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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Merrimack

No. 2015-203

PETITION OF WARDEN, NEW HAMPSHIRE STATE PRISON

(State v. Roberts)

Argued: May 7, 2015

Opinion Issued: July 10, 2015

Joseph A. Foster, attorney general (Elizabeth A. Lahey, assistant attorney

general, and Richard W. Head, senior assistant attorney general, on the brief, 

and Mr. Head orally), for the State.

Catherine J. Flinchbaugh, public defender, of Concord, on the brief and 

orally, for the respondent.

LYNN, J. The issue before us in this Rule 11 petition for certiorari 

review1, see Sup. Ct. R. 11, filed by the State, is whether the Adult Parole 

Board (APB) exceeded its authority or otherwise violated the rights of the 

respondent, Jerry Roberts, when it paroled him to a consecutive sentence —

 

1 Although the State filed its appeal as a request for certiorari review, we note that the trial court’s 

decision is a final order, which would arguably permit review as an appeal pursuant to Supreme 

Court Rule 7. In light of the facts that neither party raises this issue, the appeal was timely filed 

under either Rule 7 or Rule 11, and the basis of our decision is the trial court’s error of law, we 

conclude that the specific mechanism by which the case came before us is of no particular 

consequence, and we therefore do not consider the issue further.
2

the maximum of which had been suspended — but then refused to release him 

from prison upon his completion of the minimum term of that sentence. We 

hold that the APB’s actions were not improper and we therefore reverse the 

order of the Superior Court (Anderson, J.), which granted the respondent’s

petition for habeas corpus relief.

I

The pertinent facts are not in dispute. The respondent was convicted of 

aggravated felonious sexual assault (AFSA) and sentenced to four-to-ten years 

at the New Hampshire State Prison (prison). The respondent also received a 

sentence of one-to-two years for related conduct; that sentence was suspended. 

The respondent began serving his four-to-ten year sentence in 2008. On April 

1, 2013, the respondent was classified as a C-1 inmate and resided in a 

halfway house at the prison. While at the halfway house, the respondent was 

arrested and consequently returned to general population status in the prison. 

Following his arrest, the State moved to impose his one-to-two year suspended 

sentence. The Superior Court (O’Neill, J.) partially granted the State’s motion: 

it imposed the one-year minimum sentence, which was to be served 

consecutively to the four-to-ten year sentence, but suspended the two-year 

maximum of the sentence.

On August 15, 2013, the respondent appeared before the APB, as he had 

served the minimum four years of his AFSA sentence. See RSA 651-A:6, I 

(2007) (subsequently amended). At that time, he was “approved for parole to 

consecutive,” and his parole hearing paperwork indicated that he must have 

“review prior to release consideration” with the Administrative Review 

Committee (ARC). The respondent thus began serving his one-year consecutive 

sentence. On October 2, 2013, the ARC evaluated the respondent and 

recommended that he return to the prison’s sexual offender treatment 

program.

Upon completion of his one-year consecutive sentence in August 2014, 

the respondent was not released from the prison into the community. Instead, 

he continued serving his original four-to-ten year sentence. The State asserted 

that the respondent was not released because he had not yet completed the 

required sexual offender treatment program. The respondent filed a petition for 

a writ of habeas corpus, claiming that he was entitled to immediate release 

from the prison because he had been paroled from his four-to-ten year 

sentence to his one-year consecutive sentence, and he had completed the oneyear sentence. The State moved to dismiss the petition, arguing that the 

respondent was not entitled to immediate release because the APB had not 

granted him “parole to release” from prison, but instead had merely granted 

him “parole to a consecutive sentence,” and thus the APB retained the 

authority to determine whether he should be released upon completion of the 

consecutive sentence. Following a hearing, the court denied the State’s motion 
3

to dismiss, granted the respondent’s petition, and ordered that the respondent 

be released from prison. Thereafter, the State sought certiorari review of the 

trial court’s order, which we stayed pending our decision.2 

II

“Certiorari is a remedy that is not granted as a matter of right, but rather 

at the discretion of the court.” Petition of State of N.H., 166 N.H. 659, 662 

(2014); see Sup. Ct. R. 11. “Certiorari is available to review whether the trial 

court acted illegally with respect to jurisdiction, authority or observance of the 

law, or unsustainably exercised its discretion or acted arbitrarily, 

unreasonably, or capriciously.” Petition of State of N.H., 166 N.H. at 662-63. 

The issue on appeal is whether the trial court properly granted the 

respondent’s petition for habeas corpus relief, a determination that turns upon 

whether the APB’s refusal to release him into the community upon completion 

of his consecutive sentence constituted “a present deprivation of a protected 

liberty interest.” See Brennan v. Cunningham, 126 N.H. 600, 603-04 (1985) 

(quotation omitted).

III

We begin our analysis by briefly reviewing the relevant statutory 

framework governing sentencing and parole, specifically considering the 

authority of the APB. The legislature has articulated the following as its goals 

in establishing the parole system:

It is the intent of the legislature that the state parole system 

provide a means of supervising and rehabilitating offenders 

without continued incarceration and a means by which prisoners 

can be aided in the transition from prison to society. It is also the 

intent of the legislature that the policies, procedures and actions of 

 

2 By letter dated June 15, 2015, respondent’s counsel advised the court that the respondent had 

been released from prison on parole. She asserts that, as a result, “the appeal is now moot as to 

him.” In light of this letter, we directed the State to file a response setting forth its position as to 

whether the appeal is moot. In its response, the State contends that the appeal is not moot 

because, in light of the trial court’s order that the respondent had been released on traditional 

parole by virtue of the APB’s August 2013 order, there is an open issue as to the validity of 

conditions imposed by the APB in connection with respondent’s subsequent release. The State 

also asserts that the issues raised in this appeal are of pressing public interest to insure the 

proper functioning of the parole system, and satisfy the exception to mootness for cases that are 

“capable of repetition yet evading review.” State v. Carter, 167 N.H. 161, 164-65 (2014). On the 

latter point, the State cites a case from the Hillsborough County Superior Court-North, which 

presents a scenario similar to that involved herein, and raises the question of whether a prisoner 

who has been paroled to a consecutive sentence that is thereafter suspended must be immediately 

released into the community. For the reasons articulated by the State, we conclude that this case 

is not moot. 
4

the adult parole board and the department of corrections relative 

to the administration of this system emphasize the need to protect 

the public from criminal acts by parolees.

RSA 651-A:1 (2007); see also Knowles v. Warden, N.H. State Prison, 140 N.H. 

387, 390 (1995). The statute defines “parole” as “a conditional release from the 

state prison which allows a prisoner to serve the remainder of his term outside 

the prison, contingent upon compliance with the terms and conditions of 

parole as established by the parole board.” RSA 651-A:2, II (2007). The APB is 

“responsible for paroling prisoners from the state prison.” RSA 651-A:4, I 

(Supp. 2014). To fulfill this responsibility, “the legislature has granted broad 

authority to the parole board to enact rules regarding the conduct of parole 

hearings, the criteria used to evaluate prisoners who seek parole, conditions for 

parolee conduct, and the procedures for parole revocation.” Knowles, 140 N.H. 

at 390; see RSA 651-A:4, III (2007).

There is no right to parole in New Hampshire. See Baker v. 

Cunningham, 128 N.H. 374, 380-81 (1986) (“Although any State legislature is 

free to provide that parole is a matter of right rather than a subject of 

discretion, the General Court of this State has not done so” and, “[i]n the 

absence of some provision grounded in State law mandating a prisoner’s 

release upon proof of certain ascertainable facts, there is no right to parole.” 

(citation omitted)); see also N.H. Admin. Rules, Par 301.02 (“Parole shall be 

considered a privilege, something to be earned rather than automatically given 

. . . .”). Rather, the grant of parole rests squarely within the discretion of the 

APB, and “[w]e have held that the parole board’s broad discretion to deny 

parole is not limited by RSA chapter 651-A, or by its administrative rules.” 

Knowles, 140 N.H. at 390. “As long as the decision [to grant parole] rests upon 

. . . essentially discretionary determinations, a prisoner’s interest in parole fails 

to rise above the level of a hope.” State v. Gibbons, 135 N.H. 320, 322 (1992) 

(quotation omitted); see Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 11

(1979) (“That the state holds out the possibility of parole provides no more than 

a mere hope that the benefit will be obtained.”).

The starting point for analysis of the specific issue before us requires us 

to consider the nature of the APB’s act of paroling a prisoner from the sentence 

he is currently serving to another sentence ordered to be served consecutively

to the first. As stated, the APB is tasked with paroling prisoners from the state 

prison into the community. RSA 651-A:4, I. When a prisoner is serving one 

sentence, the transition from prison to society is a straightforward one: he or 

she is eligible for traditional parole into the community upon completion of the 

minimum of the sentence. RSA 651-A:6, I. When a prisoner is serving 

multiple sentences, one or more of which is consecutive to another, however, 

this transition to society is no longer a one-step process: instead, the prisoner 

must first transition from one sentence to another before finally transitioning 

into the community. Faced with this situation, the APB has developed an 
5

intermediate step in the traditional parole process that allows prisoners to 

parole into a consecutive sentence upon completion of the minimum of a prior 

sentence. The effect of this practice is to restructure the order of sentences by 

allowing a prisoner to serve time on a consecutive sentence while continuing to 

serve time on the initial sentence, and thus potentially earn conditional release 

into the community more quickly.

Although no provision of RSA chapter 651-A or the administrative rules 

governing parole specifically authorizes the APB to grant parole to a 

consecutive sentence, neither do the statutes or the rules prohibit it from doing 

so; and, given the APB’s longstanding history of exercising this power, we agree 

with the State that the legitimacy of this practice is now beyond question. See

N.H. Retirement System v. Sununu, 126 N.H. 104, 109 (1985) (“[T]he longstanding practical and plausible interpretation [of a statute] applied by the 

agency responsible for its implementation, without any interference by the 

legislature, is evidence that the administrative construction conforms to the 

legislative intent.” (quotation omitted)); see also Appeal of Town of Seabrook, 

163 N.H. 635, 644 (2012).

The respondent argues that the APB, upon deciding to parole him to his 

consecutive and final sentence, could not then “continue to hold [him] on the 

prior AFSA sentence after he ha[d] completed serving the consecutive one-year 

sentence.” We disagree. As part of its broad discretion to administer the 

parole process, the APB has the authority to deny parole altogether in 

appropriate circumstances. It thus follows that, within this discretion, the APB

has the lesser authority to utilize the intermediate mechanism of parole to a 

consecutive sentence without thereby committing to release the prisoner into 

the community upon completion of that sentence.3 We are likewise not 

persuaded by the respondent’s additional argument that such a result 

impermissibly alters the ordering of the sentences as imposed by the court. 

Paroling a prisoner to a consecutive sentence necessarily — and permissibly —

has the effect of changing the order of sentences, i.e., in consolidating the 

unexpired portion of both an initial sentence and a consecutive sentence; and 

no meaningful alteration results from a prisoner continuing to serve the 

unexpired portion of the first-imposed sentence after completing the 

consecutive sentence.

The respondent also contends that the APB’s act of paroling him to his 

consecutive sentence entitled him to a revocation hearing before he could be 

“returned” to serving his four-to-ten year sentence. Again, we disagree. This 

 

3 We note that, in cases where the maximum of the consecutive sentence has not been 

suspended, as happened here, the issue of whether the APB can parole to a consecutive sentence,

while retaining the authority to decide later whether to release the prisoner on that sentence, may 

have lesser practical significance because, regardless of whether such authority exists, the APB 

would have discretion to decide whether the prisoner should be granted parole to release on the 

consecutive sentence upon completion of the minimum term of that sentence. 
6

argument is premised upon two incorrect assumptions: first, that a prior 

sentence is extinguished when a prisoner is paroled to a consecutive sentence; 

and second, that the act of paroling the respondent to his consecutive sentence 

gave him a liberty interest in conditional release upon completion of that

sentence. Because the respondent’s four-to-ten year sentence was not 

completed, and was not put on hold, at the time he was paroled to his 

consecutive sentence, he could not have been “returned” to his prior sentence, 

as he never “left it” in the first place.

More importantly, the parole-to-consecutive practice does not, as the 

respondent urges, invariably constitute a determination by the APB that the 

prisoner shall be conditionally released into the community upon completion of 

the consecutive sentence. Rather, “parole to consecutive” means what it says: 

parole to a consecutive sentence, not traditional parole to conditional release 

into the community. That distinction is critical because a prisoner’s desire to 

obtain parole release — unlike his interest in remaining in the community once 

released — does not trigger constitutional protection against the deprivation of 

a liberty interest.

A decision to deny parole thus remains qualitatively different from 

a decision to revoke parole once granted. While the decision to 

revoke is characteristically circumscribed by the burden on the 

government to prove facts amounting to a violation of parole 

conditions, the decision to deny is discretionary. Therefore, 

though the State may not revoke without procedural due process, 

the decision to deny is not so circumscribed.

Baker, 128 N.H. at 381 (citations omitted); see Greenholtz, 441 U.S. at 9-10

(discussing the “crucial distinction” between parole release and parole 

revocation, and quoting Judge Henry Friendly’s observation that “there is a 

human difference between losing what one has and not getting what one 

wants” (quotation omitted)). Because the APB’s practice of paroling to a 

consecutive sentence does not contemplate conditional release into the 

community, but rather is an intermediate step that occurs prior to parole 

release consideration, the APB’s act of paroling the respondent to his 

consecutive sentence did not trigger a liberty interest such that the APB was 

required to hold a parole revocation hearing before requiring him to continue 

serving time on his AFSA sentence. See Baker, 128 N.H. at 380-81 (no right to 

parole release in New Hampshire).

Our conclusion that the APB has the authority to parole to a consecutive 

sentence, while retaining discretion to determine later whether the prisoner 

should be released into the community, also furthers public policy. By not 

requiring it to commit to eventual release at the time it determines whether a 

prisoner can start serving a consecutive sentence, the APB may be encouraged 

to grant parole to consecutive sentences in close cases where it would not do so 
7

if that decision carried with it the requirement that the prisoner be released 

upon completion of that sentence. However, were we to accept the 

respondent’s argument that the APB loses the ability to later reevaluate a

prisoner’s readiness for release because the parole-to-consecutive practice 

creates a liberty interest in a future conditional release upon completion of the 

consecutive sentence — an event that may not come to fruition for five, ten, or 

fifteen years, or longer — the APB might well be reticent to utilize this practice. 

The inevitable result would be a decreased likelihood of paroling a prisoner to a 

consecutive sentence upon completion of the minimum term of his or her initial 

sentence, thereby jeopardizing the practice’s presumptive benefits to prisoners. 

In short, by allowing prisoners to serve a consecutive sentence concurrently 

with a prior sentence, and earn conditional release more quickly, the APB 

effectuates the legislature’s goal that, in administering the parole process, it

both supervise and rehabilitate prisoners without unnecessarily prolonging 

their incarceration, a beneficial result that we will not undo. See RSA 651-A:1.

IV

In the alternative, the respondent argues that, even assuming that the 

practice of paroling to a consecutive sentence without automatic release at the 

conclusion thereof is permissible, “the habeas court properly found that [the 

respondent] had been ‘paroled in the traditional sense’” rather than paroled to 

a consecutive sentence. We are not persuaded.

In its order, the trial court concluded that, because “the APB ha[d] failed 

to clearly state that [the respondent] was being administratively paroled,”4 he 

“was paroled in the traditional sense to his one-year imposed consecutive 

sentence,” and therefore was entitled to be released when that sentence ended.

In reaching this conclusion, the trial court relied upon the APB Form, which 

states, under the heading “Parole Board Notes,” that the respondent was

“approved for parole to consecutive, must have ARC review prior to release 

consideration.”

The respondent, noting that “principles of due process require that 

orders relating to the imposition of criminal sentences be expressed in clear 

terms,” asserts that, because there is no “meaningful distinction” between a 

parolee “receiving an order regarding the grant or denial of parole and a 

criminal defendant receiving a sentence from a judge,” the same due process 

requirement of clarity of terms should also govern the APB’s actions. See State 

v. Fletcher, 158 N.H. 207, 209-10 (2009) (“Due process requires a sentencing 

court to clearly communicate to the defendant the exact nature of the sentence 

 

4 By “administrative parole,” the trial court apparently meant to describe a kind of parole, such as 

parole to a consecutive sentence, in which the prisoner is not entitled to automatic release at 

some point in the future. We are advised by the State that the APB does not utilize the term 

“administrative parole” to describe the practice of parole to a consecutive sentence.
8

as well as the extent to which the court retains discretion to modify it or 

impose it at a later date.” (quotation omitted)). Even if we were to assume 

without deciding that this analogy is appropriate, our reading of the APB’s form 

does not lead us to conclude that it provides support for granting the 

respondent the relief he seeks.

We interpret written documents de novo. See Edwards v. RAL Auto. 

Group, 156 N.H. 700, 705 (2008) (“The interpretation of final judgments, like 

the interpretation of other written documents, is a question of law, which we 

review de novo.”). Accordingly, the respondent’s suggestion, that we must 

accept the trial court’s finding regarding the APB form because it represents a

factual determination supported by the record, is misplaced. Based upon its 

plain language, we conclude that the APB Form was sufficiently clear, in that it

notified the respondent that he was being paroled to a consecutive sentence, 

and that such action did not create a reasonable expectation that the 

respondent was automatically entitled to conditional release upon the 

completion of his consecutive sentence. It states that the respondent would 

need ARC review prior to release consideration, thus indicating that, at the 

time he was paroled to the consecutive sentence, the APB had not yet 

considered him for release into the community. Because we conclude that the 

form was sufficiently clear to notify the respondent that he was only being 

paroled to his consecutive sentence, we reject his argument to the contrary.

V

For the foregoing reasons, we conclude that the trial court erred as a 

matter of law in granting the respondent habeas corpus relief. We therefore 

reverse its judgment.

Reversed.

DALIANIS, C.J., and HICKS, CONBOY, and BASSETT, JJ., concurred.