2011-248, Donald Gentry v. Warden, Northern New Hampshire Correctional Facility

The petitioner, Donald Gentry, appeals the decision of the

assistant attorney general, on the brief and orally), for the defendant. ___________________________ Michael A. Delaney, attorney general (Suzanne M. Gorman, senior

and orally, for the petitioner. a.m. on the morning of their release. T , assistant appellate defender, of Concord, on the brief 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:

THE SUPREME COURT OF NEW HAMPSHIRE

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.

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 2

We review the trial court’s statutory interpretation de based on the failure to hold a timely hearing. limit was not met in the instant case, but the petitioner does not challenge his parole revocation II

period but against only the maximum sentence.” This appeal followed.

meaning. Id p. 2 2011). of his or her maximum sentence, whichever is shorter. The Laws 2011, 244:3 (effective July 13, 3 In 2011, RSA 651-A:19 was substantially amended. See fifty-five days prison before being placed back on parole or the remainder

days after a parolee is arrested for a parole violation. The record does not indicate why this time p. 2 2 RSA 651-A:17 (2007 and Supp. 2011) requires that revocation hearings be held within forty-five As amended by Laws 2010, 247:10, RSA 651-A:19, I, provided: 91 (2000). repetition yet evading review. See Asmussen v. Comm’r, N.H. Dep’t of Safety, 145 N.H. 578, 590intent. Id have the period of pre-hearing incarceration deducted from the sentence clearly is capable of ninety-day recommitment mandated by the statute, the petitioner’s position that he is entitled to maximum sentence. Despite this, we do not regard the case as moot, because, given the short 1 At oral argument, the State advised that, as of that date, the petitioner had completed his entitled to pre-hearing confinement credit against the 90-day recommitment

and, if possible, construe that language according to its plain and ordinary

pursuant to RSA 651-A:19, I (Supp. p. 2 2010). The petitioner requested that the A prisoner who is recommitted shall serve 90 days in

.

and unambiguous, we do not look beyond it for further indications of legislative Governor, 161 N.H. 378, 385 ( p. 2 2011). When the language of a statute is plain of the entire statutory scheme. New Hampshire Health Care Assoc. v. superior court upheld the board’s decision, ruling that “inmates are not. We do not read words or phrases in isolation, but in the context

When interpreting a statute, we first look to the language of the statute itself, intent as expressed in the words of the statute considered as a whole. Id. hearing, the parole board recommitted the petitioner to prison for ninety days Beauchemin, 161 N.H. 654, 658 ( p. 2 2011). We are the final arbiters of legislative received a parole revocation hearing on December 7, 2010. Following the novo. State v. parole violation warrant on October 13, 2010, and confined in prison until he

the ninety-day recommitment period. The board denied that request, and the

p. 2 2 he spent in confinement before the hearing be credited against

The pertinent facts are not in dispute. The petitioner was arrested on a

We affirm. (Supp. p. 2 2010) for the period between his arrest and revocation of his parole.1 sentence). See

p. 3 recommitment period (unless necessary to avoid exceeding the maximum 3 applied solely to reduce the maximum sentence and not to reduce the arrest/pre-revocation, indicates that the legislature intended this credit to be

The familiar doctrine of expressio unius est exclusio alterius the second sentence, addressing how to apply credit for time served post- should not have been re-incarcerated at all. In the absence of any suggestion cognizable at law.”

receive a revocation hearing, the plight of parole violators time in confinement than others based solely on how quickly after arrest they leads to absurd results. While we agree that some parolees will serve more

ninety-day recommitment period, the inclusion of only “maximum sentence” in prisoner’s parole: “A prisoner whose parole is revoked shall be recommitted incarceration – despite the fact that, in retrospect, it has been determined they period and the maximum sentence “is neither one made in the statute nor the reference in the first sentence to both the maximum sentence and the revocation of parole is to be credited against the maximum sentence. In light of

We also reject the petitioner’s contention that our reading of the statute

period begins only when, after a hearing, the board formally revokes the nothing more than credit against the maximum sentence for their pre-hearing distinction drawn by the trial court between the ninety-day recommitment includes the ninety-day recommitment period. He contends that the explains that whatever time the parolee spent confined after arrest but before arrested and detained for a violation but are ultimately exonerated “maximum sentence” in the second sentence of RSA 651-A:19, I necessarily

RSA 651-A:17 (Supp. 2010), which makes it clear that the recommitment revocation hearings. Like the petitioner, parolees in the latter category receive

credited toward the ninety-day recommitment period because the term who must wait longer

the custody of the commissioner of corrections.” (Emphasis added.)

part of the statute and omitted in another.”). This conclusion is reinforced by unius est exclusio alterius] is strengthened where a thing is provided in one ninety days or the remainder of the maximum sentence for offenders found to Construction § 47:23, at 417 (7th ed. 2007) (“The force of the maxim [expressio The petitioner argues that his pre-hearing confinement should have been the legislature adopted a maximum recommitment period of the shorter of 2A N. Singer & J.D. Shambie Singer, Statutes and Statutory interpretation of the statute is correct. In the first sentence of RSA 651-A:19, I,

mention of one thing excludes another”) persuades us that the trial court’s as a portion of the maximum sentence.

and revocation of parole shall be considered as time served time between the return of the parolee to prison after arrest p. 4 Affirmed

the ninety-day recommitment period.

day recommitment period, we need not address the petitioner’s objections to confinement between his arrest and revocation of his parole against his ninetynot permit the parole board to credit the time the petitioner spent in

Because we agree with the trial court’s conclusion that RSA 651-A:19 did

DALIANIS, C.J., and HICKS and CONBOY, JJ., concurred.

others based on “‘arbitrary’ factors, such as the degree of docket congestion”). methodology may result in some defendants serving more prison time than

errs. Cf consequence of a system that cannot act instantaneously and occasionally

sentences when a parolee commits a new offense while on release even though (rejecting constitutional challenge to Michigan’s procedure for calculating . People v. Idziak, 773 N.W.2d 616, 629-30 & n. 23 (Mich. 2009)

some parolees serve more time in custody than others is an unfortunate of parole board revocation hearings being improperly delayed, the fact that