State v. Smith, 163 N.H. 13

In Feb 2008, defendant charged with six class A misdemeanors, including criminal mischief.
In Mar–Apr 2008, defendant indicted on six felonies, including witness tampering; pled guilty in Dec 2009.
For three felonies (08-S-753, -755, -756), sentenced to concurrent 2–7 years with 6 months min and all max suspended for seven years.
For the other three felonies (08-S-491, -750, -760), sentenced to concurrent 2–5 years, suspended for five years from release, and consecutive to the first group if imposed.
Felony sentencing orders stated suspensions conditioned on good behavior; violation could trigger imposition of suspended sentences.
In Jan 2010, defendant pleaded guilty to six misdemeanors, with no-contact order; while incarcerated he attempted to contact Nichols by phone, which was blocked; State moved to impose suspended felony sentences for the contempt.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether violation of the good-behavior condition amounted to contempt that could trigger suspended sentences	Smith argues no crime, thus no violation of good-behavior condition	State contends violation constitutes criminal contempt and justifies imposition	Contempt is a crime; attempted violation supported imposition
Whether a hearing was required to determine if contempt was criminal or civil before imposing	Premature conviction without a contempt hearing	Hearing not required; proof of violation suffices	Not required; preponderance standard applied to underlying acts
Sufficiency of evidence that the call violated the no-contact order	Call did not connect; insufficient proof of intent	Dialing Nichols’s number with purpose to contact violated the order	Evidence showed intent and substantial step toward violation; sufficient
Whether due process notice was lacking because misdemeanor sentence was imposed after felony sentences	lacked notice that violating later misdemeanor terms could trigger suspension imposition	Budgett-based notice sufficient; well-established law supports liability for contempt	Defendant had sufficient notice; due process not violated

State v. Gibbs, 157 N.H. 538 (2008) (preponderance standard for violation of suspension conditions; contempt concepts applied)
State v. Kelly, 159 N.H. 390 (2009) (violation of good-behavior condition requires a showing of criminal conduct)
In re Kosek & Kosek, 151 N.H. 722 (2005) (contempt as a substantive offense distinct from litigation)
State v. Nott, 149 N.H. 280 (2003) (indirect contempt requires valid order, knowledge, and intentional noncompliance)
State v. Hancock, 156 N.H. 301 (2007) (elements of indirect criminal contempt in the absence of judge's presence)
Budgett, 146 N.H. 135 (2001) (noting notice requirements when non-criminal acts trigger suspended sentences)
Mine Workers v. Bagwell, 512 U.S. 821 (1994) (criminal contempt is a crime in the ordinary sense)