2015-0650, The State of New Hampshire v. Drew Fuller

169 - B (2014 & Supp. 2015). We affirm. court, appl y retroactively to his case. See Laws 2014, 215:3 -:13; RSA ch. juvenile delinquents ages 17 and under in the family division of the circuit that the 2014 amendments to RSA chapter 169 - B, which vest s jurisdiction over dismiss ing the charges against the defendant, Drew Fuller. The court ruled LYNN, J. The State appeals an order of the Superior Court (Brown, J.)

brief and orally, for the defendant. David M. Rothstein, deputy director public defender, of Concord, on the

attorney general, on the brief and orally), for the State. Joseph A. Foster, attorney general (Stephen D. Fuller, senior assistant

No. 2015 - 0650 Hillsborough - northern judicial district

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

have articulated in both civil and criminal cases. See, e.g., Town of Bartlett v. The court then applied the common law test of retroactivity, which we

penalty incurred under the repealed act. was not for an offense comm itted under the repealed act, nor did it seek a prosecution was not pending at the time of repeal, and that the prosecution forfeiture incurred under the repealed act. The court ruled that the an offense com mitted under the repealed act or for the recovery of a penalty or was pending at the time of the repeal; and (3) the suit or prosecution was for statute applies if and only if: (1) an act was repealed; ( p. 2 2) a suit or prosecution apply to the case. See RSA 21:38 (2012). T he court reasoned that the savings because the savings statute, upon which the Carpentino test is based, did not not apply the test articulated in State v. Carpentino, 166 N.H. 9, 12 - 14 (2014), have jurisdiction over the defendant. First, the court determined that it need but were indicted after that date, and, therefore, the superior court did not applied retroactively to persons who committed offenses before July 1, 2015, After a hearing, the superior court ruled that amended RSA 16 9 - B:2, IV

the superior court had jurisdiction. State contended that the former definition of “D elinquent” controlled and, thus, defendant committed the offenses before this date, and when he was 17, the applied prospectively from its effective date, July 1, p. 2 2015. B ecause the include juveniles his age. The State objected and argued that the amendment 169 - B:2, IV (Supp. 2015) extended the family division ’s exclusive jurisdiction to him, argui ng that the superior court lacked jurisdiction because amended RSA In August 2015, the defendant moved to dismiss the charges against

p. 2 2015. See Laws 2014, 215:28. the age of 17. See RSA 169 - B:2, IV (2014). This change took effect on July 1, The prior version of the statute defined a “D elinquent” as an individual under “Delinquent” to include anyone under 18 years of age. See Laws 2014, 215:3. Among other changes, the bill amended RSA 169 - B:2, IV, raising the age of a amended RSA chapter 169 - B. See Laws 2014, 215:3 -:13,:19 -: 21, :23 -: 24. On May 15, 2014, the legislature enacted House Bill 1624, which

information for these crimes. allegedly committed the offenses and at the time he was indicted or charged by born on March 10, 1998, and thus, was 17 years old both at the time he indicted the defendant on the heroin charge on July 17. The defendant was informations on the misdemeanor firearm charges on July 16, and a grand jury 318 - B: p. 2 2, I (2011); RSA 159:13 (2014); RSA 159:4 (2014). The State filed firearm, and carrying a firearm in a vehicle without a licens e. See RSA May 26, 2015, and charged with possession of heroin, changing marks on a The record reflects the following facts. The defendant was arrested on

490 - F: p. 3 3 (Supp. 2015). subsumed by the newly created circuit court, which includes the family di vision. See RSA “the district court.” Effective July 1, 2011, the jurisdiction of the former district court was RSA 169 - B:3 grants jurisdiction to “[t]he court,” which is defined by RSA 169 - B:2, III (2014) as 1

a case should be transferred.” court conducts a hearing and considers various factors to “determin[e] whether case of an adult may be transferred to the superior court” after the circuit offense complained of constitutes a felony or would amoun t to a felony in the 169 - B:24, I (2014) provides that “[a]ll cases before the court in which the justice system after t hat person’ s eighteenth birthday.” In addition, RSA eighteenth birthday, the state may proceed against the person in the criminal juvenile petition has been filed based upon acts committed before the minor’ s “In any instance in which the statute of limitations has not tolled and no delinqu ents or minors. For example, RSA 169 - B:4, VII (Supp. 2015) provides: provide exceptions under which the superior court may have jurisdiction over has jurisdiction over delinquency proceedings, other sections of the statute Although RSA 169 - B: p. 3 3 provides the general ru le that the family division

2014, 215:4 (quotation omitted). (Supp. 2015) now defines “Minor” as “a person under the age of 18.” Laws (2014) (quotation omitted). Similarly, after the amendment s, RSA 169 - B:2, VI committed an offense before reach ing the age of 17 years. RSA 169 - B:2, IV omitted). Prior to the amendment s, a “D elinquent” w as a person who code of this state if committed by an adult.” Laws 2014, 215: p. 3 3 (quotation age of 18 years which would be a felony or misdemeanor under the criminal “D elinquent” is “a p erson who has committed an offense before reaching the issue, the current version of RSA 169 - B:2, IV (Supp. 2015) provide s that a statute does not define “delinque ncy,” but, pursuant to the amendment s at exclusive original jurisdiction over all proceedings alleging delinquency.” The RSA 169 - B:3 (2014) provides that t he family division “shall have 1

which, it contends, was pending at the time the amendments took effect. amendment s to RSA chapter 169 - B retroactively to the defendant’s case, On appeal, the State argues that the trial court erred by applying the

because the superior court did not have jurisdiction over the defendant. therefore, could be applied retroactively. It thus granted the motion to dismiss was substantive or procedural. I t ruled that the change was procedural, and, the amendment s to apply retroactivel y, the court examined whether the change After f inding that the legislature was ultimately silent on whether it intended Furlong, 168 N.H. 171, 179 (2015); State v. H amel, 1 p. 3 38 N.H. 392, 39 p. 4 4 (1994). 4

State v. Naud, 73 N.H. 531, 532 (1906) (holding that notice to take deposi tions was performed, and they had no longer any potential existence.” Id.; s ee also that result their purpose was accomplished, and they ceased; their function respondent to abide the action of the grand jury. When they had provided for prosecution, designed only to secure the personal appearance of the proceedings leading up to indictment “were merely preliminary to a prosecution was “clearly” not pending at that ti me. Id. We reasoned that the The act at issue was passed on June 27. Id. at 181. We held that a remained until indicted at the August trial term.” Arlin, 39 N.H. at 180 - 81. and, after an e xamination before a magistrate, committed to jail, where he immediately after which date he was arrested upon a complaint and warrant, respondent “was charged with having committed the offence April 5, 1859, law reducing the punishment for the respondent’s crime was passed. The a criminal prosecution was pending against the respondent” at the time that a indicted. In State v. Arlin, 39 N.H. 179, 180 (1859), the question was “whether We have said that a prosecution is not pending until a defendant is

until July 16 — more tha n two weeks after the effective date of July 1. defendant was not indicted until July 17, 2015, and informations were not filed bound over to superior court before the amendment s took effect. However, the was arrest ed, complaints were filed, bail had been set, and the case had been against the defendant was pending because he allegedly committed the acts, pending w hen the amendment s took effect. The State contends that the case applies to this case because the prosecution against the defendant was not yet such repeal.” R SA 21:38. We disagree with the State th at the savings statute penalty or forfeiture incurred under the act so repealed, shall be affected by time of the repeal of any act, for any offense committed or for the recovery of a The savings statute provides: “No suit or prosecution, pending at the

sought to be advanced b y the entire statutory scheme.” Id. statutes in light of the legislature’s intent in enacting them and the policy the words of the statute considered as a whole.” Id. “Our goal is to apply isolation.” Id. “We are the final arbiters of the legislative intent as expre ssed in interpret a statute in the context of the overall statutory scheme and not in said nor add language that the legislature did not see fit to include.” Id. “We statute as written and will neither consider what the legisl ature might have meaning to the words used.” Id. “We interpret legislative intent from the meaning, we first examine its language, and ascribe the plain and ordinary interpretation de novo.” Carpentino, 166 N.H. at 13. “To determine a statute’s savings statute, RSA 21:38. “We review matters involving statutory (Q uoting RSA 21:1 (2012).) Resolution of this issue requires us to interpret the intent of the legislature or repugnant to the context of the same statute. ’” effective ‘ unless such construction would be inconsistent with the manifest prosecutions that are pending on the date that new legislation becomes The State argues that “[t]he ‘savings clause’ [RSA 21:38] applies to p. 5 5

complaints initially filed in that court. prosecution on the misdemeanor charges remained in the circuit court based upon the this case and have no occasion to determine whether the savings statute would apply had the the filing of informations in superior court, we consider that to be the start of the prosecution in Because the State chose to proceed against the defendant on the misdemeanor charges through 2

applied retroactively. As a general rule, “statutes are presumptively intended our common law test for determining whether the amendment s should be H aving concluded that RSA 21:38 does not apply to this case, w e turn to

the amendments here are procedural in nature. instant case is distinguishable from Sampson and Banks, however, because defendant who committed the crime in February, but was tried in May). The 220, 222 - 23 (19 p. 5 50) (applying amendment that was eff ective in April to was acting prospectively and not retroactively”). B ut cf. State v. Gobin, 96 N.H. increasing the penalties in some cases “clearly indicate[d] that the Legislature new statute being made effect ive on the same day, and the new statute 350, 352 (1967) (holding that the repeal of an old statute and enactment of a be “to excuse the [defendant’s] conduct altogether”); State v. Banks, 108 N.H. felonious”; and (2) the effect of retroactive application of the amendment would by legislative enactment, stealing more than $100 w orth of property was decreasing value of the dollar but the offenses “were committed at a time when, retro actively where: (1) the purpose of the amendment was to reflect the classifying the defendant’s acts as misdemeanor s rather than felonies to apply (1980) (holding that legislature did not intend for substantive amendment am endment to apply retroactively. See State v. Sampson, 120 N.H. 251, 254 other factors that demonstrated that th e legislature did not intend for the a defendant was indicted when the amendment was substantive or there were savings statute, we have declined to apply amendments that took effect before We recognize that, even in circumstances where we did not apply the

occurred before the defendant was charged by information). 2 since the action was not pending when the statute was repealed” when repeal 77 p. 5 5, 77 8, 781 (R.I. 1983) (holding that “[t]he savings statute does not apply the defendant allegedly violated had been rep ealed); State v. Souza, 456 A.2d savings statute because the indictment was filed after the criminal statute that did not qualify as a pending prosecution within the meaning of Hawaii’s P.3d 677, 68 1 (Haw. 2005) (noting that the prosecutor conceded that the case prosecution was not yet pending on July 1, 2015. Accord State v. Young, 109 at 11 - 12, the saving s statute does not apply to the instant case because the sentenced before the relevant amendment took effect, se e Carpentino, 166 N.H. unlike in Carpentino, in which the defendant had been tried, convicted, and Nothing in our case law since has overruled Arlin. For this reason,

pending against him”). was void because “[u]ntil the defendant was indicted no criminal case was p. 6 6

ex panded the jurisdiction of the juvenile c ourt by raising the upper age limit of a “delinquent v. Commonwealth, 8 N.E.3d 717 (Mass. 2014), in which that court held that amendments that The State urges us to follow the holding of the Massachusetts Supreme Judicial Court in Watts 3

purpose of the [amendment] is procedural and remedial”). 3 defendant, stating that “despite the substantive provision, the predominant proceeded against under the juvenile statute, applied retroactively to the Delinquency Act, which required individuals und er 1 p. 6 6 years of age to be 1975) (per curiam) (concluding that an amendment to the Federal Juvenile 593; s ee also United States v. Mechem, 509 F.2d 1193, 1194 - 96 (10th Cir. on by the State . . . it is applicable here since it is remedial in nature.” Id. at “[a] lthough this statute became effective after the alleged acts of Gomes relied ap plied retroactively to defendants. Gomes, 116 N.H. at 592. We stated that over persons wh ose acts were committed while under the age of 18 years que stion of whether the expansion of the juvenile court’s exclusive jurisdiction substantive. In State v. Gomes, 116 N.H. 591 (1976), we addressed a similar We hold that the amendments to RSA chapter 169 - B are procedural, not

justice.” Town of Bartlett, 1 p. 6 68 N.H. at 179 (quotatio n omitted). fairness, because the underlying purpose of all legislation is to promote question of retrospective application rests on a determination of fundamental stage to which the statute pertains. Id. “Nevertheless, in the final analysis, the on the effective date of the statute, have not yet gone beyond the procedural procedural or remedial rights are presumed to apply retroactively to cases that, party.” Id. Unlike statutes affecting substantive rights, those affecting the statute is determined to affect only the procedural or remedial rights of a to apply only prospectively. Id. “This presumption, however, reverses when In general, when a law affects su bstantive rights and lia bilities, it is presumed affects the parties’ substantive or procedural rights.” Hamel, 138 N.H. at 394. prospectively or retrospectively, our interpretation turns on whether the statute “When the legislature is silent as to whether a statute should apply

itself controlling. factor weighing in favor of their prospective application, this factor is not in recognize that the effective date of the RSA chapter 1 p. 6 69 - B amendments is a nearly six months into the future.” Carpentino, 166 N.H. at 15. Although we retrospectively when the legislature set an effective date for that amendment f[ound] it difficult to infer legislative intent that an amendment should apply intent for th e amendment s to apply only prospectively. In Carpentino, “[w] e over a year after the amendment s were passed — the legislature expressed an (1991). The State argues that by sett ing an effective date of July 1, 2015 — prospectively or retrospectively. See State v. Johnson, 134 N.H. 5 p. 7 70, 572 effective date, the amendment s are silent as to whether they should apply intent to apply a statute retroactively or prospectively. Here, except for the omi tted). This presumption can be overcome if the legislature expresses an to operate prospectively.” Town of Bartlett, 168 N.H. at 179 (quotation 7

we decline to follow Watts. concluded that a statutory change virtually identical to that at issue here was remedial in nature, prospectively. Watts, 8 N.E.3d at p. 7 719 - 21. In light of our holding in Gomes, in which we child” made substantive, not procedural changes, and, therefore, were applicable only

more than a procedural hurdle. In many cases, t he State may still proceed in VII. In this sense, the amendments at issu e impose upon the State nothing rather than juvenile court, after a person turns 18 years of age. RSA 169 - B:4, not tolled and no juvenile petition was filed, the State may proceed in criminal, meets certain criteria. Also, for cases in which the statute of limitations was transfer of an offense that constitutes a felony to superior court if the case changed. For instance, pursuant to RSA 169 - B:24, I, the State may seek commit an offense before reaching the age of 18, but the forum can be part of the statutory scheme. It supplies a default forum for indiv iduals who family division with exclusive original jurisdiction over delinquents, is but one could have sought prior to the amendments. RSA 169 - B:3, which vests the case, the State is not precluded from seeking the s ame punishment that it We also note that, at least with regard to the most serious charge in this

should be considered substantive rather than procedural. 116 N.H. at 593, w e are not persuaded that the amendments in this case reduction in potential penalties; h owever, in light of our precedent, see Gomes, complaint. We acknowledge that the State is correct in noting the general repercussions from a juvenile petition than he would from a criminal proceeding entirely” because the def endant would face less severe jurisdiction of the proceeding from one forum to another; they change the and argues that “[t]he amendments do more than simply change the The State contends that the amendment s are not procedural or remedial

personam jurisdiction of the court did not change substantive rights). Sholley, 111 N.H. 363, 365 (19 p. 7 71) (holding that a statute expanding in took place before the statute [] became effective”); Property O wners Ass’n v. court. . . even though the ac tions which determined the substantive rights the superior court the decision made of her possessory rights by the district statute that changed “the procedure to be followed by the plaintiff to appeal to v. Sampson, 114 N.H. 63 p. 8 8, 641 (1974) (holding as remedial an amended judgment action does not in itself make the amendment substantive.”); Smith alter the parties’ relative positions by allowing the plaintiff to file a declaratory amended [statute expanding subject matter jur isdiction of superior court] may Ins. Co., 143 N.H. 322, 325 (1999) (“The fact that implemen tation of the change parties’ substantive rights); Workplace Systems v. CIGNA Prop. & Cas. previously must have been brought in superior court was remedial and did not (holding that expansion of jurisdicti on of district court to include suits that court are procedural or remedial. See Town of Bartlett, 168 N.H. at 181 which we have held that statutory amendments expanding the jurisdiction of a This conclusion is consistent with our case law in other contexts in 8

DALIANIS, C.J.