2026 N.H. 18, State v. Freese

NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by email at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court’s home page is: https://www.courts.nh.gov/our-courts/supreme-court. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Hillsborough-northern judicial district Case No. 2025-0028 Citation: State v. Freese, 2026 N.H. 18 THE STATE OF NEW HAMPSHIRE v. DONALD FREESE Argued: March 10, 2026 Opinion Issued: April 24, 2026 John M. Formella, attorney general, and Anthony J. Galdieri, solicitor general (Sam M. Gonyea, assistant attorney general, on the brief and orally), for the State. Stephanie Hausman, chief appellate defender, of Concord, on the brief and orally, for the defendant. PER CURIAM. [¶1] Through this interlocutory appeal, the defendant, Donald Freese, challenges the order of the Superior Court (Delker, J.) reinstating indictments against him that had been dismissed after the court found the defendant not competent to stand trial and subsequently found that he had not regained competency after twelve months. See RSA 135:17-a (2021). We reverse and remand. I. Background [¶2] We accept the statement of facts as presented in the interlocutory appeal statement and rely upon the record for additional facts as necessary. See In the Matter of Landgraf & Landgraf, 176 N.H. 724, 725 (2024), 2024 N.H. 41, ¶2. The defendant was charged with several crimes arising from an incident in September 2020. On August 21, 2023, the Trial Court (Nicolosi, J.) entered an order finding the defendant not competent to stand trial with the potential to be restored within twelve months. [¶3] On May 28, 2024, the Trial Court (Delker, J.) ordered that the defendant be evaluated to determine whether he had been restored to competency. The court held a contested evidentiary hearing on August 19, 2024, at which the evaluator testified. On September 4, 2024, the trial court issued an order finding that the defendant had not been restored to competency. Accordingly, the court dismissed the criminal charges against the defendant without prejudice pursuant to RSA 135:17-a, IV. The court further found that the defendant was dangerous and ordered that he remain in custody for ninety days to allow the State to pursue civil commitment. [¶4] As part of the civil commitment process, on September 24, 2024, the trial court granted the State’s petition for further evaluation of the defendant. On November 5, 2024, the evaluator concluded that the defendant does not have a mental illness and is not dangerous. Based on that evaluation, the State moved to reconsider the court’s September 4 finding that the defendant is not competent to stand trial. Following a hearing, on December 2, 2024 the trial court found that “there is a substantial question about whether the defendant ever was incompetent to stand trial or whether he has been malingering.” Accordingly, the court reconsidered its September 4 decision finding the defendant not competent and not restored, vacated its dismissal of the indictments under RSA 135:17-a, IV, and reinstated the indictments. The court determined that “[i]n order to finally resolve the status of the defendant’s competency to stand trial,” a further evidentiary hearing would be required and it scheduled “a status conference to address whether additional competency evaluations are necessary.” On January 9, 2025, the trial court granted the defendant’s motion for an interlocutory appeal. We accepted the appeal. See Sup. Ct. R. 8. II. Analysis [¶5] The question presented is: Whether the trial court erred by reinstating the indictments after they were dismissed by operation of law pursuant to RSA 135:17- a, IV, based on new information calling into question whether the defendant was actually incompetent to stand trial when that new information came to light during the dangerousness evaluation conducted pursuant to RSA 135:17-a, V and RSA 135-C:34. [¶6] This question requires that we engage in statutory interpretation. We review the trial court’s statutory interpretation de novo. State v. Cormiea, __ N.H. __, __ (2025), 2025 N.H. 50, ¶7. We first look to the language of the statute itself, and, if possible, construe that language according to its plain and ordinary meaning. Id. We give effect to every word of a statute whenever possible and will not consider what the legislature might have said or add language that the legislature did not see fit to include. Id. We also construe all parts of a statute together to effectuate its overall purpose. Id. However, we do not construe statutes in isolation; instead, we attempt to construe them in harmony with the overall statutory scheme. Id. [¶7] RSA 135:17-a sets out the procedures to be followed by the trial court after it makes an initial determination that the defendant is not competent to stand trial. See State v. Salimullah, 172 N.H. 739, 743 (2020). If the court determines that the defendant is not competent to stand trial, it “shall order treatment for the restoration of competency” unless it determines by clear and convincing evidence that there is no reasonable likelihood that the defendant can be restored to competency through appropriate treatment within twelve months. RSA 135:17-a, I. [¶8] After the defendant is committed for treatment, the court, “[e]xcept for good cause shown,” shall hold a hearing to determine the defendant’s competency “no later than 12 months after the order committing the defendant for treatment.” RSA 135:17-a, III. Prior to the hearing, a further evaluation shall be conducted. See id. Following the hearing, if the trial court determines “that the defendant has not regained competency, the case against the defendant shall be dismissed without prejudice.” RSA 135:17-a, IV. [¶9] If the charges are dismissed and the defendant has been found dangerous, the trial court “shall order the person to remain in custody for a reasonable period of time, not to exceed 90 days, to be evaluated for the appropriateness of involuntary treatment pursuant to RSA 135-C:34 or RSA 171-B:2.” RSA 135:17-a, V. During that time, the court may order examinations of the person “for the purpose of evaluating appropriateness and completing the certificate for involuntary admission” to a state facility. Id. [¶10] If the person is ordered to be involuntarily admitted, the court may, “during the period of the involuntary admission and before expiration of the limitations period applicable to the underlying criminal offense, order a further competency evaluation.” RSA 135:17-a, VI. Such evaluation may be ordered if the court finds that “there is a reasonable basis to believe that the person’s condition has changed such that competency to stand trial may have been affected.” Id. [¶11] Under the plain language of the statute, the State is allowed twelve months to restore a defendant to competency to stand trial. See RSA 135:17-a, I, III, IV. When, as here, the trial court finds the defendant not competent to stand trial and not restored within the twelve-month period, the criminal case “shall be dismissed without prejudice.” RSA 135:17-a, IV; …