Submitted October 16, 2013.
2d Circuit Court -- Lebanon District Division.
Joseph A. Foster, attorney general ( Nicholas Cort, assistant attorney general, on the brief), for the State.
Kenna & Sharkey, P.A., of Manchester ( Bruce E. Kenna on the brief), for the defendant.
HICKS, J. DALIANIS, C.J., and CONBOY, LYNN and BASSETT, JJ., concurred.
The defendant, Daniel C. Thompson, appeals a decision of the 2d Circuit Court -- Lebanon District Division ( Cirone, J.) denying his request for an appeal to superior court for a de novo jury trial and a decision of the Superior Court ( Vaughan, J.) denying his petition to allow a misdemeanor appeal. We affirm.
The following facts are supported by the record or are taken from our decision in a prior appeal in this case. See State v. Thompson, 164 N.H. 447, 58 A.3d 661 (2012). The defendant was convicted, following a bench trial in Lebanon District Court, of driving while intoxicated (DWI). See RSA 265-A:2, I (Supp. 2012) (amended 2012); Thompson, 164 N.H. at 448. The amended complaint against the defendant alleged two prior convictions, but the State did not enter evidence of those convictions at trial. Thompson, 164 N.H. at 448. Rather, the State sought to admit them, over the defendant's objection, at sentencing. Id. The trial court admitted the evidence and sentenced the defendant to enhanced penalties for a third DWI offense under RSA 265-A:18, IV(b). RSA 265-A:18, IV(b) (Supp. 2012) (amended 2012); Thompson, 164 N.H. at 448. Accordingly, the defendant was convicted of a class A misdemeanor. See RSA 265-A:18, IV(b). Had the prior offenses not been admitted, the defendant's conviction would have been a class B misdemeanor. See RSA 265-A:18, I(a)(1) (Supp. 2012) (amended 2012).
According to the circuit court order now being appealed, the defendant, at the sentencing hearing, " stated his intent to appeal ... to the Supreme Court." It appears, however, that the district court clerk's office sent the appeal to the superior court. The defendant then filed in the superior court an assented-to motion to remand the case to the trial court so that the contemplated appeal to this court could be filed. The superior court granted that motion. It appears that the trial court also stayed the defendant's sentence pending resolution of his appeal to this court.
[165 N.H. 782] On appeal to this court in Thompson, the defendant argued that the trial court erred by imposing an enhanced penalty under RSA 265-A:18, IV because the State failed to prove at trial the existence of his prior convictions. Thompson, 164 N.H. at 448. We disagreed and affirmed the defendant's class A misdemeanor conviction. Id. at 451. The defendant then notified the trial court of his intent to appeal his conviction and sentence to the superior court and asserted his right to a de novo jury trial. See RSA 599:1 (Supp. 2006) (amended 2011). The trial court ruled that the defendant, having chosen to appeal to this court, was not thereafter entitled to appeal to the superior court for a de novo jury trial. The defendant then petitioned the superior court to allow a misdemeanor appeal pursuant to RSA 599:1 through 599:1-b, arguing that if he had, as the trial court decided, waived his right to appeal to the superior court, it " was the result of mistake, accident and misfortune." The superior court denied that motion. The
defendant now appeals to this court the decisions of both the trial and superior courts.
The defendant first challenges the trial court's ruling that his election to appeal to this court waived his right to a jury trial in superior court. We note, as an initial matter, that he contests whether RSA 502-A:12 precludes him from now appealing his trial court conviction " to the Superior Court for a jury trial where his appeal to this Court was made solely to determine whether his conviction in the [trial court] was properly for a Class A or a Class B misdemeanor." See RSA 502-A:12 (2010). Resolution of this issue requires us to interpret the applicable statutes, which presents a question of law that we review de novo. State v. Hynes, 159 N.H. 187, 193, 978 A.2d 264 (2009).
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. We first examine the language of the statute, and, where possible, we apply the plain and ordinary meaning to the words used. We interpret legislative intent from the statute as written and will not consider what the legislature might have said or add language it did not see fit ...