State v. Thompson, 2013–096
| Decision Date | 24 December 2013 |
| Docket Number | No. 2013–096,2013–096 |
| Citation | 165 N.H. 779,83 A.3d 388 |
| Parties | The STATE of New Hampshire v. Daniel C. THOMPSON |
| Court | New Hampshire Supreme Court |
165 N.H. 779
83 A.3d 388
The STATE of New Hampshire
v.
Daniel C. THOMPSON
No. 2013–096
Supreme Court of New Hampshire.
Submitted: October 16, 2013
Opinion Issued: December 24, 2013
Joseph A. Foster, attorney general (Nicholas Cort, assistant attorney general, on the brief), for the State.
Kenna & Sharkey, P.A., of Manchester (Bruce E. Kenna on the brief), for the defendant.
HICKS, J.
The defendant, Daniel C. Thompson, appeals a decision of the 2d Circuit Court–Lebanon District Division (Cirone, J.) denying his request for an appeal to superior court for a de novo jury trial and a decision of the Superior Court (Vaughan, J.) denying his petition to allow a misdemeanor appeal. We affirm.
The following facts are supported by the record or are taken from our decision in a prior appeal in this case. See State v. Thompson, 164 N.H. 447, 58 A.3d 661 (2012). The defendant was convicted, following a bench trial in Lebanon District Court, of driving while intoxicated (DWI). See RSA 265–A:2, I (Supp. 2012) (amended 2012); Thompson, 164 N.H. at 448, 58 A.3d 661. The amended complaint against the defendant alleged two prior convictions, but the State did not enter evidence of those convictions at trial. Thompson, 164 N.H. at 448, 58 A.3d 661. Rather, the State sought to admit them, over the defendant's objection, at sentencing. Id. The trial court admitted the evidence and sentenced the defendant to enhanced penalties for a third DWI offense under RSA 265–A:18, IV(b). RSA 265–A:18, IV(b) (Supp. 2012) (amended 2012); Thompson, 164 N.H. at 448, 58 A.3d 661. Accordingly, the defendant was convicted of a class A misdemeanor. See RSA 265–A:18, IV(b). Had the prior offenses not been admitted, the defendant's conviction would have been a class B misdemeanor. See RSA 265–A:18, I(a)(1) (Supp. 2012) (amended 2012).
According to the circuit court order now being appealed, the defendant, at the sentencing hearing, "stated his intent to appeal ... to the Supreme Court." It appears, however, that the district court clerk's office sent the appeal to the superior court. The defendant then filed in the superior court an assented-to motion to remand the case to the trial court so that the contemplated appeal to this court could be filed. The superior court granted that motion. It appears that the trial court also stayed the defendant's sentence pending resolution of his appeal to this court.
On appeal to this court in Thompson, the defendant argued that the trial court erred by imposing an enhanced penalty under RSA 265–A:18, IV because the State failed to prove at trial the existence of his prior convictions. Thompson, 164 N.H. at 448, 58 A.3d 661. We disagreed and affirmed the defendant's class A misdemeanor conviction. Id. at 451, 58 A.3d 661. The defendant then notified the trial court of his intent to appeal his conviction and sentence to the superior court and asserted his right to a de novo jury trial. See RSA 599:1 (Supp.2006) (amended 2011). The trial court ruled that the defendant, having chosen to appeal to this court, was not thereafter entitled to appeal to the superior court for a de novo jury trial. The defendant then petitioned the superior court to allow a misdemeanor appeal pursuant to RSA 599:1 through 599:1–b, arguing that if he had, as the trial court decided, waived his right to appeal to the superior court, it "was the result of mistake, accident and misfortune." The superior court denied that motion. The
defendant now appeals to this court the decisions of both the trial and superior courts.
The defendant first challenges the trial court's ruling that his election to appeal to this court waived his right to a jury trial in superior court. We note, as an initial matter, that he contests whether RSA 502–A:12 precludes him from now appealing his trial court conviction "to the Superior Court for a jury trial where his appeal to this Court was made solely to determine whether his conviction in the [trial court] was properly for a Class A or a Class B misdemeanor." See RSA 502–A:12 (2010). Resolution of this issue requires us to interpret the applicable statutes, which presents a question of law that we review de novo. State v. Hynes, 159 N.H. 187, 193, 978 A.2d 264 (2009).
In matters of statutory interpretation, we are the final arbiter of the intent of the legislature as expressed in the words of a statute considered as a whole. We first examine the language of the statute, and, where possible, we apply the plain and ordinary meaning to the words used. We interpret legislative intent from the statute as written and will not consider what the legislature might have said or add language it did not see fit to include. Further, we interpret a statute in the context of the overall statutory scheme and not in isolation.
Id. (citations omitted).
RSA 502–A:12 provides:
I. A person sentenced by a district court for a class A misdemeanor after trial or after proceedings pursuant to District Court Rule 2.14 may appeal therefrom to the superior court for a jury trial as provided in RSA 599....
II. A person sentenced by a district court for a class A misdemeanor may, if no appeal for a jury trial in superior court is taken, appeal therefrom to the supreme court at the time the sentence is declared or within 30 days after the sentence is declared. The supreme court's review shall be limited to questions of law.
RSA 502–A:12 (emphasis added). RSA 599:1, in turn, provides, in part:
A person convicted by a district court of a class A misdemeanor, at the time the sentence is declared, may appeal therefrom to obtain a de novo jury trial in the superior court, which shall hear the appeal.... If, after a jury trial in the superior court, the defendant is found guilty, the superior court shall sentence the defendant, and the defendant may appeal questions of law arising therefrom to the supreme court. In the event the defendant waives the right to a jury trial after the case has been appealed, the superior court shall forthwith remand the case to the district court for imposition of the sentence originally imposed by the district court, and the defendant may appeal questions of law arising therefrom to the supreme court.
RSA 599:1.
By its plain language, RSA 502–A:12 permits a person convicted in district (now circuit) court of a class A misdemeanor to appeal directly to this court "if no appeal for a jury trial in superior court is taken." RSA 502–A:12. It does not allow a defendant to pursue both avenues of appeal, either simultaneously or consecutively. Accordingly, the statute requires a defendant to choose between appealing to superior court for a de novo jury trial or to this court for the resolution of questions of law. If the defendant chooses a de novo jury trial and is again convicted, he may then appeal that subsequent conviction to this court. See RSA 599:1.
The defendant argues that he could not know that he was properly convicted of a class A misdemeanor until he appealed the enhanced penalty issue to this court and that " RSA 502–A:12 never contemplated such a dilemma." His argument rests upon the premise that if the trial court had erred in using prior convictions not proved at trial to enhance his sentence—a contention we rejected in Thompson, see Thompson, 164 N.H. at 451, 58 A.3d 661 —he would have been convicted of a class B, rather than class A, misdemeanor and, therefore, would not have been entitled to a jury trial. See State v. Foote, 149 N.H. 323, 324, 821 A.2d 1072 (2003) (noting that "[a]s a matter of law, [a] defendant is not entitled to a jury trial on a class B misdemeanor");
see also RSA 599:1–c (2001) (person sentenced by district court for violation or class B misdemeanor may appeal to supreme court). He argues that he could not "know whether he was properly convicted in the [trial court] of a Class A or a Class B misdemeanor" until he obtained a ruling from this court, and that until we rendered our decision in Thompson, he "did not believe any appeal to the Superior Court was either advisable or even possible." He asserts that "[i]n order to fully define his options ... [he] had to appeal to this Court to interpret the DWI statute ... to determine whether he had been convicted of an offense for which a jury trial was necessary and available."
The defendant's statutory argument is unavailing. Both RSA 502–A:12, II and RSA 599:1 permit a defendant to appeal a class A misdemeanor "at the time the sentence is declared," or within a limited time thereafter. At the time the defendant's sentence was declared by the trial court, he had been unambiguously convicted of a class A misdemeanor. That the defendant believed that classification was erroneous and intended to challenge it does not alter the conviction's validity at that time for purposes of determining the available avenues of appellate review. "[U]nless and until [a defendant's] conviction is overturned, it is deemed valid...." Stewart v. Bader, 154 N.H. 75, 85, 907 A.2d 931 (2006) (noting...
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