State of New Hampshire v. Gerald Sullivan

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2014-0562, State of New Hampshire v. Gerald
Sullivan, the court on November 12, 2015 issued the following
order:

Having considered the briefs and oral arguments of the parties, the court
concludes that a formal written opinion is unnecessary in this case. The
defendant, Gerald Sullivan, appeals an order of the Superior Court (Abramson,
J.) granting the State’s motion to impose a previously suspended sentence. We
affirm.

The relevant facts follow. In June 2013, the defendant pleaded guilty to
a single count of felonious sexual assault, see RSA 632-A:3, III (2007), for
which he received a prison sentence of no more than seven years and no less
than three and one-half years, suspended for ten years. The defendant was
also sentenced to five years of probation. The mandatory conditions of his
sentence included the following requirements: that he undergo a “[s]ex
offender evaluation” within six months of his plea; that he “follow all
recommendations”; and that he “successfully complete all programming.” The
defendant was also ordered “to participate meaningfully and complete any
counseling, treatment and educational programs as directed by the correctional
authority or Probation/Parole Officer.” The sentencing order informed the
defendant that if he violated “probation or any of the terms of [the] sentence,”
his probation could be revoked and “any sentence within the legal limits for the
underlying offense” could be imposed. At the sentencing hearing, the court
told the defendant that his “[f]ailure to comply with [the] conditions” of his
sentence “may result in the imposition of any suspended sentence.”

The court conducted its first review hearing on March 5, 2014, at which
it was informed that, despite having pleaded guilty, the defendant was “now . . .
adamantly den[ying] that he committed” the felonious sexual assault. The
evaluator had given the defendant the choice of submitting to a polygraph
examination or commencing treatment, and he had chosen to begin treatment.
The court ordered monthly reviews because of its concern that the defendant
was at risk of not complying with the mandatory conditions of his sentence.

At the next review hearing, conducted on April 8, 2014, the court was
informed that the defendant had started psychosexual counseling with Derek
Edge and that a polygraph was to be part of the defendant’s treatment.
Accordingly, after that review hearing, the court issued an order that stated
that the defendant appeared to be in compliance with the sentencing order.
The court required the defendant to “submit . . . a detailed report from his
counselor, setting forth his treatment plan and confirmation that [the]
defendant has been attending all his sessions, as recommended.”

At the third review hearing, conducted on May 6, 2014, the court was
informed that the defendant had missed a counseling session with Edge and
that he continued “to deny the offense.” The court stated that “this is
troublesome” and that it “really want[ed] that polygraph.”

Following the hearing, the court issued an order stating that it shared
“the State’s concern that [the] defendant is verging on non-compliance” with
the sentencing order in that he “continues to deny the offense in treatment and
missed a counseling session because ‘he fell asleep.’” Therefore, the court
ordered the defendant to “comply with all treatment recommendations by . . .
Edge, or risk imposition of his State prison sentence under a Motion to
Impose.”

On June 3, 2014, the day of the next scheduled review hearing, the State
filed a motion to impose the defendant’s suspended session, alleging, among
other assertions, that “all the updated reports from treatment indicate [that the
defendant] denies he committed the offense.” The State argued that “this
conduct” is “non-compliance” and indicates that the defendant “cannot
successfully complete his programming.” Instead of conducting the review
hearing, the court scheduled a hearing on the State’s motion to impose.

At the June 19, 2014 hearing on the State’s motion to impose, the State
called Edge to testify. Edge testified that, in April 2014, he had recommended
that the defendant take a polygraph examination, in part, because the
defendant denied having committed the offense to which he had pleaded guilty,
but also “to facilitate open and honest dialogue in treatment.” Edge confirmed
that the defendant’s counseling contract required the defendant “to set aside
money to pay” for the polygraph examination and to inform Edge of “the money
[he had] saved toward this obligation.” Edge testified that he had not set a
deadline by which the defendant had to take the polygraph examination, and
that he was willing to continue to treat the defendant, pending that
examination. Edge testified that, according to the defendant, he had not taken
the polygraph examination previously because his attorney had advised him
not to do so and because he had been unable to afford to do so. Edge testified
that, from his perspective, the two were “still moving forward with” treatment.

The defendant did not testify at the hearing, but presented the testimony
of an investigator for the Manchester public defender’s office. The investigator
testified that he spoke to the defendant’s probation/parole officer the day
before about the defendant’s financial situation. The probation/parole officer
told the investigator that the defendant had told him that his “money situation

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was tight.” The officer told the investigator that, in November 2013, the
defendant’s wife had left him and that his landlord had begun eviction
proceedings against him.

At the hearing’s conclusion, the trial court revoked the defendant’s parole
and imposed the suspended sentence, determining that doing so was
warranted because the defendant had failed to comply with Edge’s
recommendation to take the polygraph examination and, thus, was “non-
compliant with [a] mandatory provision” of the sentence. The defendant
unsuccessfully moved for reconsideration, and this appeal followed.

We review a trial court’s decision to impose a suspended sentence for an
unsustainable exercise of discretion. State v. Perry, 166 N.H. 23, 26 (2014).
To meet this standard, the defendant must demonstrate that the trial court’s
decision was clearly untenable or unreasonable to the prejudice of his case. Id.

The defendant first contends that “[t]he court erred in finding that [his]
sentence required him to follow all of the recommendations of his sex offender
counselor.” The defendant asserts that the sentencing order was ambiguous
regarding whether the phrase “follow all recommendations” included Edge’s
recommendations or pertained only to those of the sex offender evaluator. He
argues that we must construe this ambiguity in his favor and conclude that the
sentencing order did not require him to follow Edge’s recommendations. Cf.
State v. Parker, 155 N.H. 89, 92 (2007) (construing a 1990 sentencing order in
the defendant’s favor because it was ambiguous as to whether it “left open the
sentencing phase against the defendant such that he was entitled to the
assistance of counsel during the subsequent hearing in 2005”).

We disagree with the defendant that the terms of his sentence were
ambiguous. The interpretation of a sentencing order is a question of law,
which we review de novo. State v. DiMaggio, 163 N.H. 497, 501 (2012). In
construing the court’s sentencing order, we look to the plain meaning of the
words used. Id.

Reading the sentencing order as a whole, we conclude that it required
the defendant to “follow all recommendations” of his counselor, Edge, in
addition to those of the evaluator. See id. The defendant’s interpretation of the
order is unreasonable and does not render the trial court’s sentencing order
ambiguous. Cf. Duke/Fluor Daniel v. Hawkeye Funding, 150 N.H. 581, 584
(2004) (explaining that contractual language “is ambiguous if the parties can
reasonably differ as to its meaning,” and concluding that, because the
plaintiff’s interpretation was unreasonable, provision was not ambiguous
(quotation omitted)). The defendant could not have reasonably understood the
sentencing order to require him to follow only the recommendations of the
person who conducted the initial sex offender evaluation, and to allow him to
disregard those of his sex offender counselor. See State v. Kay, 162 N.H. 237,

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242 (2011) (concluding that sentencing order, which “plainly imposed an
obligation on the defendant to pay child support and informed him that
compliance was to occur through . . . his probation officer,” impliedly required
him to remain in contact with his probation officer, and “the defendant could
not reasonably have understood otherwise”).

Next, the defendant asserts that there was insufficient evidence that he
failed to comply with Edge’s recommendation to submit to a polygraph
examination. He argues that because he had not been given a deadline by
which to take the polygraph, he still had “an opportunity to comply with the
terms of his conditional liberty,” and, under those circumstances, it was “error
to revoke that liberty.”

In general, to prevail on a challenge to the sufficiency of the evidence,
“the defendant must prove that no rational trier of fact, viewing all of the
evidence and all reasonable inferences from it in a light most favorable to the
State, could have found guilt by the standard of proof applicable to the
proceeding in question.” State v. Smith, 163 N.H. 13, 18 (2011). “When
imposing a previously suspended sentence, the trial court must independently
evaluate the evidence before it to determine whether the State proved, by a
preponderance of the evidence, that a violation of the suspension conditions
had occurred.” Id. (quotation and brackets omitted). “Our standard of review
on this claim of legal error is de novo.” Id.

Viewing the evidence and all reasonable inferences from it in the light
most favorable to the State, we conclude that a rational trier of fact could have
found, by a preponderance of the evidence, that, by failing to take the
polygraph examination promptly, the defendant failed to comply with a
mandatory condition of his suspended sentence. The record establishes that
Edge told the defendant in April 2014 to take a polygraph examination, but
that by June 2014, he had not done so.

Because the defendant did not testify at the hearing, he did not
personally explain his failure to comply with Edge’s recommendation to take
the polygraph examination. Rather, his explanations were presented to the
trial court only through Edge’s testimony. The trial court was not required to
credit the defendant’s explanations, which were presented by Edge. Cf. In the
Matter of Henry & Henry, 163 N.H. 175, 181 (2012) (as trier of fact, a trial
court is entitled to accept, in whole or in part, witness testimony and to
disbelieve even uncontroverted evidence). Indeed, the trial court found those
explanations to be “self-serving.” Nor was the court required to find that they
justified the defendant’s failure to comply with Edge’s recommendation that he
take the polygraph.

Viewed in the light most favorable to the State, we hold that there was
sufficient evidence to support a finding, by a preponderance of the evidence,

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that the defendant failed to “follow all recommendations” of his counselor, and,
thus, did not comply with a mandatory condition of his suspended sentence.

Affirmed.

DALIANIS, C.J., and HICKS, CONBOY, LYNN, and BASSETT, JJ.,
concurred.

Eileen Fox,
Clerk

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