State v. StreeterState v. Streeter
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Thе defendant in this case was found guilty in a jury-waived trial on three indictments for the sale of controlled drugs.
The defendant’s only exception during the trial argued here was to the trial court permitting the State to reopen their ca.se in order to have marked as exhibits, two packages of marijuana and one of amphetamine which had previously been marked for identification only. We find no abuse of discretion by the trial court in thus permitting the State to reopеn for the purpose of curing their technical error of failing to have the drugs marked as exhibits and defendant’s exception is overruled. State v. Petkus, 110 N.H. 394, 269 A.2d 123 (1970); State v. Comparone, 110 N.H. 398, 269 A.2d 131 (1970).
Defendant’s exception to the denial by the trial court of his motion to reconsider the sentence presents on the record before us a more serious question, as we indicated in the petition for bail previously considered her e.Petition of Kenneth *404 R. Streeter, 112 N.H. 305, 294 A.2d 385 (1972). Defendant does not question the legality of the sentence since it is within statutory limits but argues that the severity of the sentence when compared with that of the codefendant constituted an abuse of discretion by the trial court. Unlike the case of State v. Ferbert, 113 N.H. 235, 306 A.2d 202 (1973), the record here contains substantial information about the codefendant’s participation and background so that we are unable to say as in the Ferbert case that a comparison of thе sentences is irrelevant. It appears from the transcript of the various hearings that the codefendant, who had pleaded guilty to three indictments prior to dеfendant’s trial, and who was described by a State trooper as the “brains” of the operation, was sentenced to not more than three nor less than a year аnd a day in State prison. An added difficulty in the sentencing process here was that the codefendant was sentenced by a different judge. Thus the normal variables present in sentencing two defendants had the additional variable of two different judges.
Recent developments in the field of sentencing have been directed at minimizing the dispаrity of sentence problem and developing sentencing guides directed at sentencing the criminal rather than the crime. Beginning with the Pilot Institute on Sentencing by Federal Courts in 1959 reported in 26 F.R.D. 231 a multitude of sentencing institutes have been held by the federal judiciary for these purposes. Guidelines for sentencing have been formulated
{see
27 F.R.D. 389, 390 (I960)) and sentencing councils of judges have been provided in some federal districts.
See
Zavatt,
Sentencing Procedure in the United States District Court for the District of New York,
54 F.R.D. 327 (1972); 45 Neb. L. Rev. 499 (1966); 45 Neb. L. Rev. 513 (1966); ABA Standards Relating to Sentencing Alternatives and Procedures § 7.1 (Approved Draft 1968). In his 1973 report to the legislature on the judiciary earlier this year, Chief Justice Kenison recommendеd consideration by the legislature of appellate review of sentences by a panel of trial judges similar to that provided in Connecticut and Massachusetts.
These proposals in dealing with disparity of sentences all make it apparent that the problem is one that generally should be dealt with at the trial level. This is nоt to indicate that the mandatory sentence is the solution or that we should cease to treat the convicted criminal as an individual. Disparity of sentencing, howеver, strikes at the fundamental basis of our penal system. A convicted criminal should generally receive the same punishment as another with a like background who has сommitted the same crime. This is not a matter for executive clemency but justice to be rendered by the courts.
Pragmatically every judge must recognize that regardless of severity of a sentence nearly every criminal that he sentences will eventually return to society. Whether the person sentenced returns as a useful membеr of society or a lawbreaker in part is dependent upon the wisdom of the sentence. “The true design of all punishments being to reform, not to exterminate mankind.” N.H. Const, pt. 1, art. 18. While no judge can predict that his sentence will help to rehabilitate the criminal, the sentence should not retard this result. “Justice is measured in many ways, but to a сonvicted criminal its surest measure lies in the fairness of the sentence he receives. Whether a sentence is fair cannot, of course, be gauged simply by cоmparing it with the punishment imposed upon others for similar offenses. But that test, though imperfect, is hardly irrelevant.” Shepard v. United States, 257 F.2d 293, 294 (6th Cir. 1958). Penologists agree that disparity of sentences without a rational basis has an inhibiting effect upon the possibilities of rehabilitation. Note, Sentence Revino, 69 Yale L.J. 1453, 1459 (1960).
In its brief, the State recognizes that this court may possess the power to review this sentеnce under
In sentencing this defendant, the trial court made an extensive statement in which it noted that the defendant had been еngaged for some time in a large scale traffic in drugs. The court commented on the defendant’s four years of college and the lack of anything in his background to excuse or condone his actions. Remarking generally on the evils of the drug traffic, the court finally stated that the sentence was intended to be harsh as a warning to all others so disposed to cease immediately all such sales in any form. “They would be well advised to get out of the State of New Hampshire. This state’s children can’t and won’t be ruined by money-hungry criminals.”
On the motion to reconsider the sentence, several witnesses testified including the codefendant Dunphy, who was then serving a sentence оf not more than three years nor less than a year and a day. Both Dunphy and a girl who had lived at the place where the drug sales took place testified that Dunрhy was the principal in the selling operation. The State trooper who testified agreed that Dunphy was the “brains” of the operation, but would not agree that hе was more involved than the defendant here. In denying the motion to reconsider the sentence, the court reiterated and expanded on the previous reаsons for the sentences imposed. Apparently referring to the involvement of the codefendant in the drug sales, the court stated that the fact that “he [the defеndant] pushed for another comes to nothing in these circumstances.”
The evidence in the case, apparently accepted by the trial court, indicates that the head of the drug-selling operation here received a minimum sentence approximately one-fifth the minimum meted out to this defendant. We are not prepared to substitute our judgment for that of the trial court that such a disparity of sentences was not justified. We did not see or hear either the witnesses or the defendаnt nor do we have the probation report before us. Accordingly we refuse to revise in this court the sentences imposed below.
*407 However, in order for a triаl judge to effectively exercise his discretion, it must appear that he considered all the relevant factors necessary to that exercise. See Townsend v. Burke, 334 U.S. 736, 741, 92 L. Ed. 1690, 1693, 68 S. Ct. 1252, 1255 (1948). We noted previously that it was a different judge than the trial judge in this case that sentenced Dunphy.
While it is not dear from the trial court’s statements that any substantial consideration was given to the Dunphy sentence, a majority of the court are of the opinion that under the circumstances of this case it should not be remanded to the trial court fоr reconsideration of the sentence. However, nothing in this opinion is intended to preclude the trial court from such reconsideration sua sponte in the light of this opinion.
Exceptions overruled.
All concurred.