2011-373, State of New Hampshire v. Daniel C. Thompson

Michael A. Delaney

evidence of his two prior convictions in its case-in-chief. We affirm.

No. 2011-373 Lebanon District Court

in sentencing him for a third DWI offense because the State failed to submit

, of Manchester (Bruce E. Kenna

(Supp. 2012) (amended 2012). On appeal, he argues that the trial court erred sentenced to enhanced penalties for a third offense. See RSA 265-A:18, IV(b) reporter@courts.state.nh.us intoxicated (DWI), see RSA 265-A:2, I (Supp. 2012) (amended 2012), and was (Cirone, J.), the defendant, Daniel C. Thompson, was convicted of driving while CONBOY, J. Following a bench trial in the Lebanon District Court

orally), for the defendant. ___________________________ Kenna & Sharkey, P.A. on the brief and 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 . . . , the person shall be subject to [enhanced penalties].”

which alleged that the person has had one or more [certain] prior convictions

conviction of any offense under RSA 265-A:2, I . . . , based on a complaint under RSA 265-A:18. In relevant part, RSA 265-A:18, IV provides: “Upon The penalties for a conviction of an offense under RSA 265-A:2, I, are set forth

which we review de

more. or more or in the case of a person under the age of 21, 0.02 or (b) While such person has an alcohol concentration of 0.08

statutory interpretation. The interpretation of a statute is a question of law,

subsequent DWI offense. Resolution of this issue requires that we engage in the State will rely to seek enhancement of the defendant’s sentence for a State to prove in its case-in-chief the existence of prior convictions upon which On appeal, the defendant argues that RSA 265-A:18, IV requires the liquor and controlled drugs; or liquor or any controlled drug or any combination of intoxicating (a) While such person is under the influence of intoxicating

pursuant to RSA 265-A:18, IV(b). convictions, and sentenced him to enhanced penalties for a third DWI offense

court overruled the defendant’s objection, accepted the evidence of the prior way . . . :

No person shall drive or attempt to drive a vehicle upon any

RSA 265-A:2, I, provides:

ascribe the plain and ordinary meaning to the words used. Id

submit evidence of the prior convictions during its case-in-chief. The trial convictions. The defendant objected, arguing that the State was required to At sentencing, the State sought to admit evidence of the two prior

to include. Id. legislature might have said or add language that the legislature did not see fit legislative intent from the statute as written and will not consider what the

157 N.H. 77, 84 (2008). When examining the language of the statute, we expressed in the words of the statute considered as a whole. State v. Langill, of statutory interpretation, we are the final arbiters of the legislative intent as

court found the defendant guilty of DWI. not enter evidence of the prior convictions in its case-in-chief. Ultimately, the complaint alleged two prior DWI convictions. At the bench trial, the State did

arrested and charged with DWI pursuant to RSA 265-A:2. The State’s The following facts are drawn from the record. The defendant was enactments of the DWI law to require the State to prove prior convictions in its

p. 3 the State to prove the prior convictions in its case-in-chief. See statute, which applies when the complaint does convictions.” RSA 265-A:18, IV. We do not read this language to also require complaint which alleged that the person has had one or more [certain] prior

penalties where a conviction under RSA 265-A:2, I, “is not 3

The defendant nonetheless observes that we have interpreted prior

added.) This section does not support a conclusion that Section IV of the

upon conviction of a DWI offense, that conviction need only be “based on a

the statute. However, Section VI merely requires the imposition of certain

requires the State to prove See offense beyond a reasonable doubt. See prior convictions in its case-in-chief. There is no dispute that the State must prove all of the elements of an allege prior convictions,

person is found to have had one or more such prior convictions.” (Emphasis complaint which alleges prior convictions as provided in paragraph IV, but the plain and unambiguous: in order to subject a defendant to enhanced penalties based upon a in the complaint does not change this result. The language of the statute is A:18 (Supp. 2012) (amended 2012) supports his interpretation of Section IV of The statute’s express requirement that the State allege prior convictions The defendant also contends that the language of Section VI of RSA 265-

legislature did not see fit to include). Pessetto, 160 N.H. 813, 816 (2010) (we do not add words to a statute that the of a subsequent DWI charge, the State need not prove them in its case-in-chief. State v.

the prior convictions in its case-in-chief. We disagree.

State v. McLellan does not create a separate crime or constitute a separate element of a crime.” statute based, in part, on prior convictions, is merely a penalty provision and proof to a jury). (prior convictions, as sentencing factors, are exempt from the requirement of McLellan, 146 N.H. at 113; State v. LeBaron, 148 N.H. 226, 230-31 (2002)

prior law). Because prior convictions are sentencing factors and not elements present offense.” State v. Cardin, 129 N.H. 137, 138 (1987) (decided under contends that once alleged, the legislature “clearly expects” the State to prove predicate condition for enhancement of the sentence upon conviction for the the express requirement that prior convictions be alleged in the complaint. He of prior conviction not as an element of the present charge, but rather as a requires the State to prove prior convictions in its case-in-chief. He points to United States, 523 U.S. 224, 228-48 (1998)). “The [DWI] statute requires proof

, 146 N.H. 108, 113 (2001) (citing Almendarez-Torres v.

United States Supreme Court [has] essentially held that a sentence enhancing

The defendant argues that the plain language of RSA 265-A:18, IV person shall be guilty of a misdemeanor . . . .”). After Cardin 4

p. 4 The defendant also cites State v. Lougee Importantly, the DWI statute interpreted in Cardin

current statute, does not contain such an express requirement, Cardin

person has had one or more prior convictions . . . which are proven . . . , said The defendant next relies upon Cardin after Cardin. In Lougee, we again recognized that “unless the defendant clearly

reasonable doubt.” Id not control our analysis.

reasonable doubt.” Id 265:82-b, I(b) (Supp. 1987) (repealed 2006). Because RSA 265-A:18, IV, the defendant also clearly waives his right to require that the jury find it beyond a convictions be proven. Compare RSA 265:82-b, I(b) (Supp. 1986) with RSA however, the legislature eliminated the express requirement that prior

(repealed 2006) (“Upon conviction based on a complaint which alleged that the them. See Cardin, 129 N.H. at 138; see also RSA 265:82-b, I(b) (Supp. 1986) State not only to allege prior convictions in the complaint, but also to prove

his interpretation of RSA 265-A:18, IV. sentencing factor, must be submitted to a jury, and proved beyond a

is not to remove the issue [of a prior conviction] from the jury unless the of it.” Cardin, 129 N.H. at 139. In that case, we instructed that “the trial judge Apprendi v. New Jersey defendant stipulates to a prior DWI conviction, “the jury has no need to know

of RSA 265-A:18, IV. Apprendi cannot be imposed without allegation and proof of a prior conviction.” Doucet, 530 U.S. at 490. Thus, Doucet is inapplicable to our interpretation

prescribed statutory maximum, whether the statute calls it an element or a requirement. See prior conviction, any fact that increases the penalty for a crime beyond the (overruling Doucet). We now adhere to the rule that “[o]ther than the fact of a abandoned the rule applied in Doucet. See LeBaron, 148 N.H. at 231-32

After consideration of the United States Supreme Court’s decisions in

106 N.H. at 226.

penalties are prescribed for a second offense or a subsequent offense, they interpreted the statute in light of the common law rule that “[w]hen greater

RSA 262-A:62 (Supp. 1965) (repealed 1981). However, we

The DWI statute in effect at the time did not expressly mandate such a influence of intoxicating liquor, second offense.” Doucet, 106 N.H. at 22 p. 5 5-26. the defendant is to be found guilty of driving a motor vehicle while under the in which we stated that “the State must both allege and prove two convictions if State v. Doucet, 106 N.H. 225 (1965), overruled by LeBaron, 148 N.H. at 232, case-in-chief, and he cites several cases in support. The defendant first cites 5

A f f i r m e d

offense pursuant to the statute.

Finally, the defendant cites dicta in LeBaron

DALIANIS, C.J.