2007-244, STATE OF NH v. JUDITH MATTHEWS

The defendant, Judith Matthews, appeals an order of the

and orally), for the defendant. Samdperil & Welsh, PLLC, of Exeter (Richard E. Samdperil on the brief

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

editorial errors in order that corrections may be made before the opinion goes No. 2007-244 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 p. 2 22 as 2 class B misdemeanor.

statute violates her constitutional guarantee against She argues that the superior court’s retrospective application of the amended p. 2 2007, applied to her, where the charged offense occurred on May 27, 2006.

and remanded the case to the district court to be entered as a conviction for a amendment to RSA 6 p. 2 25:9, VIII, the superior court granted the State’s motion appeal therefrom to the supreme court” only. Relying upon the statutory I, Article 23 of the New Hampshire Constitution.

and sentence as a class B misdemeanor.

that the amendment to RSA 6 p. 2 25:9, VIII, which became effective on January 1, 651:2, IV(a), the court shall record such conviction On appeal, the defendant argues that the superior court erred in ruling

had a right to a RSA 6 p. 2 25:9, VIII that took effect on January 1, 2007, the defendant no longer district or municipal court for a violation or class B misdemeanor may . . . RSA 625:9, VIII. Under RSA 599:1-c, II (2001), “[a] person sentenced by a

entitled such a defendant to appeal the district court’s ruling to superior court.

maximum provided for a class B misdemeanor in RSA deferred jail sentence or any fine in excess of the any period of actual incarceration or a suspended or been sentenced and such sentence does not include If a person convicted of a class A misdemeanor has

of Sentence” in the superior court, arguing that, pursuant to an amendment to As amended, however, RSA 6 p. 2 25:9, VIII provides:

See RSA 599:1 ( p. 2 2001) (amended 2006).

purposes of appeal.” RSA 6 p. 2 25:9, VIII (1996) (amended 2006). This language incarceration, to treat the conviction as one of a “class A misdemeanor for the class B misdemeanor because the sentence did not include a term of defendant, charged with a class A misdemeanor but deemed convicted of a 625:9, VIII repealed a provision of the statute that had previously allowed a

de novo trial in the superior court. The amendment to RSA

The State filed a “Motion to Remand Misdemeanor Appeal and Imposition

was docketed in the superior court. 599:1 (Supp. p. 2 2007). The district court transferred the case, and the matter superior court on January 8, 2007, seeking a trial de novo pursuant to RSA incarceration. See RSA 651:2, I (2007). The defendant filed an appeal to the imposed other conditions, but did not impose or suspend any term of 5, 2007. The court fined the defendant $500.00, with $ p. 3 300.00 suspended, and Portsmouth District Court (DeVries, J.) found the defendant guilty on January 3

the

apply the new law in a prosecution based on prior acts,” in McKenney. affirmed the principle that “the burden is on the State to demonstrate a need to involving prior acts.” Komisarek, 116 N.H. at 428 (quotation omitted). We the state demonstrate a legitimate need to employ the new procedure in cases its enactment would unfairly frustrate that reliance, courts should require that reasonable, and the application of a new procedure to acts committed prior to In Komisarek, we held: “Where reliance on an established procedure is

that affected the defendants’ appellate rights. McKenney, 126 N.H. 184 (1985), two cases involving statutory amendments She relies upon State v. Komisarek, 116 N.H. 427 (1976), and State v. crimes committed prior to the effective date of the change.” (Emphasis added). which, under most circumstances, does not implicate held that statutory changes do not affect a defendant’s appellate rights for change. The defendant nevertheless argues that “[t]his court has repeatedly which altered the defendant’s appellate rights, constituted a procedural In this case, both parties agree that the amendments to RSA 625:9, VIII, committed. cert. denied, 127 S. Ct. 1888 (2007). punishment, than the law annexed to the crime when Petition of Evans changes the punishment, and inflicts greater, 154 N.H. 142, 147 (2006) (quotation and ellipses omitted), makes it greater, than it was when committed; or

punishes such action; or aggravates a crime, and Ex Post Facto Clause.

crime, from a procedural change to a criminal statute, sentences that could be imposed for the charged augments the crime or increases the range of substantive change to a criminal statute, which

and which was innocent when done, criminal, and makes an action done before the passing of the law,

offenses.” A law or an application of a law is ex post facto if it: No such laws, therefore, should be made . . . for . . . the punishment of penal laws: “Retrospective laws are highly injurious, oppressive, and unjust. Part I, Article 2 p. 3 3 of the New Hampshire Constitution forbids ex post facto

2 p. 3 32 (1983), and cite federal opinions for guidance only, id. at 232-33. the defendant’s claim under the State Constitution, State v. Ball, 12 p. 4 4 N.H. 226, the amended statute violates her federal constitutional rights, we will address 304, 307 (2006). Because the defendant does not argue that the application of We review constitutional issues de novo. State v. MacElman, 154 N.H. 4

punishment.” Woart v. Winnick, 3 N.H. p. 4 473, 476 (1826) (emphasis added). legislature the power to make such laws, at its discretion, for the application or justification. mitigation of make retrospective laws for the differently, as to have robbed the old rule of significant punishment of offences, it leaves to the unjust and oppressive punishment. Therefore, while it withholds the power to ex post facto] clause in the bill of rights was to protect individuals against Since as early as 1826, we have recognized that “[t]he only object of [the

rule no more than a remnant of abandoned doctrine.” Id. because “related principles of law have so far developed as to have left [this] old application of an amendment affecting appellate rights, must be abandoned Id. We believe that the McKenney - Komisarek rule, regarding the retrospective

case. when faced with the question of whether to depart from precedent in a given

( p. 4 4) facts have so changed, or come to be seen so no more than a remnant of abandoned doctrine; and law have so far developed as to have left the old rule the consequence of overruling; (3) related principles of kind of reliance that would lend a special hardship to defying practical workability; (2) the rule is subject to a (1) the rule has proven to be intolerable simply by

(quotation omitted). These factors include whether: Cmty. Res. for Justice v. City of Manchester, 15 p. 4 4 N.H. 748, 760 (2007) crime was committed.” state constitutional right to the appellate procedure in place at the time the a society governed by the rule of law,” there are several factors to be considered would be ‘rare’ in a case such as this,” the defendant argues that she “has a “While we recognize that the doctrine of stare decisis demands respect in

1 p. 4 42 N.H. 84 (1997). N.H. 392 (1994), State v. Costello, 138 N.H. 587 (1994), and State v. Comeau, N.H. 570 (1991), Petition of Hamel, 137 N.H. 488 (1993), State v. Hamel, 138 been implicitly overruled by subsequent cases such as State v. Johnson, 134 those that existed in McKenney, it argues that McKenney and Komisarek have Although the State concedes that the facts of the present case mirror

procedure and that “a legitimate state interest in applying the new procedure Claiming that she reasonably relied upon the established appellate

laws. Article 23 or discussed the purpose behind the prohibition of ex post facto McKenney, 126 N.H. at 18 p. 5 5. Neither case cited the express language of Part I, 5

to convict.” committed, nor provided greater punishment, nor changed the proof necessary

Dobbert v. Florida, 432 U.S. 282, 293 (1977). Since the

made criminal a theretofore innocent act, nor aggravated a crime previously McKenney, 126 N.H. at 18 p. 5 5. The statutory change in RSA 625:9, VIII “neither affecting the defendant’s appellate rights, as “procedural in nature.” See In the present case, we regard the amendment to RSA 625:9, VIII,

reasonable.” Komisarek, 116 N.H. at 428. cases involving prior acts” where “reliance on an established procedure is burden of demonstrating “a legitimate need to employ [a] new procedure in interpretation of the Ex Post Facto Clause to hold that the State had the overrule McKenney and Komisarek to the extent that they expanded the this rule has become no more than a remnant of abandoned doctrine. We jurisprudence. Accordingly, we are persuaded by the State’s argument that original interpretation of the Ex Post Facto Clause and our current We believe that McKenney and Komisarek are inconsistent with our

also provides greater punishment). though a law may disadvantage the defendant, it is not ex post facto unless it disadvantage.” Id.; see also Costello, 138 N.H. at p. 5 589 (explaining that even not ex post facto, “even if the procedural changes operate to a defendant’s elements of an offense, or changing the ultimate facts required to prove guilt, is does not affect substantive rights by inflicting greater punishment, altering the (quotation and brackets omitted). Accordingly, a change in procedural law that changes the ultimate facts required to prove guilt.” Comeau, 142 N.H. at 88 disadvantage a defendant are prohibited. whether it increases the punishment for or alters the elements of an offense, or whether a law imposes disadvantages or additional burdens, but rather on at 494. As such, “the appropriate focus in ex post facto analysis is not on embraces the “substance/procedure dichotomy.” Petition of Hamel, 137 N.H. adopted. In contrast to McKenney and Komisarek, our recent jurisprudence similarly returns to the limits extant when the constitutional prohibition was Our recent approach toward the retrospective application of laws

nature of the offense, or increase[s] the punishment.” Id. at 46. with a substantive change that “[makes] innocent acts criminal, alter[s] the a procedural change constitutes an ex post facto violation only when coupled

to the Clause’s historical roots and clarified that not all statutory changes that v. Youngblood, 497 U.S. 37 (1990), the United States Supreme Court returned Ballou, 12 p. 5 5 N.H. 304, 308-09 (1984) (quotations omitted). However, in Collins retrospective application of laws if they “disadvantage[d] the offender.” State v. Post Facto Clause of the Federal Constitution was interpreted to prohibit the clouded in the 1980s as we followed the federal approach. At this time, the Ex changes would be prohibited by the Ex Post Facto Clause, our analysis became Despite our original clarity in categorizing which types of statutory p. 6 6

concurred. BRODERICK, C.J., and DALIANIS, DUGGAN and GALWAY, JJ.,

class B misdemeanor. motion to remand the case to district court to be entered as a conviction for a relied upon the amendment to RSA p. 6 625:9, VIII when it granted the State’s I, Article 23 of the State Constitution. Therefore, the superior court properly application of the revised statute was not ex post facto and did not violate Part amendment did not affect the defendant’s substantive rights, the retrospective