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State v. Balch

Supreme Court of New Hampshire

January 29, 2015

The State of New Hampshire
v.
Kevin Balch

Argued May 15, 2014

Grafton.

Joseph A. Foster, attorney general ( Lisa L. Wolford, assistant attorney general, on the brief and orally), for the State.

Christopher M. Johnson, chief appellate defender, of Concord, on the brief and orally, for the defendant.

HICKS, J. DALIANIS, C.J., and CONBOY, LYNN, and BASSETT, JJ., concurred.

OPINION

Page 673

Hicks, J.

After a jury trial in Superior Court ( Bornstein, J.), the defendant, Kevin Balch, was convicted on two counts of burglary, six counts of receiving stolen property,

Page 674

and six counts of violating the armed career criminal statute. RSA 635:1 (2007) (amended 2014); RSA 637:7 (2007); RSA 637:11 (2007) (amended 2010); RSA 159:3-a (2014). On appeal, the defendant challenges the sentence imposed pursuant to the armed career criminal statute, RSA 159:3-a, and argues that the trial court erred by construing it to: (1) permit a conviction and sentence for each individual firearm he possessed on a single occasion; (2) require that each sentence be served consecutively rather than concurrently; and (3) prohibit the trial court from deferring some or all of said sentences. We affirm.

The record reflects the following facts. On May 16, 2013, the trial court sentenced the defendant to: three and a half to seven years in state prison for each count of burglary, to be served concurrently with each other but consecutively with the last RSA 159:3-a sentence; 10 to 20 years for each count of violating RSA 159:3-a, to be served consecutively with each other and the burglary sentences; and a suspended sentence of 7.5 to 15 years for each count of receiving stolen property. The total prison sentence range is 63.5 to 127 years -- essentially a sentence of imprisonment for life. During the sentencing hearing, both the State and the trial court expressed the belief that RSA 159:3-a requires the sentences to run consecutively to each other and to sentences imposed for other convictions. The defendant's attorney argued that imposing such a severe sentence for class B felonies is unconstitutional. The court rejected the constitutional challenge and cited the statutory requirements as one of the factors in determining the defendant's sentence. This appeal followed.

On appeal, the defendant raises a single issue for our consideration: whether the trial court erred in interpreting RSA 159:3-a to require the imposition of six consecutive sentences based upon his six convictions arising from an incident in which he possessed six firearms on a single occasion. In addressing that issue, the defendant argues: (1) that the legislature intended the " unit of prosecution" under RSA 159:3-a to be each occurrence of possession rather than each individual firearm; (2) that sentences imposed under RSA 159:3-a can be served concurrently; and (3) that RSA 159:3-a permits trial courts to defer sentences imposed under that statute. The defendant admits that these arguments were neither raised before nor addressed by the trial court, but he asks us to review them to determine whether the trial court's interpretation and application of law constituted plain error. See S.Ct. R. 16-A.

The plain error rule allows us to consider errors not brought to the attention of the trial court. State v. Almodovar, 158 N.H. 548, 553, 969 A.2d 479 (2009). Nevertheless, the rule should be used sparingly, its use limited to those circumstances in which a miscarriage of justice would otherwise result. Id. For us to find error under the rule: (1) there must be an error; (2) the error must be plain; (3) the error must affect substantial rights; and (4) the error must seriously affect the fairness, integrity, or public reputation of judicial proceedings. Id.

All of the defendant's arguments challenge the trial court's interpretation and application of RSA 159:3-a. To resolve these challenges, we must engage in statutory interpretation. See State v. Ravell, 155 N.H. 280, 282, 922 A.2d 685 (2007). The interpretation of a statute is a question of law, which we review de novo. State v. Dor, 165 N.H. 198, 200, 75 A.3d 1125 (2013). We are the final ...


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