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                  THE SUPREME COURT OF NEW HAMPSHIRE

                            ___________________________


Grafton
No. 2016-0342


                       THE STATE OF NEW HAMPSHIRE

                                        v.

                                TRAVIS C. PAIGE

                           Submitted: June 13, 2017
                        Opinion Issued: August 15, 2017

      Ann M. Rice, deputy attorney general (Sean P. Gill, assistant attorney
general, on the memorandum of law), for the State.


      Thomas Barnard, senior assistant appellate defender, of Concord, on the
brief, for the defendant.

      LYNN, J. The defendant, Travis C. Paige, appeals a ruling of the Superior
Court (Bornstein, J.) concluding that his reckless conduct convictions were
class A misdemeanors and sentencing him accordingly. See RSA 631:3 (2016);
RSA 625:9, IV(c) (2016). We affirm.

                                         I

      The pertinent facts are as follows. On September 3, 2015, the defendant
led police on a high-speed vehicle chase in Grafton County between Bethlehem
and Bath. Throughout the chase, the defendant drove at speeds in excess of
100 miles per hour to evade police. The defendant also disregarded stop signs
and nearly struck a cyclist and a minivan. Eventually, the defendant lost
control of the vehicle after passing through a covered bridge and crashed into a
ditch. The vehicle came to rest on the passenger side. Leaving his girlfriend in
the passenger seat of the vehicle, the defendant climbed out of the driver’s side
window and fled on foot into the woods. The police officer on scene chose not
to pursue the defendant, opting instead to help the defendant’s girlfriend get
out of the car, which was smoking. The defendant was arrested the next
morning.

      In November, the defendant was indicted on three counts of felony
reckless conduct with a deadly weapon.1 Ordinarily, reckless conduct is an
unspecified misdemeanor. See RSA 631:3. However, it becomes a class B
felony when a deadly weapon is used in the commission of the offense. See id.;
RSA 625:11, V (2016). The defendant also was charged by informations with
two misdemeanor offenses, one alleging that he disobeyed a police officer, and
the other alleging that he resisted arrest. See RSA 265:4 (2014); RSA 642:2
(2016). In accordance with RSA 625:9, IV(c)(2), the State filed notice at or
before the defendant’s arraignment that it was electing to prosecute both
misdemeanor offenses as class A misdemeanors.

       The defendant was tried by jury in April 2016. In its jury instructions,
the trial court instructed the jury on the elements of felony reckless conduct
and, over the State’s objection, on the elements of the lesser-included
misdemeanor reckless conduct offense. The jury acquitted the defendant of all
three felony reckless conduct charges, but convicted him of three counts of
misdemeanor reckless conduct. The jury also convicted the defendant of
resisting arrest and disobeying an officer.

       At sentencing, the trial court ruled that the lesser-included reckless
conduct offenses carried class A misdemeanor penalties. For the charges of
resisting arrest and disobeying an officer, the court sentenced the defendant to
consecutive twelve-month terms of incarceration. For each of the misdemeanor
reckless conduct convictions, it imposed suspended twelve-month sentences
that were concurrent with each other but consecutive to the stand committed
sentences. This appeal followed.

                                               II

      On appeal, the defendant argues that, pursuant to RSA 625:9, IV(c), his
misdemeanor reckless conduct convictions constituted class B misdemeanors
and that the court erred in sentencing him on those charges as though they

1The indictments alleged that the motor vehicle the defendant operated constituted the deadly
weapon.


                                               2
were class A misdemeanor offenses. Specifically, he contends that both the
text and the legislative history of RSA 625:9, IV(c) indicate that the statute
applies to convictions for lesser-included unclassified misdemeanors of crimes
that are charged as felony level offenses.

       RSA 625:9, IV(c) provides:

       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
               RSA 490:26-d.

      It is undisputed that at no time prior to arraignment did the State
provide notice in accordance with RSA 625:9, IV(c)(2) that, in the event the
defendant was convicted of lesser-included misdemeanor reckless conduct
offenses, the State would seek class A misdemeanor penalties for such
convictions.2 The defendant maintains that the absence of such notice
required the trial court to treat his reckless conduct convictions as class B
misdemeanors. We disagree.

       The defendant’s argument requires us to interpret RSA 625:9, IV. “In
matters of statutory interpretation, we are the final arbiter of the intent of the
legislature as expressed in the words of a statute considered as a whole.” State
v. Lathrop, 164 N.H. 468, 469 (2012). “We first examine the language of the
statute, and, when possible, ascribe the plain and ordinary meanings to the
words used.” Id. “We do not strictly construe criminal statutes, but rather
construe them according to the fair import of their terms and to promote
justice.” Czyzewski v. N.H. Dep’t of Safety, 165 N.H. 109, 111 (2013); see RSA
625:3 (2016). Furthermore, we aim to “effectuate [the statute’s] overall purpose
and to avoid an absurd or unjust result.” State v. Burr, 147 N.H. 102, 104
(2001) (quotation omitted). We employ a de novo standard of review. State v.
Lukas, 164 N.H. 693, 694 (2013).

      RSA 625:9 is entitled “Classification of Crimes.” Paragraph I begins by
stating that its provisions “govern the classification of every offense.” RSA

2 The State does not argue that the misdemeanor reckless conduct offenses of which the
defendant was convicted meet the criteria necessary to satisfy subparagraph (c)(1) of RSA 625:9,
IV, and we therefore have no occasion to consider that issue.


                                                3
625:9, I. Paragraph II provides that “[e]very offense is either a felony,
misdemeanor or violation.” Id. at II. Paragraph IV states that “[m]isdemeanors
are either class A misdemeanors or class B misdemeanors when committed by
an individual,” and then in subparagraph (c) establishes the presumption set
out in detail above. Id. at IV. The defendant asserts that the overall language
and structure of RSA 625:9 supports his claim that subparagraph (c) applies to
misdemeanors that are lesser-included offenses of crimes originally charged as
felonies. In the defendant’s view, because the statute applies to every offense,
including all misdemeanors, and because the State did not file a notice of
intent to seek class A misdemeanor penalties for the lesser-included reckless
conduct offenses, the trial court was required to treat those offenses as class B
misdemeanors. He further asserts that, if the legislature had intended to
except lesser-included offenses from subparagraph (c), it would have done so
explicitly in the text of the statute.

       Although we acknowledge that a strictly literal interpretation of the
statute could support the defendant’s position, we reject it because it would
produce absurd and illogical results that the legislature could not have
intended. See Burr, 147 N.H. at 104. Under the defendant’s construction of
the statute, the State would be required to notify a defendant facing a felony
charge that, should he or she be convicted of a lesser-included offense, the
penalties it would seek would be for a class A misdemeanor. This would be
redundant because, in cases in which the State has charged the defendant
with a felony level offense, it is reasonable to presume that, if unable to secure
a felony conviction on the charge, the State would always choose to pursue, in
the alternative, the most serious lesser-included misdemeanor conviction
available. To force the State to ritualistically file a notice pursuant to RSA
625:9, IV(c)(2) in every case in which there is the possibility that an offense
charged as a felony could ultimately result in conviction for a lesser-included
misdemeanor would elevate form over substance; it would serve no legitimate
purpose and would simply result in the State “papering” the court file with one
more form. In this case, for example, no reasonable person would assume that
the State, focused upon securing class B felony convictions against the
defendant, would alternatively pursue the least severe misdemeanor penalties
possible.

       Furthermore, adoption of the defendant’s proposed construction of RSA
625:9, IV(c) would not serve the purpose intended by the legislature when it
enacted the statute in 2009. See Senate Comm. on Judiciary, Hr’g on SB 201-
FN (Mar. 17, 2009). The legislative history of the statute makes clear that its
purpose was not to confer additional procedural or notice rights upon
defendants. Id. Rather, its purpose was to save the State money by forcing
prosecutors to decide before arraignment whether a defendant charged with an
unclassified misdemeanor offense would face the prospect of incarceration for
the offense. Id. Prior to the adoption of this statute, the Criminal Code
required courts to treat unclassified misdemeanors as class A misdemeanors.


                                        4
See RSA 625:9, IV(a)(2) (2007); State v. Bruce, 147 N.H. 37, 43 (2001). Thus,
even though incarceration was not imposed as part of the sentence for most
defendants charged with unclassified misdemeanors, all defendants so charged
faced the potential of incarceration upon conviction, and were therefore entitled
to court-appointed counsel if indigent. See Scott v. Illinois, 440 U.S. 367, 373-
74 (1979); Gideon v. Wainwright, 372 U.S. 335, 344-45 (1963); State v. Weeks,
141 N.H. 248, 250 (1996). Because a class B misdemeanor does not carry the
possibility of incarceration, the legislature determined, based upon testimony
from representatives of the judiciary and the Public Defender, that the State
could achieve significant savings in counsel expenses by establishing a system
in which the “default” position treats unclassified misdemeanors as class B
misdemeanors, and requiring the prosecutor to take the affirmative step of
providing notice of his or her intent to seek class A misdemeanor penalties at
or before the time when counsel would normally be appointed –– the date of the
arraignment. See Senate Comm. on Judiciary, Hr’g on SB 201-FN (Mar. 17,
2009) at 3-4.

      Achievement of this cost-savings objective has no applicability when a
defendant is charged with a felony. Because incarceration is among the
prescribed penalties for a felony, an indigent defendant charged with such a
crime will have counsel appointed at the expense of the State; counsel will
continue to represent the defendant throughout the proceeding regardless of
whether the defendant is ultimately convicted of the felony, convicted of a
lesser-included misdemeanor, or acquitted. Thus, the legislative purpose
would not be served by requiring the State to designate at the time of
arraignment on the felony charge whether, if the defendant is convicted on a
lesser-included unclassified misdemeanor, it intends to seek class A
misdemeanor penalties. Irrespective of whether the prosecutor made such a
designation, the State would incur the expenses of court-appointed counsel
based upon the potential for conviction of the felony offense.

       Finally, we reject the defendant’s reliance upon the rule of lenity as a
basis for construing RSA 625:9, IV(c) in the manner he advocates. See State v.
Dansereau, 157 N.H. 596, 602 (2008) (stating that the “rule of lenity serves as
a guide for interpreting criminal statutes where the legislature failed to
articulate its intent unambiguously”). As we have previously explained, the
rule of lenity comes into play only when a statute is ambiguous and resort to
legislative history does not resolve the ambiguity. See id. at 602-03. Here, as
explained above, the statute cannot reasonably be construed as the defendant
advocates, and its legislative history makes clear that the legislature did not
intend that the statute be given such a construction.

                                                 Affirmed.

      DALIANIS, C.J., and HICKS and BASSETT, JJ., concurred.



                                       5
