2005-589, STEPHEN DEBONIS v. WARDEN, NH STATE PRISON

The petitioner, Stephen Debonis, appeals a decision of the

general, on the brief and orally), for the State. Kelly A. Ayotte, attorney general (Stephen G. LaBonte, assistant attorney

the petitioner. and David M. Rothstein, deputy chief appellate defender, of Concord, orally, for Errors may be reported by E-mail at the following address: Andrew Winters, assistant appellate defender, of Concord, on the brief,

WARDEN, NEW HAMPSHIRE STATE PRISON

page is: http://www.courts.state.nh.us/supreme. v.

errors in order that corrections may be made before the opinion goes to press. No. 2005-589 Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Merrimack Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as make the requisite showing of prejudice. This appeal followed.

p. 2 prove he was actually prejudiced by the delay; and (3) the petitioner failed to constituted a procedural irregularity and, therefore, required the petitioner to hearing forty-nine days after the last scheduled hearing; (2) the violation

that: (1) the parole board violated RSA 651-A:17 by conducting the revocation

hearing. hearing was held on June 7, 2005, forty-nine days after the last scheduled

procedural irregularity, requiring him to show actual prejudice.

by any procedural irregularity.” In reaching its decision, the trial court found 2 petitioner failed to sustain his burden of showing that he has been prejudiced constitutional rights. The trial court denied the petition, ruling that “the

interpretation of a statute is a question of law, which we review nor objected. The parole board granted the State’s request, and the revocation

the parole board’s failure to comply with the statutory time limit constituted a

also after any continuance of a scheduled hearing.

days of the State’s request for a continuance violated RSA 651-A:17 and his Woodview Dev. Corp. v. Town of Pelham, 152 N.H. 114, 116 (2005). In matters

Resolution of this appeal requires us to interpret RSA 651-A:17. The unavailability of one of its witnesses, to which the petitioner neither assented 2005. Then, on April 18, 2005, the State requested a continuance, due to the hearing within forty-five days, and the hearing was rescheduled for April 19, petitioner asserts, therefore, that the trial court erred when it concluded that timely revocation hearing deprived the parole board of jurisdiction. The substantive right that should be strictly applied and that the failure to hold a

The petitioner argues that this time limit applies not only after the arrest, but to a revocation hearing within forty-five days after arrest for a parole violation. the parole board’s failure to conduct his revocation hearing within forty-five The parties do not dispute that RSA 651-A:17 grants a parolee the right

petitioner requested a third continuance, again waiving his statutory right to a

The petitioner then filed a petition for writ of habeas corpus, arguing that

petitioner to the New Hampshire State Prison. the motion, found that all alleged violations were true, and remanded the See RSA 651-A:17; N.H. Admin. Rules, Par 208.01. The parole board denied the hearing was rescheduled for March 15, 2005. On March 9, 2005, the mandatory statutory time limit and the applicable departmental regulations. again expressly waived his right to a hearing within the statutory time period; parole violations, arguing that the parole board failed to comply with the On December 29, 2004, the petitioner requested another continuance and Prior to the start of the hearing, the petitioner moved to dismiss the

granted the continuance and the hearing was rescheduled for January 4, 2005. five days of his arrest. The New Hampshire Adult Parole Board (parole board) the hearing forty-nine days after the final continuance. p. 3 Accordingly, no statutory violation occurred when the parole board conducted

statutory right on December 6, 2004.

cause and also provides that “[u]nless agreed to by the parolee or his attorney,

had no statutory right to have his hearing held within any specific time period.

waives that right by causing a delay or requesting a continuance). within forty-five days of his arrest. The petitioner expressly waived this adjudicatory hearing within the prescribed time limits unless the juvenile

board the authority to grant a continuance of a revocation hearing for good request. See N.H. Admin. Rules, Par 208.01. Rule 208.01(b) gives the parole nine days after the April 19, 2005 hearing that was continued at the State’s a hearing within the requisite statutory time period, the petitioner thereafter own administrative procedures when it conducted his revocation hearing forty- The petitioner also argues that the parole board failed to comply with its parolee the right to a revocation hearing within forty-five days

2004. RSA 651-A:17 granted him a statutory right to a revocation hearing 169-D:13, II (Supp. 1979) as granting juveniles a statutory right to an revocation hearing. 120 N.H. 260, 268 (1980) (interpreting RSA 169-B:14, II (Supp. 1979) and RSA

abandonment or relinquishment of a known right”). Having waived his right to Co., 97 N.H. 180, 181-82 (1951) (waiver is “the voluntary or intentional of the statute and clearly references the parolee’s arrest. As such, it grants a See A.W. Therrien Co. v. Maryland Cas.

Here, the petitioner was arrested for violating his parole on November 2, parolee shall have the right to appear and be heard at the petitioner’s invitation to construe RSA 651-A:17 in such a way. not see fit to include.” Yates, 152 N.H. at 255. Thus, we decline the neither consider what the legislature might have said nor add words that it did recurring each time a scheduled revocation hearing is continued. “We will arrest. The statute, however, makes no reference to a forty-five-day time period

(Emphasis added). The language “within 45 days” appears in the first phrase

preliminary hearing which is required under RSA 504-A:6. The hearing before the board within 45 days, in addition to any Any parolee arrested under RSA 651-A:15-a shall be entitled to a

RSA 651-A:17 provides, in pertinent part:

their terms and to promote justice. Id. (2005). We construe Criminal Code provisions according to the fair import of unambiguous, we need not look beyond it. State v. Grimes, 152 N.H. 310, 312 152 N.H. 245, 255 (2005). When the language of a statute is plain and expressed in the words of the statute considered as a whole. State v. Yates, of statutory interpretation, we are the final arbiter of legislative intent as corpus. p. 4 the trial court did not err in denying the petitioner’s petition for writ of habeas

hearing did not violate his constitutional due process rights, we conclude that

violate RSA 651-A:17 and any delay in conducting the petitioner’s revocation revocation hearing. Therefore, having concluded that the parole board did not that he was actually prejudiced by the parole board’s delay in conducting his

prejudice to his case. On appeal, the petitioner concedes that he cannot show

because the petitioner failed to plead or prove that the delay resulted in any

unreasonable delay between his arrest and parole revocation hearing.

the continuance of the petitioner’s April 19, 2005 hearing. BRODERICK, C.J., and DALIANIS, DUGGAN and HICKS, JJ., concurred. hearing within the statutory time period, it did not apply to the period following revocation hearing did not violate his constitutional right to due process following the parolee’s arrest, and because the petitioner waived his right to a Affirmed. rights. procedural irregularity rather than a violation of the petitioner’s substantive court erred when it concluded that the forty-nine-day delay constituted a that the delay resulted in actual prejudice to the conduct of his or her defense.”

deprivations of his conditional liberty interest, including protections against an hearing, he is still afforded due process protections against unreasonable revocation hearing within forty-five days of the April 19, 2005 scheduled

The trial court found that the delay between the petitioner’s arrest and Because that statutory time limit applies only to the period immediately State v. Leavitt, 136 N.H. 475, 476 (1992) (quotation and citation omitted).

violate RSA 651-A:17, we do not reach the petitioner’s assertion that the trial violation under the Federal and State Constitutions, the [parolee] must show Stapleford v. Perrin, 122 N.H. 1083, 1088 (1982). “To establish a due process

Nevertheless, while the petitioner did not have a statutory right to a

provision specifically references the time limit created by RSA 651-A:17. assented-to continuance granted at the State’s request. We disagree. This parole board to conduct a revocation hearing within forty-five days of any unwas held on June 7, 2005. Because we conclude that the parole board did not within forty-five days of his arrest was not violated when his revocation hearing Accordingly, we conclude the petitioner’s statutory right to a hearing

specified in RSA 651-A:17.” The petitioner contends this provision requires the the postponement shall not exceed the 45-day limit for a revocation hearing