State v. Horner, 2004–831.

CourtSupreme Court of New Hampshire
Writing for the CourtDALIANIS, J.
Citation893 A.2d 683,153 N.H. 306
Parties The STATE of New Hampshire v. Philip S. HORNER.
Docket NumberNo. 2004–831.,2004–831.
Decision Date15 March 2006

153 N.H. 306
893 A.2d 683

The STATE of New Hampshire
v.
Philip S. HORNER.

No. 2004–831.

Supreme Court of New Hampshire.

Argued: Sept. 29, 2005.
Opinion Issued: March 15, 2006.

Rehearing Denied April 26, 2006.


893 A.2d 685

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

Michael J. Sheehan, of Concord, by brief and orally, for the defendant.

DALIANIS, J.

153 N.H. 307

The defendant, Philip Horner, appeals an order of the Superior Court (Nadeau, J.) dismissing without a hearing his motion to suspend a portion of his sentence. We affirm.

The record reflects the following uncontested facts. In April 2000, the defendant was convicted by a jury on five counts of sexual assault pursuant to RSA 632–A:3, III (Supp.2005). On each count, the trial court sentenced the defendant to three-and-one-half to seven years in the State Prison. All five sentences were made to run consecutively, but the fourth and fifth sentences were suspended.

On the third sentence, the trial court recommended that the defendant participate in the sexual offender program, adding, "2 ½ years of the minimum may be suspended upon successful completion of sexual offender [program]." At the sentencing hearing, the trial court explained:

And, Mr. Horner, as an additional incentive, I have already allowed you to petition for sentence suspension upon completion of the sexual offender program. The law also permits you to petition this Court after serving four years of your minimum, and demonstrate to this Court whether any portion of your minimum sentence may be suspended. And I want—though that is part of the law, I
893 A.2d 686
want to make it clear on the record that I will at least give you a hearing at that time if you so request.

The defendant served the minimum three-and-one-half years on his first sentence and was paroled to his second sentence in October 2003.

153 N.H. 308

Approximately four years after sentencing, on September 29, 2004, the defendant filed a Motion to Suspend Time for Successful Completion of Sexual Offender Program. The State objected, arguing that the defendant was not entitled to the relief requested in light of RSA 651:20 (Supp.2005), which provides in pertinent part:

I. Notwithstanding any other provision of law, except as provided in subparagraphs (a), (b), and (c), the sentence to imprisonment of any person may be suspended by the sentencing court at the time of imposition of the sentence or at any time thereafter in response to a petition to suspend sentence which is timely brought in accordance with the limitations set forth below in subparagraphs (a), (b), and (c).

(a) Any person sentenced to state prison shall not bring a petition to suspend sentence until such person has served at least 4 years or 2/3 of his minimum sentence, whichever is greater, and not more frequently than every 3 years thereafter.

....

(d) Petitions filed which do not meet the criteria in (a), (b), or (c) above shall be dismissed without a hearing.

The State argued that the defendant, having received a sentence of less than four years, was not entitled to sentence suspension, despite the language used by the sentencing court. The trial court, noting that it "[did] not have the statutory authority to suspend the sentence as it originally suggested it could," denied the defendant's motion.

The defendant raises five issues on appeal. First, he argues that the trial court conditionally suspended his third sentence and retained jurisdiction; thus, after the defendant had served four years, the trial court was required to hear his subsequent motion to suspend his sentence. Second, he argues that his consecutive sentences should be considered in the aggregate in applying the time limits in RSA 651:20, I(a). Third, he argues that the trial court violated the doctrine against judicial ex post facto decisions by reinterpreting RSA 651:20 to deny him a hearing, and thus violated due process. Fourth, he argues that the State is estopped from challenging the legality of his sentence because it did not object at the time of sentencing. Fifth, he argues that even if the original sentence was illegal, he is entitled to have it enforced by virtue of his detrimental reliance on the trial court's comments at sentencing. We address each argument in turn.

153 N.H. 309

The defendant's first and second arguments challenge the trial court's interpretation of RSA 651:20. In matters of statutory interpretation, we are the final arbiter of the intent of the legislature as expressed in the words of a statute considered as a whole. Petition of State of N.H. (State v. Fischer), 152 N.H. 205, 211, 876 A.2d 232 (2005). In interpreting a statute, we first look to the language of the statute itself and, if possible, construe that language according to its plain and ordinary meaning. Id. We review a trial court's interpretation of a statute de novo. Saviano v. Director, N.H. Div. of Motor Vehicles, 151 N.H. 315, 318–19, 855 A.2d 1278 (2004).

The defendant first argues that the trial court conditionally suspended his third sentence at the time of sentencing, and thus was required to hear his subsequent

893 A.2d 687

motion to suspend that sentence irrespective of the time limitations provided in RSA 651:20, I(a). The defendant relies in part upon the language in RSA 651:20, I, that authorizes the trial court to suspend a sentence "at the time of imposition of the sentence." The defendant argues that, in this case, at the time of imposition of the sentence, the trial court conditionally suspended two-and-one-half years of his third sentence upon successful completion of the sexual offender program. Accordingly, he argues that the trial court retained jurisdiction and the time limitations in RSA 651:20, I(a) do not apply.

The time limitations in RSA 651:20, I(a) are mandatory and cannot be waived by the trial court. See Fischer, 152 N.H. at 213, 876 A.2d 232. We have recognized that, despite the time limitations in RSA 651:20, I(a):

A court that is considering suspending a defendant's sentence, which does not believe that the defendant deserves an unconditional sentence suspension, but which believes that waiting [the full time period required by RSA 651:20, I(a) ] for the defendant to [file or] refile a petition would be unjust, may still possess procedurally correct options to accomplish its goal. For example, a court might issue an order in which it acts to suspend a defendant's sentence conditioned upon the occurrence of future events, such as the defendant demonstrating good behavior and completing treatment and/or education programs.

Id. However, the trial court here did not suspend the defendant's sentence conditioned upon the occurrence of a future event. Rather, the court at most created the opportunity for the defendant to return to court, prove that he had successfully completed the sexual offender program, and argue that the court should suspend two-and-one-half years from his minimum sentence. This opportunity to seek suspension of the sentence after its imposition is subject to the mandatory time limitations in RSA 651:20, I(a),

153 N.H. 310

which cannot be waived by the trial court at the time of the imposition of the sentence. See id. We thus reject the defendant's first argument.

The defendant next argues that where, as here, a defendant is sentenced to consecutive sentences, the "minimum sentence" under RSA 651:20, I(a) should be calculated by aggregating the minimum sentences for each consecutive sentence. He contends that his minimum sentence is, accordingly, three times three-and-one-half years, or ten-and-one-half years. Therefore, he argues that RSA 651:20, I(a) authorizes him to petition the court for a suspended sentence after he has served two-thirds of ten and one-half years, or seven years.

The State disputes the defendant's interpretation of RSA 651:20, I(a), arguing that each minimum sentence must be considered separately, and that, accordingly, the defendant must serve at least four years or two-thirds of the minimum of each of his minimum sentences, whichever is greater, before he can petition for suspension of that sentence. We agree.

Reviewing RSA chapter 651 as a whole, we are confident that the word "sentence" plainly and unambiguously denotes the punishment prescribed by a court in relation to a conviction on a single offense. See RSA 651:1, I (1996) ("The provisions of this chapter govern the sentencing for every offense ...."...

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13 practice notes
  • Washington v. Commissioner of Correction, No. 18057.
    • United States
    • Supreme Court of Connecticut
    • July 15, 2008
    ...513 U.S. 1002, 115 S.Ct. 516, 130 L.Ed.2d 422 (1994); Glenn v. Johnson, 761 F.2d 192, 194-95 (4th Cir. 1985) (same); State v. Horner, 153 N.H. 306, 312, 893 A.2d 683 (2006) (when practice "directly contravenes" statutory language, correction not unforeseeable). But cf. Knuck v. Wainwright, ......
  • State v. Lamy, No. 2008-189.
    • United States
    • Supreme Court of New Hampshire
    • April 8, 2009
    ...prove that D.E. was "another" as defined in the statute. We review a trial court's interpretation of a statute de novo. State v. Horner, 153 N.H. 306, 309, 893 A.2d 683 (2006). We are the final arbiters of the legislative intent as expressed in the words of the statute considered as a whole......
  • State v. Lamy, 2008–189.
    • United States
    • Supreme Court of New Hampshire
    • April 8, 2009
    ...prove that D.E. was "another" as defined in the statute. We review a trial court's interpretation of a statute de novo. State v. Horner, 153 N.H. 306, 309, 893 A.2d 683 (2006). We are the final arbiters of the legislative intent as expressed in the words of the statute considered as a whole......
  • State v. Moran, No. 2008-026.
    • United States
    • Supreme Court of New Hampshire
    • January 29, 2009
    ...court's power to suspend, provided that the sentencing process as a whole complies with the requirements of due process." State v. Horner, 153 N.H. 306, 313, 893 A.2d 683 (2006); see Burroughs, 113 N.H. at 24, 300 A.2d Prior to enacting RSA 651:20, the legislature limited to three years the......
  • Request a trial to view additional results
13 cases
  • Washington v. Commissioner of Correction, No. 18057.
    • United States
    • Supreme Court of Connecticut
    • July 15, 2008
    ...513 U.S. 1002, 115 S.Ct. 516, 130 L.Ed.2d 422 (1994); Glenn v. Johnson, 761 F.2d 192, 194-95 (4th Cir. 1985) (same); State v. Horner, 153 N.H. 306, 312, 893 A.2d 683 (2006) (when practice "directly contravenes" statutory language, correction not unforeseeable). But cf. Knuck v. Wainwright, ......
  • State v. Lamy, No. 2008-189.
    • United States
    • Supreme Court of New Hampshire
    • April 8, 2009
    ...prove that D.E. was "another" as defined in the statute. We review a trial court's interpretation of a statute de novo. State v. Horner, 153 N.H. 306, 309, 893 A.2d 683 (2006). We are the final arbiters of the legislative intent as expressed in the words of the statute considered as a whole......
  • State v. Lamy, 2008–189.
    • United States
    • Supreme Court of New Hampshire
    • April 8, 2009
    ...prove that D.E. was "another" as defined in the statute. We review a trial court's interpretation of a statute de novo. State v. Horner, 153 N.H. 306, 309, 893 A.2d 683 (2006). We are the final arbiters of the legislative intent as expressed in the words of the statute considered as a whole......
  • State v. Moran, No. 2008-026.
    • United States
    • Supreme Court of New Hampshire
    • January 29, 2009
    ...court's power to suspend, provided that the sentencing process as a whole complies with the requirements of due process." State v. Horner, 153 N.H. 306, 313, 893 A.2d 683 (2006); see Burroughs, 113 N.H. at 24, 300 A.2d Prior to enacting RSA 651:20, the legislature limited to three years the......
  • Request a trial to view additional results

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