The petitioner, Gregorio B. Guardarramos-Cepeda, challenges the constitutionality of RSA 651:58, I (Supp. 2005), which permits the State to seek sentence review, arguing that it violates the due process and double jeopardy protections of the New Hampshire Constitution. We deny the petition.
Following a jury trial, the petitioner was convicted of possession of five grams or more of heroin with the intent to sell and conspiracy to sell five grams or more of heroin. See RSA 318-B:2,1 (2004); RSA 318-B:26,1(a)(3) (Supp. 2005); RSA 629:3 (Supp. 2005). The Trial Court (Hicks, J.) imposed two concurrent sеntences of five to fifteen years in the New Hampshire State Prison. The petitioner’s convictions were affirmed on appeal. On July 25, 2003, pursuant to RSA 651:58, I, the State filed an application requesting a review of the petitioner’s sentences by the sentence rеview division. The petitioner’s timely objection to the State’s application was denied, and the sentence review board (the board) conducted a hearing on March 18,2005.
At that hearing, the State requested an increase of the petitioner’s sentencеs to two concurrent sentences of fifteen to thirty years based upon the large quantity of heroin involved — approximately 70 grams. The petitioner, however, asked the board to affirm the original sentences, arguing that they were reasonable in light of the faсts and circumstances presented to the
As a preliminary matter, the petitioner filed this action as a discretionary appeal under Supreme Court Rule 7. See SUP. Ct. R. 7(1)(B). The applicable statutory scheme governing Sentence Review Procedures does not provide for a direct appeal of a sentence review decision. See RSA 651:58-:60 (1996 & Supp. 2005); Bell v. State Super. Ct. Review Div.,
Before addressing the merits, we address the State’s contention that the petitioner’s fаilure to raise the issue of the constitutionality of RSA 651:58, I, in either his objection to the State’s application for sentence review or during the Sentence Review Division hearing effectively waived the issue and failed to preserve it for appeal. The general rule is that a contemporaneous and specific objection is required to preserve an issue for appellate review. State v. Blackmer,
The petitioner argues that to the extent RSA 651:58,1, allows the State to seek sentence review — and a subsequent increase in his sentence — it violates the due process and double jeopardy protections of Part I, Articles 15 and 16 of the New Hampshire Constitution. Because the petitioner relies solely upon the State Constitution, we will not engage in a separate federal analysis, but will cite federal authority as an aid to our analysis under the State Constitution. See State v. McLellan,
RSA 651:58 provides, in pertinent part:
Any person sentenced to a term of one year or more in the state prison,... or the state of New Hampshire, may file with the clerk of the superior court for the county in which the judgment was rendered an application for review of the sentence by the review division.
Due process requires a sentencing cоurt to make clear at the time of sentencing in plain and certain terms what punishment it is exacting, the extent to which the court retains discretion to impose punishment at a later date, and under what conditions the sentence may be modified. State v. LeCouffe,
Here, the defendant was given statutory notice of the State’s right to seek a review of his sentences. RSA 651:58, I and II provided the petitioner with statutory notice of the State’s right to seek a review of the petitioner’s sentence within thirty days of the imposition of that sentence, and the extent to which jurisdiction was retained to either increase or decrease the imposed sentence after a hearing conducted by the board. Moreover, as set forth in RSA 651:58, II, the petitioner also received actual notice that review of the sentence cоuld result in its being increased. Therefore, we conclude that RSA 651:58, I, does not violate the Due Process Clause of the State Constitution.
We next consider whether RSA 651:58,1, violates the Double Jeopardy Clause in Part I, Article 16 of the New Hampshire Constitution. We have not yet addressed whether the board’s decision to increase a defendant’s sentence after a review hearing conducted at the State’s request impermissibly augments the sentence in violation of the Double Jeopardy Clause of the State Constitution. While recognizing that the United States Supreme Court has addressed this issue in United States v. DiFrancesco,
The United States Supreme Court reversed, holding that 18 U.S.C. § 3576 is constitutional and does not violate either the prohibition against multiple punishments or the prohibition against multiple trials embodied in the Double Jeopardy Clause. Id. at 139-40. While recognizing that the Court “necessarily afford[s] absolute finality to a jury’s verdict of acquittal — no matter how erroneous its decision,” id. at 130 (emphasis in original), it concluded that a criminal sentence, once imposed, is not accorded the constitutional finality and conclusiveness that attaches to a jury’s verdict of acquittal. Id. at 132. The Court reasoned that there are “fundamental distinctions between a sentence and an acquittal,” and the failure to recognize such distinctions would diminish the particular significance of an acquittal. Id. at 133. It also noted that the prosecution’s statutorily granted right to seek a review of a sentence does not subject the defendant to the same embarrassment, expense, anxiety, insecurity, and possibility of being found guilty even though innocent, which are double jeopardy considerations barring reprosecution after an acquittal. Id. at 136. Thus, while acknowledging that an appeal of a sentencе may prolong the period of anxiety for the defendant, the Court concluded that it does so only for a finite period provided by statute. Id. Therefore, it is no more of an ordeal than any government appeal from the dismissal of an indictment or information. Id. Just аs there is no double jeopardy protection against revocation of probation and the imposition of imprisonment when authorized by Congress, the Court held that where the legislature has specifically provided that a sentence is subject to appeal and may be increased as a result of that appeal, “there can be no expectation of finality in the original sentence.” Id. at 137,139.
The petitioner urges us to adopt the rationale underlying the DiFmncesco dissent. The dissent challenged the majority’s conclusion that there are fundamental distinctions between an acquittal and the imposition of a sentence, stating: “The sentencing of a convicted criminal is sufficiently analogous to a determination of guilt or innocence that the Double Jeopardy Clause should preclude government appeals from sentencing decisions very much as it prevents appeals from judgments of acquittal.” Id. at 146. The petitioner argues that the dissent’s view comports with New Hampshire’s guarantees of certainty and finality in sentencing.
We find the majority’s rеasoning persuasive. Like the federal statute at issue in DiFmncesco, RSA 651:58, I, provides for both statutory and actual notice to the defendant that the imposed sentence may
Accordingly, we hold that RSA 651:58, I, violates neither the due process nor double jeopardy protections of the New Hampshire Constitution. We, therefore, deny the petitioner’s petition for writ of certiorari.
Petition denied.