2008-135, STATE OF NH v. MICHELLE CHRISICOS

The defendant, Michelle Chrisicos, appeals an order of the

and orally), for the defendant. Bernstein, Bartis & Mello, PLLC, of Nashua (Adam Bernstein 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

page is: http://www.courts.state.nh.us/supreme. v.

editorial errors in order that corrections may be made before the opinion goes No. 2008-135 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Hillsborough-southern judicial district 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 22 as protection.

p. 2 mandatory term or any portion thereof, provided the offender first facility where the sentence is to be served for the minimum

unconstitutional as violating the defendant’s State constitutional right to equal

of RSA 262:23, I, which provides, in pertinent part: violations of RSA 262:23. The court based its ruling upon the plain language

based on the rules and regulations of the county correctional

House of Corrections.” The court then ruled RSA 262:23, I, facially

qualify for home confinement where she had been charged with two distinct probation.

or her sentence under home confinement pursuant to RSA 651:19 sentencing court may order that any such offender may serve his defendant is doomed to serve the full minimum mandatory sentence at the paragraph shall be served in a county correctional facility. The program, Hillsborough County is the only New Hampshire county “in which a Any sentence of one year or less imposed pursuant to this

the trial court erred in sentencing the defendant to home confinement. Notwithstanding that ruling, the court found that the defendant did not within the meaning of RSA 262:23 and RSA 651:19,” and, therefore, held that probation department. The defendant requested one year of monitoring during the deferral period as “house arrest” by the sentence to the House of Corrections, deferred for two years, with confinement program.” 262:23 may only occur if the applicable correctional facility has a home

The trial court first noted that due to its lack of a home confinement from imposing the defendant’s requested sentence by

522.

electronic bracelet program, it does not have a home confinement program because the Hillsborough County House of Corrections “does not have an accordance with its rules and regulations. The defendant sought a Campbell, 152 N.H. at 520. We further concluded that

that “pursuant to RSA 651:19, sentencing to home confinement under RSA Hampshire (State v. Campbell), 152 N.H. 515 (2005). In Campbell, we held

pursuant to which: At the sentencing hearing, the court determined that it was prevented

confinement at the discretion of the prison administration in in the New Hampshire State Prison, stand committed, with home [T]he State requested two concurrent sentences of one to two years

The defendant pled guilty to both counts under a capped plea agreement,

prosecuted both indictments jointly. November 21, 2006, for a subsequent violation of RSA 262:23. The State then reconsidered that position on appeal. p. 3 for a defendant charged with two separate violations of that statute. It has

both necessary and prudent.” Accordingly, we consider “immediate resolution of [the constitutional] issue continue to arise until a definitive declaration is made by this court.

agreed with the defendant that RSA 262:23 did not preclude home confinement

trial court’s ruling, the issue of RSA 262:23’s constitutionality will likely

concurrently, to twelve months at the house of corrections, stand committed.

habitual offender offense.” We note that before the superior court, the State home confinement sentencing to defendants charged or convicted of only one be decided on other grounds,” because “[t]he plain language of [the statute] does not limit the availability of

unconstitutional by the superior court. In light of the uncertainty raised by the

N.H. 112, 115 (2004), but as a statute already declared facially

economy). This case presents RSA 262:23 not as an untested statute, with the home confinement sentence would be subsumed by the stand-committed N.H. 420, 422 (2003) (addressing constitutional claim in interest of judicial same time she was serving home confinement under the first sentence. The statutory question, for reasons of judicial economy. Cf. State v. Porelle, 149 defendant would be required to serve her stand-committed sentence at the (1991), we choose to reach the constitutional issue, without deciding the

turn to the constitutional ruling appealed by the State. Notwithstanding our ineligible for home confinement. She contends that RSA 262:23 does not 262:23 despite having been charged with two violations of that statute, and we defendant is correct that she is eligible for home confinement under RSA For purposes of this appeal, we assume, without deciding, that the

reasoned that “[e]ven if the sentences were ordered to run concurrently, the

On appeal, the defendant argues that the trial court erred in finding her

home confinement program once per lifetime.

sentenced to home confinement on the second indictment.” The court “[u]nder the plain language of the statute, the defendant could not be Citing the phrase “once per lifetime,” the trial court concluded that

RSA 262:23, I.

home confinement. Habitual offenders shall only be eligible for the serves 14 consecutive days of imprisonment prior to eligibility for sentencing order at issue in this case.

p. 4 certiorari is the only avenue by which the State may appeal the classification and the individual rights affected. . . . [A]bsent some result in substantial injustice. Here, we grant review because review by examining the purpose and scope of the State-created grant the writ sparingly and only where to do otherwise would

651:68-70, or to serve the sentence under home confinement, performance of uncompensated public service as provided in RSA State and Federal Constitutions was before the court, 4 separate federal constitutional analysis, the statute’s validity under both the

Constitution, we must first determine the appropriate standard of or has acted arbitrarily or capriciously. We exercise our power to In considering an equal protection challenge under our State

N.H. 226, 231 (1983), and cite federal opinions for guidance only, id. at 232-33. address the defendant’s claim under the State Constitution, State v. Ball, 124 us. See U.S. CONST. amend. XIV, § 1; N.H. CONST. pt. I, arts. 1, 2. We first purpose of obtaining and working at gainful employment, for the and is now presented to

(quotation omitted). We note that although the trial court did not undertake a review de novo.” Gonya v. Comm’r, N.H. Ins. Dep’t, 153 N.H. 521, 524 (2006) “The constitutionality of a statute involves a question of law, which we provided in part: RSA 651:19 (2007) (amended 2007) (emphasis added). 651:19.” RSA 262:23, I. RSA 651:19, at the time of the defendant’s offenses, RSA 651:19, as RSA 262:23, I, refers to “home confinement pursuant to RSA the law, or has engaged in an unsustainable exercise of discretion acted illegally in respect to jurisdiction, authority or observance of provided the correctional facility has a home confinement program. discretion of the court, to determine whether another tribunal has

under a criminal sentence may be released therefrom for the committed to a correctional institution other than state prison A sentencing court may order any person who has been

In addressing the constitutional issue, we consider both RSA 262:23 and

omitted). available only in the absence of a right to appeal, and only at the Petition of State of N.H. (State v. Marcoux), 154 N.H. 118, 121 (2006) (citations

accepted.

Review on certiorari is an extraordinary remedy, usually

cross-appeal should be treated as a petition for writ of certiorari, which we In a previous order, we assumed, without deciding, that the State’s its expressed intent. p. 5 home confinement programs in each county actually contradicts distinction actually motivated the legislature.” constitutional purposes whether the conceived reason for the challenged

economic loss to the family unit, and . . . sav[ing] the Department of “minimiz[ing] the disruption to the offender and family, . . . lessen[ing] the

habitual offenders. The failure of the legislature to provide for

articulate its reasons for enacting a statute, it is entirely irrelevant for

habitual offenders to home confinement is rationally related to the goals of

offender and family, to lessen the economic loss to the family unit, States Supreme Court has noted, “because we never require a legislature to behind home confinement were to minimize the disruption to the intent of the legislature in enacting the challenged statute. As the United

judges in counties with a home confinement program the option of sentencing related. We start with the not unreasonable premise that providing sentencing we conclude that it is a conceivable purpose to which the statute is rationally whether the purpose cited by the trial court actually motivated the legislature, Inc., 508 U.S. 307, 315 (1993). Nevertheless, even without inquiring into

negative every conceivable basis which might support [the classification],

and RSA 262:18. The legislative history indicates that the goals The State argues that the trial court erred by inquiring into the actual

(Citation omitted.)

[classification] is arbitrary or without some reasonable justification” and “to

relationship to the legislative intent and purpose of RSA 262:63 legislation is “rationally related to a legitimate state interest.” with a home confinement program does not have a rational [T]he classification of allowing home confinement only in counties

basis. The trial court found and ruled:

omitted).

the alleged statutory classification “has the burden to prove that the England v. City of Rochester, 156 N.H. 624, 630 (2007). The party challenging

Under the rational basis test, we determine whether the challenged

neither party seeks application of a more stringent standard than rational In re Sandra H., 150 N.H. 634, 637-38 (2004) (quotation omitted). On appeal,

right, or application of some recognized suspect classification, the infringement of a fundamental right, an important substantive p. 6 County.

elimination of the trial

evidence to explain the lack of a home confinement program” in Hillsborough

program is specifically created to determine whether the

conclude that such a purpose is irrational. analysis with respect to a home confinement program. We also cannot findings and legislative history” and notes that the State “did not present any have intended to allow each county to undertake a separate cost-benefit defendant counters that this argument “overlooks the trial court’s factual a home confinement program would outweigh the costs for that county.” The this new system throughout the State. In other words, the pilot test the efficacy of the new system in one county before mandating 6 in the other nine counties, results from the legislature’s decision to

justifies the disparate treatment alleged by the [defendant] in this case.” pilot program is used to justify a territorial discrepancy in the administration of Furthermore, we noted in Opinion of the Justices that “[e]ven where no

omitted). We conclude that it is not inconceivable that the legislature could foundation in the record.” Verizon New England, 156 N.H. at 631 (quotation the legislature to permit each county to decide for itself whether the benefits of which might support [the classification], whether or not the basis has a noted above, the defendant has the burden “to negative every conceivable basis Appeal of Salem Regional Med. Ctr. the bill, between Rockingham County defendants and defendants, 134 N.H. 207, 215 (1991). Rather, as

We will not, however, “independently examine the factual basis which

not violate equal protection:

that would replace the right to a trial

In the instant case, the State argues that “[i]t was not irrational here for

Opinion of the Justices and delivering justice more efficiently. The classification drawn by, 135 N.H. at 553-54.

related to a legitimate State interest. classification created by the program is thus perforce rationally We concluded, under the rational basis test, that the proposed legislation did expenditures and deliver justice more efficiently as intended. The

defendants convicted of misdemeanors in district court in Rockingham County

The legitimate State interest here is reducing State expenditures

a jury trial in district court and a direct appeal of issues of law to this court.

(1992), we considered proposed legislation instituting a pilot program for In Opinion of the Justices (Misdemeanor Trial De Novo), 135 N.H. 549

whether the legislature was required to implement those goals in all counties. Corrections the expense of housing habitual offenders.” We now inquire in

Federal Constitution under these circumstances, Because the State Constitution provides at least as much protection as the county”), violate the defendant’s right to equal protection under the State Constitution. BRODERICK, C.J., and DALIANIS, DU GGAN and GALWAY, JJ., concurred. treated no differently than other similarly situated drug offenders in that program in Grays Harbor County at the time of Little’s prosecution . . . [he] was Affirmed. protection purposes.”); a crime in a large or resource-rich county is not a classification for equal Campbell. county or one with limited financial resources as compared to committing such I, and accordingly affirm the defendant’s sentence consistent with our holding therefore reverse the trial court’s ruling on the constitutionality of RSA 262:23, the Equal Protection Clause. under the Federal Constitution as we do under the State Constitution. We Stated alternatively, the defendant has not shown a classification cognizable by 551-52; Opinion of the Justices, 135 N.H. at 553-54, we reach the same result forensic diversion program in county in which defendant committed crime). see Salsburg, 346 U.S. at

within the places or municipalities for which such regulations are made.” For the foregoing reasons, we conclude that RSA 262:23, I, does not

“no defendants charged with drug-related crimes had access to a drug court Little, 66 P.3d at 1101.

constitutional requisite.” defendant is eligible for home confinement. crime contemplated by the forensic diversion program statute in a smaller convicted in Hillsborough County of violating RSA 262:23, I, for no such See Lomont, 852 N.E.2d at 100 p. 7 7 (“[C]ommitting a

N.E.2d 1002, 100 p. 7 7 (Ind. Ct. App. 2006) (applying same reasoning to lack of

review denied, 81 P.3d 119 (Wash. 2003); Lomont v. State, 852 do not injuriously affect or discriminate between persons or classes of persons

drug court program in some counties but not others, reasoning that because 1100-01 (Wash. Ct. App.) (finding no equal protection violation in availability of as such rather than between areas” and that “[t]erritorial uniformity is not a Cf. State v. Little, 66 P.3d 1099,

abridged.” Here, the defendant is treated no differently than any other defendant

Missouri v. Lewis, 101 U.S. 22, 30 (18 p. 7 79).

classes of persons. It has not respect to local and municipal regulations that Court has said of the Fourteenth Amendment: “It contemplates persons and (construing Federal Equal Protection Clause). As the United States Supreme

from the principles that equal protection “relates to equality between persons

Opinion of the Justices, 135 N.H. at 554. This outcome follows

territory were treated alike and constitutional protections were not otherwise justice, courts have often upheld intra-state differences if persons within each