2013-096, State of New Hampshire v. Daniel Thompson

decision in a prior appeal in this case. See State v. Thompson, 164 N.H. 447 The following facts are supported by the record or are taken from our

appeal. We affirm. Superior Court (Vaughan, J.) denying his petition to allow a misdemeanor an appeal to s uperior c ourt for a de novo jury trial and a decision of the 2d Circuit Court – Lebanon District Division (Cirone, J.) denying his request for HICKS, J. The d efendant, Daniel C. Thompson, appeals a decision of the

the defendant. Kenna & Sharkey, P.A., of Manchester (Bruce E. Kenna on the brief), for

general, on the brief), for the State. Joseph A. Foster, attorney general (Nicholas Cort, assistant attorney

No. 2013 - 096 2d Ci rcuit Court – Lebanon District Division Grafton

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

conviction in the [trial c ourt] was properly for a Class A or a Class B trial where his appeal to this C ourt was made solely to determine whether his from now appealing his t rial court conviction “to the S uperior C our t for a jury a s an initial matter, that he contests whether RSA 50 p. 2 2 - A:12 precludes him appeal to this court waived his right to a jury trial in superior court. We note, The defendant first challenges the t rial cour t’s ruling that his election to

the decision s of both the trial and superior court s. superior court denied that motion. The defendant now appeals to this court superior court, it “was the result of mistake, accident and misfortune.” The that if he had, as the t rial court decided, waived his right to appeal to the allow a misdemeanor appeal pursuant to RSA 599:1 through 599:1 - b, arguing for a de novo jury trial. The defendant then petitioned the superior court to appeal to this court, was not thereafter entitled to appe al to the superior court (amended p. 2 2011). The t rial court ruled that the defendant, having chosen to and asserted his right to a de novo jury trial. See RSA 599:1 (Supp. 20 06) court of his intent to appeal his conviction and sentence to the s uperior court A misdemeanor conviction. Id. at 451. The defendant then notified the trial Thompson, 164 N.H. at 448. We disagreed and affirmed the defendant’s class the Sta te failed to prove at trial the existence of his prior convictions. court erred by imposing an enhanced penalty under RSA 265 - A:18, IV because On appeal to this court in Thompson, the defendant argued that the trial

sentence pending resolution of his appeal to this court. that motion. It appears that the trial court also stayed the defendant’s contemplated appeal to this court could be filed. The su perior c ourt granted assented - to motion to remand the case to the trial court so that the appeal to the s uperior c ourt. T he defendant then filed in the superior court an Court.” It appears, however, that the district court clerk’s office sent the at the sentencing hearing, “stated his intent to appeal . . . to the Supreme According to the circuit court order now being appealed, the defendant,

p. 2 2012) (amended 2012). would have been a class B misdemeanor. See RSA 265 - A:18, I(a)(1) (Supp. IV(b). Had the prior offens es not been admitted, the defendant’s conviction the defendant was convicted of a class A misdemeanor. See RSA 265 - A:18, IV(b) (Supp. 2012) (amended 2012); Thompson, 16 4 N.H. at 448. Accordingly, penalties for a third DWI offense under RSA 265 - A:18, IV(b). RSA 265 - A:18, The trial court admitted the evidence and sentenced the defendant to enhanced S tate sought to admit them, over the defendant’s objection, at sentencing. Id. evidence of those convictions at trial. Thompson, 164 N.H. at 448. Rather, the against the defendant alleged two prior convictions, but the State did not enter 2012) (ame nded 2012); Thompson, 164 N.H. at 448. The amended complaint District Court, of driving while intoxicated (DWI). See RSA 265 - A:2, I (Supp. (2012). The defendant was convicted, following a bench trial in Lebanon p. 3 3

therefrom to the supreme court. court, and the defendant may appeal questions of law arising f or imposition of the sentence originally imposed by the district superior court shall forthwith remand the case to the district court the right to a jury trial after the case has been appealed, the therefrom to the supreme court. In the event the defendant waives defendant, and the defendant may appeal questions of law arising defendant is found guilty, the superior court shall sentence the appeal . . . . If, after a jury trial in the superior court, the a de novo jury trial in the superior court, which shall hear the the time the sentence is declared, may appeal ther efrom to obtain A person convicted by a district court of a class A misdemeanor, at

RSA 502 - A:12 (emphasis added). RSA 599:1, in turn, provides, in part:

of law. declared. The supreme court’s review shall be limited to questions sentence is declared or within p. 3 30 days after the sentence is taken, appeal therefrom to the supreme court at the time the misdemeanor may, if no appeal for a jury trial in superior court is II. A person sentenced by a district court for a class A

jury trial as provided in RSA 599 . . . . Court Rule 2.14 may appeal therefrom to the superior court for a misdemeanor after trial or after proceedings pursuant to District I. A person sentenced by a district court for a class A

RSA 502 - A:12 provides:

Id. (citations omitted).

statutory scheme and not in isolation. Further, we interpret a statute in the context of the overall might have said or add language it did not see fit to include. the statu te as written and will not consider what the legislature meaning to the words used. We interpret legislative intent from statute, and, where possible, we apply the plain and ordinary considered as a whole. We first examine the language of the intent of the legislature as expressed in the words of a statute In matters of statutory interpretation, we are the final arbiter of the

review de novo. State v. Hynes, 159 N.H. 187, 19 p. 3 3 (2009). to interpret the applicable statutes, which presents a question of law that we misdemeanor.” See RSA 502 - A:12 (2010). Resolution of this issue requires us p. 4 4

convictions remain valid and in force pending appeal, unless the district court Coleman, p. 4 458 F.3d 453, 457 n.1 (6th Cir. 2006) (noting that “criminal collateral estoppel doctrine un less and until overturned); cf. United States v. 75, 85 (2006) (noting that a conviction is entitled to preclusive effect under conviction is overturned, it is deemed valid. . ..” Stewart v. Bader, 154 N.H. available av enues of appellate review. “[U] nless and until [a defendant’s] alter the conviction’s validity at that time for purposes of determining th e be lieved that classification was erroneous and intended to challenge it does not unambiguously convicted of a class A misdemeanor. That the defendant the defendant’s sentence was declared by the t rial cou rt, he had been time the sentence is declared,” or within a limited time thereafter. At the time and RSA 599:1 permit a defendant to appeal a class A misdemeanor “at the The defendant’s statutory argument is unavailing. Both RSA 502 - A:12, II

was necessary and available.” determine whether he had been convicted of an offense for which a jury trial options . . . [he] had to appeal to this C ourt to interpret the DWI statute . . . to either advisable or even possible.” He asserts that “[i] n order to fully define his decision in Thompson, he “did not believe any appeal to the Superior Court was until he obtained a ruling from this court, and that until we rendered our properly convicted in the [trial c ourt] of a Class A or a Class B misdemeanor” appeal to supreme court). H e argues that he could not “know whether he was (person sentenced by district court for violation or class B misdemeanor may entitled to a jury trial on a class B misdemeanor”); see also RSA 599:1 - c (2001) N.H. 323, 32 p. 4 4 (2003) (noting that “[a]s a matter of law, [a] defendant is not therefore, would not have been entitled to a jury trial. See State v. Foote, 149 would have been convicted of a class B, rather than class A, misdemeanor and, contention we rejected in Thompson, see Thompson, 164 N.H. at 451 – he erred in using prior convictions not proved at trial to enhance his sentence – a dilemma.” His argument rests upon the premise that if the t rial court had iss u e to this court and that “RSA 502 - A:12 never conte mplated such a convicted of a class A misdemean or until he appealed the enhanced penalty The defendant argues that he could not know that he was properly

conviction to this court. See RSA 599:1. jury trial and is again convicted, he may then appea l that subsequent court for the resolution of questions of law. If the defendant chooses a de novo to cho ose between appealing to superior court for a de novo jury trial or to this simultaneously or consecutively. Accord ingly, the statute requires a defendant does not allow a defendant to pursue both avenues of appeal, either court “if no appeal for a jury trial in superior court is taken.” RSA 502 - A:12. It district (now circ uit) court of a class A misdemean or to appeal directly to this By its plain language, RSA 502 - A:12 permits a person convicted in

requir ed in the latter case “becaus e the defendant forfeits not only the waiver is tantamount to a guilty plea” and expl aining that a colloquy is required to conduct a colloquy to establish a valid waiver unless the But see Foote, 149 N.H. at 32 p. 5 5 (noting that “the trial court is not always some colloquy to assure that he has a full understanding of that waiver.” defendant is silent as to his intent to waive a jury trial, a court must hold among other case s, State v. Hewitt, 128 N.H. 557 (1986), that “[w]here a 325 (quotation and brackets omitted). Th e defendant also argues, citing, awareness of the relevant circumstances and likely consequences.” Id. at one must do so voluntarily, knowingly, and intelligently with sufficient We have stated generally that “when waiving a constitutional right,

327. however, “no set formula by which to validate a waiver of a jury trial.” Id. at a valid waiver is a question of law which we review de novo.” Id. There is, waived his right to [a] jury trial in Superi or Court.” “Whether the facts support fairly argued that he intentionally, voluntarily, knowingly and intelligently do not support a valid waiver of [his] right to a jury trial” because “it cannot be T he defendant contends that “[t] he facts and circumstances of this case

right.” Foote, 149 N.H. at 32 p. 5 5 (quotation and citation omitted). importance, and courts do not presume acquiescence in the waiver of such a “The constitutional right to trial by jury is one of central and fundamental (b)(2) (outlining terms of mandatory incarceration for a third DW I offense). criminal defendants facing the possibility of incarceration”); RSA 265 - A:18, IV by jury either in the first instance or on appeal to the superior court . . . to all that P art I, A rticle 15 of the State Constitution “guarantees. . . the right to trial Opinion of the Justices (DWI J ury T rials), 135 N.H. 538, 541 - 42 (1992) (noting It is undisputed that the defendant was entitled to a jury trial. See

federal law only to a id our analysis. Sta te v. Ball, 124 N.H. 226, 231 - 33 (1983). first address the defendant’s claim under the State Constitution and rely upon Constitution and the Sixth Amendment to the United States Constitution. We right to a jury trial, as guaranteed by Part I, Article 1 p. 5 5 of the New Hampshire contends that by choosing a direct appeal to this court, he did not waive his We now turn to the defendant ’s constitutional argument. Specifically, he

concealable firearm). not a convicted felon for purposes of” statute prohibiting felon from possessing that defendant to assume that the conviction is somehow invalid and that he is “[w] hen a defendant’s conviction is on appeal, it appears to us unreasonable for Hansen v. State, 824 P.2d 1384, 1389 (Alaska Ct. App. 1992) (opining that procedure for appeals b ased upon his belief that the trial court erred. Cf. valid until overturned to allow a defendant to bypass the clear statutory rules otherwise”). It would fly in the face of the rule treating convictions as p. 6 6

constitutionally permissible limits in declaring that [the] petitioner lost his right with the issue in Bousquet; namely, whether “Massachusetts act [ed] within Bousquet, 133 N.H. at 488. In addition, t he issue in Preston was on all fours (1981) (amended 1993, 199 p. 6 6). That system, we noted, was similar to our own. see Preston, 541 F. Supp. at 899; s ee also Mass. Gen. Laws Ann. ch. 278, § 18 491, whic h involved Massachusetts’s then - existing two - tier criminal system, 15 was “guided by the reasoning of Preston v. Seay,” Bousquet, 133 N.H. at In Bousquet, we explicitly noted that our interpretation of Part I, Article

jury trial. whether that deemed waiver violates the defendant’s constitutional right to a ‘deemed waiver’ of the right to jury trial”). The task before us is to determi ne “Massachusetts’ doctrine that ‘solid default’ of appearance constitutes a his r ight to a jury trial. Cf. Preston, 541 F. Supp. at 90 0 (recognizi ng superior court for a de novo trial to a jury; thus, he is deemed to have waived misdemeanor conviction to this court, a defendant must forego an appeal to words, RSA 502 - A:12 dictates that by taking a direct appeal from a class A Supp. 898, 899 (D. Mass. 1981), aff’d, p. 6 684 F.2d 172 (1st Cir. 1982). In other relinquishment of a known right, but ‘deemed waiver, ’” Preston v. Seay, 541 F. that i n cases such as this, “the issue [is] not ‘waiver’ in the sense of voluntary to have waived his right to a trial by jury,” id. (emphasis added), we recognized In Bousquet, by holding that the defendant could “reasonably be deemed

15 of the New Hampshire Constitution. Id. unconstitutionally infringe upon” his right to a jury trial under Part I, Article district court to superior court for a de novo jury trial] did not superior court’s denial of the defendant’s motion to reinstate his appeals [from waived his right to a trial by jury.” Id. at 492. Accordingly, we held that “the within the meaning of RSA 599:3, and can reasonably be deemed to have 489. We disagreed, holding that “the defendant failed to prosecute his appeal with a personal waiver which indicates his understanding of this right.” Id. at under Hewitt, he could “only waive his State constitutional right to a jury trial not constitute a valid waiver of his right to a jury trial, and asserted that, appeal to this court, the defendant argued that his failure to appear for trial did remanded the case for imposition of the defendant’s sentences. Id. at 487. On failed to appear at the time scheduled for trial. Id. at 48 p. 6 6. The superior court misdemeanor convictions to superior court for a de novo jury trial but twice 133 N.H. at 489. In Bousquet, the defendant had appealed his district court unlike Hewitt, involved an appeal in our two - tier criminal system. Bousquet, controlling in light of factual differences, the principal one being that Bousquet, In State v. Bousquet, 133 N.H. 485 (1990), we found Hewitt not

h el d in this case. the right against self - incrimination”). He represents that no colloquy was right to trial by jury, but also the right to confront accusers as well as p. 7 7

Massachusetts ’ s two - tiered criminal system, hel d: “The modes of exercising Thus, the United States Supreme Court, in an opinion upholding reasonable regulations on the exercise of even the most precious rights.”). exercising the right to trial by jury. See id. at 901 (“[A] state may impose waiver is the recognition that states may, within limits, regulate the m anner of Underlying the Preston court’s reasoning in giving effect to the deemed

Id. at 900 - 01.

give up that rig ht. his right to jury trial and meant to, or manifested that he meant to, default” of appearance, whether or not the defendant understood to jury trial because of a deemed waiver incident to a “solid . . . [U]nder Massac husetts law, a defendant may lose the right

. . . .

state of mind, of being willing to give up his right to jury trial.. . . state of mind, or by his actions manifested to others that he had a have occurred even though it is not found that defendant had a explicitly reasoned on the ground that “waiver” may be held to constitutes a “deemed waiver” of the right to jury trial . .. is Massachusetts’ doctrine that “solid default” of appearance

In upholding the deemed waiver in Preston, the court noted the following: his right to a jury trial, we find his deemed waiver to be constitutionally valid. Even assuming that the defendant did not subjectively intend to waive

his appeal and affirm the [trial court ’s] rulings, con viction, and sentence.” [the superior court] pursuant to RSA 599:1 should the [supreme court] deny the defen dant stated that he sought the remand “without prejudice to appeal to assented - to motion to remand h is appeal from the superior to the trial court, uncontested assertion of his intent to exercise” that right. Specifically, in his he was waiving his right to [a] jury trial,” but rather made an “unequivocal and because he neve r “indicated in any way that he intended to waive or believed here do not show an i ntentional, voluntary, knowing, and intelligent waiver of jury trial.” Id. The defendant in this case similarly contends that the facts Commonwealth failed to show “that he made a knowing and intelligent waiver conference and not for trial on that date.” Id. He argued, therefore, th at the ground that he and his counsel understood that the case was set for pretrial sought to justify his absence at the time his case was called for trial “on the Nevertheless, we again find Preston instructive. The petitioner in Preston Here, t he asserted deemed waiver is not a default but an affirmative election. jury trial in Massachusett s ’s two - tier system. Preston, 541 F. Supp. at p. 8 899. to jury trial because he inexcusably failed to a ppear as directed” for his de novo 8

to one bite at the apple. Should he ch o ose the de novo jury trial in superior court. Ludwig, 427 U.S. at 630. In essence, RSA 502 - A:12 limits a defendan t his appeal to superior court – appeal that same circuit court conviction to this right” that the defendant may not also – either prior to, concurrently, or after misdemeanor, and dictates, as “the manner . . . specified fo r exercising this guarantees trial by jury to persons” convicted in circuit court of a class A With the foregoing in mind, we reiterate that RSA 502 - A:12 “absolutely

h as cited no such new doctrinal development. result.” Bousquet, 133 N.H. at 491. We note that the defendant here development has arisen since these dismissals that mandates a different Supreme Court, will control the decision here unless a new doctrinal held that “Francis and O’Clair, and the dismissal of their appeals by the 133 N.H. at 490; Preston, 541 F. Supp. at 902. Thus, in Bousquet, we (197 p. 8 8); O’Clair v. Massachusetts, 439 U.S. 805 (1978). See Bousquet, substantial federal question,” Francis v. Mas sachusetts, 439 U.S. 805 1212 (1978) (following Francis on deemed waiver issue), “for want of a from the decisions in Francis and Com monwealth v. O’Clair, 374 N.E.2d Bousquet, was the United States Supreme Court’s dismissal of appeals Also informing the court’s decision in Preston, and our decision in

informing the clerk’s office of his change of address”). trial where failure to appear at de novo trial “was due to his own neglect in not Whitney, that defendant was deemed to have waived right to a de novo jury Com. v. Francis, 374 N.E.2d 1207, 1212 (Mass. 197 p. 8 8) (holding, following Commonwealth v. Whitney, 108 Mass. 5, 6 - 7 (1871) (citation omitted); see

unconstitutional. . . . that he may thereupon be defaulted and sentenced, is not his appeal, he waives his right of a trial by jury, and the provision and prosecute his appeal. If he neglects so to enter and prosecute reasonable and necessary as to the mode in which he may enter to have a trial by jury, and makes regulations which are peace or police court the right to appeal to the superior court and [The statute] gives any person convicted before a justice of the

Massachusetts Constitution: conviction to the superior court for a de novo jury trial violates the up on a failure to comply with the statutory procedure for appealin g a Court of Massachusetts long ago rejected the contention that a default based Massachusetts, 427 U.S. 61 p. 8 8, 630 (1 p. 9 976). Similarly, the Supreme Judicial exercising this right is fair and not unduly burdensome.” Ludwig v. to persons accused of serious crimes, and the manner it has specified for specification. In this case, Massachusetts absolutely guarantees trial by jury federal cons titutional rights have traditionally been left, within limits, to state 9

hold ing a hearing. He contends that “[t]he record certainly contains no support discretion in denying his petition to allow a misdemeanor appeal without first Id. The defendant argues that the superior court unsustainably exercised its

justice may require. cause of his del ay. The court may make such order thereon as appeal, setting forth his interest, his reason for appealing and the 30 days from the time the sentence is declared, to be allowed an his own neglect, may petition the superior court at any time within 5 p. 9 99:1 . . . , through mistake, accident or misfortune, and not from who was prevented from appealing therefrom, as provided in RSA Any person aggrieved by a decision of a district or municipal court

That statute provides: trial in the superior court pursuant to RSA 5 p. 9 99:1 - b. See RSA 599:1 - b (2001). circumstances of this case,” that he be allow ed an appeal for a de novo j ury accident, or misfortune” and, therefore, justice requires, “under the peculiar waived his right to a jury trial, that waiver was the result of “honest mistake, Finally, the defendant presents the question as to whether, even if he

does not violate the defendant’s constitutional rights to a jury trial. presumably in an attempt to g ain an acquittal. As we herein hold, t hat choice appealing the classification o f the conviction or trying the case anew, correct, his contention merely highlights that he was put to the choice of substituted for the original complaint”). Even assuming the defendant is novo on the original complaint, unless amended or on an information transfer[ring] the whole proceeding to the Superior Court, there to be tried de a conviction under RSA 5 p. 9 99:1 has the effect of “vacat[ing] that judgment and completely. See State v. Green, 105 N.H. 260, 261 (1964) (noting that appeal of superior court because that appeal would have vacated his conviction properly convicted of a class A or class B misdemeanor by appeal to the contention that he could not have resolved the issue of whether he was Having reached this conclusion, we find unavailing the defendant’s

Constitution as we do under the State Constitution. Preston, 541 F. Supp. at p. 9 901, 904, we reach the same result under the Federal circumstances, s ee Bousquet, 133 N.H. at 491 - 92; Ludwig, 427 U.S. at 630; at least as much protection as the Federal Constitution under these our State Constitution. Because t he State Constitution provides the defendant case, resulting in the deemed waiver of his right to a jury trial, does not offend further conclude that application of this procedure to the defendant in this 492, and is “fair and not unduly burdensome.” Ludwig, 427 U.S. at 630. We regulation on the exercise of the right to a jury trial,” Bousquet, 133 N.H. at this court. RSA 599:1. We conclude that this procedure “acts as a reasonable court and again be convicted there, he may of course appeal that conviction to p. 10 10

DALIANIS, C.J.