2012-165, State of New Hampshire v. Matthew Blunt

offenses. We vacate the sentences and remand. complaints under which he was convicted alleged only class B m isdemeanor argues that the sentences imposed by the trial court were unlawful becaus e the (simple assault); RSA 642:2 (Supp. 2012) (resisting arrest). On appea l, he conviction of simple assault and resisting arrest. See RSA 631:2 - a (2007) the imposition of class A misdemeanor sent ences foll o wing the defendant’s Circuit Court – P lymouth District Division (Kent, J.), denying a motion to strike LYNN, J. The defen dant, Matthew Blunt, appeals an order of the 2d

and orally, for the defendant. Thomas Barnard, assistant appellate def ender, of Concord, on the brief

general, on the memorandum of law and orally), for the State. Michael A. Delaney, attorney general (N icholas Cort, assistant attorney

No. 2012 - 165 2d Circu it Court – P lymouth District Division

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 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: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concor d, 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 p. 2 22 as 2

constituted sufficient notice to comply with RSA 6 p. 2 25:9, IV(c)(2). not taking the position that checking the “class A misdemeanor” boxes on the complaint forms In response to inquiry by the court at oral argument, the State specifically indicated that it was 2 causes bodily injury or unprivileged physical contact to another.” (Emphasis added.) RSA 631:2 - a, I(a) provides that a person is guilty of simple assault if he “[p]urposely or knowingly 1

officer acting in the line of duty. defendant knew at the time of the assault that Ulwick was a law enforcement p. 2 2012), with respect to the simple assault charge, based on the fact that the notice of its intention to seek enhanced penalties under RSA 651:6, I(g) (Supp. misdemeanor penalties. The State did, however, on March 7, 2011, file a pursuant to RSA 625:9, IV(c)(2) (Supp. 2012), of i ts intent to seek class A neither before n or at the defendant’s arraignment did the State file notice, complaint forms the box specifying “c lass A misdemeanor” was checked, but 2 detention, by “pulling away from and struggling with said officer.” On both he recognized to be a law enforcement officer seeking to effect his arrest or the crime of resisting arrest, in that he physically interfered with Ulwick, whom Offic er William Ulwick about the head.” The second alleged that he committed caus[ing] unprivileged physi cal contact to another in that [d] efendant struck contact” variant of simple assault, see RSA 631:2 - a, I(a), by “knowingly 1 district division. The first alleged that he co mmitted the “unpriv ileged physical The State filed two criminal complaints against the d efendant in the

officer’s cruiser and removed from the area without further incident. of ski resort staff, placed him in handcuffs, after which he was taken to the tackle him. Ulwick took th e defendant to the ground and, with the assistance defendant then punched Ulwick in the mouth, pushed him and attempted to the defendant by his left hand and told him he was being detained. The persisted, the defendant started to walk away. At this point, Ulwick grabbed requested that the off icer discontinue “this line of questioning.” When Ulwick defendant asked if he was under arrest, and when told that he was not, was trying to get to a picnic table. In response to further questioning, the responded that he was “enjoying the beau tiful mountains and scenery,” and [snowboard] boots.” When asked by Ulwick what he was doing, the defendant found him sitting on a snowmobile, “singing, talking, rapping to his sno w into the air. The officer followed the defendant around a corner and odd.” Upon arrival, Ulwick observed the defendant in the parking lot, throwing of an individual “walking around the property kind of aimless ly and acting to the Mountain Club at Loon Mountain ski resort in response to a co mplaint p. 2 2010, O fficer William Ulwick of the Lincoln Police D epa rtment was dispatched The record reflects the following undisputed facts. On December 3 0,

to this court pursuant to RSA 599:1 - c, II (2001). trial de novo. See RSA 502 - A:12 (2010); RSA 599:1. Rather, the appeal in such cases is directly A person convicted of a class B misdemeanor has no ri ght of appeal to the superior court for a p. 3 3

enforcement officers as specified as Class A misdemeanors. application of RSA 651:6 which speaks to crimes against law that involved violence. And this is further amplified by the confusion about the fact that the complaints indeed did allege acts cannot waive a mandatory right, it becomes clear that there was no Superior Court, the matter c ould have been raised. While one to appeal the issue could have been raised; or prior to trial in the raised; or at sentencing the issue could have been raised; or prior raise the issue; or anytime prior to trial the issue could have been the arraignment and that would have been th e appropriate time to Furthermore, the [d]efendant through his attorney waived

away and struggling” do not involve acts of violence. to believe that “struck William Ulwick about the head” or “pulling facts that involved an act of violence. . . . It would be nonsensical offenses were Class A Misdemeanors and each complaint recited statute [RSA 625:9] as the complaints, on their face, indicated the The Court finds that the State has met the burden imposed by the

In its written order, the court explained the basis for its ruling as follows: On February 8, 2012, the court denied the defendant’s motion to strike.

file memoranda of law on the issue. misdemeanors. The court recessed the hearing and requested that the parties that court were unauthorized because he h ad been convicted only of c lass B strike the class A penalties, a sserting that the original sentences imposed by district division on January 17, 2012, the defendant made an oral motion to a motion to reman d the cases to the district di vision. At a hearing before the September 19, 2011, with the assent of the parties, the superi or court granted The defendant subsequently waived his right to a jury trial, and on

599:1 (Supp. 2006) (amended 2011). p. 3 3 appealed the convictions to the superior court for a de novo jury trial. See RSA exceeded what was permissible for a class B misdemeanor. Instead, he defendant did not then challenge the sentences on the ground that they incarceration, all of which was suspended for a period of two years. The the resisting arrest charge, the court imposed a sentence of sixty days days deferred for two years upon good behavior, and two years probation. On sentenced him to six months in the house of corrections, with all but thirty defendant guilty of both offenses. On the simple assault charge, t he court Following a bench trial, on June 1, 2011, the district division found the p. 4 4

actually committed in a violent manner, but whether an act of violence must be consideration under the statute is not whether a particular o ffense was which the offenses were committed. According to the defendant, the important factual allegations contained within the complaints describing the manner in that both complaints fell within the te rms of RSA 625:9, IV(c)(1) based on the The defendant first argues that the trial court erroneously determined

person of the other. by physical menace or by threats to commit a crime against the attempting to place another in fear of imminent bodily injury either weapon; and the term “threat of violence” means placing or or recklessly causing bodily injury with or without a deadly The term “act of violence” means attempting to cause or purposely

In turn, the pertinent portion of RSA 625:9, VII states:

in accordance with RSA p. 4 490:26 - d. arraignment. Such notice shall be on a form approved misdemeanor penalties on or before the date of (2) The state files a notice of intent to seek class A

paragraph VII; or vi olence” or “threat of violence” as defined in (1) An element of the offense involves an “act of

presumed to be a class B misdemeanor unless: misdemeanor without specification of the classification shall be (c) Any crime designated within or outside this code as a

RSA 625:9, IV provides, in pertinent part:

see RSA 625:9, IV(c)(2). form approved for this purpose by the judicial branch administrative council, intent to seek class A penalties on or before the date of his arraignment on a violence, see RSA 6 25:9, IV(c)(1); and (2) the State did not file notice of its alleged a crime that involved as an element an act of violence or a threat of complaints as alleging class B misdemeanors because: (1) neither complaint Specifically, he contends that the trial court was required to treat both determining that each of the complaints charged a class A misdeme anor. On appeal, the d efendant argues that the district division erred in

This appeal followed. p. 5 5

enhanced penalties under RSA 6 p. 5 51:6, I(g) for the s imple assault charge did not Second, the defendant argues that the State’s notice of intent to seek

not constitute compliance with RSA 62 p. 5 5: 9, IV(c)(2). checking the “class A misdemeanor” box on the standard complaint form does provided to the defendant at or before arraignment. W e hold that merely or police officer to certify to the court that the notice has been or will be that may be imposed for a class A misdemeanor, and requires the prosecutor pursuant to the statute; the form contains a specific listing of the penalties 490:26 - d. We take judicial notice that the council has approved a form for use approved by the judicial branch administrative council in accorda nce with RSA defendant. RSA 625:9, IV(c)(2) requires that the notice be filed on a form note that the State does not argue to the contrary, and again we agree with the was not sufficient to comply with the requi rements of the statute. Again, we boxes on the complaint forms signifying class A misdemeanors were checked arguments in support of this claim. First, he argues that the mere fact that the defendant’s arraignmen t. See RSA 625:9, IV(c)(2). The defendant advances two notice of its i ntent to seek class A misdemeanor penalties at or before the misdemeanors be treated as class B misdemeanors because it failed to file alternative avenue for avoiding the statutory presumption that unclassified The defendant next asserts that the State also failed to sati sfy the

sufficient to support a conviction for violating RSA 642:2. “broke free and retreated into the cellar,” after being told he was under arrest, 144 N.H. 1, 7 (1999), we found evidence establishing merely that the defendant causing or attempting to cause bodily inj ury. For example, in State v. Smith, effectuate an arrest or detention, may be violated by conduct that falls short of pr oscribes physical interference with a law enforcement officer seeking to RSA 62 p. 5 5:9, IV(c)(1). Similarly, the resisting arrest statute, RSA 642:2, which not necessarily involve as an element an “act of violence” within the meaning of bodily injury,” RSA 625:9, VII, and therefore this variant of simple assault does not all unpriv ileged physical contact entails “causing [or attempting to caus e] contact’ includes all physical contact not justified by law or consent.” Clearly, stated in State v. Burke, 153 N.H. 36 1, 364 (2006), “‘ unprivileged physical here involved causing unprivileged physical contact, not bo dily injury. As we involved as an element of the offense. The variant of simple assault alleged complaint nor the resisti ng arrest complaint required that an act of violence be Applying this interpretation, we con clude that neithe r the simple assault

the statute, and we agree that this is what the statute means. (emphasis added)). The State does not dispute the defendant’s interpretation of result o f conduct as . . . (a) [i]s included in the definition of the offense.” an offense’ means such conduct, or such attendant circumstances, or such a involved as an element of the offense. See RSA p. 6 62 p. 5 5:11, III (2007) (“‘ Element of 6

version of RSA p. 6 651:6 then in effect, the court sentenced him to two concurrent convicted of two m isdemeanors in the former district court. Pursuant to the In Kiluk v. Potter, Administrator, 133 N.H. 67 (1990), the defendant was

enhanced sentence in the district division. III(b), we must still determine whether the State ma y use the statute to seek an and a maximum to be fixed by the court o f not more than 5 years,” RSA p. 6 651:6, misdemeanor to “a minimum to be fixed by the court of not more than 2 years invoked by the State to enhance the sentence for either a class A or class B 338, 343 (2 009). Assu ming without deciding that RSA 651:6, III(b) may be include.” State Employees Assoc. of N.H. v. N.H. Div. of Personnel, 158 N.H. effectively “add language to the statute that the legislature did not see fit to penalties only for class A misdemeanors would be improper, a s it would offenses. It therefore argues that to hold that this statute autho rizes enhanced misdemeanors generally, without regard t o their classification as A or B level offenses that fall within the terms of RSA 651:6, I(g) applicable to plain language of RSA 651:6, III make s the enhanced penalty it authorizes for With respect to the simple assault charge, the State contends that the

chapter p. 6 642. conviction on the resisting arrest charge, since that offense is found in RSA only to “crimes defined in RSA 631,” it is not applicable to the defendant’ s Turning to the merits, we note first that because RSA 651:6, I(g) applies

employed to reply to opposing party’s brief). K - Mart Corp., 129 N.H. 591, p. 6 61 p. 7 7 (1987) (holding that reply brief is properly whether it violated particular section of zoning ordinance); Panas v. Harakis & question of whether campground was illegal fairly encompassed question Barrington v. Townsend, 164 N.H.___, ___, 55 A.3d 952, 956 (2012) (broad include every subsidiary question fairly comprised therein.”); Town of Sup. Ct. R. 16(3)(b) (“The statement of a question presented will be deemed to the State’s assertion that the statute did authori ze the sentences imposed. Cf. sufficient for the defen dant to address the issue in his reply brief in response to preemptively assert that RSA 651:6 did not provide such authorization; it was authority to impose class A misdemeanor sentences, did not need to brief, both of which frame the issue broadly as whether the trial court had the circumstances, we believe that the defen dant’s notice of appeal and opening statute had on its ability to impose class A misdemeanor sentences. In these the order is unclea r as to what effect, if any, th e trial court concluded this We reject the State’s po sition. Although the trial court’s order cited RSA 651:6, application of RSA 651:6, I(g) in either his notice of appeal or his opening brief. that this argument is not preserved because the defendant did not address the excess of t hose for class B misdemeanors. In response, the State first asserts override RSA 625:9, IV and authorize the trial court to impose penalties in 7

arraignment, as required by RSA 625:9, IV(c)(2). in RSA 651:6, I II(b)), but the notice was not filed at or before the defendant’s mi sdemeanor penalties (as opposed to the much greater penalties provided for of any indication that its purpose was to authorize the imposition of class A argument as well. Not only was the RSA 651:6 notice filed in this case devoid as a “proxy” for the notice required by RSA 625:9, IV(c)(2), we reject this understood to su ggest that the RSA 65 1:6 notice should no netheless be treated cou rt was wholly in effect ive. And i nsofar as the State ’s position can be conclude, as we did in Kiluk, that the State’s filing of that notice in the circuit a sentence bey ond that which the distr ict division had the power to impose, we because the notice of intent to seek enhanced sentence purported to authorize the jurisdiction formerly exercised by the district court). Consequently, (Emphasis a dded.) See RSA 490 - F:3 (Supp. 2012) (granting the circuit court exceeding $2,000 or imprisonment not exceeding one year, or both. . ..” district in which such court is located which are punishable by a fine not jurisdiction . . . of all crimes and offenses committed within the confines of the states, in pertinent part: “Each district court shall have .. . original imposed for the offense with which the defendant is charged. RSA 502 - A:11 imposed in any given case, but upon the maximum penalty that may be the district division ’s jur isdiction based not upon what sentence is actually legislature exercised the power granted it by the above amendment, it defined imposed does not exceed one year of impriso nment. However, when the enhanc ed sentence in the district division as long as the s entence actually The State argues that Kiluk is not a bar to utilizing RSA 651:6 to se ek an

Kiluk, 133 N.H. at p. 7 70 (emphasis added).

203, 263 A.2d 6 p. 7 77, 678 (1970). superior court. See RSA 592 - A:1; State v. Blouin, 110 N.H. 202, 651:6, it has the optio n to seek a trial in the first instance in the State plans to seek an extended term of imprisonment under RSA for a given crime is one year in a county correctional facility. If the 651:6. The maximum sentence which a district court may impose criminal defendant to the e nhanced penalties provided in RSA [A] district court judge may not sentence a convicted

punishment is less than imprisonment in the state prison.” W e then held that: subject to right of appeal and trial by jury, all criminal causes wherein the legislature “to give to police courts original jurisdiction to try and determine, Part II, A rticle p. 7 77 of the New Hampshire Constitution, which authorized the year. On appeal, we review ed the history lea ding to the 1912 amendment of that he had twice previously been im prisoned on se ntences in excess of one sentences of not more than five years nor less than two years based on the fact p. 8 8

DALIANIS, C. J., and HICKS, CONBOY, and BASSETT, JJ., conc urred.

sentences imposed and remand to the district division for resentencing. convictions were for class B misdemeanors. Accordingly, we vacate the For the reasons stated above, we hold that the defendant’s two