2008-877, IN RE KIRSTEN P.

The juvenile, Kirsten P., appeals the order of the Claremont

and orally, for the defendant. to press. Errors may be reported by E-mail at the following address: Theodore Lothstein, assistant appellate defender, of Concord, on the brief

attorney general, on the brief and orally), for the State. Kelly A. Ayotte, attorney general (Susan P. McGinnis, senior assistant

editorial errors in order that corrections may be made before the opinion goes No. 2007-877 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Claremont Family Division 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 p. 2 22 as 2

resources whenever possible.”

dismissed upon motion by the juvenile. We conclude that it does. second delinquency petition when the original delinquency petition was

Court ((quotation and brackets omitted). “[O]ne of the principal goals of the juvenile statute considered as a whole.

constitutional rights, and encourages the use of rehabilitative and treatment juvenile’s foster mother waived timely service. The Court ( p. 2 2003-248, 150 N.H. 751, 752 (2004). “It guarantees children their custodian, her foster mother. It does not appear from the record that the that has as its primary concern the welfare of the child. See In re Juvenile Division for Children, Youth and Families, necessitating service on her legal RSA chapter 169-B is part of a comprehensive juvenile justice system

language that the legislature did not see fit to include. of the prescribed statutory time limits. set forth in RSA 169-B:14, II began anew upon the juvenile’s arraignment on a Id. as written and will not consider what the legislature might have said or add second petition, arguing that the adjudicatory hearing was scheduled outside meaning to the words used. Id. We interpret legislative intent from the statute examining the language of the statute, we ascribe the plain and ordinary

limit began to run from the date of her first arraignment on September 1 p. 2 2, Brown, 155 N.H. 590, 591 (2007). In matters of statutory interpretation, we occur within thirty days of her second arraignment date, the thirty-day time We review the trial court’s statutory interpretation de novo. State v.

insufficient because the juvenile was in the custody of the New Hampshire

On appeal, the sole issue before us is whether the thirty-day time limit November 7. However, on November p. 2 2, the juvenile moved to dismiss the true on the petition. This appeal followed. Yazinski, J.) denied the motion, and subsequently entered a finding of

although the adjudicatory hearing on the second petition was scheduled to . . . 30 days of arraignment for minors not detained.” The juvenile argued that, II provides, in pertinent part: “The adjudicatory hearing shall be held within at the arraignment. However, the juvenile argued that her mother’s waiver was See RSA 169-B:14, II. RSA 169-B:14, neither had been properly served. The juvenile’s mother waived timely service juvenile’s mother and foster mother were present at the arraignment, although took place on October 11, and the adjudicatory hearing was scheduled for A second delinquency petition was filed the next day. The arraignment

the petition without prejudice on October 4.

before hearing). Although the record is not clear-cut, it appears that both the (requiring service no less than twenty four hours and no more than seven days p. 3 3 indictment and does not include the time the first indictment was pending.” for purposes of RSA 169-B:14, II.

indictment must be included in the Sixth Amendment speedy trial calculation. and subsequently reindicts, the time during the pendency of the first

purposes of speedy trial analysis begins to run from the time of the second constitutional speedy trial right, and, thus, should not have restarted the clock simple expedient of dismissing and reindicting whenever speedy trial time was would allow the government “to nullify a defendant’s speedy trial right by the his right to a speedy trial. Colombo, 852 F.2d at 2 p. 3 3. The First Circuit reasoned that to hold otherwise

Circuit determined that, when the government voluntarily dismisses charges to support an element of the alleged offenses. States v. Colombo, 852 F.2d 19 (1st Cir. 1988). Id. In that case, the First reasoning and holding of the Court of Appeals for the First Circuit” in United Id. However, we determined that this view had to be “tempered by the

upon the same conduct, “the relevant period of time to be considered for dismissal and refiling of charges does not restart the clock for purposes of the State enters a nolle prosequi in good faith and subsequently reindicts based

indictments in November 1986 and his trial in March 1989, arguing it violated a speedy adjudication. Specifically, relying upon Id. at 822. On appeal, he challenged the delay between his original State subsequently reindicted the defendant, and he was eventually convicted.

two pending indictments after concluding that there was insufficient evidence In Adams, the State entered a nolle prosequi on each of the defendant’s

expeditious resolution of his alleged delinquency.” (1991), she argues that the interruption of proceedings occasioned by the

restarting the statutory clock with her second arraignment violated her right to (2008). The juvenile contends that this similarity supports her assertion that concurrent legislative concern for procedural due process.” In re Russell C., 120 N.H. at 266; In re Juvenile 2007-150, 156 N.H. 800, 802 alleged delinquency is analogous to an adult offender’s right to a speedy trial. We have stated that a juvenile’s right to the expeditious resolution of

complied with.” Id. (quotation omitted). “effectuate[s] a substantive right requiring the court to forfeit jurisdiction if not 224 (quotation omitted). This thirty-day time limit is mandatory and

adjudicatory hearings are a legislative pronouncement of a child’s right to the proceeding may have on a juvenile, the statute’s time limits on juvenile 120 N.H. 260, 267 (1980). “Recognizing the impact that delays in a court

“The prescription of mandatory time limits, however, also reflects the

p. 3 376, 380 (1984). rights against the vicissitudes of unlimited discretion.” In re Larry B., 125 N.H. statutes [is] to create procedural safeguards sufficient to protect individual therefore, are the main reason for the delay.

p. 4 time consuming process. The defendant’s efforts, re-commence the prosecution from square one, a dismissed, the government must, against its will,

defendant manages to have all charges against him

this, and excludes only the time between

Speedy Trial Act, but it makes sense. Once a consistent with the judgment embodied in the Amendment speedy trial purposes. Not only is this into play. Again, the Speedy Trial Act recognizes

the second indictment is relevant for Sixth charges, however, a different consideration comes

initiating a dismissal that restarted the clock in its favor. Thus, the State did not nullify the juvenile’s right to a speedy adjudication by the juvenile does not make any allegation of bad faith on the part of the State. the same offense, only the delay in prosecution of When the government voluntarily dismisses the

calculating the speedy trial clock. It stated:

sufficient to satisfy the notice requirements set forth in RSA 169-B:7. Further, and the defendant is subsequently reindicted for

indictment is dismissed on motion of a defendant, The courts have implicitly assumed that if an

a dismissal initiated by a defendant and one initiated by the government in In Colombo, the First Circuit explicitly recognized the distinction between

indictment is

objected to its dismissal and believed that the mother’s waiver of service was the original petition. To the contrary, the record demonstrates that the State Unlike in Adams and Colombo, the State did not take any action to terminate dismissed as a direct result of a motion by the juvenile requesting such action. the circumstances of this case. Here, the original delinquency petition was Adams, 133 N.H. at 823 (quotation omitted). This rationale does not apply to speedy trial rights by the simple expedient of dismissing and reindicting.” this principle was to prevent the government from “nullify[ing] a defendant’s reindicted. We specifically noted, quoting Colombo, that the reasoning behind

nolle prossed by the State and a defendant is subsequently

for the proposition that the speedy trial clock does not restart when an not restart the juvenile time limits.” We disagree. Adams and Colombo stand proposition that the dismissal and refiling of the petition in this case should The juvenile contends that both Adams and Colombo “support the

the time the first indictments were pending.” Adams, 133 N.H. at 823. Adams, and concluded that “the relevant period of delay does in fact include running out on its prosecution.” Id. at 24. We adopted this reasoning in dismissal of the petition against her.

p. 5 situations in which the juvenile has moved for, and successfully obtained, dismissal and subsequent petition. However, our decision today is limited to might be correct if the clock restarted in every circumstance involving a

safeguard, to a mere procedural directive, easily circumvented.” The juvenile

create procedural safeguards “against the vicissitudes of unlimited discretion.”

limit set forth in RSA 169-B:14, II remains unchanged. Thus, the juvenile

fundamentally alter the time limits, from a jurisdictional due process

correctly notes that one of the principal goals of the juvenile statutes is to

juvenile has not cited, nor are we able to find, any support for this distinction.

the court or the State in the adjudication of juvenile cases. The thirty-day time

clock, arguing that “[t]he practical effect of such machinations would be to for abuse by prosecutors who may withdraw a petition simply to restart the objectives of the time limits. The juvenile specifically questions the potential by allowing a juvenile-initiated dismissal to restart the clock. The juvenile

anticipated the filing of a second petition from one that did not. However, the

under the circumstances of this case does not confer unlimited discretion upon See In re Larry B., 125 N.H. at 380. However, allowing the clock to restart prosecution.

whenever speedy trial time was running out on its

a second petition undermines the jurisdictional nature and due process We disagree that the policies at the core of this statute are undermined

intended to distinguish a dismissal at the request of the juvenile that granted by the court, a dismissal without prejudice. Presumably, the juvenile which a second petition could not have been filed, and the relief actually

the simple expedient of dismissing and reindicting

The juvenile maintains that restarting the clock with the arraignment on principles set forth in

distinction between her motion, a motion to dismiss with prejudice under For the first time at oral argument, the juvenile asked us to draw a

upon a successful motion by the juvenile. be able to nullify a defendant’s speedy trial right by set forth in RSA 169-B:14, II restarts when the original petition is dismissed analysis. Were it otherwise, the government would

and is equally applicable in Sixth Amendment Colombo and adopted in Adams, that the statutory clock

reasoning persuasive on this issue and conclude, consistent with speedy trial restart under the circumstances of this case. We find the First Circuit’s assertion, when analogized to Colombo, the statutory clock at issue here would Colombo, 852 F.2d at 23-24 (citations omitted). Contrary to the juvenile’s

of the first indictment. This is a sound approach, indictments, and not the time during the pendency p. 6 6

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

N.H. at 224. of the matter, consistent with the purpose of the statute. See In re Eric C., 124 continues to be protected against prolonged delays that postpone adjudication