2008-026, STATE OF NH v. JAMES MORAN

Consumer Protection Act (CPA),

good behavior” and prohibited from “own[ing], operat[ing] or manag[ing] a probation, effective upon release. The defendant was also “ordered to be of the house of correction, stand committed; restitution; and two years of

of committing an unfair or deceptive trade practice in violation of the

Court (

2004); RSA 358-A:6, I (1995). He was sentenced in 2003 to twelve months in

The record supports the following. The defendant was convicted in 2002

month suspended jail sentence. We affirm. Arnold, J.) bringing forward and imposing nine months of a twelve- HICKS, J. The defendant, James Moran, appeals a ruling of the Superior

and orally, for the defendant. Paul Borchardt, assistant appellate defender, of Concord, on the brief

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 (Ann M. Rice, associate attorney general,

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

editorial errors in order that corrections may be made before the opinion goes No. 2008-026 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Sullivan Readers are requested to notify the Reporter, Supreme Court of New ___________________________

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 prohibition was not a condition of the suspended jail sentence.

p. 2 suspend incarceration for a misdemeanor offense; and (2) the ten-year knowingly, intelligently, and voluntarily.” otherwise illegal] sentence legal, regardless of whether that consent was given

sentence.

manag[ing] a home contracting business for a period of 10 years.” and, ultimately, that he refrain from “own[ing], operat[ing], control[ling] or

. . . as a general contractor.” because: (1) the length of elapsed time exceeded the trial court’s authority to

disagree. In New Hampshire, “consent of the defendant cannot make [an

restitution and comply with the ten-year prohibition outlined in the 2004 suspended for a period of ten years. He was further ordered to make twelve months in the house of correction, stand committed, with three months

The court also ordered two years of probation, restitution, and “good behavior” (1996).

ability to challenge the suspended sentence by negotiating a plea in 2004. We argument for our review. The State claims that the defendant waived his We first consider whether the defendant properly preserved each

be imposed after a hearing at the request of the State brought within 4 year(s).” house of correction, suspended, provided that “[a]ny suspended sentence may (the 2004 offense). The trial court sentenced him to twelve months in the proscription on certain types of work; had failed to make timely restitution On appeal, the defendant argues that the trial court erred by bringing

After a hearing, the trial court found “that the State [had] met its burden

2004. He pled guilty to another misdemeanor CPA violation in March 2004 because the defendant had violated the good behavior provision and ten-year the State moved to bring forward the twelve-month suspended sentence March 2006, he remained on probation for the earlier offense. In April 2007, Although the defendant completed probation for the 2004 offense in

The defendant began serving his twelve-month sentence in December

defendant did not appeal his sentence. See id. at 452. finding on direct appeal. See State v. Moran, 151 N.H. 450, 454 (2004). The construction or building trades company for 10 years.” We affirmed the guilty p. 3 3

impose a suspended sentence for an unsustainable exercise of discretion,”

651:20 contains no express limit upon how long a sentence may be suspended. We recognized in State v. Ingerson, 1 p. 3 30 N.H. 112 (1987), that RSA

promote justice.” Id. (quotation omitted); see RSA 625: p. 3 3 (2007). prohibition, was not. Accordingly, that issue is not preserved for our review, but rather construe them according to the fair import of their terms and to is clear on its face.” Id. “Finally, we do not strictly construe criminal statutes, (amended 2008). Although we normally “review a trial court’s decision to isolation.” Id. “We do not consider legislative history to construe a statute that interpret statutes in the context of the overall statutory scheme and not in language according to its plain and ordinary meaning.” Id. “Furthermore, we we first look to the language of the statute itself, and, if possible, construe that in the words of a statute considered as a whole.” Id. “In interpreting a statute, “This court is the final arbiter of the intent of the legislature as expressed

Laporte), 157 N.H. 229, 2 p. 3 31 (2008). interpretation, which we review de novo. Petition of State of N.H. (State v. Gibbs, 157 N.H. at 540, resolution of the instant dispute requires statutory our review of the record shows that his second, concerning the ten-year

court’s authority to suspend a misdemeanor jail sentence is RSA 651:20 (2007) The parties agree that the relevant statute governing the sentencing

imposition of sentence); II

authority to suspend a misdemeanor jail sentence. substantive arguments concerning only the challenge to the trial court’s see State v. Patterson, 145 N.H. 462, 466-67 (2000), and we turn to the parties’

Although the defendant’s first argument was asserted in the trial court,

imposition does not bar the later filing of an extraordinary writ.”). 46 (2005) (“[A] defendant’s failure to object to a sentence at the time of its

157 N.H. 5 p. 3 38, 5 p. 4 40 (2008) (discussing and addressing merits of appeal of on the merits issued in an imposition of sentence proceeding”); State v. Gibbs, R. 3 (defining “Mandatory appeal” to exclude “an appeal from a final decision presented these arguments to the trial court in the first instance. See Sup. Ct. sentence is properly before us on discretionary appeal to the extent that he Cunningham, 128 N.H. 374, 378 (1986), the legality of imposing his suspended court lacked jurisdiction to deprive him of his liberty, see Baker v. direct appeal. However, because the defendant has asserted that the trial because it is more accurately described as a collateral challenge rather than a is true, as the State points out, that the instant case is procedurally distinct We find the State’s procedural distinction from Burgess unpersuasive. It 4

complies with the requirements of due process.” court’s power to suspend, provided that the sentencing process as a whole

suspend either the imposition or the execution of a criminal sentence.” portion of [an] original sentence while it remains unserved.” acting under RSA 651:20, . . . [and within its limitations,] may suspend any exercise of authority to suspend sentences. We have said “that the trial judge,

306, 313 (2006); see Burroughs, 113 N.H. at 2 p. 4 4.

116 N.H. 395, 397 (1976). The legislature may further “circumscribe the four-year period established by the 200 p. 4 4 sentence. State v. Lemire, and imposed suspended incarceration roughly three and a half years into the practice and precedent it has been assumed that courts had the power to sentence suspension. Much to the contrary, the trial court brought forward RSA 651:20 is the legislative enactment presently governing the judicial

(2003). subject only to constitutional limitations. Hampshire Practice, Criminal Practice and Procedure § 33.22, at p. 4 482-83 misdemeanor sentence. State v. Drew, 75 N.H. 402, 403 (1909); see also 2 R. McNamara, New interest of justice, the trial court possesses broad, inherent power to suspend a permissibly limit its full exercise, Couture v. Brown, 82 N.H. 459, 461 (1926); sentence may be suspended confirm this power, id. at 520, and may Valrand, 103 N.H. at 519. Statutes prescribing the terms upon which a

N.H. p. 4 490, 495 (1992), “[f]rom the earliest times in this state as a matter of insofar as they rely upon the premise that the trial court sanctioned perpetual State v. Farrow, 140 N.H. 473, 476 (1995); State v. W.J.T. Enterprises, 136 from a legislative grant, see, e.g., State v. Kierstead, 141 N.H. 803, 804 (1997); (1961). While dicta in recent cases might suggest that this authority derives Burroughs, 113 N.H. 21, 22 (1973); State v. Valrand, 103 N.H. 518, 519 intent to permit the judiciary to exercise wide-ranging sentencing discretion See State v. Smith, 119 N.H. 674, 675 (1979); State v.

Next, we observe that, in order to fashion an appropriate sentence in the

limiting constructions derived either from the maximum probation periods,

We find the absurd results posited by the defendant unpersuasive

offense.” Conversely, the State argues that this absence signals legislative of incarceration plus the maximum length of probation for the underlying RSA 651:21 (2007); RSA 651:2, V (2007), or from adding “the maximum length

various absurd results and, thus, should be rejected in favor of his alternative The defendant argues that the absence of any express time limit leads to

significance. Ingerson, 130 N.H. at 115. Both parties agree on this point, but dispute its options available to a presiding justice when fashioning a proper sanction, p. 5 RSA 651:21. Imposing probation, however, is but one of multiple sentencing

imposed “during the time any portion of the sentence remains suspended.” constraints placed upon the lesser. probation within RSA 651:2, V, as that would be limiting the greater by the provides no vehicle for importing into RSA 651:20 the temporal limits upon

suspended sentence. RSA 651:21 does indicate that probation may be

conditions as the court may order.” RSA 651:21. Accordingly, RSA 651:21

not mark the end of the sentencing function).

suspend within RSA 651:21, the statute which governs the revocation of a years from the date of the sentence and not thereafter. further suspend[ing] any part not ordered to be served upon such terms and constitutional objectives of punishment, rehabilitation and deterrence.” subsequent amendments. in full or in such parts and at such times as is deemed best, . . . [and/or] sentence to a particular individual in the manner best suited to accomplish the options include “order[ing] that the defendant serve [the suspended] sentence the judiciary in the rehabilitative aspect of the sentencing function.”). Other id.; State v. White, 131 N.H. 555, 559 (1989) (“Probation is a tool available to

Contrary to the dissent, we find no temporal limits on the power to mittimus for the service of the sentence may be issued within three

General Court would presumably have clarified the text in the course of the five deliberate. The judiciary has a recognized need for “options to adapt [a] 1990, 266:3. If we had incorrectly construed the statute in Ingerson, the See Laws 1996, 286:5; Laws 1994, 129:1, 192:5; Laws 1992, 254:13; Laws versions of RSA 651:20). None of these amendments included temporal limits. (State v. Fischer), 152 N.H. 205, 211-13 (2005) (discussing the different Ingerson and prior to the defendant’s conviction. See Petition of State of N.H. RSA 651:20 five times since we pointed out the lack of temporal limits in Supporting this presumption is the fact that the legislature amended

Burroughs, 113 N.H. at 24. house of correction is suspended or the case is otherwise filed, a

exercise of suspension authority. We presume that this omission was three-year cap was omitted from RSA 651:20, the new statute governing the With the enactment of the Criminal Code in 1971, Laws 1971, 518:1, the

RSA 607:12 (1955) (repealed 1973).

When, in case of a misdemeanor, execution of a sentence to the

suspension of a misdemeanor sentence, providing: Prior to enacting RSA 651:20, the legislature limited to three years the trial court cannot suspend a sentence indefinitely.

p. 6 we have previously held that, based on the defendant’s due process right, the

suspend a sentence. sentence. This silence does not mean that no time limit exists. For example,

misdemeanor charges and received a sixty-day suspended sentence degree, extent and method for punishment.” 112, 114 (1987). In Ingerson, the defendant pleaded no contest to two

(2007 & Supp. 2008) imposes no limit on the length of time the trial court may RSA 651:20 is silent, however, as to a time limit for suspension of a

provides the trial court with statutory authority to suspend a sentence. v. Valrand, 103 N.H. 518, 520 (1961). RSA 651:20 (2007) (amended 2008) courts to suspend either the imposition or the execution of a sentence.” State provisions for criminal sentences has confirmed the common-law power of the DUGGAN, J., dissented. (1974) (citing N.H. CONST. pt. II, art. 5). “The statutory development of

“The constitution assigns to the legislature the power . . . to fix the

limitations. 651:20 words that the legislature did not see fit to include. appeal. I write separately, however, because I disagree that RSA chapter 651 argument regarding the ten-year construction prohibition was not preserved for DUGGAN, J., dissenting. I agree with the majority that the defendant’s

authority to call forward either [the] conviction or [the] sentence . . . .” informed about the time period in which the trial court may exercise its BRODERICK, C.J., and DALIANIS and GALWAY, JJ., concurred; indefinitely because “fundamental fairness . . . entitles [the defendant] to be

See, e.g., N.H. CONST. pt. I, arts. 15, 18.

incarceration is bounded on a case-by-case basis only by constitutional court’s sentencing discretion with respect to suspending misdemeanor court . . . .” (emphasis added)). Accordingly, we decline to read into RSA the legislature.” Id. at 117. It may so act. Unless and until it does, the trial suspended sentences “would in our view be . . . a policy area better decided by Ingerson, 130 N.H. at 114. However, the temporal maximum upon all

Undoubtably, a misdemeanor jail sentence cannot be suspended

Gubitosi, 157 N.H. 720, 724 (2008).

sentence to imprisonment of any person may be suspended by the sentencing provision of law, except as provided in subparagraphs (a), (b), and (c), the suspend incarceration. See RSA 651:20, I (“Notwithstanding any other are the only legislative limitations upon the judicial exercise of authority to Furthermore, the text of RSA 651:20 makes clear that its subparagraphs continue to suspend a portion of the sentence for additional periods of time.

p. 7 a whole,

included a time limitation. Here, unlike

until the defendant has served the entire twelve months, the trial court may 7 twelve-month sentence could be hanging over him for fourteen years. In fact, time of the original sentencing, the defendant could not have known that the

whether this was a legal sentence, we must consider the sentencing statutes as

we did not interpret the sentencing statutes to determine if the legislature

nine months and suspended the remaining three months for ten years. At the

see RSA ch. 651, instead of interpreting RSA 651:20 in isolation. See due process analysis.

the defendant’s sentence for a specific time — four years. To determine

issue required a due process analysis and not statutory interpretation. Thus, court’s authority to bring forward a suspended sentence indefinitely. That N.H. at 117 (emphasis added). The issue in Ingerson, however, was the trial an invasion of a policy area better decided by the legislature.” Ingerson, 130 this case under our constitutional supervisory authority would in our view be review as to a reasonable temporal limit to be applied in such circumstances as the State called forward the suspended sentence and the trial court imposed determinate length. Instead we stated: “For us to make a determination on imposed a twelve-month sentence suspended for four years. In the final year, Ingerson did not address suspended sentences of a temporal limit of his sentence. On his misdemeanor conviction, the trial court We have only addressed the limits of RSA 651:20 within the context of a

not know the upper limit of his sentence. See to the defendant that the power exists.” State v. Sideris, 157 N.H. 258, 264 (2008). Thus, the defendant still does comprehensive statute or rule of court which would give some advance notice

has been exacted by the court . . . .”). In brought him to court must know in plain and certain terms what punishment

sentence. Here, the defendant did not have advance notice as to the upper

authority to call forward either her conviction or her sentence.” Id.

would be praiseworthy penology but it should be exercised under a Valrand, 103 N.H. at 520. We stated that: “It is conceivable that such a power trial court could require the defendant to serve an intermittent sentence.

conclusion of the sentencing proceeding, a defendant and the society which

See Stapleford v. Perrin, 122 N.H. 1083, 1087 (1982) (“At the

Due process requires advance notice of the outer limits of a defendant’s

informed about the time period in which the trial court may exercise its article 15 of the New Hampshire Constitution, entitles [the defendant] to be fairness, a basis for the defendant’s due process right, as provided by part I, suspended sentence two and a half years later. Id. We held that “fundamental conditioned upon good behavior. Id. at 113. The State moved to impose the p. 8 651:21 are inconsistent.

considers best.”

period of time not to exceed two years. Otherwise, RSA 651:20 and RSA

impermissible.

conditions as the court may order and further suspend any part not ordered to be served upon such terms and misdemeanor, it logically follows that the suspended sentence can only be for a imposing a term of probation). sentence is suspended and probation can only be for a period of two years for a court is permitted to place the defendant on probation during the time the

each other.”). Thus, suspending the sentence for four years in this case was

balance of the sentence or a portion thereof, and place the defendant on

sentences. Jackson also compared probation and sentence in full or in such parts and at such times as is deemed best, may held that sentencing court only had authority to suspend sentence when Jackson, 541 P.2d at 26 (federal cases construing the analogous federal statute hold that the probation restriction also applies to suspended sentences. exceed 5 years for a felony and 2 years for a class A misdemeanor.” If the trial probation provision, see 18 U.S.C.A. § 3651, which used similar language, to probation “shall not exceed five years.” Id. Jackson looked to the federal suspended sentences. Id. A separate provision, however, provided that . . . they should be construed, so far as reasonably possible, not to contradict Id. at 25. The provision did not contain a time limit for

which provides: “[A] court . . . may suspend the imposition or execution or

Jackson, 541 P.2d at 26. Jackson interpreted the Alaska statute,

the five-year statutory restriction on probation also applies to suspended any suspended sentence the court may order that the defendant serve such State, 541 P.2d 23 (Alaska 1975), where the Alaska Supreme Court held that petition to suspend sentence . . . .” RSA 651:21 provides: “Upon revocation of This reading of RSA 651:20 and RSA 651:21 finds support in Jackson v. time of imposition of the sentence or at any time thereafter in response to a “The period of probation shall be for a period to be fixed by the court not to

well established that where several statutes deal with the same subject matter

imprisonment of any person may be suspended by the sentencing court at the suspended sentences. RSA 651:2, V(a) (2007) limits the period of probation: Reading RSA 651:20 and RSA 651:21 together provides for a limit on

added.) during the time any portion of the sentence remains suspended.” (Emphasis

sentences. RSA 651:20, I, provides, in pertinent part, “[T]he sentence to Both RSA 651:20 and RSA 651:21 (2007) pertain to suspended

isolation, but in the context of the overall statutory scheme.”). Appeal of Pinetree Power, 152 N.H. 92, 96 (2005) (“We interpret statutes not in decisions.” p. 9 recognized and accepted the trial court’s need for discretion in sentencing

651:21 addressed the time limitation.

discretion is not without limitation. “Both the legislature and this court have probation, expecting the maximum punishment to be one year in jail, a fine and two years situated defendants. In addition, a defendant who elects to have a trial

the legislature repealed RSA 607:12. Thus, the legislature’s enactment of RSA 9 Criminal Code. RSA 651:21, however, was also enacted at the same time as sentence. The legislature repealed RSA 607:12 with the enactment of the guilty will also have to be advised that their potential exposure is not limited to

sentencing process. Although the trial court has discretion in sentencing, that

where another court may suspend the sentence for ten years despite similarly

included a three-year time limitation on bringing forward a suspended may be suspended for ten years. Moreover, presumably defendants pleading

see RSA 651:2, will be surprised to learn that his one-year sentence

651:20 in isolation may introduce inconsistency and unpredictability into the

a misdemeanor sentence, carrying a maximum one-year sentence, for one year, (specific time limits). The majority’s holding permits one trial court to suspend Time limitations create consistency within sentencing. See RSA 651:2 since that this discretion should be left unbridled.” Id.

Ingerson, 130 N.H. at 115. “It does not necessarily follow, however, reasoning that no limitation exists. RSA 607:12 (1955) (repealed 1973) felony sentencing scheme).

legislature intended this, it could have amended RSA 651:20 to include it. The majority’s decision not to adopt a clear rule and instead to read RSA is a temporal limitation on suspended sentences.

legislature can act, given the legislature’s failure to do so for over twenty years

The majority also relies upon the history of RSA 651:20 in support of its relevant provision did not specify misdemeanors and was included within the

(2007) (judge may include a sentence of lifetime supervision), and, thus, if the expressly giving the trial court unlimited discretion, see RSA 632-A:10-a, V(a) restriction, RSA chapter 651 must be read as a whole and when doing so, there legislature, however, is aware of another sentencing statute with language inaction in support of its analysis that no statutory limitation exists. The Ingerson, I am doubtful it will. The majority relies upon the legislature’s

Although I agree with the majority that this is an area where the

(statute authorizes trial court to suspend misdemeanor sentences even though P.2d 1386, 1387 (Colo. Ct. App. 1991), cert. denied, 823 P.2d 1386 (Colo. 1992)

Similarly, here, although RSA 651:20 does not specifically state a time

burdens of a period of probation.” Id. suspended sentences, stating “a suspended sentence carries with it the mental is harmonious with the sentencing statutes.

p. 10 constitutional challenges, I would adopt a bright line rule now that, in my view, than waiting for us to develop this area of sentencing law through interpretation of the constitutional limitations on suspended sentences. Rather

have little guidance. In the meantime, trial courts must anticipate our

Until we have developed a body of case law in this new area, trial courts will excessive,” which the State said would amount to a constitutional challenge. defendant could argue that fifteen years on a misdemeanor may be a little

The State acknowledged, however, that based upon the facts of this case, “a

defendant’s sentence here to be suspended for ten years at the original hearing. in this case. The State opined that it would have been appropriate for the State seemed to recognize such when asked the limits of a suspended sentence

For the reasons stated above, I respectfully dissent.

by-case basis only by constitutional limitations.” Indeed, at oral argument the

misdemeanor and five years for a felony.

The majority notes that the sentencing discretion “is bounded on a case-

has the authority to suspend the sentence well beyond two years for a the alternatives specifically identified in RSA 651:2, but that the trial court also