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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Strafford Nos. 2005-353 2005-354 PETITION OF CHAD EVANS Argued: May 17, 2006 Opinion Issued: September 6, 2006 Kelly A. Ayotte, attorney general (N. William Delker, senior assistant attorney general, on the brief and orally), for the State. David M. Rothstein, deputy chief appellate defender, of Concord, on the brief and orally, for the petitioner. DALIANIS, J. The petitioner, Chad Evans, challenges the constitutionality of RSA 651:58 (Supp. 2005), which permits the State to seek sentence review, arguing that it violates the ex post facto, due process and double jeopardy protections of the New Hampshire Constitution and United States Constitution, and contravenes legislative intent. We deny the petition. I. Background

The record supports the following facts. On December 21, 2001, a jury convicted the petitioner of reckless second-degree murder, see RSA 630:1-b (1996), five counts of second-degree assault, see RSA 631:2 (1996), endangering the welfare of a minor, see RSA 639:3, I (1996), and simple assault, see RSA 631:2-a (1996). State v. Evans, 150 N.H. 416, 417 (2003).

On April 16, 2002, the Superior Court (Nadeau, J.) sentenced the petitioner to serve twenty-eight years to life on the second-degree murder charge, and suspended sentences on the felony assault and endangering charges. The State filed a petition for sentence review pursuant to RSA 651:58, I (effective January 1, 2002), as amended. The division originally dismissed the State's petition, concluding that such consideration would violate the petitioner's due process rights because he was not specifically informed at the time of sentencing of the State's right to seek sentence review. Upon a petition for writ of certiorari, we vacated the division's dismissal order because it "exceeded its jurisdiction when it ruled that granting the State's petition would violate the [petitioner's] due process rights." Petition of the State of New Hampshire, 150 N.H. 296, 299 (2003). The Trial Court (Mohl, J.) denied the petitioner's subsequent motions to dismiss and for declaratory and injunctive relief, ruling that, among other things, the petitioner's requests for rulings on constitutional claims were not ripe unless the division increased his sentence. By order dated April 26, 2005, the Superior Court Sentence Review Division (division) imposed a sentence of five to ten years in prison on one count of second-degree assault, consecutive to the sentence of twenty-eight years to life for second-degree murder. It imposed an additional ten-to-thirtyyear sentence on another count of second-degree assault, consecutive to each of those sentences. It left the remaining sentences unchanged. Thus, the division increased the petitioner's minimum term of imprisonment from twentyeight to forty-three years. The petitioner asks us to vacate the division's April 26, 2005 order and reinstate the original sentence imposed by the trial court because: (1) application of RSA 651:58, I, violated his state and federal constitutional rights to due process; (2) RSA 651:58, I, on its face, violates state and federal constitutional prohibitions against double jeopardy; (3) application of RSA 651:58, I, violated state and federal constitutional prohibitions against ex post facto laws; and (4) retrospective application of RSA 651:58, I, ignored rules of statutory construction. As a threshold matter, we note that the petitioner filed both a petition for writ of certiorari and a discretionary notice of 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 direct appeal of a sentence review decision. See Petition of Guardarramos-Cepeda, 153 N.H. ___, ____ (decided Aug. 2, 2006). Accordingly, we consider only the petition for writ of certiorari. Certiorari is an extraordinary remedy, granted not as a matter of right, but rather at the court's discretion "when the substantial ends of justice require such relief." Petition of Turgeon, 140 N.H. 52, 53 (1995) (quotation omitted). Certiorari review is limited to whether the agency acted illegally with 2

respect to jurisdiction, authority or observance of the law, whereby it arrived at a conclusion which could not legally or reasonably be made, or unsustainably exercised its discretion or acted arbitrarily, unreasonably, or capriciously. Petition of the State of New Hampshire, 150 N.H. at 297; Petition of State of New Hampshire (State v. Theodosopoulos), 153 N.H. ____, ____, 893 A.2d 712, 714 (2006). II. Due Process

We first review whether the application of RSA 651:58, I, violated the petitioner's state and federal constitutional rights to due process because the trial court did not provide individualized notice at the time of his sentencing of the State's right to seek sentence review. RSA 651:58, I, 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. The application may be filed within 30 days after the date the sentence was imposed . . . . RSA 651:58, I (Supp. 2005) (emphasis added). The division consists of three current or retired superior court justices. RSA 651:57 (1996). We recently concluded that RSA 651:58, I and II provided a defendant with statutory notice of the State's right to seek a review of his sentence, and the extent to which jurisdiction was retained to either increase or decrease the imposed sentence after a hearing conducted by the division. See Guardarramos-Cepeda, 153 N.H. at ____. We thus held that RSA 651:58, I, does not violate the Due Process Clause of the New Hampshire Constitution. Id. We have previously recognized that the United States Constitution offers the petitioner no greater due process protection than does the New Hampshire Constitution under circumstances similar to those before us. Stewart v. Cunningham, Warden, 131 N.H. 68, 70 (1988) (citing Oyler v. Boles, 368 U.S. 448, 452 (1962)). The petitioner does not argue to the contrary. Accordingly, we reach the same result under the United States Constitution as we do under the New Hampshire Constitution. III. Double Jeopardy

We next consider the petitioner's facial challenge to RSA 651:58, I. Specifically, he contends that the Double Jeopardy Clauses of the New Hampshire and United States Constitutions preclude the State from seeking 3

review of a criminal defendant's sentence pursuant to RSA 651:58, I. We recently held that RSA 651:58, I, does not violate the Double Jeopardy Clause of the New Hampshire Constitution. Guardarramos-Cepeda, 153 N.H. at ____. Relying upon United States v. DiFrancesco, 449 U.S. 117 (1980), we recognized that the defendant had no "expectation of finality" until the sentence review process has concluded. Guardarramos-Cepeda, 153 N.H. at ____. The New Hampshire Constitution provides at least as much protection as the United States Constitution under these circumstances. Id. at ____; United States v. DiFrancesco, 449 U.S. at 136, 138-39. Accordingly, we reach the same result under the United States Constitution as we do under the New Hampshire Constitution. IV. Ex Post Facto Laws

We next review whether the claimed retrospective application of RSA 651:58, I, violated the state and federal constitutional prohibitions against ex post facto laws. Although the petitioner committed his offenses and was convicted prior to the effective date of amended RSA 651:58, I, the trial court sentenced him after the effective date. Both Part I, Article 23 of the New Hampshire Constitution and Article I, Section 10 of the United States Constitution forbid ex post facto penal laws, Dobbert v. Florida, 432 U.S. 282, 292 (1977); Petition of Hamel, 137 N.H. 488, 494 (1993), and we have stated that both constitutions afford the same level of protection, State v. Comeau, 142 N.H. 84, 87 (1997). The petitioner contends, however, that the New Hampshire Constitution actually provides him greater protection than the United States Constitution, because the United States Supreme Court narrowly construed ex post facto prohibitions in California Department of Corrections v. Morales, 514 U.S. 499 (1995), a case not before us in Comeau. We will first address the petitioner's ex post facto claim under the New Hampshire Constitution, State v. Ball, 124 N.H. 226, 231 (1986), and cite federal opinions for guidance only. Id. at 232-33. A law or an application of a law is ex post facto if it: makes an action done before the passing of the law, and which was innocent when done, criminal, and punishes such action; or . . . aggravates a crime, and makes it greater, than it was when committed; or . . . changes the punishment, and inflicts greater punishment, than the law annexed to the crime when committed. State v. Reynolds, 138 N.H. 519, 521 (1994) (quotation omitted). Like the federal constitutional inquiry, the focus in the State ex post facto analysis is not upon whether a law imposes disadvantages or additional burdens, but 4

rather upon whether it "increases the punishment for or alters the elements of an offense, or changes the ultimate facts required to prove guilt." Comeau, 142 N.H. at 88 (quotation and brackets omitted). We have also distinguished a substantive change to a criminal statute, which augments the crime or increases the range of sentences that could be imposed for the charged crime, from a procedural change to a criminal statute, which, under most circumstances, does not implicate the Ex Post Facto Clause. See Hamel, 137 N.H. at 494. [The] substance/procedure dichotomy in ex post facto analysis is an attempt to reconcile the necessity for continuous legislative refinement of the criminal adjudication and corrections process with the constitutional requirement that substantial rights of a criminal defendant remain static from the time of the alleged criminal act. Id. (citation and quotation omitted). The petitioner argues that pursuant to Reynolds, the New Hampshire Constitution offers him greater ex post facto protection than does the United States Constitution under these circumstances. In Reynolds, we examined whether the application of a new law to the defendant's petition for a suspended sentence would violate the Ex Post Facto Clause of the State Constitution. Reynolds, 138 N.H. at 520. At the time the defendant was sentenced for second-degree murder, the law permitted her to petition to suspend her sentence every two years thereafter. Id. Six years later, the legislature amended the statute to preclude violent offenders from filing petitions for sentence suspension more frequently than every four years. Id. Although we did not analyze whether the change to the sentence suspension statute was substantive or procedural, we examined federal case law and held that the application of the new law to the defendant would violate the Ex Post Facto Clause because "the new law could operate to keep her in prison longer than the old law." Id. at 521. We reached this conclusion even though there was no guarantee that the defendant would have been released any sooner under the old law. See id. at 522. The United States Supreme Court subsequently examined whether the retrospective application of a statute that could operate to defer parole suitability hearings violated the federal Ex Post Facto Clause. Morales, 514 U.S. at 509. The defendant in Morales committed murders in 1971 and 1980. Id. at 502. At that time, a statute entitled him to annual parole suitability hearings. Id. at 503. The California legislature later amended the statute to authorize the parole board to defer subsequent suitability hearings for up to three years for convicted multiple murderers, such as Morales. Id. Upon federal habeas corpus review, he argued that retrospective application of the 5

amended parole eligibility statute violated the Ex Post Facto Clause because it increased the "standard of punishment" applicable to his crimes. Id. at 50405. The amended parole statute did not change the sentencing range applicable to the covered crimes; it simply altered the method to be followed in fixing a parole release date using substantive standards identical to those of its predecessor. Id. at 507-08. The Court acknowledged, however, that the retroactive application of such a law could violate the Ex Post Facto Clause if the law created "a sufficient risk of increasing the measure of punishment attached to the covered crimes." Id. at 509. The Court held that the decrease in the frequency of parole suitability proceedings "create[d] only the most speculative and attenuated possibility of producing the prohibited effect of increasing the measure of punishment for covered crimes." Id. It reasoned that, among other things, the amended parole statute was remedial in purpose and the parole board was required to make a special finding before depriving an inmate of an annual hearing. Id. at 510-14. We have not heretofore been called upon to analyze the state constitutional prohibition against ex post facto laws in light of Morales. The State argues that Morales undermines both the analysis and the holding in Reynolds. Assuming without deciding that Reynolds is still good law, it is, in a manner akin to Morales, factually distinguishable from the case before us. The statutory changes in those cases occurred long after the sentences were imposed and concerned the availability of parole suitability and sentence suspension hearings. Insofar as federal case law has regularly informed our application of the State Ex Post Facto Clause, see, e.g., Reynolds, 138 N.H. at 522-23, we will examine opinions addressing whether the retrospective application of a federal sentence review statute, which allowed the government to seek de novo review of criminal sentences, violated the federal Ex Post Facto Clause. Title 18, section 3742 of the United States Code provides a defendant and the government with the right to appeal a sentence under various circumstances. 18 U.S.C.

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