State of New Hampshire v. Destin Stewart

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2019-0310, State of New Hampshire v. Destin
Stewart, the court on September 3, 2020, 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, Destin Stewart, appeals the order of the Superior Court
(Delker, J.) on his motion to reallocate pretrial confinement credit, arguing that
the trial court’s allocation deprived him of an opportunity to seek release on
parole.

The record shows that in 2015 the defendant entered into a plea
agreement in which he received a negotiated sentence of one to three years on
a charge of second degree assault and three to seven years, suspended for
three years, on a charge of criminal restraint. At the plea and sentencing
hearing, the State informed the trial court that the defendant’s three years of
pretrial confinement credit would be allocated to the second degree assault
charge, so that he would be released immediately.

In 2018, after the defendant was arrested for assault and criminal
mischief, the State moved to impose the suspended sentence on the criminal
restraint charge. The defendant moved to amend the 2015 pretrial credit
allocation. The defendant sought to have one year, rather than three years,
allocated to the second degree assault sentence, and to have the remaining two
years allocated to the criminal restraint sentence. The trial court denied the
defendant’s motion, concluding that the allocation was part of the negotiated
agreement, which contemplated his immediate release.

The defendant argues that he was deprived of his right to due process
under the State Constitution because, he asserts, the record fails to show that
he knowingly, intelligently, and voluntarily waived the opportunity to seek
release on parole after serving one year on the second degree assault sentence.
“[W]hen waiving a constitutional right, one must do so voluntarily, knowingly,
and intelligently with sufficient awareness of the relevant circumstances and
likely consequences.” State v. Foote, 149 N.H. 323, 325 (2003) (quotation
omitted). However, release on parole is granted at the discretion of the parole
board after a finding that the inmate is reasonably likely to be of good behavior
upon release. See RSA 651–A:6, I(a) (2016). Thus, a defendant’s interest in
parole eligibility is not a liberty interest sufficient to form the basis of a due
process claim. Baker v. Cunningham, 128 N.H. 374, 380-81 (1986). Moreover,
in a collateral attack on a guilty plea, “a defendant’s claim of an inadequate
record . . . is not, without more, sufficient to trigger review, and proof of a silent
record, alone, is insufficient to require reversal.” State v. Arsenault, 153 N.H
413, 416 (2006). Rather, “the defendant must describe the specific manner in
which the waiver was in fact involuntary or without understanding.” Id.
(brackets and quotation omitted). In this case, the defendant has failed to
make the necessary showing.

The record shows that the trial court affirmatively inquired into the
knowledge and volition of the defendant’s plea. The defendant’s waiver of
parole eligibility on the second degree assault sentence was a collateral
consequence of his guilty plea. See State v. Sharkey, 155 N.H. 638, 641-43
(2007). The trial court was not required to advise the defendant of the
collateral consequences of his guilty plea. State v. Ortiz, 163 N.H. 506, 510
(2012).

“Whether the facts support a valid waiver is a question of law,” which we
review de novo. State v. Foote, 149 N.H. at 325. The record supports the trial
court’s finding that, by entering into the negotiated plea and sentence, the
defendant expected to be released immediately, without parole restrictions.
The only way to accomplish this objective was to allocate three years of pretrial
credit to the second degree assault conviction. Otherwise, the defendant would
have remained in prison until a parole hearing could be held. The record
supports the trial court’s finding that the defendant’s continued incarceration
would have been inconsistent with the parties’ negotiated agreement. We
conclude that the record is sufficient to show that the defendant voluntarily,
knowingly, and intelligently waived his right to seek parole on the second
degree assault sentence. See id.

Affirmed.

Hicks, Bassett, Hantz Marconi, and Donovan, JJ., concurred.

Timothy A. Gudas,
Clerk

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