2017-0246, The State of New Hampshire v. Jeremy Surrell

entered a nolle prosequi on the other two. The trial court sent enced the 2013, t he defendant pleaded guilty to two of the AFSA charges and the State defendant enga ged in fellatio with a child under the age of thirteen. In May 632 - A:2, I(l) (2016). These indictments alleged that, on four occasions, the indicted on four counts of aggravated felonious sexual assault (AFSA). See RSA The record reflects the following facts. In 2011, the defendant was

RSA 651:20, I (2016). We affirm. Superior Court (Ruoff, J.) denying his petition to suspend his sentence under BASSETT, J. The defendant, Jeremy Surrell, appeals an order of the

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

attorney general, on the memorandum of law and orally), for the State. Gordon J. MacDonald, attorney general (Elizabeth A. Lahey, assistant

No. 2017 - 0246 Cheshire

address of the court's home page is: http://www.courts.state.nh.us/supreme. available on the Internet by 9:00 a.m. on the morning of their release. The direct by E - mail at the following address: reporter@courts.state.nh. us. Opinions are corrections may be made before the opinion goes to press. Errors may be reported 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 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 as 2

offense conduct” and, therefore, the trial court erred when it denied his petition court from denying “a petition on the basis, even in part, of the nature of the On appeal, the defendant argues tha t RSA 651: p. 2 20, I, prohibits a trial

This appeal followed.

the offense conduct when making i ts decision. aspect of the origina l sentence, which is why the C ourt looked to his sentence. However, the C ourt cannot ignore the punitive The C ourt was impressed with the defendant’s efforts while serving

request. submitted by the defendant prior to deny ing his RSA 651: p. 2 20 The C ourt carefully considered all of the mitigating evidence

motion to reconsider, the trial court stated: lesser sentence.” The defendant filed a motion to reconsider. In denying the his sentence, stating that the “conduct against the [victim] does not warrant a Subsequently, the trial cou rt denied the defendant’s petition to suspend

petition. The Warden complied with this request. of the de fendant’s incarceration for the court to consider prior to ruling on the that the Warden of the New Hampshire State Prison prepare and file a synopsis and rehabilitative programs while incarcerated. The trial court then requested and documentation demonstrating his successful completion of educational RSA 651: p. 2 20, I(a). The defendant attached an affidavit supporti ng his petition

and not more frequently than every 3 years thereafter. years or p. 2 2/3 of his minimum sentence, whichever is greater, to suspend sentence until such person has served at least 4 minimum term of 6 years or more shall not bring a petition (a) Any person sentenced to state prison for a

subparagraphs (a), (b), and (c). timely brought in accordance with the limitations set forth below in th ereafter in response to a petition to suspend sentence which is court at the time of imposition of the sentence or at any time imprisonment of any person may be suspended by the sentencing provided in subparagraphs (a), (b), and (c), the sentence to I. Notwithstanding any other provision of law, except as

under RSA 651: p. 2 20, I(a). RSA 651:20, I, provides: In January 2017, the defendant filed a petition to suspend his sentence

and to a suspended sentence of ten to twenty years. defendant to a stand comm itted sentence of seven and one - half to fifteen years p. 3 3

with the State. trial court from consideri ng the nature of the underlying offense. We agree unambiguous and that the plain language of RSA 651:20 does not preclude the interpretation of the statute. The State counters that the statute is ambiguous and examine legislative history, which, he asserts, supports his argues in the alternative that we should conclude that the sta tute is that the plain language of the statute supports his interpretation; and (2) he makes two overarching arguments in support of this contention: (1) he asserts the court base its decision on only the pr isoner’ s rehabilitati ve efforts. He the basis, even in part, of the nature of the offense and, instead, requires that argues that RSA 651:20, I, prohibits the trial court from denying a petition on petition to suspend on th e basis of the nature of the underlying offense. He The defendant first argues that the trial court erred by denying his

clear on its face. Moran, 158 N.H. at p. 3 321. Additionally, we do not consider legislative history to construe a statute that is isolation, but rather within the context of the statute as a whole. Id. v. Diallo, 169 N.H. 355, 357 (2016). We do not consider words and phrases in have said or add language that the legislature did not see fit to include. State from the statute as written and will not consider what the legislature might according to its plain and ordinary meaning. Id. We interpret legislative intent the language of the statute itself and, if possible, construe that language a whole. See Moran, 158 N.H. at 321. In interpreting a statute, we first look to intent of the legislature as expressed in the words of the statute considered as In matters of statutory interpretation, we are the final arbiter s of the

of Tilton, 151 N.H. 48 p. 3 3, 486 (2004). for us to decide, see State v. Moran, 158 N.H. 318, 321 (2009); Thayer v. Town the instant dispute requires statutory interpretation, which is a question of law exercise of discretion, State v. LeCouffe, 152 N.H. 148, 153 (2005), resolution of review a trial cou rt’s decision on a petition to suspend for an unsustainable stated in State v. Mottola, 166 N.H. 173, 176 (2014). Although we normally Fischer), 152 N.H. 205, 211 (2005), superseded by rule on other grounds as suspend sentence, or grant probation.” Petition of State of N.H. (State v. parameters, the judge has broad discretion to assign different sentences, objectives of pun ishment, rehabilitation and deterrence — within these the trial court the power to adapt sentencing to best meet the constitutional State v. Duquette, 153 N.H. 315, 316 - 17 (2006). “The legislature has vested in discretion in deciding whether or not to grant a petition to suspend a sentence. The suspension of a sentence is not obligatory: a trial court has broad

r ehabilitative success against the need for further punishment.” denied the petition to suspend solely on that basis without “weigh[ing] [his] court can take account of the nature of the offense, the court erred when it on that basis. H e also argues that, even if pursuant to RSA 651:20, I, a trial p. 4 4

whic h is timely brought in accordance with the limitations set forth below in the court to suspend a sentence “in response to a petition to suspend sentence petition to suspend, and when it may be filed. See RSA 651:20, I (authorizing discussed above, subparagraphs I (a), (b), and (c) explicitly limit who may file a limitations on the trial court when it chooses to do so. For example, a s in RSA 651:20, I, demonstrate that the legislature knows how to impose word ‘may’ is permissive and implies the use of discretion.”). Other provisions 1 p. 4 49 N.H. 178, 181 (2003) (“A s a general rule of statutory construction, the intent to vest the trial court with discretion, s ee, e.g., Duffy v. City of Dover, sentencing court,” RSA 651:20, I (emphasis added), reflecting a legislative Moreover, the st atute provides that a sentence “may be su spended by the

include.”). might have said or add language that the legislature di d not see fit to do. See Diallo, 169 N.H. at 357 (“We... will not consider what the legislature offens e — would require us to add language to the statute, which we will not the trial court from denying a petition based, even in part, on the nature of the defendant’s interpr etation of the statute — that the plain language precludes does it require the trial court to consider any specific factor. Consequently, the from considering any par ticular evidence or factors in reaching its decision, nor sentence, the plain language of the statute does not prohibit the trial court factors that the trial court may consider in ruling upon a petition to suspend a Indeed, although RSA 651:20, I, is silent regard ing the evidence or

to the factors that the trial court may properly consider. See RSA 651:20, I. provisions govern when and whether a petition can be filed; they do not relate conduct, as assessed by either the commissioner or the attorney general, these Although subparagraphs I(b) and (c) relate to a prisoner’s post - sentencing sentencing rehabilitative efforts, to the exclusion of other factors. We disagree. that the legislatu re intended that the trial court consider only a prisoner’s post that prisoner’s assistance in investigating or prosecuting a felony, it is evident attorney general to file a petition on a prisoner’s behalf at any time based on commissioner deems him or her a suitable candidate, and I(c) empowers the that, because I(b) authorizes a prisoner to file a petition at any time if the and (c) support s his interpretation of the statute. Specifically, he contends The defendant also argues that the plain language of subparagraphs I(b)

requires the court to consider only rehabilitative efforts. trial court from denying a petition based upon the nature of the offense, nor We disagree. The plain language of subparagraph I(a) neither prohibits the entirely on whether the prisoner has demonstrated successful rehabilitation.” the minimum sentence, as requiring that the trial court’s decision “depend permits state prisoners to file petitions to suspend after serving two - thirds of argues that we should read the plain language of subparagraph I(a), which RSA 6 p. 5 51:20, I (a) - (c) support s his interpretation of the statute. The defendant We first address the defendant ’s arguments that the plain language of 5

re Juvenile 200 p. 5 5 - 212, 154 N.H. at 766 - 68. that the trial court should have discretion ov er the determination at issue. In inc lude, and concluded that the statute’s silence reflected a legislative inten t refused to add words to the statute that the legislature did not see fit to we observed that silence in a statute “arguably creates an ambiguity,” we case involving interpretation of the child in need of services statute, although the trial court’s sound discretion. For example, in In re Juvenile 2005 - 212, a statute, may, in fact, reflect a legislative intent that a determination be left to 136 N.H. 309, 314 (1992). Accordingly, we have concluded that silence in a contrary to well - settled rules of statutory construction.” State v. Dushame, liberty with legislative silence by fashioning judicial rules in its stead is held that sile nce necessarily renders a statute ambiguous. Indeed, “[t]aking ambiguity, In re Juvenile 2005 - 212, 154 N.H. 763, 766 (2007), we have never Although w e have observed that a statute’s silence can “arguably” create an silent as to what factors the court may consider in ruling on a petition. The defendant also argues that the statute is ambiguous because it is

limitation into the statutory language). unambiguous and State’s interpretation unreasonable because it read a the s tatute that are simply not in the plain language. See id. (holding statute only rehabilitative efforts — is n ot reasonable because it reads limitation s into petition based, even in part, on the nature of the offense, and m ust consider defendant’s interpretation of RSA 6 p. 5 51:20, I — that the trial court cannot deny a provision. See State v. Chrisicos, 159 N.H. 405, 408 (2009). Here, the history, only when there is more than one reasonable interpretation of the statutory provision to be ambiguous, and, therefore, consult its legislative leaves [it] open to more than one reasonable interpretation.” We will consider a The defendan t argues that the statute is ambiguous because its “silence

history, or apply the rule of lenity. We agree with the State. language is unambiguous, and, therefore, we need not examine legislative lenity requires” us to adopt his position. The State counters that the statutory remains after consideration of the text and history of RSA 6 p. 5 51:20, the rule of interpretation. He further contends th at, “to the extent that any ambiguity examine the legislative history of the statute, which, he asse rts, supports h is on a timely petition, it is ambiguous. He argues that we must, therefore, 651:20, I, does not itemize the factors the trial court may consider when ruling We next turn to the defendant’s al ternative argument: that, because RSA

efforts. require s it to consider only the defendant’s post - sentencing rehabilitative neither prevent s the trial court from considering the nature of the offense, nor petition. W e conclude, therefore, that the plain language of RSA p. 6 6 p. 5 51:20, I, way limit the factors that a court may consider when ruling on a timely filed subparagraphs (a), (b), and (c)” (emphasis added)). The statute does not in any 6

t he defendant has not demonstrated that he preserved this issue for our rehabilitation and whether he had a continuing need for treatment. However, make sufficient factual findings about the quali ty of the defendant’s Finally, the defendant argues that the trial court erred because it did not

opposite of that d esired by the defendant. efforts and the punitive purpose of his sentence, simply reached a conclusion evident that the trial court, after considering both the defendant’s rehabil itative which is why [it] looked to the offense conduct when making its decision.” It is that evidence, it could not “ignore the punitive aspect of the original sentence, in support of his petition. The court explained that, despite having reviewed “carefully considered all of the mitigating evidence submitted by the defendant” order denying the motion to reconsider, the trial court stated that it had to decide. See Edwards v. RAL Auto. Group, 15 p. 6 6 N.H. 700, 705 (2008). In its The interpretation of a trial court order presents a question of law for us

offense. fact, the trial court did not deny the petition based solely on the nature of the W e disagree with the defendant’s interpretation of the trial court order — in the offense. The de fendant’s argument is based upon an incorrect premise. need for continuing punishment, and based it s decision only on the nature of in its order, it d id not weigh the defendant’s rehabilitative success against the nature of the offense.” The defendant asserts that the tri al court erred when, cannot deny a petition to suspend on the basis only of a judgment about the because, “even if a cou rt can take account of the nature of the offense, it Next, we turn to the defendant’s argument that the trial court erred

nature of the underlying offense. when it denied the defendant’s petition to suspend based, in part, on the (quotation omitted)). Accordingly, w e conclude that the trial court did not err statutes where the legislature failed to articulate its intent unambiguously” the rule of lenity as a rule of statutory construction “for interpreting criminal (quotation omitted)); State v. Dansereau, 157 N.H. 59 p. 6 6, 602 (2008) (describing consider legislative history to construe a statute that is c lear on its face.” RSA 651:20, or the rul e of lenity. See Moran, 158 N.H. at 321 (“We do not need not consider the defendant’s arguments regarding the legis lative history of Because w e have concluded that RSA 651:20, I, is unambiguous, we

deterrence.” Peti tion of State of N.H. (Fischer), 152 N.H. at 211. “to best meet the constitutional objectives of punishment, rehabilitation and discretion. The trial court’s discretion is not unfettered: it must be exercised decision as to what factors or evidence to cons ider to the trial court’s t he permissive term “may,” demonstrates a legislative intent to leave the silence as to what factors the court should consider, coupled with the use of Here, we conclude that the statute is not ambiguous. The legislature’s p. 7 7

HICKS and HANTZ MARCONI, JJ., concurred.

5 p. 7 70, 583 (2011). review, and, therefore, we will not address it. See State v. Brooks, 162 N.H.