2015-0256, Jonathan Wolfgram v. New Hampshire Department of Safety

reverse and remand. defeats the purpose of the annulment statute, RSA 651: 5 (Supp. 2015). We convictions, allowing DOS to retain the notations on his motor vehicle record the habitual offender notations reveal the fact of his annulled criminal offender certification had been annulled. The petitioner argues that, because habitual offender, despite the fact that the convictions that led to his hab itual motor vehicle record referring to his certification and decertification as a Hampshire Department of Safety (DOS), to retain notations on the petitioner’s Superior Court (McNamara, J.) affirming a decision by the respondent, the New BASSETT, J. The petitioner, Jonathan Wolfgram, appeals an order of the

memorandum o f law and orally), for the respondent. Joseph A. Foster, attorney general (Matthew T. Broadhead, attorney, by

Patrick M. Carron, of Concord, by brief and orally, for the petitioner.

No. 2015 - 0256 Merrimack

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

become part of the record of the division of motor vehicles,” R SA p. 2 262:19, III, the law provides that the order finding that a person is a habitual offender “shall and procedure). Finally, the trial court noted, because the habitual offender driving on public roads. See RSA 262:1 8 -:26 (2014) (habitual offender policy public from dangerous drivers by denying habitual offenders the privilege of scheme relating to Habitual Offenders,” which empowers DOS to protect the the petitioner’s motor vehicle record was “consistent with the entire statutory RSA 651:5, X (a). The trial court also observed that keeping the notations on that annulled convictions “may be counted toward habitual offender status,” was “consistent with the plain language” of RSA 651:5, which provides, in part, offender notations on the petitioner’s motor vehicle record, concluding that it The trial court affirmed the decision by DOS to retain the habitual

superior court. The petitione r’s request for reconsideration was denied, and he appealed to the

record. actions are not in error, and they must remain on the [petitioner’s] valid at the time and have not been annulled, notations of those action. As a result, as that action and its related actions were formally acted to invalidate its [habitual offender] certification subject convictions, the State Department of Safety has never W hile each court has acted formally to invalidate each of its

explaining: a nnulment statute.” Following a hearing, DOS denied the petitioner’s request, [his] habitual offender status [on his record] defeat[ed] [the] p urpose of the habitual offender status had been annulled, “[l]eaving the notations regarding motor vehicle record. He argued that, given that the convictions underlying his [his] past Habitual Offender Certification and Decertification” r emoved from his petitioner requested a hearing at DOS, seeking to have “all notations regarding annulled convictions from the petitioner’s motor vehicle record. In p. 2 2014, t he that had resulted in his habitual offender ce rtification. DOS removed these seventeen” annulments o f various motor vehicle convictions, including those Between 2012 and 2013, t he petitioner obtained “approximately

on “probationary status” until November p. 2 2016. granted his request, reissued the petitioner’s driver’s license, and placed him 201 1, the petitioner request ed to be decertified as a habitual offender. DOS accumulated convictions” specified by the statute “within a 5 - year period”). In maintained in the office of the division, shows that such person has RSA 259: p. 3 39 (2014) (defining habitual offender as any person “whose record, as offender and revoked his license and operating privileges for four years. See B ased upon these convictions, DOS certified the petitioner as a habitual 2002 and 2007, the petitioner was convicted of multiple motor vehicle offenses. The parties stipulated to the following facts in the trial court. Between 3

to start anew without this stigma in his records.” State v. Roe, 118 N.H. 690, consequences of a criminal conviction and “to afford an offender . . . a chance The purpose of the annulment statute is to reduce the collateral

import of their terms and to promote justice.” Id. (2014). “We construe provisions of the Criminal Code according to the fair lead to an absurd or unjust result.” State v. Bulcroft, 166 N.H. 612, 614 as to effectuate their eviden t purpose and to avoid an interpretation that would nullity.” Appeal of Wilson, 161 N.H. 659, 664 (2011). “We construe statutes so omitted). We will not construe a statute in a way that would render it “a virtual ascribe t he plain and ordinary meanings to words used.” Id. (quotation we first examine the language found in the statute, and where possible, we scheme.” Id. (quotation omitted). “When construing the meaning of a statute, them, and in light of the policy sought to be advanced by the entire statutory “Our goal is to apply statutes in light of the legislature’ s inten t in enacting a whole.” Choquette v. Roy, 167 N.H. 507, 517 (2015) (quotation omitted). intent of the legislature as expressed in the words of the statute considered as Town of Auburn, 168 N.H. 127, 1 p. 3 30 (2015). “We are the final arbiter of the review matters of statutory interpretation de novo. JMJ Properties, LLC v. T he issue on appeal presents a question of statutory interpretation. We

RSA 262:19. its statutory obligation to keep a record of habitual offender certifications. See the petitioner’s official motor vehicle record would prevent DOS from upholding annulled convictions. Finally, DOS argues that removing the notations from the motor vehicle laws from receiving [the] privilege [s]” provided to persons with language of the annulment statute “expressly exempt [s] habitual offenders of notations from the petitioner’s record. DOS further asserts that the plain proceedi ng that is subject to annulment,” DOS is not required to remove the because “the habitual offender designation is not a record of a criminal raises a constitutional challenge to the trial court’s order. DOS counters that, proceedings and introduced as evidence in cour t matters.” The petitioner also is “used by many landlords [and] employers” and “may be used in court argues that this should not be done on his “official” motor vehicle record, which his annulled convictio ns and his prior certification as a habitual offender, he legitimate business and record keeping purposes” for maintaining a record of annulment statute. Although t he petitioner acknowledges that DOS “has order to be consistent with the plain language and the purpose of the record. He asserts that the habitual offender notation s must be r emoved in trial court erred by allowing DOS to retain the notations on his motor vehicle notations reveal the fact of criminal convictions that have been annulled, the On appeal, the petitioner argues that, because the habitual offender

and t his appeal followed. motor vehicle record. The petitioner’s motion for reconsideration was denied, habitual offender notations properly continued to be part of the petitioner’s p. 4 4

habitual offender nota tions on the petitioner’s motor vehicle record reveal the offender certification is not subject to annulment. Nonetheless, because the pursuant to RSA 651:5. We agree with DOS that, in and of itself, the habitual see State v. Fitzgerald, 137 N.H. 23, 28 (1993), it is not subject to annulment argument that, because the habitual offender certification is a civil designation, each other” (quotation omitted)). As a preliminary matter, we address DOS ’s similar subjects “so that they lead to reasonable results and do not contradict v. Patterson, 1 p. 4 45 N.H. 462, 465 (2000) (construing statutes dealing with statutes.” Holt v. Keer, 167 N.H. 232, 241 (2015) (quotation omitted); see State lead to reasonable results and effectuate the legislative purpose of the persons designated as habitual offend ers, we construe them “so that they will B ecause the two statutes at issue in this case impact the treatment of

RSA 262:19, III. as a habitual offender as “part of the record of the division of motor vehicles.” specifically required by statute to keep a copy of the order certifying a person Rules, Saf - C 206.01 - 207.07 (DOS rules governing habitual offenders). DOS is conditions as the director may prescribe” (emphasis added)); N.H. Admin. (DOS “may restore” habitual offender’s driving privileges “upon such terms and which a habitual offender may regain his driving privileges. See RSA 262:2 p. 4 4 license and operating privileges, and it prescribes the terms and conditions by has discretion to determine whether to restore a habitual offender’s driving convicted repeatedl y of violations of traffic laws.” RSA 262:18, III. DOS also privilege to drive motor vehicles upon habitual offenders who have been RSA 262:18 -:26. DOS may “impose increased and added deprivation of the grants DOS broad authority to impose restrictions on habitual of fenders. See repetition of criminal acts.” RSA 262:18, I, III. The habitual offender law persons who travel or otherwise use the ways of the state” and to “discourage The habitual offender law seeks to “provide maximum safety for all

6 p. 5 51:5, X (a). may be counted toward habitual offender status under RSA 259:39.” RSA may be considered by the court in determining the sentence to be imposed, and committed after the order of annulment has been entered, the prior conviction this “otherwise unequivocal language,” id. — “upon conviction of any crime p. 4 442, 445 (1990). H owever, RSA 651:5, X (a) provide s two narrow exceptions to en compass any less than the word ‘ all ’ requires.” Brown v. Brown, 133 N.H. language ‘ in all respects ’ cannot be read out of the statute or interpreted to arrested, convicted or sentenced.” We have previously recognized that “[t]he record is annulled shall be treated in all respects as if he or she had never been welfare.” RSA 651:5, I. P ursuant to RSA 651:5, X (a), “[t]he person whose assist in t he petitioner’ s rehabilitation and will be consistent with the public petition for annulment . . . if in the opinion of th e court, the annulment will statute “may be annulled by the sentencing court at any time in respo nse to a sentence of any person” that fits within the specific categories set forth in the 692 - 93 (1978) (quotation omitt ed). The “record of arrest, conviction and 5

the fact that, although annulment creates a legal fiction that a person has sentencing for a subsequently committed crime. Thus, these exceptions reflect annulled convictions in a context in which prior convictions may be relevant — sentence to be imposed.” T his exception allows for the limited consideration of of annulment has been entered,” it may be considered “in determining the conviction except that “upon conviction of any crime committed after the order X(a), which provides that a court may not consi der an i ndividual’s annulled Our interpretation is consistent with the other exception in RSA 6 p. 5 51:5,

habitual offender status to remain on a publicly available motor vehicle record. statute, nor does it require a habitual offender’s annulled convictions or exempt habitual offenders from the protections provided by the annulment necessary and limited consideration of annulled convictions. It does not exception in RSA 6 p. 5 51:5, X(a) regarding habitual offender status allows for this 259: 39. Thus, the annulled convictions are relevant in this context. T he convictions that the person has accumulated in a five - year period. See RSA someone as a h abitual offender, DOS must determine the number of qualifying whether a person qualifies for certification as a habitual offender. To certify mean that DOS may consider an annulled conviction when determining after the order of annulment has been entered.” We interpret this language to toward habitual offender stat us” only “upon conviction of any crime committed 651:5, X(a) specifies that previously annulled convictions “may be counted sentenced.” (Quotation omitted.) See RSA 651:5, X(a). We disagree. RSA “treated in all respects as if [they] had never been arrested, convicted or offenders are “expressly exempted. . . from receiving [the] privilege” of being convictions “may be counted toward habitual offender status,” habitual DOS next argues that, because RSA 651:5, X(a) provides that annulled

. . . avoid an interpretation that would lead to an absurd or unjust result.”). an unjust result. See Bulcroft, 166 N.H. at 614 (“We construe statutes so as to that this would undermine the purpose of the annulment statute and lead to able to ascertain that he had prior conviction s. We agree with the petitioner petitioner’s motor vehicle record, any person who receives the record would be released). Accordingly, if the habitual offender notations remain on the (Supp. 201 p. 5 5) (describing how motor vehicle records may be requested and public, including potential employers and insurance agencies. See RSA 2 60:14 permission of the individual whose record is requested, to members of the Hampshire, a person’s motor vehicle record is available, upon request and with discloses the fact of more than one prio r criminal conviction. In New Corp., 129 N.H. 591, 610 (1987), a habitual offender designation necessarily also necessarily discloses the fact of a conviction,” Panas v. Harakis & K - Mart 259:39 (quotation omitted). Consequently, just as “the fact of an annulment By definition, a “[h] abitual offender” has “accumu lated convictions.” RSA

criminal history. fact of his prior convictions, they are inextricably linked with the petitioner’s p. 6 6

characterizes as references to annulled criminal convictions — but as to which erred by not ordering DOS to remove from his motor vehicle record what he vehicle record. To the extent that the petitioner argues that the trial court offender certification and decertification on hi s publicly accessible motor decision by DOS to maintain notations referring to the petitioner’s habitual Accordingly, we conclude that the trial court erred when it upheld the

file that may be disclosed and material that must remain confidential). as set forth by statute, for distinguishing between material in police personnel Hillsborough County Attorney, 1 p. 6 67 N.H. 774, 781 (2015) (describing procedure, separate from publicly available information. See, e.g., Duchesne v. imposed on other agencies that are required to keep confidential information members of the public. This places no more a burden on DOS than the burden certificati on status in such a way that the information is not accessible by been annulled, DOS must maintain its record of his habitual offender offender and the convictions underlying his habitual offender certification have offender law, we conclude that, because the petitioner is a decertified habitual scheme. Thus, construing the annulment statute together with the habitual language of the annulment statute and undermine the purpose of the statutory reveal the fact of those annulled convictions would run counter to the plain motor vehicle record but not the rem oval of habitual offender notations that interpreting RSA 651:5 to require the removal of annulled convictions from a vehicle record s can be accessed by members of the public, see RSA 260:14, incl uded on the publicly accessible motor vehicle record. Because motor notations referring to the habitual offender certification and decertification be does not require that, after the underlying convictions have been annulled, the offender “shall become part of the record of the division of motor vehicles,” it Although RSA 262:19, III provides that the order certifying a habitual

sentencing.” See RSA p. 6 651:5, X(a). We agree with the petitioner. such annulled convictions can only b e considered by C ourts for purposes of annulled criminal convictio ns on a citizen’s official criminal record because likens DOS to other state prosecuting agencies that may not “keep track of decertification, “just not on [his] official motor vehicle driving record.” He count ers that DOS may keep a record of his habitual offender ce rtification and offender status must remain on his motor vehicle record. The petitioner of the division of motor vehicles,” RSA 262:19, III, the petitioner’s habitual maintain a record of the certification of habitual offenders as “part of the record Nonetheless, DOS argues that, because it has a statutory obligation to

circumstances in which the annulled record can be used” (quotation omitted)). “contrary to the clear language of” RSA p. 6 651:5, which “describes various conviction “as if it had never occurr ed” is “conceptually impossible” and v. Linehan, 161 N.H. 483, 48 p. 7 7 (2011) (observing that treating annulled historical reality and can be considered in limited circumstances. See Lovejoy never been arrested, convicted, or sentenced, prior convictions remain a 7

DAL I ANIS, C. J., and HICKS, CONBO Y, and LYNN, JJ., concu r red.

constitutional argument. Because the petitioner prevails on his statutory claim, we need not address his Council or in motion for reconsideration not preserved for appellate review). raised in initial appeal to Department of Environmental Services Wetlands Se e Appeal of Morrissey, 165 N.H. 8 p. 7 7, 98 (2013) (concluding that issue not before DOS, either in his initial request or in his motion for reconsideration. we decline to address this argument because t he petitioner did not raise it there is no evidence that the references are, in fact, to annulled conv ictions —