State of New Hampshire v. Dennis R. Cormiea

Whether the trial court properly dismissed the case, without prejudice, without first proceeding to a competency hearing, because Cormiea had not been evaluated by the court-ordered deadline, which had already been extended the single time permitted by law, and which, under the plain language of RSA 135:17, I(a), the court could not extend a second time over the defendant’s objection. *

The State brought five criminal charges against Dennis Cormiea arising from an incident that occurred on May 28, 2023. SBA 17-21. On that date, Cormiea brandished his firearm toward two individuals in a car. The State alleged that Cormiea’s actions prevented them from leaving their location, either purposely (two counts of felony criminal threatening) or recklessly (two counts of felony reckless conduct). The State also charged Cormiea with misdemeanor disorderly conduct for using his car to block those same individuals. SBA 23-24. On June 7, 2023, Cormiea was released on his personal recognizance, subject to specific conditions. SBA 22-23. He was prohibited from having any contact with or being within 300 feet from the two individuals involved in the incident, possessing any weapons or ammunition, and consuming any alcohol or controlled drugs. Id.

On November 22, 2023, Cormiea’s counsel filed a motion to determine Cormiea’s competency. SBA 28-30. On D ecember 8, 2023, the court granted

The order reflected the statute’s requirement that “such pre-trial examination shall be completed within…90 days after the date of the order for such examination.” RSA 135:17, I(a). The court

The court scheduled a Status Conference for April 8, 2024, Cormiea remained subject to the bail order while the issue of competency was pending. Id. On December 11, 2023, three days after the court’s order to conduct the evaluation,

On February 16, 2024, the State requested, in re levant part, the court extend the 90-day time limit for six months, from March 7, 2024, to September 6, 2024. SBA 37-40. Over the defense’s objection, SBA 41-47, the court granted the State’s motion in part, extending the statutory time limit for an additional ninety days, to June 5, 2024. SBA 50. On April 8, 2024,

On May 16, 2024, the State moved to extend the competency examination deadline for the second time, from June 5, 2024, to September 13, 2024. SBA 55-58. The defense again objected. SBA 59-65. The State’s motion asserted that Cormiea was now thirty-fourth on the OFE’s waitlist. SBA 57. Based on the OFE’s indication that examinations usually occur within eight-to-nine months from a court’s order, the State estimated that Cormiea would be evaluated by September 8, 2024. Id.

The court held a hearing on the State’s second motion on June 26, 2024. The June 5 deadline passed without an OFE examination of Cormiea. On the morning of the June 26 hearing, the State filed a supplement to its motion to extend, notifying the court that the OFE scheduled Cormiea’s evaluation for July 10, 2024. SBA 66. At the hearing, the State said that an extension to September “does not seem necessar[y], ” but it still required a second extension to allow for the July examination date. MH 4.

The State argued for the second extension because no “out of custody defendant would be able to be evaluated within the 90 day[] timeline” due to the OFE’s waitlist. MH 8. The State told the court that “[n]o cases will run their course” if the statutory time limits are enforced through dismissal. MH 8. The State also accused the defense of “availing itself” of the expired time limits to “allow” the case to be dismissed. MH 5.

At the hearing, the defense argued that the statute permitted only a single extension, which the court already granted the State, and which had expired. MH 6; RSA 135:17, I(a). The statutory deadlines, the defense argued, were mandatory. Moreover, because the deadlines were rooted in a defendant’s private rights, liberty interests, and constitutional rights, they must be enforced by dismissal without prejudice. MH 5-7. The defense also explained that dismissal was particularly appropriate in this case because of the stress and confusion the drawn-out process had already brought to Cormiea and his family. MH 9.

The court issued an order the next day denying the State’s motion and dismissing the case. SBA 58. The court’s order stated:

The court denied the State’s motion to reconsider. SBA 68-71.

RSA 135:17, I(a) establishes mandatory deadlines for conducting a pre-trial evaluation of a defendant for whom a bona fide question of competency exists. The time limit of 45 days (for a detained defendant) or 90 days (for a defendant who is not detained) may be extended at the request of a party only a single time. When the specified time limit expires, the statute requires the court to dismiss the case. The statute’s time limits “shall” be followed. This command is mandatory when it’s included in a statute that protects an individual’s private interests. Because the competency process and statutes affect and protect private rights and interests, the time limits are mandatory. That the statute allows for a single extension of the deadline at a party’s request does not transform it from a mandatory to a permissive one.

The remedy for a violation of the time limits is dismissal without prejudice. Although the statute does not explicitly provide an enforcement mechanism, this Court interprets statutes to require dismissal when their time limits are rooted in and protect individuals’ liberty interests and due process rights. The court refers to such time limits as “jurisdictional.” Moreover, the trial court need not proceed to a competency hearing, which is held to protect a defendant’s constitutional rights, because dismissal already protects those rights.

This brief will first address the mandatory nature of the time limits in RSA 135:17, then address dismissal without prejudice as the proper remedy for a violation of those time limits. Then, this brief will address additional arguments raised by the State. Dismissal observes, rather than thwarts, the statute’s purposes. Next, “an extension” cannot be interpreted to mean indefinite extensions. Finally, the court need not hold a competency hearing because dismissal already achieves the hearing’s objective of protecting the defendant’s constitutional rights. For the reasons set forth below, the time limits in RSA 135:17 are mandatory and must be enforced through dismissal without prejudice.

This dispute requires the Court to interpret RSA 135:17. This statute states, in relevant part:

offense, or is awaiting the action of the grand jury on any felony, the circuit or superior court before which he or she is to be tried, if a plea of insanity is made in court, or said court is notified by either party that there is a question as to the competency or sanity of the person, may make such order for a pre-trial examination of such person by a qualified psychiatrist or psychologist on the staff of any public institution or by a private qualified psychiatrist or psychologist as the circumstances of the case may require, which order may include, though without limitation, examination at the secure psychiatric unit on an out-patient basis, the utilization of local mental health clinics on an in- or out-patient basis, or the examination of such person, should he or she be incarcerated for any reason, at his or her place of detention by qualified psychiatrists or psychologists assigned to a state or local mental health facility.

That paragraph continues by prescribing the mandatory time limits by which the evaluation must be completed. Such pre-trial examination shall be completed within 45 days in the case of a person being held at a county correctional facility, otherwise 90 days after the date of the order for such examination, unless either party requests an extension of this period.

RSA 135:17, I(a) 2 (emphasis added).

On appeal, this Court reviews de novo questions of statutory interpretation. In re N.T., 175 N.H. 300, 305 (2022). “In matters of statutory interpretation, [this Court] first look[s] to the language of the statute itself, and, if possible, construe[s] that language according to its plain and ordinary meaning.” Id. It “interpret[s] the statute as written and will not consider what the legislature might have said or add language that the legislature did not see fit to include.” Id. It “construe[s] all parts of a statute together to effectuate its overall purpose and avoid an absurd or unjust result.” Id. It “consider[s] words and phrases, not in isolation, but in the context of the statute as a whole in order to better discern the legislature’s intent and to interpret statutory language in light of the policy or purpose sought to be advanced by the statutory scheme.” Id. It “interpret[s] statutes to avoid conflict with constitutional rights wherever reasonably possible.” State v. Pierce, 152 N.H. 790, 791 (2005).

“Shall” is “unambiguous. It is mandatory, not permissive, language.” Theresa S. v. Sup’t of YDC, 126 N.H. 53, 55 (1985). This Court presumes that when the legislature used the word “shall, ” it intended a statutory provision “to be mandatory rather than discretionary.” In re Liquidation of Home Ins. Co., 157 N.H. 543, 553 (2008). The word “shall” is “generally regarded as a legislative command.” State v. Fournier, 158 N.H. 441, 446 (2009); see also Gen. Insulation Co. v. Eckman Const., 159 N.H. 601, 608 (2010) (“Pursuant to general rules of statutory construction, the word ‘shall’ is a command, which requires mandatory enforcement.”). The use of “shall” “is significant as indicating the intent that the statute is mandatory.” In re Russell C., 120 N.H. 260, 264 (1980). The mandatory nature of “shall” “is especially so where the purpose of the statute is to protect private rights.” McCarthy v. Wheeler, 152 N.H. 643, 645 (2005) (citing In re Russell C., 120 N.H. 260 at 264). The competency process, and the statutory procedures governing it, affect and protect an individual’s private rights and interests. See State v. Veale, 158 N.H. 632, 641 (2009). The State contends that the statute’s time limits are discretionary, rather than mandatory. SB 38 (citing City of Rochester v. Corpening, 153 N.H. 571 (2006)). In Corpening, this Court affirmed a trial court’s decision to not impose a financial penalty for civil violations, notwithstanding a statute providing that a defendant “shall be subject to a civil penalty not to exceed $100” for each day of the violation. Id. at 574- 75 (interpreting RSA 676:17, I).

First, unlike the statute here, the statute in Corpening did not affect or protect the defendant’s private rights or interests. This touchstone significantly indicates a statute’s mandatory prescription, and its presence in RSA 135:17 differentiates RSA 135:17 from the statute in Corpening. See, e.g., Russell C., 120 N.H. at 264 (“shall” is a mandatory command within a statute that protects private rights). Second, the statute in Corpening established notice to potential violators they “may be subject” to its penalties, and granted the trial court the discretion, not the obligation, to enforce it. Id. In contrast, RSA 135:17 obligates an expert to comply with the court order and conduct a pre-trial examination of a defendant within specific time limits. When a statute’s mandatory time limit is not paired with an explicit enforcement mechanism, this Court has set forth a process to determine the remedy for a time limit violation.

Alternatively, where a mandatory time limit does not safeguard an individual’s liberty interest, the statute may require a remedy other than dismissal.

The statute here is silent on its mandatory time limit’s enforcement mechanism, but this does not mean the defendant is deprived of its enforcement. In these circumstances, this Court turns to the goals of the statute and the prejudice suffered by the petitioner to determine the appropriate mode of enforcement. McCarthy v. Wheeler, 152 N.H. 643, 645 (2005); State v. Fournier, 158 N.H. 441, 446 (2009); In re D.O., 173 N.H. 48, 54 (2020).

“When interpreting the goals of a statute, [this Court has] distinguished between two types of time limits: those involving a liberty interest and those involving a general interest in hastening adjudicative dispositions.” Fournier, 158 N.H. at 446 (internal quotations omitted). If a statutory time limit exists to protect an individual’s liberty interest, then a violation of those limits requires dismissal. See In re D.O., 173 N.H. at 54; see also In re N.T., 175 N.H. at 306. Such “time limits are deemed ‘jurisdictional.’” In re D.O., 173 N.H. at 54. 3 Alternatively, a time limit that primarily exists to hasten dispositions “for the benefit of all parties involved” is not treated as “jurisdictional, ” and its violation does not require dismissal. Id. As explained below, the mandatory time limits in RSA 135:17 exist to protect a defendant’s liberty interests, which are rooted in his right to due process. Therefore, the time limits are jurisdictional and are enforced through dismissal.

The issue of a defendant’s competency implicates the defendant’s right to due process. See Russell C., 120 N.H. at 266. “The mental competence of a criminal defendant is ‘an absolute basic condition of a fair trial.’” State v. Salimullah, 172 N.H. 739, 748 (2020). “Due process guarantees under both the Federal and State Constitutions protect defendants from standing trial if they are legally incompetent.” Id. These guarantees apply at all stages of prosecution. Id. This includes the competency stages.

This Court has viewed mandatory time limits as jurisdictional when they are “rooted” in a defendant’s “right to due process.” See Russell C., 120 N.H. at 266. A defendant’s “liberty interest... triggers the need for due process safeguards.” Id. at 268. A time limit that codifies and effectuates these rights is jurisdictional and, if violated, requires the court to dismiss the matter. The State here contends that the RSA 135:17 time limits are “designed for hastening the adjudicative dispositions of competency for the benefit of all parties, ” SB 41, 43, not “inflexible deadlines for the holding of hearings.” SB 43. The State’s position goes against this Court’s jurisprudence.

A court order that prohibits an individual from otherwise lawful activity, like the bail order here, is a restraint on liberty. McCarthy v. Wheeler, 152 N.H. 643, 645 (2005). The plaintiff in McCarthy filed a domestic violence petition against the defendant and the court granted a temporary restraining order. Id. at 643. Thereafter the trial court violated two statutory time limits governing when hearings must be held (RSAs 173-B:4, I and 173-B:3, VIII). Id. Because “it hardly bears mentioning that a restraining order restrains one’s liberty, ” this Court determined that the legislature imposed those time limits to protect a defendant’s “liberty interests” and “due process rights.” Id. at 646. Therefore, RSA 173-B’s time limits are jurisdictional and must be enforced by dismissing the restraining orders. Id. The terms and conditions of a bail order here, like those of a restraining order in McCarthy, restrict a defendant’s liberty. The legislature imposed mandatory time limits in RSAs 173-B and 135:17 for the same reason: to protect a defendant’s liberty interests.

This Court reached its decision in McCarthy by pointing to the “similar” liberty interests behind the mandatory time limits governing juvenile adjudicatory proceedings. Id. at 646 (citing In re Russell C., 120 N.H. at 263). This Court in Russell C. analyzed, and found “jurisdictional, ” two different statutory time limits. Id. at 268 (analyzing RSA 169-B:14 (delinquency proceedings) and RSA 169-D:13 (“child in need of services” proceedings)). Both statutes imposed jurisdictional time limits to procedurally safeguard a juvenile defendant’s liberty interest. Id. This Court held that the pre- disposition stages of a juvenile adjudication and an adult criminal prosecution entail the same “deprivation of a [defendant’s] liberty.” Id. at 266-268. A juvenile’s due process rights are “analogous” to an adult defendant’s during their respective pre-disposition stages. Id. at 266; see also In re Eric C., 124 N.H. 222, 225 (1983). Therefore, time limits that are rooted in and effectuate these rights are mandatory and jurisdictional. Id.

Statutory time limits may also be jurisdictional even if they do not implicate an individual’s guilt or innocence, like those that govern post-conviction proceedings. Fournier, 158 N.H. at 449. The State contends that RSA 135:17’s time limits are not jurisdictional, in part, because a “pre-trial competency evaluation has no bearing on the defendant’s guilt or innocence.” SB 40. However, a defendant’s rights are not contingent on the particular stage of a proceeding. Salimullah, 172 N.H. at 748. Nor do rights attach only when an action bears directly on guilt or innocence.

Rather, the inquiry centers on whether a statute implicates an individual’s liberty interests and rights. The trial court in Fournier violated the statutory time limits governing the process to certify a convicted defendant as a sexually violent predator. Fournier, 158 N.H. at 444-45 (analyzing RSA 135-E). The Court found the time limits to be mandatory because they were “rooted” in an individual’s due process rights and designed to protect the individual’s liberty interest. Id. at 449. The Court explained that the time limits in Fournier effectuated the same due process rights and liberty interests as the time limits in McCarthy (restraining order proceedings) and Russell C. (juvenile adjudicatory proceedings). Id. at 449. Jurisdictional time limits, therefore, are not limited only to actions that “bear on guilt or innocence, ” but govern any setting—whether civil or criminal, pre-trial or post-conviction—which involve due process rights and liberty interests. The jurisdictional time limits in RSA 135:17 are rooted in the same principles as the time limits in Russell C., Fournier, and McCarthy, and therefore they are similarly enforced through dismissal.

This Court has placed statutory time limits that are rooted in different grounds in a separate “non-jurisdictional” category. Statutory time limits are non-jurisdictional when they “merely [involve] a general interest in hastening adjudicatory dispositions.” Ruel, 163 N.H. at 42 (quoting Fournier, 158 N.H. at 446) (internal quotations omitted). RSA 135:17 does not fall within this category, contrary to the State’s urging.

First, even if compliance with RSA 135:17 is congruent with a general interest in moving a case forward, the statute’s purpose is not “merely” that advancement. Second, this Court has held that time limits are non-jurisdictional when “nothing” indicates they involve a liberty interest. See, e.g., Appeal of Martino, 138 N.H. 612, 616 (1994). In Martino, the Compensation Appeals Board rejected a tractor-trailer driver’s work-place disability claim. The driver sought to vacate the board’s decision because they issued it beyond the governing statute’s 30-day time limit. Id. at 615 (analyzing RSA 281- A:43, I(b)). However, this Court found “nothing” to indicate that the statutory time limit existed to protect an individual’s liberty interests. Id. at 616. Instead, the time limits were created “simply” for a timely resolution “for the benefit of all parties involved.” Id.

Similarly, the statutory time limits by which the Board of Examiners of Psychologists were required to hold a disciplinary hearing were not jurisdictional because the statute did not involve liberty interests. Smith v. N.H. Bd. of Examiners of Psychologists, 138 N.H. 548, 551 (1994). There, the individual’s only noted interest was in a speedy disposition. Id.

The mandatory time limit for a court to issue a decision after a parental rights termination hearing is also not jurisdictional. In re Robyn W., 124 N.H. 377, 381 (1983) (analyzing RSA 170-C:11, V). This time limit was designed to encourage a speedy resolution for the sake of all the parties involved. Id. Nothing in the statute “involve[d] a liberty interest.” Fournier, 158 N.H. at 451 (summarizing the holding of Robyn W.).

But it does not follow that a statute is unjustly thwarted when its correct interpretation vindicates one objective at the expense of another.

The competency statutes are like the juvenile adjudicatory statutes, which “represent a multifaceted approach to a complex problem.” See Russell C., 120 N.H. at 266. Statutes like these combine “objectives [that] are numerous and varied, ” and those objectives may be in tension at times. Id.; In re N.T., 175 N.H. at 308.

The State proposes three “primary purposes” of RSA 135:17’s statutory scheme. SB 44.4 The State’s list fails to

4 “(i) [T]o determine a defendant’s competency or incompetency to stand trial; (ii) if incompetent, to attempt to restore the defendant to competency; and (iii) if not restorable within a specified time, and dangerous, to have the defendant evaluated for the appropriateness of involuntary treatment.” SB 44. even mention the defendant’s liberty interests and due process rights, which the statute exists to codify and protect. Nevertheless, the State argues that an unenforceable, non- jurisdictional time limit “balances” the defendant’s constitutional rights against the statute’s other objectives. SB 44.

Even if enforcing the time limits in RSA 135:17 may temporarily diminish secondary objectives of the statutory scheme, this is not an unintended result, nor is it an “absurd, unjust, or illogical” result. Rather, this Court has “reiterate[d] that, when mandatory time limits are rooted in the right to due process and the protection of a liberty interest, ” enforcing those time limits at the expense of other statutory goals “is consistent with the overall statutory scheme.” Fournier, 158 N.H. at 451; see also McCarthy, 152 N.H. at 646-67 (mandatory time limits in domestic violence statute that protect a defendant’s due process rights are jurisdictional even though their strict enforcement may defeat other goals of domestic violence statute); Russell C., 120 N.H. at 266 (dismissing juvenile delinquency for violation of mandatory time limits may defeat some goals of the statutory scheme, but result not “absurd, unjust, or illogical” because statutory time limits codified due process requirements); In re Eric C., 124 N.H. at 225 (same).

Moreover, dismissal without prejudice does not permanently extinguish the State’s ability to pursue charges against the defendant. This Court in McCarthy noted that while enforcing mandatory time limits may contradict secondary goals of the statute, “nothing in [the statute] precludes the refiling” of the petition against the defendant. McCarthy, 152 N.H. at 646. Enforcing RSA 135:17’s time limits would similarly protect the defendant’s rights without precluding the State from refiling charges in the future. In addition, the State urges this Court to disable the statute’s enforcement mechanism by faulting the defendant for the time limit’s violation. This is wrong. While it is correct that noncompliance with a mandatory time limit will not be enforced if the defendant is at fault for the delay, Fournier, 158 N.H. at 453, it is incorrect to fault Cormiea for falling under the statute’s protections. See In re Trevor G., 166 N.H. 52, 58 (2014) (mandatory time limits must be enforced if defendant not at fault for delay). According to the State’s brief, “all of the delay is attributable to the defendant” and “the defendant benefited from his own intransigence.” SB 46, 58. The State asserts that Cormiea is at fault for the delay by raising the issue of competency in the first place, then later “refusing to, ” i.e., objecting to, extending the statutory deadline and waiving his rights. Id. By the State’s logic, Cormiea invoked and waived his rights through the same act.

However, as stated above, a defendant’s constitutional rights apply at all stages of a criminal proceeding, including the right not to stand trial if legally incompetent. This Court cannot fault a defendant for possessing this “absolute, basic right.” Salimullah, 172 N.H. at 748. A defendant does not waive his other constitutional rights when his competency is doubted. “To require a person to surrender one constitutional right in order to gain the benefit of another right is simply intolerable.” Opinion of the Justices, 121 N.H. 531, 540 (1981).

Moreover, defense counsel has the ethical obligation to raise the issue of competency whenever there is “a good faith doubt as to the defendant’s competence.” State v. Veale, 158 N.H. 632, 639 (2009) (quoting ABA Criminal Justice Standards Committee, ABA Criminal Justice Mental Health Standards Standard 7–4.2(c), at 176 (1989)).

The State’s reliance on State v. Lanciaux undermines its argument. No. 2017-0434, 2018 WL 1724989 (N.H. March 28, 2019). There, the defendant “refused to answer any questions or to cooperate with the [competency] evaluation.” Id. at *1. Thereafter, the defendant refused to attend three different status conferences regarding competency. Id. The “intransigence” of the defendant in Lanciaux bears no resemblance to Cormiea’s reliance on his constitutional rights.

The ability to request a single extension to a time limit does not permit an indefinite extension or an indefinite number of extensions. To stretch the meaning of “an extension” to an indefinite number of extensions would improperly add words to the statute and violate the statute’s objectives to protect the individual’s liberty interests and due process rights.

The State contends that RSA 135:17, I(c)-(d) support its interpretation that the pre-evaluation stage can persist indefinitely. These paragraphs create procedures when the evaluation has not been performed within the initial 45- or 90-day time limits. These procedures presuppose that a party timely requested, and the court granted, an extension to the initial time limit. Therefore, RSA 135:17, I(c)-(d) govern the period between the first deadline and the second (and final) deadline. This Court interprets a statutory provision “together with all associated sections.” In re Guardianship of B.C., 174 N.H. 628, 634 (2021). Under the State’s expansive interpretation, only paragraphs (c)-(d) would have any meaning, and paragraph (a)’s time limits would thereby be nullified. The statute’s amendments enacted in January 2025 do not change this analysis because the provisions still presuppose the single permitted extension of the deadline.

The State misplaces the hearing’s benefit. A competency hearing is required because the defendant is entitled to the “opportunity to challenge” expert opinion finding him competent to stand trial. State v. Smith, 2025 N.H. 1, ¶13 (2025) (quoting State v. Bertrand, 123 N.H. 719, 726 (1983)) (emphasis in original). A competency hearing satisfies and safeguards the defendant’s constitutional rights. Id. at ¶12- 13. The State cites Bertrand for support, SB 47, but this Court has held that “Bertrand must be read in the context of its facts… and should not be read to require procedures that, under the circumstances, are not necessary to satisfy due process.” Smith, 2025 N.H. at ¶12. When a mandatory time limit is violated, due process does not require the court to hold a hearing. Rather, mandatory dismissal without prejudice, safeguards and satisfies the defendant’s constitutional rights. Therefore, a hearing to satisfy those rights is not necessary because dismissal has already vindicated them.

WHEREFORE, Dennis Cormiea respectfully requests that this Court affirm the trial court’s decision dismissing, without prejudice, the case.

Undersigned counsel requests fifteen minutes of oral argument before a full panel.

This brief complies with the applicable word limitation and contains 5414 words.

I hereby certify that a copy of this brief is being timely provided to the Criminal Bureau of the New Hampshire Attorney General’s office through the electronic filing system’s electronic service.