2012-632, State of New Hampshire v. Kurt Carpentino

before his conviction became final. We affirm. 2002) (amended 2003, 2005, 2008, 2010) that took effect after the offense but originally imposed in 2003, based upon an amendment to RSA 632 - A:4 (Supp. Superior Court (Arnold, J.) denying his motion to amend one of his sentence s, LYNN, J. The defendant, Kurt Carpentino, appeals an order of the

and Christopher A. Dall on the brief, and Mr. Ostler orally), for the defendant. Desmeules, Olmstead & Ostler, of Norwich, Vermont (George H. Ostler

general, on the brief and orally), for the State. Michael A. Delaney, attorney general (Nicholas Cort, assistant attorney

No. 2012 - 632 Cheshire

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

in which he urged that his conviction be treated as a misdemeanor based up on affirmed it by order. On March 30, p. 2 2012, he filed a motion to a mend sentence, The defendant ’s conviction became f inal on May 5, 2004, when this c ourt

Laws p. 2 2006, 162:1. age difference between the ac tor and the other person is 3 years or more.” 2006, when it narrowed the scope of RSA 632 - A:3, II to apply only “where the purview of RSA 632 - A:3, the legislature did not amend the latter statute until A:4 ap parently was intended to remove th e conduct described therein from the Laws 2003, 316:10, I. Although the addition of subparagraph I(b) to RSA 632 - RSA 651:2, II(c) (2007). The 2003 Amendment took effect on January 1, 2004. misdemeanor may be sentenced to a maximum term of one year in prison. less,” a class A misdemeanor. Id. A person convicted of a class A where the age difference between the actor and the other person is 3 years or actor’s legal spouse, who is 13 years of age or older and under 16 years of age the act of “engag [ing] in sexual penetration with a person, other than the A mong other things, the reenacte d statute added subparagraph I(b), making defines misdemeanor sexual assault. Laws 2003, 316:7 (2003 Amendment). In 2003, the legislature repealed and reenacted RSA 632 - A:4, which

two wa s less t han three years. and the victim was fourteen or fifteen years old. T he age difference between the During this period of time the defendant was seventeen or eighteen years old not his legal spouse.” See RSA 63 p. 2 2 - A:3, II (1996) (amended 2006, 2008). who was then and there more than 13 years but less than 16 years old, and and December 27, 2001, consisting of “sexual penetration, against another, . . . indictment alleged a pattern of assault occurring between January 1, 2001, one half of the maximum sentence. RSA 632 - A:10 - a, I(b) (2007). The be sentenced to a maximum of twenty years and a minimum of no t more than period of 5 years.” RSA 632 - A:1, I - c (1996). A person convicted of AFSA may bot h, upon the same victim over a period of 2 months or more and within a AFSA statute] or RSA 632 - A:3 [the felonious sexual assault (FSA) statute], or defined by statute as “committing more than one act under RSA 632 - A:2 [the than 16 years of age.” RSA 632 - A:2, III (1996). “Pattern of sexual assault” is sexual assault against another person, not the actor’s legal s pouse, who is less aggravated felonious sexual assault when such person engages in a pattern of AFSA under RSA 632 - A:2, III, which provides that “[a] person is guilty of conviction was based up on an indictment that charged the defendant with (AFSA), for which he was sentenced to serve 3 1/2 to 20 years in prison. The was found guilty of, among other charges, aggravated felonious sexual assault The pertinent facts are undisputed on appeal. In 2003, the defendant

the 200 p. 3 3 Amendment because he had failed to pr esent it to the trial court. affirmed the trial court’s ruling on January 11, 2012, declining to address his argument regarding the retroactive benefit of the 2003 Amendment for the purposes of decreasing his sentence. We motion was denied by the trial court. On appeal of that ruling, he argued that he was entitled to that he was entitled to the benefit of 2008 amendments to the sexual assault statutes. The The defendant filed an earlier motion to amend sentence in 2010. In that motion, he asserted 1

statute considered as a whole. Chatman, 162 N.H. at p. 3 365. the final arbiters of the legislative intent as expressed in the words of the fair import of their terms and to promote justice. RSA 625:3 (2007). We are 365. Further, we construe provisions of the C riminal C ode according to the sought to be advanced by the entire statutory scheme. Chatman, 162 N.H. at statutes in light of the legislature ’ s intent in enacting them and the policy scheme and not in isolation. Id.; see RSA 21:1 (2012). Our goal is to apply 162 N.H. at 365. We interpret a statute in the context of the overall statutory said nor add language that the legislature did not see fit to include. Chatman, the statute as w ritten and will neither consider what the legislature might have N.H. 362, 365 (2011); see RSA 21:2 (2012). We interpret legislative intent from the plain and ordinary meaning to the words used. Chatman v. Brady, 162 To determine a statute’s meaning, we first examine its language, and ascribe statutory interpretation de novo. State v. Hayden, 158 N.H. 597, 599 (2009). so repealed, shall be affected by such repeal.” We review matters involving committed or for the recovery of a penalty or forfeiture incurred under the act prosecution, pending at the time of the repeal of a ny act, for any offense when the amendment takes effect. RSA 21:38 (2012) states: “No suit or sentencing am endment to a criminal conviction that has not yet become final 21:38 (2012), precludes the retroactive application of an ameliorative Resolution of t his issue turns up on whether our savings statute, RSA

of which constituted th e predicate acts for the pattern charge. We disagree. remov ed his conduct from the ambit of the FSA statute, the putative violations serve a sentence for pattern AFSA because, he contends, the 200 p. 3 3 Amendment punishment. More specifically, he argues that he should not be required to misdemeanor, his sentence should be amended to reflec t the new, lesser s exual penetration between teenagers by making the offense a class A H e asserts that, because the legislature intended to reduce the penalty for entitled to the retroactive application of the 2003 A mendment to RSA 632 - A:4. The defendant argues that his sentence should be reduced because he is

The trial court denied the motion, and this appeal followed. the fact that the 200 p. 3 3 Amendment took effect before his conviction was final. 1 p. 4 4

abrogating th e common law theory of abatement. See RSA 21:38; Holiday, 683 Hampshire wa s one of many states that enacted a general saving s statute ambit of the crimi nal law. In response to this common law doctrine, New quite obviously had no intention of r emoving the conduct at issue fro m the by the terms of the new legislation applicable prospectively) the legislature statutory amendment would go entirely unpunished even though (as evidence d injustice: the prospect that crimes committed before the effective date of a effectuates the repeal, the theory of abatement carries an o bvious potential for I n the absence of a specific savings clause in the legislation that

cases). Ameliorative Criminal Legislation, 121 U. Pa. L. Rev. 120, 125 - 26 (1972) (citing 08; Comment, Today’s Law and Yesterday’s Crime: Retroactive Application of repeal ed and re - enacted with reduced penalties. See Bradley, p. 4 410 U.S. at 607 rule, the abatement theor y applied even to situations where a statut e was also Sekt, 159 P.2d at 21; Holiday, 683 A.2d at 66 - 67. Under the common law prosecutions which had not reached final judgment.” (citations omitted)); see statute for violations committed before the repeal, and abated all pending amendment of a penal statute barred a ny further prosecution under that 200 - 01 (N.Y. 1956) (“At common law, it was generally held that the repeal or United States, 410 U.S. 605, 607 (1973); see People v. Oliver, 13 4 N.E.2d 197, final disposition in the highest court authorized to review them.” Bradley v. rep ea l of a criminal statute abate[s] all prosecutions which had not reached remained as an obstacle to achi eving this result. The theory holds that “the previously committe d crime, the common law theory of abatement by repeal retroactive application of legislation that reduce s the punishment for a However, although there is no constitutional prohibition against the

provis ion”). that beneficial legislation is not within the prohibition of the constitutional complicated by the prohibition against ex post facto laws, since it is well settled 17, 21 (Cal. 19 p. 4 4 p. 5 5) (retroactive application of mitigating statutes “is not Holiday, 683 A.2d at 66; see Sekt v. Justice’s Court of San Rafael T p., 159 P.2d and applying a new ameliorative sentencing scheme to pending cases.” ex post facto clause[s] did not prohibit courts from continuing the prosecution hand, if the repealing leg islation enacted more lenient sentencing options, the art. 23; Holiday v. United States, 683 A.2d 61, 66 (D.C. 1996). “On the other committed. See U.S. CONST. art. I, § 9, cl. 3; § 10, cl. 1; N.H. CONST. pt. I, greater than that authorized by the law in effect at the time a crime was not constitute an offense at the time it occurred and imposition of punishment New Hampshire Const itutions prohibit both prosecution for conduct that did 120 N.H. 251, 254 (1980). The E x P ost F acto C lauses of the United States and offenses committed prior to the amendment’s effective date. State v. Sampson, committed after its enactment, but the prior statute remains applicable to all As a general ru le, a newly amended criminal statute applies to offenses 5

Amendment itself applies prospectively or retrospectively. Amendment. It does not, however, provide any guidance on the issue of whether the 200 3 that th e 2006 legislation was intended to apply retroactively to offenses covered by the 2003 Amendment did not change the terms of the FSA statute, RSA 632 - A:3, may support the inference Th at the 2006 legislation sought to correct an ambiguity resulting from the fact that the 2003 3 contrary. the reenactment of the same statute with modification.”). The defendant does not argue to the repeals and amendments. See Schultz, 460 N.W.2d at p. 5 510 n.12 (“The term ‘repeal’ also includes The term “repeal,” as it is used in RSA 21:38, has generally been construed to include both 2

enactments undoubtedly evidences the legislature’s intent to reduce the statutes to four years. Law s 2008, 334:9, :14. Although this sequence of legislature amended RSA 632 - A:3, II and :4, I(c), increasing the age gap in both the other person is 3 years or more.” Laws 2006, 162:1. The n, in 2008, the 3 RSA 632 - A:3, II to apply only “where the age difference between the actor and apparent ambiguity created by the 2003 Amendment by narrowing the scope of (G overnor’s veto message on HB 278). In 2006, the legislature corrected an G overnor, who objected to the larger age gap. N.H.H. R. Jour. 987 (2003) could have been up to four years instead of three. Th at bill was vetoed by the 632 - A:4, except that the age difference between the victim and perpetrator passed House Bill 278, which would have effectuated a similar change to RSA assault statutes. The same legislature that enacted the 2003 Amendment also earlier attempt by the legislature to enact a similar amendment to the sexual defendant first points out that the 2003 Amendment followed at least o ne argument that an intent to apply it retrospectively should be inferred, the whether it was to apply prospectively or retrospectively. In support of his when it enacted the 2003 Amendment, the legisl ature did not specifically state Amendment to apply retroactively. We find none. There is no dispute that, whether there is any legislative indication that it intended the 2003 Before further addressing the savings statute, therefore, we consider

or repugnant to the context of the [statute under consideration]”). construction would be inconsistent with the manifest intent of the legislature construction established under RSA chapter 21 “shall be observed, unless such “default” position it establishes. See RSA 21:1 (2012) (pr oviding that rules of legislature has unambiguously expressed an intent contrary to the statutory is intended only as a general rule of construction, which must give way if the so repealed, shal l be affected by such repeal.” Of course, the savings statute 2 committed or for the recovery of a penalty or forfeiture incurred under the act prosecution, pending at the time of the repeal of any act, for any offense (Mich. 1990); Oliver, 134 N.E.2d at 201. Under RSA 21:38, “[n]o suit or N.W. 2d 4 p. 6 68, 470 (N.D. 1986); see also People v. Schultz, 460 N.W.2d p. 5 505, 510 repealed or amended statute from being abated.” State v. Cummings, 386 clauses “‘ save []’ pending or future prosecutions of crimes committed under a A.2d at 66 - 67; Comment, Today’s Law, supra at 127 - 28 & n. 51. Savings 6

contain ed a provision that stated it did not apply to pending prosecutions. Id. the offense. Arlin, 39 N.H. at 180. The legislation effecting the amendment the procedural protections established under the statute i n force at the time of time a change in the law reduced the punishment for robbery, was entitled to in that case was whether a defendant, who had not yet been indicted at the not present any issue involving the general savings statute. Instead, the issue Arlin, 39 N.H. 179 (1859). See Gobin, 9 p. 6 6 N.H. at 223. Arlin, however, also did not discuss or reference RSA 21:38, but supported its holding by citing State v. effect after its commission gover ned sentencing in that case. The opinion did an amendment reducing the punishment for the defendant ’ s crime that took unrelated question on appeal, we held in the final sentence of the opinion that S tate v. Gobin, 96 N.H. 220, 223 (1950), which dealt primarily with an have been implicated, we reached a decision without even mentioning it. In presented here. Indeed, in at least one case where the statute would appear to (1842), we have never had occasion to construe the statute in the context since at least the publication of our Revised Statu tes in 1842, see RS 1:27 RSA 21:38 control s. Although our savings statute has been part of our law retroactive application of the 2003 Amendment, the defau lt rule embodied in discussed above contain a definitive expression of legislative intent regarding Since neither the 2003 Amendment nor any of the related enactments

not later than 90 days after passage (quotations omitted)). promulgate amendments to sentencing guidelines “as soon as practicable” and in part, the Act gave “Emergency Authority” to the sentenc ing commission to 2372, applied to pre - Act offenders sentenced after the Act took effect because, enacted by federal Fair Sentencing Act of 2010, Pub. L. No. 111 - 220, 124 Stat. States, 132 S. Ct. 2321, 2332 - 33 (2012) (finding that more lenient penalties where it set an effective date sixty days after passage), cf. Dorsey v. United (19 p. 6 67) (finding legislature intended new burglary statute to apply prospectively nearly six month s into the future. See State v. Banks, 108 N.H. 350, 352 retrospectively when the legislature set an effective date for that amendment difficult to infer legislative intent that a n amendment should apply were made effect ive on January 1, 2004. La ws 2003, 316:10. We find it three substantive sections, including the one enacting t he 2003 Amendment, ni ne substantive sections to take effect sixty days after passage. The other Laws 2003, ch apter 316, which was enacted in Ju ly 2003, called for six of its applicat ion of the 2003 Amendme nt may be gleaned from its effective date. A more significant indicator of legislative intent regarding retroactive

application of the 2003 Amendment. find this other legislation helpful in resolving the question of the retroactive conduct prior to the effective date of the 200 3 Amendment. Thus, we do not reduced punishment sho uld apply to those who were charged with suc h therein demonstrates a “manifest intent of the legislature,” RSA 21:1, that the punishment f or cert ain sexual conduct between teenagers, no thing contained p. 7 7

contend that the defendant was subject to punishment under the pre - existing statute. to escape liability completely based up on the criminal abatement theory, and the State did not From all that appears in the opinion, the defendant in Arlin did not argue that he was entitled 4

threshold value of stolen goods necessary to make the offense a felony. the benefit of a post - offense amendment of the theft statute that raised the Finally, in Sampso n, we addressed whether the defendant should receive

RSA 21:38. Id. statute, we had no occasion in Breest to discuss or consider the applicability of apparent ly acquiesced in the defendant being sentenced under the amended amended statute was not constitutionally prohibited. Id. Because the State mitigated the punishment for murder, and therefore application of the defendant at the time of the commission of the crime, the amendment argument, holding t hat by establishing parole eligibility not available to the befo re the second amendment to the C ode. Id. at p. 7 754 - 55. We rejected this that the amended statute imposed a harsher penalty than the statute in force only issue we addressed in reaching this decision was the defendant’s claim sentenced under the amended statute in effect at the time of sentenc ing, the serving forty years. Id. at 753. Although we held that the defendant could be murder of a psycho - sexual nature, instead making them eligible for parole after exception from the first amendment for prisoner s convicted of first degree would be eligible fo r parole after serving eighteen years; the second created an the C riminal C ode: the first provided that a prisoner serving a life sentence 116 N.H. at 754. Before se ntencing, the legislature made two amendments to first degree murder was life imprisonment with no provision for parole. Breest, convicted of first degree murder. At the time of the offense, the punishment for In State v. Breest, 116 N.H. 734, 737 (1976), the defendant was

Id. crimes of burglary committed prior to the effective date of [the new statute].” unlikely that the legislature intended to “effect a legislative pardon for all penalties for burglary provided further support for our conclusion, as it made it the new one took effect. Id. at 352. That the new statute incre ased the indicated its intention that the old statute apply to offenses committed before enactment of the new one effective on the same date, the legislature had clearly argument, reasoning that by making the repe al of the old statute and the preventing his prosecution. Banks, 108 N.H. at 351. We rejected the his arraignment and indictment operated as a repeal of the old statute, thus the enactment of a new burglary statute subsequent to his offense but prior to In State v. B anks, the defendant relied up on RSA 21:38 in arguing that

statute was applicable to his offense. Id. 4 st atute took effect, his prosecution was not pending and therefore the amended W e held that, because the defendant had not been indicted when the new p. 8 8

Marrero, 417 U.S. 653, 6 63 - 64 (1974) (holding that repealed no - parole adopted a more literal interpretation of their savings statute s. S ee Warden v. A second group of jurisdictions, including the federal courts, have

(adopting similar reasoning); Oliver, 134 N.E.2d at 202 (same). application of the general savings statute”); Schultz, 460 N.W.2d at 511 whom such application would be possible and constitutional, thereby obviating itself, a sufficient indication of the legislative intent that it be applied to all to view that “t he enactment of [an] ameliorative sentencing amendment was, in apply.”); Lewandowski v. State, 3 p. 8 89 N.E.2d 706, 707 (In d. 1979) (approving statute . . . should apply to every case to which it constitutionally could “inevitable inference that the Legislature must have intended that the new penalty was too severe and that a lighter punishment is proper. . .” so it is an lessen the punishment it has obviously expressly determined that its former P.2d 948, 951 (Cal. 1966) (“When the Legislature amends a statute so as to case to which they could constitutionally apply. Se e, e.g., In re Estrada, 408 that all ameliorative sentencing amendments are to apply retrospectively in any prevailing reasoning among these courts imputes a general legislative intent See Holiday, 683 A.2d at 67 - 70 (surveying case law across jurisdictions). T he preclude retroactive application of penalty - reducing sentencing amendmen ts. one view, many state courts have held that general savings statutes do not courts construing such statutes generally adopt one of two approaches. Under amendments take effect. Although the terms of general savings statute s vary, amendments that reduce the penalty for crimes committed before the the question of wh ether their statutes permit giving ret roactive effect to O ther j urisdictions that also have general savings statutes are split on

to prosecution under the pre - amendment statute. Id. at 255. value he allegedly stole was classified as a felony, we held t hat he was subject because the defendant’s offenses occurred at a time when theft of goods of the resu lt the legislature surely did not intend. Id. a t 254 - 55. Consequently, potential punishments, but rather a complete avoidance of prosecution, a defendant’s position were adopted, he would receive not merely a reduction in the statute to apply retroac tively. Id. Citing RSA 21:3 p. 8 8, we noted that if the over time, we discerned from this no indication that the legislature intended seriousness of punishments to account for the decreased value of the dollar Although recognizing that the purpose of the amendment was to alter the reclassification of his crimes to misdemeanors. Sampson, 120 N.H. at 254. argument that he was entitled to the benefit of the legislature’s post - offense Sampson, 120 N.H. at 25 3 - 5 4. We specifically rejected the defendant’s applicable to misdemeanor - level offenses. See RSA 625:8, I (c) (1 p. 9 996); indictments were not brought within the one - year statute of limita tions his crimes to misdemeanors, the charges should be dismissed because the amendment took effect b efore he was indicted and had the effect of reducing Sampson, 120 N.H. at 25 3 - 5 4. The defendant urged that because the 9

Mass. Gen. Laws ch. 265, § 13H (2008)). an element of the offense of indecent assault against a child over the ag e of fourteen in violation of See Com. v. Shore, 840 N.E.2d 1010, 1011 (Mass. App. Ct. 2006) (noting that lack of consent is 5

affected by such repeal.”). A pplying the logic from cases such as Oliver and suit or prosecution, pending at the time of the repeal of any act,. . . shall be offense proscribed by the law in effect at the time he acted. See RSA 21:38 (“No hypothetical case call for the continued prosecution of the defendant for the retroactively, the language of our savings statute, on its face, would in this manifest evidence of legislative intent that such an amendment apply entirely lawful. Yet in the absence of a clear legislative statement or other between teenagers), the conduct of the defendant at issue would have become essentially reduce to zero the punishment for consensual sexual penetration Massachusetts by lowering t he age of consent to fourteen (which would 5 defendant’s conviction becoming final, the legislature had instead followed penalty for consensual sexual penetration between teenagers prior to the determination not to adopt it. For instance, if, rather than reducing the T he implications of such retrospective application reinforce our

legislature did not see fit to include. Chatman, 162 N.H. at 365. precedent that prohibits us from adding language to a statute that the reduce a defendant’s sentence.” To do so would be contrary to long - standing text of the statute – in effect, adding the words, “unless such repeal would exception to the default rule of non - retro activity that does not appear in the Estrad a would require us to read into the plain terms of RSA 21: 38 an (analyzing these cases). To adopt the reasoning of cases like Oliver and clearly articulated its inte nt as to retroactivity. See Holiday, 683 A.2d at 67 - 70 enacted: to provide a default rule for cases in which the legislature has not have failed to take account of the specific purpose for which such statutes are pay scant heed to the specific terms of the savings statutes at issue and/ or ameliorative sentencing statutes should be applied retroactively, h ave tended to As explained in Holiday, cases such as Oliver and Estrada, which hold that We are persuade d by the reasoning of the second group of jurisdictions.

applied). pending prosecutions only upon finding of legislative intent that it be so Dorsey, 132 S. Ct. at 2331 - 35 (applying Fair Sentencing Act retrospectively to application of statute reducing penalty for first offense disorderly conduct); cf. 15 (Mass. 2012) (interpreting general savings statute to bar retroactive marij uana from felony to misdemeanor); Com. v Dotson, p. 9 966 N.E.2d 811, 814 retroactive application of statutory change reducing penalty for possession of Alley, 263 A.2d 66, 69 (Me. 1970) (holding general savings statute precluded ameliorative amendment of mandatory minimum sentence statute); State v. (following federal courts’ construction of federal saving s statute as applied to provision applied based upon general savings statute); Holiday, 683 A.2d at 74 p. 10 10

the actus reus, is the pattern itself, that is, the occurrence of more t han one Moreover, under the pattern AFSA statute, “the essential culpable act,

had the authority to impose sentence for that crime. of a sentence fo r a single misdemeanor offense, even assuming that the court assaults. Hence, we could not simply remand to the trial court for imposition argued in the trial court, at a minimum there were at least two discrete pattern of conduct occurred weekly over the course of a year, but as the State the indictment. See RSA 632 - A:1, I - c. The record before us suggests that the such assault against the same victim within the one - year time frame alleged in of sexual assaults, which means that he must have committed more than one T he defendant was charged with and convicted of engagin g in a pattern

convicted was pattern aggravated felonious sexual assault. assault statute even though the crime for which he was indicted, tried, and Amendme nt, he would need to be sentenced under the misdemeanor sexual the case. In order for the defendant to receive the benefit of the 2003 resentenced for a misdemeanor violation of RSA 632 - A:4, that obviously is not suggestion that if we apply the 2003 Amendment retroactively he can simply be an element of the crime of pattern AFSA). Thus, desp ite the defendant’s State v. Sleeper, 150 N.H. 725, 728 (2004) (holding that “the pattern itself” is cri me of pattern sexual assault of which the defendant was convicted. See reduce the penalty for a pre - existing crime. Rather, it effectively eliminates the reasoning, it would not apply here. T h e 2003 Amendment does not simply Further more, even if we were inclined to adopt the Oliver / Estrada

w ould produce an unjust and seemingly illogical result.” (quotation omitted)). 473, 476 (1995) (“This court will avoid construing statutes in a manner that penalty. This would be unjust and illogical. See State v. Farrow, 140 N.H. zero – while giving them the benefit of the half step of reducing the existing legislature’s full s tep of decriminalizing conduct – i.e., re ducing the penalty to repeals only prospectively would deny criminal defendants the benefit of the apply ameliorative sentencing amendments retroactively while applying full existed”), such differentiation would potentially create illogical outcomes. To the act previously committed in deliberate defiance of the law as it then application because “the State may prefer to retain the right to prosecute for changing its definition may not support an inference favoring retroactive 134 N.E.2d at 202 n.3 (observing that a change in the law abolishing a crime or amendments that reduce, but do not eliminate, criminal penalties, see Oliver, between full repeals of criminal statutes and ameliorative sentencing Moreover, to the extent that courts taking this view may differentiate

cannot square s uch a r esult with the plain language of our savings statute. amendment an implied legislative intent that it should apply retroactively. We Estrada to this hypothetical case, however, would read into such an p. 11 11

presume that the sentencing scheme is constitutional and we cannot declare it only to aid our analysis. State v. Ball, 124 N.H. 226, 231 - 33 (1983). We must the defendant’s claim under the State Constitution and rely upon federal law decision de novo. State v. Burgess, 156 N.H. 746, 752 (2008). We firs t address been violated as a result of the trial court’ s sentencing decision, we review that W here, as here, the defendant asserts that his constitutional rights have

protections. We find no merit in this argument. and grossly disproportionate in violation of the foregoing constitu tional his sentence of 3 1/2 to 20 years for that same conduct is cruel and unusual sentence of no more than one year of imprisonment, the defendant assert s that between teenagers punishable as a class A misdemeanor that carries a Based solely upon the 2003 A mendment, which makes sexual penetration P roportionality C lause of Part I, Article 18 of the New Hampshire Constitution. Part I, Article 15 of the New Hampshire Constitution; and (3) the in the Fifth and Fourteenth Amendments to the United States Constitution and of the New Hampshire Constitution; (2) the guarantee of due process contained the Eighth Amendment to the United States Constitution and Part I, Article 33 argument: (1) the prohibition against cruel or unusual punishments found in case. He invokes the fol lowing constitutional provisions in support of this Constitutions require retroact ive application of the 2003 Amendment to his The defendant also argues that the United States and New Hampshire

legislation dealing with sentencing. any uncertainty by clearly stating its intentions on this point when it considers prospectively or retrospectively. W e urge the legis lature, in the future, to avoid determine whether a statute that reduces the penalty for an offense is to apply mandated by the savings statute, we emphasize that it is for the legislature to for pattern AFSA. Although our rulin g achieves the result that we believe to be entitled to the retrospective application of the 2003 Amendment to his sentence In sum, for the reasons stated above, we hold that the defendant is not

sentences for multiple uncharged individual assaults. assault in fact occurred – the trial court would be unable to determine have agreed on how many discrete assaults occurred or that any particular returning a guilty verdict on the pattern charge – and in fact, the jury need not way of knowing how many discrete as saul ts the jury found to exist whe n RSA 632 - A:2 and :3, during the statutory time period. Id. Because there is no the defendant perpetrated more than one act of sexual assault as described in comprising the p attern offense, but need only have unanimously agreed that The jury in this case need not have been unanimous on the underlying acts the pattern.” State v. Hannon, 151 N.H. 708, 714 (2005) (quotation omitted). sexual assault over a period of time, and not the specific assaults comprising p. 12 12

abrogated on other grounds by Dorsey v. United States, 132 S. Ct. 2321 (20 p. 12 12). applicable penalty, even while reducing the penalty as to future o ffenders.”), offenses a t a time when t hey knew or should have known the severity of the not irrational for Congress to impose a penalty on those who committed their (6 Cir. 2012), United States v. Acoff, 634 F.3d 200, 202 (2d Cir. 2011) (“It is th retroactive effect, id.; see United States v. Finley, 487 Fed. Appx. 260, 266 - 67 requirement that ameliorativ e sentencing amendments must be given have uniformly rejected the proposition that Griffith imposes a constitutional States v. Santana, 761 F. Supp. 2d 131, 163 (S.D.N.Y. 2011), and courts also di fferent situation” than that to which the Griffith rationale applies, United (emphasis added)). The “application of ne w statutes to pending cases is quite a pending on direct review violates basic norms of constitutional adjudication.” (“[F]ailure to apply a newly declared constitutional rule to criminal cases the retroactive application of statutory amendments. Griffith, 479 U.S. at 322 retroactive application of new rules of constitutional criminal procedure, not 479 U.S. 314 (1987), but we find that case inapposite. Griffith deals with the I n support of his position, the defendant relies upon Griffith v. Kentucky,

unconstitutional discrimination). amendment under old law pursuant to a savings clause did not constitute 30 (2d Cir. 1974) (holding that punishment of persons convicted before discriminatory); United States ex rel. Hayden v. Zelker, 506 F.2d p. 12 1228, 1229 defendant s con victed prior to amendment was not irrational or invidiously Cir. 1991) (holding that state’s decision to maintain parole system for prospectively); Thompson v. Missouri Bd. of Parole, 929 F.2d 396, 400 - 01 (8th trespassed no constitutional limits” in amending parole eligibility ameliorative statute); Marrero, 417 U.S. at 664 (holding that “Congress triggered by the application” of mandatory minimums later amended by Dorsey, 132 S. Ct. at 2344 (holding that “[t]here is no constitutional doubt se unconstitutional. Cour ts have uniformly rejected claims to this effect. See become final and which exceed what is authorized by the amendment are per least all sentences imposed pursuant to the original statute which have not yet that when the legislature reduces the penalty for certain criminal conduct, at To adopt the defendant’s argument w ould essentially require us to hold

applicable to his conduct. disproportionate by virtue of the legislat ure’s later amendment of the penalty sentencing. R ather, he argues that his sentence was thereafter rendered disproportionate under the law as it existed at the time of his conviction and The defe ndant does not argue that his sentence was cru el, unusual, or

(2002). be grossly disproportionate to the crime. State v. Enderson, 148 N.H. 252, 259 40 (2010). For a sentence to violate the New Hampshire Constitution, it must unconstitutional except upon inescapable grounds. State v. Bird, 161 N.H. 31, p. 13 13

DALIANIS, C.J.