2016-0544, The State of New Hampshire v. Theo Bosa

he requested. We affi rm. only 123 days of presentence confinement credit, instead of the full 243 days On appeal, the defendant argues that the s uperior c ourt erred in awarding him presentence confinement credit. See RSA 651:3 (2016); RSA 651 - A:23 (2016). order from the Superior Court (McNamara, J.) granting him 123 days of HANTZ MARCONI, J. The defendant, Theo Bosa, appeals the sentencing

brief and orally, for the defendant. Thomas Barnard, senior assistant appellate d efender, of Concord, on the

g eneral, on the memorandum of law and orally), for the State. Gordon J. MacDonald, attorney general (Sean P. Gill, assistant attorney

No. 2016 - 0544 Merrimack

http://www.courts.state.nh.us/supreme. release. The direct address of the court's home page is: Opinions are available on the Internet by 9:00 a.m. on the morning of their reported by E - mail at the following address: reporter@courts.state.nh. us. corrections may be made before the opinion goes to press. Errors may be Doe Drive, Concor d, New Hampshire 03301, of any editorial errors in order that requested to notify the Reporter, Supreme Court of New Hampshire, One Charles as formal revision before publication in the New Hampshire Reports. Readers are NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as well 2

as expressed in the words of the statute considered as a whole.” Id. “We Forest, 163 N.H. 616, 619 ( p. 2 2012). “We are the final arbiters of legislative intent “We review the trial court’s statutory interpretation de novo.” State v.

the discretion to do so. required to award him credit for all p. 2 243 presentence confinement days, it had confinement. Alternatively, he argues that if the s uperior c ourt was not the s uperior c ourt to award full credit for the 243 days of presentence his s uperior c ourt and c ircuit c ourt sentences were concurrent, which required credited to satisfy his c ircuit c ourt stand - committed sentence. H e asserts that presentence confinement, including the 120 days that had already been 651 - A:23, the s uperior c ourt was required to credit him with 243 days of On appeal, the defendant argue s that, pursuant to RSA 651:3 and RSA

committed circuit c ourt sentence. confinement minus the 1 p. 2 20 days “cashed in” to satisfy his four - month stand defendant with 123 days of pre sentence confinement: 243 total days of the circuit c ourt. The superior c ourt agree d with the State and credited the defendant was entitled to only 123 days because of the 120 days credited by all 243 days toward his state prison sentence, while the State argued that the January 8, 2016, until September 7, 2016. The defendant request ed credit for The parties agreed that the d efendant had been incarcerated for 243 days, from conviction, which would be consecutive to the state prison sentence if imposed. the house of c orrections, all suspended for five years, on the criminal trespass committed, on the second degree assault conviction, and to twelve months at d efendant to three to seven years at the New Hampshire State Prison, stand c ourt charges. On Sep temb er 7, 2016, the superior c ourt judge sentenced the In late July 2016, the defendant was tried and convicted on the s uperio r

thereby satisfying the st and - committed portion of his sentence. d efendant with four months — 1 p. 2 20 days — of pr esentence confinement, and an additional suspended sentence. The circuit c ourt credi ted the to 12 months at the house of c orrections, with all but four months suspended, on two of the three misdemeanor protective order violations and sen tenced him On June 27, 201 6, the Circuit Court (Spath, J.) convicted the d efendant

custody through trial and sentencing in both courts. The d efendant did not post bail on either set of charges and remained in with three protective order violations in c ircuit c ourt. S ee RSA 17 p. 3 3 - B:9 ( p. 2 2014). arrested on that warrant as well. The defendant wa s subsequently charged discovered an outstanding warrant for protective order violations and he was State represents that on the date of t he defendant’s arrest, the police RSA 631:2, I(f) (2016), and criminal trespass, see RSA 635:2, III (2016). The this incident, h e was charged in superior court with second degree assault, see arrested on January 8, 2016, after assaulting his ex - girlfriend. As a result of The following facts are undisputed on appeal. The defendant was 3

that “[b]efore the Circuit Court sent encing hearing, [he] had not yet been State v. Trudeau, 487 N.W.2d 11, 15 (N.D. 1992). Here, t he defendant argues sentence is effectively the same thing as time served pursuant to a sentence.” served”). Presentence confinement time “that has been credited toward a custody awaiting adjudication. See id. at 1570 (defining “sentence[] to time sentence may be served before the pronouncement, while the defendant is in “sentence”). Alth ough the sentence is pronounced after the finding of guilt, the defendant guilty.” Black’s Law Dictionary 1569 (10th ed. 2014) (defining imprisonment “that a court formally pronounces after finding a criminal of presentence confinement credit.” A sentence of confinement is one involving excludes any time spent un der a sentence of confinement from the calculation As the State points out, “[t] he plain language of RSA 651 - A:2 p. 3 3 exp ressly

bail.” State v. Edson, 15 p. 3 3 N.H. 45, 49 (2005). than a n otherwise identically situated offender who succeeds in furnishing unable to furnish bail should serve neither more nor less time in confinement the res ult of indigency; they reflect the principle that “an indigent offender credit statutes stem from the recognition that presentence detention is often presentencing confinement.” Forest, 163 N.H. at 619 (quotation omitted). The sentenced, but does not receive credit greater than the n umber of days of his sentencing which relates to the criminal episode for which the prisoner is to receive credit for all jail time — neit her more nor less — served before Our presentence confinement credit statutes thus “mandate that a prisoner is

sentence and not under any sentence of confinement. confined in jail awaiting and during trial prior to the imposition of equal to the number of days during which the prisoner was against both the maximum and minimum terms of his sentence of correction, any jail or any other place shall be granted credit Any prisoner who is confined to the state prison, any house

term authorized by RSA 651:2 or 6.” RSA 651 - A:2 p. 3 3 pro vides in pertinent part: maximum term of imprisonment that is imposed and against any minimum shall be credited in the manner set forth in RSA 651 - A:23 against the time actually spent in custody prior to the time [the defendant] is sentenced 651:3 and RSA 651 - A:23. Id. RSA 651:3, I, provides in relevant part: “All the The allocation of pre sentence confinement credit is governed by RSA

further indications of legislative intent.” Id. language of a statute is plain and unambiguous, we do not look beyond it for isolation, but in the context of the entire statutory scheme.” Id. “When the meaning.” Forest, 16 p. 3 3 N.H. at 619. “We do not read words or phrases in and, if possible, construe the language according to its plain and ordinary “When interpreting a statute, we first look to the language of the statute itself, terms and to promote justice.” Id. (quo tation omitted); see RSA 625:3 (2016). construe provisions of the Criminal Code according to the fair import of their p. 4 4

another. See State v. Rau, 129 N.H. 126, 130 (198 7). We recognize that there the discretion to pronounce sentences concurrent with or consecutive to one concurrently. We decline to adopt this presumption. S entencing courts have that sentences i mposed by different courts on the same day would run minimum parole eligibility date. His contention relies upon the presumption courts on the same day, he would have served only three years before his The defendant contends that, had his sentences been imposed by both

another. sentence. Rath er, the sentences were separate d in time and unrel ated to one portion of the sentence left to be immediately followed by the s uperior c ourt serving a sentence of confinement for the c ircuit c ourt convictions and had no defendant was sentenced in the s uperior c ourt, the defendant was no longer portion of the c ircuit c ourt sentence had been extinguished before the sentences of jail time to be served in sequence”). Because the stand - committed each other. See id. at 15 69 (defining “consecutive sentence s” as “[t] wo or more Nor were the c ircuit c ourt and s uperior c ourt sentences consecutive to

not be concurrent. superior court sentence at the time of its imposition — the two sentences could leaving no portion of the circuit court sentence outstanding to overlap with the presentence confinement credit prior to his superior court sentencing — defendant’s circuit court sentence was fully discharged by his 120 days of the latter sentence. Here, because the stand - committed portion of the there must be an undis charged portion of the former sentence to overlap with proceeding, to impose a sentence concurrent to a previously imposed sentence, “concurrent sentences”). Therefore, in order f or a court, in a subseque nt Black’s Law Dictionary, supra at 352, 1569 (defining “concurrent” and sentences “operat[e] at the same time” and are “served simultaneously.” See because the superior court did not identify them as consecutive. Concurrent circuit court sentence. He contends that they should be considered concurrent at issue because his superior court sentence is effectively concurrent with his The defendant argues that he is entitled to double credit for the 120 days

defendant was “not und er any sentence of confinement”). See RSA 6 p. 5 51 - A:23 (permitting presentence confinement credit only when been, retrospectively, under a sentence of confinement during those 120 days. available for the s uperior c ourt to use as credit because the defendant had c ourt used to satisfy the defendant’s stand - committed sentence were no longer sentence. Thus, the 120 days of presentence confinement that the c ircuit sentence was imposed, satisfied the four - month stand - committed portion of his with 120 days of presentence confinement. These 120 days, served before the circuit c ourt sentenced him to four months stand committed and credited him time period was [he] under a sentence of confinement.” W e disag ree. The sentence imposed by the Circuit Court. Thus, at no time during the relevant sentenced by any court, and after that hearing, [he] had fully satisfied the 5

DALIANIS, C. J., and HICKS, LYNN, and BASSETT, JJ., concurred.

confinement credit. have the discretion to award the defendant 24 3 days of presentence was under a sentence of confinement. Therefore, the s uperior c ourt did not credit: 243 days of total presentence confinement less the days the defendant sentence. Thus, the s uperior c ourt was left with on ly 123 days available to presentence confinement credit to satisfy the stand - committed portion of his retrospectively imposed, when the c ircuit c ourt awarded him 120 days of above, the defendant was under a sentence of confinement, albeit and not under any sentence of confinement” (emphasis added)). As established c onfined in jail awaiting and during trial prior to the imposition of sentence (requiring credit “equal to the number of days during which the prisoner was custody while “not under any sentence of confinement.” See RSA 6 p. 5 51 - A:23 may not, however, award more days than the defendant was actually in is within the trial court’s discretion to allocate pretrial credit”). The trial court to allocate credit among sentences, Edson, 153 N.H. at 49 (recognizing that “it (emphasizing that “the crediting rule is mandatory”), it maintains the discretion While the trial court must award pres entence confinement credit, i d. at 358 application of a statute . . . .” State v. Philbrick, 127 N.H. 353, 356 (1985). credit for presentence incarceration.. . involves the non - discretionary discretion to award 243 days of credit. We again disagree. “[T]he rule granting T he defendant argues, in the alternative, that the s uperior c ourt had the

incarceration but this is not such an instance. may be instances when sequence and timing may affect the overall length of