2004-659, STATE OF NH v. BRYAN C. TAYLOR

Marlin .22 rifle on or about August 30, 2003, while at 15 Loudon Road in RSA 159:3. Indictment 03 - S - 1521 alleged that he had under his control a defendant was indicted on two charges of being a “felon in possession.” See The limited record reflects the following facts. On Oct ober 16, 2003, the

(Supp. 2004). We vacate the sentence and remand for resentencing. mandatory minimum sentence of three to six years pursuant to RSA 651:2, II - g appeal, he contend s that the trial court erred in sentencing him to the two counts of possession of a firearm by a felon. See RSA 159:3 (2002). On NADEAU, J. The defendant, Bryan C. Taylor, appeals his conviction of

and orally, for the defendant. Andrew Winter s, assistant appellate defender, of Concord, on the brief

general, on the brief and orally), for the State. Kelly A. Ayotte, attorney general (Nicholas Cort, assistant attorney

No. 20 04 - 659 Merrimack

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. O pinions are available on the Internet by 9:00 Errors may be reported by E - mail at the following address: errors in order that corrections may be made before the opinion goes to press. Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

revolver, or other firearm, or slungshot, metallic knuckles, billies, stiletto, felony if he “[o]wns or has in his possession or under his control, a pistol, RSA 159:3, I(a) provides, in part, that a person is guilty of a class B

results and effectuate the legislative purpose of the statut e. Id. that they do not contradict each other, and so that they will lead to reasonable two statutes that deal with similar subject matter, we will construe them so as a whole. State v. Sullivan, 144 N.H. 541, 543 (1999). When interpreting the intent of the legislature as expressed in the words of a statute considered On questions of statutory interpretation, this court is the final arbiter of

sentenci ng provision of RSA 651: p. 2 2, II - g constitutes plain error. we conclude that the trial court’s application of the mandatory minimum Johnson v. United States, 520 U.S. 461, 466 - 67 (1997). As explained below, fairness, integrity or public reputation of judicial proceedings. Id. at 737; see must affect substantial rights; and (4) the error must seri ously affect the elements: (1) there must be an error; (2) the error must be plain; (3) the error N.H. 732, 736 - 37 (2005). Under our rule, we consider the following four which a miscarriage of justice would otherwise result. State v. MacInnes, 151 A. The rule should be used sparingly, its use limited to those circumstances in substantial rights even though not raised by either party. See Sup. Ct. R. 16 adopted plain er ror rule, which allows us to consider an error that affects this issue on appeal because we would review the issue under our recently It is not necessary for us to determine whether the defendant preserved

was not preserved, we should review his sentence for plain error. response, the defendant argues that if we find the issue presented in his brief argument on appeal and that we should therefore decline to review it. In The State contends that the defendant failed to preserve this statutory

651: p. 2 2, II - g. firearms under his control,” and therefore the trial court erred in applying RSA [as required by statute]. Rather, the indictments alleged that he had the pled guilty did not allege that he possessed, used or attempted to use a firearm, On appeal, the defendant argues that “[t]he indictments to which [he]

This appeal followed. sentenced the defendant to three to six years in State prison, stand committed. II - g was applicable. The court held that the provision was applicable and regarding whe ther the mandatory minimum sentencing provision of RSA 651: p. 2 2, (Fitzgerald, J). Prior to sentencing, both parties submitted memoranda The defendant pled guilty to both indictments in Superior Court

Colt Special at the same time and place. Concord. In dictment 0 p. 3 3 - S - 15 p. 2 22 alleged that he had under his control a .38 3

concurred. BRODERICK, C.J., and DALIANIS, DUGGAN and GALWAY, JJ.,

resentencing. Accordingly, we vacate the defendant’s sentence and remand for

error routinely corrected on plain - error review”). F. p. 3 3d 536, 541 (7 Cir. 2004) (“[t]he entry of an illegal sentence is a serious th elements of the rule have been satisfied. See United States v. Pawlinski, 374 the indictment. Thus, because the sentence was illegal, the third and forth was plainly evident from comparing the plain language of RSA 651:2, II - g and of the mandatory minimum sentence provision was error. Second, this error a review of the statute and indictment, we find that the trial court’s application Here all four elements of the plain error rule have been met. First, after

II - g. erred in applying the mandatory mi nimum sentencing provision of RSA 651:2, the defendant had such firearms “under his control.” Thus, the trial court possessed, used or attempted to use a firearm. The indictments alleged that of a f irearm. Nowhere in the indictment was it alleged that the defendant RSA 651:2, II - g makes clear it applies to the possession, use or attempted use and “in his possession” have independent meanings. T he plain language of in looking at the plain language of RSA 159: p. 3 3, the words “under his control” duplicative provisions. State v. Gifford, 148 N.H. 215, 217 (2002). Therefore, We presume that the legislature does not enact unnecessary and

provision of RSA 651:2, II - g was inapplicable. his control and not in his possession, the mandatory minimum sentencing indictments to which he pled guilty charged him with having firear ms under imprisonment for a first offense.” The defendant contends that because the shall be given a minimum mandatory sentence of not less than p. 3 3 years’ use of a deadly weapon, and the de adly weapon is a firearm . . . [t]he person convicted of a felony, an element of which is the possession, use or attempted other deadly weapon.” RSA 651:2, II - g provides, in part, that “[i]f a person is switchblade knif e, sword cane, pistol cane, blackjack, dagger, dirk - knife, or