2019-0250, State of New Hampshire v. Laura Williams

Baker, 164 N.H. 296, 300 (2012). the public welfare. See RSA 651:5 (Supp. 2019) (amended 2020); State v. the petitions will assist in the defendant’s rehabilitation and is co nsistent with remand for the court to exercise its discretion to determine whether granting convictions from October 2007 and November 2012 for simple assault. We petitions to annul: (1) two charges that d id not result in conviction; and (2) subsequent convictions. We vacate the trial court’s denial of the defendant’s and arrest, as well as charges not resulting in conviction, because she had Circuit Court (Tenney, J.) denying her petitions to annul records of conviction DONOVAN, J. The defendant, Laura Williams, appeals orders of the

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

assistant attorney g eneral, on the brief and orally), for the State. Gordon J. MacDonald, attorney general (Susan P. McGinnis, senior

No. 2019 - 0250 6th Circuit C ourt - Hillsborough District Division

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

conduct, she does not challenge the denial of that petition on appea l. Although the defendant also brought a petition to annul a May p. 2 2007 conviction for disorderly 1

the issues in this appeal requires that we engage in statutory interpretation. N.H. 64, 67 ( p. 2 2007); State v. Robinson, 158 N.H. 792, 795 - 96 (2009). Analyzing parties that are likely to arise on remand. See Auge r v. Town of Straff ord, 156 In the interests of judicial economy, we address the arguments of the

rulings concerning the nature of easements and the relocation of trails). Andrews, 171 N.H. p. 2 289, 299 - 300, 304 (2018) (vacating trial court’s conflicting circumstances, therefore, we vacate the trial court’s orders. Cf. Stowell v. which the trial court denied the defend ant’s petitions. Under these 163 N.H. 515, 519 (2012), we are unable to discern the statutory grounds upon de novo, see Fischer v. Superintendent, Strafford County House of Corr ections, interpretation of a tr ial court order presents a question of law, which we review inconsistent with the public welfare. See RSA 651:5, I. Although the court exercised its discretion and implicitly denied the defendant’s petitions as petitions as untimely under RSA 651:5, III. The State asserts that the trial its decision. The defendant argues that the trial court erroneously denied h er The parties disagree as to the grou nds upon which the trial court rested

forth below. exercise our discretion to consider the parties’ arguments to the extent set statute in question has not been the subject of substantial appellate review, we statutory interpretation requiring n o further factual development and the circumstances of this case, and given that the appeal raises questions of court. See State v. Kardonsky, 169 N.H. 150, 15 p. 2 2 (2016). Under the preservation is a limit upon the parties to an appea l, not upon the reviewing to any of her annulment petitions filed with the trial court. Nevertheless, similarly not preserved given that the State did not object or otherwise respond trial court. The defendant counters that the State’s arguments on appeal are are not preserved because she did not raise them, in the first instance, with the At the outset, the State argues that the defendant’s appellate arguments

both occurred as recently as p. 2 2012.” This appeal followed. subsequent offenses of drug possession and theft are not minor offenses and denying the defendant’s reconsideration motion, the court stated that “[t]he record. The defendant u nsuccessfully moved for reconsideration. In the order annul because it found that the defendant had subsequent convictions on her 2007. I n November and December 2018, the trial court denied each petition to 2 007; and (4) a charge of simple assault, which was nol prossed on October 1, 1 ( p. 3 3) a charge for breach of bail conditions, which was nol prossed on October 1, originally a charge of first - degree assault before being amended b y the State; assault; (2) a n October 1, 2007 conviction for simple assault, which was sought to annul the following: (1) two November 1, 2012 conviction s for simple The record supports the following facts. In August 2018, the defendant 3

for a period of time as follows: intoxicated under RSA 265 - A:2, I, RSA 265:82, or RSA 265:82 - a vehicle offense classified as a violation other than driving while has thereafter b een convicted of no other crime, except a motor has completed all the terms and conditions of the sentence and the record of arrest, conviction, and sentence when the petitioner any person convicted of an offense may petition for annulment of III. Except as provide d in RSA 265 - A:21 or in paragraphs V and VI,

subparagraph XI(b). Nothing in this paragraph shall limit the provisions of record, or both, in accordance with the provisions of this section. court may petition for annulment of the arrest record or court criminal offense whose conviction was subsequently vacated by a provisions of this section. Any person who was convicted of a court record, or both, at any time in accordance with the not prosecuted, may petition for annulment of the arrest record or resulted in a finding of not guilty, or whose case was dismissed or offense not subject to paragraph II - a, any person whose arrest has II. For an offense disposed of before January 1, 2019 and any

petitioner. annulment without a hearing, unless a hearing is requested by the consistent with the public welfare. The court may grant or deny an annulment will assist in the petitioner ’ s rehabilitation and will be provisions of this section if in the opinion of the court, the annulment which is timely brought in accordance with the sentencing court at any time in response to a pe tition for conviction and sentence of any person may be annulled by the I. Except as provided in paragraphs V - VIII, the record of arrest,

annulments. Id. The statute provides, in pertinent part: RSA 651:5 sets forth the procedural prereq uisites to obtaining

Id. and in light of the policy sought to be advanced by the entire statutory scheme. Our goal is to apply statutes in light of the legislature’s intent in enacting them, statute in the context of the overall statut ory scheme and not in isolation. Id. language that the legislature did not see fit to include. Id. We also interpret a as written and will not consider what the legislature might have said or add meaning to the words used. Id. We interpret legislative intent from the statute When examining the language of the statute, we ascribe the plain and ordinary legislature as expressed in the words of the statute considered as a whole. Id. 168 N.H. 771, 77 p. 3 3 (2016). We are the final arbiter of the intent of the We review the trial court’s statutory interpretation de novo. State v. Bobola, p. 4 4

hearing. requirements of paragraphs III - VI shall be dismissed without a VIII. Any petition for a nnulment which does not meet the

the petition shall not be acted upon until the charge is disposed. extend the time requirements under paragraphs III, IV and VI(b), would bar such annulment under paragraph V or VI(a) or would the petitioner is charged with an offense conviction for which VII. If, prior to disposition by the court of a petition for annulment,

. . . .

all offenses of record have been met. (b) Until the time requirements under paragraphs III and IV for

paragraph V; or (a) If annulment of any part of the record is barred under

granted: petition for annulment shall be brought and no annulment VI. If a person has been convicted of more than one offense, no

extended term of imprisonment under RSA 651:6. of any offense f or which the petitioner was sentenced to an case of any violent crime, of felony obstruction of justice crimes, or V. No petition shall be brought and no annulment granted in the

. . . . subparagraphs (f) and (i), 3 years. (c) For a class A misdemeanor except as provided in

. .. .

years. conviction, except as provided in subparagraphs (f) and (h), 2 on or after January 1, 2019 that was not the highest offense of January 1, 2019 or a class B misdemeanor with a conviction date (b)(1) For a class B misdemeanor with a conviction date prior to

. . . . RSA 2 p. 5 59:39. unless the underlying conviction was for an offense specified under 2019 that was not the highest offense of conviction, one year, 2019 or a violation with a conviction date on or after January 1, (a)(1) For a violation with a conviction dat e prior to January 1, 5

criminal act. Id. the same “case” primarily because they were alternative theories of the same circumstances, we concluded that the two assault charges at issue were part of and both charges were scheduled to be tried together. Id. at 777. Under those committed the same criminal act, on the same date and in the same location, other was nol prossed. Id. at 772. Both indictments alleged that the defendant two sepa rately indicted assault charges; one resulted in a conviction and the suit or action in law or equity.” Id. at 777 (quotatio n omitted). Bobola involved is used in RSA 6 p. 5 51:5, “is the matters of fact or condition involved in a suit: a In Bobola, we explained that “[t]he plain meaning of ‘case,” as that term

part of the same “case” under RSA 6 p. 5 51:5). defendant was convicted was eligible for annulment because both charges wer e ineligible for annulment under paragraph II until assault charge for which annulment. See Bobola, 168 N.H. at 777 - 78 (nol prossed assault charge was conviction charge cannot be brought until the con viction charge is eligible for that results in a conviction (a conviction charge), a petition to annul the non a conviction (a non - conviction charge) arises from the same “case” as a charge petitions. However, the State ar gues that when a charge that does not result in State agrees, as a general matter, that paragraph VI(b) does not apply to such do not apply to petitions brought pursuant to paragraph II.” In addition, the The Sta te “does not dispute that the time requirements in paragraph III

petitions, it also erred. III, it erred. Similarly, if the trial court applied paragraph VI(b) to those annul the charges that did not result in convictions untimely under paragraph convictions.” Id. Thus, if the trial court deemed the defendant’s petitions to Rather, paragraph VI(b) applies only to “individuals seeking to annul arrests or charges that do not result in convictions. Skinner, 149 N.H. at 104. explained that paragraph VI(b) does not apply to petitions to annul records of State v. Skinner, 149 N.H. 102, 103 (200 3) (quoting RSA 6 p. 5 51:5, II). W e also prossed or dismissed may petition to annul the arrest record ‘at any time.’” whose arrest has resulted in an acquittal or whose charges have been nol time.” RSA 651:5, II. In State v. Skinner, we explained that “an individual by RSA 651:5, II. That provision allows such petitions to be brought “at any Petitions to annul charges that do not result in convictions are governed

VI (b), then it erred. We agree. under paragraph III of the statute, or because it improperly applied paragraph trial court denied those petitions, either because it found them to be untimely arrests or charges that did not result in convictions. She contends that if the The defendant first addresses her petitions to annul the record s of

being amended to a charge of simple assault by the State. See Bobola, 1 p. 6 68 N.H. at 777. charge for first - degree assault was no longer a matter of fact or condition involved in the suit after was not a “case” involving a “violent crime,” as those terms are used in RSA 651:5, because the RSA 651:5, XIII(b). We conclude that the defendant’s October 2007 conviction for simple assault defini tion of “violent crime,” provided in paragraph XIII, is “[f]irst degree assault under RSA 631:1.” an extended term of imprisonment under RSA 651:6.” RSA 651:5, V. Included within the of felony obstruction of justice crimes, or of any offense for which the petitioner was sentenced to V states: “No petition shall be broug ht and no annulment granted in the case of any violent crime, being granted, “[i]f annulment of any part of the record is barred under paragraph V.” Paragraph with multiple convictions from bringing any petition for annulment, or any annulment petition crime,” as those terms are used in RSA 651:5, we disagree. RSA 651:5, VI(a) prohibits defendants assault is barred from annulment by RSA 651:5, VI(a) because that “case” involved a “violent To the extent that the State argues that the defendant’s October 2007 conviction for simple 2 See RSA 651:5, III, VI(b). In other words, the defendant could not petition to free for a period of, at most, three years following completion of her sentences. to be eligible for annulment, required the defendant to have been conviction - Each conviction was for a misdeme anor or violation - level offense that, in order sentence on the other November 1, 2012 conviction on November 1, 2014. 2012 convictions on November 1, 2013, and she thereafter complete d her on October 1, 2008. She completed her sentence on one of the November 1, The defendant completed her sentence on the October 1, 2007 conviction

Patterson, 145 N.H. 4 p. 6 62, 465 (2000). of the sentence. See RSA 651:5, III (a) - (i); Bobola, 168 N.H. at 774 - 76; Sta te v. begin s to run once the defendant has completed all of the terms and conditions been conviction - free for a period of time designated by the statute, which conditions of the sent ence imposed for the convicti on and the defendant has time the petition is filed, the defendant has completed all of the terms and for annulment of a conviction is eligible to be considered by the court if, at the According to the plain langua ge of RSA 651:5, III, a defendant’s petition

We agree. under RSA p. 6 651:5, III and that RSA 651:5, VI (b) does not bar those petitions. contends that her petitions to annul those convictions were timely brought conviction and two November 2012 convictions for simple assault. She 2 The defendant next addresses her petition s to annul the October 2007

may have been resolved in a global plea agreement. separate events do not become part of the same “case” merely because they conduct occurring at different times, and the charges arising from those We disagree. The April 200 p. 7 7 and May 2007 charges allege different criminal Therefore, the State concludes, “the charges were all part of the same ‘case.’” 2007 charges in exchange for her guilty plea on the April 2007 charge. assault, the only reasonable conclusion is that the State nol prossed the May on the same day that she pled guilty to an April 2007 reduced charge of simple defendant’s May 2007 charges of simple assault and contempt of a bail order The State contends that because the prosecution nol prossed the 7

inspection sticker, and the trial court imposed a fine. On that date, the defendant was convicted of a misdemeanor for displaying a false registratio n or 4 defendant’s petitions were prohibited from annulment by paragraph IV. more frequently than every 3 years thereafter.” RSA 651:5, IV. There is no allegation that the Paragraph IV provides: “If a petition for annulment is denied, no further petition shall be brought 3

immediately following completion of the defendant’s sentence. pr escribed conviction - free period at the first opportunity, or, in other words, suggest i ng that, as a condition to any annulment, a defendant must satisfy the (quotation and ellipsis omitted). RSA 651:5, III includes no language in his record.” Wolfgram v. N.H. Dept. of Safety, 169 N.H. 32, 36 (2016) conviction and to afford an offender a chance to start anew without this stigma purpose of which is “to reduce the collateral cons equences of a criminal We disagree with the State’s construction of the annulment statute, the

her last sentence. rather than from the date on which she completed the terms and conditions of terms and conditions of the sentence for the conviction she seeks to annul, period must be measured from the date on which the defendant completed the November 2014. In other words, the State asserts that the conviction - free free peri od following the completion of her sentences in November 2013 and because her August 2015 conviction occurred within the three - year conviction defendant’s petitions to annul her November 2012 convictions were untimely In arguing for a contrary conclusion, the State asserts that the

filed on August 30, 2018, were, thus, timely. could not have been filed until August 13, 2018. The defendant’s petitions, conviction on that same date. Therefore, to be timely, her petitions to annul agree that the defendant completed her sentence on the August 13, 2015 she completed her sentence on the August 13, 2015 conviction. The parties 1, 200 p. 7 7 conviction or her November 2012 convictions until three years after August 13, 2015. Thus, the defendant could not petition to annul her October 4 defendant does not dispute, that her las t conviction of record occurred on offenses of record” were met. RSA 651:5, VI(b). The State argues, and the 3 not be brought until “the time requirements under paragraphs III and IV for all her October 1, 2007 conviction and her November 1, 2012 convictions could the defendant was convicted “of more than one offense,” her petitions to annul However, according to the plain language of RSA 651:5, VI(b), because

(three years after that sentence was completed). the other November 1, 2012 convicti on until, at the earliest, November 201 p. 7 7 years after that sentence was completed); and she could not petition to annul her November 1, 2012 convictions until, at the earliest, November 2016 (three years af ter that sentence was completed); she could not petition to annul one of annul her October 1, 2007 conviction until, at the earliest, October 2011 (three p. 8 8

the of the legislature as evidence d by the plain language of the statute. However, if form. We co nclude that our interpretation of the statute implements the intent 16 p. 8 8 N.H. at 773, not by construi ng the language set forth in a Judicial B ranch plain and ordinary meaning to the words used by the legislature, see Bobola, addresses the issue before us here. We interpret a statute by ascribing the that the limited l anguage contained in a general J udicial B ranch form of any applicable conviction a bar to the annulment.” We are not persuaded Judicial Branch has interpreted paragraph III as making the subsequent entry the conviction - free requirements set forth in paragraph III, “it appears that the annul form includes language from RSA 651:5, III, but makes no mention of Finally, the State argues that, because the Judicial Branch petition to

and the subsequent conviction does not bar annulment of the p rior conviction. paragraph III are extended when the defendant has a subsequent conviction, VII (emphasis added). Under paragraph VII, the time requirements of under paragraphs III, IV and VI(b),” until the charge is disposed. RSA 651:5, annulment under paragraph V or VI(a) or would extend the time requirements “the petitioner is charged with an offense conviction for which would bar such VII. Paragraph VII directs a court not to act upon a petition for annulment if Our interpretation of paragraph III fin ds further support in paragraph

773. language that the legislature did not see fit to include. See Bobola, 16 p. 8 8 N.H. at written and will not consider what the legislature might have said or add following completio n of the defendant’s sentence. W e interpret the statute as opportunity to satisfy the conviction - free time requirement occurs immediately the legislature could have explicit ly specified that a defendant ’s only thereafter been convicted of no other crime.” See RSA 651:5, III. Alternatively, conviction, it could have ended paragraph III with the words “and has preclude a petition to annul whenever a conviction is followed by a subsequent We agree with the defendant that, if the legislature had intended to

the statute to operate in such a manner. see Wolfgram, 16 p. 9 9 N.H. at 36, we do not believe that the legislature intended the statutory language set fo rth in RSA 651:5 and, given the statute’s purpose, The draconian interpretation advanced by the State here is not supported by until the time requirements of RSA 651:5, III are met for all the convictions”). offen ses, he may not be granted an annulment as to any of the convictions at 774 (stating that “under RSA 651:5, VI, if a person is convicted of multiple petition to annul was ultimately filed. See RSA 651:5, VI(b); Bobola, 16 p. 8 8 N.H. had been conviction - free for the period of time required by the statute when the paragraph III on the first opportunity for any conviction, even if the defendant multiple convictions who failed to satisfy the conviction - free require ment of results in a perpetual sta tutory bar to annulment for any defendant with T he State’s reading of paragraph III and paragraph VI(b), taken together, 9

HICKS, BASSETT, and HANTZ MARCONI, JJ., concurred.

consistent with the public welfare. RSA 651:5; see Baker, 164 N.H. at 300. defendant’s petitions for annulment will assist in her rehabilitation and is discretion afforded to it by RSA 651:5, I, in determining whether granting the deni al of the defendant’s petitions and remand for the court to exercise the from annulment b y paragraph V or VI. Accordingly, we vacate the trial court’s be petitioned for annu lment pursuant to RSA 651:5, II, III, and are not barred convictions and of arrest s or charges not resulting in convi ction are eligible to For the foregoing reasons, we conclude that the defendant’s record s of

statute as it sees fit. Id. at 778 - 7 p. 9 9. legislature disagrees with our statutory interpretation, it is free to amend the