2004-831, STATE OF NH v. PHILIP HORNER

The defendant, Philip Horner, appeals an order of the

Michael J. Sheehan, of Concord, by brief and orally, for the defendant.

general, on the brief and orally), for the State. Errors may be reported by E-mail at the following address: Kelly A. Ayotte, attorney general (Katherine Cooper, assistant attorney

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. 2004-831 Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Strafford 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 p. 2 (a), (b), and (c).

at that time if you so request. denied the defendant’s motion. greater, and not more frequently than every 3 years thereafter. statutory authority to suspend the sentence as it originally suggested it could,” provides in pertinent part: by the sentencing court. The trial court, noting that it “[did] not have the

accordance with the limitations set forth below in subparagraphs 2 to a petition to suspend sentence which is timely brought in of imposition of the sentence or at any time thereafter in response

to make it clear on the record that I will at least give you a hearing least 4 years or 2/3 of his minimum sentence, whichever is

entitled to the relief requested in light of RSA 651:20 (Supp. 2005), which four years, was not entitled to sentence suspension, despite the language used

above shall be dismissed without a hearing.

any person may be suspended by the sentencing court at the time

be suspended. And I want – though that is part of the law, I want to this Court whether any portion of your minimum sentence may petition to suspend sentence until such person has served at Court after serving four years of your minimum, and demonstrate Offender Program. The State objected, arguing that the defendant was not The State argued that the defendant, having received a sentence of less than defendant filed a Motion to Suspend Time for Successful Completion of Sexual Approximately four years after sentencing, on September 29, 2004, the (d) Petitions filed which do not meet the criteria in (a), (b), or (c)

. . . . in subparagraphs (a), (b), and (c), the sentence to imprisonment of

(a) Any person sentenced to state prison shall not bring a sexual offender program. The law also permits you to petition this

sentence and was paroled to his second sentence in October 2003.

I. Notwithstanding any other provision of law, except as provided

you to petition for sentence suspension upon completion of the

The defendant served the minimum three-and-one-half years on his first

And, Mr. Horner, as an additional incentive, I have already allowed

At the sentencing hearing, the trial court explained: may be suspended upon successful completion of sexual offender [program].” p. 3 651:20, I(a) do not apply.

that the trial court retained jurisdiction and the time limitations in RSA successful completion of the sexual offender program. Accordingly, he argues conditionally suspended two-and-one-half years of his third sentence upon

waiting [the full time period required by RSA 651:20, I(a)] for the

that, in this case, at the time of imposition of the sentence, the trial court

unconditional sentence suspension, but which believes that

sentence “at the time of imposition of the sentence.” The defendant argues

which does not believe that the defendant deserves an

statute considered as a whole. language in RSA 651:20, I, that authorizes the trial court to suspend a limitations provided in RSA 651:20, I(a). The defendant relies in part upon the subsequent motion to suspend that sentence irrespective of the time waived by the trial court.

A court that is considering suspending a defendant’s sentence,

final arbiter of the intent of the legislature as expressed in the words of a that, despite the time limitations in RSA 651:20, I(a):

his third sentence at the time of sentencing, and thus was required to hear his The time limitations in RSA 651:20, I(a) are mandatory and cannot be

address each argument in turn.

violated the doctrine against judicial the time limits in RSA 651:20, I(a). Third, he argues that the trial court interpretation of RSA 651:20. In matters of statutory interpretation, we are the

The defendant first argues that the trial court conditionally suspended

his detrimental reliance on the trial court’s comments at sentencing. We 19 (2004). the original sentence was illegal, he is entitled to have it enforced by virtue of de novo. Saviano v. Director, N.H. Div. of Motor Vehicles, 151 N.H. 315, 318because it did not object at the time of sentencing. Fifth, he argues that even if and ordinary meaning. Id. We review a trial court’s interpretation of a statute the statute itself and, if possible, construe that language according to its plain N.H. 205, 211 (2005). In interpreting a statute, we first look to the language of

his consecutive sentences should be considered in the aggregate in applying The defendant’s first and second arguments challenge the trial court’s

argues that the State is estopped from challenging the legality of his sentence RSA 651:20 to deny him a hearing, and thus violated due process. Fourth, he

hear his subsequent motion to suspend his sentence. Second, he argues that thus, after the defendant had served four years, the trial court was required to court conditionally suspended his third sentence and retained jurisdiction; The defendant raises five issues on appeal. First, he argues that the trial sentence, whichever is greater. p. 4 after serving at least four years or two-thirds of the minimum term of that consecutive sentences to bring a petition to suspend an individual sentence

seven years. suspended sentence after he has served two-thirds of ten and one-half years, or

conclude, therefore, that RSA 651:20, I(a) permits an inmate serving multiple,

argues that RSA 651:20, I(a) authorizes him to petition the court for a

sentence shall be served in the state prison.” (Emphasis added.)). We

three times three-and-one-half years, or ten-and-one-half years. Therefore, he consecutive sentence. He contends that his minimum sentence is, accordingly, should be calculated by aggregating the minimum sentences for each can petition for suspension of that sentence. We agree.

offense is to be imprisonment for a maximum of more than one year, the (Emphasis added.)); see also RSA 651:15 (1996) (“Whenever the sentence for an (“The provisions of this chapter govern the sentencing for every offense. . . .” opportunity to seek suspension of the sentence court in relation to a conviction on a single offense. See RSA 651:1, I (1996) should suspend two-and-one-half years from his minimum sentence. This “sentence” plainly and unambiguously denotes the punishment prescribed by a successfully completed the sexual offender program, and argue that the court Reviewing RSA chapter 651 as a whole, we are confident that the word

to consecutive sentences, the “minimum sentence” under RSA 651:20, I(a) minimum of each of his minimum sentences, whichever is greater, before he accordingly, the defendant must serve at least four years or two-thirds of the arguing that each minimum sentence must be considered separately, and that, completing treatment and/or education programs. The State disputes the defendant’s interpretation of RSA 651:20, I(a), the trial court at the time of the imposition of the sentence.

created the opportunity for the defendant to return to court, prove that he had

The defendant next argues that where, as here, a defendant is sentenced

reject the defendant’s first argument. events, such as the defendant demonstrating good behavior and a defendant’s sentence conditioned upon the occurrence of future See id. We thus the mandatory time limitations in RSA 651:20, I(a), which cannot be waived by example, a court might issue an order in which it acts to suspend

conditioned upon the occurrence of a future event. Rather, the court at most Id. However, the trial court here did not suspend the defendant’s sentence

possess procedurally correct options to accomplish its goal. For defendant to [file or] refile a petition would be unjust, may still prisoners. We find this hypothesis unpersuasive.

p. 5 such a result, RSA 651:20, I(a) may be seen to work an unfair result on

651:20 will bring about the inequitable treatment of two similarly situated suspend that sentence a mere six months later.

aggregate minimum of his four sentences would, potentially, effect a

less severe offenses from ever doing the same. We recognize that, in yielding

suspension.” Thus, the defendant suggests, the State’s interpretation of RSA minimum of a single sentence, he may, pursuant to RSA 651:20, I(a), seek to term, while the prisoner serving multiple sentences “may never seek prisoner is not granted parole after serving the three-and-one-half year 651:20, I(a) seek to suspend the sentence twice before serving the minimum the second prisoner to seek suspension after serving two-thirds of the granted parole upon serving the minimum term of each sentence. If the 5 sentences for four separate convictions. Interpreting RSA 651:20, I(a) to permit only one sentence, whereas the second prisoner is serving four consecutive

suspension while prohibiting some Class B felons serving shorter sentences for

with the single fourteen to twenty-eight year sentence may, pursuant to RSA seek suspension.” This is true only if such a prisoner is fortunate enough to be

said that such prisoners are similarly situated. The first prisoner is serving

RSA 651:20, I(a) permits Class A felons to petition for sentence

overall length of the sentences imposed.” He further observes that the prisoner multiple, consecutive three-and-one-half to seven year sentences “may never that, in the case of each prisoner, there is “no meaningful difference in the interpretation of RSA 651:20, I(a) when he asserts that a prisoner serving three-and-one-half to seven year sentences. The defendant correctly points out sentences imposed upon the defendant’s hypothetical prisoners, it cannot be The defendant, moreover, mischaracterizes the effect of the State’s

N.H.H.R. Jour. 461 (1994), intended such a generous result. I(a) in 1994 with the primary intent of “reduc[ing] trauma to crime victims,” sentence. We do not believe that the legislature, which amended RSA 651:20, pardon from a portion of the third sentence and the entirety of the fourth

fourteen to twenty-eight year sentence, the other serving four consecutive Though there is “no meaningful difference in the overall length” of the

prejudice, he hypothesizes the situations of two prisoners, one serving a single unfairly prejudices inmates such as himself. To illustrate this alleged The defendant asserts that the State’s interpretation of RSA 651:20, I(a)

before becoming eligible to suspend the remainder of that sentence. 651:20, I(a), the defendant must serve at least four years of a single sentence sentence is approximately two years and five months. Accordingly, under RSA In the instant case, two-thirds of the minimum of each individual not unconstitutional and did not violate the doctrine against judicial

p. 6 abolished in other jurisdictions). Thus, the trial court’s reinterpretation was

court here would reverse its earlier interpretation of the statute.

to address it further,

defense did not exist as part of the statutory criminal code and had been untimely under RSA 651:20, and thus the doctrine against judicial

State Constitution. mandatory language of RSA 651:20, it was not unforeseeable that the trial does the State Constitution under these circumstances.

subject of appellate review until our opinion in rejected a similar argument made by the defendant in Fischer, 152 N.H. at 210.

However, the defendant cites no authority for this argument, and so we decline the legality of the sentence to which it did not object at the time of sentencing.” and refusal to apply it in the case at hand was not unconstitutional, as the widespread practice of allowing motions to suspend even when technically The defendant next argues that “[t]he state is estopped from challenging

we reach the same result under the Federal Constitution as we do under the this case. Given that this purported practice directly contravenes the See id. Accordingly, The Federal Constitution offers the defendant no greater protection than

does not exist as part of the Criminal Code and that practice was not the facto decisions.

532 U.S. at 462-64 (state court’s abolition of a common law defense to murder defendant alleges that sentencing courts in New Hampshire engage in a

was issued after the trial court rendered its most recent sentencing decision in appears narrow and precise on its face.” Fischer, 152 N.H. at 213, which unforeseeable and retroactive judicial expansion of statutory language that four years. However, even if we accept that allegation as true, that practice facto decisions prohibits the trial court from denying him a hearing after only

address the defendant’s claim under the State Constitution and cite federal language [and had] not the slightest support in prior [state] decisions”). The of RSA 651:20 violated the doctrine against judicial unconstitutional because it was “clearly at variance with the statutory court application of criminal trespass statute to sit-in demonstrators was 457 (2001); see Bouie v. City of Columbia, 378 U.S. 347, 356 (1964) (state

deprivation of the due process right to fair warning, which can result from “an The doctrine against judicial ex post facto decisions prohibits the

thus violated State and federal constitutional due process protections. We first

The defendant’s third argument is that the trial court’s reinterpretation

as an issue for the legislature. prisoners such as the defendant in the present case. We, however, regard this be considered separately. We construe Criminal Code provisions “according to

statute uses the word “sentence” in the singular, each minimum sentence must

specially.

consecutive sentences. However, the majority concludes that because the I(a) should be calculated by aggregating the minimum sentences for each of his The defendant argues that his “minimum sentence” under RSA 651:20, not only permitted to amend its error, it was required to do so. RSA 651:20, I(a) (Supp. 2005), but concur with respect to the remaining issues. limitations of RSA 651:20, I(a). As such, we conclude that the trial court was sentence reduction. I therefore disagree with the majority’s interpretation of intend to deprive defendants such as Philip Horner of the opportunity for a DUGGAN, J., concurring specially. In my view, the legislature did not

BRODERICK, C.J., and GALWAY, J., concurred; DUGGAN, J., concurred process. that the sentencing process as a whole complies with the requirements of due Affirmed. by the trial court at the 2000 hearing. The defendant cites expecting a “realistic release date” in 2008, based upon the incentive proposed

sentence suspension at a time that contravened the legislatively mandated time statutory grant of authority by proposing to make the defendant eligible for sentence. originally set.” See id. In the instant case, the trial court acted outside of its cannot be waived by the trial court at the time of the imposition of the at 213. As we note above, the mandatory time limitations of RSA 651:20, I(a) court to act outside of the authority granted to it by RSA 651:20, I(a). See id.

Fischer, 152 N.H. at 211. We have held that it is error for a trial

sentencing, it may also circumscribe the court’s power to suspend, provided Though the legislature has vested in the trial court the power to adapt the court at the time of sentencing. He asserts only that he spent five years its severity, it is required to do so “when the statute so provides.” Id. at 99. not only permitted to alter a statutorily invalid sentence in a way that increases

Id. The Breest court recognized, however, that a trial court is

expectations by postponing his parole eligibility or release date far beyond that alter even an illegal sentence in a way which frustrates a prisoner’s might be fundamentally unfair, and thus violative of due process for a court to the First Circuit suggested, in dicta, that “[a]fter a substantial period of time, it 5 p. 7 79 F.2d 95, 101 (1 Cir. 1978), where the United States Court of Appeals for st Breest v. Helgemoe,

authority supporting his theory that a contract was formed between him and court’s promises of suspended time.” He does not, however, provide any contract he entered with the court by virtue of his detrimental reliance on the Finally, the defendant argues that he is “entitled to the benefit of the differently. p. 8 I do not perceive a legislative purpose to treat similarly situated petitioners

legislative purpose here may have been to curtail motions to reduce sentences,

a portion of his sentence. 651:20, I(a), the trial court did not err in denying his petition for suspension of interpretation, similarly situated petitioners are treated differently. While the

defendant has not yet served seven years, even under my interpretation of RSA thirds of his minimum sentence, or seven years. Under the majority’s one years for a single offense is able to petition the court after serving twothe same time, a defendant serving a sentence of ten and one-half to twenty-

thirds of ten and one-half years, or seven years. However, because the should be able to consider the defendant’s petition after he has served twothe consecutive minimum sentences imposed. Accordingly, the trial court 8 because he never served four years of any one of his consecutive sentences. At

similarly situated defendant able to furnish bail. disparity between his sentence and the actual length of the same sentence for a triple credit. We pointed out that his argument would result in a significant

purposes of RSA 651:20, I(a), his minimum sentence should be the aggregate of but never have the opportunity to petition the court for a sentence suspension third sentence. He may thus serve a total of ten and one-half years in prison, and then released after serving the minimum of three and one-half years of his argument entails.”

confinement on each of his three consecutive sentences, which was, in effect,

I thus conclude that, to calculate this defendant’s minimum sentence for

have no conceivable penological justification.” Id. Thus, we did “not presume

defendant argued at sentencing that he was entitled to credit for pretrial 151 N.H. 508, 510 (2004). In State v. Decker, 127 N.H. 468, 470 (1985), the purpose and avoid an absurd or unjust result.” Franklin v. Town of Newport, “We construe all parts of a statute together to effectuate its overall

his second sentence in October 2003. He may be paroled to his third sentence minimum of three and one-half years of his first sentence and was paroled to half to seven year sentences. However, this defendant has already served the

only petition the court after serving four years of any one of his three and one- Under the majority’s interpretation of the statute, this defendant can

literal interpretation of the statute to these facts does not promote justice. accord State v. Grimes, 152 N.H. 310, 312 (2005). Application of the majority’s the fair import of their terms and to promote justice.” RSA 625:3 (1996);