State of New Hampshire v. Andrew M. Fletcher

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2021-0322, State of New Hampshire v. Andrew
M. Fletcher, the court on September 28, 2022, issued the
following:

Having considered the briefs, oral arguments of the parties, and the
record submitted on appeal, the court concludes that a formal written opinion
is unnecessary in this case. The defendant, Andrew M. Fletcher, appeals an
order of the Superior Court (Ruoff, J.) imposing a deferred sentence. He
contends that the trial court erred by imposing the sentence in an untimely
fashion. We affirm.

The record contains the following procedural history. On February 7,
2019, the defendant pled true to a probation violation and was sentenced to six
months in the house of corrections, deferred for one year, and suspended for
one year following the end of the deferral period. The sentencing order required
the defendant to remain on good behavior during the deferral period, and
placed the burden of proof on the defendant to demonstrate his compliance
with this requirement. It also required the defendant to file a motion to avoid
imposition of the deferred sentence at least thirty days before the expiration of
the deferral period.

In October 2019, during the deferral period, the defendant was arrested
and charged with misdemeanor driving while intoxicated (DWI). The defendant
acknowledges that “the pending DWI charge rendered [him] unable to
demonstrate that he had been of good behavior during the deferral period.”
He thus sought to resolve the DWI charge before litigating his motion to avoid
imposition of the deferred sentence.

In March 2020, the trial court held a hearing on the imposition of the
deferred sentence. At this hearing, the defendant requested that his sentence
be “re-deferred for a period of time.” The court granted this request, deferring
imposition of the sentence for an additional ninety days. The defendant made
three more requests to postpone the deferred sentencing hearing in June 2020,
October 2020, and December 2020 based on the pending DWI charge. The
December 2020 request provided the following explanation: “[T]he DWI remains
outstanding; it’s still awaiting scheduling in terms of the next hearing date.
The deferred sentence cannot be resolved unless and until the DWI is. For that
reason, we’re requesting a continuance of no less than 60 days (and recognize

that more may be necessary given the court’s scheduling ability). The State
assents to this request.”

In March 2021, the court held another hearing, at which it requested the
parties to brief whether it could still impose the deferred sentence, given that
approximately two years had passed since the sentence was originally ordered.

The court scheduled an evidentiary hearing for May 5, 2021. However,
due to a witness’s scheduling conflict, the State requested a continuance. The
trial court granted the continuance, observing that “the postponement may
impact the Court’s analysis of the ‘timely fashion’ as discussed in Almodovar.”
See State v. Almodovar, 158 N.H. 548 (2009). On June 9, the trial court held
an evidentiary hearing regarding the defendant’s compliance with the good-
behavior requirement of his deferred sentence. Although the DWI charges were
still pending, the State submitted evidence about the charged offense. On
June 16, the trial court issued an order, finding that “the defendant violated
the ‘good behavior’ term of his deferred sentence,” and imposing thirty days of
the original six-month sentence. The sentencing order also provided that the
defendant was eligible for release on electronic monitoring after he served seven
consecutive twenty-four-hour periods. This appeal followed.

Sentencing courts have authority to impose a deferred sentence in “a
timely fashion” following the expiration of the deferral period. Id. at 553. The
question presented in this case is whether the imposition of the deferred
sentence in June 2021 was untimely.

In this case, the trial court first held a hearing to impose the defendant’s
deferred sentence in March 2020, after the defendant failed to file a motion to
avoid imposition of the sentence as required by the original sentencing order.
At that hearing, defense counsel stated: “[W]e agree that it’s not appropriate
today for the sentence to be suspended. What we’re asking for is that it be re-
deferred for a period of time. I’ll leave that period of time to the Court.” The
defendant subsequently made at least three more requests to postpone his
deferred sentencing hearing, including his December 2020 request in which he
requested a continuance of “no less than 60 days.”

Following an evidentiary hearing in June 2021, the trial court found that
“any delay in imposing the deferred sentence within the original deferral period
was caused — almost exclusively — by the defendant.” Recognizing the
absence of case law addressing the “timeliness” issue and the procedural
history of the case, the court ruled that imposition of the deferred sentence was
timely.

On appeal, the defendant raises several challenges to the trial court’s
timeliness ruling. Because he did not file a motion to reconsider to bring to the
trial court’s attention alleged errors that first became apparent in its order, we

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limit our review of his appellate challenges. See N.H. Dep’t of Corrections v.
Butland, 147 N.H. 676, 679 (2002) (alleged errors first presented in trial court
order must be raised in motion for reconsideration to be preserved for appellate
review).

Though the defendant asserts that the State was not required to wait for
the conclusion of the DWI prosecution before deciding to seek imposition of the
deferred sentence, the record reflects that it was the defendant who requested
four continuances through December 2020 and that the State assented to each
request. After repeatedly requesting postponements of his deferred sentencing
hearing, the defendant cannot now complain that the trial court imposed a
sentence in a manner consistent with his own requests.

Based upon the facts of this case, we conclude that the trial court did
not err by imposing the reduced portion of the defendant’s deferred sentence in
June 2021. The defendant’s remaining arguments warrant no further
discussion. See State v. Blackmer, 149 N.H. 47, 48 (2003).

Affirmed.

MACDONALD, C.J., and HICKS, BASSETT, HANTZ MARCONI, and
DONOVAN, JJ., concurred.

Timothy A. Gudas,
Clerk

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