2005-263, STATE OF NH v. SIDNEY HENDERSON

Following a jury trial, the defendant, Sidney Henderson,

brief and orally, for the defendant. Christopher M. Johnson, chief appellate defender, of Concord, on the

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

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

editorial errors in order that corrections may be made before the opinion goes No. 2005-263 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any 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 been previously convicted of any state or federal offense for which

p. 2 “control.” sentence of not less than 6 years’ imprisonment if such person has

RSA 159:3 therefore authorizes conviction for “ownership,” “possession” or imprisonment for the first offense and a minimum mandatory minimum mandatory sentence of not less than 3 years’ sentence prescribed for the crime. The person shall be given a

firearm” and has been convicted of certain classes of felonies. RSA 159:3, I.

maximum sentence of 20 years’ imprisonment in lieu of any other

argument under our plain error rule.

“[o]wns or has in his possession or under his control, a pistol, revolver or other

deadly weapon is a firearm, such person may be sentenced to a possession, use or attempted use of a deadly weapon, and the lead to a reasonable result and effectuate the legislative purpose of the statute. If a person is convicted of a felony, an element of which is the

RSA 651:2, II-g provides:

to promote justice.

element to permit application of RSA 651:2, II-g. He urges us to consider this sentenced under RSA 651:2, II-g because possession must be established as an he had a weapon either in his possession or under his control, he could not be RSA 159:3 provides that a person is guilty of a class B felony if he

State v. Taylor, 152 N.H. 719, 720 (2005).

proceedings. we construe them so that they do not contradict each other and so that they Id. When asked to interpret two statutes that deal with similar subject matter, so, we look first to the language of the statute to determine legislative intent.

provisions of the Criminal Code according to the fair import of their terms and State of N.H. (State v. Campbell), 152 N.H. 515, 520 (2005). We construe We review the trial court’s interpretation of a statute de novo. Petition of

documents and jury instructions authorized the jury to convict him if it found the particular facts of this case,” there was no plain error. We disagree. reach of the mandatory minimum sentence imposed by RSA 651:2, II-g under that because “there is no settled law that would take this defendant out of the deadly weapon.” RSA 651:2, II-g. State v. MacInnes, 151 N.H. 732, 737 (2005). The State argues seriously affect the fairness, integrity or public reputation of judicial plain; (3) the error must affect substantial rights; and (4) the error must consider the following elements: (1) there must be error; (2) the error must be

On appeal, the defendant first argues that because the charging

g for felony convictions involving “the possession, use or attempted use of a court imposed the minimum mandatory sentence established in RSA 651:2, IIerroneous for the offense charged.

p. 3 rehabilitation and deterrence. contest that the minimum mandatory sentence would apply possession or under his control a firearm.” The State does not appear to

probation. is not subject to harmless error analysis.

sentencing to best meet the constitutional objectives of punishment,

conviction, the State had to prove that the defendant “owned or had in his

construe his argument to be that the instruction given was insufficient to however, restrict the sentencing discretion of the trial judge. See Petition of

Timmons, 145 N.H. at 151. Minimum mandatory sentences,

broad discretion to impose different sentences, suspend sentences or grant defendant contends that the jury instruction was too broad and that this error Under the general sentencing statutes, see RSA ch. 651, the trial court has

The legislature has vested in the trial court the ability to adapt

possession or under his control. The jury was instructed that to obtain a

(2003) (discussion of distinction between structural defect and trial error). We distinguishable from those in See State v. Ayer, 150 N.H. 14, 24 firearms under his control. The State contends that the facts in this case are 159:3, where the indictment alleged only that the defendant had certain a harmless error analysis whether the necessary finding was made. The found that the defendant possessed the gun; rather, it urges us to review under

was not established. In this case, the defendant was charged with having a firearm in his

could not have found control without finding actual possession.”

established in RSA 651:2, II-g did not apply to a conviction obtained under RSA N.H. at 721. In Taylor, we held that the minimum mandatory sentence

We have recently construed RSA 159:3 and held that the terms “under suspended or reduced. minimum sentence imposed under this paragraph shall be attempted use of a firearm. Neither the whole nor any part of the sentence established under RSA 651:2, II-g, because the element of possession or under his control, his conviction is not subject to the minimum mandatory authorized the jury to convict if it found that he had a firearm in his possession The defendant argues that because the indictment and jury instruction

involving the “possession,” “use” or “attempted use” of a deadly weapon. RSA 651:2, II-g imposes a minimum mandatory sentence in certain cases

year, and an element of which was the possession, use or the maximum penalty provided was imprisonment in excess of one continue to adhere to the principle that the rule should be used sparingly. p. 4 statute may be determined without resort to legislative history. Rather, we

an error would not be harmless.

not hold that the plain error rule may be applied whenever interpretation of a

included the element of possession, use or attempted use of a firearm. Such

or readily discernable from the statute. In reaching our decision today, we do

defendant’s conviction included the necessary element was erroneous. mandatory sentence when the trial court could not know whether the use or attempted use of a firearm. Thus, imposition of the minimum precedent. Taylor and this case, we will apply it even in the absence of controlling MacInnes, 152 N.H. at 736-37. Nevertheless, when the error is obvious, as in indictment and instructions.

minimum mandatory sentence to a conviction for a felony which may not have

convicted of stealing from his or her own joint checking account, was not plain answer to the question presented in Emery, whether an individual could be plainly did not encompass the language of the indictment. In contrast, the N.H. 783 (2005), were inconsistent. In Taylor, the language of RSA 651:2, II-g requires that a defendant’s felony conviction include the element of possession, our decisions in State v. Taylor, 152 N.H. 719 (2005), and State v. Emery, 152 For this reason, we disagree with the special concurrence's position that hold that RSA 651:2, II-g is not applicable.

if the language of RSA 651:2, II-g is compared with the language of the possession, use or attempted use of a firearm. been met in this case. First, there is error. Second, the error is plainly evident possession, it committed no error; the error would have been in applying the We further conclude that the four elements of the plain error rule have firearm. If the jury found the element of control but did not consider defendant was actually convicted included the element of possession of a

it found that he

Imposition of the minimum mandatory sentence under RSA 651:2, II-g

convicted the defendant was possession, use or attempted use of a firearm, we

defendant has been convicted of a felony, an element of which is the

cannot know, in light of this jury instruction, whether the offense for which the

owned or possessed or had under his control a firearm. We

In this case, the jury was instructed that it could convict the defendant if

Absent a specific finding by the jury that an element of the felony for which it

The plain language of RSA 651:2, II-g makes clear that it applies when a

where the legislature’s intent was not “unmistakably clear.” Id. previously declined to extend the application of a mandatory sentencing statute State of N.H., 1 p. 5 52 N.H. 185, 191 (2005). Recognizing this constraint, we have 5

court cannot be plain error.

under RSA 637:2, IV.

§ 6 p. 5 52.04[3], at 652-19 (3d ed. 2002); United States v. Gilberg, 75

and I agree with the court’s ruling on this issue. However, although I also Generally, when the law is not clear at the time of trial, and

We stated: she had not raised this issue at trial, we again did a plain error analysis. Id. made clear in his underlying indictment. State v. Emery, 1 p. 5 52 N.H. 783, 786-87 (2005). Because argued that she was privileged to take money from a joint checking account Two weeks later, we decided State v. Emery. In that case, the defendant

plain. Id. at 721. the second prong of the plain error test was met — namely, that the error be comparing the plain language of RSA 6 p. 5 51:2, II-g and the indictment,” and thus Id. at 720-21. We then stated that “this error was plainly evident from subjects a defendant to the penalty enhancement provisions of RSA 651:2, II-g, RSA 651:2, II-g, we determined that the trial court came to the wrong result. under the plain error doctrine. Id. Based upon a plain meaning analysis of (2005). He had not raised this issue at trial, and thus asked that we review it

should not apply to him because the possession/control distinction was not concurred specially. In Taylor, the defendant argued that the enhanced penalty statute

inconsistency in our plain error analysis. action was plain error, I write separately to address what I see as an

be given to the jury to determine whether a felon-in-possession conviction analysis in State v. Taylor necessitates our deciding whether a special verdict therefore vacate the defendant’s sentence and remand for resentencing. BRODERICK, C.J., concurring specially. I agree that our plain meaning

DUGGAN, GALWAY and HICKS, JJ., concurred; BRODERICK, C.J.,

RSA 1 p. 5 59:3. argument that RSA 651:2, II-g does not apply to convictions obtained under Given our conclusion, we need not consider the defendant’s remaining

sentence is serious error routinely corrected on plain error review). We rule have also been satisfied. See Taylor, 1 p. 5 52 N.H. at 721 (imposition of illegal Because the sentence was illegal, the third and fourth elements of the an error.” p. 6 to correct an error it may have made, or clearly explaining why it did not make judicial economy and common sense, affording the trial court the opportunity 6

issue. As the Eighth Circuit has explained: the benefit of our interpretation, nor the arguments of the parties, on any given that trial court rulings will generally not be overturned where they had neither

consideration,” parties make specific, contemporaneous objections “is grounded in both recognize that “it is enough that an error be ‘plain’ at the time of appellate

“obvious.”

our reliance upon settled to the contrary.” It grants the proper level of deference to the trial court by establishing a policy that the trial court’s failure to give an alternative instruction

Berliner v. Clukay, 150 N.H. 80, 82-83 (2003) (quotations omitted).

therefore preserve, all issues before the trial court. The requirement that plain error may have occurred where a statute has a plain meaning. I also Such a system of review properly requires that parties raise, and

occur — namely, whether a statute’s meaning is not merely “plain,” but also

leads to a conclusion that a trial court’s ruling constitutes plain error. Indeed, or should have been ‘obvious’ in the sense that the governing law was clearly inconsistent with the proposition that a plain meaning analysis making unauthorized withdrawals from it. Thus, we cannot say necessarily order to trigger a plain error analysis. However, I believe that Emery is suggest that legal questions must have been the subject of appellate review in

Johnson v. United States, 520 U.S. 461, 468 (1997), and do not

where a statute has a “plain meaning.” I do not dispute the conclusion that Taylor seems to suggest that a trial court’s error will always be “plain”

18).

conclusion that the application of RSA 651:2, II-g by the trial court here “was not be convicted of stealing from the other party to the account by case. However, in light of our decision in addressed whether a party to a joint checking account may or may Emery, I have a concern with our Taylor governing law was clearly settled to the contrary”). We have never. I do not dispute the statutory interpretation in either Taylor or today’s I believe that Emery casts doubt upon the plain error analysis we used in

Id. at 787.

MacInnes, 151 N.H. at 737. sponte on theft from joint checking accounts was plain error. Cf.

the error “was or should have been ‘obvious’ in the sense that the F.3d 15, 18 (1st Cir. 1996) (court may reverse for plain error only if as a matter of law. 7

p. 7 [trial] court departs so far from the text that it is clearly incorrect

plain error. However, had the State argued that

of decisions that would be clearly or obviously wrong under current law.”

result. is possible that the construction of the statute proffered by the test than that which we applied in review, and, for example, in the statutory construction context, it Taylor, I may have reached a different a limit to what the [trial] court can do, even under plain error Emery established a different Accordingly, I join the court’s holding that the sentencing of this defendant was I believe that our plain error analysis in Taylor governs the outcome here. sparingly. Lachowski, 405 F.3d at 698.

error standard simply because the less guidance there is, the smaller the realm Accordingly, I would be inclined to “grant[ ] more discretion under the plain but he also did not make the argument put forth by the defendant in Taylor. only failed to argue at trial the construction that he puts forward in this case, either today’s interpretation, or that in Taylor. Additionally, the defendant not in light of our decision in Taylor. The trial court did not have the advantage of obviously wrong under current law. There is ultimately, however, Our plain meaning analysis relies entirely upon a reading of the statute

State v. MacInnes, 151 N.H. 732, 736-37 (2005).

omitted). It is for these reasons that the plain error rule is to be applied United States v. Lachowski, 405 F.3d 696, 698-99 (8 Cir. 2005) (citation th available to the [trial] court. if the error was, in fact, clear or obvious based on the materials such precedent, however, does not prevent a finding of plain error

there is, the smaller the realm of decisions that would be clearly or under the plain error standard simply because the less guidance the Supreme Court, the [trial] court is granted more discretion In the absence of controlling precedent of either this court or

either Supreme Court or controlling circuit precedent. The lack of Usually, for an error to be plain, it must be in contravention of