2008-378, STATE OF NH v. GABRIEL BILC

The defendant, Gabriel Bilc, appeals an order of the

the brief and orally), for the defendant. Kenna, Johnston & Sharkey, P.A., of Manchester (Kevin E. Sharkey on

general, on the memorandum of law and orally), for the State. Kelly A. Ayotte, attorney general (Nicholas Cort, assistant attorney to press. Errors may be reported by E-mail at the following address:

page is: http://www.courts.state.nh.us/supreme. THE STATE OF NEW HAMPSHIRE

No. 2008-378 editorial errors in order that corrections may be made before the opinion goes Hillsborough-northern judicial district Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any 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 opinions for guidance only.

p. 2 court with a trial supreme court. defendant may appeal questions of law arising therefrom to the

cases without exception.” We first address this claim under the State Constitution and cite federal to the course of the common law is secured to the defendant in all criminal with RSA 599:1 (Supp. 2008), deprived the defendant of his right to a jury trial. 2 State agrees that, as applied in this case, RSA 625:9, VIII, read in conjunction

without a jury and if found guilty is given the right of appeal to the superior misdemeanors under which a person charged is tried in the district court guilty, the superior court shall sentence the defendant, and the the district court for imposition of the fines previously assessed. If, after a jury trial in the superior court, the defendant is found therefrom to obtain a de novo jury trial in the superior court . . . . misdemeanor, at the time the sentence is declared, may appeal A person convicted by a district court of a class A

“It has never been denied or doubted that by this article trial by jury according provides, in part: (1966). Appeals from the district court are governed by RSA 599:1, which Constitution and the Sixth Amendment to the United States Constitution. The de novo by jury. See State v. Despres, 107 N.H. 297, 298

New Hampshire has a two-tier statutory scheme for the trial of class A the Federal Constitution. our State Constitution, we need not address the defendant’s argument under imposed. The trial court granted the State’s motion and remanded the cases to Morrill, 123 N.H. 707, 711 (1983). possible penalty of one year’s incarceration, regardless of the sentence actually a jury trial is a fundamental right under our State Constitution. State v. trial whenever a defendant is charged with a criminal offense carrying a State v. Gerry, 68 N.H. 495, 496 (1896). The right to

liberty, or estate, but by the judgment of his peers, or the law of the land . . . .” privileges, put out of the protection of the law, exiled or deprived of his life, not entitled to a jury trial violates Part I, Article 15 of the New Hampshire arrested, imprisoned, despoiled, or deprived of his property, immunities, or Part I, Article 15 of the State Constitution provides: “No subject shall be

Because we hold that the defendant was denied his right to a jury trial under

On appeal the defendant argues that the trial court’s ruling that he was

imposed consist only of fines less than $1,200. The defendant objected, misdemeanors to class B misdemeanor convictions whenever the sentences because RSA 625:9, VIII (2007) converts district court convictions for class A the defendant’s appeal to the superior court for a trial de novo was improper The State moved to remand the cases to the district court, arguing that he was to have it.

p. 3 tutored but perhaps less sympathetic reaction of the single judge, preferred the common-sense judgment of a jury to the more against the compliant, biased, or eccentric judge. If the defendant

safeguard against the corrupt or overzealous prosecutor and

right to be tried by a jury of his peers gave him an inestimable protection against arbitrary action. Providing an accused with the create an independent judiciary but insisted upon further

of higher authority. The framers of the constitutions strove to

As the Court explained: obligation to extend due process of law to all persons within their jurisdiction.” incarceration and a $150 fine. sentence as a class B misdemeanor. Id. at 146. The Court was not persuaded, by up to two years in prison, he had been sentenced to only sixty days’ RSA 651:2, IV(a), the court shall record such conviction and Although the defendant in in excess of the maximum provided for a class B misdemeanor in Duncan was charged with a crime punishable

Id. at 155-56. to eliminate enemies and against judges too responsive to the voice brackets omitted.)

fundamental right and hence must be recognized by the States as part of their

incarceration or a suspended or deferred jail sentence or any fine

necessary to protect against unfounded criminal charges brought these charges” and therefore “has no right to a jury trial.” (Quotation and constitutions knew from history and experience that it was prevent oppression by the Government. Those who wrote our A right to jury trial is granted to criminal defendants in order to

Supreme Court held that “the right to jury trial in serious criminal cases is a In Duncan v. Louisiana, 391 U.S. 145, 154 (1968), the United States sentenced and such sentence does not include any period of actual

convictions, “the defendant cannot face the possibility of incarceration from class A misdemeanor convictions must be recorded as class B misdemeanor Based upon this statute, the superior court ruled that because the defendant’s a jury.”

If a person convicted of a class A misdemeanor has been

As amended in 2007, RSA 625:9, VIII provides:

omitted).

Jenkins v. Canaan Mun. Ct., 116 N.H. 616, 618 (1976) (quotation

absolute right of appeal to the Superior Court where the trial is de novo before We have held that this two-tier system is constitutional in that it assures “an p. 4 4

ruling and remand for proceedings consistent with this opinion. to jury trial and not the possibly arbitrary decision-making of the trial court.” 15 of our State Constitution. Accordingly, we reverse the superior court’s

the sentence in fact imposed. guaranteed to “all criminal defendants facing the possibility of incarceration.” DALIANIS, DUGGAN and HICKS, JJ., concurred.

legislative determination of an offense’s seriousness which entitles an accused 625:9, VIII operated to deny the defendant’s rights in violation of Part I, Article is used to determine whether a jury trial is required). We agree that “it is the court. We hold that, as applied by the superior court, the provisions of RSA seriousness with which society regards the offense and it is that indication that incarceration, thereby entitling him to seek a de novo jury trial in the superior opportunity for a jury trial); been found guilty of two class A misdemeanors, the defendant faced possible Opinion of the Justices (DWI Jury Trials), 135 N.H. 538, 5 p. 4 42 (1992). Having

imprisonment; the right to a jury trial attaches to those crimes regardless of Under the New Hampshire Constitution, the right to a jury trial is

State v. Grimble, 397 So. 2d 125 p. 4 4, 1256 (La. 1980).

(1996) (the maximum authorized penalty provides an objective indication of the

(the possibility of a one-year sentence is enough in itself to require the

include any offense which carries a maximum penalty of more than six months Id. Serious crimes, for purposes of the Sixth Amendment, are defined to the penalty authorized, not the one actually imposed, is the relevant measure. question.” Id. at 160 (quotation and citation omitted). Moreover, the severity of may be taken as a gauge of its social and ethical judgments of the crime in is of “major relevance.” Id. “The penalty authorized by the law of the locality serious, the Court reasoned that the penalty authorized for a particular crime was not entitled to a jury trial. Id. at 159. In determining whether a crime is however, by the State’s argument that based upon his sentence, the defendant