2011-156, State of New Hampshire v. Derrick C. DiMaggio

The defendant, Derrick C. DiMaggio, appeals the denial

and orally, for the defendant. Lisa L. Wolford

attorney 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

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as sentence by failing to comply with the Program’s rules. See p. 2 preponderance of the evidence that the defendant had violated the terms of his Following a hearing, the trial court found that the State had proved by a

and the Program had recommended that his participation be terminated.

sentence because he had repeatedly violated the Drug Court Program’s rules, In December 2010, the State moved to impose the defendant’s suspended

additional court orders.

conditions of the . . . Drug Court . . . Program and subject to any

defendant while in the agency’s custody according to the terms and The Grafton County Department of Corrections shall supervise the Drug Court . . . Program or unless otherwise ordered by the court.

correctional facility so long as the defendant remains in the . . .

The defendant is placed in the custody of the Grafton County

policy manual. . . .

and the descriptions [of the Program] as outlined in the [Program]

deemed fair and appropriate, consistent with statutory authority shall result in the imposition of sanctions . . . by the court as Any violation of the terms and conditions of the [Program]

defendant shall pay the balance of his supervision fees.

shall be held in abeyance and shall resume upon termination. The Court . . . Program. The balance of [the defendant’s] probation include compliance with all terms and conditions of the Drug

seeking “day-for-day credit toward his sentence” for the days he participated in

[This] sentence is conditioned on good behavior, which shall

The defendant then filed a motion, which is the subject of this appeal,

suspended for five years, with the following conditions: which he was sentenced to two and one-half to five years in state prison, all

sentence with credit for time served. the Program and remanded him to state prison to serve the balance of his

he pleaded true to the probation violations as part of a plea agreement under

162 N.H. 174, 179 (2011). The court, therefore, terminated his participation in

probation by, among other things, using illegal drugs. On September 23, 2009, In July 2009, the defendant was alleged to have violated the terms of his

the legal limits for the underlying offense” could be imposed.

probation. See in November 2006, he was sentenced to six months in jail and three years of

violated probation, his probation could be revoked and “any sentence within

RSA 318-B:2, I, :26, II (2011). His sentence stated that if he

In 2006, the defendant pleaded guilty to felony possession of heroin for which, The following facts are either undisputed or are derived from the record. are incarcerated. See p. 3 For the “terms or intervals of time” in which they are not at liberty, offenders the facility’s rules and regulations or as the court may order.” RSA 651:19-a, I.

intervals of time and under such terms and conditions as may be permitted by

program,” offenders are released into the community “for such terms or incarceration for certain offenders.” RSA 651:19-a, I. In a “day reporting county correctional facility [to] establish a day reporting program in lieu of

governed by RSA 651:19-a. That statute allows “[t]he superintendent of a

“Day Reporting Program[s]” in county correctional facilities are specifically

sentence unless otherwise provided by the court.

order shall be counted as a full day toward the serving of the

free community, or in home confinement, under such a release

a home confinement program. . . . Any part of the day spent in the a home confinement program, provided the correctional facility has facility has a day reporting program, or to serve the sentence under

the terms of a day reporting program, provided the correctional

counted as a full day toward the serving of the sentence unless otherwise

purpose of obtaining and working at gainful employment . . . under under a criminal sentence [to] be released therefrom for the committed to a correctional institution other than state prison

part of a day spent in the free community under such a release order shall be

law that we review de issue requires that we engage in statutory interpretation, which is a question of

A sentencing court may order any person who has been State v. Burke

not see fit to include.” Id credit for days he participated in the Program while at liberty. Resolving this

language according to its plain and ordinary meaning. Burke

the legislature as expressed in the words of a statute considered as a whole.” RSA 651:19 provides, in pertinent part:

in the context of the overall statutory scheme and not in isolation. Id.

what the legislature might have said or add language that the legislature did 2011) and RSA 651:19-a (Supp. 2011), he was entitled to pretrial confinement “We interpret legislative intent from the statute as written and will not consider On appeal, the defendant contends that, pursuant to RSA 651:19 (Supp., 162 N.H. at 461. look to the language of the statute itself, and, if possible, construe that to promote justice.” Id. (quotation omitted); see RSA 625:3 (2007). We first provisions of the Criminal Code according to the fair import of their terms and

, 162 N.H. 459, 461 (2011) (quotation omitted). “We construe

“In matters of statutory interpretation, we are the final arbiter of the intent of

and this appeal followed. the Drug Court Program while at liberty. The trial court denied that motion, confinement.” RSA 651:19, :19-a; see

p. 4 sentencing order, was neither a “day reporting” program nor “home

We also conclude that the Drug Court Program, as set forth in the

the Drug Court Program administered by the jail.

his incarceration in the county jail, but was a reference to his participation in

the custody of the Grafton County correctional facility” was not a reference to the defendant to the state prison. The reference to placing the defendant “in Reading the sentencing order as a whole, we conclude that it committed

Department of Corrections to supervise the defendant while in the Program. participated in the Drug Court Program and ordered the Grafton County “in the custody of the Grafton County correctional facility” for as long as he

program or to home confinement. See

termination” from the Drug Court Program. The order “placed” the defendant

to a facility other than state prison and sentenced either to a day reporting

of [the defendant’s] probation” was held in abeyance and would resume “upon

of the defendant’s sentencing order to determine whether he was “committed” been sentenced to home confinement. Accordingly, we must review the terms in a day reporting program; RSA 651:19 also applies to individuals who have

conditions of the Drug Court . . . Program.” The order stated that the “balance behavior,” which included the defendant’s “compliance with all terms and suspended for five years and that this suspension was “conditioned on good

institution other than state prison” and who have been sentenced to participate review de

separate attachment indicated that the defendant’s prison sentence was

however, only to individuals who have been “committed to a correctional County correctional facility.” RSA 651:19 and RSA 651:19-a both pertain, The interpretation of a sentencing order is a question of law, which we because the sentencing order “placed [him] in the custody of the Grafton

was subject to conditions that were set forth in a separate attachment. The for no more than five and no less than two and one-half years. This sentence The order sentenced the defendant “to the New Hampshire State Prison”

The defendant contends that RSA 651:19 and RSA 651:19-a apply

Group, 156 N.H. 700, 705 (2008) (construing civil judgment). we look to the plain meaning of the words used. Cf. Edwards v. RAL Auto.

novo. See id. at 91-92. In construing the court’s sentencing order,

defendant’s sentence.”). (“The language of the sentencing order determines the nature of the program. State v. Parker, 155 N.H. 89, 91 (2007) institution other than state prison” to be released to such a day reporting

court” to “order any person who has been committed to a correctional provided by the sentencing court.” RSA 651:19-a, II allows “[t]he sentencing place conditions on the suspension. See p. 5 RSA 651:20 (Supp. 2011), which allows it to suspend such a sentence and to

thus, that this was a lawful condition. See

which empowers the trial court to impose a sentence of imprisonment, and

Program was reasonably related to his rehabilitation and supervision, and,

A f f i r m e d

mistaken. The defendant’s sentence is authorized by RSA 651:2, I, II (2007), because it was not issued pursuant to RSA 651:19 and RSA 651:19-a, he is To the extent that the defendant argues that his sentence is unlawful the defendant’s sentence upon successful completion of the Drug Court otherwise, we assume, without deciding, that conditioning the suspension of HICKS, CONBOY and LYNN, JJ., concurred. rehabilitation and supervision). Because the defendant does not argue

Program participant.

suspension provided conditions are reasonably related to defendant’s.

not entitled to pretrial confinement credit for days he was at liberty while a For all of the above reasons, therefore, we hold that the defendant was

RSA 651:19-a do not apply to the defendant’s sentence. or home confinement program, we conclude that RSA 651:19 and committed to the state prison and was not sentenced to either a day reporting (2010) (sentencing court has broad discretion to impose conditions of sentence

the county jail or to be confined at his home. Accordingly, because he was the sentencing order required the defendant to serve any part of his sentence in