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State v. Fuller

Supreme Court of New Hampshire

June 14, 2016

THE STATE OF NEW HAMPSHIRE
v.
DREW FULLER

          Argued: May 5, 2016

         Hillsborough-northern judicial district

          Joseph A. Foster, attorney general (Stephen D. Fuller, senior assistant attorney general, on the brief and orally), for the State.

          David M. Rothstein, deputy director public defender, of Concord, on the brief and orally, for the defendant.

          LYNN, J.

         The 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). We affirm.

         I

         The 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.

         On May 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.

         In 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.

         After a 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.

         The 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 defendant.

         II

         On 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.

         RSA 169-B:3 (2014) provides that the family division[1] "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 ...


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