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2008-558, STATE OF NEW HAMPSHIRE v. NADIR MOHAMED
sentence imposed by the Superior Court (
mandatory minimum sentence of three years “[i]f a person is convicted of a three and no more than six years, citing RSA 651:2, II-g, which imposes a convicted by a jury, the trial court sentenced him to prison for no less than allegedly receiving a stolen handgun. See RSA 637:7, :11, I(b). After he was The defendant was charged with felony receipt of stolen property for
651:2, II-g (2007). We vacate the sentence and remand. a jury for felony receipt of stolen property. See RSA 637:7, :11, I(b) (2007); RSA
O’Neill, J.) following his conviction by
DALIANIS, J.
The defendant, Nadir Mohamed, appeals the enhanced
Martin K. Glennon, of Manchester, by brief and orally, for the defendant.
general, on the brief 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:
Opinion Issued: December 31, 2009 Argued: September 23, 2009
NADIR MOHAMED
v.
THE STATE OF NEW HAMPSHIRE
No. 2008-558 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
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 22 as suspended or reduced. minimum sentence imposed under this paragraph shall be attempted use of a firearm. Neither the whole nor any part of the
2
deadly weapon; and (3) the deadly weapon is a firearm. (2) one of the elements of the crime is possession, use or attempted use of a
year, and an element of which was the possession, use or
convicted was not the possession, use or attempted use of a deadly weapon. convicted of a felony, one of the elements of the offense for which he was All of these conditions were not met in this case. While the defendant was
Crie, 154 N.H. at 408.
sentence if three conditions are met: (1) the defendant is convicted of a felony; The plain language of RSA 651:2, II-g requires a three-year minimum
years’ imprisonment for a first offense.” RSA 651:2, II-g. the maximum penalty provided was imprisonment in excess of one firearm, . . . shall be given a minimum mandatory sentence of not less than 3 been previously convicted of any state or federal offense for which of which is the possession . . . of a deadly weapon, and the deadly weapon is a sentence of not less than 6 years’ imprisonment if such person has at issue in this case, provides that a person “convicted of a felony, an element imprisonment for a first offense and a minimum mandatory mandatory minimum sentencing provisions. Id. The first provision, which is “RSA 651:2, II-g is clear and unambiguous.” Id. It contains two separate
The interpretation of a statute is a question of law, which we review II-g. Resolving this issue requires that we engage in statutory interpretation.
minimum mandatory sentence of not less than 3 years’ sentence prescribed for the crime. The person shall be given a maximum term of 20 years’ imprisonment in lieu of any other deadly weapon is a firearm, such person may be sentenced to a the possession, use or attempted use of a deadly weapon, and the If a person is convicted of a felony, an element of which is imposed the mandatory minimum three-year sentence pursuant to RSA 651:2, RSA 651:2, II-g provides:
(2006). its meaning is not subject to modification. State v. Crie, 154 N.H. 403, 407 157 N.H. 421, 422 (2008). When the language of a statute is clear on its face, expressed in the words of a statute considered as a whole. State v. Gallagher, interpretation, we are the final arbiter of the intent of the legislature as State v. Brown, 155 N.H. 590, 591 (2007). In matters of statutory
de novo.
The sole issue for our review is whether the trial court erred when it
deadly weapon is a firearm.” This appeal followed. felony, an element of which is the possession . . . of a deadly weapon, and the 3
firearm.
with a purpose to deprive the owner thereof; and (2) the property stolen was a
totality of the circumstances.
BRODERICK, C.J., and DUGGAN, HICKS and CONBOY, JJ., concurred.
Sentence vacated and remanded.
years pursuant to RSA 651:2, II-g. the trial court erred by imposing the mandatory minimum sentence of three knowing that it had been stolen, or believing that it had probably been stolen, convicted was not the possession, use or attempted use of a deadly weapon, beyond a reasonable doubt, that: (1) he received . . . the property of another Because one of the elements of the offense for which the defendant was 6 37:11, I(b). To convict the defendant of this offense, the jury had to find,
Kousounadis, 159 N.H. at ___.
constitutes a deadly weapon is a question of fact for the jury based upon the Kousounadis, 159 N.H. ___ (decided December 4, 2009). Whether a firearm producing death or serious bodily injury. RSA 625:11, V (2007); State v. intended to be used, or threatened to be used, it is known to be capable of weapon per se. A firearm is a deadly weapon only if, in the manner it is used,
See RSA 6 37:7, I; :11, I(b). A firearm, however, is not a deadly
stolen property is a class A felony if the property stolen is a firearm. RSA The defendant was found guilty of receiving stolen property. Receipt of