State v. Carpentino

• Decision Date: 14 January 2014
• Docket Number: No. 2012–632,2012–632
• Citation: 85 A.3d 906,166 N.H. 9
• Parties: The STATE of New Hampshire v. Kurt CARPENTINO
• Court: New Hampshire Supreme Court

166 N.H. 9

85 A.3d 906

The STATE of New Hampshire

v.Kurt CARPENTINO

No. 2012–632

Supreme Court of New Hampshire.

Argued: September 19, 2013

Opinion Issued: January 14, 2014

Michael A. Delaney, attorney general (Nicholas Cort, assistant attorney general, on the brief and orally), for the State.

Desmeules, Olmstead & Ostler, of Norwich, Vermont (George H. Ostler and Christopher A. Dall on the brief, and Mr. Ostler orally), for the defendant.

LYNN, J.

The defendant, Kurt Carpentino, appeals an order of the Superior Court (Arnold, J.) denying his motion to amend one of his sentences, originally imposed in 2003, based upon an amendment to RSA 632–A:4 (Supp.2002) (amended 2003, 2005, 2008, 2010) that took effect after the offense but before his conviction became final. We affirm.

I

The pertinent facts are undisputed on appeal. In 2003, the defendant was found guilty of, among other charges, aggravated felonious sexual assault (AFSA), for which he was sentenced to serve 3 1/2 to 20 years in prison. The conviction was based upon an indictment that charged the defendant with AFSA under RSA 632–A:2, III, which provides that "[a] person is guilty of aggravated felonious sexual assault when such person engages in a pattern of sexual assault against another person, not the actor's legal spouse, who is less than 16 years of age." RSA 632–A:2, III (1996). "Pattern of sexual assault" is defined by statute as "committing more than one act under RSA 632–A:2 [the AFSA statute] or RSA 632–A:3 [the felonious sexual assault (FSA) statute], or both, upon the same victim over a period of 2 months or more and within a period of 5 years." RSA 632–A:1, I-c (1996). A person convicted of AFSA may be sentenced to a maximum of twenty years and a minimum of not more than one half of the maximum sentence. RSA 632–A:10–a, I(b) (2007). The indictment alleged a pattern of assault occurring between January 1, 2001, and December 27, 2001, consisting of "sexual penetration, against another, ... who was then and there more than 13 years but less than 16 years old, and not his legal spouse." See RSA 632–A:3, II (1996) (amended 2006, 2008). During this period of time the defendant was seventeen or eighteen years old and the victim was fourteen or fifteen years old. The age difference between the two was less than three years.

In 2003, the legislature repealed and reenacted RSA 632–A:4, which defines misdemeanor sexual assault. Laws 2003, 316:7 (2003 Amendment). Among other things, the reenacted statute added subparagraph I(b), making the act of "engag[ing] in sexual penetration with a person, other than the actor's legal spouse, who is 13 years of age or older and under 16 years of age where the age difference between the actor and the other person is 3 years or less," a class A misdemeanor. Id. A person convicted of a class A misdemeanor may be sentenced to a maximum term of one year in prison. RSA 651:2, II(c) (2007). The 2003 Amendment took effect on January 1, 2004. Laws 2003, 316:10, I. Although the addition of subparagraph I(b) to RSA 632–A:4 apparently was intended to remove the conduct described therein from the purview of RSA 632–A:3, the legislature did not amend the latter statute until 2006, when it narrowed the scope of RSA 632–A:3, II to apply only "where the age difference between the actor and the other person is 3 years or more." Laws 2006, 162:1.

The defendant's conviction became final on May 5, 2004, when this court affirmed it by order. On March 30, 2012, he filed a motion to amend sentence, in which he urged that his conviction be treated as a misdemeanor based upon the fact that the 2003 Amendment took effect before his conviction was final.¹ The trial court denied the motion, and this appeal followed.

II

The defendant argues that his sentence should be reduced because he is entitled to the retroactive application of the 2003 Amendment to RSA 632–A:4. He asserts that, because the legislature intended to reduce the penalty for sexual penetration between teenagers by making the offense a class A misdemeanor, his sentence should be amended to reflect the new, lesser punishment. More specifically, he argues that he should not be required to serve a sentence for pattern AFSA because, he contends, the 2003 Amendment removed his conduct from the ambit of the FSA statute, the putative violations of which constituted the predicate acts for the pattern charge. We disagree.

Resolution of this issue turns upon whether our savings statute, RSA 21:38 (2012), precludes the retroactive application of an ameliorative sentencing amendment to a criminal conviction that has not yet become final when the amendment takes effect. RSA 21:38 (2012) states: "No suit or prosecution, pending at the time of the repeal of any act, for any offense committed or for the recovery of a penalty or forfeiture incurred under the act so repealed, shall be affected by such repeal." We review matters involving statutory interpretation de novo . State v. Hayden, 158 N.H. 597, 599, 972 A.2d 1043 (2009). To determine a statute's meaning, we first examine its language, and ascribe the plain and ordinary meaning to the words used. Chatman v. Brady, 162 N.H. 362, 365, 33 A.3d 1103 (2011) ; see RSA 21:2 (2012). We interpret legislative intent from the statute as written and will neither consider what the legislature might have said nor add language that the legislature did not see fit to include. Chatman, 162 N.H. at 365, 33 A.3d 1103. We interpret a statute in the context of the overall statutory scheme and not in isolation. Id. ; see RSA 21:1 (2012). Our goal is to apply statutes in light of the legislature's intent in enacting them and the policy sought to be advanced by the entire statutory scheme. Chatman, 162 N.H. at 365, 33 A.3d 1103. Further, we construe provisions of the Criminal Code according to the fair import of their terms and to promote justice. RSA 625:3 (2007). We are the final arbiters of the legislative intent as expressed in the words of the statute considered as a whole. Chatman, 162 N.H. at 365, 33 A.3d 1103.

As a general rule, a newly amended criminal statute applies to offenses committed after its enactment, but the prior statute remains applicable to all offenses committed prior to the amendment's effective date. State v. Sampson, 120 N.H. 251, 254, 413 A.2d 590 (1980). The Ex Post Facto Clauses of the United States and New Hampshire Constitutions prohibit both prosecution for conduct that did not constitute an offense at the time it occurred and imposition of punishment greater than that authorized by the law in effect at the time a crime was committed. See U.S. CONST. art. I, § 9, cl. 3 ; § 10, cl. 1 ; N.H. CONST. pt. I, art. 23 ; Holiday v. United States, 683 A.2d 61, 66 (D.C.1996).

"On the other hand, if the repealing legislation enacted more lenient sentencing options, the ex post facto clause[s] did not prohibit courts from continuing the prosecution and applying a new ameliorative sentencing scheme to pending cases." Holiday , 683 A.2d at 66 ; see Sekt v. Justice's Court of San Rafael Tp. , 26 Cal.2d 297, 159 P.2d 17, 21 (1945) (retroactive application of mitigating statutes "is not complicated by the prohibition against ex post facto laws, since it is well settled that beneficial legislation is not within the prohibition of the constitutional provision").

However, although there is no constitutional prohibition against the retroactive application of legislation that reduces the punishment for a previously committed crime, the common law theory of abatement by repeal remained as an obstacle to achieving this result. The theory holds that "the repeal of a criminal statute abate[s] all prosecutions which had not reached final disposition in the highest court authorized to review them." Bradley v. United States, 410 U.S. 605, 607, 93 S.Ct. 1151, 35 L.Ed.2d 528 (1973) ; see People v. Oliver, 1 N.Y.2d 152, 151 N.Y.S.2d 367, 134 N.E.2d 197, 200–01 (1956) ("At common law, it was generally held that the repeal or amendment of a penal statute barred any further prosecution under that statute for violations committed before the repeal, and abated all pending prosecutions which had not reached final judgment." (citations omitted)); see also Sekt, 159 P.2d at 21 ; Holiday, 683 A.2d at 66–67. Under the common law rule, the abatement theory applied even to situations where a statute was repealed and re-enacted with reduced penalties. See Bradley, 410 U.S. at 607–08, 93 S.Ct. 1151 ; Comment, Today's Law and Yesterday's Crime: Retroactive Application of Ameliorative Criminal Legislation, 121 U. Pa. L.Rev. 120, 125–26 (1972) (citing cases).

In the absence of a specific savings clause in the legislation that effectuates the repeal, the theory of abatement carries an obvious potential for injustice: the prospect that crimes committed before the effective date of a statutory amendment would go entirely unpunished even though (as evidenced by the terms of the new legislation applicable prospectively) the legislature quite obviously had no intention of removing the conduct at issue from the ambit of the criminal law. In response to this common law doctrine, New Hampshire was one of many states that enacted a general savings statute abrogating the common law theory of abatement. See RSA 21:38 ; Holiday, 683 A.2d at 66–67 ; Comment, Today's Law, supra at 127–28 & n. 51. Savings clauses " ‘save[ ]’ pending or future prosecutions of crimes committed under a repealed or amended statute from being abated." State v. Cummings, 386 N.W.2d 468, 470 (N.D.1986) ; see also People v. Schultz, 435 Mich. 517, 460 N.W.2d 505, 510 (1990) ; Oliver, 151 N.Y.S.2d 367, 134 N.E.2d at 201. Under RSA 21:38, "[n]o suit or prosecution, pending at the time of the repeal of any act, for any offense committed or for the recovery of a penalty or forfeiture incurred under the act so repealed, shall be affected by such repeal."² Of course, the savings statute is intended only as a general rule of...