State v. Dansereau, 2007–552.

CourtSupreme Court of New Hampshire
Writing for the CourtDUGGAN, J.
Citation157 N.H. 596,956 A.2d 310
Parties The STATE of New Hampshire v. Michael DANSEREAU.
Docket NumberNo. 2007–552.,2007–552.
Decision Date15 August 2008

157 N.H. 596
956 A.2d 310

The STATE of New Hampshire
v.
Michael DANSEREAU.

No. 2007–552.

Supreme Court of New Hampshire.

Argued: June 26, 2008.
Opinion Issued: Aug. 15, 2008.


956 A.2d 311

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

James T. Brooks, assistant appellate defender, of Concord, on the brief and orally, for the defendant.

DUGGAN, J.

157 N.H. 597

The defendant, Michael Dansereau, appeals a ruling by the Trial Court (McGuire, J.) denying his motion to vacate his convictions and sentences. We hold that the defendant was unlawfully sentenced to an extended term of imprisonment under RSA 651:6, II(a) (2006) and three years probation under RSA 651:2, V(a) (2006). Accordingly, we vacate his sentence and remand for resentencing.

The following relevant facts are undisputed. On March 8, 2006, the defendant, pursuant to an agreement with the State, pleaded guilty to two counts of class A misdemeanor sexual assault. The Trial Court (Conboy, J.) sentenced the defendant in accordance with the plea agreement. On the first count, the defendant received twelve months stand committed. On the second count, the defendant received a consecutive, suspended sentence of two to five years under the extended term of imprisonment statute, RSA 651:6, II(a), with three years probation under RSA 651:2, V(a). This latter sentence was partly based upon the defendant's prior record, which included: (1) a 1983 conviction for which he received a sentence of three to ten years stand committed; (2) a 1989 conviction for which he received a suspended sentence of three and one-half to seven years; and (3) a 1993 conviction for which he received a suspended sentence of one and one-half to three years.

After serving the twelve-month sentence, the defendant was released on probation, during which time he was arrested for violating the conditions of his probation and for failing to register as a sex offender. The defendant subsequently moved to vacate both of his convictions and sentences, arguing that his sentence on the second count was illegal in two respects. First, he asserted that he was not eligible for an extended term of imprisonment because he had previously been sentenced to prison only once, not twice as required by RSA 651:6, II(a). Second, he contended that his three-year probation term violated RSA 651:2, V(a) because that statute

157 N.H. 598

authorizes a maximum probation term of only two years. As a result, the defendant claimed that his plea was not knowing, intelligent, and voluntary, and his sentence violated his due process rights under both the State and Federal Constitutions.

After a hearing, the trial court denied the defendant's motion. It ruled that, because the defendant's prior record included two convictions for which he received sentences in excess of one year, he was eligible for an extended term of imprisonment.

956 A.2d 312

The court did not address the legality of the three-year probation term.

On appeal, the defendant argues that: (1) the trial court erred in interpreting RSA 651:6, II(a) as allowing a suspended sentence to qualify as a predicate to an extended term of imprisonment; (2) the trial court erred in permitting the three-year probation period to stand; and (3) because his sentence was illegal, we should remand to the trial court for consideration of whether his plea was involuntary. The State concedes that the three-year probation term was illegal, but contends that the extended term of imprisonment was proper under RSA 651:6, II(a). The State also asserts that the correct remedy for any illegality in the defendant's sentence is to amend his sentence, not to allow him to withdraw his plea.

I

We first address the defendant's contention that the extended term of imprisonment was unlawful. Resolution of this issue requires us to interpret RSA 651:6, II(a). We are the final arbiters of the legislative intent as expressed in the words of the statute considered as a whole. State v. Langill, 157 N.H. 77, 84, 945 A.2d 1 (2008). We begin by examining the language of the statute, State v. Whittey, 149 N.H. 463, 467, 821 A.2d 1086 (2003), and ascribe the plain and ordinary meaning to the words used, Langill, 157 N.H. at 84, 945 A.2d 1. 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. We also interpret a statute in the context of the overall statutory scheme and not in isolation. Id. If a statute is ambiguous, however, we consider legislative history to aid our analysis. Whittey, 149 N.H. at 467, 821 A.2d 1086. 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 construe the Criminal Code provisions "according to the fair import of their terms and to promote justice." RSA 625:3 (2007); see State v. Foss, 148 N.H. 209, 211, 804 A.2d 462 (2002).

RSA 651:6, II(a) provides, in relevant part, that "[a] convicted person may be sentenced to [an extended term of imprisonment] if the court finds ... that such person ... [h]as twice previously been convicted in this state, or in another jurisdiction, on sentences in excess of one year." The

157 N.H. 599

defendant argues that this language is ambiguous because "a defendant is not normally said to have been ‘convicted on a sentence.’ " The State counters that the plain language of the statute "requires only proof of two convictions, each with a maximum sentence of more than one year." The State reasons that "[t]he phrase ‘sentences in excess of one year’ clearly refers to terms of imprisonment," and that "such a term may be suspended."

The plain language of RSA 651:6, II(a) requires a defendant to have "twice previously been convicted ... on sentences in excess of one year." (Emphasis added.) We agree with the defendant that, in normal parlance, a person is not "convicted on sentences." Rather, a person is convicted of a crime and then sentenced. Indeed, subsection (b) of RSA 651:6, II requires a defendant to have previously been "convicted of a violation" of a particular statutory provision, or "convicted of ... any crime" involving certain factual circumstances. Our review of the statutory scheme similarly reveals no other provisions using the terminology "convicted on sentences." Furthermore, a plain reading of the phrase "convicted on sentences" suggests that the sentences must have resulted

956 A.2d 313

in convictions, cf. State v. Kiewert, 135 N.H. 338, 349, 605 A.2d 1031 (1992) —a construction completely contrary to common sense. Accordingly, we agree with the defendant that, on its face, RSA 651:6, II(a) is ambiguous. We therefore review the legislative history to discern the intent behind this statutory language. Whittey, 149 N.H. at 467, 821 A.2d 1086.

Prior to 2003, the statutory scheme allowed a trial court to impose an extended term of imprisonment if the court found one of several factors. See RSA 651:6, I (2002). The factor relevant to this case permitted the trial court to extend the term of imprisonment if it found that the defendant had "twice previously been imprisoned, in this state or in any other jurisdiction, on sentences in excess of one year. " RSA 651:6, I(c) (2002) (emphases added). In applying this factor, the trial court needed to "make two findings: (1) two prior imprisonments, resulting from, (2) sentences in excess of one year." State v. Scognamiglio, 150 N.H. 534, 539, 842 A.2d 109 (2004). To meet the imprisonment requirement, the State needed to "establish that the defendant was in fact imprisoned on th[e] sentence"; that is, provide "evidence that the defendant was taken to a correctional facility." Id. at 540, 842 A.2d 109.

In 2003, the legislature altered the language in section I of the statute to provide that a convicted person may receive an extended term of imprisonment if a jury, not a court, finds certain facts beyond a reasonable doubt. Compare RSA 651:6, I (2004) with RSA 651:6, I (2002). The legislature, however, removed subsection (c), which allowed a court to impose an extended term of imprisonment if the court found that the

157 N.H. 600

defendant had "twice previously been imprisoned ... on sentences in excess of one year," RSA 651:6, I(c) (2002), from section I, and, after replacing the word "imprisoned" with "convicted," moved the subsection to a new section II. Compare RSA 651:6, II(a) (2004) with RSA 651:6, I(c) (2002). Section II, in turn, allows a court to impose an extended term of imprisonment if the court, not a jury,...

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18 practice notes
  • State v. Lamy, No. 2008-189.
    • United States
    • Supreme Court of New Hampshire
    • 8 avril 2009
    ...We are the final arbiters of the legislative intent as expressed in the words of the statute considered as a whole. State v. Dansereau, 157 N.H. 596, 598, 956 A.2d 310 (2008). We begin by examining the language of the statute, State v. Whittey, 149 N.H. 463, 467, 821 A.2d 1086 (2003), and a......
  • State v. Lamy, 2008–189.
    • United States
    • Supreme Court of New Hampshire
    • 8 avril 2009
    ...We are the final arbiters of the legislative intent as expressed in the words of the statute considered as a whole. State v. Dansereau, 157 N.H. 596, 598, 956 A.2d 310 (2008). We begin by examining the language of the statute, State v. Whittey, 149 N.H. 463, 467, 821 A.2d 1086 (2003), and a......
  • Lassonde v. Stanton, 2007–447.
    • United States
    • Supreme Court of New Hampshire
    • 15 août 2008
    ...under the rule of Harkeem v. Adams, 117 N.H. 687, 690–91, 377 A.2d 617 (1977) (litigation conducted in "bad faith" may justify award of 157 N.H. 596 counsel fees). We agree with the Stantons, however, that Lassonde failed to preserve this issue for our review, because he failed to raise it ......
  • State v. Russo, No. 2011–624.
    • United States
    • New Hampshire Supreme Court
    • 25 février 2013
    ...Supreme Court's decision in Apprendi 164 N.H. 597 v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). State v. Dansereau, 157 N.H. 596, 600, 956 A.2d 310 (2008). In doing so, it replaced the word "imprisoned" with "convicted" so that RSA 651:6, II(a) now provides that a cou......
  • Request a trial to view additional results
18 cases
  • State v. Lamy, No. 2008-189.
    • United States
    • Supreme Court of New Hampshire
    • 8 avril 2009
    ...We are the final arbiters of the legislative intent as expressed in the words of the statute considered as a whole. State v. Dansereau, 157 N.H. 596, 598, 956 A.2d 310 (2008). We begin by examining the language of the statute, State v. Whittey, 149 N.H. 463, 467, 821 A.2d 1086 (2003), and a......
  • State v. Lamy, 2008–189.
    • United States
    • Supreme Court of New Hampshire
    • 8 avril 2009
    ...We are the final arbiters of the legislative intent as expressed in the words of the statute considered as a whole. State v. Dansereau, 157 N.H. 596, 598, 956 A.2d 310 (2008). We begin by examining the language of the statute, State v. Whittey, 149 N.H. 463, 467, 821 A.2d 1086 (2003), and a......
  • Lassonde v. Stanton, 2007–447.
    • United States
    • Supreme Court of New Hampshire
    • 15 août 2008
    ...under the rule of Harkeem v. Adams, 117 N.H. 687, 690–91, 377 A.2d 617 (1977) (litigation conducted in "bad faith" may justify award of 157 N.H. 596 counsel fees). We agree with the Stantons, however, that Lassonde failed to preserve this issue for our review, because he failed to raise it ......
  • State v. Russo, No. 2011–624.
    • United States
    • New Hampshire Supreme Court
    • 25 février 2013
    ...Supreme Court's decision in Apprendi 164 N.H. 597 v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). State v. Dansereau, 157 N.H. 596, 600, 956 A.2d 310 (2008). In doing so, it replaced the word "imprisoned" with "convicted" so that RSA 651:6, II(a) now provides that a cou......
  • Request a trial to view additional results

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