2006-107, STATE OF NH v. SCOTT BALUKAS

The defendant, Scott Balukas, Sr., appeals the decision of

and orally, for the defendant. James T. Brooks, assistant appellate defender, of Concord, on the brief

attorney 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 (Susan G. Morrell, senior assistant

editorial errors in order that corrections may be made before the opinion goes No. 2006-107 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Rockingham Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

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. 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 chapter and may therefore be charged as a class B felony. p. 2 of a protective order issued under RSA chapter 169-C is an offense under this that under the plain language of RSA 169-C:21-a, IV(c), a subsequent violation

enhanced penalty provision under RSA 169-C:21-a, IV(c). The State argues

a lesser charge, as permitted in other instances under RSA 625:9. chapter. Charges made under this chapter shall not be reduced to

protective order issued under RSA chapter 169-C did not qualify for the have been charged with two felonies because the two subsequent violations of a to its plain and ordinary meaning. issued under RSA chapter 169-C. Thus, the defendant argues, he should not language of the statute itself, and, if possible, construe that language according could be enhanced as an offense underlying the violation of a protective order

person knowingly violates a protective order issued under this III. A person shall be guilty of a class A misdemeanor if such

provides in pertinent part: Pennelli v. Town of Pelham, 148 N.H. 365, 368 (2002). RSA 169-C:21-a, consider legislative history to construe a statute that is clear on its face. the context of the overall statutory scheme and not in isolation. Id. We do not

__ (decided February 16, 2007). In interpreting a statute, we first look to the simple assault while again violating the protective order, the penalty for assault in the words of a statute considered as a whole. State v. Looney, 154 N.H. __, protective order issued under RSA chapter 169-C commits and is convicted of This court is the final arbiter of the intent of the legislature as expressed contends, for example, that when a person previously convicted of violating a 173-B. a violation of a protective order and not the violation itself. The defendant as well as a misdemeanor for violating the order issued under RSA chapter

followed. indictments and the jury convicted the defendant on all counts. This appeal

chapter” as used in RSA 169-C:21-a, IV, refers to the criminal acts underlying with two felonies for again violating the order issued under RSA chapter 169-C, On appeal, the defendant argues that the phrase “offenses under this

his wife and son. felonies. Therefore, the trial court denied the defendant’s motion to quash the 169-C:21-a, IV(c) permitted the State to charge the defendant with class B charged as misdemeanors. The trial court ruled that the plain language of RSA State erroneously charged the offenses as felonies when they should have been quash the indictments issued for the felony-level violations, arguing that the See RSA 169-C:21-a, IV(c); RSA 173-B:9, III. The defendant moved to

As a result of the defendant’s actions on May 22, 2004, he was charged

May 22, 2004, the defendant, in violation of both protective orders, contacted convicted of violating the protective order issued under RSA chapter 169-C. On p. 3 3

Violating a protective order is an offense under RSA chapter 169-C. charged with two class B felonies for his subsequent violations. under this chapter plainly applies to offenses under RSA chapter 169-C. same protective order on May 22, 2004. Thus, the defendant could properly be charged with an enhanced penalty for any subsequent violations. “Offenses” subsequently is convicted of one or more offenses under this chapter, may be

misdemeanor; RSA chapter 169-C on April 16, 2004, and was twice convicted of violating that Here, the defendant was convicted of violating the protective order under convicted of violating a protective order issued under RSA chapter 169-C, who Heather D., 121 N.H. 547, 551 (1981). 169-C:21-a is consistent with our previous interpretations. See, e.g., In re subsection IV(c). This interpretation of the phrase “under this chapter” in RSA subsequent violation may be charged as a class B felony, as provided in violation, it may be charged as a class B misdemeanor. otherwise be charged as a class A misdemeanor, as provided in section III, a 169-C:21-a, III. Thus, where an initial violation of a protective order would

class B misdemeanor, it may be charged as a class A

We begin by examining the plain language of the statute. A person

(Emphasis added.)

(e) If the subsequent offense would otherwise constitute a

(d) If the subsequent offense would otherwise constitute a

class A misdemeanor, it may be charged as a class B felony; convicted of one or more (c) If the subsequent offense would otherwise constitute a

class B felony, it may be charged as a class A felony; (b) If the subsequent offense would otherwise constitute a

felony; the subsequent offense is a class A felony or an unclassified (a) There shall be no enhanced charge under this section if

follows: charged with an enhanced penalty for each subsequent offense as

such conviction, whichever is later, subsequently commits and is such conviction or the completion of the sentence imposed for enforceable under the laws of this state, who, within 6 years of convicted in another jurisdiction of violating a protective order IV. Any person convicted under paragraph III, or who has been p. 4 4

sweeping changes to the statute are not for this court to make.

acts constitute crimes underlying a violation of a protective order. Such BRODERICK, C.J., and DALIANIS, DUGGAN and HICKS, JJ., concurred. and importing the entire Criminal Code into RSA 169-C:21-a to define which in RSA 169-C:21-a to “offenses underlying the violation of a protective order,” divine its meaning. Affirmed. words of the statute, however, we need not investigate the legislative history to of the statute. Because the intent of the legislature is plainly enunciated in the the Matter of Bazemore & Jack, 153 N.H. 351, 35 p. 4 4 (2006). contexts, we presume that it intended the law to have that effect. See, e.g., In penalties in one statute that it chose not to incorporate in other similar different objectives. Where the legislature includes a provision for enhanced is illogical. These statutes, however, are in different chapters and address chapter 169-C to impose different punishments for violating a protective order under RSA chapter 173-B are always misdemeanors, and construing RSA Finally, the defendant argues that violations of protective orders issued

legislature included and to add words it saw fit not to include. The defendant’s interpretation would require rewriting the statute to both omit words the The defendant contends that legislative history supports his construction conclude that it did so here. We do so because to adopt the defendant’s accordance with its plain meaning. the defendant’s interpretation of RSA 169-C:21-a, and instead construe it in Matter of Fulton & Fulton, 15 p. 4 4 N.H. 264, 267 (2006). Accordingly, we reject

generally the legislature is not presumed to use superfluous language, we we agree that this interpretation renders these subsections superfluous. While (b), (d) and (e) enhance penalties that do not exist under RSA chapter 169-C, renders RSA 169-C:21-a, IV(b), (d) and (e) meaningless. Because subsections The defendant argues that this interpretation of RSA chapter 169-C