2004-898, PETITION OF THE STATE OF NEW HAMPSHIRE

his request upon his reading of the applicable statutes, and his right to equal requesting to serve a portion of his sentence in home confinement. He based 2004. The day before sentencing, he filed a sentencing memorandum habitual offender, see RSA 262:23 (2004), and was sentenced on N ovember 17, pled guilty to one count of operating a motor vehicle while certified as a The following facts are undisputed. The defendant, Michael P. Campbell,

grant the p etition, vacate the sentence and remand. Hampshire challenges a sentencing order of the Superior Court (Groff, J.). We BRODERICK, C.J. By petition for a writ of certiorari, t he State of New

orally), for the defendant.

Green & Utter, P.A., of Manchester (Philip H. Utter on the brief and

general, on the brief and orally), for the State.

Kelly A. Ayotte, attorney general (Nicholas Cort, assistant attorney

No. 20 04 - 898 Original

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

minimum mandatory sentence shall be suspended . . . . Any for not less than one year nor more than 5 years. No portion of the notwithstanding the provisions of RSA title LXII, to imprisonment in effec t, he or she shall be guilty of a felony and sentenced, an order of the director or the court prohibiting such operation is convicted of driving a motor vehicle on the ways of this state while be an habitual offender under the provisions of this chapter is prohibiting such driv ing remains in effect. If any person found to on the ways of this state while an order of the director or the court It shall be unlawful for any person to drive any motor vehicle

provides, in relevant part: consider several statutes. We begin by examining RSA p. 2 262:23, I, which In determining whether the trial court imposed a lawful sentence, we

petition for a writ of certiorari. Forbes, 14 p. 2 2 N.H. 440, 442 (1997). Accordingly, we do not dismiss the State’s app licable to habitual offenders. See Concord Orthopaedics Prof. Assoc. v. likely to recur but continue to evade review given the nature of sentences oral argument. Thus, this case is moot. However, the issue raised here is confinement period of the defendant’s sentence would end the week following home confinement. He further explained that t he incarceration and home facility in Cheshire County, where the defendant was subsequently placed on transferred the defendant shortly after he was sentenced to a correctional At oral argument, defense counsel informed the court that the HOC

645 (1998). otherwise would result in substantial injustice. In re Ryan G., 14 p. 2 2 N.H. 643, We exercise our power to grant the writ sparingly and only where to do Citizens of E. Derry Fire Precinct v. Town of Derry, 148 N.H. 510, 512 (2002). unsustainable exercise of discretion or has acted arbitrarily or capriciously. jurisdiction, authority or observance of the law, or has engaged in an determine whether another tribunal has acted illegally in respect to the absence of a right to appeal, and o nly at the discretion of the court, to Review on certiorari is an extraordinary remedy, usually available only in

denied. Thereafter, the State petitioned this court for a writ of certiorari. home confi nement portion of the sentence was unlawful. The motion was arguing that because the HOC did not have a home confinement program, the home confinement. The State moved to reconsider the sentencing order, three months to be served at the HOC and the remainder to be served under County House of Corrections (HOC), stand committe d, for twelve months, with trial court sentenced the defendant, in relevant part, to the Hillsborough and the Fifth and Fourteenth Amendments to the Federal Constitution. The protection under Pa rt I, Articles 1 and p. 2 2 of the New Hampshire Constitution, p. 3 3

sentence. The Court simply order ed that four months (now suspend any portion of the defendant’s mandatory minimum The motion to reconsider is DENIED. The Court did not

relevant part: The trial court’s order denying the State’s motion to reconsider states, in

incarce ration programs. confinement, intensive supervision and special alternative of corrections shall adopt rules governing eligibility for home The department of corrections and the various county departments

(Emphas is added.) Finally, RSA 651:2, V(e) (Supp. 2004) states:

to verify compliance. by the county department of corrections, by electronic monitoring supplemented, as determined by the department of corrections or confinement may be monitored by a probation officer and may be misdemeanor or more than 5 years in case of a felony. Such home residence for not more than one year in case of a class A condition of probation, confinement to a person’s place of offense under RSA 262:2 p. 3 3, the sentence may include, as a offenders wit hin the meaning of RSA 259:39 and convicted of an misdemeanors, or in cases of persons found to be habitual In cases of persons convicted of felonies or class A

(Emphasis added.) RSA 651:2, V(b) (Supp. 2004) provides:

provided the correctional facility has a home confinement program. sentence . . . to serve the sentence under home confineme nt, committed to a correctional institution . . . under a criminal A sentencing court may order any person who has been

(Emphasis added.) The relevant portion of RSA 651:19 (Supp. 2004) states:

confinemen t. consecutive days of imprisonment prior to eligibility for home term or any portion thereof, provided the offender first serves 1 p. 4 4 where the sentence is to be served for the minimum mandatory on the rul es and regulations of the county correctional facility sentence under home confinement pursuant to RSA 651:19 based court may order that any such offender may serve his or her shall be served in a county correctional facility. The sentencing senten ce of one year or less imposed pursuant to this paragraph 4

subject to the statute may be done “pursuant to RSA 651:19 based on the rules RSA 262:23 provides that sentencing to h ome confinement for those

(2005). court’s interpretation of a statute de novo. State v. Hudson, 151 N.H. 688, 690 the fair import of their terms and to promote justice. We review the trial need not look beyond it. We construe Criminal Code provisions according to the statute. When the language of a statute is plain and unambiguous, we In matters of statutory interpretation, we first examine the language of

home confinement rules. We agree with the State. of corrections and the various county depart ments of corrections to develop the probation department, and RSA 651:2, V(e), which requires the department V(b), which provides for courts to order home confinement to be monitored by facility has a hom e confinement program, it is inconsistent with RSA 651:2, that if RSA 651:19 only allows for home confinement when the correctional ordered by the court if the facility has no such program. He further contends home confinement program, or home confinement under terms and conditions alternatives for sentencing: home confinement if the correctional fac ility has a order was lawful because the plain language of RSA 651:19 provides two with that provision. The defendant argues that the trial court’s sentencing argues that the trial court erred in conc luding that RSA 651:2 is inconsistent home confinement only when the correctional facility has such a program, and The State maintains that the plain language of RSA 651:19 allows for

(Brackets added.)

caused by their apparent inconsistency. reasonable interpretation of the statute in light of the am biguity Court has determined that the above sentence is lawful under a are inconsistent with each other and must be reconciled. The confinement program.” However, RSA 651:19 and RSA 651:2[,]V home confinement, “provided the correctional facility has a home compliance.” The Court concedes that RSA 651:19 provides for [d]epartment of [c]orrections, by selective monitoring to verify determined by the [d]epartment of [c]orrection[s] or by the [c]ounty be monitored by a probation officer and may be supplemented[,] as a person[’]s place of residence . . . . Such home confinement may sentence may include, as a condition of probation, confinement to 259:39 and convicted of an offense under RSA 262:23, the persons found to be habitual offenders within the meaning o f RSA RSA 651:2[,] V specifically provides that [“]in cases of

at home confinement pursuant to RSA 6 p. 5 51:19. reduced to three months) of his sentence of incarceration be served 5

such home confinement may be monitored solely by a probation officer and condition of probation for those sentenced under RSA 262:23, and allows that minimum sente nce under RSA 262:23; it provides for home confinement as a 6 p. 5 51:2, V(b) does not supplant home confinement as a portion of the mandatory 651:2, V(b) does not conflict with RSA 651:19. By its clear language, RSA of a sentence under RSA 262:23 when it is a condition of probation. Thus, RSA home confinement monitored by a probation officer is a permissibl e component monitoring to verify compliance.” This provision unambiguously provides that corrections or by the county department of corrections, by electronic officer and may be supple mented, as determined by the department of specifies that “[s]uch home confinement may be monitored by a probation to include home confinement “as a condition of probation,” and further RSA 651:2, V(b) permits sentences for those convicted under RSA 262:23

authorization with respect to ho me confinement. and conditions” of matters other than home confinement, and gives no such the statute authorizes courts to order “times or intervals of time” and “terms confineme nt” referenced at the beginning of this portion of the statute. Thus, term “other” is critical here; it distinguishes what follows from “home Rather, it relates back to the clause that refers to “such other purpose.” The conditions.” This clause, however, does not relate back to home confinement. of the statute allows courts to order “times or intervals of time” and “terms and program at the correctional facility is misplaced. The last clause of this portion order the terms and conditions of home confinement in the absence of a The defendant’s argument that this portion o f RSA 6 p. 5 51:19 authorizes a court to

may allow or as the court may order. conditions as the rules and regulations of the correctional facility such times or intervals of time and under such terms and as the court may d eem conducive to his or her rehabilitation, for prior to eligibility for home confinement, or for such other purpose In any case, the defendant shall first serve 14 consecutive days

the portion of the statute that states: circumstan ce under which home confinement may be ordered. He focuses on We reject the defendant’s attempt to read into RSA 6 p. 5 51:19 a second

correctional facility has a home confinement program. to home confinement under RSA 2 p. 6 62:23 may only occur if the applicable has a home confinement p rogram.” Thus, pursuant to RSA 6 p. 5 51:19, sentencing serve the sentence under home confinement, “provided the correctional facility person who has been committed to an institution other than State prison to language of RSA 651:19 unambiguously permits sentencing courts to order any served for the minimum mandatory term or any portion thereof.” The plai n and regulations of the county correctional facility where the sentence is to be 6

confinement program within the meaning of RSA 2 p. 6 62:23 and RSA 651:19. does not have an electronic bracelet program, i t does not have a home could be monitored by a probation officer. Consequently, because the HOC RSA 651:2, V(b), that home confinement under RSA 262:23 and RSA 651:19 electronic bracelet. Otherwise, the legislature would have specified, as it did in habitual offender necessarily requires monitoring for compliance by an program as an alternative to incarceration for a person convicted of driving as a Thus, for purposes of this case, we assume that any home confinement and we are not aware of any other means by which monitoring can be done. monitored by means other than a probation officer or an electronic bracelet, probation officer. The defendant does not argue that home confinement can be simply refer to home confinement a nd make no allowance for monitoring by a may be supplemented by electronic monitoring. RSA 262:23 and RSA 651:19 by the department of corrections or by the county department of corrections, confi nement may be monitored solely by a probation officer or, as determined confinement as a condition of probation, and specifically notes that such home under RSA 262:23 and RSA 651:19. RSA 651:2, V(b) allows for home that an electronic bracelet program be a component of home confinement Second, the statutory scheme at issue evidences the legislature’s intent

reference, RSA p. 6 651:19. home confinement program within the meaning of RSA 262:23 and, by an electronic monitoring, or “bracelet,” program does not mean that there is no lead to the conclusion the defend ant would have us reach: that the absence of the mandate regarding rules of eligibility contained in RSA 651:2, V(e) does not alternative to incarceration under RSA 262:23 pursuant to RSA 651:19. Thus, eligibility for home confinement both as a condition of probation, and as an officer. RSA 651:2, V(e) is fairly read as encompassing rules governing home confinement as a condition of probation, to be monitored by a probation confinement under RSA 262:23. RSA 651:2, V(b), as discussed, allows for facility has a home confinement program sufficient to allo w a sentence to home eligibility for, among other things, home confinement, does not mean that each and the various county departments of corrections to develop rules governing First, the fact that RSA 651:2, V(e) requires the department of corrections

electronic bracelet program does not address the overall issue.” We disagree. assert that there can be no home confinement because [the HOC has] no rule s for home confinement [under RSA p. 6 651:2, V(e)]. Therefore, to simply because “it is clear that each county department of corrections must establish The defendant contends that RSA 651:2, V(e) conflicts with RSA 651:19

county department of corrections, with an electronic monitoring device. may be supplemented, as determined by the depa rtment of corrections or the p. 7 7

NADEAU, DALIANIS and DUGGAN, JJ., concurred.

decline to address it further. was not properly before this court. As such, he has waived the issue and we At oral argument, the defendant stated that his equ al protection claim

lack legal authority to order lesser term of imprisonment). minimum sentence under RSA 262:23 is one year imprisonment and courts Hampshire (State v. Langille), 139 N.H. p. 7 705, 707 - 08 (1995) (mandatory imprisonment in a county correctional facility. See Petition of the State of Ne w mandatory minimum sentence under RSA 262:23, which is one year of court lacked authority to sentence the defendant to anything less than the case, does not have a home confinement p rogram under RSA 651:19, the trial RSA 262:23 and RSA 651:19. Therefore, because the HOC, for purposes of this discussed, we assume is a necessary component for home confinement under agree tha t the HOC does not have an electronic bracelet program, which, as court erred in sentencing the defendant to home confinement. The parties Accordingly, for all of the reasons discussed, we conclude that the trial