Argued: September 27, 2018
Law, of Manchester (Joseph Prieto on the brief), and Cohen
& Winters Law Office, of Concord (Andrew S. Winters
orally), for the petitioner.
J. MacDonald, attorney general (Stephen D. Fuller, senior
assistant attorney general, on the memorandum of law and
orally), for the State.
Castine, defendant, filed no brief.
petitioner, corporate surety Second Chance Bail Bonds,
appeals an order from the Superior Court (Delker,
J.) requiring that a $10, 000 bond the petitioner posted for
the defendant, James Castine, be forfeited after the
defendant violated several bail conditions. On appeal, the
petitioner argues that the trial court erred because it can
order forfeiture of a bond only if a defendant fails to
appear for a court date, and not for violation of other bail
conditions. Alternatively, the petitioner argues that the
trial court erred by ordering forfeiture of the entire $10,
000 bond. We affirm.
record reflects the following facts. The defendant was
charged with three counts of sale of heroin. The trial court
set bail in the amount of $10, 000 cash or corporate surety.
Among other conditions, the court required that the defendant
live in Epping, notify the court of any change of address,
and refrain from the use of controlled drugs. On April 6,
2017, the petitioner posted a $10, 000 bond, and the
defendant was released from jail.
than two weeks later, the police found the defendant and his
girlfriend passed out in a vehicle in Sturbridge,
Massachusetts. After first responders administered several
doses of Narcan, both individuals revived. A search of the
vehicle revealed drugs and drug paraphernalia. The police
also observed suitcases and other belongings in the
defendant's vehicle and the defendant told the police
that he and his girlfriend were moving from New Hampshire to
trial court issued an arrest warrant because the defendant
violated his bail conditions. The warrant required that the
bond be forfeited; however, the trial court gave the
petitioner 45 days to show cause why the bond should not be
forfeited. The defendant was arrested and appeared before the
court on April 24, 2017. The court revoked the
show cause hearing in June 2017, the petitioner argued that
the court should not have declared the bond forfeited because
the petitioner had only agreed to an "appearance
bond" and the defendant had not missed any court dates.
It asserted that a surety should not be required to monitor
compliance with bail conditions other than appearance, and
that a surety had no means to supervise the defendant's
drug use or other conduct. The court concluded that a surety
can be held responsible for a defendant's failure to
comply with conditions of bail other than appearance in
court, observed that the petitioner "took no steps
whatsoever to supervise the defendant's compliance with
bail conditions," and ordered the bond forfeited. The
petitioner filed a motion to reconsider, arguing that even if
forfeiture of the bond is appropriate, the order to forfeit
the full amount of the bond is excessive. The trial court
denied the petitioner's motion and this appeal followed.
initial matter, we address the jurisdictional basis for our
review. The petitioner filed this action as a mandatory
appeal under Supreme Court Rule 7. See Sup. Ct. R.
7(1)(A). The State argues that "a mandatory appeal under
Supreme Court Rule 7 is not the proper vehicle to bring the
surety's claim" because a "surety does not have
the authority - by statute or otherwise - to bring an appeal
of the lower court's forfeiture order." Accordingly,
the State asserts that this direct appeal must be dismissed.
The State contends that the petitioner would need to bring a
civil proceeding, as described in State v. Kinne, 39
N.H. 129 (1859), in order to challenge the bail forfeiture
that this court has, on occasion, accepted direct appeals
brought by sureties within the context of the underlying
criminal claim. See State v. McGurk, 163 N.H. 584,
586 (2012); State v. Moccia, 120 N.H. 298, 300
(1980). The State asserts that these cases are not
dispositive because the court did not directly address the
threshold jurisdictional question of whether "the surety
may take a direct appeal in the criminal case from a
forfeiture order" in either case. On this point, we
agree with the State; however, we are not persuaded that
dismissal is appropriate under the circumstances.
of this threshold jurisdictional issue requires that we
engage in statutory interpretation. When construing statutes,
we first look to the plain and ordinary meaning of the words
used. Appeal of Rowan, 142 N.H. 67, 71 (1997). We
discern 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.
Petition of Carrier, 165 N.H. 719, 721 (2013). We
construe all parts of a statute together to effectuate its
overall purpose and avoid an absurd or unjust result.
Id. Moreover, we do not consider words and phrases
in isolation, but rather within the context of the statute as
a whole. Id. This enables us to better discern the
legislature's intent and to interpret statutory language
in light of the policy or purpose sought to be advanced by
the statutory scheme. Id.
597:6-e, III states that only "[t]he person, or the
state . . . may appeal to the supreme court from a
court's release or detention order, or from a decision
denying revocation or amendment of such an order. The appeal
shall be determined promptly." RSA 597:6-e, III (2001)
(emphasis added). Although the statute does not define
"the person," the chapter when read as a whole,
demonstrates that "the person" is the arrestee or
person subject to the bail order. See RSA 597:1
(2001) (stating "all persons arrested for an
offense shall be eligible to be released pending judicial
proceedings upon compliance with the provisions of this
chapter" (emphasis added)). The petitioner is not
"the person, ...