In re State
| Decision Date | 12 May 2005 |
| Docket Number | No. 2003–757.,2003–757. |
| Citation | 876 A.2d 232,152 N.H. 205 |
| Court | New Hampshire Supreme Court |
| Parties | Petition of the STATE of New Hampshire (STATE v. FISCHER). |
Kelly A. Ayotte, attorney general (Peter K. Odom, assistant attorney general, on the brief), for the State.
David Fischer, by brief, pro se.
In this petition for writ of certiorari, the State of New Hampshire (State) seeks review of a decision of the Superior Court (Fauver , J.) to suspend two and one-half years of the defendant's sentence. See RSA 651:20, I (1996). We reverse.
In November 1996, the defendant, David Fischer, was convicted of attempted first-degree assault, see RSA 629:1 (1996); RSA 631:1 (1996), and witness tampering, see RSA 641:5 (1996). The Superior Court (Mohl , J.) imposed a sentence of seven and one-half to fifteen years on the attempted first-degree assault offense, and a consecutive sentence of three and one-half to seven years on the witness tampering offense. In February 2001, the defendant filed a petition for suspension of his sentence. On June 4, 2001, the court denied the petition, but it granted the defendant leave to refile his petition to suspend sentence after May 15, 2003.
On March 26, 2003, the defendant filed a second petition to suspend sentence. On June 18, 2003, the court issued an order scheduling a hearing and noting that the State had failed to respond to the defendant's petition. On June 25, 2003, the court received the State's objection, dated April 4, 2003, to the defendant's petition. The objection contained no explanation why a response had not been filed earlier. The objection did specify that a copy had been sent to the defendant's counsel, though defense counsel stated at the hearing that neither he nor the defendant ever received a copy of the objection.
On July 23, 2003, the court held a hearing, at which the State argued, for the first time, that the court lacked statutory authority under RSA 651:20, I, to hear the defendant's petition. The defendant objected on two grounds. First, he argued that the State had not filed a timely objection to his March 26, 2003 petition to suspend sentence. Second, he objected to the State's failure to raise the issue of the court's statutory authority under RSA 651:20, I, in its written objection.
As to the defendant's first objection, the court concluded that it would "find that the fact that [the State's written objection] did not enter into the file ... was certainly not an intentional matter by the county attorney's office; it could have been the court's filing; it could have been the county attorney's failure." The court allowed the hearing to continue, noting that the defendant had not been prejudiced in any way. As to the second objection, the court offered the defendant ten days to file a memorandum on the issue. The defendant did not file a memorandum.
On September 3, 2003, the court issued an order suspending two and one-half years of the defendant's witness tampering sentence. The court sent the order to the State in the form of a "Notice of Amendment to Sentence"; however, the notice was not signed or dated by the clerk of the court. On September 17, 2003, the State filed a motion for reconsideration of the court's order, which was denied on October 20, 2003. On November 19, 2003, the State filed a petition for writ of certiorari arguing that the trial court lacked statutory authority under RSA 651:20, I, to suspend the defendant's sentence.
We will first address the defendant's argument that the State's petition for writ of certiorari is untimely. Second, we will address the defendant's argument that the State is procedurally barred from contesting his petition. Third, we will address the State's argument that the trial court exceeded the statutory authority provided by RSA 651:20, I, when it accepted and granted the defendant's March 26, 2003 petition to suspend sentence. The final issue we will address is the defendant's argument that RSA 651: 20, I, is ambiguous and cannot be interpreted to bar his petition.
The defendant argues that the State's petition for writ of certiorari was not timely filed. Appeals by the State in criminal cases are normally governed by RSA 606:10 (2001). In the present case, however, RSA 606:10 does not provide the State with any recourse. Thus, the State petitioned this court to exercise its original jurisdiction. See RSA 490:4 (1997).
Petitions requesting this court to exercise its original jurisdiction are governed by Supreme Court Rule 11. Supreme Court Rule 11 does not contain a filing deadline. We have exercised our discretion in the past to bar petitions for writ of certiorari when such petitions were filed after an unreasonable period of time. We have ruled that the reasonable period for filing a petition for writ of certiorari should be determined by the appeal period set out in a substantially analogous statute or situation. Chauffeurs Local Union No. 633 v. Silver Bro's, Inc., 122 N.H. 1035, 1037, 453 A.2d 1292 (1982).
Like Supreme Court Rule 11, RSA 606:10, which governs appeals by the State, does not contain a filing deadline. With respect to RSA 606:10 appeals, we have stated: "Although the Supreme Court Rules do not specify a time limit for the filing of appeals by the State, they provide time limits for the filing of appeals generally." State v. Dukette, 145 N.H. 226, 228, 761 A.2d 442 (2000). "Because the policy behind time limits for appeals filed under our rules would similarly apply to RSA 606:10 appeals, ... appeals filed by the State pursuant to RSA 606:10 are subject to the same timeliness requirements that govern all supreme court appeals under Supreme Court Rules 7 – 9." Id.
RSA 606:10 appeals are substantially analogous to the petition for writ of certiorari in this case. As such, this petition should be governed by Supreme Court Rule 7, which provides time limits applicable to appeals under RSA 606:10. Cf . Dukette, 145 N.H. at 228, 761 A.2d 442 (applying Rule 7 to RSA 606:10 appeals). Supreme Court Rule 7(1) provides that a notice of appeal shall be filed within thirty days of a "decision on the merits," except that "[a] timely filed post-trial motion shall stay the running of the appeal period."
In this case, though the State did not file its appeal within thirty days of the court's September 3, 2003 decision, the State argues that its September 17, 2003, post-trial motion for reconsideration was timely filed and should stay the running of the appeal period. Superior Court Rule 59–A provides that "[a] motion for reconsideration ... shall be filed within ten (10) days of the date of the Clerk's written notice of the order or decision." (Emphasis added.) In this case, the State received a copy of the "Notice of Amendment to Sentence" on September 8, 2003. The notice, however, contained neither the signature of the clerk nor the date upon which the notice was issued. Instead, it merely contained the date of the order, September 3, 2003. The notice sent to the department of corrections, however, did contain the clerk's signature and the date of September 4, 2003.
The defendant argues that we should use the date of the order, September 3, 2003, or, in the alternative, September 4, 2003, as the date of the clerk's written notice of the order. Under such an analysis the State's motion for reconsideration would have been untimely, as September 17, 2003, is more than ten days after either September 3 or September 4. The defendant argues that the State's petition for writ of certiorari would then be untimely, as the appeal period would not have been stayed. The State, on the other hand, argues that the date that it received the notice, September 8, 2003, is the date from which it had ten days to file its motion for reconsideration, because the notice of the order that it received did not have a date. Using the State's analysis, its September 17, 2003 post-trial motion would have been timely, and would have stayed the running of the appeal period.
We need not determine which date to use for the purpose of calculating whether the State's motion for reconsideration was timely, because Supreme Court Rule 1 provides that we may suspend the requirements of our rules for good cause shown. Although it may have been advisable for the State to contact the court to clarify the date that it should use, and although under the 2003 version of Supreme Court Rule 21(6), then in effect, "[m]otions to extend time to file an appeal document and motions for late entry of an appeal document are not favored[,]" given the State's short delay in filing its motion for reconsideration, which was caused by confusion created by an error of the court, we hold that the State has demonstrated good cause to suspend the time limits for the filing of its petition.
Next, the defendant argues that the State is procedurally barred from contesting his petition on two grounds. First, he contends that the trial court erred by allowing the State to contest his March 2, 2003 petition because the State did not file an objection until June 25, 2003, and because that written objection did not argue that the court's order violated RSA 651:20, I. The defendant also argues that the State failed to send a copy of its objection to him or his counsel.
In order for the defendant to prevail on these arguments, he must demonstrate that the trial court's rulings were clearly untenable or unreasonable to the prejudice of his case. Rodriguez v. Webb, 141 N.H. 177, 179, 680 A.2d 604 (1996). Here the defendant has not argued that he has suffered any prejudice from the trial court's rulings. Therefore, the defendant has not demonstrated that the court committed reversible error.
Secondly, the defendant argues that the State should have appealed the trial court's June 2001 order, in which the court granted the defendant leave to refile his petition after May 15, 2003, or at least should have filed a motion for reconsideration from...
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