State v. Nutter , 135 N.H. 162 ( 1991 )

BATCHELDER, J.,

concurring specially: The majority today declines to decide the issue raised because the defendant did not make an objection “upon perceiving an error” in the judge’s rationale for the sentence imposed. The underlying question is whether it was error for the judge to consider the evidentiary value of a notebook, and the defendant’s testimonial explanation of it, in sentencing the defendant, when that evidence was introduced in a companion case which resulted in acquittal. I would reach the main issue and would find against the defendant.

For several reasons there is no need for this court to require a contemporaneous objection to preserve a sentencing issue for appeal. First, it is impracticable to require, as the majority would, that counsel at sentencing raise an objection to the judge’s explanation of the sentencing rationale whenever the stated reason, conclusion, or fact appears improper. Such a requirement places counsel in a nearly impossible situation and is but a short step from requiring counsel to object to the judge’s frame of mind. To require this at the expense of the loss of appellate review is strong medicine.

Second, the contemporaneous objection rule upon which the majority relies in declining to decide on the merits of the appeal has its foundation in the rules of evidence, N.H. R. Ev. 103(b)(1). These rules, however, also provide that they do not apply to sentencing proceedings. N.H. R. Ev. 1101(d)(3). Thus, there is no basis in the rules for this court to require a contemporaneous objection.

Third, unlike an issue raised during trial, a sentencing decision need not be grounded in an objection in order to secure jurisdiction in this court. Appeals to this court with respect to sentences are contemplated by the New Hampshire Supreme Court Rules. Sup. Ct. R. 7 (an appeal may be taken from a decision on the merits) and Sup. Ct. R. 3 (a sentence is a decision on the merits). Thus, jurisdiction here may be instituted by an appeal, petition for writ of certiorari, petition for writ of habeas corpus or other appellate process recognized by this court.

Fourth, the reason for requiring an objection on the record as a predicate to appellate review is to provide the trial court with an opportunity to salvage potential error from so infecting the rights of litigants as to deny them a fair trial. State v. McAdams, 134 N.H. 445, 447, 594 A.2d 1273, 1273-74 (1991); see also N.H. R. Ev. 103, Reporter’s Notes (purpose of rule is to “permit the court to take cognizance of its error at a time at which it has a meaningful opportunity to correct its ruling”). Although we have previously held that a contemporaneous objection is required to preserve the right to challenge a sentence, Roy v. Perrin, 122 N.H. 88, 100, 441 A.2d 1151, 1159 (1982) (compliance with requirements of a presentencing report); see also State v. Cote, 129 N.H. 358, 372, 530 A.2d 775, 783 (1987) (timeliness of a probation report), this has not always been a strict requirement. See, e.g., State v. Giordano, 134 N.H. 718, 721, 599 A.2d 109, 111 (1991) (no objection required to appeal the filing of and format of presentence report). Moreover, the challenges in these cases were to the procedure used in arriving at the sentence, not to the sentence itself. These kinds of procedural errors can be easily corrected if called to the attention of the sentencing court, and the rationale for requiring a contemporaneous objection may apply. However, it does not apply when the defendant challenges the sentence, rather than the method of reaching it.

Fifth, the scope of appellate review of a sentence is narrow because of the presumption that the sentence is lawful if it is within the statutory power of the court. See State v. Evans, 127 N.H. 501, 505, 506 A.2d 695, 698 (1985). Thus, there is no need to further weight the defendant’s burden by unnecessary requirements of preservation of appellate rights that in practice could render the right to review meaningless as a practical matter.

Finally, a sentencing proceeding is a highly specialized enterprise, see RSA ch. 651 (Supp. 1990), far different from the adversarial aspects of the fact-finding process. See Dash, The Defense Lawyer’s Role at the Sentencing Stage of a Criminal Case, 54 F.R.D. 315 (1972). For instance, the sources and types of evidence used in sentencing are broader than those at trial, State v. Rodrigue, 127 N.H. 496, 500, 506 A.2d 299, 303 (1985), and are not constricted by the rules of evidence, State v. Ferbert, 113 N.H. 235, 237, 306 A.2d 202, 203 (1973); U.S. v. Fox, 889 F.2d 357, 361 (1st Cir. 1989) (see cases cited therein). Further, presentence reports are required unless waived, RSA 651:4,1, and unlike trial transcripts, are not matters of public record, Dist. & Mun. Ct. R. 2.17.A.; Super. Ct. R. 112; State v. Ferbert supra. Sentencing even has a unique review process, amply provided for, yet at the same time reasonably limited in scope. See RSA ch. 651 (Supp. 1990). In felony cases the defendant has a statutory right to have the sentence reviewed by a sentence review board. RSA 651:57-61 (Supp. 1990). There was such a review in this case, and the review board unanimously affirmed the sentence.

Because a contemporaneous objection was not necessary to preserve the defendant’s claim for review by this court, I would reach the merits of the case. We have held that judges in sentencing should not rely upon allegations of other crimes by the defendant when such allegations are unsubstantiated, State v. Wisowaty, 133 N.H. 604, 608, 580 A.2d 1079, 1081 (1990), resolved by acquittals, State v. Cote, supra at 375, 530 A.2d at 785, or the product of speculation, State v. Coppola, 130 N.H. 148, 156, 536 A.2d 1236, 1241 (1987), rev’d on other grounds sub nom. Coppola v. Powell, 878 F.2d 1562 (1st Cir.), cert. denied, 110 S.Ct. 418 (1989). In this case, however, the trial judge explained that he was disregarding the crime of possession with intent to distribute because of the acquittal by the jury on that charge. Because there are “‘no formal limitations’” on the information which can be included in a presentencing report, State v. Ferbert, 113 N.H. at 237, 306 A.2d at 204 (quoting Gregg v. United States, 394 U.S. 489, 492 (1969)), or on that which a judge can consider in sentencing, United States v. Grayson, 438 U.S. 41, 50 (1978), he was free to consider the notebook (which he had seen during trial) and the explanation of its purpose (which he had heard from the defendant’s testimony under oath when he was in a position to observe the defendant as witness), id. (citing Chaffin v. Stynchcombe, 412 U.S. 17, 32 (1973)); State v. Thresher, 122 N.H. 63, 74, 442 A.2d 578, 584 (1982); see also State v. Dumont, 122 N.H. 866, 868, 451 A.2d 1286, 1287 (1982). Thus the judge did not consider improper evidence in sentencing the defendant, and I would therefore affirm.

Johnson, J., joins in the concurrence.