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The State of New Hampshire v. Steven Forest

May 22, 2012

THE STATE OF NEW HAMPSHIRE
v.
STEVEN FOREST



The opinion of the court was delivered by: Hicks, 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: February 15, 2012

The defendant, Steven Forest, appeals the decision of the Superior Court (Garfunkel, J.) denying his request for pretrial confinement credit, see RSA 651-A:23 (2007), on his sentences for conspiracy to commit burglary and accomplice liability for burglary, see RSA 626:8 (2007); RSA 629:3 (2007); RSA 635:1 (2007). We affirm.

The record supports the following undisputed facts. In 2006, the defendant was convicted of conspiracy to possess a controlled drug with intent to sell, for which he received a sentence of one to five years at the New Hampshire State Prison, stand committed. On April 25, 2007, he was paroled to a drug counseling halfway house.

On July 8, 2007, the defendant was arrested on a parole violation warrant for various parole violations unrelated to the instant charges. At the time of his arrest, he was also a suspect in a June 24 burglary at the A-1 Gas Station in Goffstown. That same day or shortly thereafter, he was formally arrested on charges arising out of the burglary and he was unable to post bail. On July 25, a second parole violation warrant was issued in relation to the burglary charges. On July 27, the defendant waived his right to a preliminary parole violation hearing pending resolution of the burglary charges. Following his July 8 arrest, the defendant was initially housed at the Hillsborough County House of Corrections; however, at some point, he was transferred to the New Hampshire State Prison as a result of the parole violation warrants.

For reasons that are unnecessary to recount here, the burglary charges were not adjudicated until September 9, 2010. The parties agree that, at this point, the defendant had been incarcerated for 1,154 days. On June 25, 2009, he filed a motion seeking pretrial confinement credit toward any sentence on the burglary charges for the entire period of his incarceration following his arrest on July 8, 2007. The defendant argued that since he had not yet had a parole revocation hearing, his parole had not been revoked and, thus, the entire period of his incarceration constituted pretrial confinement on the burglary charges rather than any other sentence of confinement. See RSA 651- A:23. The State objected, and the trial court held a hearing on September 8, 2010.

At the hearing, the executive assistant to the adult parole board testified that, while the defendant has been incarcerated, he "has been credited all along . . . day for day. . . . He's continued to serve the maximum of [his underlying] sentence." He explained that the parole board "[u]sually" gives a parole violator credit against his original underlying sentence for time spent incarcerated "from the date of arrest" on a parole violation warrant until his parole revocation. However, he further indicated that, were a defendant to receive pretrial confinement credit on a new charge, "[m]ost of the time" the parole board takes the "position that [it] would be double dipping" to give the defendant the same credit on his underlying charge.

The court denied the defendant's motion, ruling that: the prison is giving [the defendant] credit on the sentence on which . . . the parole warrant was issued, and . . . [he is] receiving credit towards that . . . maximum sentence for each day that he spends at the New Hampshire State Prison, so that he is already receiving credit, as [RSA 651-A:19] provides, and . . . any additional credit would, in essence, be double credit, which the New Hampshire

Supreme Court has said is inappropriate.

That same day, the defendant pleaded guilty to the charges in this case as part of a plea agreement. Under the plea agreement, the defendant was sentenced on each charge to three and a half to seven years, stand committed, with all but six months of the minimum sentence suspended. The sentences run concurrent with one another but consecutive to any "parole setback." This appeal followed.

The defendant argues that the trial court improperly relied upon RSA 651-A:19 (2007) (amended 2010, 2011) and erred in denying him 1,154 days of pretrial confinement credit toward his burglary sentences pursuant to RSA 651-A:23. The defendant "does not argue that he is entitled to apply the 1,154- day credit toward both the sentence on the underlying charge and the burglary sentence." Rather, he contends that "[t]he mandate of RSA 651-A:23 is clear" that "[s]o long as a criminal defendant is incarcerated prior to sentencing and not under a sentence of confinement, the sentencing court must grant credit for the confinement." He maintains that here, he "was not under a sentence of confinement because his parole had not been revoked and he had not been recommitted to the prison"; thus, "at the time of his September 9, 2010 sentencing on the burglary indictments, he was entitled as a matter of law to the award of that time toward that sentence." We review the trial court's statutory interpretation de novo. Gentry v. Warden, N. N.H. Correctional Facility, 163 N.H. ___, ___, 37 A.3d 433, 435 (2012). We are the final arbiters of legislative intent as expressed in the words of the statute considered as a whole. Id. "We construe provisions of the Criminal Code according to the fair import of their terms and to promote justice." State v. Burke, 162 N.H. 459, 461 (2011) (quotation omitted); RSA 625:3 (2007). When interpreting a statute, we first look to the language of the statute itself, and, if possible, construe the language according to its plain and ordinary meaning. Gentry, 163 N.H. at ___, 37 A.3d at 435. We do not read words or phrases in isolation, but in the context of the entire statutory scheme. Id. When the language of a statute is plain and unambiguous, we do not look beyond it for further indications of legislative intent. Id.

The allocation of pretrial confinement credit is governed by RSA 651:3 (2007) and RSA 651-A:23. See State v. Mwangi, 161 N.H. 699, 702 (2011).

RSA 651:3, I, provides in pertinent part: "All the time actually spent in custody prior to the time [the defendant] is sentenced shall be credited in the manner set forth in RSA 651-A:23 against the maximum term of imprisonment that is imposed and against any minimum term authorized by RSA 651:2 or 6." RSA 651-A:23 provides in relevant part:

Any prisoner who is confined to the state prison, any house of correction, any jail or any other place shall be granted credit against both the maximum and minimum terms of his sentence equal to the number of days during which the prisoner was confined in jail awaiting and during trial ...


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