State v. Cain

STATE OF NEW HAMPSHIRE v. ALEXANDER R. CAIN

218-2015-CR-680

STATE OF NEW HAMPSHIRE Rockingham, ss SUPERIOR COURT

November 19, 2015

ORDER

Defendant Alexander R. Cain is accused of Class B felony forgery. The indictment alleges Cain either altered a Superior Court return/mittimus or purposely uttered such a forgery with the intent to defraud. Cain has moved to dismiss the indictment on the ground that RSA 638:1,III and IV classify forgery of a return/mittimus as a Class B misdemeanor. With great reluctance, the court agrees with Cain's statutory analysis and therefore rules that the indictment alleges a Class B misdemeanor. However, the court stops short of dismissing the indictment. Cain's motion is GRANTED IN PART AS FOLLOWS:

1. The court rules that, as a matter of law, the conduct alleged in the indictment is a Class B misdemeanor;

2. This case shall proceed to trial or other disposition in Superior Court as a Class B misdemeanor;

3. This case shall be scheduled for a bench trial as the docket permits. Counsel shall notify the court within ten days of the clerk's notice of this order if they believe that the bench trial will last more than one day.

I. Orientation

Under New Hampshire's forgery statute, RSA 638:1, the grade of the offense depends entirely on the nature of the forged writing. Paragraphs III and IV of the statute provide as follows:

III. Forgery is a class B felony if the writing is or purports to be:

(a) A security, revenue stamp, or any other instrument issued by a government, or any agency thereof; or

(b) A check, an issue of stocks, bonds, or any other instrument representing an interest in or a claim against property, or a pecuniary interest in or claim against any person or enterprise.

IV. All other forgery is a class B misdemeanor.

The alleged writing in this case is a Superior Court return/mittimus. Tracking paragraph III of the statute, the indictment recites that the return/mittimus was "an instrument issued by the government." Thus, the indictment purports to be for a Class B felony.

Cain argues that, as a matter of law, a Superior Court return/mittimus is not "any other instrument issued by the government" within the meaning of RSA 638:1,III(a). Because no other statutory aggravator even arguably applies, Cain argues that the alleged offense is a Class B misdemeanor.

The resolution of Cain's argument requires the court to interpret the statutory text. This is, of course, a question of law. State v. Etienne, 163 N.H. 57, 71-72 (2011); State v. Breed, 159 N.H. 61, 64-65 (2009). The court's responsibility is to determine the intent of the legislature as expressed in the words of the statute considered as a whole. Etienne, 163 N.H. at 71-72; Breed, 159 N.H. at 64-65. In doing so, the court does not read statutory phrases and provisions in isolation, but rather "interpret[s] a statute in thecontext of the overall statutory scheme." State v. Kousounadis, 159 N.H. 413, 423 (2009).

The court must first look exclusively at the language of the statute itself, and, if possible, construe that language according to its plain and ordinary meaning. Etienne, 163 N.H. at 71-72; Breed, 159 N.H. at 64-65. The court's inquiry is limited to "the statute as written and [the court] will not consider what the legislature might have said or add language it did not see fit to include." Kousounadis, 159 N.H. at 423; see also, State v. Jennings, 159 N.H. 1, 3 (2009); State v. Hynes, 159 N.H. 187, 193 (2009); State v. Bernard, 158 N.H. 43, 44 (2008). As explained below, when the grammar or syntax of a statute allow for more than one reasonable interpretation, the court may employ one or more common law cannons of statutory construction to help break the log jam.

If the plain meaning of the statutory language can be determined from the black letter text, the analysis stops there. See, Etienne, 163 N.H. at 71-72 ("Absent an ambiguity we will not look beyond the language of the statute to discern legislative intent."). If, however, the statutory language is ambiguous, then—and only then—the court may consider the statute's legislative history. See, Matter of Lyon, 166 N.H. 315, 318 (2014) ("When the language of a statute is plain and unambiguous, we do not look beyond it for further indications of legislative intent. However, we review legislative history to aid our analysis when the statutory language is ambiguous or subject to more than one reasonable interpretation."); State v. Spade, 161 N.H. 248, 251 (2010) ("If a statute is ambiguous . . . we consider legislative history to aid our analysis. [citation 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."); Smith v. City of Franklin, 159 N.H. 585, 588 (2010); State v. Dansereau, 157 N.H. 596, 598 (2008);; State v. Lamy, 158 N.H. 511, 515 (2009); State v. Whittey, 149 N.H. 463, 467 (2003).

In construing provisions of the Criminal Code, the court is mindful that "[t]he rule that penal statutes are to be strictly construed does not apply[,]" . . . [and] [a]ll provisions of this code shall be construed according to the fair import of their terms and to promote justice." RSA 625:3. See, Breed, 159 N.H. at 64-65; State v. Lukas, 164 N.H. 693, 694 (2013); State v. Moran, 158 N.H. 318, 321 (2009); In re Petition of State of New Hampshire, 152 N.H. 185, 187, (2005). That said, the New Hampshire Supreme Court has nonetheless held that the common law rule of lenity has some continuing vitality if a Code provision remains ambiguous after all other efforts at statutory construction have failed. The rule of lenity holds that the court should resolve such stubborn ambiguities against a construction that would increase a statutory penalty. See e.g., Sate v. Dansereau, 157 N.H. 596, 602, (2008), applying the rule of lenity when the legislature's intent could not be determined by looking at the statutory language and legislative history, and holding that:

The rule of lenity serves as a guide for interpreting criminal statutes where the legislature failed to articulate its intent unambiguously. [citation omitted]. This rule of statutory construction generally holds that ambiguity in a criminal statute should be resolved against an interpretation which would increase the penalties or punishments imposed on a defendant. [citation omitted]. It is rooted in the instinctive distaste against men languishing in prison unless the lawmaker has clearly said they should. [citation omitted]. By applying the rule of lenity, we reject the impulse to speculate regarding a dubious legislative intent, and avoid playing the part of a mind reader.

(internal citations, quotation marks and bracketing omitted); See also, State v. Brooks, 164 N.H. 272, 292 (2012); In re Alex C., 161 N.H. 231, 239 (2010); State v. MacLeod, 141 N.H. 427, 434 (1996).

II. The Writing

The writing alleged in the indictment is a Superior Court return/mittimus. This is a document typically prepared by the clerk. When a defendant is sentenced to confinement, the mittimus instructs the warden of the state prison or the superintendent of a house of correction to safely keep the defendant according to the terms of the court's sentence. The sentence is either restated in the mittimus or incorporated via an attached copy of sentencing order.

The mittimus travels with the sentenced defendant to the prison or house of correction. The officer who transports the defendant certifies on the face of the mittimus that he or she has done so and then files a return copy with the court. Thus, when a defendant is sentenced to a committed term of confinement, a mittimus is the court's written instruction or command to the warden or jailer and a return is a copy of the mittimus signed by the officer who transported the defendant to the place of confinement.

The court issues a separate mittimus for each charge. Additionally, if a defendant is sentenced to confinement upon revocation of a suspended or deferred sentence or for a violation of probation, a new mittimus is issued and a new return is filed.

In other cases, where there is no committed term of confinement, the Superior Court often uses a document captioned as a "return/mittimus" (or "mittimus/return") toserve as the clerk's notice of the final disposition of a criminal charge. The document will indicate whether the charge was resolved by nol pros, dismissal, acquittal or conviction and, if the latter, the terms of the sentence (or it will reference copies of the sentencing orders that may be attached to the mittimus).

The Superior Court provides copies of each return/mittimus to the parties and, as may be applicable, to the Department of Corrections, Division of Field Services (i.e. 'probation'), the State Police Criminal Record Bureau and others. A return/mittimus is a public record available from the clerk's office upon request.

The New Hampshire Supreme Court has used the term "mittimus," consistent with the Superior Court's present day practice, to connote both an order of commitment and a description of a defendant's sentence. See e.g., State v. Ingerson, 130 N.H. 112, 116 (1987) (noting earlier cases in which a conditionally stayed sentence was brought forward without judicial involvement when the prosecutor "called for the mittimus"); State v. Pandelena, 161 N.H. 326, 332 (2010) (discussing the standard language used in a defendant's mittimus to describe the sentence); State v. Merrill, 160 N.H. 467, 472 (2010) (same). This usage is fairly close to the first two definitions of "mittimus" in Black's Law Dictionary:

1. A court order or warrant directing a jailer to detain a person until ordered otherwise;

2. A certified transcript of a prisoner's conviction or sentencing proceedings.

So understood, in a case involving a committed term of confinement a mittimus has some of the attributes of judicial process. It commands the warden or superintendent to keep the defendant...