State of New Hampshire v. Andre J. Bergeron

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2016-0458, State of New Hampshire v. Andre J.
Bergeron, the court on December 22, 2016, issued the following
order:

The defendant’s assented-to motion to stay bail review and for leave to
file supplement following superior court proceedings is denied, without
prejudice to his: (1) filing a new motion for bail pending appeal in the superior
court, which shall have continuing original jurisdiction to decide the motion
while this appeal is pending, see Rautenberg v. Munnis, 107 N.H. 446, 447-48
(1966); and (2) requesting leave of this court to raise new issues that may arise
out of any such bail proceeding within the context of the present appeal.
Processing of the present appeal shall proceed in the normal course.

Having considered the memoranda filed in response to our order of
October 14, 2016, relative to bail, including the defendant’s pro se reply
memorandum, and the record provided on appeal, we conclude that oral
argument is unnecessary to resolve the bail issue. We affirm the trial court’s
decision to grant the defendant bail pending appeal conditioned upon his
provision of $3,000 cash or $15,000 corporate surety.

RSA 597:1-a (Supp. 2015) governs a request for bail pending appeal. It
provides that, for a person who has been convicted of a felony and sentenced to
imprisonment, bail is generally not available pending an appeal unless that
person establishes certain statutory elements. RSA 597:1-a, III(a). If the
person has been convicted of a misdemeanor and has been sentenced to a term
of imprisonment, the statute provides that the person “shall, before the
conclusion of [any] appellate proceeding, be released upon compliance with the
provisions of RSA 597:2 [(Supp. 2015)].” RSA 597:1-a, IV. RSA 597:2, in turn,
provides in part that if the trial court determines that release of the person will
“endanger the safety of the person or of any other person or the community,” it
may condition release upon the person “[f]urnish[ing] bail for his appearance
by recognizance with sufficient sureties or by deposit of moneys equal to the
amount of the bail required as the court . . . may direct.” RSA 597:2, III(b)(2).

In this case, the defendant, Andre J. Bergeron, was convicted of two
felony counts of receiving stolen property and two misdemeanor counts of
fraudulent use of a credit card. At sentencing, the State introduced evidence
that, since 2011, he had been convicted at least ten times for various crimes,
including theft by unauthorized taking, receiving stolen property, criminal
trespass, criminal mischief, simple assault, false public alarm, and criminal
contempt, and that he had been found to have violated the terms of his
probation. It represented that, during that period, he had served at least
twenty-four months plus 170 days in the House of Corrections, and that he
had committed the crimes in this case while he was subject to a suspended
sentence. The Trial Court (Bornstein, J.) sentenced the defendant to
consecutive stand-committed twelve-month House of Corrections sentences on
the misdemeanor convictions, and to consecutive three-and-a-half to seven
year state prison sentences, deferred for seven years, on the felony convictions.

After the trial court imposed the sentences, the defendant requested bail
pending appeal. He argued that he was not a flight risk, that he had
voluntarily turned himself in to law enforcement at the outset of the case, that
he had been granted $10,000 personal recognizance bail prior to trial, and that
he had not violated the terms of his bail. He requested personal recognizance
bail of $20,000. The State objected, arguing that, based upon his criminal
record, the defendant is a danger to the community.

The trial court granted the defendant’s request for bail, ruling that,
because the felony sentences were not stand-committed, RSA 597:1-a, III did
not apply, and that, pursuant to RSA 597:1-a, IV, he was entitled to be
released pending his appeal upon his compliance with RSA 597:2. Because the
parties do not challenge this interpretation of RSA 597:1-a, we assume that it
is correct. The trial court also found, however, that in light of the defendant’s
criminal history, he posed a significant danger to the community absent “some
amount of cash or corporate surety component.” Thus, the trial court
conditioned bail upon the provision of $15,000 cash or corporate surety. On
reconsideration, the trial court reduced the cash component to $3,000.

On appeal, the defendant argues that the trial court erred by not
granting his request for $20,000 personal recognizance bail because it had
released him, prior to trial, on $10,000 personal recognizance bail, because he
will likely have served a considerable amount of his sentence by the time this
appeal is resolved, and because his deferred sentences carried a condition of
good behavior “which will serve as a further deterrent.”

Whether to grant bail pending an appeal is a matter within the trial
court’s sound discretion. State v. Marini, 117 N.H. 71, 73 (1977). We will
reverse the trial court’s decision only on compelling evidence. Id. Here, the
undisputed evidence establishes that the defendant committed a substantial
number of crimes during the five years prior to the sentencing hearing, that he
had served a significant amount of time in the House of Corrections, and that
he was subject to a suspended sentence when he committed the crimes that
are the subject of this appeal. Under these circumstances, the trial court’s
determination that, absent a cash or corporate surety component to bail, the
defendant would be a danger to the community was well supported by the
evidence. Moreover, we note that in his motion for reconsideration, the

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defendant requested, in the alternative, that the trial court lower the cash or
corporate surety amount to $1,300. We conclude that the trial court was well
within its discretion to condition bail pending appeal upon the provision of
$3,000 cash or $15,000 corporate surety pursuant to RSA 597:2, III(b)(2).

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

Eileen Fox,
Clerk

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