State v. Bobola, 2015–0305

• Decision Date: 07 April 2016
• Docket Number: No. 2015–0305,2015–0305
• Citation: 168 N.H. 771,138 A.3d 519
• Parties: The STATE of New Hampshire v. Timothy BOBOLA
• Court: New Hampshire Supreme Court

168 N.H. 771

138 A.3d 519

The STATE of New Hampshire

v.Timothy BOBOLA

No. 2015–0305

Supreme Court of New Hampshire.

Submitted: January 7, 2016

Opinion Issued: April 7, 2016

Joseph A. Foster, attorney general (Colleen Laffin, attorney, and Stephen D. Fuller, senior assistant attorney general, on the brief), for the State.

The Law Offices of Martin & Hipple, PLLC, of Concord (Seth J. Hipple on the brief), for the defendant.

LYNN, J.

The defendant, Timothy Bobola, appeals a decision of the Superior Court (Anderson, J.) denying his petition to annul a criminal conviction for second degree assault (assault conviction) and a second degree assault charge that did not result in a conviction (assault charge). See RSA 651:5 (Supp. 2015) (amended 2015). On appeal, he argues that the trial court erred by denying his petition to annul on the basis that he had a conviction for driving under the influence (DUI) on his record that was ineligible for annulment. We affirm.

The record supports the following facts. On October 1, 2002, the defendant was indicted on two counts of second degree assault. Both charges alleged that, on June 9, 2002, the defendant struck the same victim in the head using his fists. On November 17, 2003, the day that the defendant's trial was scheduled to begin, the State entered a nolle prosequi on one of the charges. Following trial, a jury convicted the defendant on the remaining charge.

On March 12, 2004, the trial court sentenced the defendant to serve two to four years in the New Hampshire State Prison. The court also ordered him to pay restitution to the victim. In 2007, the court rescinded the remainder of the restitution payments.

On May 12, 2008, the defendant pleaded guilty to DUI, first offense. The trial court sentenced the defendant to pay a $600 fine and complete the Impaired Driver Intervention Program, and suspended his license for nine months. The license suspension was later reduced to three months.

On February 12, 2015, the defendant petitioned the superior court to annul the assault conviction and assault charge. The State objected, citing the defendant's DUI conviction. The trial court denied the defendant's petition regarding the assault conviction "for the reasons stated by the State and more specifically, the 2008 [DUI] conviction." The trial court also denied the petition to annul the assault charge "for the reasons articulated in [the file bearing the assault conviction docket number]." This appeal followed.

The defendant first argues that the trial court erred by concluding that the DUI conviction bars annulment of the assault conviction. Specifically, the defendant argues that "nothing in New Hampshire law requires that all parts of a defendant's criminal record be annulment-eligible prior to other parts of the defendant's criminal record becoming annulment-eligible." The State counters that the trial court properly denied the defendant's petition because the DUI conviction is not yet eligible for annulment.

"Because resolution of this issue requires the interpretation of a statute, our review is de novo. " State v. Pinault, 168 N.H. 28, 31, 120 A.3d 913 (2015). "We are the final arbiter of the intent of the legislature as expressed in the words of the statute considered as a whole." United States v. Howe, 167 N.H. 143, 145, 106 A.3d 425 (2014) (quotation omitted). "When examining the language of the statute, we ascribe the plain and ordinary meaning to the words used." Id. (quotation omitted). "We interpret legislative intent from 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. (quotation omitted). "We also interpret a statute in the context of the overall statutory scheme and not in isolation." Id. (quotation omitted). "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. (quotation omitted).

" RSA 651:5 sets forth both procedural prerequisites and categorical bars to obtaining annulments." Id. at 146, 106 A.3d 425. Specifically, RSA 651:5, III states:

Except as provided in RSA 265–A:21 or in paragraphs V and VI, any person convicted of an offense may petition for annulment of the record of arrest, conviction, and sentence when the petitioner has completed all the terms and conditions of the sentence and has thereafter been convicted of no other crime, except a motor vehicle offense classified as a violation other than driving while intoxicated under RSA 265–A:2, I, RSA 265:82, or RSA 265:82–a for a period of time as follows:

(a) For a violation, one year, unless the underlying conviction was for an offense specified under RSA 259:39.

(b) For a class B misdemeanor except as provided in subparagraph (f), 3 years.

(c) For a class A misdemeanor except as provided in subparagraph (f), 3 years.

(d) For a class B felony except as provided in subparagraph (g), 5 years.

(e) For a class A felony, 10 years.

(f) For sexual assault under RSA 632–A:4, 10 years.

(g) For felony indecent exposure or lewdness under RSA 645:1, II, 10 years.

RSA 265–A:21, the statute referenced in the first sentence of RSA 651:5, III states, in relevant part, that "[n]otwithstanding the provisions of RSA 651:5, no court shall order an annulment of any record of conviction of driving ... while under the influence of intoxicating liquor or any controlled drug ... until 10 years after the date of conviction." RSA 265–A:21, I (2014). Additionally, RSA 651:5, VI states that "[i]f a person has been convicted of more than one offense, no petition for annulment shall be brought and no annulment granted ... [u]ntil the time requirements under paragraphs III and IV for all offenses of record have been met." RSA 651:5, VI(b). Thus, under RSA 651:5, VI, if a person is convicted of multiple offenses, he may not be granted an annulment as to any of the convictions until the time requirements of RSA 651:5, III are met for all the convictions. See id.

The defendant concedes that his DUI conviction was not eligible for an annulment when he filed his petition, because ten years had not passed since the conviction. However, he argues that this fact does not preclude annulment of the assault conviction, because all parts of his record, including the DUI conviction, meet the requirements of RSA 651:5, III. To support his argument, the defendant applies to his DUI conviction the three-year waiting period listed for a conviction of a class B misdemeanor generally. The State argues that, for DUI convictions, the language in RSA 651:5, III that references the ten-year annulment provision of RSA 265–A:21 is meant to replace the time period listed in RSA 651:5, III. We agree with the State.

The subparagraphs of RSA 651:5, III include several exceptions to the time periods expressed for a given offense classification. See RSA 651:5, III(a)–(d). For instance, a person convicted of a single class B misdemeanor, and no other crime, may not petition for an annulment until three years after the petitioner has completed all the terms and conditions of that sentence "except as provided in subparagraph (f)." RSA 651:5, III(b). RSA 651:5, III(f) states that a petitioner seeking to annul a conviction for sexual assault under RSA 632–A:4 must wait ten years after completing all terms and conditions of the sentence. Thus, if a person is convicted of class B misdemeanor sexual assault under RSA 632–A:4, the three-year waiting period generally applicable to class B misdemeanors under RSA 651:5, III(b) is replaced with a ten-year waiting period, pursuant to subparagraph (f).

Similarly, paragraph III states that "[e]xcept as provided in RSA 265–A:21 or in paragraphs V and VI," a petition for annulment may be filed after all the terms and conditions of the sentence have been completed for the specified time periods. RSA 651:5, III. RSA 265–A:21 requires a ten-year waiting period after conviction before a DUI conviction becomes eligible for annulment. See RSA 265–A:21, I. Thus, as with the exceptions provided in the subparagraphs, the phrase "[e]xcept as provided in RSA 265–A:21" alters the waiting period for an annulment of a DUI conviction to ten years. That the phrase appears in the introductory portion of paragraph III, and not in a subparagraph, does not persuade us that the legislature intended to treat the two identical phrases differently. Its placement outside of any specific subparagraph is logical given that RSA 265–A:21, I, applies to all DUI convictions, which span multiple offense classifications. See generally RSA 265–A:18 (2014) (stating that, depending upon the circumstances, a DUI offense might be classified as a violation, class A or B misdemeanor, or class B felony).

Under the defendant's interpretation, the ten-year waiting provision of RSA 265–A:21, I, applies only to the annulment of the DUI conviction itself, but the three-year waiting period, applicable to class B misdemeanors generally, applies to his DUI conviction when, as here, he is seeking to annul other parts of his criminal record. To interpret the statute in this way would require us to ignore the language "[e]xcept as provided in" as used in paragraph III. RSA 651:5, III. We decline to do so, as "[w]e must give effect to all words in a statute." Petition of State of N.H. (State v. Milner), 159 N.H. 456, 457, 986 A.2d 592 (2009).

The defendant argues that the phrase "[e]xcept as provided in RSA 265–A:21" in RSA 651:5, III "is meant to clarify that the two statutes are meant to be read harmoniously." This argument ignores the plain meaning of the word "except," which is "with the exclusion ... of." Webster's Third New International Dictionary 791 (unabridged ed. 2002). Thus, by creating an exception for RSA 265–A:21, paragraph III incorporates the ten-year waiting period into the statute. Because the defendant acknowledges that the ten-year waiting period on his...