2012-240, State of New Hampshire v. Robin Lukas

The defendant, Robin Lukas, appeals a decision of the

orally, for the defendant. James B. Reis, assistant appellate defender, of Concord, on the brief and

assistant 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 criminal code means any crime “beyond [its] limits.” Webster’s Third New

p. 2 sentence enhancement of RSA 637:11, II(b). Any crime defined “outside” of the

example, that our decision in State v. Cardin, 102 N.H. 314 (1959), recognized

or outside this code and any crime defined outside of this code for which the “Class A misdemeanor” is defined as “any crime so designated by statute within penalty provided is imprisonment in excess of one year.” RSA 625:9, III (2007). committed outside of New Hampshire as predicate offenses triggering the include. State v. Pessetto, 160 N.H. 813, 816 (2010). “We will not rewrite the class A misdemeanor evince a clear legislative intent to include theft crimes of-state convictions.” We disagree. The relevant definitions of a felony and a

criminal code. Id. The defendant’s interpretation would require us to construe the defendant’s remaining arguments unavailing. The defendant contends, for

because the legislature’s intent in enacting this provision was to “exclude out-

RSA 625:9, IV(a), is plainly a statute “beyond the limits of” New Hampshire’s of-state theft convictions as predicate sentence enhancement offenses, we find with RSA 625:9, III and IV(a), expresses the legislature’s intent to include out- Having concluded that the plain language of RSA 637:11, II(b), together

defined as “murder or a crime so designated by statute within or outside this State of New Hampshire” – a construction at odds with the oft-repeated maxim theft of property or services, as a felony or class A misdemeanor.” “Felony” is theft crime a class B felony if “[t]he actor has been twice before convicted of considered for the purpose of the RSA 637:11, II(b) sentence enhancement The defendant argues that her prior out-of-state convictions may not be excess of one year,” RSA 625:9, III, or “imprisonment not in excess of one year,”

150 N.H. 69, 73 (2003). statute; that is the province of the legislature.” Balke v. City of Manchester,

“outside of this code” to mean “outside of this code but within other laws of the

Regardless of the value of the property stolen, RSA 637:11, II(b) makes a

RSA 625:9, IV(a) (Supp. 2012) (emphasis added). another state for which the maximum penalty is either “imprisonment in International Dictionary 1604 (unabridged ed. 2002). A theft statute in

and to promote justice. See State v. Moran, 158 N.H. 318, 321 (2009); RSA maximum penalty, exclusive of fine, is imprisonment not in excess of one year.”

question of law that we decide de novo. State v. Marshall, 162 N.H. 657, 661

625:3 (2007).

construed; rather, we construe them according to the fair import of their terms do not follow the common law rule that criminal statutes are to be strictly whole. Duquette v. Warden, N.H. State Prison, 154 N.H. 737, 740 (2007). We intent of the legislature as expressed in the words of a statute considered as a (2011). In matters of statutory interpretation, we are the final arbiter of the the statute here at issue, see, e.g., RSA 632-A:10, I (2007) (prohibiting those p. 3 Hampshire statutes refer to out-of-state convictions more explicitly than does convictions for third-offense theft statute at issue). That a number of New

under Cardin. predicates for sentence enhancement, we necessarily reject her argument favor of” her construction. Because we find no ambiguity in RSA 637:11, II(b), enhancement implied legislative intent to prohibit use of out-of-state

more than one way” for the legislature “to skin the cat.” Knight v. Comissioner, chose the words “outside of this code” in RSA 625:9, III and IV(a). “[T]here is from engaging in child care services), does not alter the fact that the legislature

legislature’s intent to include out-of-state criminal theft convictions as after undertaking statutory analysis, we “should apply the rule of lenity in language authorizing use of prior out-of-state convictions for penalty Finally, the defendant contends that, “if any doubt or ambiguity survives”

552 U.S. 181, 194 (2008).

legislative intent from the statute as written and will not consider what the

who have “been convicted in this or any other jurisdiction” of certain offenses

previous statutes relating to the same subject matter.” In re Guardianship of

defendant’s contention that RSA 637:11, II(b) lacks an express indication of the such use in other contexts (quotation omitted)). Because we have rejected the (rejecting similar contention that the existence in one statute of explicit theft,” notwithstanding existence of other Iowa statutes explicitly providing for N.H. 266, 268 (2009) (emphasis added); see Henderson, 804 N.W.2d at 727 legislature might have said . . . .” Fog Motorsports #3 v. Arctic Cat Sales, 159

enhancements for third theft offenses – as the one at issue. “We interpret 637:11, II(b),” nor do they relate to the same subject matter – penalty statute expressly h[olds] otherwise.” But cf. People v. Hazelton, 926 P.2d 423, observes, “the statutes cited by the defendant are not referred to in RSA Williams, 159 N.H. 318, 323 (2009) (quotation omitted). As the State correctly

and that . . . whenever the legislature enacts a provision, it has in mind Williams that “the legislature’s choice of language is deemed to be meaningful, argument is more aptly based upon our statement in In re Guardianship of unius est exclusio alterius (the mention of one thing excludes another), her enhanced penalty statute for “one who has before been twice convicted of inclusion is not specified.” Although she recites the principle of expressio to exclude out-of-state prior convictions where, as in RSA 637:11, II(b), their specifically referring to out-of-state convictions indicates the legislature’s intent The defendant also contends that “[t]he existence of other statutes beyond the limits of the jurisdiction where the judgment was rendered unless a the common law principle that, in her words, “a prior conviction ha[s] no effect

2011) (prior out-of-state convictions may be used as predicate offenses under p. 4 426-27 (Cal. 1996); State v. Henderson, 804 N.W.2d 723, 727 (Iowa Ct. App. 4

the rule of lenity does not apply. State v. Brooks, 16 p. 4 4 N.H. __, __, 56 A.3d

DALIANIS, C.J., and CONBOY, LYNN and BASSETT, JJ., concurred.

Affirmed.

12 p. 4 45, 1263 (2012).