2009-062, STATE OF NEW HAMPSHIRE 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. 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. 2009-062 editorial errors in order that corrections may be made before the opinion goes Hillsborough-southern 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 p. 2 22 as did not decide in 2 light of this development, the trial court determined that the statutory issue we

obtaining the benefit of a sentence to home confinement on both indictments.”

institute a program of administrative home confinement in that county.” In possible, construe that language according to its plain and ordinary meaning. interpreting a statute, we first look to the language of the statute itself, and, if Petition of State of N.H. (State v. Laporte), 157 N.H. p. 2 229, 231 (2008). “In Hillsborough County. Our review of the trial court’s interpretation of a statute is de novo.

reversing the trial court on that issue. violations of RSA p. 2 262:23. court’s “earlier determination that RSA 262:23 prevents the defendant from confinement and addressed the constitutional issue. court stayed imposition of the defendant’s sentence pending her appeal of the

Chrisicos “is now ripe for determination.” Accordingly, the State cross-appealed the constitutional ruling.

issued, “the Hillsborough County Board of Commissioners adopted a policy to The State represents that shortly before our decision in Chrisicos was

home confinement on the second indictment. Id. program to “once per lifetime,” barred the defendant from being sentenced to sentence, however, based upon the unavailability of home confinement in

RSA p. 2 262:23, I, did not violate the defendant’s right to equal protection, thus confinement because the defendant had been charged with two distinct Id. at 86. We held that deciding that the defendant was eligible under the statute for home

Constitution to equal protection. The defendant appealed the trial court’s statutory interpretation and the

corrections, stand committed.” Id. the defendant to two concurrent sentences of “twelve months at the house of

language of RSA p. 2 262:23, I, which limits eligibility for the home confinement

agreement. Nevertheless, the court concluded it was unable to order home

unconstitutional because it violated the defendant’s right under the State (Hillsborough) in the state, the trial court ruled that RSA p. 2 262:23, I, was facially Based upon the lack of a home confinement program in only one county see Petition of State of N.H. (State v. Campbell), 152 N.H. 515, 522 (2005). Hillsborough County did not have a home confinement program. Id. at 84-85; could not sentence the defendant to home confinement. First, at that time, Notwithstanding the plea agreement, the trial court determined that it

Id.

indictments jointly and the defendant pled guilty under a capped plea for another violation of RSA p. 2 262:23. Id. The State prosecuted both prosecution of the August 15 offense was pending, the defendant was indicted offender, in violation of RSA 262:23. Id. at 84. On November 21, 2006, while conviction forecloses such eligibility. p. 3 home confinement after a single conviction, but that a second

as the superior court held, that a defendant may be eligible for

home confinement program once per lifetime.

on its face” and argues that the provision at issue: 3

second indictment categorically precluded by RSA 262:23, I.

construction. of how many convictions are involved in the first adjudication, or, language of similar import, into the statute, contrary to our rules of statutory

home confinement. Habitual offenders shall only be eligible for the serves 14 consecutive days of imprisonment prior to eligibility for The State, on the other hand, asserts that the statute’s language is “ambiguous mandatory term or any portion thereof, provided the offender first rather limits eligibility to “once per [the defendant’s] lifetime.” RSA 262:23, I. habitual offender violations a defendant is charged with or convicted of, but Gordon, 148 N.H. 681, 684 (2002) (where plain language of statute required

into the statute, we conclude that it erred in finding home confinement on the 262:23, I, ambiguous. Moreover, because the trial court read such a limitation

See Hayden, 158 N.H. at 599. Accordingly, we do not find RSA habitual offender is entitled to home confinement once regardless

not a reasonable one because it reads a limitation of “one conviction,” or interpretation urged by the State and employed by the trial court, however, is the[] . . . provision[].” Appeal of Gamas, 158 N.H. 646, 649 (2009). The legislative history where there is “more than one reasonable interpretation of We will find a statutory provision ambiguous, and, therefore, consult its facility where the sentence is to be served for the minimum

not base eligibility for a sentence of home confinement upon the number of

can be read to mean either, as the defendant argues, that a

based on the rules and regulations of the county correctional or her sentence under home confinement pursuant to RSA 651:19 The defendant contends that the plain language of RSA 262:23, I, does sentencing court may order that any such offender may serve his

RSA 262:23, I.

paragraph shall be served in a county correctional facility. The Any sentence of one year or less imposed pursuant to this

RSA 262:23, I, provides, in pertinent part:

State v. Hayden, 158 N.H. 597, 599 (2009) (quotation omitted). might have said or add language that the legislature did not see fit to include.” intent from the statute as written and will not consider what the legislature scheme and not in isolation.” Id. (citation omitted). “We interpret legislative Furthermore, we interpret statutes in the context of the overall statutory p. 4 4 offenders, that “RSA 262:23 is designed specifically to punish the[] recidivism” of habitual principal purpose of the habitual offender statute. Although we have stated

legislature to make. protecting the public”). However, such policy considerations are for the

reform after one offense of driving while certified” and concludes that it should purpose. We first take issue with the State’s assertion that punishment is the 262:23 may have been “intended to give habitual offenders an opportunity to The State also speculates that the home confinement option in RSA

mandatory minimum sentence may be thought to be a reasonable means of highways than incarceration. Cf. id. (concluding that “[t]he imposition of a to drive makes it a less effective means of keeping habitual offenders off the Admittedly, the risk that a person on home confinement may still choose

violators of the habitual offender law must be dealt with severely”). removing dangerous drivers from highways is a serious priority and that sentences of home confinement on multiple violations is inconsistent with that (stating that the legislature “has determined that protection of the public by repeated offenses are punished severely” and argues that allowing concurrent that O’Brien does not hold to the contrary. See O’Brien, 132 N.H. at 592 scheme is to ensure that drivers who have proven themselves dangerous by Dean, 115 N.H. 520, 52 p. 4 4 (1975) (citation omitted; emphasis added). We note highways an operator who is a dangerous and persistent offender.” State v. offender is primarily for the protection of the public in removing from the safety on the highways. In this respect, the penalty imposed upon an habitual noted that “[t]he primary purpose of the habitual offender statute is to foster of a statute that is plain on its face,” State v. Rix, 150 N.H. 131, 133 (2003), we have also consistently

“well established that the principal purpose of the [habitual offender] statutory The State, citing State v. O’Brien, 132 N.H. 592 (1989), asserts that it is

intend”). principles in mind, we consider the State’s argument. conclude otherwise would impose a requirement that the legislature did not Johnson, 13 p. 4 4 N.H. at 576. With these offenses upon which an enhanced sentence is being imposed,” because “[t]o 109 N.H. at 395 (quotation omitted), but we also “will not modify the meaning statute [if it] does violence to the apparent policy of the Legislature,” Fortin, the statute’s purpose. Admittedly, we will reject “a literal construction of a statute “absolutely literally” where such a reading would be inconsistent with (1969), and State v. Johnson, 134 N.H. 570 (1991), argues against reading the Nevertheless, the State, citing State ex rel Fortin v. Harris, 109 N.H. 394 sentencing option available only once in a habitual offender’s lifetime. By its plain language, RSA 262:23, I, makes home confinement a

“not require that the previous convictions precede the commission of the only prior convictions to trigger enhanced sentencing provision, statute did as it sees fit. p. 5 disagree with our interpretation of RSA 262:23, I, it is free to amend the statute has committed more than one violation. Of course, should the legislature

to order home confinement under circumstances where, as here, the defendant

possible, construe that language according to its plain and ordinary meaning.”

respectfully dissent. limitation. On the other hand, it is within the trial court’s discretion to decline paragraph shall be served in a county correctional facility. The home confinement under the terms of RSA 262:23 (2004) (amended 2006), I of the habitual offender statute, subject again to the “once per lifetime” Any sentence of one year or less imposed pursuant to this trial court that the defendant, Michelle Chrisicos, is ineligible for a sentence of imposition of concurrent sentences of home confinement for multiple violations RSA 262:23, I, provides, in pertinent part:

Id.

interpreting a statute, we first look to the language of the statute itself, and, if Petition of State of N.H. (State v. Laporte), 157 N.H. 229, 231 (2008). “In Our review of the trial court’s interpretation of a statute is de novo.

BRODERICK, C.J., dissenting. Because I agree with the ruling of the conclude that nothing in the plain language of RSA 262:23, I, precludes the consecutive sentences rest[] within the discretion of sentencing judges,” under home confinement), and the “selection of either concurrent or DUGGAN, J., dissented. DALIANIS and CONBOY, JJ., concurred; BRODERICK, C.J., dissented; chosen to impose upon habitual offenders.

of an appropriate sentence. omitted), we remand for the trial court’s determination, in its sound discretion, Duquette v. Warden, N.H. State Prison, 154 N.H. 737, 742 (2007) (quotation

home confinement under the plain meaning of RSA 262:23, I. We also (sentencing court “may order” habitual offender to serve all or part of sentence whether to impose a sentence of home confinement, see RSA 262:23, I

Zorn v. Demetri, 158 N.H. 437, 441 (2009). As both the decision the penalty that the legislature, through the plain language of RSA 262:23, has

penalize the defendant for her recidivism. As we noted in

We conclude on the facts presented here that the defendant is eligible for

certification is already designed to address recidivism, and we will not add to

by offending a second time.” This argument is just another attempt to further be unavailable where “this defendant has consciously rejected that opportunity was convicted of both charges at a single trial, while her sister would be

p. 6 would be eligible for home confinement on her second conviction because she

and her sister committed the same crimes on the same dates, the defendant Under the defendant’s interpretation, despite the fact that both the defendant trials. Both the defendant and her sister are then convicted on all charges.

one trial, but her sister being tried on her two indictments in two separate

defendant, resulting in the defendant being tried on both of her indictments at jury, the sister was not indicted after her second arrest as quickly as was the county attorney’s office, or perhaps due to a delay in the meeting of the grand

treatment of defendants who, for all relevant purposes, are

the same two days as the defendant. Because of a heavy workload at the

susceptible of a constitutional construction.

trials. I fail to see any rational basis that would justify such disparate

sister who was also arrested for driving while certified as a habitual offender on driving while certified as a habitual offender

statute in a manner that would render it unconstitutional when it is

Indeed, putting constitutional considerations aside, the injustice of mandating

correctional facility simply because she was convicted of both charges after two required to serve her sentence on her second conviction in the county protection principles. For example, suppose that the defendant had a twin home confinement program once per lifetime. to be sentenced to the home confinement program for her first offense of home confinement. Habitual offenders shall only be eligible for the

manner asserted by the defendant, I would not do so. We will not construe a I were inclined to agree that the statute could be reasonably read in the

576 (1991). In my view, the defendant’s construction would violate equal “eligible.” The defendant would construe the statute to say that she is “eligible” serves 14 consecutive days of imprisonment prior to eligibility for State v. Johnson, 134 N.H. 570,

shall only be

While I believe the plain language supports the trial court’s ruling, even if

of the statute. eligible twice for the home confinement program, contrary to the plain language driving while certified as a habitual offender. In my view, that would make her

Thus, the issue is what the legislature intended by the use of the term mandatory term or any portion thereof, provided the offender first facility where the sentence is to be served for the minimum eligible for the home confinement program once per lifetime. This argument begs the question. The statute provides that habitual offenders based on the rules and regulations of the county correctional rather limits eligibility to “once per [the defendant’s] lifetime.” RSA 262:23, I. habitual offender violations a defendant is charged with or convicted of, but not base eligibility for a sentence of home confinement upon the number of The defendant contends that the plain language of RSA 262:23, I, does

or her sentence under home confinement pursuant to RSA 651:19 sentencing court may order that any such offender may serve his calculus.

p. 7 construe the statute so as to introduce such considerations into the joinder

being twice convicted yet avoiding the mandatory jail sentence. I would not instead choose to oppose joinder to prevent the possibility of the defendant would further judicial economy and save the resources of the parties might

criminal episode. adjudication, as long as each conviction arose out of a separate and distinct

On the other hand, a prosecutor who would otherwise seek joinder because it

even when the first and second convictions are both obtained in a single

order to ensure her eligibility for home confinement if she is convicted of both.

defendant can be subjected to an enhanced penalty for a second conviction apart. Our case law is clear that for sentence enhancement purposes, a committed two separate crimes on two separate occasions, several months

in a single proceeding”); each conviction beyond the first, “even when multiple convictions are obtained charges that arose out of one “criminal episode.” instead of two. It is important to note that we are not here considering two the other, for example, might well choose to incur the prejudice of joinder in because her defense to one charge is substantially stronger than her defense to sentence in jail if convicted. A defendant who would otherwise object to joinder

whether the two convictions were obtained at a single trial or at two trials. we have previously concluded that for purposes of sentencing, it matters not of sentence enhancement (quotation omitted)). Rather, the defendant

trial court may impose enhanced penalties of up to forty years in prison for (stating that with exception of sentence of life without the possibility of parole, attached to the fact that the defendant’s two convictions resulted from one trial See Petition of State of N.H., 152 N.H. 185, 191 (2005)

while trying them separately would mean that the defendant faces a mandatory

would be prejudicial.

during a single spasm of criminal activity” as a single conviction for purposes 710, 714 (2002) (treating multiple convictions committed “simultaneously

Finally, our case law demonstrates that there should be no significance

defendant becomes eligible for home confinement on both charges if convicted,

harassment, would unduly consume the time or resources of the parties, or

results).

reject the defendant’s construction of the statute.

construction of the statute, however, joining the offenses would mean that the

should turn upon such factors as whether failure to do so would constitute or severing charges. Whether to join the defendant’s charges, for example, Furthermore, the defendant’s construction skews the criteria for joining

N.H. 441, 446 (2009) (court construes statutes to avoid absurd or unjust

fortuitous events such as how often a grand jury meets would require me to jail in one case while allowing home confinement in the other due solely to dissent.

p. 8 eligibility for home confinement.

lifetime” option is no longer available on the second indictment. I respectfully

sentenced for her first conviction, she thereby exhausted her once-in-a-lifetime conviction been imposed following a second trial. In either case, upon being just as she would not have been eligible had her sentence for her second

sentence her on the first indictment to home confinement, the “once per would have the discretion to make the sentences concurrent and could require the court to sentence her twice, not once. Thus, even though the court

“eligible” for that program when she was sentenced on her second conviction,

indictments. To sentence her to home confinement on both indictments would

program when she was sentenced for her first conviction, she was no longer

and at worst unconstitutional, I respectfully dissent.

The defendant here pleaded guilty and was sentenced on two separate habitual offenders eligible for home incarceration “only . . . once per lifetime.” indications of legislative intent.” (quotation omitted)). The statute makes

of RSA 262:23, I (2004) (amended 2006) to reject the defendant’s argument.

although the defendant in this case was “eligible” for the home confinement if he were twice convicted after two separate trials. Similarly, in my view, second offense based upon his conviction for the first offense, just as he would statute's plain language, while the defendant’s construction is at best unjust

plain and unambiguous, we need not look beyond the statute for further See State v. Comeau, 142 N.H. 84, 86 (1997) (“When a statute’s language is

DUGGAN, J., dissenting. We need go no further than the plain language

trial for two offenses, he becomes “eligible” for enhanced penalties for the Because the trial court’s construction of the statute comports with the

overall plan.

when the defendant is sentenced. If the defendant is sentenced after a single defendant’s convictions stands alone. Each conviction is considered by itself These cases demonstrate that for purposes of sentencing, each of the

judge’s attention on one offense at a time.” Id. at 655 (quotation omitted). principle fails because the state’s sentencing scheme is “designed to focus the approvingly the Ohio Supreme Court, which noted that the rationale for the

Abram, 156 N.H. at 654-55. In rejecting this principle, we quoted

disposition in which the sentences on the various counts form part of an indictment, there is a strong likelihood that the trial court will craft a courts presume that when a defendant is found guilty on a multi-count invitation to adopt the “sentencing package” principle, pursuant to which Similarly, in State v. Abram, 156 N.H. 646 (2008), we rejected the State’s