Summary
In State v. Beaupre, 121 N.H. 1013, 1014-15, 437 A.2d 301, 301-02 (1981), the trial court was found to have justified an increase in the sentence imposed previously "because of the specific facts of the case and policy considerations regarding DWI offenses," and that there was no proof of judicial vindictiveness.
Summary of this case from State v. HamiltonOpinion
No. 80-453
Decided November 20, 1981
1. Criminal Law — Sentence — Determination Whenever the superior court, after a trial de novo, substantially increases a sentence imposed by the lower court, the record must reflect the reasons for the change.
2. Criminal Law — Sentence — Determination Where defendant, convicted in district court of driving while intoxicated and sentenced to fine of $200 and loss of license for 60 days, exercised right to trial de novo in superior court where, after trial, he was found guilty and sentenced to fine of $500 and loss of license for 10 months, additional evidence adduced in superior court, which indicated degree to which defendant's conduct subjected innocent persons to potential injury, justified increased sentence imposed by superior court.
3. Criminal Law — Sentence — Determination Where superior court, after trial de novo of defendant convicted of driving while intoxicated in district court, imposed a greater sentence than that imposed in district court, citing as justification for the sentence the facts of the case and policy considerations, the court's emphasis on policy considerations as reason for increased sentence did not violate rule in State v. Wheeler, 120 N.H. 496, 416 A.2d 1384 (1980); the decision in Wheeler required reasons for an increased sentence, but did not specify what reasons were necessary.
4. Appeal and Error — Trial De Novo — Generally The possibility of an increased sentence after a trial de novo does not chill a defendant's exercise of his right to such a trial.
5. Constitutional Law — Due Process — Sentences The mere possibility that a defendant will receive an increased sentence, after a trial before a court not involved in the original trial, does not violate a defendant's due process rights.
6. Constitutional Law — Due Process — Sentences Increased sentences restrict due process rights only where there is a realistic likelihood of an increase resulting from vindictiveness, and because a trial de novo represents a completely fresh determination of guilt, vindictiveness will not be assumed to be the reason for an increased sentence.
7. Criminal Law — Sentence — Determination Where there was no allegation or proof of vindictiveness, and where there were reasons justifying an increased sentence, imposition by superior court after trial de novo of greater sentence than imposed in district court was proper.
Gregory H. Smith, attorney general (Michael A. Pignatelli, assistant attorney general, on the brief and orally), for the State.
James E. Duggan, of Concord, and Frank J. Sylvia, of Hillsboro by brief and orally, for the defendant.
This is an appeal from a conviction in the Merrimack County Superior Court, and the only issue presented is whether the Trial Court (Batchelder, J.) erred in imposing a sentence greater than that imposed by the Henniker District Court (Greenhalge, J.). We affirm.
On March 1, 1980, at approximately 1:00 a.m., while driving on Route 9-202, the defendant, Jerry Wayne Beaupre lost control of his automobile. The vehicle went off the road and flipped over several times. The accident caused injury to at least two persons. The police officer who arrived at the scene of the accident charged the defendant with driving while intoxicated (DWI).
The defendant was found guilty of DWI after a trial in the district court. The court fined him $200 and ordered a 60-day loss of license. The defendant then exercised his right to a trial de novo in the superior court. After trial, he was found guilty and sentenced. Stating as its reasons the facts of the case and policy considerations, the superior court increased the fine to $500 and ordered the loss of license extended to ten months.
In State v. Wheeler, 120 N.H. 496, 416 A.2d 1384 (1980), this court stated that "whenever the superior court, after a trial de novo, substantially increases a sentence imposed by the lower court, the record must reflect the reasons for the change." Id. at 499, 416 A.2d at 1386. In Wheeler the defendant's fine was increased from $150 to $750. Although the sentence increase in this case may not be substantial, we will assume arguendo that the increase falls within the Wheeler rule.
The trial court stated that the increase was imposed because of the specific facts of the case and policy considerations regarding DWI offenses. The facts of the case, as presented to the superior court, were sufficiently different from those stated in the lower court to justify the increased sentence. For the first time, a witness testified that the defendant, at high speed, barely missed hitting him while both the witness' vehicle and the defendant's vehicle were traveling along Route 9-202. Just after the incident with the witness, the defendant's vehicle swerved off the road and crashed. The additional facts emphasizing that the defendant's conduct subjected innocent persons to potential injury clearly justified the increased sentence imposed by the superior court.
We cannot agree with the defendant that the superior court's emphasis on policy considerations as its reason for increasing the sentence violates the rule in Wheeler. In Wheeler, we did not state what reasons were necessary for an increased sentence, but only that some reasons were necessary. State v. Wheeler, 120 N.H. at 499, 416 A.2d at 1386. The superior court in this case stated sufficient reasons for its decision.
[4, 5] We also disagree with the defendant's argument that the possibility of an increased sentence after a trial de novo chills a defendant's exercise of his right to such a trial. In North Carolina v. Pearce, 395 U.S. 711, 725-26 (1969), the United States Supreme Court stated its concern that increased sentences after a successful appeal should not reflect the trial court's vindictiveness. The court, however, refused to extend this concern to trials de novo. Colten v. Kentucky, 407 U.S. 104, 116 (1972); see Ludwig v. Massachusetts, 427 U.S. 618, 627 (1976). The mere possibility that the defendant will receive an increased sentence, after a trial before a court not involved in the original trial, does not violate a defendant's due process rights. Chaffin v. Stynchcombe, 412 U.S. 17, 25 (1973); see Blackledge v. Perry, 417 U.S. 21, 27 (1974).
This court has adopted the reasoning in Colten and has stated that increased sentences restrict due process rights only where there is "a realistic likelihood" of an increase resulting from vindictiveness. State v. Koski, 120 N.H. 112, 116, 411 A.2d 1122, 1125 (1980). Because "[t]he trial de novo represents a completely fresh determination of guilt," Colten v. Kentucky, 407 U.S. at 117, vindictiveness will not be assumed to be the reason for an increased sentence. State v. Koski, 120 N.H. at 116, 411 A.2d at 1125.
We conclude that because there was no allegation or proof of vindictiveness, and because there were reasons justifying an increased sentence, the superior court's sentence was proper.
Affirmed.
BATCHELDER, J., did not sit; the others concurred.