State v. Balch

• Court: New Hampshire Supreme Court
• Writing for the Court: HICKS, J.
• Citation: State v. Balch, 167 N.H. 329, 111 A.3d 672, No. 2013-392 (N.H. Jan 29, 2015)
• Decision Date: 29 January 2015
• Docket Number: No. 2013-392,2013-392
• Parties: The STATE of New Hampshire v. Kevin BALCH

167 N.H. 329

111 A.3d 672

The STATE of New Hampshire

v.Kevin BALCH

No. 2013-392

Supreme Court of New Hampshire.

Argued: May 15, 2014

Opinion Issued: January 29, 2015

Joseph A. Foster, attorney general (Lisa L. Wolford, assistant attorney general, on the brief and orally), for the State.

Christopher M. Johnson, chief appellate defender, of Concord, on the brief and orally, for the defendant.

HICKS, J.

After a jury trial in Superior Court (Bornstein, J.), the defendant, Kevin Balch, was convicted on two counts of burglary, six counts of receiving stolen property, and six counts of violating the armed career criminal statute. RSA 635:1 (2007) (amended 2014); RSA 637:7 (2007); RSA 637:11 (2007) (amended 2010); RSA 159:3–a (2014). On appeal, the defendant challenges the sentence imposed pursuant to the armed career criminal statute, RSA 159:3–a, and argues that the trial court erred by construing it to: (1) permit a conviction and sentence for each individual firearm he possessed on a single occasion; (2) require that each sentence be served consecutively rather than concurrently; and (3) prohibit the trial court from deferring some or all of said sentences. We affirm.

The record reflects the following facts. On May 16, 2013, the trial court sentenced the defendant to: three and a half to seven years in state prison for each count of burglary, to be served concurrently with each other but consecutively with the last RSA 159:3–a sentence; 10 to 20 years for each count of violating RSA 159:3–a, to be served consecutively with each other and the burglary sentences; and a suspended sentence of 7.5 to 15 years for each count of receiving stolen property. The total prison sentence range is 63.5 to 127 years—essentially a sentence of imprisonment for life. During the sentencing hearing, both the State and the trial court expressed the belief that RSA 159:3–a requires the sentences to run consecutively to each other and to sentences imposed for other convictions. The defendant's attorney argued that imposing such a severe sentence for class B felonies is unconstitutional. The court rejected the constitutional challenge and cited the statutory requirements as one of the factors in determining the defendant's sentence. This appeal followed.

On appeal, the defendant raises a single issue for our consideration: whether the trial court erred in interpreting RSA 159:3–a to require the imposition of six consecutive sentences based upon his six convictions arising from an incident in which he possessed six firearms on a single occasion. In addressing that issue, the defendant argues: (1) that the legislature intended the "unit of prosecution" under RSA 159:3–a to be each occurrence of possession rather than each individual firearm; (2) that sentences imposed under RSA 159:3–a can be served concurrently; and (3) that RSA 159:3–a permits trial courts to defer sentences imposed under that statute. The defendant admits that these arguments were neither raised before nor addressed by the trial court, but he asks us to review them to determine whether the trial court's interpretation and application of law constituted plain error. See Sup.Ct. R. 16–A.

The plain error rule allows us to consider errors not brought to the attention of the trial court. State v. Almodovar, 158 N.H. 548, 553, 969 A.2d 479 (2009). Nevertheless, the rule should be used sparingly, its use limited to those circumstances in which a miscarriage of justice would otherwise result. Id. For us to find error under the rule: (1) there must be an error; (2) the error must be plain; (3) the error must affect substantial rights; and (4) the error must seriously affect the fairness, integrity, or public reputation of judicial proceedings. Id.

All of the defendant's arguments challenge the trial court's interpretation and application of RSA 159:3–a. To resolve these challenges, we must engage in statutory interpretation. See State v. Ravell, 155 N.H. 280, 282, 922 A.2d 685 (2007). The interpretation of a statute is a question of law, which we review de novo. State v. Dor , 165 N.H. 198, 200, 75 A.3d 1125 (2013). We are the final arbiters of the legislature's intent as expressed in the words of the statute considered as a whole.

Id. When we interpret a statute, we look first to the statute's language, and, if possible, construe that language according to its plain and ordinary meaning. Id. We do not read words or phrases in isolation, but in the context of the entire statutory scheme. Id. Our goal is to apply statutes in light of the legislature's intent in enacting them, and in light of the policy sought to be advanced by the entire statutory scheme. Id . We will not consider what the legislature might have said or add language that the legislature did not see fit to include. Smith v. City of Franklin , 159 N.H. 585, 588, 987 A.2d 127 (2010). This enables us 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. LLK Trust v. Town of Wolfeboro , 159 N.H. 734, 736, 992 A.2d 666 (2010).

We first consider whether RSA 159:3–a defines the unit of prosecution as each individual firearm that a defendant possesses rather than each individual instance of possession regardless of the number of firearms possessed. RSA 159:3–a provides, in relevant part:

No person who has been convicted of any combination of 3 or more felonies in this state or any other state under homicide, assault, sexual assault, arson, burglary, robbery, extortion, child pornography, or controlled drug laws, shall own or have in his possession or under his control, a pistol, revolver, rifle, shotgun, or any other firearm.

RSA 159:3–a, I (emphasis added). This language is nearly identical to language used in New Hampshire's felon-in-possession statute, RSA 159:3 (2014), which provides that:

A person is guilty of a class B felony if he:

(a) Owns or has in his possession or under his control, a pistol, revolver, or other firearm ... and

(b) Has been convicted in either a state or federal court in this or any other state ... of [certain felonies].

RSA 159:3, I (emphasis added). We have held that the emphasized language in RSA 159:3 defines the unit of prosecution as each individual firearm possessed by a qualifying felon. State v. Stratton, 132 N.H. 451, 455, 567 A.2d 986 (1989). The defendant contends that, despite the similarity in language, we need not conclude that the legislature intended the same unit of prosecution for RSA 159:3–a as it did for RSA 159:3. We disagree.

We generally assume that whenever the legislature enacts a provision, it has in mind previous statutes relating to the same subject matter. State Employees Assoc. of N.H. v. N.H. Div. of Personnel, 158 N.H. 338, 345, 965 A.2d 1116 (2009). Thus, unless the context indicates otherwise, words or phrases in a provision that were used in a prior act pertaining to the same subject matter will be construed in the same sense. Id. Here, RSA 159:3–a appears in the same chapter immediately after RSA 159:3, both statutes relate to the same subject matter, both statutes define felonious conduct, and both statutes have the same goal of preventing convicted felons from possessing firearms. Although, as the defendant correctly contends, RSA 159:3–a was enacted before we decided Stratton, and although it imposes harsh penalties upon career criminals who possess firearms, we are not persuaded that these considerations require us to interpret the language in RSA 159:3–a differently from the effectively identical language in RSA 159:3.

Deciding whether to impose a mandatory penalty for a criminal act is a policy decision that the New Hampshire Constitution empowers the legislature to make. State v. Dean, 115 N.H. 520, 523, 345 A.2d 408 (1975). The wisdom and reasonableness of the legislative scheme are for the legislature, not the courts, to determine, and disputes regarding such should be addressed to the General Court. Blackthorne Group v. Pines of Newmarket, 150 N.H. 804, 810, 848 A.2d 725 (2004). Accordingly, we conclude that the plain language of RSA 159:3–a demonstrates that the legislature intended to adopt each individual firearm possessed as the unit of prosecution under RSA 159:3–a.¹

Furthermore, we find no justification for overruling our decision in Stratton. The doctrine of stare decisis demands respect in a society governed by the rule of law, for when governing legal standards are open to revision in every case, deciding cases becomes a mere exercise of judicial will with arbitrary and unpredictable results. State v. Quintero, 162 N.H. 526, 532, 34 A.3d 612 (2011). Nevertheless, we will on rare occasion overrule past decisions. See, e.g., id. at 538, 34 A.3d 612. The key question in determining whether to overrule a prior decision is not whether we disagree with it, but whether it "has come to be seen so clearly as error that its enforcement was for that very reason doomed." State v. Perry, 166 N.H. ––––, ––––, 103 A.3d 784 (2014). We consider four factors in determining whether a prior decision has come to be seen as clear error: (1) whether the rule has proven to be intolerable simply by defying practical workability; (2) whether the rule is subject to a kind of reliance that would lend a special hardship to the consequences of overruling; (3) whether related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine; and (4) whether facts have so changed, or come to be seen so differently, as to have robbed the old rule of significant application or justification. Quintero, 162 N.H. at 533, 34 A.3d 612. Evaluation of the four factors requires balancing the various interests involved because no single factor is dispositive and the factors are not meant to be "rigidly applied or blindly followed." Id.

The defendant concedes that factor (4) is inapplicable. Accordingly we will limit our analysis to...