2014-0309, State of New Hampshire v. Matthew L. Tsopas

setting an “un reasonably high cash only bail.” We affirm. pursuant to RSA 597:6 - e, II; and (2) unsustainably exercising its discretion by (1) failing to conduct a hearing on the motion or issue written findings of fact RSA 597:6 - e, II (2001). The defendant contends that the trial court erred by: the Superior C ourt (Tucker, J.) denying his third motion to modify bail. See DALIANIS, C. J. The defendant, Matthew L. Tsopas, appeals an order of

the defendant. Harry N. Starbranch, Jr., of Portsmouth, on the memorandum of law, for

attorney g eneral, on the memorandum of law), for the State. Joseph A. Foster, attorney general (Elizabeth C. Woodcock, assistant

No. 2014 - 309 Strafford

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

p. 2 2013) authorizes defendants to file successive motions for bail modification. At the outset, we assume, without deciding, that RSA 597:6 - e (2001 & Supp.

district [division] order. modifications and reasons fo r new conditions or changes from the conduct a hearing and make written findings supporting any person poses a danger to an other, the superior court shall . . . justice has made a finding, pursuant to RSA 597: p. 2 2, III - a that the [the] district [division]. . . . In cases where a district [division] a motion for . . . amendment of the conditions of release set by . . . The person [subject to bail]. . . may file with the superior court

RSA 597: 6 - e, II provides, in pertinent part:

meaning to the words used. Id. examining the language of the statute, we ascribe the plain and ordi nary expressed in the words of the statute considered as a whole. Id. When statutory interpretation, we are the final arbiters of legislative intent as review is de novo. State v. Thompson, 164 N.H. 447, 4 48 ( p. 2 2012). In matters of review. Because resolution of this issue involves statutory interpretation, our hold a hearing and make written findings of fact on his third motion for bail The defendant argues that RSA 597:6 - e, II required the superior court to

is inappropriately high.” The defendant appeals this order. documents, and the State’s objection, I am not persuaded that the present bail without holding a hearing, stating: “A fter review of the motion, supporting make s pecific findings. The State objected, and t he court denied the mo tion, Although the defendant requested a hearing, he did not request that the court On April 16, p. 2 2014, the defendant filed a third motion for bail review.

not supplie d transcripts from either of tho se hearings. hearing, after which the court ordered “[n]o change in bail.” The defendant has modify bail, and, on November p. 2 22, 2013, the superior court held another November 18, 2013, the defendant filed a second motion in superior court to court ordered “[b]ail to remain as set by the District Court on 7/31/13.” On to modify bail, and the court held a hearing. On August 20, 2013, the superior On August 13, 2013, t he defendant filed a motion in the superior court

response to the defendant’s request and over the State’s objection. State asserts, and the defendant does not contest, that this reduction was in conditions, but subsequently reduced it to $75,000 cash with conditions. The incident. The district d ivision set bail initially at $ p. 2 250,000 cash with felony and misdemeanor charges arising out of a single alleged drunk driving The record establishes the following facts. The defendant faces multiple p. 3 3

(1975). After considering the defendant’s arguments and supporting exercise of discretion standard. See Moses v. Helgemoe, 115 N.H. 672, 672 superior court’s deci sion on a motion to modify bail under our unsustainable conditions which would en[s] ure the safety of the community.” We review the his substance abuse evaluation “standing alone outlines the combination of conditions, because “there is no legitimate concern [he] will fail to appear,” and $75,000 cash, with conditions, to $25,000 cash or corporate surety, with unsustainably exercised its discretion in refusing to reduce his bail from Finally, we address the defendant’s contention that the trial court

N.H. 47, 49 (200 p. 3 3). this argument. Therefore, we decline to address it. See State v. Blackmer, 149 Eschenbrenner, 164 N.H. 532, 543 (2013). In addition, he does not develop notice of appeal. See State v. Noucas, 165 N.H. 146, 152 (2013); State v. preserved this argument for our review, nor did he include the question in his circumstances, he has not provided us with a record that demonstrates that he 2013) requires the superior court to make specific findings in these To the extent that the defendant contends th at RSA 597:2, II (Supp.

denying him a hearing. has not demonstrated that the court unsustainably exercised its discretion by that RSA 597:6 - e, II entitled him to a hearing, which it does not. Therefore, he Lambert, 147 N.H. 295, 296 (2001). In this case, the defend ant argues only clearly untenable or unreasonable to the prejudice of his case. State v. sustainable, the defendant must demonstrate that the court’ s ruling was N.H. 584, 587 (2012). To show that the trial court’s decision is not under our unsustainable ex ercise of discretion stan dard. State v. McGurk, 16 p. 3 3 would assist court). We review the court’s determination not to hold a hearing from district court where defendant did not set forth reasons w hy hearing hearing required in superior court on acceptance of certification and transfer assist the court. See In re Erik M., 146 N.H. 508, 511 (2001) (stating no To obtain a hearing, the party seeking it must articulate why a hearing would to de termine whether a hearing is necessary. See Super. Ct. Crim. R. 58, 115. In the absence of a statutory mandate, the superior court has discretion

that is no longer in effect. See RSA 597:6 - a, VII (Supp. 1988) (repealed 1989). (1989), upon which the defendant relies, were decided under a different statute State v. Poulicakos, 1 p. 3 31 N.H. 709 (1989), and State v. Hall, 131 N.H. 63 p. 4 4 written findings under RSA 597:6 - e, II did not apply to the defendant’s motion. defendant posed such a danger. Therefore, the requirements of a hearing and to another.” In this case, the district division did not make a finding that the found pursuant to RSA 597:2, III - a (200 1), that the defendant “poses a danger hold a hearing and make written findings only when the district division has However, RSA 597:6 - e, II, by its express terms, requires that the sup erior court 4

HICKS, CONBOY, LYNN, and BASSETT, JJ., c oncurred.

the court unsustainably exercised its discretion reaching this conclusion. bail, as set, was not “inappropriately high.” On this record, we cannot say that documents, including the evaluation, the superior court concluded that his