In re State

175 N.H. 371

288 A.3d 431

PETITION OF the STATE of New Hampshire

No. 2021-0609

Supreme Court of New Hampshire.

Argued: June 23, 2022

Opinion Issued: August 12, 2022

John M. Formella, attorney general, and Anthony J. Galdieri, solicitor general (Elizabeth C. Woodcock, senior assistant attorney general, on the brief, and Anthony J. Galdieri on the brief and orally), for the State.

Kirsten Wilson Law, PLLC, of Portsmouth (Kirsten B. Wilson on the brief and orally), for the respondent.

DONOVAN, J.

This court accepted the State's Rule 11 petition for original jurisdiction to determine whether the Superior Court (Wageling, J.) erred by denying the State's petition to certify the respondent as an adult pursuant to RSA 169-B:24 (Supp. 2021) and remanding the case to the family division of the circuit court for further proceedings. We hold that the superior court erred by denying the State's certification petition, and reverse and remand.

I. Facts

The following facts are supported by the record or are otherwise undisputed. In August 2019, the State filed three juvenile delinquency petitions against the respondent in the family division charging him with one count of pattern aggravated felonious sexual assault (AFSA), one count of felonious sexual assault, and one count of indecent exposure. The AFSA petition alleged that the acts comprising the pattern offense occurred in Rockingham County on four specific dates: June 22, 2018; August 24, 2018; September 15, 2018; and May 27, 2019. When the petitions were filed, the alleged victim was six years old and the respondent was seventeen years old. The respondent turned eighteen in November 2019 and is presently twenty years old.

After filing the petitions, the State, pursuant to RSA 169-B:24, petitioned to certify the respondent as an adult and transfer the case to superior court. In November 2019, before the respondent's eighteenth birthday, the family division held a hearing on the petition to transfer. The State presented the testimony of a police sergeant who assisted in the investigation and who observed the alleged victim's two Child Advocacy Center (CAC) interviews, videos of which were included as part of the family division's record. In both CAC interviews, the alleged victim stated that, on several occasions at her grandparents’ home in Atkinson and at her own home in another county, the respondent open-mouth kissed her, rubbed her genitals, and exposed his genitals to her. She also provided statements consistent with the respondent having penetrated her during the vaginal-touching assaults.

Although the alleged victim stated that the respondent rubbed her genitals on more than one occasion at her grandparents’ house, she did not identify any specific dates or general time frame when these assaults occurred. Instead, her parents provided police with dates — verified through social media posts — when the alleged victim had recently visited her grandparents’ home and on which they believed the respondent had the opportunity to commit the assaults. These dates formed the basis of the pattern offense alleged in the AFSA petition. The State also introduced a handwritten note by the respondent — sent to the alleged victim's parents prior to the initiation of the police investigation — apologizing and expressing remorse for certain unidentified actions.

In November 2019, the family division granted the petition to certify the respondent as an adult and to transfer the case to the superior court. It determined that, because one of the petitions alleged an AFSA and because probable cause supported that charge, the presumption in favor of transfer set forth in RSA 169-B:24, IV applied. The family division then analyzed the eight factors set forth in RSA 169-B:24, I:

(a) The seriousness of the alleged offense to the community and whether the protection of the community requires transfer.

(b) The aggressive, violent, premeditated, or willful nature of the alleged offense.

(c) Whether the alleged offense was committed against persons or property.

(d) The prospective merit of the complaint.

(e) The desirability of trial and disposition of the entire offense in one court if the minor's associates in the alleged offense were adults who will be charged with a crime.

(f) The sophistication and maturity of the minor.

(g) The minor's prior record and prior contacts with law enforcement agencies.

(h) The prospects of adequate protection of the public, and the likelihood of reasonable rehabilitation of the minor through the juvenile court system.

RSA 169-B:24, I.

The family division concluded that, on balance, the eight criteria favored transfer. Specifically, the family division found that factors (a) through (c) supported transfer because the respondent's actions were serious, violent, and committed against a person. It further found that factors (f) and (h) supported transfer because the respondent was "mature for his age" and, at the time of the hearing, he was less than three weeks away from turning eighteen, which provided "insufficient time to implement any meaningful rehabilitation services."

As to factor (d) — the "prospective merit of the complaint," RSA 169-B:24, I(d) — the family division found that credible evidence supported the AFSA petition. The family division relied upon the alleged victim's statements describing the "numerous alleged sexual assaults" and credited the evidence demonstrating "that those assaults occurred over the period from June 2018 to May 2019." The family division found that only factors (e) and (g) did not favor transfer because no adult associates were involved in the alleged crimes and the respondent had no prior record. Moreover, the family division found that, even if the presumption did not apply, the State had met its burden of proving by a preponderance of the evidence that transfer was appropriate.

In December 2019, the State petitioned the superior court to accept the transfer. Due to restrictions caused by the COVID-19 pandemic, the superior court did not hold a hearing on the merits until August 2020. At the hearing, the superior court did not hear further evidence and instead relied upon the record established before the family division. Ultimately, the superior court denied the State's petition to transfer and remanded to the family division for rehearing.

The court ruled that "there was no probable cause" to support the State's pattern AFSA petition because "nothing in the evidence suggests [the respondent] and [the alleged victim] were together at the grandmother's house" on the dates alleged in the petition. The court also found that, "even if they were both there on one or more of those dates ... the evidence does not support that the [respondent] committed the acts alleged on or between those date[s]." Therefore, the court ruled that because there was no probable cause for the AFSA petition, the family division committed plain error in applying the presumption in favor of transfer. Furthermore, the court opined that the family division's order "would have erroneously taken" its finding of probable cause "into consideration when assessing the severity of the crimes." Therefore, the court ruled that the family division's findings with respect to some of the eight criteria set forth in RSA 169-B:24, I — with or without the presumption applied — were "erroneous as a matter of law."

On remand, the respondent disputed the jurisdiction of the family division to reconsider the certification issue. Ultimately, the family division accepted jurisdiction, and the respondent filed an interlocutory appeal challenging the family division's jurisdictional order. Thereafter, pursuant to Supreme Court Rule 11, the State petitioned this court for a writ of certiorari to review the superior court's denial of transfer. The respondent objected, arguing that the State's petition was untimely. We denied the respondent's objection and accepted the case.

II. Analysis

In support of its petition, the State argues that the superior court erred by rejecting the family division's findings and declining the State's petition to transfer pursuant to RSA 169-B:24. Certiorari is an extraordinary remedy that is not granted as a matter of right, but, rather, at the court's discretion. Petition of N.H. Div. of State Police, 174 N.H. 176, 180, 261 A.3d 283 (2021) ; see Sup. Ct. R. 11. Our review of a decision on a petition for writ of certiorari entails examining whether the superior court acted illegally with respect to jurisdiction, authority or observance of the law, or unsustainably exercised its discretion or acted arbitrarily, unreasonably, or capriciously. Petition of N.H. Div. of State Police, 174 N.H. at 180, 261 A.3d 283.

The standard for acceptance of certification by the superior court, and our scope of review, are identical and of a limited nature. In re Eduardo L., 136 N.H. 678, 683, 621 A.2d 923 (1993). Pursuant to RSA 169-B:24, the decision to transfer a juvenile to superior court for adult prosecution falls within the family division's sound discretion. Id. Accordingly, we review the family division's order to determine whether it fairly considered the factors set forth in RSA 169-B:24 and whether its decision is supported by the evidence and not erroneous as a matter of law. In re Erik M., 146 N.H. 508, 510, 775 A.2d 491 (2001). The superior court's review of the family division's order is similarly limited in scope. Id. We work from the same record as the superior court and, thus, owe no deference to that court's decision. Id.

As an initial matter, the respondent challenges the timeliness of the State's Rule 11 petition for original jurisdiction. Rule 11 does not specify a filing deadline. See Sup. Ct. R. 11. Nonetheless, as the respondent points out, we have previously exercised our discretion to bar petitions for writs of certiorari when such petitions were filed after an unreasonable period of time. See Petition of State of N.H. (State v. Fischer), 152 N.H....