Argued: May 3, 2016
Strafford
Joseph
A. Foster, attorney general (Elizabeth C. Woodcock, assistant
attorney general, on the brief and orally), for the State.
Stephanie Hausman, deputy chief appellate defender, of
Concord, on the brief and orally, for the defendant.
CONBOY, J.
The
defendant, Amadou Diallo, appeals the extended term of
imprisonment imposed by the Superior Court
(Abramson, J.) following his conviction for
felonious sexual assault. He argues that the trial court
erred in ruling that the State provided sufficient notice of
its intent to seek an extended sentence. See RSA
651:6 (2016). Accordingly, he requests that we vacate his
sentence and remand this case to the trial court for
resentencing. We deny his request and affirm the trial
court's ruling.
We
briefly set forth the facts necessary to decide the issue
before us. In 2014, the defendant was charged with two counts
of aggravated felonious sexual assault. On the first day of
trial, prior to jury selection, the State amended one of the
indictments to charge the defendant with the lesser crime of
felonious sexual assault. The amendment was hand-written on
the face of the indictment. Prior to the amendment, the
indictment contained the following notation in the upper
right-hand corner:
RSA Ch. 632-A:2, II
Aggravated Felonious Sexual Assault
Felony
10-30 years, $4000
The
only change in this notation as a result of the amendment was
a handwritten line through the word "Aggravated."
At the close of the State's case, the trial court
dismissed the other indictment, which had not been amended.
The defendant was convicted on the amended indictment
alleging felonious sexual assault.
At the
sentencing hearing, the State recommended a sentence of ten
to twenty years. The defendant objected, arguing that the
State's proposed sentence constituted an impermissible
extended term of imprisonment. The defendant argued that,
because the State had failed to provide notice of its intent
to seek an extended term of imprisonment pursuant to RSA
651:6 as to the amended indictment, he could not be sentenced
to more than seven years of imprisonment. The trial court
then ordered both parties to brief the issue. After
considering the parties' arguments, the facts of the case
and the applicable law, the trial court ruled that, under RSA
651:6, III, the notice requirement for imposition of an
extended sentence could be satisfied by language in an
indictment. The court further ruled that, in this case, the
language in the indictment provided the requisite notice, and
that it was not voided by the amendment.
On
appeal, we are asked to determine whether an indictment can
serve as the vehicle to provide the notice required under RSA
651:6, III. This statute provides that if "authorized by
paragraph I or II, and if written notice of the possible
application of this section is given the defendant at least
21 days prior to the commencement of jury selection for his
or her trial, a defendant may be sentenced to an extended
term of imprisonment." RSA 651:6, III. Paragraph I of
RSA 651:6 sets forth a list of factors, any one of which can
support an extended sentence if found by a jury. See
RSA 651:6, I. Paragraph II sets forth a list of factors, any
one of which can support an extended sentence if found by a
trial court and if the record includes those findings.
See RSA 651:6, II.
Whether
an indictment can satisfy the notice requirement set forth in
RSA 651:6, III presents a question of statutory
interpretation. Statutory interpretation is a question of
law, which we review de novo. Appeal of THI of
NH at Derry, LLC, 168 N.H. 504, 508 (2016). We are the
final arbiters of the legislature's intent as expressed
in the words of the statute. Id. To determine the
legislature's intent, we look first to the language of
the statute itself, and if possible, construe that language
according to its plain and ordinary meaning. Id. We
construe the provisions of the Criminal Code "according
to the fair import of their terms and to promote
justice." RSA 625:3 (2016). We interpret legislative
intent from the statute as written and will not consider what
the legislature might have said or add language that the
legislature did not see fit to include. Appeal of
THI, 168 N.H. at 508. We do not consider words and
phrases in isolation, but rather within the ...