2007-553, STATE OF NH v. SHANNON GALLAGHER & a.

Defendant Timothy A. Hughes filed no brief.

brief, for defendant Shannon Gallagher. Theodore Lothstein, assistant appellate defender, of Concord, on the

for the State. Kelly A. Ayotte, attorney general (Diana E. Fenton, attorney, on the brief),

No. 2007-553 Plymouth District Court

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

editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

Rappa

in an out-of-state jurisdiction, within 10 years preceding the date p. 2 265-A:3, or RSA 630:3, II, or under reasonably equivalent offenses meanings to the words used. had one or more prior convictions under RSA 265-A:2, I or RSA 265-A:3, based on a complaint which alleged that the person has Upon conviction of any offense under RSA 265-A:2, I or RSA

The sentencing statute provides in pertinent part:

basis for enhanced penalties under the sentencing statute. review de novo. State v. Brown, 155 N.H. 590, 591 ( p. 2 2007). to RSA 265:82. We conclude that convictions under RSA 265:82 serve as a (citation omitted). The interpretation of a statute is a question of law which we and because neither defendant has briefed this issue, we confine our analysis would compel an absurd result.” State v. Warren, 147 N.H. 567, 568 (2002) other indicia of legislative intent where the literal reading of a statutory term would pass an act leading to an absurd result, however, and we will consider

language of the statute, and, where possible, we apply the plain and ordinary whole. State v. Morabito, 153 N.H. 30 p. 2 2, 304 (2006). We first examine the intent of the legislature as expressed in the words of a statute considered as a In matters of statutory interpretation, we are the final arbiter of the

p. 2 265:82-a to serve as a basis for enhanced penalties for a subsequent offense. sentencing, did not allow prior convictions pursuant to RSA 265:82 or RSA

RSA p. 2 265:82-a, the statute under which Hughes had previously been convicted, Because the trial court did not ask us to consider the same question for

penalties under RSA p. 2 265-A:18, IV for a subsequent DWI offense. convicted of DWI pursuant to RSA 265:82 may be subject to enhanced (DWI). transferred a single question, asking us to determine whether an individual negotiated pleas, to their second offense of driving while under the influence Pursuant to Supreme Court Rule 9, the Trial Court (, J.)

(amended p. 2 2008) (sentencing statute), as it existed at the time of their sentences were illegal. They argued that RSA 265-A:18, IV (Supp. 2007) offense. Both filed motions to vacate their sentences, arguing that the were the bases for the trial court’s finding that each was guilty of a second (repealed 2007), and Hughes pursuant to RSA 265:82-a (2004) (repealed 2007), Gallagher had previously been convicted pursuant to RSA 265:82 (2004) See RSA 265-A:2 (Supp. 2007). Driving records which showed that

Shannon Gallagher and Timothy A. Hughes, both pled guilty, pursuant to Zoning Bd. of Adjustment, 15 p. 2 2 N.H. 171, 172 (2005). The defendants, presented in the interlocutory transfer. See McDonald v. Town of Effingham interlocutory transfer without ruling. See Sup. Ct. R. 9. We accept the facts as DALIANIS, J. These consolidated cases are before the court on p. 3 3

history.

old statute.” on a clean slate by excluding from consideration matters that arose under the a similar law in this state. for a legislature to repeal a set of laws, replace them with a new law, and begin prior DWI convictions in other states more severely than those convicted under A:18, IV. It makes no sense that the legislature would punish defendants with jurisdiction under a statute “reasonably equivalent” to RSA 265-A:2. RSA 265- N.H.H.R. Jour. 41 (2005). The law became effective on January 1, 2007, and entitled “relative to consolidating statutes relating to driving while intoxicated.” The new chapter, RSA chapter 265-A, was introduced as House Bill (HB) 298, laws was to consolidate them, not to substantively alter the crimes or penalties.

See Warren, 147 N.H. at 568. The purpose of repealing the prior DWI

absurd result, we consult other indicia of legislative intent, such as legislative Because a literal reading of the sentencing statute would lead to an

of the sentencing statute would lead to an absurd result. statutory language is plain and unambiguous, we conclude that a plain reading create such a distinction. He argues only that “it would not be unreasonable language is plain and unambiguous. While we agree with Gallagher that the where the sentencing statute applies to persons convicted in another create a clean slate for persons convicted under a prior New Hampshire law prohibit the same acts as did the prior laws. There is no apparent reason to would serve any purpose, nor can we conceive of one. The current DWI laws Gallagher does not explain how creating a clean slate for DWI offenders

Gallagher offers no plausible explanation why the legislature would that we must not examine legislative history in this case because the statutory sentencing statute as a basis for enhanced penalties. Gallagher further argues committed the same offenses. subsequent offense because that provision is not expressly referenced in the this way would lead to disproportionate results among people who have of prior convictions under RSA 265:82 to enhance the penalties for a RSA 265-A:2. Compare RSA 265:82 with RSA 265-A:2. To apply the statute in would be subject to different penalties than those with prior convictions under under RSA 265:82, which prohibits the same conduct as does RSA 265-A:2, Under a literal reading of the statute, defendants with prior convictions

Gallagher argues that the plain language of this statute prohibits the use

the following penalties . . . . of the second or subsequent offense, the person shall be subject to p. 4 4

statute.”

Id. Both the original and subsequent legislative histories reveal that, in amendment also alters other provisions to include references to RSA 265:82. 265:82 as a basis for enhanced penalties. See Laws 2008, ch. 62. The amendment alters the sentencing statute to include convictions under RSA

N.H.H.R. Jour. 1180 (2008). To demonstrate legislative intent, the

and associated statutes continue to be offenses under the newly codified to “restate[ ] the legislative intent that offenses committed under the prior DWI Laws 2008, ch. 62 (effective July 20, 2008), will amend the sentencing statute not intend to create a “clean slate” for subsequent offenders. HB 1130, now Town of Newport, 151 N.H. 508, 512 (200 p. 4 4), suggests that the legislature did Similarly, subsequent history, though not controlling, see Franklin v.

under the new law. subsequent DWI offenses under the prior law would escape enhanced penalties suggests that the legislature did not intend that persons convicted of enhanced penalties. See RSA 265:82-b, II (200 p. 4 4) (repealed 2006). This history DWI statutes, persons convicted of subsequent DWI offenses were subject to current laws are virtually identical to the prior ones. Further, under the old the former DWI laws in order to make them more easily accessible. The would constitute a DWI violation or penalty; rather, it intended to consolidate This history reveals that the legislature did not intend to change what

App. to State’s Brief at A-1, A-2, Doc. No. 2007-0553. statutes that are in existence today. Transcript of Senate Committee on Judiciary, available at N.H. Supreme Court,

for the police, the public and attorneys to find them. the bill as follows: the DWI statutes, putting them in one place, which makes it easier Senate Committee Hearing on April 25, 2006, Representative Tholl introduced that that is currently in effect. This is merely a consolidation of all legislation. The wording on the legislation should be identical to There is nothing in this bill that changes any current

. . . .

filed almost two years ago and it is strictly a compilation of HB 298 has been a long time getting here. It was originally

codification was to consolidate the old laws and not to change them. At a It is evident from the legislative history that the purpose of the re-

repealed the previous DWI statutes. See Laws 2006, 260:37. consolidated most, if not all, of the DWI laws. See Laws 2006, ch. 260. It also p. 5 5

in [the sentencing statute] would be elevating form over substance.” BRODERICK, C.J., and DUGGAN, GALWAY and HICKS, JJ., concurred.

invitation to overrule it. N.H. 723, 724-2 p. 5 5 (2007), we disagree. We, therefore, decline Gallagher’s because it is merely a remnant of abandoned doctrine, see State v. Holmes, 154 To the extent that Gallagher argues that we should overrule Callahan

form over substance. Here, as in Callahan, a plain reading of the sentencing statute would elevate

statute did not include the prior laws as a basis for enhanced penalties. particular DWI statute under which he was convicted is not specifically named because of prior DWI convictions, even though the applicable sentencing driving statute” and “[t]o excuse [him] from punishment . . . merely because the which [he] was convicted is the same as that prohibited in the present drunk respect to one of the defendants, for instance, we reasoned “the conduct for the sentencing statute would lead to an absurd result. Id. at 16 p. 5 5. With We rejected the defendants’ argument, holding that their interpretation of

penalties. Id. legislature’s intent to shield persons with prior convictions from enhanced argued that the plain language of the sentencing statute demonstrated the Callahan, 126 N.H. at 164-6 p. 5 5. Like Gallagher, the defendants in Callahan

(198 p. 5 5), in which the defendants challenged sentences that were enhanced We engaged in a similar analysis in State v. Callahan, 126 N.H. 161

enhanced penalties for persons with prior DWI convictions. enacting RSA chapter 26 p. 5 5-A, the legislature did not intend to eliminate