State of New Hampshire v. Vincent R. McGinity

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2014-0009, State of New Hampshire v. Vincent
R. McGinity, the court on November 18, 2015, issued the
following order:

Having considered the briefs and record submitted on appeal, we conclude
that oral argument is unnecessary in this case. See Sup. Ct. R. 18(1). We affirm.

The defendant, Vincent R. McGinity, appeals the sentence imposed upon
him by the Superior Court (Bornstein, J.) as a result of his conviction, following a
jury trial, on a charge of theft of a firearm. See RSA 637:3 (2007); RSA 637:11, I
(Supp. 2014). He contends that the trial court “fail[ed] to consider individualized
sentencing factors in determining whether to impose incarceration.” (Emphasis
in original.) We note at the outset that the defendant does not challenge his
conviction or the length of his sentence; he challenges only the trial court’s
decision to require him to stand committed for a portion of his sentence.

The State Constitution requires the trial court to consider several objective
factors before imposing any sentence, including whether the sentence imposed
will meet the traditional goals of sentencing – punishment, deterrence and
rehabilitation. State v. Willey, 163 N.H. 532, 541 (2012). There is no
constitutional right or requirement that a sentence be rehabilitative. State v.
Darcy, 121 N.H. 220, 225 (1981). Although in a particular case imprisonment
may not be required to deter a particular defendant, general deterrence and
public confidence in the justice system are also important considerations. Id.
Society’s legitimate concern with the public danger of thefts involving firearms
increases the need for general deterrence of such offenses and serves as an
adequate justification for imposition of a more severe penalty in such cases.
State v. Dumont, 122 N.H. 866, 868 (1982).

We review sentencing decisions under our unsustainable exercise of
discretion standard. State v. Littlefield, 152 N.H. 331, 357 (2005). When we
determine whether a ruling made by a judge is a proper exercise of judicial
discretion, we are deciding whether the record establishes an objective basis
sufficient to sustain the discretionary judgment made. State v. Lambert, 147
N.H. 295, 296 (2001). To show that the trial court’s decision is not sustainable,
the defendant must demonstrate that the court’s ruling was clearly untenable or
unreasonable to the prejudice of his case. Id. An unsustainable exercise of
discretion will occur if the trial court fails to consider all the relevant factors
necessary to the sentencing decision. Littlefield, 152 N.H. at 357-58.
 In this case, the defendant urged the trial court to accept the Department
of Corrections’ (DOC) recommendation that he be sentenced to the state prison
for two-and-a-half to five years, all suspended for five years, with three years of
probation. The trial court, however, sentenced him to twelve months in the
house of corrections, with six months of the term suspended, and one year of
probation. The trial court “considered the mitigating factors,” including that the
defendant had “absolutely no criminal record,” had a “good job,” and had been
“otherwise a solid citizen in the community.” However, it weighed them against
its conclusion that “having no stand-committed time would send the wrong
message generally and would not promote the goals of punishment and general
deterrence.”

The defendant argues that the trial court erred by “employing a rigid
sentencing policy based solely on the underlying offense.” However, the trial
court did not impose a sentence that even approached the maximum allowable
sentence. The trial court considered the suspended state prison sentence
recommended by the DOC and the defendant and concluded that the defendant
was “not the kind of person that . . . belongs in state prison.” Accordingly, the
trial court set the length of the sentence at less than half that recommended by
the DOC, while requiring the defendant to stand committed for six months of the
reduced house of corrections sentence. The defendant concedes that “the fact
that the court sentenced [him] to six months incarceration rather than . . . a
number of years, demonstrates that it considered [a broad range of sentencing
factors] in determining the amount of incarceration.” However, he contends that
the trial court failed “to consider individualized sentencing factors in determining
whether to impose incarceration.” (Emphasis in original.) Because the
legislature has not required every person convicted of theft of a firearm to stand
committed for a period of time, the defendant asserts that the trial court may not
impose such a requirement.

The defendant points to nothing in the record establishing that the trial
court routinely imposes stand-committed time for this offense or that the trial
court “refused to consider more lenient sentences within the statutorily
authorized range of sentences” in this case. To the contrary, the record shows
that the trial court considered the DOC’s recommended sentence and concluded
that it did not fit the individualized factors in this particular case.

The defendant argues that the trial court “offered only two justifications for
its decision to impose incarceration in the first place” and that “[b]oth of these
justifications would apply to all defendants convicted of theft of a firearm.”
(Emphasis in original.) However, the defendant does not cite, nor are we aware
of, any authority requiring the trial court to articulate all the factors that it
considers when determining whether to require a defendant to stand committed.
See State v. Addison, 165 N.H. 381, 443 (2013) (we assume trial court made all
findings necessary to support its decision). Furthermore, the trial court’s
reasoning reflected the fact that the defendant was convicted of stealing a

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firearm, which generally justifies a more severe penalty, see Dumont, 122 N.H. at
868, and the importance of general deterrence and public confidence in the
system, see Darcy, 121 N.H. at 225.

The defendant argues that “the court’s ‘send [a] message’ rationale
amounts to a rigid and inflexible policy.” (Bracket in original.) We disagree. The
record does not establish that the trial court applied this “policy” in other cases.
Furthermore, the defendant concedes that the trial court was entitled to consider
general deterrence when determining sentencing. See id. To the extent that the
defendant argues that his situation would not deter others from committing this
type of crime because he “acted to take the firearm from a dangerous individual,
not to give it to one,” we note that he does not challenge his underlying
conviction.

We conclude that the record establishes an objective basis sufficient to
sustain the discretionary judgment made.

Affirmed.

Dalianis, C.J., and Conboy, Lynn, and Bassett, JJ., concurred.

Eileen Fox,
Clerk

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