2003-757, PETITION OF THE STATE OF NH (STATE v. FISCHER)

petition to suspend sentence after May 15, 2003. court denied the petition, but it granted the defendant leave to refile his defendant filed a petition for suspension of his sente nce. On June 4, 2001, the seven years on the witness tampering offense. In February 2001, the first - degree assault offense, and a consecutive sentence of three and one - half to imposed a sentence of se ven and one - half to fifteen years on the attempted witness tampering, see RSA 641:5 (1996). The Superior Court (Mohl, J.) attempted first - degree assault, see RSA 629:1 (1996); RSA 631:1 (1996), and In November 1996, the defendant, David Fischer, was convicted of

651:20, I (199 6). We reverse. to suspend two and one - half years of the defendant’s sentence. See RSA Hampshire (State) seeks review of a decision of the Superior Court (Fauver, J.) DALIANIS, J. In this petition for writ of certiorari, the State of New

David Fischer, by brief, pro se.

general, on the brief), for the State. Kelly A. Ayotte, attorney general (Peter K. Odom, assistant attorney

No. 20 03 - 757 Strafford

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

and cannot be interpreted to bar his petition. we will address is the defendant’s argument that RSA 651: p. 2 20, I, is ambiguous the defendant’s March 26, 2003 petition to suspend sentence. The final issue statutory authority provided by RSA 651:20, I, when it accepted and granted Third, we will address the State’s argument that the trial court exceeded the argument that the State is procedurally barred from contesting his petition. for writ of certiorari is unt imely. Second, we will address the defendant’s We will first address the defendant’s argument that the State’s petition

statutory authority under RSA 651: p. 2 20, I, to suspend the defendant’s sentence. State fi led a petition for writ of certiorari arguing that the trial court lacked order, which was denied on October 20, 2003. On November 19, 2003, the September 17, 2003, the State filed a motion for reconsideration of the court’s however, the notice was not signed or dated by the clerk of the court. On the order to the State in the form of a “Notice of Ame ndment to Sentence”; one - half years of the defendant’s witness tampering sentence. The court sent On September 3, 2003, the court issued an order suspending two and

defendant did not file a memorandum. offered the defendant ten days to file a memorandum on the issue. The had not been prejudiced in any way. As to the second objection, the court failure.” The court allowed the hearing to continue, noting that the defendant could have been the court’s fi ling; it could have been the county attorney’s . . . was certainly not an intentional matter by the county attorney’s office; it “find that the fact that [the State’s written objection] did not enter into the file As to the defe ndant’s first objection, the court concluded that it would

written objection. raise the issue of the court’s statutory authority under RSA 651: p. 2 20, I, in its 2003 petition to suspend sentence. Second, he objected to the State’s failure to First, he argued that the State had not filed a timely objection to his March 26, I, to hear the defendant’s petition. The defendant objected on two grounds. for the first time, that the court lacked statutory authority under RSA 651:20, On July 23, 2003, the court held a hearing, at which the State argued,

hearing that neither he nor the defendant ever received a copy of the objection. been sent to the defendant’s counsel, though defense counsel stated at the response had not been filed earlier. The objection did specify that a copy had the defendant’s petition. The objection contained no explanation why a June p. 2 25, 200 p. 3 3, the court received the State’s objection, dated April 4, 2003, to and noting that the State had failed to respond to the defendant’s petition. On sentence. On June 18, 2003, the court issued an order scheduling a hearing On March 26, 2003, the defendant filed a second petition to suspend 3

date of September 4, 200 p. 3 3. department of corrections, however, did contain the clerk’s signature and the contained the date of the order, September 3, 2003. The notice sent to the the clerk nor the date upon which th e notice was issued. Instead, it merely September 8, 2003. The notice, however, contained neither the signature of case, the State received a copy of the “Notice of Amendment to Sentence” on the Clerk’s wr itten notice of the order or decision.” (Emphasis added.) In this motion for reconsideration . . . shall be filed within ten (10) days of the date of the running of the appeal period. Superior Court Rule 59 - A provides that “[a] 17, 2003, post - trial motion for reconsideration was timely filed and should stay the court’s September 3, 2003 decision, the State argues that its September In this case, though the State did not file its appeal within thirty days of

motion shall stay the running of the appeal period.” thirty days of a “decision on the merits,” except that “[a] timely filed post - trial Supreme Court Rule 7(1) provides that a notice of appeal shall be filed within 606:10. Cf. Dukette, 145 N.H. at 228 (applying Rule 7 to RSA 606:10 appeals). Court Rule 7, wh ich provides time limits applicable to appeals under RSA certiorari in this case. As such, this petition should be governed by Supreme RSA 606:10 appeals are substantially analogous to the petition for writ of

appeals under Supreme Court Rules 7 - 9.” Id. are subject to the same timeliness requ irements that govern all supreme court to RSA 606:10 appeals, . . . appeals filed by the State pursuant to RSA 606:10 policy behind time limits for appeals filed under our rules would similarly apply appeals generally.” St ate v. Dukette, 145 N.H. 226, 228 (2000). “Because the for the filing of appeals by the State, they provide time limits for the filing of we have stated: “Although the Supreme Court Rules do not specify a time limit State, do es not contain a filing deadline. With respect to RSA 606:10 appeals, Like Supreme Court Rule 11, RSA 606:10, which governs appeals by the

v. Silver Bro’s, Inc., 122 N.H. 10 p. 3 35, 1037 (1982). substantially analogous statute or situation. Chauffeurs Local Union No. 633 writ of certiorari should be determined by the appeal period set out in a period of time. We have ruled that the reasonable period for filing a petition for for writ of certiorari when such petitions were filed after an unreasonable a filing deadli ne. We have exercised our discretion in the past to bar petitions governed by Supreme Court Rule 11. Supreme Court Rule 11 does not contain Petitions requesting this court to exercise its original jurisdiction are

exercise its original jurisdiction. See RSA p. 4 490:4 (1997). provide the State with any recourse. Thus, the St ate petitioned this court to by RSA 606:10 (2001). In the present case, however, RSA 606:10 does not not timely filed. Appeals by the State in criminal cases are normally governed The defendant argues that the State’s petition for writ of certiorari was 4

reconsideration from that order. The defendant relies upon language in the refile his petition after May 15, 2003, or at least should have filed a motion f or trial court’s June 2001 order, in which the court granted the defendant leave to Secondly, the defendant argues that the State should have appealed the

demonstrated that the court committe d reversible error. prejudice from the trial court’s rulings. Therefore, the defendant has not 179 (1996). Here the defendant has not argued that he has suffered any unrea sonable to the prejudice of his case. Rodriguez v. Webb, 1 p. 4 41 N.H. 177, demonstrate that the trial court’s rulings were clearly untenable or In order for the defendant to prevail on these arguments, he must

him or his counsel. defendant also argues that the State failed to send a copy of its objection to objection did not argue that the court’s order violated RSA 651:20, I. The State did not file an objection until June 25, 2003, and because that written erred by allowing the State to contest his March 2, 2003 petition because the contesting his petition on two grounds. Fir st, he contends that the trial court Next, the defendant argues that the State is procedurally barred from

limits for the filing of its petition. court, we hold that the State has demonstrated good cause to suspend the time reconsideration, which was caused by confusion create d by an error of the document are not favored[,]” given the State’s short delay in filing its motion for time to file an appeal document and motions for late entry of an appeal 2003 version of Supreme Court Ru le 21(6), then in effect, “[m]otions to extend contact the court to clarify the date that it should use, and although under the good cause shown. Although it may have been advisable for the State to Court Rule 1 provides that we may suspend the requirements of our rules for whether the State’s motion for reconsideration was timely, because Supreme We need not determine which date to use for the purpose of calculating

would have stayed the running of the appeal period. analysis, its September 17, 20 03 post - trial motion would have been timely, and notice of the order that it received did not have a date. Using the State’s from which it had ten days to file its motion for reconsideration, because the argues that the date that it received the notice, September 8, 2003, is the date appeal period would not have been stayed. The State, on the other hand, that the State’s petition for writ of certiorari would then be untimely, as the than ten days after either September 3 or September p. 4 4. The defendant argues for reconsideration would have been untimely, as September 17, 2003, is more clerk’s written notice of the order. Under such an analysis the State’s motion September 3, 2003, or, in the alternative, September 4, 2003, as the date of the The defendant argues that we s hould use the date of the order, p. 5 5

ordinary meaning. Saviano v. Director, N.H. Div. of Motor Vehicles, 1 p. 5 51 N.H. itself and, if possible, construe that language according to its plain and whole. In interpreting a statute, we first look to the language of the statute intent of the legislature as expressed in the words of a statute considered as a In matters of statutory interpreta tion, we are the final arbiter of the

suspend his sentence. defendant argues that the trial court properly exercised its broad discretion to trial court exceeded its statutory authority under RSA 6 p. 5 51:20, I. The Turning to the merits, we now consider the State’s argument that the

file its objection and later appeal when the court granted him relief. such, the State appropriately waited until the defendant refiled his petition to hardship until the defendant refiled his petition and the court accepted it. As and, if he did, what action the court would take. The State suffered no speculative, as it was uncertain whether the defendant would refile his petition time, the impact of the court’s grant of prospective relief was merely immediate hardship at the time the court issued its June 2001 order. At that fails to meet the second part of the analysis because the State faced no Even assuming the issue before us meets the first part of the analysis, it

Labor atories v. Gardener, 387 U.S. 136, 1 p. 5 52 (1967)). Alascom, Inc. v. F.C.C., 727 F.2d 1212, 1217 (D.C. Cir. 1984) (quoting Abbott

render the issue appropriate for judicial review at this stage.” impact on the parties “sufficiently direct and immediate as to the ripeness test req uires that the contested action impose an . . . action presenting a purely legal question. The second prong of A case may lack ripeness, however, even when it involves a final

Schaible, 874 F.2d 624, 627 (9th Cir. 1989). and the challenged a ction is final.” Standard Alaska Production Co. v. issues raised are primarily legal, do not require further factual development, part of the analysis, fitness for judicial review, “[a] claim is fit for decision if the State Empl oyees’ Assoc., 142 N.H. 874, 878 (1998). With respect to the first hardship to the parties if the court declines to consider the issue. Appeal of that evaluates the fitness of the issue for judicial determination and the that we find persuasive the two - pronged analysis used by other jurisdictions Though we have not adopted a formal test for ripeness, w e have stated

judicial review until the defendant actually refiled his petition. the defendant and the trial court because the issue at hand was not ripe for June 2001 order nor filed a motion for reconsideration. We disagree with both procedural objections were untimely because the State neither appealed the trial court’s October 20, 2003 order in which it concluded that the State’s p. 6 6

time of sentencing or within 180 days after the imposition of the sentence. otherw ise at the time of sentencing, it had to exercise its power either at the exercise that power. Under the second version, unless the court ordered the second version the legislature limited the time during which the court may trial court continued to possess the power to suspend a sentence; however, in . . . .” RSA p. 6 651:20 (Supp. 1979) (emphasis added). As in the first version, the of the sentence, unless otherwise ordered by the court at the time of sentencing suspended, at the time of sentence or no later than 180 days after imposition provision of law, the sentence to imprisonment of any person may be The second version of RSA 651:20 provided, “Notwithstanding any other

suspend the defendant’s sentence and could exercise that power at any time. (Supp. 1972) (emphasis added). Under this version, the court had the power to sentence or at any time while any part remains unserved. . . .” RSA p. 6 651:20 sentence to imprisonment of any person may be suspended, at the time of RSA 651:20 provided, “Notwithstanding any other provision of law, the successive version of RSA 651:20 with its predeces sors. The earliest version of and easy to interpret; this is even more evident when we contrast each relevant to the issue in this case. The current version of RSA 651:20 is plain RSA 651:20 has been amended many times, with four versions being

Callaghan, 125 N.H. 449, 451 - 52 (1984). requirements of due process and with other constitutional constraints. State v. provided that the sentencing process as a whole complies with the circumscribe the c ourt’s power to suspend to a greater or lesser degree, suspend sentence, or grant probation. Id. Nonetheless, the legislature may these parameters, the judge has broad discretion to assign different sentences, constitutional objectives of punishment, rehabilitation and deterrence – within vested in the trial court the power to adapt sentencing to best meet the makers. State v. Kierstead, 141 N.H. 803, 804 (1997). The legislature has span several years in a given case and involve a number of different decision but about a process that involves a number of in terrelated decisions that may Sentencing is not about one decision made at a single time and place,

extended this time for consideration of the motion ruled on in June, 2001.” petition after Ma y 15, 2003. Thus, the court concluded that it “in effect sentence, the court did so with the qualification that he could bring a new because, when the court denied the defendant’s first petition to suspend suspend sentence prior to the expiration of the three - year waiting period The trial court stated that it could accept the defendan t’s petition to

Id. at 318 - 19. 315, 318 (2004). We review the trial court’s interpretation of a statute de novo. p. 7 7

a defendant’s sentence only at the time of the imposition of the sentence or in during which the court may exercise that power by allowing a court to suspend power to suspend a sentence; however, the legislature has limited the time As in the third version of RSA 651:20, the court continues to have the

RSA 651:20, I (emphasis added).

above shall be dismissed without a hearing. (d) Petitions filed which do not meet the criteria in (a), (b), or (c)

. . . .

not more frequently than every 3 years thereafter. 4 years or 2/3 of his mi nimum sentence, whichever is greater, and petition to suspend sentence until such person has served at least (a) Any person sentenced to state prison shall not bring a

(a), (b), and (c). accordance with the limitations set forth below in subparagraphs to a petition to suspend sentence which is tim ely brought in of imposition of the sentence or at any time thereafter in response any person may be suspended by the sentencing court at the time in subparagraphs (a), (b), and (c), the sentence to imprisonment of Notwithstanding any other provision of law, except as provided

Finally, the present version of RSA 651:20 provides, in pertinent part:

once every two years. defendant could petition the court for suspension by allowing a petition only versions of the statute, the third version restricte d the times at which a sentence remained unserved. Second, and different from the previous two once again exercise its power at any time while a portion of the defendant’s could exercise its power rev erted back to the first version. Thus, a court could third version. First, the language regarding the time during which the court RSA 651:20 (Supp. 1992). There are two important changes evident in the

years thereafter. comme ncement of said sentence nor more frequently than every 2 suspend sentence may not be brought less than 2 years after while any part of the sentence remains unserved, but a petition to sentence unless otherwise ordered by the court, or at any time imprisonment of any person may be suspended, at the time of Notwithstanding any other provisions of law, the sentence to

The third version of RSA 651:20 provided: p. 8 8

s entence rather than each individual sentence. His cumulative sentence in The defendant contends that “sentence” should refer to the cumulative

individual sentence or the cumulative sentence. not clearly defined, and thus one cannot tell whether it refers to each cannot be interpreted to bar his petition. He argues that the word “sentence” is Finally, the defendant argues that RSA 651:20, I(a) is ambiguous and

programs. demonstrating good behavior and completing treatment and/or education conditioned upon the occurrence of future events, such as the defendant a court might issue an order in which it acts to suspend a defendant’s sentence still possess procedurally correct options to accomplish its goal. For example, waiting three years for the defendant to refile a petition would be unjust, may deserves an unconditional sentence suspension, but which believes that suspending a defendant’s sentence, which does not believe that the defendant opposed to merely having been channeled. A court that is considering has necess arily been diminished by the current version of RSA 651:20, as This is not to say, however, that a court’s power to suspend a sentence

failed to dismiss the defendant’s petition. petition. Therefore, we hold that the court erred as a matter of law when it defendant leave to refile his petition less than three years after the previous N.H. 11, 13 (2001). Thus, the trial court had no discretion to grant the three - year waiting period is a mandatory requirement. Carter v. Lachance, 146 without a hearing. The legislature’s use of the word “shall” indicates that the petition, and that persons who do so shall have their petition dismissed suspend sentence more frequently than every three years after their first as expressed in RSA 651:20, I(a), (d), that persons shall not bring a petition to its power in response to an impermissibly filed petition. The statute mandates, In the present case, the court acted outside of its authority by exercising

version of RSA 651:20. thereafter, as compared to the two - year limit that was established in the third sentence, whichever is greater, and not more frequently than every t hree years from filing a petition until he has served either four years or two - thirds of his which a defendant can petition the court for suspension by prohibiting him The present version of the statute also further restricts the times at

petition. power to suspend a sentence unless that power is triggered by a properly filed suspend a sentence at the time of its imposition, the court may not exercise its at any time, under the present version of the statute, unless the court acts to and third versions of RSA 651:20, which allowed a court to exercise its power response to a petition that has been properly filed. Therefore, unlike the first p. 9 9

and from which no appe al was taken. It was not until the hearing on July 23, conformance with the court order – an order to which no objection was made by the court until three months after the defendant filed his petition in petition filed by the defendant. In fact, the State’s objection was not received relief, and then attempted to raise that issue two years later by objecting to t he imposed upon the court. The State failed to object to the court’s order granting defendant. The second, against granting relief from the filing restrictions, is filing petitions more often than every three years, is impo sed upon the RSA 651:20 focuses upon two separate mandates. The first, against

petition allowed by an existing court order. contrary to an unchallenged statute but does err by refusing to dismiss a puzzles me is the concept that a judge does not err by issuing an order pursuant to the court order. The logic of that conclusion escapes me. What the judge did not err until he failed to dismiss the petition the defendant filed when he exercised that discretion in June 2001. Yet the majority concludes years after the previous petition.” If they are correct, then the judge erred discretion to grant the defendant leave to refile his petition less than three The majori ty holds that under RSA 651:20, the trial court “had no

appealed the court’s June 2001 order nor filed a motion for its reconsideration. procedural objections should be rejected as untimely because the State neither NADEAU, J., dissenting. I agree with the trial judge that the State’s

DUGGAN and GALWAY, JJ., concurred; NADEAU, J., dissented.

discussion. Vogel v. Vogel, 137 N.H. 321, 322 (1 p. 9 993). find that these arguments are without merit and warrant no further Altho ugh the defendant raises several other arguments on appeal, we

after his initial petition. petition. Therefore, the defendant could not refile a petition until three years that “sentence” referred to each individual sentence when he filed his initial degree assault. Thus, the defendant established the time frame by assuming sentence after he had served five years of his sentence for attempted first defendant overlooks the fact that he had already filed a petition to suspend defendant’s interpretation, that filing would have been premature. Second, the petition to suspend sentence on March 26, 2003, and, thus, even unde r the not evaluate this argument for two reasons. First, the defendant filed his because at that time he would have served seven and one - third years. We need defendant argues that he could have brough t a petition after July p. 10 10, 2003, cumulative sentence is seven and one - third years. It appears that the this case was eleven to twenty - two years. Two - thirds of the minimum 10

For these reasons, then, respectfully I dissent.

again. analysis I feel constrained to evoke the sage advice of Justice Grimes, once powers is not presented to us or resolved today, in light of t he majority’s Although the issue of whether RSA 651:20 violates the separation of

upon its power whenever the issue is presented to it.” Id. of powers, t he judicial branch of government “must resist all encroachments in part.) He cautioned the court to be mindful that to preserve the separation Dean, 115 N.H. 520, 525 (1975) (Grimes, J., dissenting in part and concurring to suspend a sentence is part of the judiciary’s inherent authority. State v. unconstitutional as a violation of the separation of powers because the a bility infringing upon a court’s power to suspend a defendant’s sentence would be . . . .” Thirty years ago, Justice Grimes expressed the view that any statute dicta, that “the legislature may circumscribe t he court’s power to suspend In addition, I do not concede that the majority is correct when it says, as

to the rule requiring timely objection. State’s conduct seems not only unfair under the facts of this case but contrary be to turn a rule of justice and fairness into a mere trap.” Id. To me, the making objection until there is less probability the wrong can be cured, would alternatives. “For counsel, conscious of error, to be permitted to sit by without other options, but also prevented the defen dant from requesting other timely, the State not only deprived the judge of the opportunity to consider without granting relief from the statutory time limit. Yet by failing to object out that the judg e had other options to accomplish the result he wanted Co. v. Deveraux, 149 N.H. 454, 459 (2003). The majority takes pains to point the supreme court, or consider alternatives. See, e.g. Transmedia Restaurant trial judge the opportunity to correct a claimed mistake, or transfer the issue to The reason for requiring timely objection to court orders is to allow the

RSA 651:20 to hear the defendant’s petition. 2003, that the State even argued that the court did not have authority under