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                 THE SUPREME COURT OF NEW HAMPSHIRE

                          ___________________________


Merrimack
No. 2015-0256


                            JONATHAN WOLFGRAM

                                        v.

                 NEW HAMPSHIRE DEPARTMENT OF SAFETY

                         Argued: November 10, 2015
                        Opinion Issued: April 29, 2016

      Patrick M. Carron, of Concord, by brief and orally, for the petitioner.


      Joseph A. Foster, attorney general (Matthew T. Broadhead, attorney, by
memorandum of law and orally), for the respondent.

      BASSETT, J. The petitioner, Jonathan Wolfgram, appeals an order of the
Superior Court (McNamara, J.) affirming a decision by the respondent, the New
Hampshire Department of Safety (DOS), to retain notations on the petitioner’s
motor vehicle record referring to his certification and decertification as a
habitual offender, despite the fact that the convictions that led to his habitual
offender certification had been annulled. The petitioner argues that, because
the habitual offender notations reveal the fact of his annulled criminal
convictions, allowing DOS to retain the notations on his motor vehicle record
defeats the purpose of the annulment statute, RSA 651:5 (Supp. 2015). We
reverse and remand.
      The parties stipulated to the following facts in the trial court. Between
2002 and 2007, the petitioner was convicted of multiple motor vehicle offenses.
Based upon these convictions, DOS certified the petitioner as a habitual
offender and revoked his license and operating privileges for four years. See
RSA 259:39 (2014) (defining habitual offender as any person “whose record, as
maintained in the office of the division, shows that such person has
accumulated convictions” specified by the statute “within a 5-year period”). In
2011, the petitioner requested to be decertified as a habitual offender. DOS
granted his request, reissued the petitioner’s driver’s license, and placed him
on “probationary status” until November 2016.

       Between 2012 and 2013, the petitioner obtained “approximately
seventeen” annulments of various motor vehicle convictions, including those
that had resulted in his habitual offender certification. DOS removed these
annulled convictions from the petitioner’s motor vehicle record. In 2014, the
petitioner requested a hearing at DOS, seeking to have “all notations regarding
[his] past Habitual Offender Certification and Decertification” removed from his
motor vehicle record. He argued that, given that the convictions underlying his
habitual offender status had been annulled, “[l]eaving the notations regarding
[his] habitual offender status [on his record] defeat[ed] [the] purpose of the
annulment statute.” Following a hearing, DOS denied the petitioner’s request,
explaining:

      While each court has acted formally to invalidate each of its
      subject convictions, the State Department of Safety has never
      formally acted to invalidate its [habitual offender] certification
      action. As a result, as that action and its related actions were
      valid at the time and have not been annulled, notations of those
      actions are not in error, and they must remain on the [petitioner’s]
      record.

The petitioner’s request for reconsideration was denied, and he appealed to the
superior court.

      The trial court affirmed the decision by DOS to retain the habitual
offender notations on the petitioner’s motor vehicle record, concluding that it
was “consistent with the plain language” of RSA 651:5, which provides, in part,
that annulled convictions “may be counted toward habitual offender status,”
RSA 651:5, X(a). The trial court also observed that keeping the notations on
the petitioner’s motor vehicle record was “consistent with the entire statutory
scheme relating to Habitual Offenders,” which empowers DOS to protect the
public from dangerous drivers by denying habitual offenders the privilege of
driving on public roads. See RSA 262:18-:26 (2014) (habitual offender policy
and procedure). Finally, the trial court noted, because the habitual offender
law provides that the order finding that a person is a habitual offender “shall
become part of the record of the division of motor vehicles,” RSA 262:19, III, the


                                        2
habitual offender notations properly continued to be part of the petitioner’s
motor vehicle record. The petitioner’s motion for reconsideration was denied,
and this appeal followed.

       On appeal, the petitioner argues that, because the habitual offender
notations reveal the fact of criminal convictions that have been annulled, the
trial court erred by allowing DOS to retain the notations on his motor vehicle
record. He asserts that the habitual offender notations must be removed in
order to be consistent with the plain language and the purpose of the
annulment statute. Although the petitioner acknowledges that DOS “has
legitimate business and record keeping purposes” for maintaining a record of
his annulled convictions and his prior certification as a habitual offender, he
argues that this should not be done on his “official” motor vehicle record, which
is “used by many landlords [and] employers” and “may be used in court
proceedings and introduced as evidence in court matters.” The petitioner also
raises a constitutional challenge to the trial court’s order. DOS counters that,
because “the habitual offender designation is not a record of a criminal
proceeding that is subject to annulment,” DOS is not required to remove the
notations from the petitioner’s record. DOS further asserts that the plain
language of the annulment statute “expressly exempt[s] habitual offenders of
the motor vehicle laws from receiving [the] privilege[s]” provided to persons with
annulled convictions. Finally, DOS argues that removing the notations from
the petitioner’s official motor vehicle record would prevent DOS from upholding
its statutory obligation to keep a record of habitual offender certifications. See
RSA 262:19.

       The issue on appeal presents a question of statutory interpretation. We
review matters of statutory interpretation de novo. JMJ Properties, LLC v.
Town of Auburn, 168 N.H. 127, 130 (2015). “We are the final arbiter of the
intent of the legislature as expressed in the words of the statute considered as
a whole.” Choquette v. Roy, 167 N.H. 507, 517 (2015) (quotation omitted).
“Our goal is to apply statutes in light of the legislature’s intent in enacting
them, and in light of the policy sought to be advanced by the entire statutory
scheme.” Id. (quotation omitted). “When construing the meaning of a statute,
we first examine the language found in the statute, and where possible, we
ascribe the plain and ordinary meanings to words used.” Id. (quotation
omitted). We will not construe a statute in a way that would render it “a virtual
nullity.” Appeal of Wilson, 161 N.H. 659, 664 (2011). “We construe statutes so
as to effectuate their evident purpose and to avoid an interpretation that would
lead to an absurd or unjust result.” State v. Bulcroft, 166 N.H. 612, 614
(2014). “We construe provisions of the Criminal Code according to the fair
import of their terms and to promote justice.” Id.

       The purpose of the annulment statute is to reduce the collateral
consequences of a criminal conviction and “to afford an offender . . . a chance
to start anew without this stigma in his records.” State v. Roe, 118 N.H. 690,


                                        3
692-93 (1978) (quotation omitted). The “record of arrest, conviction and
sentence of any person” that fits within the specific categories set forth in the
statute “may be annulled by the sentencing court at any time in response to a
petition for annulment . . . if in the opinion of the court, the annulment will
assist in the petitioner’s rehabilitation and will be consistent with the public
welfare.” RSA 651:5, I. Pursuant to RSA 651:5, X(a), “[t]he person whose
record is annulled shall be treated in all respects as if he or she had never been
arrested, convicted or sentenced.” We have previously recognized that “[t]he
language ‘in all respects’ cannot be read out of the statute or interpreted to
encompass any less than the word ‘all’ requires.” Brown v. Brown, 133 N.H.
442, 445 (1990). However, RSA 651:5, X(a) provides two narrow exceptions to
this “otherwise unequivocal language,” id. — “upon conviction of any crime
committed after the order of annulment has been entered, the prior conviction
may be considered by the court in determining the sentence to be imposed, and
may be counted toward habitual offender status under RSA 259:39.” RSA
651:5, X(a).

       The habitual offender law seeks to “provide maximum safety for all
persons who travel or otherwise use the ways of the state” and to “discourage
repetition of criminal acts.” RSA 262:18, I, III. The habitual offender law
grants DOS broad authority to impose restrictions on habitual offenders. See
RSA 262:18-:26. DOS may “impose increased and added deprivation of the
privilege to drive motor vehicles upon habitual offenders who have been
convicted repeatedly of violations of traffic laws.” RSA 262:18, III. DOS also
has discretion to determine whether to restore a habitual offender’s driving
license and operating privileges, and it prescribes the terms and conditions by
which a habitual offender may regain his driving privileges. See RSA 262:24
(DOS “may restore” habitual offender’s driving privileges “upon such terms and
conditions as the director may prescribe” (emphasis added)); N.H. Admin.
Rules, Saf-C 206.01-207.07 (DOS rules governing habitual offenders). DOS is
specifically required by statute to keep a copy of the order certifying a person
as a habitual offender as “part of the record of the division of motor vehicles.”
RSA 262:19, III.

       Because the two statutes at issue in this case impact the treatment of
persons designated as habitual offenders, we construe them “so that they will
lead to reasonable results and effectuate the legislative purpose of the
statutes.” Holt v. Keer, 167 N.H. 232, 241 (2015) (quotation omitted); see State
v. Patterson, 145 N.H. 462, 465 (2000) (construing statutes dealing with
similar subjects “so that they lead to reasonable results and do not contradict
each other” (quotation omitted)). As a preliminary matter, we address DOS’s
argument that, because the habitual offender certification is a civil designation,
see State v. Fitzgerald, 137 N.H. 23, 28 (1993), it is not subject to annulment
pursuant to RSA 651:5. We agree with DOS that, in and of itself, the habitual
offender certification is not subject to annulment. Nonetheless, because the
habitual offender notations on the petitioner’s motor vehicle record reveal the


                                        4
fact of his prior convictions, they are inextricably linked with the petitioner’s
criminal history.

        By definition, a “[h]abitual offender” has “accumulated convictions.” RSA
259:39 (quotation omitted). Consequently, just as “the fact of an annulment
also necessarily discloses the fact of a conviction,” Panas v. Harakis & K-Mart
Corp., 129 N.H. 591, 610 (1987), a habitual offender designation necessarily
discloses the fact of more than one prior criminal conviction. In New
Hampshire, a person’s motor vehicle record is available, upon request and with
permission of the individual whose record is requested, to members of the
public, including potential employers and insurance agencies. See RSA 260:14
(Supp. 2015) (describing how motor vehicle records may be requested and
released). Accordingly, if the habitual offender notations remain on the
petitioner’s motor vehicle record, any person who receives the record would be
able to ascertain that he had prior convictions. We agree with the petitioner
that this would undermine the purpose of the annulment statute and lead to
an unjust result. See Bulcroft, 166 N.H. at 614 (“We construe statutes so as to
. . . avoid an interpretation that would lead to an absurd or unjust result.”).

       DOS next argues that, because RSA 651:5, X(a) provides that annulled
convictions “may be counted toward habitual offender status,” habitual
offenders are “expressly exempted . . . from receiving [the] privilege” of being
“treated in all respects as if [they] had never been arrested, convicted or
sentenced.” (Quotation omitted.) See RSA 651:5, X(a). We disagree. RSA
651:5, X(a) specifies that previously annulled convictions “may be counted
toward habitual offender status” only “upon conviction of any crime committed
after the order of annulment has been entered.” We interpret this language to
mean that DOS may consider an annulled conviction when determining
whether a person qualifies for certification as a habitual offender. To certify
someone as a habitual offender, DOS must determine the number of qualifying
convictions that the person has accumulated in a five-year period. See RSA
259:39. Thus, the annulled convictions are relevant in this context. The
exception in RSA 651:5, X(a) regarding habitual offender status allows for this
necessary and limited consideration of annulled convictions. It does not
exempt habitual offenders from the protections provided by the annulment
statute, nor does it require a habitual offender’s annulled convictions or
habitual offender status to remain on a publicly available motor vehicle record.

       Our interpretation is consistent with the other exception in RSA 651:5,
X(a), which provides that a court may not consider an individual’s annulled
conviction except that “upon conviction of any crime committed after the order
of annulment has been entered,” it may be considered “in determining the
sentence to be imposed.” This exception allows for the limited consideration of
annulled convictions in a context in which prior convictions may be relevant —
sentencing for a subsequently committed crime. Thus, these exceptions reflect
the fact that, although annulment creates a legal fiction that a person has


                                         5
never been arrested, convicted, or sentenced, prior convictions remain a
historical reality and can be considered in limited circumstances. See Lovejoy
v. Linehan, 161 N.H. 483, 487 (2011) (observing that treating annulled
conviction “as if it had never occurred” is “conceptually impossible” and
“contrary to the clear language of” RSA 651:5, which “describes various
circumstances in which the annulled record can be used” (quotation omitted)).

       Nonetheless, DOS argues that, because it has a statutory obligation to
maintain a record of the certification of habitual offenders as “part of the record
of the division of motor vehicles,” RSA 262:19, III, the petitioner’s habitual
offender status must remain on his motor vehicle record. The petitioner
counters that DOS may keep a record of his habitual offender certification and
decertification, “just not on [his] official motor vehicle driving record.” He
likens DOS to other state prosecuting agencies that may not “keep track of
annulled criminal convictions on a citizen’s official criminal record because
such annulled convictions can only be considered by Courts for purposes of
sentencing.” See RSA 651:5, X(a). We agree with the petitioner.

       Although RSA 262:19, III provides that the order certifying a habitual
offender “shall become part of the record of the division of motor vehicles,” it
does not require that, after the underlying convictions have been annulled, the
notations referring to the habitual offender certification and decertification be
included on the publicly accessible motor vehicle record. Because motor
vehicle records can be accessed by members of the public, see RSA 260:14,
interpreting RSA 651:5 to require the removal of annulled convictions from a
motor vehicle record but not the removal of habitual offender notations that
reveal the fact of those annulled convictions would run counter to the plain
language of the annulment statute and undermine the purpose of the statutory
scheme. Thus, construing the annulment statute together with the habitual
offender law, we conclude that, because the petitioner is a decertified habitual
offender and the convictions underlying his habitual offender certification have
been annulled, DOS must maintain its record of his habitual offender
certification status in such a way that the information is not accessible by
members of the public. This places no more a burden on DOS than the burden
imposed on other agencies that are required to keep confidential information
separate from publicly available information. See, e.g., Duchesne v.
Hillsborough County Attorney, 167 N.H. 774, 781 (2015) (describing procedure,
as set forth by statute, for distinguishing between material in police personnel
file that may be disclosed and material that must remain confidential).

      Accordingly, we conclude that the trial court erred when it upheld the
decision by DOS to maintain notations referring to the petitioner’s habitual
offender certification and decertification on his publicly accessible motor
vehicle record. To the extent that the petitioner argues that the trial court
erred by not ordering DOS to remove from his motor vehicle record what he
characterizes as references to annulled criminal convictions — but as to which


                                        6
there is no evidence that the references are, in fact, to annulled convictions —
we decline to address this argument because the petitioner did not raise it
before DOS, either in his initial request or in his motion for reconsideration.
See Appeal of Morrissey, 165 N.H. 87, 98 (2013) (concluding that issue not
raised in initial appeal to Department of Environmental Services Wetlands
Council or in motion for reconsideration not preserved for appellate review).
Because the petitioner prevails on his statutory claim, we need not address his
constitutional argument.

                                                 Reversed and remanded.

      DALIANIS, C.J., and HICKS, CONBOY, and LYNN, JJ., concurred.




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