2013-0392. State of New Hampshire v. Kevin Balch

on a single occasion; (2) require that each sentence be served consecuti vely (1) permit a conviction and sentence for each individual firearm he possessed statute, RSA 159:3 - a, and ar gues that the trial court erred by construing it to: challenges the sentence imposed pursuant to th e armed career criminal (2007) (amended 2010); RSA 159:3 - a (2014). On appeal, the defendant statute. RSA 635:1 (2007) (amended 2014); RSA 637:7 (2007); RSA 637:11 receiving stole n property, and six counts of violating the armed career criminal defendant, Kevin Balch, was convicted on two counts of burglary, six counts of HICKS, J. After a jury trial in Superior Court (Bornstein, J.), the

brief and orally, for the defendant. Christopher M. Johnson, chief appellate defender, of Concord, on the

general, on the brief and orally), for the State. Joseph A. Foster, attorney general (Lisa L. Wolford, assistant attorney

No. 2 013 - 392 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

interpretation of a statute is a question of law, which we review de novo. State in statutory interpretation. See State v. Ravell, 155 N.H. p. 2 280, 282 (2007). The and applic ation of RSA 159:3 - a. To resolve these challenges, we must engage All of the defendant ’s arguments challenge the trial court’s interpretation

proceedings. Id. must seriously affect the fairness, integrity, or public reputation of judicial must be plain; (3) the error must affect substantial rights; and (4) the error For us to find error under the rule: (1) there must be an error; ( p. 2 2) the error circumstances in which a miscarriage of justice would otherwise result. Id. Nevertheless, the rule should be used sparingly, its use limited to those attention of the trial court. State v. Almodovar, 158 N.H. 5 48, 553 (2009). The plain error rule allows us to consider errors not brought to the

error. See Sup. Ct. R. 16 - A. whether the trial court’s interpretation and application of law constituted plain addressed by the trial court, but h e asks us to review them to determine defendant admits that these arguments were neither raised before nor permits trial courts to defer sentences imposed under that statute. The under RSA 159:3 - a can be served concurrently; and (3) that RSA 159:3 - a possession rather than each individual firearm; ( p. 2 2) that sentences imposed the “unit of prosecution” under RSA 159:3 - a to be each occurrence of a ddressing that issue, the defendant argues: (1) that the legislature intended from an incident in which he possessed six firearms on a single occasion. In imposition of six consecutive sentences based upon his six convictions arising whether the trial court erred in interpreting RSA 159:3 - a to require the On appeal, the defendant raises a single issue for our consideration:

followed. as one of the factors in determining the defendant ’s sentence. This appeal court rejected the constitutional challenge and cited the statutory requirements imposing such a severe sentence for c l ass B felonies is unconstitutional. T he sentences imposed for other convictions. The defendant ’s attorney argu ed that RSA 159:3 - a requires the sentences to run consecutively to each other and to sentencing hearing, both the State and the trial court expressed the belief that 1 p. 2 27 years – essentially a sentence of imprisonment for life. During the count of receiving stolen property. The total prison sentence range is 63.5 to the burgla ry sentence s; and a suspended sentence of 7.5 to 15 years for each count of violating RSA 159:3 - a, to be served consecutively with each other and consecutively with the last RSA 159:3 - a sentence; 10 to 20 years for each each count of burglary, to be served concurrently wit h each other but sentenced the defendant to: three and a half to seven yea rs in state prison for The record reflects the following facts. On May 16, 2013, the trial court

all of said sentences. We affirm. rather than concurrently; and ( p. 3 3) prohibit the trial court from deferring some or 3

159: p. 3 3 - a as it did for RSA 159:3. We disagree. conclude that the legislature intended the same unit of prosecution for RSA defendant contends that, despite the similarity in language, we need not by a qualifying felon. State v. Stratton, 132 N.H. 451, 455 (1989). The RSA 159:3 define s the unit of prosecution as each individual firearm possessed RSA 159:3, I (emphasis added). We have held that the emphasized language in

any other state . . . of [certain felonies]. (b) Has been convicted in either a state or federal court in this or

revolver, or other firearm. . . and (a) Owns or has in his possession or under his control, a pistol,

A person is guilty of a class B felon y if he:

provides that: used in New Hampshire’s felon - in - possession statute, RSA 159: p. 3 3 (2014), which RSA 159:3 - a, I (emphasis added). This language is nearly identical to language

any other firearm. po ssession or under his control, a pistol, revolver, rifle, shotgun, or pornography, or controlled drug laws, shall own or have in his sexual assault, arson, burglary, robbery, extortion, child felonies in this state or any other state under homicide, assault, No person who has been convicted of any combination of p. 3 3 or more

159: p. 3 3 - a provides, in relevant part: instance of possession regardless of the number of firearms possessed. RSA each individual firearm that a defendant possesses rather than each individual We first consider whether RSA 159:3 - a d efine s the unit of prosecution as

scheme. LLK Trust v. Town of Wolfeboro, 159 N.H. 7 p. 3 3 p. 4 4, 736 (2010). in light of the policy or purpose sought to be advanced by the statutory us to better discern the legislature's intent and to interpret statutory language to include. Smith v. City of Franklin, 159 N.H. 585, 588 (2010). This enables legislature might have said or add language that the legislature did not see fit advanced by the entire statutory scheme. Id. We will not consider what the legislature’s intent in enacting them, and in light of the policy s ought to be entire statutory scheme. Id. Our goal is to apply statutes in light of the Id. We do not read words or phrases in isolation, but in the context of the possible, construe that language according t o its plain and ordinary meaning. When we interpret a statute, we look first to the statute’s language, and, if intent as expressed in the words of the statute considered as a whole. Id. v. Dor, 165 N.H. 198, 200 (2013). We are the final arbiters of the legislature’s 4

language is ambiguous.”). meaning of the words used in the statute, and consider legislative history only if the statutory Prof’l Firefighters of N.H. v. HealthTrust, 151 N.H. 501, 503 (200 p. 4 4) (“We first look to the plain prosecution, we need not address the defendant ’ s arguments regarding the legislative history. See Because we have concluded that the plain language of the statute defines the unit of 1

related principles of law have so far developed as to have left the old rule no would lend a special hardship to the consequences of overruling; (3) whether practical workability; (2) whether the rule is subject to a kind of reliance that clear error: (1) whether the rule has p roven to be intolerable simply by defying four factors in determining whether a prior d ecision has come to be seen as State v. Perry, 166 N.H. ___, ___ (decided September 12, 201 p. 4 4). We consider so clearly as error that its enforcement was for that very rea son doomed.” decision is not whether we disagree with it, but whether it “has come to be seen e.g., id. at 538. The key question in determining whether to overrule a prior (2011). Nevertheless, we will on rare occasi on overrule past decisions. See, arbitrary and unpredictable results. State v. Quintero, 162 N.H. 526, 532 every case, deciding cases becomes a mere exercise of judicial will with by the rule of l aw, for when governing legal standards are open to revision in Stratton. The doctrine of stare decisis demands respect in a society governed Furthermore, we find no justification for overruling our decision in

unit of prosecution under RSA 159:3 - a. 1 that the legislature intended to adopt each individual firearm possessed as the Accordingly, we conclude that the plain language of RSA 159:3 - a demonstrates Court. Blackthorne Group v. Pines of Newmarket, 150 N.H. 80 p. 4 4, 810 (2004). to determine, and disputes regarding such should be addressed to the General reasonableness of the legislative scheme are for the legislature, not the courts, to make. State v. Dean, 115 N.H. 520, 523 (1975). T he wisdom and policy decision that the New Hampshire Constitution empowers the legislature Deciding whether to impose a mandatory penalty f or a criminal act is a

from the effectively identical language in RSA 1 p. 5 59:3. considerations require us to interpret the language in RSA 159:3 - a differently criminals who possess firearms, we are not persuaded that these decided Stratton, and although it imposes harsh penalties upon career as the defendant correctly contends, RSA 159:3 - a was enacted before we same goal of preventing convicted felons from possessing firearms. Although, matter, both statutes define f elonious conduct, and both statutes have the chapter immediately after RSA 159:3, both statutes relate to the same subject construed in the same sense. Id. Here, RSA 159:3 - a appears in the same t hat were used in a prior act pertaining to the same subject matter will be Thus, u nless the context indicates otherwise, words or phrases in a provision Employees Assoc. of N.H. v. N.H. Div. of Personnel, 158 N.H. 338, 3 p. 4 45 (2009). has in mind previous statutes relating to the same subject matter. State We generally assume that whenever the legislature enacts a provision, it 5

addressed. concerns related to the applicability of Stratton to RSA 1 p. 5 59:3 - a, which we have previously 159:3 - a. This argument is not related to the stare decisis factors and, instead, addresses We recognize that the defendant argues that Stratton becomes unworkable when applied to RSA 2

whether the unit of prosecution is each firearm or each instance of possession. however, that o ther jurisdictions interpreting similar statutes are divided as to jurisdictions has developed contrary to our decision in Stratton. We note, law must have developed. T he defendant argues that the law in other evolution of case law from other jurisdictions). The key, however, is that the Matthews, 1 p. 5 57 N.H. 415, 419 - 20 (2008) (overruling prior holdings due to how a new superior c ourt rule rendered a prior holding unnecessary); State v. manner that is discordant with the prior rule. See, e.g., id. at 536 - 3 7 (detailing obsolete or upon the formulation of law across multiple jurisdictions in a arise upon the promulgation of new laws or rules that render past decisions manner as to undercut the prior rule. See id. at 536. Such development could The third factor concerns whether the law has developed in such a

p. 5 537. conduct in reliance up on our ruling in Stratton. See Quintero, 162 N.H. at (describing rule). There is no suggestion that members of society plan t h eir Planned Parenthood of Southeastern Penn. v. Casey, 505 U.S. 833, 855 (1992) that decision would create a special hardship for those affecte d. See, e.g., of action in reliance up on the challenged decision and, therefore, overruling which members of society may have developed operations or planned a course The second factor does not apply t o this case. It concerns situations in

Thus, it has retained its practicality and simplicity. firearm a felon possessed, which is a simple rule to apply and understand. 2 decided that the unit of prosecution pursuant to RSA 1 p. 5 59:3 is each individual Dummer Zoning Bd. o f Adjustment, 159 N.H. 725, 732 (2010). Stratton overruling when a rule is easy to apply and understand. See Kalil v. Town of applying a given rule in subsequent cases). The first factor weighs against impractical for trial courts to apply. See id. at 533 - 35 (detailing the difficulty of The first factor examines whether a rule has become difficult or

arguments convince us that overruling Stratton is warranted. will limit our analysi s to the first three factors. N one of the defendant’s The defendant conced es that factor (4) is inapplicable. Accordingly we

or blindly followed.” Id. single factor is dispositive and the factors are not meant to be “rigidly applied of the four factors requires ba lancing the various interests involved because no significant application or justification. Quintero, 1 p. 6 62 N.H. at p. 5 533. Evaluation changed, or come to be seen so differently, as to have robbed the old rule of more tha n a remnant of abandoned doctrine; and (4) whether facts have so 6

ability to mitigate the severity of the mandatory sentence. Webster’s Third New paragraphs, read together, express legislative intent to limit the trial court’ s of 10 years imprisonment.” RSA 159:3 - a, II (emphasis added). These two be guilty of a felony and . . . shall be sentenced to a minimum mandatory term with paragraph II, which provides: “[a]ny person who violates paragraph I shall We examine the language of paragraph III of the statute in combination

construe the phrases “any other term” and “such additional term.” Construction § 47:1, at 27 7 - 7 8 (7th ed. 2007). Here, the parties ask us to structure. See 2A N. Singer & J.D. Singer, Statutes and Statutory assist us in interpreting a statute whose meaning depends heavily on sentence Generally, we apply the ordinary rules of grammar and common usage to

than RSA 159:3 - a. We disagree. legislative intent to refer only to sentences imposed pursuant to statutes other III’s use of the phrases “any other term” and “such additional term” indicates a RSA 159:3 - a, III (emphasis added). The defendant contends that p aragraph

of imprisonment imposed. suspensions or R SA p. 6 651 - A relative to parole apply to any sentence sentencing, nor shall the provisions of RSA 651:20 relative to enforce sentencing under this section shall be continued for imprisonment be suspended or deferred. No action brought to shall the whole or any part of such additional term of paragraph II shall be served concurrently with any other term, nor any part of the minimum mandatory sentence provided under Notwithstanding any other provision of law, neither the whole, nor

part: arg uments require us t o interpret RSA 159:3 - a, III, which states, in relevant and prohibits the trial court from deferring any of the sentences. Both We next consider whether RSA 159:3 - a require s consecutive sentenc ing

under RSA 159:3 - a. the trial court did not err in sentencing the defendant for multiple convictions Accordingly, we conclude that no basis exists for overruling Stratton and that a ny development in the law that renders our decision in Stratton obsolete. the legislature, rather than the judiciary, to determine. Thus, nothing suggests both it and the penalty imposed for violating the law are matters of policy for firearm has not been discarded as a remnant of some bygone era. Instead, 2008) (each instance of possession). The unit of prosecution based upon each (La. Ct. App. 1991) (each firearm); State v. Garris, p. 6 66 3 S.E.2d 340, 348 (N.C. 2012) (each instance of possession); State v. Lindsey, 583 So. 2d 1200, 1204 statute as recognized in People v. Sotelo, 968 N.E.2d 68 p. 7 7, 691 (Ill. App. Ct. firearm); People v. Carter, 821 N.E.2d 233, 239 - 40 (Ill. 2004), superseded by See, e.g., Gibson v. State, 735 S.E.2d 290, 291 (Ga. Ct. App. 2012) (each 7

term of total confinement for any offense.”). Nevertheless, the judiciary cannot 3.21(b), at 132 (3d ed. 1994) (“A legislature should not prescribe a minimum Criminal Justice Section, Standards for Criminal Justice on Sentencing § 18 and offenders that may warrant an increase or decrease in a sentence.”); ABA so that sentencing courts may consider the unique characteristics of offenses Delegates 26 (2004) (“[M] andatory minimum sentences . . . should be avoided, Kennedy Commission, Report with Recommendation to the ABA House of Penalties in the Federal Criminal Justice System 345 - 48 (2011); ABA Justice Sentencing Commission, Report to the Congress: Mandatory Minimum (2) applied consistently; and (3) not excessively severe. Se e, e.g., United States is: (1) narrowly tailored to apply only to those who warrant such punishment; have recommended either abolishing them or applying them in a manner that mandatory minimum sentenc es on the federal level, several legal commentators effectively serve a lifetime prison sentence. In examining the impact of Despite our conclusion, we are concerned that the defendant will

contends, that the legislature intended otherwise. conventional usage of “other” or “additional” suggests, as the defendant scope of “any other term” and “such additional term.” Nothing in the imposed pursuant to RSA 159:3 - a, the other five sentences fall within the applied the sentencing requirem ents of RSA 159:3 - a. For each sentence suspend any of the sentences. We conclude that the trial court properly court ordered that the sentences be served consecutively and did not defer or trial court sentenced him to six terms of 10 to 20 years in prison. The trial violations of RSA 159:3 - a. Pursuant to the provisions of RSA 159:3 - a, II, the contrary to the language of RSA 159:3 - a. The defendant was convicted of six additional term,” we disagree with the defendant that his sentence was Given our understanding of the phrases “an y other term” and “such

Thus, the words “other” and “additional” are not mere surplusage. paragraph II will affect all other sentences for convictions under the statute. conviction, and paragraph III governs how the sentence imposed pursuant to of imprisonment. P aragraph II governs the mandatory sentence for a single convictions arise under the statute, the trial court must impose multiple terms single conviction u nder the statute. RSA 159:3 - a, II. When mu ltiple Paragraph II mandates a t erm of imprisonment of at least 10 years for a

159:3 - a, III. than th at impos ed pursuant to th e requirements of RSA 159:3 - a, II. RSA indicates that the phrases in question include any term of imprisonment other plain readi ng of the relevant sentence in p aragraph III, along with paragraph II, New International Dictionary 24, 159 p. 8 8 (unabridged ed. 2002). Accordingly, a mean “something added that improves or in creases value.” Webster’s Third “additional” to mean “existing or coming by way of addition,” and “addition” to the one (as of two or more) first mention ed or of primary concern.” It defines International Dictionary defines “other,” in relevant part, to mean “not being 8

DA LIANIS, C. J., a n d CONBOY, LYNN, and BASSETT, JJ., concurred.

penalties established by RSA 159:3 - a. considerations. Accordingly, we invite the legislature to reexamine the severe the people of New Hampshire to define criminal penalties, based upon policy act as a super legislature; nor can it impose its will in place of those elected by