Next the defendant argues that revocation of her suspended sentence based on the uncounseled misdemeanor stalking conviction violates her right to due process under part I, article 15 of the New Hampshire Constitution. In Stone v. Shea, 113 N.H. 174, 176-77, 304 A.2d 647, 648-49 (1973), we held that the due process requirements set forth in Morrissey v. Brewer, 408 U.S. 471, 489 (1972), for the revocation of parole are applicable to proceedings for the revocation of a suspended sentence. These requirements include the right to notice, to disclosure of evidence, to present evidence, to confront and cross-examine witnesses, to a record, and, as we held in Stapleford v. Perrin, 122 N.H. 1083, 1088, 453 A.2d 1304, 1307 (1982), to representation by counsel.
5. Criminal Law — Probation — Particular Cases If State double jeopardy and due process claims of defendant convicted of probation violations had been properly preserved for appeal, they would be rejected on authority of State v. White, 131 N.H. 555 (1989), which held that trial court's sentencing jurisdiction continues during probation and that revocation of a defendant's retained liberty interest requires only a due process hearing and opportunity to be heard. 6. Criminal Law — Probation — Exclusionary Rule Argument to overrule Stone v. Shea, 113 N.H. 174 (1973), holding that the exclusionary rule does not apply to probation revocation proceedings, was rejected. 7. Criminal Law — Probation — Revocation Hearing State's evidentiary burden at probation revocation hearing is to show misplaced trust by a preponderance of the evidence.
Specifically, he argues that his due process rights were violated because the hearing was an inadequate forum to challenge the State's assertions. He contends that mere allegations without proof of actual conduct are insufficient to trigger punishment. He also challenges the failure of the trial court to state on the record the reasons for the action taken. In support of his contentions, he cites Stone v. Shea, 113 N.H. 174, 304 A.2d 647 (1973). [1-4] Before we address the merits of these issues, it is important to review the trial court's sentencing authority which is set forth in detail in RSA chapters 651 and 504. Trial judges have broad authority to provide for extended terms of imprisonment, a range of fines, probation, and conditional or unconditional discharge.
(See, e.g., Avery v. State (Alaska 1980) 616 P.2d 872, 874; 17 Ariz. Rev. Stat. Rules of Crim. Proc., rule 27.7, subd. (c); State v. LeMatty (1979) 121 Ariz. 333 [ 590 P.2d 449, 451-452]; Pearson v. State (1977) 262 Ark. 513 [ 558 S.W.2d 149, 150]; Ivey v. State (Fla. Dist. Ct. App. 1975) 308 So.2d 565, 567; State v. Hughes (Iowa 1972) 200 N.W.2d 559, 563; Jaynes v. State (Ind. Ct. App. 1982) 437 N.E.2d 137, 139-140; People v. Dawes (1971) 132 Ill. App.2d 435 [ 270 N.E.2d 214, 217] affd. (1972) 52 Ill.2d 121 [ 284 N.E.2d 629]; State v. Carter (1980) 5 Kan. App. 2d 201 [ 614 P.2d 1007, 1012]; State v. Maier, supra, 423 A.2d 235, 239; People v. Williams (1975) 66 Mich. App. 67 [ 238 N.W.2d 407, 409]; Stone v. Shea (1973) 113 N.H. 174 [ 304 A.2d 647, 648]; State v. Reyes (1986) 207 N.J. Super. 126 [ 504 A.2d 43, 48] cert. den. (1986) 103 N.J. 499 [ 511 A.2d 671]; People ex. rel. Wallace v. State (1979) 67 A.D.2d 1093 [415 N.Y.S.2d 157, 157-158]; Barthiume v. State (Okla. Crim. App. 1976) 549 P.2d 366, 367; Comm. v. Del Conte (1980) 277 Pa. Super. 296 [ 419 A.2d 780, 781]; Lloyd v. State (Tex.Crim. App. 1978) 574 S.W.2d 159, 160; Wis. Admin. Code § H.H.S. 31.03, subd. (3)(e)(6); State ex. rel. Thompson v. Riveland (1982) 109 Wis.2d 580 [ 326 N.W.2d 768, 771-772].) (See, e.g., Powell v. State (Ala. 1986) 485 So.2d 379, 381 [reasonably satisfied standard]; Conn. Gen. Stat. § 53a-32(b); State v. Smith (1988) 207 Conn. 152 [ 540 A.2d 679, 682-683, fn. 5] [reliable and probative evidence]; UnitedStates v. Miller, supra, 797 F.2d 336, 339, fn. 4, and cases cited therein [reasonably satisfied standard]; Dasher v. State (1983) 166 Ga. App. 237 [ 304 S.E.2d 87, 89] [slight evidence]; Herold v. State (1982) 52 Md. App. 295 [
Given our conclusion that a probation or parole revocation hearing is not a criminal proceeding, we find the reasoning of the Supreme Court of California and the Ninth Circuit Court of Appeals persuasive and are led to the conclusion that the needs of Alaska's probation system significantly outweigh any benefits which would flow from our mandating that the exclusionary rule is applicable to probation revocation proceedings.See also United States v. Farmer, 512 F.2d 160 (6th Cir. 1975), cert. denied, 423 U.S. 987, 96 S.Ct. 397, 46 L.Ed.2d 305, 44 U.S.L.W. 3305; United States v. Brown, 488 F.2d 94 (5th Cir. 1973); United States v. Hill, 447 F.2d 817 (7th Cir. 1971); United States ex rel. Sperling v. Fitzpatrick, 426 F.2d 1161 (2d Cir. 1970); People v. Dowery, 20 Ill. App.3d 738, 312 N.E.2d 682 (1974), aff'd, 62 Ill.2d 200, 340 N.E.2d 529, 18 Crim.L.Rep. 2268 (1975); Stone v. Shea, 113 N.H. 174, 304 A.2d 647 (1973); Commonwealth v. Kates, 452 Pa. 102, 305 A.2d 701 (1973); Reeves v. Turner, 28 Utah 2d 310, 501 P.2d 1212 (1972); State v. Kuhn, 7 Wn. App. 190, 499 P.2d 49 (1972). Further, we do not think that considerations of the imperative of judicial integrity dictate a contrary result.
See, e.g., State v. Salinas, 23 Ariz. App. 232 ( 532 P.2d 174); Ivey v. State, 308 So.2d 565 (Fla.); People v. Bennett, 25 Ill. App. 557 ( 323 N.E.2d 454); State v. Hughes, 200 N.W.2d 559 (Iowa); People v. Carter, 33 A.D.2d 655 ( 349 NYS2d 813); Caudell v. State, 532 P.2d 63 (Okla.); Scamardo v. State, 517 S.W.2d 293 (Tex.); Stone v. Shea, 113 N.H. 174 ( 304 A.2d 647); State v. Howard, 193 Neb. 45 ( 225 N.W.2d 391). It appears unlikely that this higher standard of proof will unduly hamper the state.
3) (alternate holding); United States v. Farmer, 512 F.2d 160, 162-63 (6th Cir. 1975); United States v. Hill, 447 F.2d 817, 818-19 (7th Cir. 1971) (alternate holding); United States v. Allen, 349 F. Supp. 749, 753-54 (N.D.Cal. 1972); United States ex rel. Lombardino v. Heyd, 318 F. Supp. 648, 650-52 (E.D.La. 1970), aff'd, 438 F.2d 1027 (5th Cir.) (per curiam), cert. denied, 404 U.S. 880, 92 S.Ct. 195, 30 L.Ed.2d 160 (1971); People v. Calais, 37 Cal.App.3d 898, 904, 112 Cal.Rptr. 685, 689 (3d Dist. 1974) (alternate holding); People v. Hayko, 7 Cal.App.3d 604, 609-11, 86 Cal.Rptr. 726, 730 (1st Dist. 1970); People v. Atencio, Colo., 525 P.2d 461, 462-63 (1974); Bernhardt v. State, 288 So.2d 490, 500 (Fla. 1974) (alternate holding); Brill v. State, 159 Fla. 682, 684-86, 32 So.2d 607, 608-10 (1947); People v. Dowery, 20 Ill.App.3d 738, 741-44, 312 N.E.2d 682, 684-87 (1st Dist. 1974); State v. Caron, Me., 334 A.2d 495, 499-500 (1975); State v. Thorsness, Mont., 528 P.2d 692, 695-96 (1974); Stone v. Shea, 113 N.H. 174, 177, 304 A.2d 647, 649 (1973); State v. Simms, 10 Wn. App. 75, 79-81, 516 P.2d 1088, 1091-92 (2d Div. 1973) (dictum); State v. Kuhn, 7 Wn. App. 190, 192-95, 499 P.2d 49, 51-52 (2d Div.), aff'd on other grounds, 81 Wn.2d 648, 650-51, 503 P.2d 1061, 1063 (1972). But see Michaud v. State, 505 P.2d 1399, 1402-03 (Okl.Cr. 1973).
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. Stapleford, 122 N.H. at 1088; see Stone v. Shea, 113 N.H. 174, 177 (1973). The State bears the burden of proving that the defendant violated the conditions of his suspended sentence by a preponderance of the evidence.
The State's argument relies upon earlier cases that appear to recognize an implied condition of good behavior in suspended sentences. See Couture v. Brown, 82 N.H. 459, 461 (1926); Stone v. Shea, 113 N.H. 174, 176 (1973). The defendant, however, relying upon State v. Ingerson, 130 N.H. 112 (1987), and other cases decided since Stapleford, argues that Couture and Stone are not controlling because we have subsequently expressed disapproval of implicit sentencing conditions.
State v. Weeks, 141 N.H. 248, 249, 681 A.2d 86, 88 (1996). In Stone v. Shea, 113 N.H. 174, 176-77, 304 A.2d 647, 648-49 (1973), we held that the due process requirements set forth in Morrissey v. Brewer, 408 U.S. 471 (1972), for the revocation of parole are applicable to revocations of probation and suspended sentences. These requirements include "the opportunity to be heard in person and to present witnesses and evidence."