135 N.H. 713 | N.H. | 1992
The defendant, Kenneth Peterson, alleges that he was erroneously denied parole, even though he had served the minimum time of his sentence. Due to procedural infirmities, however, we do not reach the merits of his appeal, and affirm.
In November 1988, the defendant pleaded guilty to aggravated felonious sexual assault and was sentenced (Gray, J.) to serve three to six years at the New Hampshire State Prison. The sentence directed the defendant to participate in the sexual offender program at the prison’s secure psychiatric unit. The sentence also provided that “upon completion of this program, [the defendant] may petition the Court for a reduction of the minimum and maximum portions of the state prison sentence . . . .”
At present, the defendant has been incarcerated for more than three years, but, for reasons not relevant here, he never participated in the program. Upon learning that he would be ineligible for parole
In his notice of appeal, the defendant presented two questions for our review. The first is whether the warden has the discretionary authority to refuse to allow an inmate, who has served his minimum sentence, to be considered for parole. The second is whether a sentencing court can deny consideration of a prisoner’s motion for a reduction of sentence based solely on the fact that the prisoner has not completed the sexual offender program.
The first issue raised in the notice of appeal, regarding the extent of the warden’s authority to determine whether an inmate is eligible for parole, is no longer an issue in this case. As the defendant freely admits, a parole hearing was held on his behalf. The defendant does not allege that the hearing was untimely, but rather that the warden exceeded his authority when he improperly interpreted the defendant’s sentence. Even if the warden misconstrued the defendant’s sentence, a question we do not address, the defendant was granted a parole hearing as required by the adult parole board rules. N.H. Admin. Rules, Par 202.01 (1986). Therefore, we deem this issue moot and decline to address it on the merits. See Durell v. City of Dover, 130 N.H. 700, 701, 546 A.2d 1072, 1073 (1988).
The second issue raised in the notice of appeal is “[w]hether a sentencing court can deny consideration of a prisoner’s motion for a reduction of sentence based solely on the fact that the prisoner has not been accepted into nor completed [the sexual offender program].” The issue presented in the defendant’s brief, however, is whether the sentencing judge can mandate that a defendant complete the sexual offender program before being eligible for parole. Whether a sentencing court has the power to set conditions for its future consideration of a defendant’s motion to reduce sentence is a separate issue from whether it may permissibly impose conditions precedent to the defendant’s eligibility for parole.
New Hampshire Supreme Court Rule 16 requires that the question presented in the brief “shall be the same as the question previously set forth in the appeal document.” Sup. Ct. R. 16(3)(b).
Affirmed.