The defendant, Charles L. Peabody, after having been determined to be an habitual motor vehicle offender through appropriate judicial process, operated a motor vehicle upon a public way in Sullivan County on October 9, 1980, in violation of a court order prohibiting him from driving on a public highway. RSA ch. 262-B. RSA 262-B:7 I provides that a person convicted of a violation of such a court order “shall, notwithstanding the provisions of RSA Title LXII be sentenced to imprisonment for not less than a year nor more than 5 years,” and that “[n]o portion of the aforesaid minimum mandatory sentence shall be suspended. . . .” Id. On March 18, 1981, the defendant pleaded guilty to a violation of RSA 262-B.-7 I and was sentenced by the Superior Court (Johnson, J.) as follows:
“Sentenced to the New Hampshire State Prison for not less than a year and a day nor more than five years. Credit is given for one day presentence confinement. It is recommended that this sentence be served at the Sullivan County House of Correction. Stand committed.”
The defendant argues that mandatory sentencing unlawfully conflicts with the inherent power of the trial court to suspend sentences, as well as with the court’s statutory power to suspend sentences as expressed in RSA 504:1 (Supp. 1979). We hold that the sentence in this case is lawful, and therefore we affirm.
Arguments similar to those advanced by the defendant have
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been considered by this court in cases involving the mandatory sentencing of second offenders under statutes dealing with persons driving motor vehicles while under the influence of intoxicating liquor or drugs.
State v. Mullen,
The defendant argues that the mandatory sentencing provisions of RSA 262-B:7 I fly in the face of RSA 504:1 (Supp. 1979). The latter statute provides generally that, notwithstanding other provisions of law, sentences to imprisonment may be suspended. A similar argument was answered in
State v. Dean,
where we held that “the legislative intent was that the specific provision of the most recent enactment, RSA 262-B:7 . . . should control, taking priority over the general provision of the earlier enactment, now RSA 651:20.”
The State argues that RSA 262-B:7 I mandates a single indeterminate sentence of one to five years. We disagree. The statute sets the sentence at “not less than a year nor more than 5 years.” RSA 262-B:7 I. These are discretionary, not absolute, words. Where the language of a statute is plain, we will give the words their usual and customary meaning.
Silva v. Botsch,
It should be noted that mandatory sentencing in New Hampshire has been cautiously and sparingly used. Its application has been limited to habitual motor vehicle offenses, RSA 262-B:7 I, second drunk driver offenses, RSA 262-A:62 (Supp. 1979), and the felonious use of a firearm, RSA 651:2 Il-b (Supp. 1979). Mandated sentences that impose too severe a punishment for offenses may run afoul of constitutional prohibitions.
See
U.S. Const, amend. VIII; N.H. Const, pt. I, art. 18. In
State v. Wentworth,
“[W]e recognize that, as defendant argues, the constitutional prohibitions against cruel and unusual punishments might be violated by sentences which are grossly disproportionate to the crime, see Robinson v. California,370 U.S. 660 , 667 (1962); Coker v. Georgia,433 U.S. 584 , 591-92 (1977), and that sentences might be so disproportionate as to constitute an abuse of discretion, see Benton v. Dover District Court,111 N.H. 64 ,274 A.2d 876 (1971)
We find no such problem here.
The defendant’s argument that he could have been sentenced to a county house of correction instead of the State prison is also unpersuasive. This court previously recognized that the legislature intended that all sentences be served in the New Hampshire State Prison. “The penalty for operating a motor vehicle in violation of an order under this statute is mandatory imprisonment
in State prison
for not more than five years nor less than one year ____”
State v. Bowles,
Affirmed.