120 N.H. 344 | N.H. | 1980
Memorandum Opinion
The issue we decide in this criminal case is whether the defendant’s due process rights were violated by his transfer without a hearing from the Rockingham County House of Correction to the State prison. We find no such violation.
Defendant was convicted on four counts of unlawfully obtaining controlled drugs. State v. Schulte, 119 N.H. 36, 398 A.2d 63 (1979). He was sentenced to not more than four nor less than two years in State prison. Two days after he was placed in the general population at the prison, the defendant was assaulted, suffering two fractures which required two weeks’ hospitalization. He thereafter appeared before the sentence review board which recommended a transfer to the Rockingham County House of Correction.
The defendant argues that his transfer back to the prison without a prior hearing was a denial of his right to due process. He alleges that he was transferred because he criticized the operation of, and the conditions at, the county facility, speech arguably protected by the first amendment.
There is no due process right to a hearing before being transferred from one penal facility to another, absent a right to confinement at a particular prison. Montayne v. Haymes, 427 U.S. 236 (1976); Meachum v. Fano, 427 U.S. 215 (1976). See Vitek v. Jones, 100 S. Ct. 1254 (1980). The defendant had no right to be or remain in the Rockingham County House of Correction. He was there only with the consent of the sheriff as a favor to the defendant who would otherwise be in the State prison. See Sampson v. Superior Court, 119 N.H. 418, 402 A.2d 192 (1979). That consent could be withdrawn at any time and for any reason.
In any event, not only was the defendant given a hearing following which his transfer was confirmed, but the whole matter has now become moot because of his parole. See Dolcino v. Thalasinos, 114 N.H. 353, 321 A.2d 107 (1974); Marshall v. Thalasinos, 116 N.H. 671, 366 A.2d 212 (1976). Any further consideration of defendant’s claims would be hypothetical, and none of the issues raised are of such public interest as to warrant our further consideration. Id.; Proctor v. Butler, 117 N.H. 927, 380 A.2d 673 (1977).
Exception overruled.