Duquette v. Warden, N.H. State Prison
| Decision Date | 19 January 2007 |
| Docket Number | No. 2006–079.,2006–079. |
| Citation | 154 N.H. 737,919 A.2d 767 |
| Court | New Hampshire Supreme Court |
| Parties | Randy DUQUETTE v. WARDEN, NEW HAMPSHIRE STATE PRISON. |
Orr and Reno, P.A., of Concord (Pamela E. Phelan and Phillip Rakhunov on the brief, and Ms. Phelan orally), for the petitioner.
Kelly A. Ayotte, attorney general (Susan P. McGinnis, assistant attorney general, on the brief and orally), for the State.
Randy Duquette, pro se, by brief.
Douglas, Leonard & Garvey, P.C., of Concord (Richard J. Lehmann on the brief), for Kenneth Violette, as amicus curiae.
Steven Pelletier & a., pro se, by brief, as amici curiae.
The petitioner, Randy Duquette, appeals from an order of the Superior Court (Brennan, J.) dismissing his petition for writ of habeas corpus. We affirm.
The petitioner asked the court to correct the "illegal" consecutive sentences imposed upon him following his 1997 convictions on six counts of aggravated felonious sexual assault, see RSA 632–A:2 (1996) (amended 1997, 1998, 1999, 2003), and one count of felonious sexual assault against a victim under the age of thirteen, see RSA 632–A:3, III (1996) (amended 2003). The court imposed three consecutive prison terms of ten to twenty years, stand committed, as well as three terms of ten to twenty years and one term of three and-one-half to seven years to run concurrently with the last of the three consecutive terms. State v. Duquette, 153 N.H. 315, 315–16, 893 A.2d 709 (2006).
On appeal, the petitioner argues that the superior court has no statutory authority to impose consecutive sentences. He further argues that imposing consecutive sentences violates state and federal due process guarantees, the state guarantee of proportionality in sentencing and the constitutional doctrine of separation of powers.
While the State contends that the petitioner did not preserve his appellate arguments because they differ from those he raised in the trial court, it urges us to address them "because the appeals of the amici, which have been stayed pending resolution of this appeal, raise the same types of issues, and because these issues are likely to be properly raised in the future." In light of these pending cases and the importance of the issue raised, we address, in turn, the petitioner's statutory and constitutional arguments.
The petitioner first argues that the superior court lacks statutory authorization to impose consecutive sentences. He observes that the plain language of RSA 651:2 (1996) (amended 1996, 1998, 1999, 2006), which is the statute the trial court relied upon when dismissing his habeas corpus petition, RSA 632–A:10–a (1996) (amended 1998, 2006), which is the statute under which he was sentenced, and RSA 651:3 (1996), which pertains to the calculation of sentences, does not authorize the superior court to impose consecutive sentences. The State concedes that "there is no general explicit statutory authority" for consecutive sentences, but counters that the trial court has inherent common law authority to impose such sentences.
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. Debonis v. Warden, N.H. State Prison, 153 N.H. 603, 605, 903 A.2d 993 (2006). We construe provisions of the Criminal Code according to the fair import of their terms and to promote justice. See RSA 625:3 (1996); Petition of State of N.H., 152 N.H. 185, 187, 872 A.2d 1000 (2005). In doing so, we must first look to the plain language of the statute to determine legislative intent. Petition of State of N.H., 152 N.H. at 187, 872 A.2d 1000. Where more than one reasonable interpretation of the statutory language exists, we review legislative history to aid our analysis. Id.
We begin by examining the plain language of RSA 651:2, which provides in pertinent part:
While this language is silent with respect to whether a trial court may impose consecutive sentences in cases such as this one, RSA 651:2, II-b provides for consecutive sentences for those convicted of felonious use of a firearm. It requires the court to impose a minimum mandatory sentence in addition to any punishment provided for the underlying felony. "Neither the whole nor any part of the additional sentence of imprisonment hereby provided shall be served concurrently with any other term nor shall the whole or any part of such additional term be suspended." RSA 651:2, II-b.
The plain language of RSA 632–A:10–a is also silent as to whether consecutive sentences may be imposed. That statute provides, in pertinent part:
Notwithstanding RSA 651:2 :
Similarly, RSA 651:3 does not address whether the trial court may impose consecutive sentences. That statute provides that a sentence of imprisonment "commences when it is imposed if the defendant is in custody or surrenders into custody at that time." RSA 651:3, I. "Otherwise, it commences when he becomes actually in custody." Id.
Thus, we agree with the parties that there is no explicit statutory authority for consecutive sentences, except under RSA 651:2, II-b, which pertains only to those convicted of felonious use of a firearm, and various penalties narrowly applicable to prisoners and parolees. See RSA 597:14–b (2001); RSA 642:8 (1996); RSA 642:9 (Supp.2006). The State argues, however, that the repeal of former RSA 651:3, III (1974) (repealed 1975) revived the court's common law authority to impose consecutive sentences. Former RSA 651:3, III provided for all sentences to run concurrently except those of persons convicted of a felony either during imprisonment or an escape from imprisonment. The State relies upon State v. Rau, 129 N.H. 126, 523 A.2d 98 (1987), to support its argument:
RSA 651:3, III, repealed in 1975, provided in pertinent part that "any multiple sentences of imprisonment imposed on any person shall be served concurrently." Since its repeal, New Hampshire law no longer specifies whether multiple sentences imposed run concurrently or consecutively. The legislature repealed RSA 651:3, III to afford a judge, with discretion, the option to impose consecutive sentences in order to deal with that group of criminals who need the deterrent of consecutive sentences. The legislature additionally indicated that in the remainder of cases "[judges] should almost always impose sentences concurrently." N.H.S. Jour. 306 (1975).
Rau, 129 N.H. at 129–30, 523 A.2d 98 (citation omitted). The petitioner contends that this language is dicta. He further asserts that the repeal of former RSA 651:3, III did not revive the superior court's authority to impose consecutive sentences. We assume solely for the purpose of this appeal that the language from Rau upon which the State relies is dicta. We therefore first address whether the judiciary had common law authority to impose consecutive sentences.
"Firmly rooted in common law is the principle that the selection of either concurrent or consecutive sentences rests within the discretion of sentencing judges." A.W. Campbell, Law of Sentencing 278 (2d ed.1991). The common law precedent for consecutive sentencing can be traced to pre-Revolutionary England, such law being therefore the common law model for New Hampshire and her twelve "sisters" at the beginning of the Republic. See State v. Mahaney, 73 N.J.L. 53, 62 A. 265, 265–66 (1905) (collecting cases). American jurisprudence traces a court's discretion to impose consecutive sentences to the pre-Revolution English case of Rex v. Wilkes, 98 Eng. Rep. 327 (K.B.1770). Id. at 265. In Rex v. Wilkes, a writ of error was brought to the House of Lords protesting the imposition of consecutive sentences for libel. The consecutive sentences were affirmed by all the law lords, and the common law principle was born. Wilkes, 98 Eng. Rep. at 355.
The petitioner argues that the source of the authority to impose consecutive sentences is not the common law, but rather RSA chapter 607 (1955) (repealed 1973). His reliance upon RSA chapter 607 is misplaced, however, as he concedes that it did not "include a specific provision on the imposition of consecutive sentences."
Having concluded that, absent statutory dictates to the contrary, courts have the common law authority to impose consecutive sentences, we next examine whether, when repealing former RSA 651:3, III, the legislature did not intend to restore this common law authority. "It is a general principle that the repeal of a statute which abrogates the common law operates to reinstate the common-law rule, unless it appears that the legislature did not intend such reinstatement." 73 Am.Jur.2d Statutes § 271 (2d ed.2001).
Because the repeal of a statute is at issue, we examine legislative history to analyze whether the legislature intended to reinstate the common law authority of courts to impose consecutive sentences. See Opinion of the Justices, 121 N.H. 429, 432, 430 A.2d 188 (1981). In addition, the statutory scheme remaining after the repeal of former RSA 651:3, III is subject to more than one reasonable interpretation, further necessitating review...
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