State of New Hampshire v. Jonathan Betancourt

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2021-0343, State of New Hampshire v.
Jonathan Betancourt, the court on July 1, 2022, issued the
following order:

Having considered the brief, memorandum of law, and record submitted
on appeal, we conclude that oral argument is unnecessary in this case. See
Sup. Ct. R. 18(1). The defendant, Jonathan Betancourt, appeals his sentence
following his guilty plea to one charge of conspiracy to sell a controlled drug.
See RSA 318-B:2, I (2017); RSA 629:3 (2016). He argues that the Superior
Court (Colburn, J.) impermissibly drew an adverse inference from his silence at
the sentencing hearing, thereby violating his rights under the Fifth Amendment
to the Federal Constitution and Part I, Article 15 of the State Constitution. We
affirm.

Prior to the sentencing hearing, the defendant submitted a sentencing
memorandum stating that his “personal history and background mitigate in
favor of leniency.” He stated that he “traveled to this area from Puerto Rico,”
that he “endured a difficult upbringing,” and that he has “no prior criminal
history.” The State submitted a sentencing memorandum asserting that
investigators had contacted Puerto Rican authorities and had received an
identification document for a person named Jonathan Betancourt Lopez.
According to the State, the social security number and date of birth for
Jonathan Betancourt Lopez matched the information on the defendant’s
identification documents, but the photograph was of a different person, and the
signature was different from the defendant’s. The State alleged that, if the case
had gone to trial, cooperating witnesses would have testified that the defendant
and a co-conspirator had told the witnesses that they are half-brothers and are
Dominican. The State introduced the Puerto Rican identification document as
an exhibit at the sentencing hearing.

The State argued that the issue of the defendant’s identity is “an
aggravating factor” because, by presenting himself as Jonathan Betancourt
with “no prior criminal history,” the defendant was “lying to the Court.” The
State argued that the defendant’s use of a false Puerto Rican identity
demonstrated his commitment to the drug trafficking organization and “that he
has something to hide from this Court.”

In imposing its sentence, the court stated, “I’m going to address you as
Mr. Betancourt, although I don’t believe for a moment that that is who you
are.” The court, expressing skepticism about the defendant’s sentencing
memorandum, described the issue of his identity “as an aggravating factor in
the sense that it doesn’t give me a lot of comfort to know who I’m sentencing,
because I don’t.” The court stated, “what I have is a person before me who has
been less than honest, I think, with the Court, and who is clearly tied to what
can only be described as a very serious organization.”

At the start of the sentencing hearing, the defendant identified himself as
Jonathan Betancourt Lopez. The person named in the indictment is Jonathan
Betancourt. After the defendant identified himself, defense counsel stated:
“My client is prepared to admit here today that he is the Jonathan Betancourt
that’s identified in the indictment. In terms of questions about his real
identity, if that’s asked, he would be taking his Fifth Amendment rights.” We
note at the outset that the defendant did not preserve a state constitutional
claim because he made no reference at the hearing to the State Constitution.
See State v. Dellorfano, 128 N.H. 628, 632 (1986). We note further that, during
the hearing, neither the State nor the court asked the defendant any “questions
about his real identity.”

The defendant asserts that the State impermissibly argued that the
defendant, by his silence, was concealing a prior criminal history. He argues
that the trial court erroneously accepted the State’s argument and
impermissibly assumed, based upon his silence, that he had a criminal history.
“A specific, contemporaneous objection is required to preserve an issue for
appellate review.” State v. Sullivan, 142 N.H. 399, 403 (1997) (requiring
objection to prosecutor’s sentencing argument). “This requirement affords the
trial court the opportunity to correct an error it may have made, or clearly
explain why it did not make an error.” Id. (quotation omitted). The defendant
did not object to the State’s argument at the sentencing hearing or to the trial
court’s sentencing rationale. Accordingly, we conclude that the issue was not
preserved for review. See id.

Even if the defendant had preserved this issue, we would conclude that
the record does not support his argument. The trial court’s sentencing
rationale was not based upon the defendant’s silence. Rather, it was based
upon the defendant having identified himself at the start of the hearing as
“Jonathan Betancourt Lopez” and the information that the State obtained
during its investigation casting doubt upon the defendant’s claimed identity.
The court also relied upon the voluntary statements in the defendant’s
sentencing memorandum that contradicted the information obtained by the
State, as well as the Puerto Rican identification document entered as an exhibit
at the hearing.

Affirmed.

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

Timothy A. Gudas,
Clerk
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