Submitted: June 18, 2019
J. MacDonald, attorney general (Stephen D. Fuller, senior
assistant attorney general, on the memorandum of law), for
Law Office, PLLC, of Portsmouth (Sven D. Wiberg on the
brief), for the defendant.
defendant, Bryon E. Whitney, appeals an order of the Superior
Court (Schulman, J.) remanding his case to the
circuit court on the basis that, because he was convicted of
a class B misdemeanor in circuit court, the superior court
lacked jurisdiction over the appeal from the circuit court.
See RSA 599:1 (Supp. 2014); RSA 599:1-c, II (2001).
record supports the following facts. The defendant was
charged in circuit court with resisting arrest or detention.
See RSA 642:2 (2016). Following a bench trial, the
defendant was found guilty and sentenced to pay a $500 fine,
plus penalty assessment. The defendant filed an appeal with
the superior court under RSA 599:1, seeking a de
novo jury trial.
to trial in the superior court, the State advised the court
that the resisting arrest offense appeared to have been
brought in circuit court as a class B misdemeanor rather than
a class A misdemeanor, and therefore, the defendant's
conviction could not be appealed to the superior court. After
reviewing the transcript from the circuit court, the superior
court agreed with the State, and ruled that, because the
offense was brought as a class B misdemeanor in circuit court
and because the defendant was neither charged with nor
convicted of a class A misdemeanor, the court lacked
jurisdiction over the appeal. The defendant filed a motion to
reconsider, which the court denied. This appeal followed.
the superior court's jurisdiction to hear de
novo appeals from circuit court is conferred by statute,
determining the jurisdiction of the superior court in this
case is a matter of statutory interpretation, which presents
a question of law subject to our de novo review.
See Rogers v. Rogers, 171 N.H. 738, 743 (2019). A
defendant's right to appeal to superior court from
circuit court depends upon whether he or she was charged with
a class A or class B misdemeanor.
defendant is convicted of a violation or class B misdemeanor
in circuit court, the only available appellate avenue is a
direct appeal to this court. See RSA 599:1-c, II;
State v. Blunt, 164 N.H. 679, 682 n.3 (2013).
Because class B misdemeanors do not carry a possibility of
incarceration, nor can a fine imposed for such offenses
exceed $1, 200, see RSA 651:2, III, IV(a) (2016),
defendants charged with such offenses do not have a
constitutional right to a jury trial. See State v.
Bilc, 158 N.H. 651, 655 (2009) (right to a jury trial is
guaranteed to all criminal defendants facing the possibility
of incarceration); State v. Morrill, 123 N.H. 707,
712-13 (1983). Accordingly, those defendants charged with a
class B misdemeanor in circuit court do not have a right to a
de novo jury trial in superior court. See
RSA 599:1-c, II; Bilc, 158 N.H. at 655.
when a defendant is charged with and convicted of a class A
misdemeanor in circuit court, he or she may elect to either
appeal to the superior court for a de novo jury
trial, or to this court for a review of questions of law. RSA
599:1; RSA 502-A:12 (2010). Because class A misdemeanors are
punishable by imprisonment for up to one year and a maximum
fine of $2, 000, see RSA 651:2, I, II(c), IV(a)
(2016), defendants accused of such offenses are
constitutionally entitled to jury trials. N.H. CONST. pt. I,
art. 15; State v. Thompson, 165 N.H. 779, 788 (2013)
(State Constitution provides the defendant at least as much
protection as the Federal Constitution under these
circumstances); Bilc, 158 N.H. at 655. Notably, the
right to a jury trial depends upon the "severity of the
penalty authorized, not the one actually imposed."
Bilc, 158 N.H. at 654. Thus, a defendant who is
exposed to the possibility of incarceration based on the
classification of the charged offense has a right to a de
novo jury trial under RSA 599:1, regardless of the
sentence that the circuit court actually imposed.
Id. at 654-55.
case, the defendant argues that he was charged with a class A
misdemeanor in the circuit court and, thus, the superior
court erred in remanding the case back to the circuit court,
rather than providing him with a jury trial. He further
argues that by classifying the offense as a class B
misdemeanor, the superior court effectively violated his
statutory right to appeal to superior court for a de
novo jury trial. He contends that the superior
court's ruling that he was not entitled to a jury trial
violates Part I, Article 15 of the New Hampshire Constitution
and the Sixth Amendment to the United States Constitution.
we have to determine whether the defendant was charged with
and tried for a class A or class B misdemeanor in circuit
court. "Every offense is either a felony, misdemeanor or
violation." RSA 625:9, II (2016). "Misdemeanors are
either class A misdemeanors or class B misdemeanors when
committed by an individual." RSA 625:9, IV (2016).
Offenses can be expressly defined by statute as a class A or
class B misdemeanor. RSA 625:9, IV(a)-(b). Offenses can also
be simply defined as misdemeanors without specification as to
whether they are class A or class B. RSA 625:9, IV(a)-(c).
Resisting arrest is one such unspecified misdemeanor and,
therefore, may be charged as either a class A or class B
misdemeanor. See RSA 625:9, IV. RSA 625:9, IV(c)
(c) Any crime designated within or outside this code as a
misdemeanor without specification of the classification shall
be presumed to be a class B misdemeanor unless:
(1) An element of the offense involves an "act of
violence" or "threat of violence" as defined
in paragraph VII; or
(2) The state files a notice of intent to seek class A
misdemeanor penalties on or before the date of arraignment.
Such notice shall be on a form approved in accordance with
subparagraph (c)(1), the crime of resisting arrest, as
defined by RSA 642:2, does not involve an act or threat of
violence as an element of the offense. See Blunt,
164 N.H. at 683-84. As to subparagraph (c)(2), there is
nothing in the record to indicate that the State filed a
notice of intent at or before arraignment to seek class A
misdemeanor penalties. In fact, the record reflects that the
defendant argued to the circuit court that the offense was a
class B misdemeanor because the State never filed a notice of
intent to seek class A penalties. See RSA 625:9,
IV(c)(2). The circuit court reserved ruling on this argument,
but acknowledged that its file did not include a notice that
the State intended to seek class A misdemeanor penalties. The
circuit court subsequently ruled that the offense was a class
B misdemeanor. During the sentencing hearing, the defendant
told the circuit court that he sought to appeal his
conviction to the superior court, and the circuit court
responded: "Well, I'll let you argue that . . . in
Superior Court. But under the new sentencing statute that
presumes a Class B, unless the intent is filed, I'm
required to record this as a Class B misdemeanor
conviction." Moreover, even if the complaint asserted
that the offense was a class A misdemeanor, "merely
checking the 'class A misdemeanor' box on the
standard complaint form does not constitute compliance with
RSA 625:9, IV(c)(2)." Blunt, 164 N.H. at ...