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State v. Chace8/26/2004
the court, exercises ultimate control over the defendant's sentence. It is uncontroverted that the authority to sentence a defendant is vested in the court. Cf. State v. Jeleniewski, 147 N.H. 462, 469 (2002). Therefore, as to this portion of the letter, the trial court's finding that the letter was misleading was a sustainable exercise of discretion.
Our analysis, however, does not end here. When a court dismisses a case for prosecutorial misconduct, absent actual prejudice and consideration of lesser remedies, the defendant benefits from a windfall, and the price is paid by the public, not the prosecutor. State v. Cotell, 143 N.H. 275, 281 (1998). The sanction of dismissal with prejudice is, therefore, reserved for extraordinary circumstances, and should not be wielded, for instance, where a prosecutor fails to act, but has not actually prejudiced the defendant. Id. Thus, in order to prevail in her due process challenge, the defendant must establish that she suffered prejudice.
The defendant argues that because the prosecutor initially offered to recommend a sentence of loss of license for ninety days, and the proceedings resulted in a six-month ALS suspension, she suffered prejudice. We disagree.
First, as we noted above, the ALS procedure is collateral. Second, RSA 265:92, II mandates that the ALS suspension period "shall be imposed in addition to any other penalty provided by law." Thus, even if the defendant had received the maximum license suspension penalty under the law, any additional ALS suspension would still run consecutive to that sentence.
The defendant further argues that had she pled guilty at arraignment, the State would have withdrawn the ALS suspension, as she argues it routinely does after a guilty plea has been entered, thereby establishing prejudice. Other than the defendant's argument to the trial court and on appeal, however, there is no evidence, on the record before us, that the State offered to withdraw the defendant's ALS suspension or would have done so if she had pled guilty. Accordingly, she cannot show that she was prejudiced. Therefore, the trial court erred in dismissing the case, because the defendant did not suffer any prejudice as a result of the prosecution's conduct. See Cotell, 143 N.H. at 281. On remand, the trial court may consider whether, under its authority to curb the State's discretion where it is used to inflict confusion or other unfair prejudice upon a defendant, Courtemarche, 142 N.H. at 774, a lesser curative measure or sanction is warranted under the circumstances presented. See Cotell, 143 N.H. at 281.
Finally, we note that "[a]lthough this case does not present circumstances warranting the harshest of penalties, we do not condone the prosecutor's conduct," id., and we strongly disapprove of any practice that may encourage circumvention of constitutional rights.
Reversed and remanded.
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