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THE SUPREME COURT OF NEW HAMPSHIRE
2d Circuit Court – Plymouth District Division
THE STATE OF NEW HAMPSHIRE
Argued: January 16, 2013
Opinion Issued: March 13, 2013
Michael A. Delaney, attorney general (Nicholas Cort, assistant attorney
general, on the memorandum of law and orally), for the State.
Thomas Barnard, assistant appellate defender, of Concord, on the brief
and orally, for the defendant.
LYNN, J. The defendant, Matthew Blunt, appeals an order of the 2d
Circuit Court – Plymouth District Division (Kent, J.), denying a motion to strike
the imposition of class A misdemeanor sentences following the defendant’s
conviction of simple assault and resisting arrest. See RSA 631:2-a (2007)
(simple assault); RSA 642:2 (Supp. 2012) (resisting arrest). On appeal, he
argues that the sentences imposed by the trial court were unlawful because the
complaints under which he was convicted alleged only class B misdemeanor
offenses. We vacate the sentences and remand.
The record reflects the following undisputed facts. On December 30,
2010, Officer William Ulwick of the Lincoln Police Department was dispatched
to the Mountain Club at Loon Mountain ski resort in response to a complaint
of an individual “walking around the property kind of aimlessly and acting
odd.” Upon arrival, Ulwick observed the defendant in the parking lot, throwing
snow into the air. The officer followed the defendant around a corner and
found him sitting on a snowmobile, “singing, talking, rapping to his
[snowboard] boots.” When asked by Ulwick what he was doing, the defendant
responded that he was “enjoying the beautiful mountains and scenery,” and
was trying to get to a picnic table. In response to further questioning, the
defendant asked if he was under arrest, and when told that he was not,
requested that the officer discontinue “this line of questioning.” When Ulwick
persisted, the defendant started to walk away. At this point, Ulwick grabbed
the defendant by his left hand and told him he was being detained. The
defendant then punched Ulwick in the mouth, pushed him and attempted to
tackle him. Ulwick took the defendant to the ground and, with the assistance
of ski resort staff, placed him in handcuffs, after which he was taken to the
officer’s cruiser and removed from the area without further incident.
The State filed two criminal complaints against the defendant in the
district division. The first alleged that he committed the “unprivileged physical
contact” variant of simple assault, see RSA 631:2-a, I(a),1 by “knowingly
caus[ing] unprivileged physical contact to another in that [d]efendant struck
Officer William Ulwick about the head.” The second alleged that he committed
the crime of resisting arrest, in that he physically interfered with Ulwick, whom
he recognized to be a law enforcement officer seeking to effect his arrest or
detention, by “pulling away from and struggling with said officer.” On both
complaint forms the box specifying “class A misdemeanor” was checked,2 but
neither before nor at the defendant’s arraignment did the State file notice,
pursuant to RSA 625:9, IV(c)(2) (Supp. 2012), of its intent to seek class A
misdemeanor penalties. The State did, however, on March 7, 2011, file a
notice of its intention to seek enhanced penalties under RSA 651:6, I(g) (Supp.
2012), with respect to the simple assault charge, based on the fact that the
defendant knew at the time of the assault that Ulwick was a law enforcement
officer acting in the line of duty.
RSA 631:2-a, I(a) provides that a person is guilty of simple assault if he “[p]urposely or knowingly
causes bodily injury or unprivileged physical contact to another.” (Emphasis added.)
2 In response to inquiry by the court at oral argument, the State specifically indicated that it was
not taking the position that checking the “class A misdemeanor” boxes on the complaint forms
constituted sufficient notice to comply with RSA 625:9, IV(c)(2).
Following a bench trial, on June 1, 2011, the district division found the
defendant guilty of both offenses. On the simple assault charge, the court
sentenced him to six months in the house of corrections, with all but thirty
days deferred for two years upon good behavior, and two years probation. On
the resisting arrest charge, the court imposed a sentence of sixty days
incarceration, all of which was suspended for a period of two years. The
defendant did not then challenge the sentences on the ground that they
exceeded what was permissible for a class B misdemeanor. Instead, he
appealed the convictions to the superior court for a de novo jury trial. See RSA
599:1 (Supp. 2006) (amended 2011).3
The defendant subsequently waived his right to a jury trial, and on
September 19, 2011, with the assent of the parties, the superior court granted
a motion to remand the cases to the district division. At a hearing before the
district division on January 17, 2012, the defendant made an oral motion to
strike the class A penalties, asserting that the original sentences imposed by
that court were unauthorized because he had been convicted only of class B
misdemeanors. The court recessed the hearing and requested that the parties
file memoranda of law on the issue.
On February 8, 2012, the court denied the defendant’s motion to strike.
In its written order, the court explained the basis for its ruling as follows:
The Court finds that the State has met the burden imposed by the
statute [RSA 625:9] as the complaints, on their face, indicated the
offenses were Class A Misdemeanors and each complaint recited
facts that involved an act of violence. . . . It would be nonsensical
to believe that “struck William Ulwick about the head” or “pulling
away and struggling” do not involve acts of violence.
Furthermore, the [d]efendant through his attorney waived
the arraignment and that would have been the appropriate time to
raise the issue; or anytime prior to trial the issue could have been
raised; or at sentencing the issue could have been raised; or prior
to appeal the issue could have been raised; or prior to trial in the
Superior Court, the matter could have been raised. While one
cannot waive a mandatory right, it becomes clear that there was no
confusion about the fact that the complaints indeed did allege acts
that involved violence. And this is further amplified by the
application of RSA 651:6 which speaks to crimes against law
enforcement officers as specified as Class A misdemeanors.
A person convicted of a class B misdemeanor has no right of appeal to the superior court for a
trial de novo. See RSA 502-A:12 (2010); RSA 599:1. Rather, the appeal in such cases is directly
to this court pursuant to RSA 599:1-c, II (2001).
This appeal followed.
On appeal, the defendant argues that the district division erred in
determining that each of the complaints charged a class A misdemeanor.
Specifically, he contends that the trial court was required to treat both
complaints as alleging class B misdemeanors because: (1) neither complaint
alleged a crime that involved as an element an act of violence or a threat of
violence, see RSA 625:9, IV(c)(1); and (2) the State did not file notice of its
intent to seek class A penalties on or before the date of his arraignment on a
form approved for this purpose by the judicial branch administrative council,
see RSA 625:9, IV(c)(2).
RSA 625:9, IV provides, in pertinent part:
(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 RSA 490:26-d.
In turn, the pertinent portion of RSA 625:9, VII states:
The term “act of violence” means attempting to cause or purposely
or recklessly causing bodily injury with or without a deadly
weapon; and the term “threat of violence” means placing or
attempting to place another in fear of imminent bodily injury either
by physical menace or by threats to commit a crime against the
person of the other.
The defendant first argues that the trial court erroneously determined
that both complaints fell within the terms of RSA 625:9, IV(c)(1) based on the
factual allegations contained within the complaints describing the manner in
which the offenses were committed. According to the defendant, the important
consideration under the statute is not whether a particular offense was
actually committed in a violent manner, but whether an act of violence must be
involved as an element of the offense. See RSA 625:11, III (2007) (“‘Element of
an offense’ means such conduct, or such attendant circumstances, or such a
result of conduct as . . . (a) [i]s included in the definition of the offense.”
(emphasis added)). The State does not dispute the defendant’s interpretation of
the statute, and we agree that this is what the statute means.
Applying this interpretation, we conclude that neither the simple assault
complaint nor the resisting arrest complaint required that an act of violence be
involved as an element of the offense. The variant of simple assault alleged
here involved causing unprivileged physical contact, not bodily injury. As we
stated in State v. Burke, 153 N.H. 361, 364 (2006), “‘unprivileged physical
contact’ includes all physical contact not justified by law or consent.” Clearly,
not all unprivileged physical contact entails “causing [or attempting to cause]
bodily injury,” RSA 625:9, VII, and therefore this variant of simple assault does
not necessarily involve as an element an “act of violence” within the meaning of
RSA 625:9, IV(c)(1). Similarly, the resisting arrest statute, RSA 642:2, which
proscribes physical interference with a law enforcement officer seeking to
effectuate an arrest or detention, may be violated by conduct that falls short of
causing or attempting to cause bodily injury. For example, in State v. Smith,
144 N.H. 1, 7 (1999), we found evidence establishing merely that the defendant
“broke free and retreated into the cellar,” after being told he was under arrest,
sufficient to support a conviction for violating RSA 642:2.
The defendant next asserts that the State also failed to satisfy the
alternative avenue for avoiding the statutory presumption that unclassified
misdemeanors be treated as class B misdemeanors because it failed to file
notice of its intent to seek class A misdemeanor penalties at or before the
defendant’s arraignment. See RSA 625:9, IV(c)(2). The defendant advances two
arguments in support of this claim. First, he argues that the mere fact that the
boxes on the complaint forms signifying class A misdemeanors were checked
was not sufficient to comply with the requirements of the statute. Again, we
note that the State does not argue to the contrary, and again we agree with the
defendant. RSA 625:9, IV(c)(2) requires that the notice be filed “on a form
approved by the judicial branch administrative council in accordance with RSA
490:26-d.” We take judicial notice that the council has approved a form for use
pursuant to the statute; the form contains a specific listing of the penalties
that may be imposed for a class A misdemeanor, and requires the prosecutor
or police officer to certify to the court that the notice has been or will be
provided to the defendant at or before arraignment. We hold that merely
checking the “class A misdemeanor” box on the standard complaint form does
not constitute compliance with RSA 625:9, IV(c)(2).
Second, the defendant argues that the State’s notice of intent to seek
enhanced penalties under RSA 651:6, I(g) for the simple assault charge did not
override RSA 625:9, IV and authorize the trial court to impose penalties in
excess of those for class B misdemeanors. In response, the State first asserts
that this argument is not preserved because the defendant did not address the
application of RSA 651:6, I(g) in either his notice of appeal or his opening brief.
We reject the State’s position. Although the trial court’s order cited RSA 651:6,
the order is unclear as to what effect, if any, the trial court concluded this
statute had on its ability to impose class A misdemeanor sentences. In these
circumstances, we believe that the defendant’s notice of appeal and opening
brief, both of which frame the issue broadly as whether the trial court had the
authority to impose class A misdemeanor sentences, did not need to
preemptively assert that RSA 651:6 did not provide such authorization; it was
sufficient for the defendant to address the issue in his reply brief in response to
the State’s assertion that the statute did authorize the sentences imposed. Cf.
Sup. Ct. R. 16(3)(b) (“The statement of a question presented will be deemed to
include every subsidiary question fairly comprised therein.”); Town of
Barrington v. Townsend, 164 N.H.___, ___, 55 A.3d 952, 956 (2012) (broad
question of whether campground was illegal fairly encompassed question
whether it violated particular section of zoning ordinance); Panas v. Harakis &
K-Mart Corp., 129 N.H. 591, 617 (1987) (holding that reply brief is properly
employed to reply to opposing party’s brief).
Turning to the merits, we note first that because RSA 651:6, I(g) applies
only to “crimes defined in RSA 631,” it is not applicable to the defendant’s
conviction on the resisting arrest charge, since that offense is found in RSA
With respect to the simple assault charge, the State contends that the
plain language of RSA 651:6, III makes the enhanced penalty it authorizes for
offenses that fall within the terms of RSA 651:6, I(g) applicable to
misdemeanors generally, without regard to their classification as A or B level
offenses. It therefore argues that to hold that this statute authorizes enhanced
penalties only for class A misdemeanors would be improper, as it would
effectively “add language to the statute that the legislature did not see fit to
include.” State Employees Assoc. of N.H. v. N.H. Div. of Personnel, 158 N.H.
338, 343 (2009). Assuming without deciding that RSA 651:6, III(b) may be
invoked by the State to enhance the sentence for either a class A or class B
misdemeanor to “a minimum to be fixed by the court of not more than 2 years
and a maximum to be fixed by the court of not more than 5 years,” RSA 651:6,
III(b), we must still determine whether the State may use the statute to seek an
enhanced sentence in the district division.
In Kiluk v. Potter, Administrator, 133 N.H. 67 (1990), the defendant was
convicted of two misdemeanors in the former district court. Pursuant to the
version of RSA 651:6 then in effect, the court sentenced him to two concurrent
sentences of not more than five years nor less than two years based on the fact
that he had twice previously been imprisoned on sentences in excess of one
year. On appeal, we reviewed the history leading to the 1912 amendment of
Part II, Article 77 of the New Hampshire Constitution, which authorized the
legislature “to give to police courts original jurisdiction to try and determine,
subject to right of appeal and trial by jury, all criminal causes wherein the
punishment is less than imprisonment in the state prison.” We then held that:
[A] district court judge may not sentence a convicted
criminal defendant to the enhanced penalties provided in RSA
651:6. The maximum sentence which a district court may impose
for a given crime is one year in a county correctional facility. If the
State plans to seek an extended term of imprisonment under RSA
651:6, it has the option to seek a trial in the first instance in the
superior court. See RSA 592-A:1; State v. Blouin, 110 N.H. 202,
203, 263 A.2d 677, 678 (1970).
Kiluk, 133 N.H. at 70 (emphasis added).
The State argues that Kiluk is not a bar to utilizing RSA 651:6 to seek an
enhanced sentence in the district division as long as the sentence actually
imposed does not exceed one year of imprisonment. However, when the
legislature exercised the power granted it by the above amendment, it defined
the district division’s jurisdiction based not upon what sentence is actually
imposed in any given case, but upon the maximum penalty that may be
imposed for the offense with which the defendant is charged. RSA 502-A:11
states, in pertinent part: “Each district court shall have . . . original
jurisdiction . . . of all crimes and offenses committed within the confines of the
district in which such court is located which are punishable by a fine not
exceeding $2,000 or imprisonment not exceeding one year, or both . . . .”
(Emphasis added.) See RSA 490-F:3 (Supp. 2012) (granting the circuit court
the jurisdiction formerly exercised by the district court). Consequently,
because the notice of intent to seek enhanced sentence purported to authorize
a sentence beyond that which the district division had the power to impose, we
conclude, as we did in Kiluk, that the State’s filing of that notice in the circuit
court was wholly ineffective. And insofar as the State’s position can be
understood to suggest that the RSA 651:6 notice should nonetheless be treated
as a “proxy” for the notice required by RSA 625:9, IV(c)(2), we reject this
argument as well. Not only was the RSA 651:6 notice filed in this case devoid
of any indication that its purpose was to authorize the imposition of class A
misdemeanor penalties (as opposed to the much greater penalties provided for
in RSA 651:6, III(b)), but the notice was not filed at or before the defendant’s
arraignment, as required by RSA 625:9, IV(c)(2).
For the reasons stated above, we hold that the defendant’s two
convictions were for class B misdemeanors. Accordingly, we vacate the
sentences imposed and remand to the district division for resentencing.
Sentences vacated and
DALIANIS, C.J., and HICKS, CONBOY, and BASSETT, JJ., concurred.
Defendant Matthew Blunt appealed a circuit court order that denied his motion to strike the imposition of class A misdemeanor sentences following his conviction of simple assault and resisting arrest. On appeal to the Supreme Court, defendant argued that the trial court's sentences were unlawful because the complaints under which he was convicted alleged only class B misdemeanors. Specifically, he contended that the trial court was required to treat both complaints as alleging class B misdemeanors because: (1) neither complaint alleged a crime that involved as an element an act of violence or a threat of violence; and (2) the State did not file notice of its intent to seek class A penalties on or before the date of his arraignment on a form approved for this purpose by the judicial branch administrative council. Upon review, the Supreme Court concluded that neither the simple assault complaint nor the resisting arrest complaint required that an act of violence be involved as an element of the offense. Furthermore, the Court held that merely checking the "class A misdemeanor" box on the standard complaint form did not constitute compliance with statute, and that defendant's two convictions were actually class B misdemeanors. Accordingly, the Court vacated the sentences imposed and remanded the case back to the district division for resentencing.
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