2022-0140, State of New Hampshire v. Nyok Deng Luwal

superior court to do so. Accordingly, we reverse. submitted on appeal, we conclude that RSA chapter 597 authorize s the circuit court ’s bai l revocation order. Having considered the briefs and record They ask us to confirm that the superior court has jurisdiction to review a in ruling that it lacked jurisdiction to hear the appeal under RSA chapter 597. revoking bail. T he State and the defendant agree that the superior court erred confer jurisdiction to the superior court to review a circuit court’s order Superior Court (Delker, J.) ruling that RSA 597:6 - e (Supp. 2021) does not DONOVAN, J. The defendant, Nyok Deng Luwal, appeals an order of the

brief, for the defendant. Christopher M. Johnson, c hief a ppellate defender, of Concord, on the

general (Anthony J. Galdieri on the memorandum of law), for the State. Jo hn M. Formella, attorney general, and Anthony J. Galdieri, solicitor

No. 2022 - 0140 Hillsborough - n orthern j udicial d istrict

page is: https://www.courts.nh.gov/our - courts/supreme - court 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 email 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

often evidentiary. Third, bail revocation proceedings are analogous to contempt decision. Second, bail revocation hearings, unlike initial bail hearings, are bail revocation hearing differ from those that a court considers in an initial bail court posited three justifications. First, the factors that a court considers in a initial bail de cision would differ from that of a bail revocation decision, the Recognizing that under its interpretation, the appeals process of an

decision to revoke bail. while remaining silent about the factors to consider in an appeal from a pr ovide specific guidance to address an appeal from a dangerousness finding finding. The court did not think it reasonable that the legislature would court considers the modification of a bail order based upon a dangerousness revocation decision, in contrast to the specific requirements provided when the guidance to the superior court when consider ing an appeal from a bail The trial court found it significant that RSA 597:6 - e, II provides no

whereas RSA 597:7 - a addresses bail revocation decisions. 597: p. 2 2 (Supp. 2021) through RSA 597:6 - e address initial bail determinations revocati on decisions. In reaching this conclusion, the court reasoned that RS A the statute’s structure suggests that RSA 597:6 - e does not apply to bail the statute to apply to such decisions. Furthermore, the court determined that included language concerning bail revocation in RSA 597:6 - e had it intended bail revocation statute, RSA 597:7 - a, and that the legislature would have The court reasoned that RSA 597:6 - e neither reference s bail revocation n or the not permit the superior court to review a circuit court ’s decision to revoke bail. applied in another superior court order which provided t hat RSA 597:6 - e did In its order, t he superior court incorporated by reference the reasoning

over an appeal from a circuit court ’s order to revoke bail. S tate’s motio n to dismiss, ruling that RSA 5 97:6 - e does not grant it j ur isdiction defendant contended that jurisdiction was proper. The court granted the The S tate moved to dismiss the appeal for lack of jurisdiction, while the Thereafter, the defendant appealed the decision to the superior court.

defendant’s bail under RSA 597:7 - a (Supp. p. 2 2021) and ordered him detained. the evidence supported the State’s motion and consequently revoked the m otion se eking to revoke bail in the circuit court. The circuit court found that defendant for violating the no - contact order. Subsequently, the S tate filed a defendant from contacting the victim. In December 2021, police arrested the defendant subject to conditions, including a no - contact order prohibiting the threatening. Following his arraignment, the circuit court released the three counts of domestic violence simple assault and one count of criminal supported by the record. In October 2021, police arrested the defendant for The following facts are agreed upon by the parties or are otherwise

statutes in the context of the overall statutory scheme and not in isolation. Id. add language the legislature did not see fit to include. Id. Finally, we interpret statute as written and will not consider what the legislature might have said or ordinary meaning. Id. Further more, we interpret legislative intent from the sta tute itself, and, if possible, construe that language according to its plain and statute considered as a whole. See id. We first look to the language of the interpretation, the intent of the legislature is expressed in the words of the novo. See State v. Pinault, 168 N.H. 28, p. 3 31 (2015). In matters of statutory The interpretation of a stat ute presents a question of law that we review de c ourt with appellate jurisdiction over circuit court bail revocation decisions. RSA chapter 597 when it interpreted the statute as not providing the s uperior The State and the defendant agree t hat the s uperior c ourt misconstrued

jurisdictional question. Therefore, we conclude that this case is not moot and accordingly consider the defendant resolved the charges against her and was no longer subject to bail). RSA 597:2 after determining that the issue was not moot, even though the address them. See, e.g., State v. Hill, 172 N.H. 711, 712 (2019) (interpreting as in this case, bail issues often become moot before we have an opportunity to Additionally, misdemeanor cases move quickly through the circuit cou rts and, litigants also need to know where to appeal bail revocation decisions. issue involve a person’s statutory right to an appeal, see RSA 597:2, X, but Grafton, 168 N.H. 56 p. 3 3, 566 (2016) (quotat ion omitted). H ere, not only does the interest and are capable of repetition yet evading review.” Olson v. Town of case may not be moot if “it presents legal issues that are of pressing public discretion. Royer v. State Dep’t of Empl. Sec urity, 118 N.H. 673, 675 (1978). A Mootness is not subject to rigid rules, but is a matter of convenience and

repetition yet evading review. We agree. presents a legal issue that is of pressing public interest and capable of Nevertheless, both parties a rgue th at his appeal is not moot because it defendant was held. C onsequently, the defendant is no longer incarcerated. terminating the circuit court pro secution of the charges upon which the Since the defendant filed his appeal, the S tate filed a nolle prosequi

T his appeal followed. revoke bail because the defendant could appeal that decision to this court. would not deprive a defen dant of appellate review of a circuit court ’s decision to finding to the superior court. Lastly, the court re asoned that its interpretation of court proceedings, and a defendant lacks any avenue to appeal a contempt p. 4 4

(emphasis added). Here, the circuit court revoked the defendant’s bail and pursuant to RSA 597:6 - e, II, to the superior court....” RSA 597:2, X court” by guaranteeing them the right to “[a] decision upon a de novo appeal, 597:2, X grants a statutory right of review to “[a] person detained by a circuit court must “enter an order of revocation and detention.” RSA 597:7 - a, III. RSA bail. A fter making certain findings suppo rting its decision to revoke bail, the court that initially granted release on bail to also consider whether to revoke decisions. RSA 597:7 - a, III, which governs bail revocation, authorizes the same confer to the superior court jurisdiction to rev iew circuit court bail revocation We conclude that a plain reading of these provisions of RSA chapter 597

jurisdiction of the district court are deemed to refer to the circuit court). RSA p. 4 490 - F:18 (Supp. 2018) (explaining that statutes that reference the district court, by a justice, or by a bail commissioner.” RSA 597:6 - e, II; see the order or amendment of the conditions of release set by a municipal or person or the state may file with the superior court a motion for revocation of court bail decisions. This provision states that “[s]ubject to RSA 597:2, X, the RSA 597:6 - e, II sets forth the superior court’s process to review circuit

excluding weekends and holidays. II, to the superior court within 36 ho urs of the filing of the appeal, (b) A decision upon a de novo appeal, pursuant to RSA 597:6 - e, and holidays on a motion to reconsider the original detention order; hours after the filing of the motion, excluding weekends and (a) In the first instance, a hearing in circuit court within 36

X. A person detained by a circuit cour t has the right to:

RSA 597:2, X provides a statutory right of review. It states:

conditions of release. Id. pose a danger no r a flight risk, or the person is unlikely to adhere to any combination of conditions of release” that wil l ensure the person will neither the conditions of the ir release, and that either there “is no condition or release, or that clear and convincing evidence exists that the person violated either probable cause exists to find the person committed a crime wh ile on an order of revocation and detention if, after a hearing, the court” f inds that have been violated.” RSA p. 5 597:7 - a, III. The statute requires the court to “enter with the court which ordered the release and the ord er of which is alleged to may initiate a proceeding for revocation of an order of release by filing a motion 597:7 - a, III governs bail revocation proceedings. It provides that “[t]he state Recognizances”: RSA 597:2, X, RSA 597:6 - e, II, and RSA 597:7 - a, III. RSA At iss ue are three provisions within RSA c hapter 597, “Bail and 5

commissioner.” Id. each charge for which a release or detention order was issued by a justice, or a bail certified copies of the complaint, affidavit, warrant, bail slip, and any other court orders relative to bail commissioner.” RSA p. 5 597:6 - e, II. The moving party must “provide[] to the superior court amendment of the conditions of release set by a municipal or district court, by a justice, or by a “[T]he person or the state may file with the superior court a motion for revocation of the order or 1

intended. explicitly exclude d bail revocation decis ions from superior court review if it so proceedings. Given this detailed language, the legislature would have 1 submit to the superior court — all of which apply to bail revocation may seek i n superior court, and the documents that the moving party must describes who may appeal to the superior court, the types of relief that a party bail determinations or excludes decisions to revoke bail. RSA p. 5 597:6 - e, II Similarly, nothing in RSA 597: 6 - e, II limits the review process to initial

doing so would require adding language to the statute). interpretation of RSA p. 5 597:2, IV to mandate evidentiary bail hearings because Zhukovskyy, 174 N.H. 430, 435 (2021) (declining to adopt the defendant’s the statute in order to limit this broad language. See, e.g., State v. restricting RSA 597:2, X to initial bail determinations would add l anguage to initial bail hearing or a bail revocation hearing. RSA 597:2, X. A ccordingly, circuit court,” regardless of whether the order of detention originates from a n the right of appellate review in the superior court to any “person detained by a 597:2, X limits the right of appeal to initial bail decisions. S ubs ection X grants might have said or add language it did not see fit to include.”). Nothing in RSA intent from the statute as written and will not consider what the legislature or RSA 597:6 - e, II. See Pinault, 168 N.H. at 31 (“[W]e interpret legislative of circuit court bail revocation decisions adds language to either RSA 597:2, X By contrast, construing the statute as prohibiting superior court review

p. 5 597:7 - a, III. langua ge already permits such review. See RSA 597:2, X; RSA 597:6 - e, II; RSA decisions does not add language to the statute because the statute’s plain Therefore, permitting superior court review of circuit court bail revocati on decisions enter the RSA 597:6 - e, II review process by way of RSA 597:2, X. reference either bail revocation or RSA 597:7 - a because such bail revocation superior court....” It is un necessary for RSA 597:6 - e, II to specifically providing that “[s]ubject to RSA 597:2, X, the person or state may file with the Moreover, R SA 597:6 - e, II incorporates RSA 597:2, X by reference by

in RSA p. 5 597: p. 6 6 - e, II. maintains the right of appeal to the superior court under the standard se t forth by a circuit court.” Accordingly, pursuant to RSA 597:2, X(b), the defendant this case was, under the plain meaning of RSA 597:2, X, “[a] person detained issued an order of detention under RSA 597:7 - a. Therefore, the defendant in 6

concurred. M AC DONALD, C.J., and HICKS, BASSETT, and HANTZ MARCONI, JJ.,

revocation decision. grants the superior court the authority to review a circuit court’s bail For the foregoing reasons, we reverse and hold that RSA chapter 597

that the legis lature intended such a disparate result. fact that the loss of liberty is the same in both instances. We cannot conclude deci s ion to revoke bail and issue an order of detention could not, despite the contrast, individuals subject to preventive detention due to a circuit court ’s de novo review of the bail decision in the superior court. See RSA 597:2, X. In detention as a result of a circuit court ’s initial bail decision are entitled to seek U nder the superior court’s interpretation, i ndividuals subject to preven tive treatment under the statute based upon how they obtained their results). defendants, each with equally favorable DNA results, receiv ing different (refusing to interpret a statute in a manner that would result in two decisions revoking bail. See State v. Breest, 1 p. 6 67 N.H. 210, 213 - 14 (2014) unnecessary disparity between the appeals process for initial bail decisions and instances. Adopting the superior court’s interpretation would create an preven tive detention decisions when the loss of liberty is the same in both review of a bail revocation decision differently from the review of initial Fin ally, we can discern no reason why the legislature would treat the