Opinion · Supreme Court of New Hampshire
State v. Lambert
State v. Lambert, 147 N.H. 295 (N.H. 2001)
- Type
- Opinion
- Court
- Supreme Court of New Hampshire
- Jurisdiction
- New Hampshire
- Date
- 2001-12-17
- Topic
- general
explaining that we refer to abuse of discretion standard as the unsustainable exercise of discretion standard | explaining that we refer to the abuse of discretion standard as the unsustainable exercise of discretion standard and describing the requirements of that standard | explaining that we now refer to abuse of discretion standard as unsustainable exercise of discretion standard | explaining that we now refer to abuse of discretion standard as unsustainable exercise of discretion standard | explaining that we refer to abuse of discretion standard as the unsustainable exercise of discretion standard | explaining that to show that the trial court's decision is not sustainable, "the defendant must demonstrate that the court's ruling was clearly untenable or unreasonable to the prejudice of his case" (quotation omitted) | to show that trial court unsustainably exercised its discretion, appellants must demonstrate ruling was clearly untenable or unreasonable to the prejudice of their case | to establish that trial court’s decision is unsustainable defendant must demonstrate that ruling was clearly untenable or unreasonable to the prejudice of his case | if improper evidence is admitted in sentencing, sentence must be reconsidered unless trial court clearly gave that evidence no weight | “Because the ‘abuse of discretion’ standard may carry an inaccurate connotation, we will hereafter refer to it as the ‘unsustainable exercise of discretion’ standard.” | to establish that trial court ruling is not sustainable, defendant must demonstrate that the ruling was clearly untenable or unreasonable to the prejudice of his case | “To show that the trial court’s decision is not sustainable, the defendant must demonstrate that the court’s ruling was clearly untenable or unreasonable to the prejudice of his case.” (quotation omitted) | record must establish an objective basis to sustain discretionary decision below | explaining our unsustainable exercise of discretion standard of review | explaining our unsustainable exercise of discretion standard of review | explaining our unsustainable exercise of discretion standard | explaining the “unsustainable exercise of discretion” standard | describing unsustainable exercise of discretion standard of review | explaining unsustainable exercise of discretion standard | setting forth unsustainable exercise of discretion standard | explaining unsustainable exercise of discretion standard | explaining unsustainable exercise of discretion standard | explaining unsustainable exercise of discretion standard | explaining unsustainable exercise of discretion standard | explaining unsustainable exercise of discretion standard | explaining unsustainable exercise of discretion standard | explaining unsustainable exercise of discretion standard | explaining “unsustainable exercise of discretion” standard | explaining unsustainable exercise of discretion standard | explaining unsustainable exercise of discretion standard | explaining the unsustainable exercise of discretion standard | explaining our unsustainable exercise of discretion standard | explaining the “unsustainable exercise of discretion” standard | explaining our unsustainable exercise of discretion standard | explaining our unsustainable exercise of discretion standard | explaining the unsustainable exercise of discretion standard | explaining the unsustainable exercise of discretion standard | explaining the unsustainable exercise of discretion standard | setting forth unsustainable exercise of discretion standard | explaining the unsustainable exercise of discretion standard | explaining unsustainable exercise of discretion standard | explaining unsustainable exercise of discretion standard | explaining unsustainable exercise of discretion standard | explaining unsustainable exercise of discretion standard | explaining “unsustainable exercise of discretion” standard | explaining unsustainable exercise of discretion standard | explaining unsustai
Citator
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- 148 opinions
The defendant, Kevin Lambert, was convicted by a jury of four counts of felonious sexual assault. See RSA 632-A:3, II (Supp. 2000). The Superior Court (Abramson, J.) sentenced him to a combined term of five to ten years in prison, and a consecutive term of three and one-half to seven years, suspended. On appeal, the defendant argues that the trial court erroneously considered unsubstantiated allegations of other crimes when sentencing him. We affirm.
Although a sentencing judge has broad discretion to choose the sources and types of evidence upon which to rely in imposing sentence,
We review a trial judge’s sentencing decision under an “abuse of discretion” standard. Id. Unfortunately, appellate review based upon an “abuse of discretion” standard may be misunderstood by those not familiar with the concept of judicial discretion as misconduct by the trial judge. When we determine whether a ruling made by a judge is a proper exercise of judicial discretion, we are really deciding whether the record establishes an objective basis sufficient to sustain the discretionary judgment made. Cf. Bianco, P.A. v. Home Ins. Co., 147 N.H. 249, 251 (2001).
Because the “abuse of discretion” standard may carry an inaccurate connotation, we will hereafter refer to it as the “unsustainable exercise of discretion” standard. To show that the trial court’s decision is not sustainable, “the defendant must demonstrate that the court’s ruling was clearly untenable or unreasonable to the prejudice of his case.” State v. Johnson, 145 N.H. 647, 648 (2000) (quotation omitted).
At the sentencing hearing, the State offered an exhibit showing that during a search of the defendant’s apartment, the police obtained “bags of marijuana, grow bulbs [and] plastic bags.” The State argued that these items showed that the defendant “was well into using marijuana” and that this “lifestyle” led him to take advantage of the victim. This exhibit was not mentioned in the Presentence Investigation Report.
The record shows that the trial court gave no weight to this exhibit, however. The court stated that it reached its sentencing decision based upon “the nature and facts of the charges, the arguments of the State, the permissible material in the Presentence Investigation Report, the input of the victim, the arguments of defense counsel, the testimony of the witnesses, and ... the entire file.” The court observed that the defendant was a thirty-five-year-old man who had used a wrong telephone number ruse to contact a fourteen-year-old girl and that, after sexually assaulting the girl, he used the same ruse to contact the girl’s mother and have sexual relations with her. “Based on this,” the court described the defendant as a “predator.” The court then stated that it “[d]id not even have to glance” at the exhibit to find the State’s recommended sentence appropriate.
All issues raised by the defendant in his notice of appeal, but not briefed, are deemed waived. State v. Mountjoy, 142 N.H. 642, 652 (1998).
Affirmed.
Brock, C.J., and Broderick and Dalianis, JJ., concurred.