2006-079, RANDY DUQUETTE v. WARDEN, NH STATE PRISON

, attorney general (Susan P. McGinnis se, of Concord (Richard J. Lehmann a

Steven Pelletier &., pro se, by brief, as amici curiae.

the brief), for Kenneth Violette, as amicus curiae. Douglas, Leonard & Garvey, P.C. on

Randy Duquette, pro, by brief.

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

on the brief, and Ms. Phelan orally), for the petitioner. Orr and Reno, P.A., of Concord (Pamela E. Phelan and Phillip Rakhunov to press. Errors may be reported by E-mail at the following address:

editorial errors in order that corrections may be made before the opinion goes No. 2006-079 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Merrimack Readers are requested to notify the Reporter, Supreme Court of New

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 has inherent common law authority to impose such sentences.

p. 2 statutory authority” for consecutive sentences, but counters that the trial court

consecutive sentences. The State concedes that “there is no general explicit turn, the petitioner’s statutory and constitutional arguments. calculation of sentences, does not authorize the superior court to impose which he was sentenced, and RSA 651:3 (1996), which pertains to the

whole. Debonis v. Warden, N.H. State Prison

these pending cases and the importance of the issue raised, we address, in 2 because these issues are likely to be properly raised in the future.” In light of RSA 632-A:10-a (1996) (amended 1998, 2006), which is the statute under stayed pending resolution of this appeal, raise the same types of issues, and

intent of the legislature as expressed in the words of a statute considered as a

statute the trial court relied upon when dismissing his habeas corpus petition, it urges us to address them “because the appeals of the amici, which have been language of RSA 651:2 (1996) (amended 1996, 1998, 1999, 2006), which is the, 153 N.H. 603, 605 (2006). We authorization to impose consecutive sentences. He observes that the plain In matters of statutory interpretation, we are the final arbiter of the

of separation of powers.

appellate arguments because they differ from those he raised in the trial court, The petitioner first argues that the superior court lacks statutory

I. Statutory Arguments aggravated felonious sexual assault, see state guarantee of proportionality in sentencing and the constitutional doctrine

consecutive terms. State v. Duquette and-one-half to seven years to run concurrently with the last of the three committed, as well as three terms of ten to twenty years and one term of three- While the State contends that the petitioner did not preserve his under the age of thirteen, see

sentences imposed upon him following his 1997 convictions on six counts of consecutive sentences violates state and federal due process guarantees, the authority to impose consecutive sentences. He further argues that imposing On appeal, the petitioner argues that the superior court has no statutory

court imposed three consecutive prison terms of ten to twenty years, stand

1998, 1999, 2003), and one count of felonious sexual assault against a victim

The petitioner asked the court to correct the “illegal” consecutive

corpus. We affirm. the Superior Court (Brennan, J.) dismissing his petition for writ of habeas DALIANIS, J. The petitioner, Randy Duquette, appeals from an order of part of such additional term be suspended.” RSA 651:2, II-b. p. 3 shall be served concurrently with any other term nor shall the whole or any

whole nor any part of the additional sentence of imprisonment hereby provided

addition to any punishment provided for the underlying felony. “Neither the firearm. It requires the court to impose a minimum mandatory sentence in provides for consecutive sentences for those convicted of felonious use of a

impose consecutive sentences in cases such as this one, RSA 651:2, II-b part: consecutive sentences may be imposed. That statute provides, in pertinent The plain language of RSA 632-A:10-a is also silent as to whether

term as the court may order.

While this language is silent with respect to whether a trial court may

maximum, or if the maximum is life imprisonment, such minimum case of a felony only, a minimum which is not to exceed 1/2 of the (d) Life imprisonment for murder in the second degree, and, in the unconditional discharge, or a fine.

(c) One year for a class A misdemeanor,

in pertinent part: (b) Seven years for a class B felony,

(a) Fifteen years for a class A felony,

the maximum thereof which is not to exceed: II. If a sentence of imprisonment is imposed, the court shall fix

be sentenced to imprisonment, probation, conditional or I. A person convicted of a felony or a Class A misdemeanor may

We begin by examining the plain language of RSA 651:2, which provides

language exists, we review legislative history to aid our analysis. Id. at 187. Where more than one reasonable interpretation of the statutory of the statute to determine legislative intent. Petition of State of N.H., 152 N.H. 152 N.H. 185, 187 (2005). In doing so, we must first look to the plain language terms and to promote justice. See RSA 625:3 (1996); Petition of State of N.H., construe provisions of the Criminal Code according to the fair import of their almost always impose sentences concurrently.” N.H.S. Jour

p. 4 additionally indicated that in the remainder of cases “[judges] should

who need the deterrent of consecutive sentences. The legislature consecutive sentences in order to deal with that group of criminals RSA 651:3, III to afford a judge, with discretion, the option to impose

judiciary had common law authority to impose consecutive sentences.

imposed run concurrently or consecutively. The legislature repealed

penalties narrowly applicable to prisoners and parolees. See

imprisonment. The State relies upon State v. Rau convicted of a felony either during imprisonment or an escape from

upon which the State relies is dicta. We therefore first address whether the We assume solely for the purpose of this appeal that the language from Rau did not revive the superior court’s authority to impose consecutive sentences. Hampshire law no longer specifies whether multiple sentences language is dicta. He further asserts that the repeal of former RSA 651:3, III pertains only to those convicted of felonious use of a firearm, and various Rau, 129 N.H. at 129-30 (citation omitted). The petitioner contends that this

(1975).

651:3, III provided for all sentences to run concurrently except those of persons

person shall be served concurrently.” Since its repeal, New that “any multiple sentences of imprisonment imposed on any authority for consecutive sentences, except under RSA 651:2, II-b, which RSA 651:3, III, repealed in 1975, provided in pertinent part

support its argument:

imprisonment “commences when it is imposed if the defendant is in custody or impose consecutive sentences. That statute provides that a sentence of court’s common law authority to impose consecutive sentences. Former RSA that the repeal of former RSA 651:3, III (1974) (repealed 1975) revived the (2001); RSA 642:8 (1996); RSA 642:9 (Supp. 2006). The State argues, however,

not to exceed 1/2 of the maximum. Thus, we agree with the parties that there is no explicit statutory

Similarly, RSA 651:3 does not address whether the trial court may

RSA 632-A:10-a, I.

sentence which is not to exceed 20 years and a minimum which is the provisions of RSA 632-A:2, I shall be sentenced to a maximum I. A person convicted of aggravated felonious sexual assault under

Notwithstanding RSA 651:2: reinstatement.” 73 Am. Jur. 2d Statutes

p. 5 court, which unanimously recommended repeal. N.H.S. Jour

situations where such sentences were statutorily mandated.

common-law rule, unless it appears that the legislature did not intend such

was introduced by Senator David H. Bradley at the request of the superior authority of courts to impose consecutive sentences See imposition of consecutive sentences.”

restricted judicial authority to impose consecutive sentences only to those

repeal of a statute which abrogates the common law operates to reinstate the intend to restore this common law authority. “It is a general principle that the examine whether, when repealing former RSA 651:3, III, the legislature did not reasonable interpretation, further necessitating review of legislative history.

RSA 651:3, III was repealed pursuant to Senate Bill (SB) 144. SB 144 to analyze whether the legislature intended to reinstate the common law however, as he concedes that it did not “include a specific provision on the

where consecutive sentences were required. Read another way, the scheme impose either consecutive or concurrent sentences except in certain situations sentencing scheme, read one way, recognized the general authority of courts to was born. Wilkes State v. Yates, 152 N.H. 245, 255 (2005). The remaining statutory

have the common law authority to impose consecutive sentences, we next remaining after the repeal of former RSA 651:3, III is subject to more than one Justices, 121 N.H. 429, 432 (1981). In addition, the statutory scheme

Because the repeal of a statute is at issue, we examine legislative history (1955) (repealed 1973). His reliance upon RSA chapter 607 is misplaced,

sentences were affirmed by all the law lords, and the common law principle

Having concluded that, absent statutory dictates to the contrary, courts the pre-Revolution English case of Rex v. Wilkes

and her twelve “sisters” at the beginning of the Republic. See consecutive sentences is not the common law, but rather RSA chapter 607 The petitioner argues that the source of the authority to impose

, 98 Eng. Rep. at 355.

protesting the imposition of consecutive sentences for libel. The consecutive Id. at 265. In Rex v. Wilkes, a writ of error was brought to the House of Lords

jurisprudence traces a court’s discretion to impose consecutive sentences to Mahaney, 62 A. 265, 265-66 (N.J. 1905) (collecting cases). American

England, such law being therefore the common law model for New Hampshire law precedent for consecutive sentencing can be traced to pre-Revolutionary judges.” A. W. Campbell, Law of Sentencing 278 (2d ed. 1991). The common concurrent or consecutive sentences rests within the discretion of sentencing “Firmly rooted in common law is the principle that the selection of either discretion to impose the sentences consecutively.

p. 6 imposed consecutively. The judges feel that they should have the inappropriate where the defendant should have the sentences have found a number of cases in which they felt that it was

Federal and State Due Process Clauses. See

almost always impose sentences concurrently. However, the judges

sentences may be imposed,” the imposition of such sentences violates the A:10-a “clearly delineate whether or under what circumstances consecutive

The thinking behind the new criminal code is that you should

CONST. pt. I, art. 15. He further asserts that although RSA 651:3 addresses consecutive sentences in this case. conclude that the trial court did not exceed its statutory authority by imposing U.S. CONST. amend. XIV; N.H.

The petitioner next asserts that because neither RSA 651:2 nor RSA 632-

discretion of the judge. Usually, they were imposed concurrently. A. Due Process judges. House Comm. on Judiciary, Hearing on SB 144 would be concurrent or consecutive. Historically, it was within the II. Constitutional Arguments respect as to whether sentences imposed for multiple offenses

intended to revive the common law through this repeal. Accordingly, we sentences. See id. This legislative history demonstrates that the legislature restoration of the common law authority of judges to impose consecutive deterrent for the habitual offender” was needed. Id. That deterrent was the According to the minutes of the committee meeting, Loughlin noted that “a

took up the bill and once again Judge Loughlin spoke on behalf of the trial N.H.S. Jour the changes is to repeal a section [of the Criminal Code] with. 306 (1975). On May 7, 1975, the House Judiciary Committee

repeal:

legislation and the bill was drafted by one of the judges. . . . One of All of the judges met on this and unanimously voted to favor this Mr. President, this bill was requested by the Superior Court.

On the Senate floor, Senator Bradley spoke about the purpose of the

144 (April 23, 1975). sentences are becoming a farce.” Senate Comm. on Judiciary, Hearing on SB not effective in the case of habitual offenders. He testified that, “[c]oncurrent the frustration of the trial judges who believed that the concurrent system was hearing before the Senate Judiciary Committee, Judge Martin Loughlin aired One of the superior court judges drafted the language of the bill. Id. At a minimum which is not to exceed ½ of the maximum.” Further, in State v. p. 7 be sentenced to a maximum sentence which is not to exceed 20 years and a aggravated felonious sexual assault under the provisions of RSA 632-A:2 shall

conviction. See

notice to a person of ordinary intelligence that “[a] person convicted of

maximum statutory sentence for each aggravated felonious sexual assault

could be subject to separate sentences for each count. RSA 632-A:10-a gives

LaVallee v. Perrin, 124 N.H. 33, 40 (1983). We therefore hold

that a person guilty of aggravated felonious sexual assault may receive the construction of that language puts a person of ordinary intelligence on notice that a person guilty of multiple counts of aggravated felonious sexual assault The language of RSA 632-A:10, RSA chapter 651 and our judicial

conviction on a single offense.” unambiguously denotes the punishment prescribed by a court in relation to a chapter 651 as a whole, “we are confident that the word ‘sentence’ plainly and greater precision.” Id Horner, 153 N.H. 306, 310 (2006), we observed that when reviewing RSA statute, nor is a law invalid merely because it could have been drafted with

consequences of violating a given criminal statute.” Batchelder We conclude that a person of ordinary intelligence would understand

arbitrary and discriminatory enforcement.” State v. Porelle presumption of a statute’s constitutionality.” Id. (quotation omitted). understand what conduct it prohibits” or if it “authorizes or even encourages as void for vagueness bears a heavy burden of proof in view of the strong

statutes.” United States v. Batchelder (quotation omitted). “Mathematical exactness is not required in a penal peril of life, liberty or property to speculate as to the meaning of penal statutes, prior decisions, or generally accepted usage.” Porelle, 149 N.H. at 423 itself, but rather, the statute in question may be read in the context of related 123. “The necessary specificity, however, need not be contained in the statute

constitutional questions if they do not state with sufficient clarity the requirements. See (2003) (quotations omitted). “So too, vague sentencing provisions may pose

for vagueness.” “fails to provide people of ordinary intelligence a reasonable opportunity to and brackets omitted). Thus, a criminal statute is impermissibly vague if it

“It is a fundamental tenet of due process that no one may be required at

231 (1983), and cite federal opinions for guidance only, id. at 232-33. the petitioner’s claim under the State Constitution, State v. Ball, 124 N.H. 226,

We are the final arbiter of the State Constitution’s due process

consecutive sentences.” Thus, the petitioner argues that the statutes are “void the calculation of sentences, it does not “clearly delineate the possibility of scheme does not violate the State Constitution for the reasons he posits.

p. 8 its discretion.” Id

guide judicial discretion in sentencing, we conclude that the sentencing

sentencing statutes.”

the trial court to “consider all the relevant factors necessary to the exercise of whether consecutive or not. Part I, Article 18 of the State Constitution requires court to consider numerous objective factors before imposing any sentence, scheme to be constitutional, objective factors must be set forth by statute to failed to cite any relevant authority for his assertion that for a sentencing

sentencing decisions that essentially end run the requirements of existing

guide a judge’s sentencing decision. The State Constitution requires the trial

In light of the commands of Part I, Article 18, and as the petitioner has Porelle objective criteria “foster[s] a system of arbitrary and disproportionate sentences that are “grossly disproportionate to the crime.” Id (1999). deterrence and rehabilitation. See disproportionate; rather, he vaguely asserts, without support, that the lack of State v. Hammond, 144 N.H. 401, 408 sentence imposed will meet the traditional goals of sentencing – punishment, State Constitution. He does not argue that his own sentence was

. (quotation omitted). These factors include whether the

cannot declare it unconstitutional except upon inescapable grounds. See

We reject the petitioner’s assertion that there are no objective criteria to

omitted). Constitution with regard to whether a statute is unconstitutionally vague.. (quotation sentencing scheme is unconstitutional because it necessarily results in (quotation omitted). Here, the petitioner has failed to persuade us that the arbitrarily or disproportionately imposed” in violation of Part I, Article 18 of the disproportionate to the crime.” State v. Enderson, 148 N.H. 252, 259 (2002) violate Part I, Article 18 of the State Constitution, it must be “grossly Baines v. N.H. Senate President, 152 N.H. 124, 133 (2005). For a sentence to

We must presume that the sentencing scheme is constitutional and we

Federal Constitution affords no greater protection than does the State

nothing in the statutory framework to ensure that such sentences are not pursuant to which a court may impose a consecutive sentence, “there is The petitioner next contends that because there are no objective criteria

B. Proportionality in Sentencing

, 149 N.H. at 423; see Hill v. Colorado, 530 U.S. 703, 732-33 (2000).

We reach the same result under the Federal Constitution because the

Constitution are satisfied. that the notice requirements of the Due Process Clause of the State p. 9 9

language expressing a clear legislative intent that a sentence is to be

violated only when one branch usurps an essential

the branches, Opinion of the Justices exercise of the judicial privilege of suspension can be withdrawn by statutory in one indissoluble bond of union and amity. sentencing. See chain of connection that binds the whole fabric of the constitution State v. Dean, 115 N.H. 520, 523 (1 p. 9 975). For instance, “the may choose to constrict the independent exercise of judicial discretion in nature of a free government will admit, or as is consistent with that Cunningham, Warden, 132 N.H. 747, 755 (1990). The legislature, however, “[S]entencing is an exclusively judicial function.” Bussiere v.

the legislature. See id. judiciary, by imposing consecutive sentences, is usurping an essential power of Opinion of the Justices of Governor, 151 N.H. at p. 9 9. Accordingly, we must consider whether the

contrary, the three branches should move in concert, and the doctrine is

203 (1 p. 9 942), and, thus, they did not provide for impenetrable barriers between operation of government, see Cloutier v. State Milk Control Board, 92 N.H. 199, consecutive sentences. See however, that a complete separation of powers would disrupt the efficient kept as separate from, and independent of, each other, as the functions of another branch. Id “extraordinary terms of imprisonment” that might result from imposing. The drafters of Part I, Article 37 recognized, the Separation of Powers Clause from encroaching upon the powers and Executive Council, 151 N.H. 1, 9 (2004). Thus, each branch is prohibited by citizens to remain a free and sovereign people. Petition of Governor & against a seizure of control by one branch that would threaten the ability of our branches of the government is an important part of its constitutional fabric. Separation of the three co-equal branches of government is essential to protect

thereof, to wit, the legislative, executive, and judicial, ought to be fixes the degree, extent and method of punishment, including the In the government of this state, the three essential powers

State Constitution provides:

The separation of powers among the legislative, executive and judicial

legislature’s role.” imposing consecutive sentences, trial courts “impermissibly encroach[ ] on the

violates the doctrine of separation of powers because it is the legislature that The petitioner next argues that the imposition of consecutive sentences

C. Separation of Powers p. 10 10

.

has not been violated. legislative functions has been effectuated, the separation of powers doctrine

authority to impose such sentences. Because no usurpation of essential

repealed that statute. Therefore, the trial courts retain the common law power to impose consecutive sentences; indeed, it had earlier done so, but

BRODERICK, C.J.