The opinion of the court was delivered by: Lynn, J.
Argued: September 12, 2012
The defendant, Jonathan Charest, appeals the sentence imposed by the Superior Court (Brown, J.) pursuant to RSA 651:2, II-g (2007) (amended 2011) following his conviction by a jury for being a felon in possession of a firearm. See RSA 159:3, I (2002). We vacate and remand.
The record establishes the following facts. The defendant was convicted of being a felon in possession of a firearm, contrary to RSA 159:3, which states:
I. A person is guilty of a class B felony if he:
(a) Owns or has in his possession or under his control, a pistol, revolver, or other firearm, or slungshot, metallic knuckles, billies, stiletto, switchblade knife, sword cane, pistol cane, blackjack, dagger, dirk-knife, or other deadly weapon as defined in RSA 625:11, V; and
(b) Has been convicted in either a state or federal court in this or any other state . . . of:
(1) A felony against the person or property of another
A deadly weapon is "any firearm, knife or other substance or thing which, in the manner it is used, intended to be used, or threatened to be used, is known to be capable of producing death or serious bodily injury." RSA 625:11, V (2007).
After the jury returned a verdict of guilty on the felon-in-possession charge, the trial court asked the jury to issue a special verdict on whether it unanimously found that the defendant possessed, rather than controlled or owned, a firearm. The jury answered "yes." The trial court sentenced the defendant to three to six years' imprisonment. The court imposed the mandatory minimum sentence of three years under RSA 651:2, II-g, which applies "[i]f a person is convicted of a felony, an element of which is the possession . . . of a deadly weapon, and the deadly weapon is a firearm." At sentencing, the trial judge explained to the defendant, "You were just sentenced to the minimum. . . . I don't have any discretion . . . to do anything other than to sentence you . . . to . . . those terms."
The defendant does not appeal his conviction, but argues that the trial court erred when it imposed the minimum mandatory sentence under RSA 651:2, II-g because: (1) the offense he was charged with, RSA 159:3, I, does not have as an element the possession of a firearm in a manner that rendered it a deadly weapon under RSA 625:11, V; and (2) the jury did not find that he possessed a deadly weapon within the meaning of RSA 625:11, V. Because the defendant did not make these arguments before the trial court, he invokes the plain error rule, which allows us, under certain narrowly drawn circumstances, to correct errors not raised before the trial court. See Sup. Ct. R. 16-A.
For us to find plain error: (1) there must be error; (2) the error must be plain; and (3) the error must affect substantial rights. State v. Panarello, 157 N.H. 204, 207 (2008) (quotation and brackets omitted). If all three of these conditions are met, we may then exercise our discretion to correct a forfeited error only if the error meets a fourth criterion: the error must seriously affect the fairness, integrity, or public reputation of judicial proceedings. Id. The rule is used sparingly, however, and is limited to those circumstances in which a miscarriage of justice would otherwise result. Id. We find that all four criteria are met in this case.
We first address whether the trial court erred when it sentenced the defendant under RSA 651:2, II-g, which provides:
If a person is convicted of a felony, an element of which is the possession, use or attempted use of a deadly weapon, and the deadly weapon is a firearm, such person may be sentenced to a maximum term of 20 years' imprisonment in lieu of any other sentence prescribed for the crime. The person shall be given a minimum mandatory sentence of not less than 3 years'
imprisonment for the first offense . . . . Neither the whole nor any part of the minimum sentence imposed under this ...