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                  THE SUPREME COURT OF NEW HAMPSHIRE

                            ___________________________


Rockingham
No. 2017-0403


                        THE STATE OF NEW HAMPSHIRE

                                            v.

                                JOHN T. BRAWLEY

                            Argued: June 14, 2018
                      Opinion Issued: September 18, 2018

      Gordon J. MacDonald, attorney general (John J. Conforti, assistant
attorney general, on the brief, and Laura E.B. Lombardi, senior assistant
attorney general, orally), for the State.


      John T. Brawley, self-represented, filed no brief.


      American Civil Liberties Union of New Hampshire, of Concord (Gilles R.
Bissonnette on the brief), New Hampshire Legal Assistance, of Manchester
(Elliott Berry on the brief), and Albert E. Scherr, of Concord, on the brief and
orally, as amici curiae.
      DONOVAN, J. The State appeals an order of the Superior Court
(Schulman, J.) denying a motion for a bench warrant filed by the New
Hampshire Division of Administrative Services, Office of Cost Containment
(OCC)1 to secure the appearance of the defendant, John T. Brawley, at a show
cause hearing. We reverse and remand.

      The record supports the following facts. The defendant was charged with
two criminal offenses in the Circuit Court that were transferred to the Superior
Court for a jury trial. Because the defendant was indigent, the trial court
appointed a public defender to represent him. At that time, the trial court
issued an order, pursuant to RSA 604-A:9 (2001), requiring the defendant to
reimburse the OCC for the costs and expenses associated with his public
defense and directed him to contact the OCC, within 5 days of the court’s
order, to verify his mailing address and to make payment arrangements. The
jury acquitted the defendant of both charges following the trial.

      The State alleges that the OCC attempted to contact the defendant prior
to and following his trial to arrange for his reimbursement of these costs, but to
no avail. Consequently, the OCC filed a motion with the trial court alleging
that the defendant did not comply with his payment obligations or provide any
cause for his non-compliance. The trial court scheduled a show cause hearing
for February 2017, but the defendant failed to appear. In response, the trial
court issued an arrest warrant for the defendant and set bail at $50. The
defendant was subsequently arrested in March 2017 pursuant to the warrant
and paid the $50 bail as a condition of his release. When he posted his bond
payment, the defendant attested to having the same address he initially
provided to the OCC and to the trial court. The bail payment was remitted to
the OCC, thereby reducing the defendant’s reimbursement obligation.2

       Thereafter, the OCC requested a further hearing on its show cause
motion alleging that the defendant made no other payments toward his
obligation. The trial court scheduled a second show cause hearing for June
2017, but the defendant, again, failed to appear. In response, the OCC
requested that the trial court issue a warrant for the defendant’s arrest and set
bail in the full amount of his reimbursement obligation, which would then be
forfeited to the OCC. Alternatively, the OCC requested that the defendant be
jailed for three days before being permitted a bail hearing.

       On this occasion, the trial court denied the OCC’s motion, concluding
that, in light of his acquittal, the defendant was “unconditionally discharged”
1 The OCC acts as the State’s debt collection agency in matters associated with the repayment of
costs and expenses for court-appointed counsel.
2 The record is unclear as to the true amount of the defendant’s repayment obligation. The trial

court’s order suggests that the full amount of the defendant’s obligation amounts to $453.75,
which represents the original debt the OCC attempted to collect before the $50 bail payment was
forfeited to the OCC. We leave this factual discrepancy for the trial court on remand.


                                                2
from the criminal case. The court then reasoned that it lacked jurisdiction over
the defendant to enforce its repayment order or require the defendant to show
cause why he cannot, or should not, be required to reimburse the OCC for the
costs associated with his public defense. The trial court further found that the
defendant’s reimbursement obligation constitutes a civil debt and that the OCC
was, in effect, a civil judgment creditor required to pursue its collection efforts
by initiating a separate civil collection action. This appeal followed.

       A trial court’s jurisdictional determination is subject to de novo review.
See Univ. Sys. of N.H. Bd. of Trs. v. Dorfsman, 168 N.H. 450, 453 (2015).
Similarly, the trial court’s finding that RSA 604-A:9 does not apply to an
acquitted defendant involves a question of statutory interpretation that is also
subject to de novo review. State v. Maxfield, 167 N.H. 677, 679 (2015). “In
matters of statutory interpretation, we are the final arbiter of the intent of the
legislature as expressed in the words of the statute considered as a whole.” Id.
(quotation omitted). “We first look to the language of the statute itself, and, if
possible, construe that language according to its plain and ordinary meaning.”
Id. (quotation omitted). “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.” Id. (quotation omitted).
“We construe all parts of a statute together to effectuate its overall purpose and
avoid an absurd or unjust result.” Id. (quotation omitted). “Moreover, we do
not consider words and phrases in isolation, but rather within the context of
the statute as a whole.” Id. (quotation omitted). “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.
(quotation omitted).

       The State argues that the trial court erred in ruling that RSA 604-A:9
does not confer continuing jurisdiction over an acquitted defendant for the
purpose of enforcing repayment orders or otherwise collecting the costs
associated with the defendant’s public defense. The State further disputes the
trial court’s ruling that, because the notice provisions set forth in RSA 604-A:9,
I-c do not apply to an acquitted defendant, the defendant’s repayment
obligation constitutes a “purely civil debt,” requiring the OCC to initiate a
separate civil action to secure repayment. We agree with the State.

      The State is constitutionally and statutorily obligated to provide indigent
criminal defendants with the option of court-appointed legal counsel in cases
where a defendant’s liberty is at risk. See RSA 604-A:2, I (Supp. 2017); N.H.
CONST. pt. I, art. 15. RSA chapter 604-A provides a comprehensive framework
and set of procedures by which the State first provides legal representation to
indigent defendants in criminal cases “as a precondition to imprisonment,”
RSA 604-A:1 (Supp. 2017), and then seeks repayment from the defendant for
the State’s costs and expenses of that representation. See RSA 604-A:9.
Pursuant to RSA 604-A:9, I, individuals who are provided with a public defense


                                        3
are ordered by the court to repay the State the fees and expenses associated
with the legal defense in accordance with established guidelines that determine
the individual’s financial ability to meet his or her obligation. The statute
further provides, in relevant part, that:

      The court shall enter a separate order . . . setting forth the terms of
      repayment of fees and expenses to the state, or if the court finds
      that the defendant is financially unable to make such payment or
      payments setting forth the reasons therefor. . . . If the court does
      not order full payment for representation under RSA 604-A, the
      commissioner of administrative services or his designee shall
      perform an investigation to determine the defendant’s present
      financial condition and his ability to make repayments and may
      petition the court for a new repayment order at any time within 6
      years from the date of the original order.

RSA 604-A:9, I-b. The statute further provides that:

      III. If any repayment ordered pursuant to [this statute] becomes
      overdue, the court having originally appointed counsel may order
      any employer of a former defendant to deduct from that person’s
      wages or salary the appropriate amount due and to pay such
      amount to the appropriate department . . . which shall refund such
      amount to the state . . . .

      ....

      V. If the defendant is incarcerated in the state prison, orders for
      repayment . . . may be suspended until the time of the defendant’s
      release. . . . If the defendant has not been ordered to repay the
      state for expenses incurred on the defendant’s behalf, at any time
      within 6 years of the time the defendant is released from the state
      prison the state may petition the superior court for repayment, and
      upon such petition the superior court shall order repayment
      unless the court finds the defendant is unable to comply with the
      terms of any order for repayment.

      VI. At any time within 6 years of the disposition of an action in
      which the court finds at the time of disposition or thereafter that
      the defendant is not able to make payments to the state . . . the
      state may petition the court for an order of repayment.

RSA 604-A:9, III, V, VI (emphasis added).

     We have previously ruled that the repayment obligations set forth in RSA
604-A:9, I, are not extinguished by the dismissal of a defendant’s charges and


                                        4
that the State’s interest in recouping the costs associated with the defendant’s
public defense are rationally based and constitutional. State v. Haas, 155 N.H.
612, 613-14 (2007). Although Haas did not involve a jurisdictional challenge,
as a matter of statutory interpretation, we found that the purpose of RSA 604-
A:9 “is to require that those who are financially able to do so, pay for a service
that they received from the State.” Id. at 613. The plain language of the
statute reflects this purpose and also contemplates the State’s recoupment of
its costs and expenses after the disposition of an action without regard to the
nature of the disposition, i.e., conviction, acquittal, or dismissal.

        For example, RSA 604-A:9, VI, expressly authorizes the State to petition
the trial court “[a]t any time within 6 years of the disposition of an action” for
an order of repayment in cases where the trial court has previously determined
that the defendant was not financially capable of making payments. The
statute also authorizes the trial court to issue separate orders establishing the
terms of repayment and the conditions by which those terms can be enforced
or modified, including the deduction of wages from a “former defendant”
following the resolution of the underlying criminal matter. See RSA 604-A:9,
I-b, III. Thus, we conclude that RSA 604-A:9 confers upon the trial court
continuing jurisdiction over an individual who has received a public defense
until: (1) the State’s repayment interests have been satisfied; or (2) the 6-year
limitation set forth in RSA 604-A:9, I-b, V, and VI has lapsed.

       The State next argues that the trial court erred by ruling that RSA 604-
A:9, I-c’s notice provisions do not apply to an acquitted defendant. The trial
court ruled that RSA 604-A:9, I-c “cannot apply after the court loses
jurisdiction over the defendant by virtue of [a] jury verdict of not guilty.” As
stated above, however, RSA 604-A:9 confers upon the trial court continuing
jurisdiction until the defendant’s reimbursement obligations have been
resolved by either the satisfaction of the debt or the lapse of the limitations
period. For this reason we find that the trial court erred in ruling that the
notice provisions set forth in RSA 604-A:9, I-c do not apply to an indigent
defendant who has been acquitted.3 The plain language of RSA 604-A:9, I-c
indicates that the notification provisions apply to all parties who have received
a public defense, regardless of the nature of the disposition of the underlying
criminal matter.



3Amici curiae agree with our conclusion that the notice provisions of RSA 604-A:9, I-c apply
equally to all indigent defendants who have received a public defense, even if the defendant has
been acquitted. Amici curiae also argue, however, that the notice provisions violate Part I, Articles
1 and 2 of the New Hampshire Constitution and the Fourteenth Amendment to the United States
Constitution. This argument was not raised in the notice of appeal and, consequently, the State
argues that it is not properly before us on appeal. Because we find that these constitutional
challenges are not fully developed, we decline to address them here. See State v. Blackmer, 149
N.H. 47, 49 (2002) (declining to address any issue not raised in a notice of appeal).


                                                 5
      That statute states, in relevant part, that:

      In a case where counsel has been appointed, the defendant shall
      be required to notify the clerk of the court and the [OCC] of each
      change of mail address and actual street address. Whenever
      notice to the defendant is required, notice to the last mail address
      on file shall be deemed notice to and binding on the defendant.

RSA 604-A:9, I-c. By this language, the legislature established specific
notification procedures and imposed upon indigent defendants certain
obligations that distinguish the RSA chapter 604’s recoupment process from
civil collection procedures. Compare RSA 604-A:9, I-c, with Super. Ct. Civ. R.
51(c) (“judgment creditor shall cause the Notice of Hearing to be served either
in-hand or by certified mail, restricted delivery, return receipt requested”). The
legislature’s use of the word “whenever” in RSA 604-A:9, I-c without reference
to either the disposition of the defendant’s underlying criminal matter or the
initiation of a separate civil collection process, authorizes the State to rely upon
the statute’s notification procedures when seeking reimbursement.

       Additionally, when read in the context of RSA chapter 604-A’s entire
statutory scheme, the legislature’s inclusion of the term “whenever” in the
statute’s notification provisions signifies that it applies to proceedings
governing the State’s statutory right to initiate repayment proceedings within
six years of the disposition of cases involving “former defendants” and after a
defendant’s release from prison. See RSA 604-A:9, III, V, VI; see also State v.
Dansereau, 157 N.H. 596, 598 (2008) (we interpret a statute in the context of
the overall statutory scheme and not in isolation). Accordingly, we conclude
that the trial court’s ruling that the OCC is required to comply with the
notification procedures and requirements applicable to civil collection matters,
rather than the notification provisions set forth in RSA 604-A:9, I-c, contradicts
the plain meaning of the statute and is erroneous.

        We now address the argument asserted by amici curiae that courts
enforcing payment orders must comply with RSA 604-A:2-f (Supp. 2017)
regardless of whether a debtor was acquitted. The State maintains that this
statute is inapplicable here because it was enacted more than a month after
the proceedings at issue in this case and, at any rate, the trial court never held
a “final hearing,” as contemplated by RSA 604-A:2-f, because the defendant
failed to appear. Although this issue was not raised in the notice of appeal and
the State’s arguments are well-taken, we address it now because this question
will likely arise on remand, it presents a question of statutory interpretation,
which we would review de novo, and “[d]eciding it now will avoid unnecessarily
burdening the parties with additional steps in the litigation process.”
LaChance v. U.S. Smokeless Tobacco Co., 156 N.H. 88, 91 (2007).




                                         6
       RSA 604-A:2-f was enacted for the purpose of providing certain
procedural protections to indigent defendants who fail to pay an “assessment”
or perform community service to satisfy their obligations to, among other
things, repay the State’s costs and expenses associated with their public
defense. See RSA 604-A:2-f. These protections include the following
requirements: (1) the court must “[p]rovide the defendant with a financial
affidavit and direct the defendant to complete it,” RSA 604-A:2-f, II(a); (2) the
court must inform the defendant that he or she may be jailed immediately if
the court finds that he or she has willfully failed to comply with the court’s
prior repayment orders, RSA 604-A:2-f, II(b); (3) the court must inform the
defendant that he or she is entitled to counsel for the final hearing in which
incarceration is a possible outcome and appoint counsel if the defendant
desires and cannot afford counsel, RSA 604-A:2-f, II(c); and (4) the court must
explain the issues that need to be decided and the process to be followed at the
final hearing, RSA 604-A:2-f, II(d). RSA 604-A:2-f also requires that a
defendant, facing possible incarceration, have counsel, or execute a waiver of
counsel, at the final hearing. RSA 604-A:2-f, I. Incarceration of a defendant
may occur only after the court has made a specific inquiry into the defendant’s
financial circumstances and the reasons for the defendant’s noncompliance
with repayment or community service orders, and the court finds that the
defendant has willfully failed to pay or perform community service. Id.

       Although this statute was enacted after the trial court issued its order in
this case, we recognize that the question of its application to the defendant is
likely to arise should the trial court have an opportunity to hold a final hearing.
RSA 604-A:2-f is silent as to how it should be applied. “When legislation is
silent as to whether the statute should apply prospectively or retrospectively,
our interpretation turns on whether the statute affects the parties’ substantive
or procedural rights.” State v. Hamel, 138 N.H. 392, 394 (1994). When a
statute is remedial or procedural in nature, it may be applied to cases pending
at the time of enactment. In re Silk, 156 N.H. 539, 542 (2007). If, on the other
hand, “application of a new law would adversely affect an individual’s
substantive rights . . . it may not be applied retroactively.” Id. In the final
analysis, “the question of retrospective application rests on a determination of
fundamental fairness, because the underlying purpose of all legislation is to
promote justice.” Id. (quotation omitted). Distinguishing substantive rights
from procedural or remedial rights is not a simple or formulaic task, id. at 543,
but we find that RSA 604-A:2-f affects the procedural rights of the parties and
application of this new law on remand would not adversely affect either the
State’s or an indigent debtor’s substantive rights. See State v. Ploof, 162 N.H.
609, 624 (2011) (recognizing an indigent defendant’s right to appointed counsel
as a procedural safeguard in RSA chapter 135-E (Supp. 2010) proceedings).
We therefore conclude that RSA 604-A:2-f should be applied retroactively to the
case before us, and we now explain why the statute applies to an acquitted
defendant.



                                        7
       We agree with amici that an OCC obligation constitutes an “assessment”
under RSA 604-A:2-f. Although the term is not defined by RSA chapter 604-A,
“we look to the common usage, using the dictionary for guidance” under these
circumstances. K.L.N. Construction Co. v. Town of Pelham, 167 N.H. 80, 85
(2014). Black’s Law Dictionary, in part, defines “assessment” as the
“[i]mposition of something, such as a tax or fine, according to an established
rate.” Black’s Law Dictionary 139 (10th ed. 2014). Indeed, RSA 604-A:9, I,
limits an indigent defendant’s repayment obligation to an amount no greater
than the State’s contractually established “flat rate for a contract attorney.”
Therefore, we find no distinction between a defendant’s repayment obligation
under RSA 604-A:9 and an “assessment” under RSA 604-A:2-f, and we hold
that the procedures set forth in that statute shall apply to the proceedings on
remand in this case.

       Further, because RSA 604-A:2-f amends RSA chapter 604-A, which
governs the representation of indigent defendants, we interpret its purpose in
light of the policy sought to be advanced by the overall statutory scheme. See
State v. Brouillette, 166 N.H. 487, 490 (2014) (“Our goal is to apply statutes in
light of the policy sought to be advanced by the entire statutory scheme. . . .
and not in isolation.”). We have ruled that RSA 604-A:9 applies to acquitted
defendants who have received the benefit of appointed counsel at the State’s
expense. It logically follows that the procedural protections set forth in RSA
604-A:2-f similarly apply to indigent defendants confronting a final hearing for
nonpayment of the costs associated with the services of court-appointed
counsel — regardless of the outcome of the underlying criminal matter.
Accordingly, we reverse the trial court’s rulings and remand for further
proceedings consistent with this opinion.

                                                  Reversed and remanded.

     LYNN, C.J., and HICKS, BASSETT, and HANTZ MARCONI, JJ.,
concurred.




                                        8
