2009-878, State of New Hampshire v. David J. Pandelena

Michael A. Delaney

No. 2009-878

Rockingham

of his driver’s license by the Superior Court (Nicolosi CONBOY, J. The defendant, David J. Pandelena, appeals the revocation

David M. Rothstein

violated probation. See RSA 263:56-b, IV (Supp. 2009). We affirm.

brief and orally, for the defendant.

attorney general, on the brief and orally), for the State.

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 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as trial court. State v. Matey p. 2 Under the plain error rule, we may consider errors not raised before the

trial court had no authority to order license revocation. defendant relies upon the plain error rule in support of his argument that the probation violation sentence. As this question was not raised below, the imposed a license revocation under RSA 263:56-b, IV as part of the defendant’s The sole issue for our review is whether the trial court erred when it

whether there was error by engaging in statutory interpretation. See Because a trial court’s sentencing authority is statutory, we determine

appeal ensued. Almodovar, 158 N.H. 548, 552 (2009). “The interpretation of a statute is a suspended for a period of three years upon his release from prison. This State v. 263:56-b, IV, the trial court ordered that the defendant’s driver’s license be with pretrial confinement credit of 598 days. In addition, pursuant to RSA analysis in applying our plain error rule. Id defendant to two and one-half to seven years in state prison, stand committed,. at 489-90. reputation of judicial proceedings.” Id influence of drugs. Based upon these violations, the trial court sentenced the. We have looked to federal plain error and (4) the error must seriously affect the fairness, integrity or public terms of his probation by engaging in illegal drug use and driving under the error; (2) the error must be plain; (3) the error must affect substantial rights; November 9, 2009, the trial court concluded that the defendant violated the v. Russell defendant that tested positive for methadone. After an evidentiary hearing on, 159 N.H. 475, 489 (2009). To find plain error: “(1) there must be an circumstances in which a miscarriage of justice would otherwise result.” State notice of violation was later filed based upon a urine sample from the “However, the rule should be used sparingly, its use limited to those violation with the court relative to the defendant’s arrest. A supplemental the attention of the trial court or the supreme court.” Sup. Ct. R. of RSA 265-A:2 (Supp. 2009). In July 2009, a probation officer filed a notice of 16-A. affects substantial rights may be considered even though it was not brought to that resulted in his arrest for driving under the influence of drugs in violation In June 2009, the defendant was involved in a motor vehicle accident, 153 N.H. 263, 266 (2006). “A plain error that

for the underlying offense.” revocation of probation and imposition of any sentence within the legal limits “Violation of probation or any of the terms of this sentence may result in conduct resulting in his arrest. The defendant’s mittimus further stated that: drug testing, and that he be of good behavior, to include refraining from The rules of his probation required that he submit to random urinalysis for of probation and a $1000 fine, which was suspended for a period of five years. confinement credit of 465 days. The defendant was also sentenced to five years to the defendant’s probation violation, this would not have been error. See p. 3 original suspended sentence, and later imposed that suspended sentence due the trial court had included the license revocation as part of the defendant’s defendant’s license as part of his sentence for the drug conviction. Moreover, if In State v. Hancock controlled drug, the trial court clearly had the statutory authority to revoke the Because the defendant was convicted under RSA 318-B:2 for the sale of a

under RSA 651:2, II.” Id. at 303 (emphasis added); see also RSA 651:2, VII. “exclusively through imposing a fine, under RSA 651:2, IV, or imprisonment interpreted RSA 651:2, VII to mandate that probation violations be punished there would have been no statutory mechanism to enforce probation. Thus, we court had imposed the maximum fine and maximum period of incarceration, the defendant shall be sentenced to imprisonment . . . .” Because the trial not imposed in addition to the probation or conditional discharge. Otherwise revocation shall begin. conditional discharge is revoked, the defendant may be fined . . . if a fine was jurisdiction shall have the discretion to determine when the language of RSA 651:2, VII (2007), which provides: “When a probation or any period of time, including for life. The court of relevant to probation if it also imposes both statutory maximums, we looked to the RSA 318-B:1 . . . may be revoked, at the discretion of the court, for incarceration. In concluding that the trial court may not sentence a defendant sale or possession with intent to sell controlled drugs as defined in addition to the maximum allowable fine and maximum allowable period of on the date of the incident, and who is convicted of the offense of trial court had the statutory authority to sentence a defendant to probation in The driver’s license of any person who is 18 years of age or older

inquiry does not end here. rather, was imposed as part of his sentence for a probation violation, our was not imposed as part of the defendant’s original suspended sentence, but such times as is deemed best . . . .”). Nevertheless, because license revocation order that the defendant serve such sentence in full or in such parts and at 651:21 (2009) (“Upon revocation of any suspended sentence the court may

RSA 263:56-b, IV provides:

modification.” State v. Crie, 154 N.H. 403, 407 (2006). language of a statute is clear on its face, its meaning is not subject to as a whole.” State v. Gallagher, 157 N.H. 421, 422 (2008). “When the of the intent of the legislature as expressed in the words of a statute considered 413, 423 (2009). “In matters of statutory interpretation, we are the final arbiter question of law, which we review de novo.” State v. Kousounadis, 159 N.H. p. 4 Id

In State v. Buckingham sources. not abridge such existing lawful authority derived from other

651:2, VII provides that violations of probation may be punished only through revocation for a violation of probation. Moreover, as previously noted, RSA nothing within the statute authorizes the trial court to impose a license a license upon a defendant’s conviction for the sale of a controlled drug, While RSA 263:56-b, IV does afford the trial court the authority to revoke

suspend or revoke licenses; it provides only that the chapter does 4 included as part of the judgment of conviction. Buckingham suspend a license. This provision, however, grants no authority to penalty. Any appropriate order exercising that authority may be than its sentencing authority for an underlying criminal conviction, the consider the trial court’s sentencing authority for probation violations, rather influence of intoxicating liquor or a controlled drug). Although here we

present time, no such statutory authority exists. trial court to revoke a defendant’s license for violating his probation. At the there must be statutory authority, apart from RSA 651:1, II, which permits the

analysis of RSA 651:1, II is nonetheless applicable. Accordingly, does not deprive courts of any lawful authority to cancel or license, remove a person from office, or impose any other civil licenses by virtue of RSA 651:1, II, which provides that the chapter The State argues that trial judges have the authority to suspend

homicide occurred as a consequence of the defendant being under the permitted license revocation only upon a jury finding that the negligent . at 343 (holding that the language of former RSA 262-A:62, I (Supp.1979)

by law to decree a forfeiture of property, suspend or cancel a This chapter does not deprive the court of any authority conferred

authority in the first instance, we noted that: sentence for negligent homicide. In concluding that the trial court lacked such court was statutorily authorized to revoke a defendant’s license as part of a

RSA 651:1, II states:

contained in RSA 651:2, VII. We disagree. exception to the express statutory limitation on probation violation sentences revocation for certain drug offenses), RSA 651:1, II (2007) provides an that, when read in conjunction with RSA 263:56-b, IV (authorizing license permissible penalty for a probation violation. Specifically, the State argues the issue of whether a civil penalty, such as a license revocation, is a Despite this holding, the State argues that Hancock is not controlling on p. 5 Although Matey

additional term of probation as a sanction for the probation violation. Id raised by the defendant, it was not plain error for the trial court to impose an

Hancock in fact overruled Matey. In Hancock the only sentence that could

268.

analysis, we concluded that because we had never addressed the precise issue underlying sentence of imprisonment. Id. at 268. Based upon a plain error probation effectuated an illegal increase in the call forward period for the defendant argued, based on Ingerson, that the subsequent increase in his erred in calling forward indefinite sentences. Matey, 153 N.H. at 267-68. The State v. Ingerson, 130 N.H. 112 (1987), in which we held that the trial court 267. The defendant conceded that this would be true but for our decision in incarceration, but also an additional term of probation.” Matey, 153 N.H. at the statutory limits for the underlying offense, including not only a term of In State v. Matey defendant who violates his probation “may legally be given any sentence within The State argued that under State v. White, 131 N.H. 555 (1989), a

by the trial court for the underlying drug conviction. Id. at 265. court impermissibly extended his probation beyond the term initially imposed upon his release. Id. at 264-65. The defendant appealed, arguing that the trial court sentenced him to prison for twelve months and probation for three years Id. at 264. The defendant later violated his probation and, as a result, the trial deferred sentence of imprisonment and was placed on probation for four years. class B felony for possession of a controlled drug. The defendant received a

We next consider whether the error was plain. See the error in this case was not plain. within the legal limits for the underlying offense.” Accordingly, we hold that sentence may result in revocation of probation and imposition of any sentence orders to the effect that “[v]iolations of probation or any of the terms of this application of RSA 651:2, VII with the language regularly used in sentencing (2008). Our case law has not expressly reconciled the issue of the proper by the trial court cannot be plain error.” State v. Panarello, 157 N.H. 204, 209 clear at the time of trial and remains unsettled at the time of appeal, a decision v. Olano, 507 U.S. 725, 734 (1993) (quotations omitted). “When the law is not 489. “Plain is synonymous with clear or, equivalently, obvious.” United States

defendant’s license for violation of his probation was error. include.” Hancock, 15 p. 6 6 N.H. at 305. Thus, the trial court’s revocation of the have said or add words to the statute that the legislature did not see fit to 303; see also RSA 651:2, VII. “We will not consider what the legislature might the imposition of a fine or a term of imprisonment. See Hancock, 156 N.H. at 6

DALIANIS, C.J.