State of New Hampshire v. Jared Fellows

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2022-0293, State of New Hampshire v. Jared
Fellows, the court on March 1, 2024, issued the following order:

The court has reviewed the written arguments and the record submitted
on appeal, and has determined to resolve the case by way of this order. See
Sup. Ct. R. 20(2). The defendant, Jared Fellows, was convicted, following a
jury trial in Superior Court (Messer, J.), on one charge of burglary. See RSA
635:1 (2016). On appeal, he requests that we vacate his sentence on the basis
that the trial court, in sentencing him, engaged in plain error by impermissibly
inferring from his decisions to go to trial and remain silent that he lacked
remorse. We affirm.

“A plain error that affects substantial rights may be considered even
though it was not brought to the attention of the trial court . . . .” Sup. Ct. R.
16-A. “The rule should be used sparingly, its use limited to those
circumstances in which a miscarriage of justice would otherwise result.” State
v. Lamy, 158 N.H. 511, 524 (2009) (quotation omitted). To fall within the rule,
(1) there must be an error; (2) the error must be plain; (3) the error must affect
substantial rights; and (4) the error must seriously affect the fairness, integrity,
or public reputation of judicial proceedings. Id.

To establish that an error affected substantial rights, “the defendant
must demonstrate that the error was prejudicial, i.e., that it affected the
outcome of the proceeding.” State v. Mueller, 166 N.H. 65, 70 (2014)
(quotation omitted). This analysis “is similar to the harmless error analysis we
use to evaluate preserved claims of error, with one important distinction:
whereas the State bears the burden under harmless error analysis, the
defendant bears the burden under the plain error test.” Id. An error seriously
affects the fairness, integrity, or public reputation of judicial proceedings for
purposes of the plain error test when a miscarriage of justice would otherwise
result. Id. at 72.

A criminal defendant’s lack of remorse may be pertinent to determining
whether rehabilitation efforts will be successful and, thus, is a factor that the
trial court may consider in sentencing the defendant. See State v. Burgess, 156 N.H. 746, 754 (2008). Nevertheless, the trial court may not, consistent
with the defendant’s constitutional privilege against self-incrimination, infer a
lack of remorse from the defendant’s decision to remain silent at sentencing if
the defendant has maintained his or her innocence throughout the criminal
process. See id. at 757-58, 760; see also State v. Willey, 163 N.H. 532, 544-45
(2012); Lamy, 158 N.H. at 524. When a defendant has not maintained his or
her innocence throughout the proceedings, but has instead “made some
admission of guilt,” the privilege against self-incrimination does not preclude
the trial court from inferring a lack of remorse from the defendant’s silence at
sentencing. Lamy, 158 N.H. at 524; see Burgess, 156 N.H. at 760-61
(observing that silence at sentencing might give rise to a legitimate lack of
remorse inference if the defendant admits to committing the underlying
criminal acts but disputes the requisite mental state or offers legal justification
for those acts). Whether an inference of lack of remorse violates a defendant’s
privilege against self-incrimination depends upon the factual circumstances of
each case. Willey, 163 N.H. at 544; Burgess, 156 N.H. at 760.

In this case, the State sought the maximum permissible sentence of
three-and-one-half-to-seven years, citing, among other factors, that this
particular burglary was one of at least three burglaries the defendant
committed within a short period of time, that he committed one of the other
burglaries while he was released on bail in this case, that each of the
burglaries targeted victims over the age of 60, that the defendant has a lengthy
criminal history, and that he is a “professional burglar.” In response, the
defendant requested a stand-committed sentence of one-to-two years,
“recogniz[ing] that this event shouldn’t have happened, [but] did happen.” The
defendant characterized all three burglaries as “global events,” for two of which,
he asserted, he had already received “a significant amount of punishment,”
representing that he had served a one-to-two year term on one of the
burglaries, and that he was “now . . . going into the second half of” a three-to-
six year prison term on the second burglary. The defendant argued that, in
light of the sentences he had received and would receive in this case, he had
“been punished severely,” and that he would “stay at the State prison pursuant
to” his proposed sentence.

The trial court sentenced the defendant to a stand-committed term of
two-to-six years consecutive to the sentence he was then serving. In imposing
the sentence, the trial court remarked:

Mr. Fellows, this is a little bit of a challenging sentence in the
sense that I do think, you know, people ― of all the places that you
should feel safe in the world, near the top should be at your home,
and you violated that such that [the victim] and her neighbors are
impacted by your conduct. There hasn’t been really anything
you’ve done throughout the course of this case that . . . gives me
any sense that you have a sense of remorse here, and that is
troubling to me.

By the same token, I recognize that you have now been
incarcerated for a fairly significant amount of time. And . . . you
had an issue during the period of your incarceration that’s

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 troubling. But I am pleased to hear that you’re taking advantage
of some of the programing there. And hopefully the purpose of that
is to be a productive member of our community upon your release.

So I’m putting all of those factors together. I’m going to give
you some additional time on top of the time that you’re serving.
I’m going to give you a chance to earn some reductions in that
based upon your participation in programing while you’re
incarcerated. So it sounds like you still have a significant amount
of programing that you can participate in. I’m glad to hear that
you got your high set. That’s an accomplishment that you should
feel proud of.

But you know you’re going to be on parole as [your attorney]
said. You will be doing your time on the installment plan over the
course of your life if you don’t make the conscious decision to
change. And it’s my hope that you are thinking that you are going
to make that conscious decision for change, otherwise, you’re going
to be yanked back in on parole. That’s just ― you know, and you
managed to do okay on parole initially, it sounds like from what I
heard.

So the sentence I’m going to impose is this. You’re
sentenced to the New Hampshire State Prison for not more than
six years nor less than two years. There’s added to your minimum
sentence, a disciplinary period of 150 days for each year of your
minimum term to be pro-rated for any part of the year. That
sentence is stand committed. It is consecutive to the sentence that
you’re presently serving.

Additionally, you will be required to meaningfully participate
in and complete any counseling, treatment, or education programs
as directed by the Correctional Authority Probation Parole. . . .
[T]he Department of Corrections shall have the authority to award
you earned time reductions against your minimum and maximum
sentences for successful completion of programing while you’re
incarcerated.

The defendant argues that, because the trial court remarked that he had not
done anything “throughout the course of this case” to give “any sense that [he]
ha[d] a sense of remorse,” and because he had asserted an alibi defense at trial
and did not testify, either at trial or at sentencing, the trial court necessarily
“found that he had not affirmatively demonstrated remorse,” and “based its
determination on [his] decision to plead not guilty and to remain silent at trial
and at sentencing.”

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 Even if we assume, without deciding, that the trial court erroneously
inferred a lack of remorse from the defendant’s silence, we agree with the State
that he has not established that the error affected his substantial rights, or
that it seriously affected the fairness, integrity, or public reputation of judicial
proceedings. See Lamy, 158 N.H. at 525. As the State emphasizes, the trial
court considered multiple factors when it imposed the sentence it imposed,
including the psychological harm to the victim and her neighbors caused by
the defendant’s crime, the fact that he committed multiple additional burglaries
around the time that he committed the burglary in this case, and that he
committed one of the other burglaries while he was released on bail in this
case. Moreover, the trial court granted the defendant the opportunity to obtain
earned time credits to reduce the time that he is incarcerated. See RSA 651-
A:22-a (Supp. 2023). In light of the factors justifying the sentence that the
defendant received, we conclude that he has not demonstrated either that the
alleged error in considering his lack of remorse affected his substantial rights,
or that it seriously affected the fairness, integrity, or public reputation of
judicial proceedings. See Lamy, 158 N.H. at 525.

Affirmed.

MacDonald, C.J., and Bassett, Hantz Marconi, and Countway, JJ.,
concurred.

Timothy A. Gudas,
Clerk

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