Superior Court
Rules Table of Contents
RULES ADOPTED BY SUPERIOR COURT
1. After notice and within thirty days of sentencing, the defendant must apply to have his sentence reviewed if he intends to contest the sentence he was given by the Superior Court. 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.
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. When application for review of sentence is made directly to the Clerk of the Superior Court, such 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.
5. The Secretary of the Review Division shall keep a Minute Book in which shall be recorded the date the completed application for review 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.
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. Copies of the application for review of sentence or notice of hearing shall be forwarded by the Secretary of the Review Division to the following persons:
(a) The sentencing judge;
(b) The County Attorney and/or Attorney General;
(c) The defendant's attorney of record; and,
(d) A copy of the application shall be mailed to the Chief Justice of the Superior Court.
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. Hearings before the Review Division shall normally be in accordance with the order the applications are recorded in the Sentence Review Division Minute Book.
10. The judge, who imposed the sentence to be reviewed, may transmit to the Review Division a statement of reasons for imposing the sentence which is to be reviewed but shall transmit such a statement of reasons for imposing the sentence within seven days if requested to do so by the Review Division.
11. The filing of application for review of sentence does not stay execution of the sentence.
12. 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 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. The Division can act in any of the following ways:
(a) It may increase the penalty imposed by the judge;
(b) It may decrease the penalty imposed by the judge;
(c) It may 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.
15. The Sentence Review Division will only consider matters which are a part of the record of sentencing and will require the production of the following material if it was used 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.
16. 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 against the applicant;
(d) Work report; or
(e) Inmate release plans.
17. The applicant shall have the right to appear and be represented by counsel. Counsel should be trial counsel below and for all indigents the court appointed counsel shall be reimbursed as provided by law. No sentence may be increased, however, without the personal appearance by the defendant and his attorney. The State may be represented by the County Attorney of the county wherein the sentence and judgment were imposed or by the Attorney General.
18. 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.
19. The 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.
20. The decision of the Sentence Review Division will be final and the reasons for any change of sentence will be stated therein in a written opinion. In 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;
(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.
21. The original of each decision or order shall be sent to the Clerk 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.
22. The scope of review of the Division shall be:
(a) The excessiveness or lightness of the sentence having regard to the nature of the offense, the protection of the public interest and safety, and the character of the offender;
(b) The manner in which the sentence was imposed, including the sufficiency and accuracy
of the information before the sentencing court.
23. Unless at least two members of the Review Division panel reviewing a given case concur in amending a sentence, the sentence below shall stand.