THE STATE OF NEW HAMPSHIRE
SUPREME COURT OF NEW HAMPSHIRE
ORDER
Pursuant to Part II, Article 73-a of the New Hampshire Constitution and
Supreme Court Rule 51(A)(7), the Supreme Court of New Hampshire adopts the
following amendments to court rules:
I. Sentence Review Division Rules
(These amendments update the Sentence Review Division Rules.)
1. Amend the Superior Court Sentence Review Division Rules, on a temporary
basis, as set forth in Appendix A.
II. Fees in Supreme Court
(These amendments make technical changes to Supreme Court Rule 49 to make the
rule consistent with Supreme Court Rule 42(I)(c)(5).)
1. Amend Supreme Court Rule 49, on a permanent basis, as set forth in
Appendix B.
Effective Date
The amendments shall take effect March 1, 2013. The temporary amendments
in Appendix A shall be referred to the Advisory Committee on Rules for its
recommendation as to whether they should be adopted on a permanent basis.
Date: February 25, 2013
ATTEST:
Eileen Fox, Clerk of Court
Supreme Court of New Hampshire
APPENDIX A
Amend the Superior Court Sentence Review Division Rules, on a
temporary basis, as follows (new material is in [bold and in brackets]; deleted
material is in strikethrough format):
SENTENCE REVIEW DIVISION RULES
RULES ADOPTED BY SUPERIOR COURT
1. [(a)] After notice and within thirty [30] days of sentencing
[imposition of a New Hampshire State Prison sentence by the Superior
Court], the defendant must [may] apply to have his [or her] sentence
reviewed if he intends to contest the sentence he was given by the Superior
Court[by the Sentence Review Division]. It is the duty of trial counsel to
protect the defendant's interest in this respect and to insure that the
defendant understands the fact that he has a right to appeal the sentence
imposed and that if such review is requested the sentence rendered may be
increased, decreased or continued as entered by the trial Court.
[Defendant’s counsel has the duty to protect the defendant’s interest
by insuring that the defendant understands that:
(1) 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
(2) sentence review may be sought within 30 days of imposition
of the sentence but not thereafter absent good cause shown; and
(3) 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.
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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.]
2. The Clerk of the Superior Court shall give to any person sentenced
to a term of one year or more in the State Prison, except in any case in
which a different sentence could not have been imposed, an application for
review of the sentence by the Review Division. The application shall state,
and the Clerk shall so notify the defendant, that: there is a statutory right
to appeal the sentence imposed by the Superior Court; and that, if the
sentence is reviewed, the Review Division may increase, decrease or
continue the sentence entered by the trial Court.
3. If application is not made for review of sentence until the
defendant is incarcerated in the State Prison (or other institution to which
he may be transferred), the application shall be in the following manner:
(a) The application form shall be completed and sent to the Secretary
of the Sentence Review Division, Merrimack County Court House, Concord,
New Hampshire.
(b) One copy of the completed application shall be retained by the
defendant for personal use and as a record of application.
(c) The completed application shall indicate the date at which
application is made.
[4. Application for sentence review may be made by filing a
completed application form with either the Secretary of the Sentence
Review Division, 45 Chenell Drive, Suite 1, Concord, New Hampshire,
03301, or with the Clerk of Court of the sentencing county.]
4. [5.] When application for [sentence] review of sentence is made
directly to the Clerk of the Superior Court, such [the] Clerk shall
immediately notify the secretary of the Review Division, by mail, of the date
such application was filed. When application is received by the Secretary of
the Review Division, copies shall be prepared and mailed in accordance
with rule 7(a) through (d) below. [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.]
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5. [6.] The Secretary of the [Sentence] Review Division shall keep a
Minute Book [record log] in which shall be recorded the date the completed
application for review [was filed with the Secretary or Clerk, whichever
was earlier.] was received. Notice from the Clerk of an application filed
directly in the Superior Court shall be recorded as being received at the
date such application was filed in the court. [The Sentence Review
Division record log shall be open for public inspection.]
6. The Sentence Review Division Minute Book shall be open to
inspection to attorneys representing defendants who have applied to have
their sentences reviewed and the prosecuting attorney.
[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.]
7. [8. (a)] Copies of the application for review of sentence or notice of
hearing [filed by the defendant] shall be forwarded by the Secretary of the
[Sentence] Review Division to the following persons:
(a) [(1)] The sentencing judge;
(b) [(2)] The County Attorney and/ or Attorney General;
(c) [(3)] The defendant's attorney of record; and,
(d) [(4)] A copy of the application shall be mailed to t[T]he 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:
(1) The sentencing judge;
(2) The defendant’s attorney of record;
(3) The defendant; and
(4) The Chief Justice of the Superior Court.
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8. An application, which is submitted after thirty days from the date
of sentencing, shall be returned to the defendant, and notice shall be given
to his attorney that the application is not timely to perfect review of the
sentence imposed. There shall be no appeal from the failure to perfect the
application for sentence review except that the Review Division may, for
GOOD CAUSE SHOWN, consider any late request for review of sentence
and may grant such request.
[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.]
9. [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 are [were] recorded in the
Sentence Review Division Minute Book [record log].
10. [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] The
judge, who imposed the sentence to be reviewed, may transmit to [provide]
the [Sentence] Review Division [with] a statement of reasons for imposing
the sentence which is to be reviewed [under review.] but shall transmit
such a statement of reasons for imposing the sentence within seven days if
requested to do so by the Review Division. [If submitted, such statement
shall be furnished to the parties prior to the date of any hearing before
the Sentence Review Division.]
11. [12.] The filing of [an] application for review of sentence [review]
does not stay execution of the sentence [as originally imposed].
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12. [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.
13. Sentences may be reviewed that exceed one year in the State
Prison whether as a result of finding of guilty following trial, entering of a
plea of guilty, or a finding of guilty following a plea of nolo contendere.
Sentences may also be reviewed following a re-sentencing if the original
sentence has been set aside by judicial process other than this Review
Division.
[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.]
14. [15. Upon hearing, T[t]he Division can act in any of the
following ways:
(a) It may increase the penalty [sentence] imposed by the
[sentencing] judge;
(b) It may decrease the penalty [sentence] imposed by the
[sentencing] judge;
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(c) It may [otherwise modify the sentence] order such different
sentence or sentences to be imposed as could have been imposed at the
time of the imposition of the sentence under review; or,
(d) It may decide that the sentence under review should stand as is
[affirm the sentence].
15. [16.] The Sentence Review Division will only consider [only
consider] matters which [that] are a part of the record of sentencing[.] and
will [In addition to a transcript of the sentencing hearing, the Division
will] require the production of the following material if it was used
[considered by the sentencing judge] in the imposition of sentence:
(a) Presentence reports;
(b) Any other records, documents or exhibits relevant to such review
proceedings which were available to the sentencing judge in the imposition
of the sentence under review [preserved in the record of the sentencing
hearing].
16. [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 had [taken] against
the applicant [defendant];
(d) Work report[s]; or
(e) Inmate release plans.
17. [18. If a hearing is scheduled, T[t]he applicant [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[.] and for all indigents the c[C]ourt appointed counsel shall be
reimbursed as provided by law. No sentence may be increased, [decreased,
or modified] however, without the personal appearance by the defendant
and his attorney. [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
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Attorney of the county wherein the sentence and judgment were [was]
imposed or by the Attorney General.
18. [19.] If the Sentence Review Division orders a different sentence,
the Division or a member thereof shall resentence the defendant as ordered
by the Sentence Review Division.[the Division shall issue a written order
confirming the new sentence as modified.]
19. [20.] The [Any] time served on any sentence reviewed shall be
deemed to have been served on the sentence substituted if such
substitution is made by the Sentence Review Division. [prior to increase,
decrease, or modification of the sentence shall be counted in
calculating the sentence as increased, decreased, or modified.]
20. [21.] The decision of the Sentence Review Division will be [is]
final[.] and t[T]he reasons for any change of sentence will be stated therein
in a written opinion[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.
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21. [22.] The [Secretary shall send the] original of each decision or
[final] order shall be sent to the Clerk [of Court] for the county wherein
judgment was rendered and a copy sent to the Judge who imposed the
sentence reviewed. Copies shall also be sent to the person sentenced, the
principal officer of the institution wherein such person is confined, the
applicant's attorney of record, the County Attorney and the Attorney
General's office. [in which sentence was imposed. The Secretary shall
send copies of the final order to the sentencing judge, defendant,
defense counsel, the Department of Corrections, and the County
Attorney or the Attorney General’s office.]
be:
22. [23.] The scope of review of the [Sentence Review] Division shall
(a) The excessiveness or lightness [leniency] of the sentence having
regard to [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.
23. [24.] Unless[, after hearing,] at least two members of the
[Sentence] Review Division panel reviewing a given case concur in
amending [increasing, decreasing, or otherwise modifying] a sentence,
the sentence below [imposed by the sentencing judge] shall stand.
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APPENDIX B
Amend Supreme Court Rule 49, on a permanent basis, as follows (new
material is in [bold and in brackets]; deleted material is in strikethrough
format):
Rule 49 Fees in Supreme Court
(I) Fees
(A) Entry of Appeal or Cross-Appeal
(B) Petition for Original Jurisdiction
(1) Original petition for writ of habeas corpus
(2) All other petitions for original jurisdiction
(C)(1) Certification of Record to Federal Courts
(2) Other Certifications and Certified Copies
(D) Bar Examination Fee
(E) Character and Fitness Investigation Fee
(1) For Admission By Examination
(2) For Admission Without Examination
(3) For Admission After Completion of
Daniel Webster Scholar Honors Program
(F) [(D)] Certificate of Admission
(G) Entry of Motion for Admission to Bar Without
Examination
(H) Application for Admission of Daniel Webster
Scholar Honors Program Graduates
(I) [(E)] Application to Appear Pro Hac Vice
(J) Fee to Postpone Bar Examination
$180.00
$ 0 (No fee)
$180.00
$75.00
$5.00 plus $.50/page
$275.00
$275.00
$725.00
$275.00
$5.00
$275.00
$200.00
$250.00
$100.00
(II) Surcharge
Pursuant to RSA 490:26-a, II, the sum of $25.00 shall be added to each
civil filing fee set forth in paragraphs (I)(A) and (I)(B)(2) above, except for the
following types of cases which pursuant to RSA 490:26-a, II(b) are exempt from
the surcharge:
(A) Actions relating to children under RSA 169-B, RSA 169-C, and RSA
169-D.
(B) Domestic violence actions under RSA 173-B.
(C) Small claims actions under RSA 503.
(D) Landlord/tenant actions under RSA 540, RSA 540-A, RSA 540-B,
and RSA 540-C.
(E) Stalking actions under RSA 633:3-a.
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