2004-822, IN RE JUVENILE 2004-822

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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Rochester District Court
No. 2004-822
IN RE JUVENILE 2004-822
Argued: October 20, 2005
Opinion Issued: December 30, 2005
Kelly A. Ayotte, attorney general (Stephen D. Fuller, senior assistant
attorney general, on the brief and orally), for the State.
Andrew Winters, assistant appellate defender, of Concord, on the brief
and orally, for the juvenile.
NADEAU, J. The juvenile appeals an order of the Rochester District
Court (Cappiello, J.) sentencing him to a suspended jail term. He argues that:
(1) RSA 169-B:19, III-c (Supp 2005) is unconstitutional because it establishes a
system of juvenile jury trials that subjects juveniles to double jeopardy; and (2)
that the trial court erred in imposing a suspended jail sentence because RSA
628:1 (Supp. 2005) precludes holding a person “criminally responsible” for an
act he committed when he was twelve years old. We affirm.
The limited record reflects the following facts. At the age of seventeen,
the juvenile was charged with delinquency and aggravated felonious sexual
assault, which he allegedly committed at the age of twelve. Following an
adjudicatory hearing, the court found the juvenile petition “true.” Prior to the
dispositional hearing, counsel for the juvenile filed a memorandum of law
arguing that the court could not legally sentence the juvenile to a suspended

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jail sentence. After a hearing, the court sentenced the juvenile to a suspended
jail term of twelve to eighteen months.
The juvenile argues that RSA 169-B:19, III-c is unconstitutional because
it subjects juveniles to double jeopardy in violation of Breed v. Jones, 421 U.S.
519 (1975). Specifically, he argues that under the procedure established by
RSA 169-B:19, III-c, a juvenile who chooses to have a jury trial faces two trials,
which violates the Double Jeopardy Clauses of the State and Federal
Constitutions. Because the constitutionality of a statute involves a question of
law, we review the trial court’s determination de novo. State v. Kepple, 151
N.H. 661, 664, cert. denied, 125 S. Ct. 2918 (2005).
The legislature enacted RSA 169-B:19, III-c following our decision in In re
Jeffrey C., 146 N.H. 722 (2001). There we held that the New Hampshire
Constitution bars the State from incarcerating juvenile offenders in adult
correctional facilities without first affording them the right to a jury trial. Id. at
724. Because no New Hampshire statute authorized a juvenile jury trial at the
time Jeffrey C. was decided, we held that RSA 169-B:19, III (2002) and RSA
169-B:19, III-a (2002) were unconstitutional to the extent that they allowed
incarceration of juveniles in adult correctional facilities. Id. at 725.
The legislature enacted RSA 169-B:19, III-c, establishing a juvenile jury
trial procedure, effective January 1, 2003. RSA 169-B:19, III-c (a) provides in
relevant part that any juvenile whose disposition includes an imposed,
suspended, or deferred sentence to an adult correctional facility “shall not be
committed without first being afforded the right to a jury trial or waiving the
right to a jury trial.” RSA 169-B:19, III-c (b) provides in relevant part that any
such juvenile “may, after the disposition is issued, request a de novo trial
before a jury” by filing a request within three days of his original adjudication.
Whenever possible, the de novo jury trial shall be held in a district court
building equipped with jury capability, RSA 169-B:19, III-c (b), and in all cases
it shall be conducted by a specially assigned district court judge. Id. RSA 169-
B:19, III-c (c) provides in relevant part that “[t]he court in which the petition
originated shall retain jurisdiction over all matters and orders pertaining to the
placement, supervision and treatment of the juvenile during the pendency of
the pre-trial and trial proceedings,” but any previous disposition involving
incarceration will be vacated pending the de novo jury trial. If the jury returns
a finding of true, the de novo trial court may “reinstate or modify only those
portions of the dispositional order made by the originating court [that were]
suspended . . . during the pendency of the de novo process.” RSA 169-B:19,
III-c (d).
The juvenile first relies upon the United States Supreme Court’s decision
in Breed v. Jones, but nothing in Breed precludes a de novo appeal for a
juvenile. The Breed Court only prohibited the transfer of a case to an adult

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court where the juvenile would be tried as an adult after the juvenile had been
adjudicated in juvenile court. Breed, 421 U.S. at 541. By contrast, a juvenile
requesting a de novo trial pursuant to RSA 169-B:19, III-c, is not transferred to
a court of general criminal jurisdiction; rather, the case remains in the juvenile
court system and the juvenile does not stand trial as an adult. Thus, Breed is
inapposite.
RSA 169-B:19, III-c provides a de novo jury trial for juveniles who are
found to be delinquent and sentenced to committed, suspended, or deferred jail
time extending beyond their seventeenth birthday. A similar de novo jury trial
is provided to certain adult defendants. An adult defendant who has been
convicted of a class A misdemeanor in a district court without a jury has the
right to a de novo trial in the superior court with a jury. See State v. Handfield,
115 N.H. 628, 630 (1975) (decided under prior law), cert. denied, 427 U.S. 909
(1976); RSA 502-A:12 (1997); RSA 599:1 (2001); see also RSA 592-A:2 (2001).
The effect of such an appeal is to vacate the district court judgment. Jenkins
v. Canaan Mun. Ct., 116 N.H. 616, 618 (1976).
The United States Supreme Court, in Ludwig v. Massachusetts, 427 U.S.
618 (1976), considered a double jeopardy challenge to a similar de novo trial
system in place in Massachusetts for adults convicted of misdemeanors in the
district court. In Ludwig, the Supreme Court rejected the same double
jeopardy claim that the juvenile has raised in the instant case. See id. at 631.
In holding that the Massachusetts system did not violate the constitutional
protection against double jeopardy, the Court reasoned:
[T]he decision to secure a new trial rests with the accused alone. A
defendant who elects to be tried de novo in Massachusetts is in no
different position than is a convicted defendant who successfully
appeals on the basis of the trial record and gains a reversal of his
conviction and a remand of his case for a new trial. Under these
circumstances, it long has been clear that the State may
reprosecute. The only difference between an appeal on the record
and an appeal resulting automatically in a new trial is that a
convicted defendant in Massachusetts may obtain a “reversal” and
a new trial without assignment of error in the proceedings at his
first trial. Nothing in the Double Jeopardy Clause prohibits a State
from affording a defendant two opportunities to avoid conviction
and secure an acquittal.
Id. at 631-32 (citation omitted).
The juvenile attempts to distinguish Ludwig on the basis that juveniles in
New Hampshire cannot waive the first non-jury trial, and thus they must have
two trials in order to exercise their right to a jury trial. The Massachusetts

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scheme at issue in Ludwig, however, similarly did “not allow an accused to
avoid a trial of some sort at the first tier before he obtain[s] a trial by jury at the
second.” Id. at 620. The Ludwig Court noted, however, that the defendant
could “enjoy his right to trial by jury expeditiously by invoking the . . .
procedure of ‘admitting sufficient findings of fact’” in the first trial, having the
judge find him guilty and impose a sentence, and then requesting his de novo
trial by jury. Id. at 626. On the other hand, as the Ludwig Court pointed out,
a defendant could “utilize [the first] proceeding fruitfully as a discovery tool and
find the strengths and the weaknesses of the State’s case against him.” Id. at
627.
A juvenile charged by petition in New Hampshire is afforded a similar
opportunity to forgo a full contest of the charges in the initial adjudication by
having the district court enter a finding of “true,” and proceeding directly to his
de novo jury trial. Nothing in RSA 169-B:19, III-c prohibits this type of
summary procedure. The statute expressly provides that no juvenile may be
sentenced to an adult correctional facility “without first being afforded the right
to a jury trial or waiving the right to a jury trial.” RSA 169-B:19, III-c.
Accordingly, without a waiver of his right to a jury trial, the juvenile must be
afforded that right before a sentence to an adult correctional facility can be
imposed. In re Jeffrey C., 146 N.H. at 725. Thus, RSA 169-B:19, III-c imposes
no greater hardship upon a juvenile than is placed upon an adult defendant
who is first tried for a class A misdemeanor in district court. Therefore, just as
the adult defendant’s double jeopardy rights are not violated by the de novo
trial system, there is no double jeopardy bar to allowing the juvenile to elect or
waive a de novo jury trial after an initial adjudication.
Next, the juvenile argues that the plain language of RSA 628:1 precludes
holding a person criminally responsible for an act he committed when he was
twelve years old, and that by imposing a suspended jail sentence, the court
held him criminally responsible. The juvenile contends that because he was
only twelve years old when he committed the aggravated felonious sexual
assault, the plain language of RSA 628:1 precluded the court from sentencing
him to a term of incarceration in an adult facility. We disagree.
RSA 628:1, I, in relevant part provides that, for most offenses, “a person
less than 15 years old is not criminally responsible for his conduct, but may be
adjudged to be a juvenile delinquent.” Pursuant to RSA 628:1, I, then, a
juvenile who committed an offense when he was twelve years old may be found
to be a juvenile delinquent, as was the case here. The juvenile contends that
when a district court sentences a juvenile to incarceration in a house of
corrections, it thereby holds the juvenile “criminally responsible” for purposes
of RSA 628:1. He argues that Jeffrey C. stands for the proposition that a
juvenile is necessarily held “criminally responsible” whenever a sentence to an
adult correctional facility is imposed. We disagree.

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In Jeffrey C. we held that the incarceration of a delinquent juvenile in an
adult correctional facility was unconstitutional where the juvenile had not been
afforded a jury trial. In re Jeffrey C., 146 N.H. at 724. In response to that
ruling, the legislature amended RSA 169-B:19 to grant juveniles facing
incarceration in an adult facility a de novo trial by jury at their election.
To be held “criminally responsible” for aggravated felonious sexual
assault is to be treated as an adult: to be tried in superior court after an
indictment and subject to the full range of criminal penalties for that offense.
Cf. RSA 628:1, II (juvenile between thirteen and seventeen, who committed one
or more of certain offenses when he was between thirteen and fifteen, may be
held criminally responsible, but only after certification under RSA 169-B:24
and transfer to the superior court). Nothing in Jeffrey C. suggests that by
sentencing a juvenile to a term of incarceration, the juvenile has been found
guilty of a crime and thus been held “criminally responsible.”
The juvenile here was afforded all the protections that attend juvenile
proceedings, including confidentiality of the proceedings and the closing of his
case once he becomes twenty-one years old. See RSA 169-B:4, VI (2002); RSA
169-B:34-:38 (2002 & Supp. 2005). The juvenile has not been found guilty of a
crime and no such conviction has been entered on the record. At no time was
the juvenile’s case transferred to the superior court, nor was he subjected to an
adult proceeding or any penalties that were not authorized under RSA chapter
169-B, which establishes the procedures and penalties for juvenile delinquents.
Although the juvenile’s sentence included a suspended term in an adult
correctional facility by virtue of the fact that he was seventeen years old at the
time of his adjudication, the adjudication of “true” was not equivalent to a
finding of guilt in a criminal proceeding. Accordingly, we find no violation of
RSA 628:1.
Affirmed.
BRODERICK, C.J., and DALIANIS, DUGGAN and GALWAY, JJ.,
concurred.