Based upon this evidence, a rational jury could have found beyond a reasonable doubt that, even if the defendant entered the store intending to commit robbery as opposed to murder, the defendant's intent evolved into a purpose to kill the clerk. Both the defendant and the State contend that our decision in State v. Morehouse, 120 N.H. 738, 424 A.2d 798 (1980), supports their position. In Morehouse, a jury convicted the defendant of attempted first degree murder based upon evidence that the defendant followed the victim to her car, grabbed her, and hit her head repeatedly with "a large metal autobody hammer."

Subsequently, in August 1979, after a hearing in the Hillsborough County Superior Court, the plaintiff's petition alleging that his extended sentence was excessive and disproportionate to the crime was denied. The plaintiff then filed a petition for a writ of habeas corpus in the superior court on December 12, 1980, raising the issues presently before us. The State moved to dismiss, based largely, it appears, on our decision in State v. Morehouse, 120 N.H. 738, 424 A.2d 798 (1980), in which we held that the imposition of an enhanced sentence did not violate the accused's due process rights. The Court (Wyman, J.) granted the State's motion to dismiss.

The defendant testified on his own behalf. At the close of evidence, when discussing jury instructions, the defendant asked the court to provide the jury with a definition of the word "cruelty" based upon the definition of "cruel" set forth in State v. Morehouse, 120 N.H. 738, 744 (1980). The court initially declined to provide a definition.

Because the protection provided by the United States Constitution on this issue is no greater than that of the State Constitution, we need not separately address the fourteenth amendment issue. See State v. Ball, 124 N.H. 226, 232, 471 A.2d 347, 351 (1983); see also Oyler v. Boles, 368 U.S. 448, 452 (1962); State v. Morehouse, 120 N.H. 738, 743, 424 A.2d 798, 801 (1980). This court has held that the enhanced sentencing statute under which the plaintiff was sentenced meets the constitutional notice requirement by clearly delineating that the enhanced sentencing provision is applicable to all crimes. State v. Morehouse, supra at 743, 424 A.2d at 801.

As the United States Court of Appeals for the First Circuit noted in its denial of the defendant's ex post facto claim, the statute under discussion here changed "neither the rules of evidence nor the elements required for a first degree murder conviction," Breest v. Helgemoe, 579 F.2d at 103; it only created "a modification of the evidence relevant to sentencing." Id. A fact that increases the severity of a sentence, imposed within the statutory sentencing limits for the crime of which the defendant has been convicted, is not necessarily "an element of a new, greater offense," State v. Morehouse, 120 N.H. 738, 742, 424 A.2d 798, 800 (1980), and the notice requirements associated with a criminal charge are not thereby invoked. Id. at 743, 424 A.2d at 800-01.

The New Hampshire Supreme Court vacated the initial conviction, however, because it determined that the trial court gave the jury an erroneous reasonable doubt instruction. See State v. Morehouse, 120 N.H. 738, 744-45 (1980). Shortly thereafter, he was sentenced to a prison term of not more than 30 years, nor less than 10 years.

Rather, in New Hampshire, trial courts have broad discretion to determine the length of a sentence. State v. Morehouse, 120 N.H. 738, 742 (1980). In this context, characterizing a court's refusal to grant leniency based upon a defendant's failure to express remorse as a "denied benefit" as opposed to a "penalty" is inconsistent with the reality of New Hampshire's sentencing scheme.

[25, 26] As we have previously stated, "[t]rial judges are vested with broad discretionary powers with regard to sentencing." State v. Rau, 129 N.H. 126, 129, 523 A.2d 98, 100 (1987); see also State v. Morehouse, 120 N.H. 738, 742, 424 A.2d 798, 800 (1980); see N.H. CONST. pt. I, art. 18. To violate the New Hampshire Constitution, a sentence must be "grossly disproportionate to the crime."

State v. Gretzler, 135 Ariz. 42, 51, 659 P.2d 1, 10 (1983), cert. denied 461 U.S. 971, 103 S.Ct. 2444, 77 L. Ed. 2d 1327. See, also, State v. Morehouse, 120 N.H. 738, 424 A.2d 798 (1980). Therefore, the finding concerning this component of aggravating circumstance (1)(d) must be not only that the murderer manifested depravity but that the murderer manifested "exceptional depravity."

We dispose of his argument simply by noting the well-established rule that sentencing is a matter falling within the sound discretion of the trial court, rather than within the province of the jury. See State v. Morehouse, 120 N.H. 738, 742-43, 424 A.2d 798, 800 (1980); see also State v. Stone, 122 N.H. 987, 989, 453 A.2d 1272, 1273-74 (1982); State v. Wheeler, 120 N.H. 496, 499, 416 A.2d 1384, 1386 (1980). The defendant also argues, again without support, that his sentence, thirty-six years to life in the State prison, constituted plain error.