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RULES OF THE SUPERIOR COURT OF THE STATE OF NEW HAMPSHIRE APPLICABLE IN CRIMINAL CASES FILED IN SUPERIOR COURT

 

[Editor’s note: The rules that follow were, prior to October 1, 2013, titled Rules of the Superior Court of the State of New Hampshire. Effective October 1, 2013, these rules applied only in criminal cases filed in Superior Court and in domestic relations cases filed in the Cheshire County Superior Court. Effective December 16, 2013 these rules apply only in criminal cases filed in Superior Court. For civil cases filed or pending in Superior Court on or after October 1, 2013, see the Rules of the Superior Court of the State of New Hampshire Applicable in Civil Actions.]

SENTENCE REVIEW DIVISION RULES

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:

        (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.  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, 45 Chenell Drive, Suite 1, Concord, New Hampshire, 03301, or with the Clerk of Court of the sentencing county. 
 

5. When application for sentence 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:

                (1) The sentencing judge;

                (2) The County Attorney or Attorney General;

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

                (4) 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:

        (1)  The sentencing judge;

        (2) The defendant's attorney of record;

        (3) The defendant; and

        (4) 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 original of each final order to the Clerk of Court for the county 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.  

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.

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