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The State of New Hampshire v. Derrick C. Dimaggio

April 10, 2012

THE STATE OF NEW HAMPSHIRE
v.
DERRICK C. DIMAGGIO



The opinion of the court was delivered by: Dalianis, C.J.

a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme.

Argued: March 8, 2012

The defendant, Derrick C. DiMaggio, appeals the denial by the Superior Court (Vaughan, J.) of his motion for pretrial confinement credit for the approximately 471 days he participated in the Grafton County Drug Court Sentencing Program (Drug Court Program or Program). See State v. Belyea, 160 N.H. 298, 301-02 (2010) (generally describing the Drug Court Program). There is no dispute that he is entitled to credit for sixty-three days that he was incarcerated for failing to comply with the Program's rules. Rather, the parties dispute whether he is entitled to credit for days he was at liberty while a Program participant. We affirm.

The following facts are either undisputed or are derived from the record. In 2006, the defendant pleaded guilty to felony possession of heroin for which, in November 2006, he was sentenced to six months in jail and three years of probation. See RSA 318-B:2, I, :26, II (2011). His sentence stated that if he violated probation, his probation could be revoked and "any sentence within the legal limits for the underlying offense" could be imposed.

In July 2009, the defendant was alleged to have violated the terms of his probation by, among other things, using illegal drugs. On September 23, 2009, he pleaded true to the probation violations as part of a plea agreement under which he was sentenced to two and one-half to five years in state prison, all suspended for five years, with the following conditions:

[This] sentence is conditioned on good behavior, which shall include compliance with all terms and conditions of the Drug Court . . . Program. The balance of [the defendant's] probation shall be held in abeyance and shall resume upon termination. The defendant shall pay the balance of his supervision fees.

Any violation of the terms and conditions of the [Program] shall result in the imposition of sanctions . . . by the court as deemed fair and appropriate, consistent with statutory authority and the descriptions [of the Program] as outlined in the [Program] policy manual. . .

The defendant is placed in the custody of the Grafton County correctional facility so long as the defendant remains in the . . . Drug Court . . . Program or unless otherwise ordered by the court. The Grafton County Department of Corrections shall supervise the defendant while in the agency's custody according to the terms and conditions of the . . . Drug Court . . . Program and subject to any additional court orders.

In December 2010, the State moved to impose the defendant's suspended sentence because he had repeatedly violated the Drug Court Program's rules, and the Program had recommended that his participation be terminated. Following a hearing, the trial court found that the State had proved by a preponderance of the evidence that the defendant had violated the terms of his sentence by failing to comply with the Program's rules. See State v. LaPlaca, 162 N.H. 174, 179 (2011). The court, therefore, terminated his participation in the Program and remanded him to state prison to serve the balance of his sentence with credit for time served.

The defendant then filed a motion, which is the subject of this appeal, seeking "day-for-day credit toward his sentence" for the days he participated in the Drug Court Program while at liberty. The trial court denied that motion, and this appeal followed.

On appeal, the defendant contends that, pursuant to RSA 651:19 (Supp. 2011) and RSA 651:19-a (Supp. 2011), he was entitled to pretrial confinement credit for days he participated in the Program while at liberty. Resolving this issue requires that we engage in statutory interpretation, which is a question of law that we review de novo. State v. Gardner, 162 N.H. 652, 652-53 (2011). "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." State v. Burke, 162 N.H. 459, 461 (2011) (quotation omitted). "We construe provisions of the Criminal Code according to the fair import of their terms and to promote justice." Id. (quotation omitted); see RSA 625:3 (2007). We first look to the language of the statute itself, and, if possible, construe that language according to its plain and ordinary meaning. Burke, 162 N.H. at 461. "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. (quotation omitted). Moreover, we interpret a statute in the context of the overall statutory scheme and not in isolation. Id.

RSA 651:19 provides, in pertinent part:

A sentencing court may order any person who has been committed to a correctional institution other than state prison under a criminal sentence [to] be released therefrom for the purpose of obtaining and working at gainful employment . . . under the terms of a day reporting program, provided the correctional facility has a day reporting program, or to serve the sentence under a home confinement program, provided the correctional facility has a home confinement program. . . . Any part of the day spent in the free community, or in home confinement, under such a release order shall be counted as a full day toward the serving of the sentence unless otherwise provided by the court.

"Day Reporting Program[s]" in county correctional facilities are specifically governed by RSA 651:19-a. That statute allows "[t]he superintendent of a county correctional facility [to] establish a day reporting program in lieu of incarceration for certain offenders." RSA 651:19-a, I. In a "day reporting program," offenders are released into the community "for such terms or intervals of time and under such terms and conditions as may be permitted by the facility's rules and regulations or as the court may order." RSA 651:19-a, I. For the "terms or intervals of time" in which they are not at liberty, offenders are incarcerated. See id. Under RSA 651:19-a, I, as under RSA 651:19, "[a]ny part of a day spent in the free community under such a release order shall be counted as a full day toward the serving of the sentence unless otherwise provided by ...


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