Fourth Amendment & Pre-Trial Suppression issues encountered in modern criminal cases.
Defense Counsel Playbook for Eyewitness ID Cases
This Trial Guide was written to help counsel use existing case law to its strongest advantage, and to create a framework for appellate challenges urging courts to adopt leading cases.
Ultimate Cross 2.0
This special CLE compilation program includes the highest-rated presentations on Cross-Examination techniques from NACDL's most recent seminars (2017-2019).
Forensic Sciences in Criminal Cases: A Multidiscipline Primer
In order to challenge forensic evidence, experts, reports and findings commonly encountered in the courtroom, an attorney must first have a basic understanding of the forensic issues that they will be confronting.
A sentence for a lesser-included offense that is harsher than the maximum provided for the greater offense is grossly disproportionate. State v. Dayutis, 127 N.H. 101, 105 (1985).
Court denied habeas relief for prisoner challenging sentence of 60-120 years (six consecutive sentences of 10-20 years apiece) for conviction on six counts of aggravated felonious sexual assault. Duquette v. Warden, New Hampshire State Prison, 154 N.H. 737, 739 (2007).
Court upheld fines totaling $160,000 for conviction of 80 counts of gambling; fine was not excessive in light of amount of money being waged at defendant’s gambling operation and therefore not grossly disproportionate to the offense. State v. Enderson, 148 N.H. 252, 259 (2002).
Continue reading below
This is a sponsored ad
Manage Your Law Firm All in One Place
Court upheld three- to six-year sentence for man convicted of criminal threatening with a firearm pursuant to gun-enhancement statute. Man was arrested for waving a gun in the air and ordering a trespasser to “get the F off my property.” State v. Bird, 161 N.H. 31, 40 (2010).