- 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.
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).
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).
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