Advance Notice to Defendants That a Sentence May Be Modified

In State v. Budgett, 146 N.H. 135, 769 A.2d 351 (N.H. 2001), the Supreme Court of New Hampshire summarized the relevant case law, as follows: In Stapleford v. Perrin, 122 N.H. 1083, 1087, 453 A.2d 1304 (1982), we set forth the principle that: At the conclusion of the sentencing proceeding, a defendant and the society which brought him or her to court must know in plain and certain terms what punishment has been exacted by the court as well as the extent to which the court retained discretion to impose punishment at a later date and under what conditions the sentence may be modified. In accordance with due process, "the sentencing order must clearly communicate to the defendant the exact nature of the sentence." State v. Burgess, 141 N.H. 51, 52, 677 A.2d 142 (1996) (quotation omitted). We have recognized "that termination of freedom by revocation of a suspended sentence involves constitutional liberty interests" protected by the Due Process Clause. Brennan v. Cunningham, 126 N.H. 600, 604, 493 A.2d 1213 (1985). Our inquiry therefore focuses on whether an implied condition of good behavior is constitutionally permissible under due process, and if so, whether the defendant violated that condition. The State's argument relies upon earlier cases that appear to recognize an implied condition of good behavior in suspended sentences. See Couture v. Brown, 82 N.H. 459, 461, 135 A. 530 (1926); Stone v. Shea, 113 N.H. 174, 176, 304 A.2d 647 (1973). The defendant, however, relying upon State v. Ingerson, 130 N.H. 112, 536 A.2d 161 (1987), and other cases decided since Stapleford, argues that Couture and Stone are not controlling because we have subsequently expressed disapproval of implicit sentencing conditions. At first glance, it would appear that any implied condition would violate due process since "an essential component of due process is that individuals be given fair warning of those acts which may lead to a loss of liberty." Grajczyk v. S.D. Bd. of Pardons, 1999 SD 149, 603 N.W.2d 508, 512 (S.D. 1999). As the State correctly points out, however, "the overwhelming weight of authority is that a fundamental condition of any suspended sentence or probation, whether expressly stated or not, is that the defendant shall not violate the law." State v. Holter, 340 N.W.2d 691, 693 (S.D. 1983); see also, e.g., United States v. Dane, 570 F.2d 840, 843-44 (9th Cir. 1977), cert. denied, 436 U.S. 959, 98 S. Ct. 3075, 57 L. Ed. 2d 1124 (1978); United States v. Cardenas-Yanez, 741 F. Supp. 212, 214 (S.D. Fla. 1990); State v. Hancock, 111 Idaho 835, 727 P.2d 1263, 1266 (App. 1986); Wilcox v. State, 395 So. 2d 1054, 1056 (Ala. 1981); Brooks v. State, 1971 OK CR 199, 484 P.2d 1333, 1334 (Okla. Crim. App. 1971). It would be illogical and unreasonable to conclude that a defendant, who has been granted conditional liberty, needs to be given an express warning that if he or she commits a crime, he or she will lose the privilege of that liberty. "A condition of a suspended sentence that a person may not commit a crime, is so basic and fundamental that any reasonable person would be aware of such condition." Brooks, 484 P.2d at 1334. Accordingly, we hold that there is an implied condition of good behavior in suspended sentences and that this condition does not offend due process. When the deprivation of the defendant's conditional liberty rests upon the commission of a non-criminal act, however, he or she must be given some form of warning in order to ensure that he or she understands, "in plain and certain terms," the conditions of his or her sentence. Stapleford, 122 N.H. at 1087, 453 A.2d 1304. "Due process mandates that he or she be given actual notice" that such conduct could result in the revocation of his or her conditional liberty. Mace v. Amestoy, 765 F. Supp. 847, 849 (D. Vt. 1991) ; see also United States v. Gallo, 20 F.3d 7, 12 (1st Cir. 1994). To hold otherwise would effectively modify the terms of the original sentencing order and result in fundamental unfairness. See State v. Rau, 129 N.H. 126, 129, 523 A.2d 98 (1987). We conclude, therefore, as do a majority of other jurisdictions, that the term "good behavior" is defined as conduct conforming to the law. It does not include non-criminal behavior for which the defendant must be given actual notice. See Horsey v. State, 56 Md. App. 667, 468 A.2d 684, 687 (1983); State v. Columbo, 366 A.2d 852, 854 (Me. 1976); State v. Miller, 28 N.C. App. 504, 221 S.E.2d 520, 521 (1976) 21A Am. Jur. 2d Criminal Law 897 (1998); Annotation, What Constitutes "Good Behavior" Within Statute or Judicial Order Expressly Conditioning Suspension of Sentence Thereon, 58 A.L.R.3d 1156, 1162 (1974). (769 A.2d at 353-54.)