2010-679, State of New Hampshire v. Steven Forest

The defendant, Steven Forest, appeals the decision of the

and orally, for the defendant. ___________________________ Lisa L. Wolford THE SUPREME COURT OF NEW HAMPSHIRE

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

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

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

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as p. 2 Supreme Court has said is inappropriate.

would, in essence, be double credit, which the New Hampshire credit, as [RSA 651-A:19] provides, and . . . any additional credit at the New Hampshire State Prison, so that he is already receiving

towards that . . . maximum sentence for each day that he spends

. . . the parole warrant was issued, and . . . [he is] receiving credit the prison is giving [the defendant] credit on the sentence on which

burglary charges rather than any other sentence of confinement. See entire period of his incarceration constituted pretrial confinement on the

The court denied the defendant’s motion, ruling that:

parole revocation hearing, his parole had not been revoked and, thus, the

defendant the same credit on his underlying charge. parole board takes the “position that [it] would be double dipping” to give the

arrest on July 8, 2007. The defendant argued that since he had not yet had a

receive pretrial confinement credit on a new charge, “[m]ost of the time” the

the burglary charges for the entire period of his incarceration following his he filed a motion seeking pretrial confinement credit toward any sentence on point, the defendant had been incarcerated for 1,154 days. On June 25, 2009,

parole revocation. However, he further indicated that, were a defendant to

were not adjudicated until September 9, 2010. The parties agree that, at this

incarcerated “from the date of arrest” on a parole violation warrant until his parole violator credit against his original underlying sentence for time spent underlying] sentence.” He explained that the parole board “[u]sually” gives a

For reasons that are unnecessary to recount here, the burglary charges

New Hampshire State Prison as a result of the parole violation warrants.

along . . . day for day. . . . He’s continued to serve the maximum of [his

County House of Corrections; however, at some point, he was transferred to the

2 that, while the defendant has been incarcerated, he “has been credited all At the hearing, the executive assistant to the adult parole board testified

his July 8 arrest, the defendant was initially housed at the Hillsborough parole violation hearing pending resolution of the burglary charges. Following burglary charges. On July 27, the defendant waived his right to a preliminary

2010.

On July 25, a second parole violation warrant was issued in relation to the

A:23. The State objected, and the trial court held a hearing on September 8,

arrested on charges arising out of the burglary and he was unable to post bail. Station in Goffstown. That same day or shortly thereafter, he was formally time of his arrest, he was also a suspect in a June 24 burglary at the A-1 Gas

warrant for various parole violations unrelated to the instant charges. At the On July 8, 2007, the defendant was arrested on a parole violation p. 3 We review the trial court’s statutory interpretation de

the award of that time toward that sentence.”

sentencing on the burglary indictments, he was entitled as a matter of law to

recommitted to the prison”; thus, “at the time of his September 9, 2010

confinement because his parole had not been revoked and he had not been for the confinement.” He maintains that here, he “was not under a sentence of not under a sentence of confinement, the sentencing court must grant credit

against both the maximum and minimum terms of his sentence

that “[s]o long as a criminal defendant is incarcerated prior to sentencing and

correction, any jail or any other place shall be granted credit

sentence.” Rather, he contends that “[t]he mandate of RSA 651-A:23 is clear” day credit toward both the sentence on the underlying charge and the burglary 651-A:23. The defendant “does not argue that he is entitled to apply the 1,154- Any prisoner who is confined to the state prison, any house of

651-A:23 provides in relevant part:

pretrial confinement credit toward his burglary sentences pursuant to RSA

imposed and against any minimum term authorized by RSA 651:2 or 6.” RSA

3 (2007) and RSA 651-A:23. See

Id 651-A:19 (2007) (amended 2010, 2011) and erred in denying him 1,154 days of The defendant argues that the trial court improperly relied upon RSA

set forth in RSA 651-A:23 against the maximum term of imprisonment that is justice.” State v. Burke prior to the time [the defendant] is sentenced shall be credited in the manner RSA 651:3, I, provides in pertinent part: “All the time actually spent in custody

The allocation of pretrial confinement credit is governed by RSA 651:3

beyond it for further indications of legislative intent. Id. . When the language of a statute is plain and unambiguous, we do not look words or phrases in isolation, but in the context of the entire statutory scheme. ordinary meaning. Gentry, 163 N.H. at ___, 37 A.3d at 435. We do not read statute itself, and, if possible, construe the language according to its plain and appeal followed. 625:3 (2007). When interpreting a statute, we first look to the language of the

Criminal Code according to the fair import of their terms and to promote of the statute considered as a whole. Id. “We construe provisions of the (2012). We are the final arbiters of legislative intent as expressed in the words Warden, N. N.H. Correctional Facility, 163 N.H. ___, ___, 37 A.3d 433, 435

concurrent with one another but consecutive to any “parole setback.” This but six months of the minimum sentence suspended. The sentences run on each charge to three and a half to seven years, stand committed, with all

of a plea agreement. Under the plea agreement, the defendant was sentenced That same day, the defendant pleaded guilty to the charges in this case as part spent awaiting resolution of those charges. See p. 4 charges, he would have been entitled to pretrial confinement credit for time incarcerated solely as a result of his inability to post bail on the burglary

on the parole violation warrants. Certainly, had the defendant been

warrants. Even on appeal, the defendant acknowledges that he was detained

credit in this case. conclude that the trial court was not mandated to grant pretrial confinement post bail, he would not have remained incarcerated on the parole violation to the criminal episode for which the prisoner is sentenced”). Accordingly, we warrants. Indeed, there is no evidence that, had the defendant been able to remained incarcerated, at least in part, as a result of the parole violation exclusively related to the criminal episode for which he was sentenced. Cf 4 result of the parole violation warrants. Thus, his incarceration was not

State v. Decker prisoner receive credit for all jail time “served before sentencing which relates Edson, 153 N.H. at 49 (pretrial confinement credit statutes mandate that a Here, there is no dispute that, following his arrest, the defendant the number of days of his presentencing confinement.. the prisoner is sentenced, but does not receive credit greater than are able to post bail, Edson N.H. at 49. In this case, however, the defendant was also incarcerated as a equal treatment of those confined prior to trial due to indigency, and those who RSA 651-A:23; Edson, 153

entitled to pretrial confinement credit toward each

that presentence detention is often the result of indigency. State v. Edson

before sentencing which relates to the criminal episode for which, 153 N.H. at 49.

allocation must reflect an application of the credit statutes that ensures the pretrial confinement credit, Mwangi, 161 N.H. at 702, the trial court’s furnishing bail. Id sentences imposed). While it is within the trial court’s discretion to allocate

where the defendant was held on several charges prior to trial, he was not

, 127 N.H. 468, 471 (1985) (quotation omitted) (holding that,

We have said that credit statutes stem principally from the recognition

sentence and not under any sentence of confinement. receive credit for all jail time — neither more nor less — served We construe our credit statutes to mandate that a prisoner is to

in confinement than an otherwise identically situated offender who succeeds in indigent offender unable to furnish bail should serve neither more nor less time N.H. 45, 49 (2005). A principle underlying the credit statutes is that an

confined in jail awaiting and during trial prior to the imposition of equal to the number of days during which the prisoner was conclusions. See p. 5 Other jurisdictions that have addressed this issue have come to similar

RSA 651-A:23.

RSA 651-A:19 and not as pretrial confinement on the burglary charges under charge would be allocated to the defendant’s underlying sentence pursuant to conclusion that the time spent incarcerated before sentencing on the burglary

See judge accepted and entered his plea, thereby convicting him of those charges. 651-A:19; cf

plea and sentencing, under the circumstances, we see no problem with its

appellant was being held for the new offense, he would not be entitled to

preliminary hearing, see

In this case, the defendant pleaded guilty to the burglary charges and the be considered as time served as a portion of the maximum sentence.” RSA burglary charges, which effectively constituted revocation of his parole, “shall prison after his arrest on the parole violation warrant and his conviction on the 5

denied the defendant’s request for pretrial confinement credit prior to his guilty mandatory. See sentence and not to reduce the recommitment period”). Although the court the legislature intended this credit to be applied solely to reduce the maximum (finding that “if the parole violation warrant was validly executed while

Ali v. District of Columbia, 612 A.2d 228, 230 (D.C. 1992) Under the parole statutes, once a parolee is arrested he is entitled to a

occurred.” We disagree.

Consequently, under RSA 651-A:19, the time between the defendant’s return to

state of having been proved guilty”). It follows that parole revocation became

“addressing how to apply credit for time served post-arrest/pre-revocation, . . .

. Gentry, 163 N.H. at ___, 37 A.3d at 435 (finding that in

place before his parole revocation . . . the triggering condition had not yet served as a portion of the maximum sentence.” RSA 651-A:19. to prison after his arrest and revocation of parole shall be considered as time of corrections,” RSA 651-A:17, and “[t]he time between the return of the parolee the law required revocation of his parole based solely upon that conviction.”). found [the defendant] guilty of felony robbery beyond a reasonable doubt and

RSA 651-A:18, II(a); cf. Mwangi, 161 N.H. at 705 (“A jury

part as “[t]he act or process of judicially finding someone guilty of a crime; the Black’s Law Dictionary 384 (9th ed. 2009) (defining “conviction” in relevant

revocation hearing,” he maintains that because his “burglary sentencing took would have been revoked by operation of law, thereby obviating the right to a acknowledges that “[a]fter being convicted of the burglary charges, [his] parole revoked, the parolee “shall be recommitted to the custody of the commissioner RSA 651-A:18, II(a) (2007); Mwangi, 161 N.H. at 702, 705. Once parole is The parole board shall revoke parole for a parolee who is convicted of a felony. before the parole board, RSA 651-A:17 (Supp. 2011); Mwangi, 161 N.H. at 702.

RSA 651-A:19 in denying him pretrial confinement credit. Although he The defendant argues that it was improper for the trial court to rely upon credited.” People v. Johnson p. 6 “in neither case is the time served awaiting a subsequent conviction not A f f i r m e d

served against their maximum sentences for which they were on parole. Thus,

credit. the burglary charges would then have been allotted as pretrial confinement

this case, such defendants will in all likelihood receive credit for the time entitled to pretrial confinement credit.” We disagree. Like the defendant in sentencing is detained by dint of both bail and parole violation warrant is never A:23 does not require the burglary charges. Any remaining time spent incarcerated before resolving for which parole was revoked). In addition, we note that although RSA 651-

6

produces the untenable rule that a criminal defendant who at the time of punishment for violating parole that he could have served pending resolution of awaiting trial because the time served was credited against his prior conviction

warrant, see DALIANIS, C.J., and CONBOY and LYNN, JJ., concurred.

violation, nothing in the statute prohibits

Finally, the defendant argues that “the court’s reliance on RSA 651-A:19 have a parole revocation hearing within forty-five days, he may have received a sentence if the second sentence is imposed consecutively”). entitled to pretrial confinement credit on those offenses for time served parole board on the parole violation charges. Had the defendant chosen to for the burglary charges to be resolved before having a hearing before the

RSA 651-A:17. However, he waived that right and chose to wait

revocation hearing within forty-five days of his arrest on the parole violation Moreover, we note that the defendant had a statutory right to a parole

in circumstances where the defendant also is being held in custody for a parole

before the second sentence is imposed should be credited toward only the first (finding that defendant who committed new offenses while on parole was not

parole); State v. Blondin

probation or parole and to conviction on new charges, the time spent in jail defendant is incarcerated based on conduct that leads both to revocation of

because that time would be credited to the sentence for which he was on receive credit in the new case for time spent after the warrant was executed”