Argued: May 5, 2016
A. Foster, attorney general (Stephen D. Fuller, senior
assistant attorney general, on the brief and orally), for the
M. Rothstein, deputy director public defender, of Concord, on
the brief and orally, for the defendant.
State appeals an order of the Superior Court (Brown,
J.) dismissing the charges against the defendant, Drew
Fuller. The court ruled that the 2014 amendments to RSA
chapter 169-B, which vests jurisdiction over juvenile
delinquents ages 17 and under in the family division of the
circuit court, apply retroactively to his case. See
Laws 2014, 215:3-:13; RSA ch. 169-B (2014 & Supp. 2015).
record reflects the following facts. The defendant was
arrested on May 26, 2015, and charged with possession of
heroin, changing marks on a firearm, and carrying a firearm
in a vehicle without a license. See RSA 318-B:2, I
(2011); RSA 159:13 (2014); RSA 159:4 (2014). The State filed
informations on the misdemeanor firearm charges on July 16,
and a grand jury indicted the defendant on the heroin charge
on July 17. The defendant was born on March 10, 1998, and
thus, was 17 years old both at the time he allegedly
committed the offenses and at the time he was indicted or
charged by information for these crimes.
15, 2014, the legislature enacted House Bill 1624, which
amended RSA chapter 169-B. See Laws 2014, 215:3-:13,
:19-:21, :23-:24. Among other changes, the bill amended RSA
169-B:2, IV, raising the age of a "Delinquent" to
include anyone under 18 years of age. See Laws 2014,
215:3. The prior version of the statute defined a
"Delinquent" as an individual under the age of 17.
See RSA 169-B:2, IV (2014). This change took effect
on July 1, 2015. See Laws 2014, 215:28.
August 2015, the defendant moved to dismiss the charges
against him, arguing that the superior court lacked
jurisdiction because amended RSA 169-B:2, IV (Supp. 2015)
extended the family division's exclusive jurisdiction to
include juveniles his age. The State objected and argued that
the amendment applied prospectively from its effective date,
July 1, 2015. Because the defendant committed the offenses
before this date, and when he was 17, the State contended
that the former definition of "Delinquent"
controlled and, thus, the superior court had jurisdiction.
hearing, the superior court ruled that amended RSA 169-B:2,
IV applied retroactively to persons who committed offenses
before July 1, 2015, but were indicted after that date, and,
therefore, the superior court did not have jurisdiction over
the defendant. First, the court determined that it need not
apply the test articulated in State v. Carpentino,
166 N.H. 9, 12-14 (2014), because the savings statute, upon
which the Carpentino test is based, did not apply to
the case. See RSA 21:38 (2012). The court reasoned
that the savings statute applies if and only if: (1) an act
was repealed; (2) a suit or prosecution was pending at the
time of the repeal; and (3) the suit or prosecution was for
an offense committed under the repealed act or for the
recovery of a penalty or forfeiture incurred under the
repealed act. The court ruled that the prosecution was not
pending at the time of repeal, and that the prosecution was
not for an offense committed under the repealed act, nor did
it seek a penalty incurred under the repealed act.
court then applied the common law test of retroactivity,
which we have articulated in both civil and criminal cases.
See, e.g., Town of Bartlett v.
Furlong, 168 N.H. 171, 179 (2015); State v.
Hamel, 138 N.H. 392, 394 (1994). After finding that the
legislature was ultimately silent on whether it intended the
amendments to apply retroactively, the court examined whether
the change was substantive or procedural. It ruled that the
change was procedural, and, therefore, could be applied
retroactively. It thus granted the motion to dismiss because
the superior court did not have jurisdiction over the
appeal, the State argues that the trial court erred by
applying the amendments to RSA chapter 169-B retroactively to
the defendant's case, which, it contends, was pending at
the time the amendments took effect.
169-B:3 (2014) provides that the family
division "shall have exclusive original
jurisdiction over all proceedings alleging delinquency."
The statute does not define "delinquency, " but,
pursuant to the amendments at issue, the current version of
RSA 169-B:2, IV (Supp. 2015) provides that a
"Delinquent" is "a person who has committed an
offense before reaching the age of 18 years which would be a
felony or misdemeanor under the criminal code of this state
if committed by an adult." Laws 2014, 215:3 (quotation
omitted). Prior to the amendments, a "Delinquent"
was a person who committed an offense before reaching the age
of 17 years. RSA 169-B:2, IV (2014) (quotation omitted).
Similarly, after the ...