James Couch v. NH State Prison CV-96-547-B 07/13/99

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

James Couch

v. Civil No. 96-547-B

Michael Cunningham, Warden

O R D E R

James Couch has filed a habeas corpus petition alleging that

the State of New Hampshire revoked his probation and sentenced

him to the maximum prison term permitted by law for his offense

in violation of the Fifth Amendment's double jeopardy clause and

his Fourteenth Amendment right to substantive due process. The

state now moves for summary judgment. Because I determine that

Couch's claims have no merit, I grant the state's motion.

I. FACTS

Couch pleaded guilty to one count of felonious sexual

assault on February 6, 1993, in Cheshire County Superior Court.

Pursuant to his plea agreement. Couch was sentenced to 12 months in the Cheshire County House of Corrections and five years of

probation.1 He also received a 2-to-4-year state prison

sentence, which was deferred for one year following his release

from the House of Corrections. The sentencing judgment provided

that Couch could avoid the deferred sentence by demonstrating

that it should not be imposed 30 days prior to the expiration of

the deferral period. The judgment also specified that

"violation of probation . . . may result in revocation of

probation . . . and imposition of any sentence within the legal

limits for the underlying offense." Finally, the sentence

stated:

If the defendant has served the House of Corrections sentence portion of one (1) year, he is to receive confinement credit as against the seven (7) year maximum sentence for a Class B Felony, but only if the defendant is resentenced on a Violation of Probation to a State prison maximum sentence in excess of six (6) years; that is: After the defendant has served his year in the House of Corrections and if he is resentenced on a Violation of Probation, the defendant's maximum outstanding sentence could be not more than six (6) years nor less than three (3) years in the New Hampshire State Prison, stand committed

Couch served 12 months in the Cheshire County House of

Corrections. Upon release, he executed a probation contract

1 Couch's sentence provided that "violation of probation . . . may result in revocation of probation . . . and imposition of any sentence within the legal limits for the underlying offense."

-2- stating that he agreed to participate in and complete the

Monadnock Family Services sex offender treatment program. Couch

was subseguently denied admission to the Monadnock program. He

was arrested, charged with violating his probation, and sentenced

to 3-1/2 to 7 years in the state prison.2

With the assistance of counsel. Couch appealed to the New

Hampshire Supreme Court, alleging that the superior court's

determination that he violated probation was unsupported by the

record. The supreme court affirmed the superior court's

decision. Couch, acting pro se, subseguently filed a petition

for a writ of habeas corpus in the Cheshire County Superior

Court, alleging that the state breached his plea agreement and

that his probation revocation sentence constituted a double

jeopardy violation. The superior court denied Couch's petition

and his motion for reconsideration, which also alleged due

process violations based on the court's refusal to provide Couch

with transcripts of his plea agreement.

Couch did not appeal the superior court's decision. Rather,

he filed a petition for a writ of certiorari with the New

Hampshire Supreme Court. The supreme court denied Couch's

2 Couch received credit for 373 days served, which included his 12 months in the Cheshire County House of Corrections and pre-probation revocation hearing confinement.

-3- petition on September 30, 1996. Couch filed his petition for a

writ of habeas corpus in this court on November 1, 1996. He

subsequently sought a stay of proceedings to seek counsel and,

with the assistance of counsel, filed the amended petition now

before me.

II. DISCUSSION

A. Double Jeopardy

Couch argues that the trial court's decision to revoke his

probation and sentence him to the maximum prison term permitted

by law for his offense rather than imposing the deferred 2-to-4-

year sentence violates his right to be free from double jeopardy.

I disagree. In United States v. DiFrancesco,

(1980), the Supreme Court stated in dictum that "there is no

double jeopardy protection against the revocation of probation

and the imposition of imprisonment." Most recent federal and state court decisions addressing facts similar to

those at issue here have cited DiFrancesco in rejecting double

jeopardy challenges. See, e.g.. State v. White,

(1989); State v. McMullen,

(Ohio 1983);

State v. Jones,

(N.D. 1988); State v.

Griffith,

(Tenn. 1990); see generally,

; but see Nelson v. State,

(Alaska 1981)

(double jeopardy violated where state law did not allow for

imposition of greater sentence after revocation and court imposed

new sentence with a later parole eligibility date than the

original deferred sentence).

The present case presents no unusual facts that would

warrant a conclusion contrary to the general rule articulated in

DiFrancesco. New Hampshire law authorizes a judge after revoking

a defendant's probation to sentence the defendant to any term of

imprisonment authorized by law.

VII; see State v. White,

(1989) . Moreover, while

the sentencing court in this case included a deferred 2-to-4-

year sentence as a part of Couch's original sentence, it also

specified in the sentencing judgment that Couch could receive a sentence of up to 3-1/2 to 7 years if he violated the terms of

his probation. Under these circumstances. Couch had no right to

expect that the court would limit his sentence to 2 to 4 years if

he violated his probation. Accordingly, Couch's sentence did not

violate the Fifth Amendment's double jeopardy clause.

B. Substantive Due Process

Couch argues that the state violated his right to

substantive due process by revoking his probation based upon his

failure to obtain admission to the Monadnock Family Services Sex

Offender Program. I also reject this argument.

The state judge assigned to Couch's revocation proceeding

conducted a lengthy evidentiary hearing before deciding to revoke

his probation. Substantial evidence was produced at the hearing

to warrant a conclusion that Couch violated his probation by

failing to gain admission into the Monadnock program because (1)

he failed to express remorse for his victims or accept

responsibility for his criminal conduct; (2) he exhibited signs

of having abused alcohol prior to two assessment sessions; and

(3) he failed to complete a sexual assessment that was a

prereguisite to admission into the program. Substantial evidence was also produced to justify a conclusion that Couch was unlikely

to successfully complete any other sex offender program, given

his behavior and attitude concerning his offense. Finally, the

record contains ample evidence to warrant a conclusion that Couch

posed a substantial danger to society if he were allowed to

remain on probation without successfully completing a sex

offender program. This evidence provides ample justification for

the trial court's decision to revoke Couch's probation and

sentence him to the maximum prison term permitted by law for his

offense. See State v. Kochvi,

(1996)

(substantive due process not denied by revocation of probation

for failing to participate in sex offender program); State v.

Morrow,

(Minn. Ap p . 1992) (same); State v.

Nixon,

(Mo. 1995) (same); Davis v. Wright,

, at *3 (D. Or. 1989) (same).

III. CONCLUSION

For the reasons set forth above, defendant's motion for

summary judgment is granted.3

3 Because the state is entitled to summary judgment on the merits, I do not reach its claims that relief is barred because Couch failed to exhaust his state court remedies and independent and adeguate state law grounds support the state supreme court's rejection of his claims.

-7- SO ORDERED.

Paul Barbadoro Chief Judge

July 13, 1999

cc: Scott F. Johnson, Esq. Michael Delaney, Esq.

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