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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Grafton

No. 2017-0687

THE STATE OF NEW HAMPSHIRE

v.

LARYSSA J. BENNER

Argued: February 20, 2019

Opinion Issued: May 17, 2019

Gordon J. MacDonald, attorney general (Stephen D. Fuller, senior 

assistant attorney general, on the memorandum of law and orally), for the 

State.

Eric S. Wolpin, assistant appellate defender, of Concord, on the brief and 

orally, for the defendant.

LYNN, C.J. The defendant, Laryssa J. Benner, appeals a decision of the 

Superior Court (Bornstein, J.) imposing her deferred sentence. On appeal, she 

argues that the procedures employed by the trial court in imposing her 

sentence violated her due process rights under the State Constitution, and that 

the court further erred in finding that there was sufficient evidence that she

violated certain conditions of her deferred sentence. We affirm.

The record reveals the following facts. On May 13, 2015, the defendant 

was sentenced to 12 months in the house of corrections for misdemeanor theft 
2

by deception. See RSA 637:4 (2016). The sentence was deferred for two years 

with the trial court retaining “jurisdiction up to and after the deferred period to 

impose or terminate the sentence.” The sentencing order further provided that:

Thirty (30) days prior to the expiration of the deferred period, the 

defendant may petition the Court to show cause why the deferred

commitment period should not be imposed. Failure to petition 

within the prescribed time will result in the immediate issuance of 

a warrant for the defendant’s arrest.

The defendant was ordered to be of good behavior, undergo a drug and alcohol 

abuse evaluation within 90 days of sentencing, “abide by all treatment 

recommendations” provided by the counselor, and pay restitution in the 

amount of $63.00.

On May 12, 2017, the deferred period of the defendant’s sentence 

expired. The defendant, however, did not petition the court as provided by the 

sentencing order, and the State did not move to impose the sentence. On May 

18, 2017, pursuant to the terms of the sentencing order, the court issued a 

warrant for the defendant’s arrest. The defendant was arrested on the warrant 

in October 2017.

Following her arrest, the defendant moved to close the case, arguing that 

the trial court “lack[ed] authority to impose the deferred sentence” because “a 

motion to impose was not filed in a timely fashion.” The State objected, 

asserting that, based on the language of the sentencing order, the State bore 

no burden following the expiration of the deferred period because the order 

“clearly places the burden on the defendant to move for a show cause hearing” 

to establish whether the sentence should be imposed.

At the October 30 hearing, the trial court agreed with the State’s 

position, noting that “[a] deferred sentence is different” because it will “be 

imposed unless the [d]efendant petitions in a timely manner and shows cause 

why the deferred commitment should not be imposed.” In response to the 

court’s decision, the defendant orally moved to terminate the sentence, but 

presented no evidence. Instead, the defendant took the position that merely 

failing to file the petition was not enough to impose the sentence, and argued

that the sentence should terminate because imposition would not further the 

goals of sentencing given that she was then on probation in Vermont and being 

monitored by a bracelet. According to the defendant, the sentence could only 

be imposed if the State proved the conduct that was the basis for the 

imposition. Although the court made clear that the State bore no burden of 

proof, it permitted the State “to make a record” and call the defendant’s sister 

to testify. The court reiterated, however, that even “if there was no evidence [it] 

could still impose the sentence unless the [d]efendant shows cause why the 

deferred commitment should not be imposed.” Over the defendant’s objections,
3

the sister testified that the defendant pleaded guilty to charges in Vermont four 

weeks earlier and had not completed a drug treatment program. Specifically, 

the sister testified that the defendant told her that she was let out of her initial

drug treatment program at Brattleboro College because her insurance expired, 

and also that she was informed by treatment providers that the defendant had 

recently been kicked out of a different program. As to the defendant’s 

conviction in Vermont, while the sister testified that she could not “exactly” 

remember the specific date of the underlying acts, she testified that they 

occurred in late 2015 and early 2016. According to the sister, she provided her 

copy of the Vermont conviction paperwork to the defendant prior to the hearing 

because she and the defendant “got into an argument [that morning] and [the 

sister] ripped” the defendant’s copy in half. The defendant, in turn, provided 

the copy to trial counsel, who then showed it to the State prior to the hearing. 

The sister further explained that the defendant was aware of the warrant for 

her arrest, but did not turn herself in because “she was worried that the 

deferred sentence was going to be imposed” and wanted to get her affairs in 

order.

At the conclusion of the hearing, the court asked the defendant’s counsel 

whether the defendant “was surprised by any of the testimony [the sister] just” 

provided, to which trial counsel answered “no.” Thereafter, the court ruled that 

the defendant had “not shown any cause why the deferred commitment should 

not be imposed,” and thus imposed the sentence. The court clarified that it did 

not base its decision on the fact that the defendant did not file a petition at the 

end of the deferred period because doing so would not be proper grounds for 

imposing the sentence. Rather, the court reasoned that the burden was on the 

defendant to establish good cause why the sentence should not be imposed, 

and that she had failed to meet this burden. As a second, independent ground 

for its decision, the court found, based on the sister’s testimony, that the 

defendant failed to comply with the conditions of her sentence. This appeal 

followed.

The defendant argues that the trial court violated her due process rights 

by placing the burden upon her to show good cause why the sentence should 

not be imposed. According to the defendant, the State bore the burden of proof 

to establish the basis for imposing the deferred sentence, and also was 

required to provide her with pre-hearing notice and discovery, including, 

among other things, a witness list, witness statements, and the alleged 

grounds for the violation. It follows, in the defendant’s view, that the State’s 

failure to meet these obligations deprived her of a hearing that comported with 

the requirements of due process under our State Constitution. Because the 

defendant’s due process argument is grounded solely upon the State

Constitution, “we base our decision upon it alone, citing federal cases for 

guidance only.” Bleiler v. Chief, Dover Police Dep’t, 155 N.H. 693, 696 (2007). 

We review such constitutional questions de novo. State v. Abram, 156 N.H. 

646, 651 (2008).
4

In general, “[t]rial judges are vested with broad discretionary powers with 

regard to sentencing.” State v. Van Winkle, 160 N.H. 337, 340 (2010) 

(quotation omitted). Sentencing is “the process in which rehabilitation, 

deterrence, and punishment converge, and where the sentencing court, 

directed by the Criminal Code and common law, hands down society’s 

punishment upon a defendant for his or her crime.” State v. Rothe, 142 N.H. 

483, 484 (1997). “Due process requires that the court inform the defendant at 

the time of sentencing in plain and certain terms what punishment it is 

exacting as well as the extent to which the court retains discretion to impose 

punishment at a later date and under what conditions the sentence may be 

modified.” Id. (quotation omitted).

Here, the defendant’s sentence was deferred for two years subject to 

certain conditions being met. Although not explicitly authorized by statute, as 

are suspended sentences, see RSA 651:20 (2016), deferred sentences are 

impliedly accepted by the legislature, see State v. Almodovar, 158 N.H. 548, 

550 (2009). Where a sentence is deferred, the trial court retains jurisdiction 

over the defendant, and may “impose the sentence in a timely fashion . . .

following the expiration of the deferral . . . period.” Id. at 553 (quotation and 

citation omitted). In light of this power, “the defendant has been afforded 

liberty, albeit conditional, which may not be revoked without due process.” Id. 

at 553-54 (quotation omitted).

Dealing first with the burden of proof, we note that there is a disparity 

between our case law addressing this issue and the language of the sentencing 

order. See State v. DiMaggio, 163 N.H. 497, 501 (2012) (noting that sentencing 

orders are interpreted based on their plain meaning). On its face, the 

sentencing order seems to place the burden of proof on the defendant to show 

compliance with the terms of the sentence at the end of the deferral period. 

Cf., e.g., 2A Richard B. McNamara, New Hampshire Practice Series: Criminal 

Practice and Procedure § 33.38, at 235-36 (2017) (noting that “[i]f a judge is 

willing to entertain a deferred sentence, the court will order that the defendant 

may come before the court at the expiration of the time of deferral to petition 

for the suspension of the sentence,” and if “a hearing is held, the defendant 

bears the burden of showing the sentence should be suspended”). In contrast, 

for suspended sentences, the sentencing order typically makes clear that the 

sentence may be “imposed after [a] hearing at the request of the State,” and 

makes no mention of any obligation placed on the defendant to bring the 

matter before the court. Thus, it appears that deferred sentences, on the one 

hand, and suspended sentences, on the other, are designed to provide the trial 

judge with “distinct sentencing options with differing procedures for 

imposition.” State v. Graham, 146 N.H. 142, 144 (2001).

Yet, when we have addressed issues involving deferred sentences, we 

have on more than one occasion recited language drawn from the suspended 

sentence and/or probation violation context indicating that the burden is on 
5

the State to prove by a preponderance of the evidence that violation of a 

condition of the sentence occurred. See State v. Kelly, 159 N.H. 390, 391, 393

(2009) (noting burden in both suspended sentence and probation violation 

contexts where issue was whether non-final conviction was sufficient to impose 

deferred sentence); State v. Flood, 159 N.H. 353, 357-58 (2009) (referring to 

burden in suspended sentence context when deciding whether a denial of a 

continuance of a hearing on imposition of the defendant’s deferred sentence

violated his right to remain silent).1 We need not resolve this potential conflict 

today because the State neither disputes that it bears the burden of proof, nor 

asks us to revisit our decisions in Kelly or Flood. Thus, we decide this case 

based on the view that the State bore the burden of establishing that the 

defendant did not comply with the terms of her deferred sentence.

The defendant’s claim that the procedures employed by the trial court

violated due process is belied by the record. In Stapleford v. Perrin, 122 N.H. 

1083 (1982), we held that whenever the trial court “retains the power to impose 

incarceration [on the defendant] at a later time,” the defendant must be 

afforded due process protections before the imposition may occur. Stapleford, 

122 N.H. at 1088. In order to comply with due process:

the record must show that the following procedures have been 

afforded: (1) written notice of the conduct which triggers the 

sought-after incarceration; (2) disclosure to the defendant of the 

evidence against him; (3) the opportunity to be heard in person 

and to present witnesses and evidence; (4) the right to confront 

and cross-examine adverse witnesses; (5) a statement in the record 

by the court indicating in substance the evidence relied upon and 

the reasons for imposing commitment; and (6) representation by 

counsel, to be appointed by the court if the defendant is indigent.

Id. On appeal, the defendant challenges only the notice and disclosure 

requirements. To start, we note that the hearing was precipitated by the 

defendant’s failure to petition the court prior to the end of the deferral period. 

The sentencing order plainly stated that arrest would occur if the defendant 

failed to file a petition for non-imposition of the sentence. “Thus, based upon 

the plain language of the sentencing order[ ], the defendant had notice” that

her failure to act would result in her being involuntarily taken into custody and 

brought before the court. Almodovar, 158 N.H. at 551 (noting that the plain 

language of the sentencing order put the defendant on notice that after five 

years of probation, he could be incarcerated for failing to petition).

 

1 We note that, in Flood, we used the terms “deferred” and “suspended” interchangeably when 

referring to the defendant’s sentence, see Flood, 159 N.H. at 354-55, although we have explicitly 

noted in the past that the two modes of sentencing are distinct, see Graham, 146 N.H. at 143-44.
6

The sentencing order explicitly stated that a condition of the deferred 

sentence was that the defendant remain of good behavior. “Good behavior” 

simply means “conduct conforming to the law.” State v. Auger, 147 N.H. 752, 

753 (2002) (quotation omitted). As we have explained, “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 commits a crime, he 

will lose the privilege of that liberty,” because a “condition that a person may 

not commit a crime, is so basic and fundamental that any reasonable person 

would be aware of such condition.” Graham, 146 N.H. at 144 (quotation, 

brackets, and ellipsis omitted). In addition, the sentencing order specifies the 

particular non-criminal conduct — completing a drug treatment program2 —

that, if not complied with, could form the basis of imposition. See Auger, 147 

N.H. at 754 (“To satisfy due process, a . . . deferred sentence must specify the 

types of non-criminal conduct that will trigger its imposition.”). Thus, at the 

beginning of the deferral period, the defendant was placed on notice that if she 

committed a crime or failed to complete the specific conditions provided 

therein, her deferred sentence could be imposed.

Additionally, the defendant has failed to establish that she was 

prejudiced by the State’s failure to provide her with advance notice of the 

evidence it relied upon at the hearing. See Barnet v. Warden, N.H. State Prison 

for Women, 159 N.H. 465, 469 (2009) (holding that the defendant’s assertion of 

inadequate notice during parole revocation process did not rise to a due 

process violation without a demonstration that she was prejudiced by the 

claimed defect); State v. Graf, 143 N.H. 294, 302 (1999) (noting that we assess 

due process claims under the principles of fundamental fairness, meaning that 

a violation will occur when the procedure employed “gives a party a significant 

advantage or places a party in a position of prejudice or allows a party to reap 

the benefit of his own behavior in placing his opponent at an unmerited and 

misleading disadvantage” (quotation omitted)).

According to the defendant’s own admission on the record, the evidence 

utilized by the State was not a surprise. Importantly, the record shows that, 

prior to the hearing, the defendant had the documents from her Vermont 

conviction, and that she was also provided with another copy of those 

documents by her sister — a copy of which the defendant then provided to her

counsel before the hearing began. Stapleford requires only that the record 

show that the evidence against the defendant was disclosed; it does not 

mandate that it be disclosed at a specific point in time. Stapleford, 122 N.H. at 

1088. Furthermore, through counsel, the defendant was able to cross-examine 

her sister about the Vermont conviction. In so doing, she did not dispute the 

existence of the conviction; instead, she chose to elicit testimony regarding the 

specific sentencing conditions imposed by the Vermont court, as a basis for 

 

2 At the hearing before the trial court, the State indicated that the defendant had complied with 

the condition that she pay the imposed restitution.
7

arguing that imposing the deferred sentence would not further the goals of 

sentencing. We also note that the defendant never articulated to the trial court 

any specific manner in which she was prejudiced. Indeed, neither in a motion 

for reconsideration addressed to the trial court, nor in her appeal to this court,

does the defendant suggest what she would have or could have done differently 

if she had received earlier notice of the evidence the State intended to present 

at the hearing. See Barnet, 159 N.H. at 470 (explaining that a showing of 

actual prejudice is required); State v. Giordano, 138 N.H. 90, 96 (1993) (noting 

that “[m]ore than mere speculation as to . . . prejudice . . . is necessary to 

constitute a due process violation”). In sum, on the record before us, we hold 

that the defendant has failed to show that her due process rights were violated

under the State Constitution.

The defendant next argues that there was insufficient evidence for the 

trial court to conclude that the good behavior and drug treatment provisions of 

her sentence were violated. “In order to prevail on appeal, the defendant must 

show that the evidence, viewed in the light most favorable to the State, fails to 

support the trial court’s decision.” State v. Kay, 162 N.H. 237, 244 (2011). 

“Because a challenge to the sufficiency of the evidence raises a claim of legal 

error, our standard of review is de novo.” Id. at 243.

According to the defendant, the State failed to present sufficient evidence 

of the specific dates when the Vermont conduct occurred. “A deferred sentence 

may be imposed upon proof by a preponderance of the evidence of a violation of 

the condition upon which the sentence was deferred.” Kelly, 159 N.H. at 391. 

To establish a violation of the condition of good behavior, the State must prove 

“either . . . the fact of a criminal conviction for the acts which constitute the 

violation or . . . the commission of the underlying acts.” Id. (quotation 

omitted). The defendant was sentenced in New Hampshire on May 13, 2015. 

Thus, beginning on that date, the defendant was required to be of good 

behavior. Almodovar, 158 N.H. at 550-51 (noting that a “deferred sentence 

begins to run on the date the sentence is pronounced . . . because the 

defendant must immediately comply with the implied condition of good 

behavior inherent in a deferred sentence”). Although the defendant is correct 

that her sister could not specifically state when the particular acts underlying 

the Vermont charges occurred, she testified that they took place at the end of 

2015 and the beginning of 2016, i.e., after the sentence was issued and during

the deferral period. Indeed, the trial court noted that “the only evidence” before 

it was that the said acts occurred in late 2015 and the beginning of 2016. 

When viewed in the light most favorable to the State, we conclude that this 

evidence supports the trial court’s conclusion. Kay, 162 N.H. at 244.

Nor do we agree with the defendant that the trial court was required to 

inquire whether the defendant pleaded guilty to the Vermont charges while 

represented by counsel. The cases relied upon by the defendant concern 

introduction of prior convictions in a criminal trial for impeachment purposes. 
8

See State v. Robinson, 123 N.H. 532, 535 (1983); State v. Staples, 120 N.H. 

278, 283 (1980). We have never required such a rigid inquiry in matters 

dealing with the imposition of a previously deferred or suspended sentence. 

Rather, we have explained that the “fact-finding process should be flexible,” 

Moody v. Cunningham, 127 N.H. 550, 555 (1986), because “the only inquiry is 

usually whether the defendant has been of good behavior or has in some way 

violated the terms of his freedom,” and “not to establish criminal liability,” 

Stapleford, 122 N.H. at 1089. In fact, we have held that a non-final conviction 

subject to a pending appeal was sufficient for the court to conclude that a 

defendant violated the good behavior provision. See Kelly, 159 N.H. at 391-93. 

Accordingly, the trial court did not err in failing to inquire as to whether the 

defendant was represented by counsel during her guilty plea in Vermont.

Finally, the defendant argues that the court plainly erred in finding 

sufficient evidence that she violated the good behavior and treatment 

provisions of her sentence because there is no evidence in the record 

establishing that what she pleaded guilty to was a crime, as opposed to a 

violation, see Auger, 147 N.H. at 754, or that she failed to comply with the 

treatment provisions. “To find plain error: (1) there must be an error; (2) the 

error must be plain; (3) the error must affect substantial rights; and (4) the 

error must seriously affect the fairness, integrity or public reputation of judicial 

proceedings.” State v. Houghton, 168 N.H. 269, 273 (2015) (quotation 

omitted).

With respect to the good behavior condition, we need proceed no further 

than the first step of the inquiry because there was no error. Both trial counsel 

for the defendant, and the defendant’s sister stated, on the record, that the 

defendant was placed on probation in the Vermont case. In Vermont, 

“[p]robation means a procedure under which a respondent, found guilty of a 

crime upon verdict or plea, is released by the court, without confinement, 

subject to conditions imposed by the court and subject to the supervision of 

the commissioner.” 28 V.S.A. § 201 (2018) (emphasis added); see State v. 

Bensh, 719 A.2d 1155, 1156 (Vt. 1998). Thus, the mere fact that the 

defendant was on probation establishes that she had committed a crime and 

not a violation-level offense. Cf. Auger, 147 N.H. at 754 (holding that

imposition of suspended sentence was improper where the defendant 

committed a violation-level offense).

The record is slightly less clear with respect to the issue of the 

defendant’s compliance with the treatment condition of her sentence. Her

sister testified not only that the defendant told her that she failed to complete 

the drug treatment program at Brattleboro College because her insurance 

expired, but also explained that she was informed by treatment providers that 

the defendant had recently been kicked out of a program. Although we agree 

with the defendant that the latter portion of this testimony (what the treatment 

provider told the sister) could have been hearsay, the court nonetheless was 
9

entitled to consider such testimony because the rules of evidence do not apply 

to hearings of this kind. See N.H. R. Ev. 1101(d). The matter is complicated, 

however, by the fact that the court explained at the hearing that it would not 

consider hearsay statements for their truth. We assume that the trial court 

adhered to this restriction. Nonetheless, the court could sustainably have 

found that the defendant violated the drug treatment provisions based solely 

on the fact that the defendant did not complete the first program at Brattleboro 

College. The court was not required to credit the explanation the defendant 

provided to her sister, i.e., that her failure to complete the program was due to

a lapse in insurance, particularly since the defendant never advised the court 

or the State about the claimed insurance problem prior to the hearing. See

State v. Livingston, 153 N.H. 399, 402 (2006) (observing that credibility 

determinations are within the province of the trial court). Moreover, as 

recounted above, the court could have imposed the entire sentence based upon 

the defendant’s criminal conviction in Vermont.

Accordingly, we hold that the trial court did not err in imposing the 

defendant’s sentence.

Affirmed.

HICKS, BASSETT, HANTZ MARCONI, and DONOVAN, JJ., concurred.