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State v. Diallo

Supreme Court of New Hampshire

September 20, 2016

THE STATE OF NEW HAMPSHIRE
v.
AMADOU DIALLO

          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 ...


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