Opinion
NO. 218-2015-CR-01774
09-20-2016
STATE OF NEW HAMPSHIRE v. S.T.
ORDER SCHEDULING HEARING ON PETITION TO ANNUL
The defendant, S.T., was originally arrested on one count of felonious sexual assault (FSA) and one misdemeanor count of sexual assault in January 2015. See Doc. 2. The FSA count was bound over to Superior Court in April 2015. The defendant was eventually indicted on two counts of aggravated felonious sexual assault (AFSA) and two counts of FSA in October 2015. A jury found the defendant not guilty on all four charges after a three-day trial in June 2016.
S.T. now seeks to annul the court and arrest records associated with these four charges. The State objects, arguing that RSA 651:5, V (2016) prohibits the Court from considering the merits of S.T. annulment petition. The State contends that "[a]though the defendant was found not guilty, annulment may not be granted because the provisions of [RSA] 651:5 do not permit an annulment for any case involving Aggravated Felonious Sexual Assault." For the reasons that follow, the Court disagrees with the State's interpretation of the annulment statute and schedules a hearing on the merits of S.T. annulment petition.
Analysis
To resolve this issue, the Court must engage in statutory interpretation, the principles of which are well-settled. See Coco v. Jaskunas, 159 N.H. 515, 518 (2009). The Court "first examine[s] the language of the statute, and, where possible, [the Court] appl[ies] the plain and ordinary meanings to the words used." State v. Bulcroft, 166 N.H. 612, 614 (2014) (emphasis added). The Court "do[es] not consider words and phrases in isolation, but rather within the context of the statute as a whole." Petition of Carrier, 165 N.H. 719, 721 (2013). The Court "construe[s] statutes so as to effectuate their evident purpose and to avoid an interpretation that would lead to an absurd or unjust result." Bulcroft, 166 N.H. at 614. The Court also "construe[s] provisions of the Criminal Code according to the fair import of their terms and to promote justice." Id. (citing RSA 625:3). Where statutory language is ambiguous, the Court can "resolve the ambiguity by determining the legislature's intent in light of legislative history." United States v. Howe, 167 N.H. 143, 145 (2014) (quotation omitted).
The same issue is presented in another case before this Court. See State v. D.W., Docket No. 218-2010-CR-01774. Because these cases are not consolidated, the Court issues a separate order in each case, even though it comes to the same ultimate conclusion and applies very similar analyses.
"RSA 651:5 sets forth both procedural prerequisites and categorical bars to obtaining annulments." Id. at 146. Paragraph I states that "the sentencing court" may grant a petition to annul "the record of arrest, conviction and sentence of any person" if said petition is "timely brought in accordance with the provisions of this section" and, "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. The next paragraph of the annulment statute provides:
Any person whose arrest has resulted in a finding of not guilty, or whose case was dismissed or not prosecuted, may petition for annulment of the arrest record or court record, or both, at any time in accordance with the provisions of this section.RSA 651:5, II (emphases added). Looking at only these two provisions of the annulment statute, as well as the New Hampshire Supreme Court's decision in State v. Skinner, 149 N.H 102 (2003), S.T. petition to annul would be "timely" because "an individual whose arrest has resulted in an acquittal or whose charges have been nol[le] prossed or dismissed may petition to annul the arrest record 'at any time.'" Id. at 103 (emphasis added) (quoting RSA 651:5, II).
Another provision of the annulment statute creates confusion, however. Paragraph V provides:
No petition shall be brought and no annulment granted in the case of any violent crime, of felony obstruction of justice crimes, or of any offense for which the petitioner was sentenced to an extended term of imprisonment under RSA 651:6.RSA 651:5, V (emphasis added). Pointing out that the legislature used the same word—"case"—in paragraphs II and V of the statute, the State argues that the same definition of this term applies to both paragraphs. In April 2016, the New Hampshire Supreme Court interpreted the language of RSA 651:5, II as follows:
The term "case" is not defined in RSA 651:5, nor in the general definition section of the Criminal Code, see RSA 625:11 (2007). The plain meaning of "case," in this context, is "the matters of fact or conditions involved in a suit: a suit or action in law or equity." Webster's Third New International Dictionary 345: see also Black's Law Dictionary 258 (10th ed. 2014) (defining "case" as "[a] civil or criminal proceeding, action, suit, or controversy at law or in equity"). We note, as does the State, that RSA 651:5 uses the term "charge" in a separate paragraph, see RSA 651:5, VII, evincing a conscious choice to use "case" in RSA 651:5, II. Where the legislature uses different language in related statutes, we assume that the legislature intended something different.State v. Bobola, 168 N.H. ___, ___, 138 A.3d 519, 525 (2016) (quotation and brackets omitted and bolding added).
Importing the definition of the word "case" from Bobola, the State argues that RSA 651:5, V imposes a categorical bar to annulments for anyone whose "case" involved a violent crime, regardless of whether that case ultimately resulted in a conviction. In other words, the State reads paragraph V, which prohibits annulments "in the case of any violent crime," as imposing a limitation on the language of paragraph II, which allows "[a]ny person whose arrest has resulted in a finding of not guilty, or whose case was dismissed or not prosecuted," to petition the Court for annulment of the arrest and court records related to that case "at any time." (Emphasis added.) Under the State's interpretation, a petition to annul the record of a violent crime is never "timely," RSA 651:5, I, and must "be dismissed without a hearing," RSA 651:5, VII. This is true not just for annulments of violent crime convictions, but also annulments in any case in which the defendant was arrested and/or charged with a violent crime, even when that proceeding did not result in a conviction for any crime whatsoever, such as when the defendant was acquitted of all charges.
It is generally true that "[w]ords used with plain meaning in one part of a statute are to be given the same meaning in other parts of the statute unless a contrary intention is clearly shown." Ocasio v. Fed. Exp. Corp., 162 N.H. 436, 451 (2011) (quotation omitted). But cf. Yates v. United States, 135 S. Ct. 1074, 1082 (2015) ("In law as in life, however, the same words, placed in different contexts, sometimes mean different things."). The issue here is not with the definition of the word "case," but rather with the absence of any language of exception in either paragraph II or paragraph V. In other words, the plain language of each of the two provisions, at least when considered by itself, creates a rule that is not subject to any express exceptions. This becomes problematic where, as here, the petitioner's "case" involved a violent crime, see RSA 651:5, XIII, but the petitioner was acquitted of all charges (i.e., the case did not result in any conviction). Without reading additional language into the annulment statute, the two provisions conflict and cannot be applied harmoniously in such a case. Accordingly, the Court must look beyond the plain language of the statute to determine the proper construction of paragraphs II and V.
As noted infra, the Court's order only addresses cases that did not result in a conviction. It leaves for another day cases that resulted in a conviction for something other than a violent crime as defined by statute. See RSA 651:5, XIII.
The Supreme Court's decision in Bobola does not assist this Court in resolving the conflict between these provisions. There, the issue was whether the word "case"—as used in the phrase "whose case was dismissed or not prosecuted"—was synonymous with "charge" (i.e., offense) or instead referred more broadly to the proceedings brought by the State against the defendant as the result of a criminal episode, which could involve multiple charges. The Supreme Court held that the two charges of second degree assault at issue, which alleged alternative theories, "arose from the same 'case' as that term is used in RSA 651:5, II." Id. at 525. The Court's holding was narrow, however; it did not decide, for example, whether separate acts of violence occurring during the same episode, when brought as non-alternative charges, arise out of the same "case" for purposes of the annulment statute. This is the position the State now advocates.
Indeed, the State goes even further, effectively arguing that paragraph V's phrase "the case of any violent crime" means the institution of formal criminal charges against the defendant for any of the offenses listed in RSA 651:5, XIII. The outer edges of the meaning of "case" proffered by the State remain undefined; for instance, it is not clear whether the State is arguing that an arrest for a violent crime which does not result in the filing of charges in court also constitutes a "case of any violent crime" within the meaning of paragraph V. This interpretation appears to be the logical consequence of the State's argument, however, as the Court would have to read paragraph V as creating an offense-based exception to the relief provided in paragraph II, which mentions arrests specifically. Moreover, the records subject to annulment are those of "arrest, conviction, and sentence," RSA 651:5, I, so if paragraph V does apply to cases that do not result in a conviction, the statute suggests that such a case begins with an arrest, see RSA 651:5, II.
For individuals arrested and released on bail in counties that have not yet implemented Felonies First, formal charges need not be filed in Circuit Court until fourteen days prior to the arraignment date, which is scheduled for at least thirty-five days after arrest. See N.H. R. Crim. P. 10(a)(1), (b)(1). This means that the State can decline to file formal charges after an individual has been arrested for a felony offense.
The problem with the State's argument is that it reads paragraph V as creating an exception to paragraph II, without considering the possibility that paragraph II might create an exception to paragraph V. Because neither provision contains language of exception, it is at least equally likely, based on plain language alone, that paragraph II controls over (i.e., creates an exception to) paragraph V. The Court must look beyond the use of the term "case" in these provisions and apply other principles of statutory interpretation to determine the proper construction of the annulment statute.
A. Language of Other Statutory Provisions and Overall Structure of the Statute
"The words of a statute should not be read in isolation," Bulcroft, 166 N.H. at 614, and the Court must "review a particular provision, not in isolation, but together with all associated sections." Appeal of Thermo-Fisher Scientific, 160 N.H. 670, 672 (2010). "This enables [the Court] 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." K.L.N. Constr. Co., Inc. v. Town of Pelham, 167 N.H. 180, 184 (2014) (citations and quotations omitted); accord Howe, 167 N.H. at 145. "In seeking the intent of the legislature, [the Court] will consider the language and the structure of the statute." Appeal of Pub. Serv. Co. of New Hampshire, 125 N.H. 46, 52 (1984). The language of the other provisions and the placement of paragraph V in the overall structure of the annulment statute support the conclusion that it expresses a limitation applicable only to cases that result in convictions.
Paragraph I of the statute, which states that the Court can grant a timely petition for annulment if "the annulment will assist in the petitioner's rehabilitation and will be consistent with the public welfare," notes that this general rule applies "[e]xcept as provided in paragraphs V—VIII." RSA 651:5, I. Similarly, paragraph III states that its time limitations apply "[e]xcept as provided in RSA 265-A:21 or in paragraphs V and VI." RSA 651:5, III. In both paragraphs I and III, then, the statute specifies the applicable exceptions that are contained in subsequent paragraphs or in other statutory provisions.
By contrast, paragraph II is devoid of any language indicating that there is an applicable exception contained in a subsequent provision of the annulment statute, such as for violent crimes under paragraph V. See RSA 651:5, II. If the legislature had intended to preclude an entire category of offenses from being annulled even when the defendant was not successfully prosecuted, paragraph II would read: "Except as provided in paragraph V, [a]ny person whose arrest has resulted in a finding of not guilty, or whose case was dismissed or not prosecuted, may petition for annulment of the arrest record or court record, or both, at any time in accordance with the provisions of this section." (Emphasis added.) Cf. State v. Roger M., 121 N.H. 19, 20-21 (1981) (noting that the then-applicable provision of the annulment statute did "not provide that a fine cannot be part of the sentence" of conditional discharge or probation, and reasoning that, "[i]f that had been the intent, the statute would have read 'when a person who has been sentenced only to probation or conditional discharge . . . .'" (emphasis added)). In other words, "if the legislature desired to limit the application of [RSA 651:5, II,] it could have done so explicitly . . . ." Grafton County Attorney's Office v. Canner, ___ N.H. ___ (decided Aug. 23, 2016) (slip op. at 7) (citing In re Estate of McCarthy, 166 N.H. 548, 551 (2014)).
Although it is equally true that paragraph V does not contain language of exception relating to paragraph II (e.g., "except as provided in paragraph II . . ."), this makes sense given that none of the provisions of the annulment statute note when a preceding paragraph or subparagraph creates an exception, only when a subsequent paragraph or subparagraph does so. See, e.g., RSA 651:5, I, III.
The placement of paragraph V within the overall structure of the annulment statute also suggests that it only pertains to records from cases that result in convictions. Paragraph III sets forth the procedural prerequisites for obtaining an annulment of conviction records. See RSA 651:5, III (providing that "any person convicted of an offense may petition for annulment of the record of arrest, conviction and sentence" under the circumstances described (emphasis added)). In order to be eligible for an annulment of a conviction record, the person must have "completed all the terms and conditions of the sentence" for that conviction and have remained conviction-free, except for certain motor vehicle offenses, for a specified period of time. Id. The governing time period corresponds to the nature of the offense for which the annulment is sought. See id. The Supreme Court recently noted that "[t]he subparagraphs of RSA 651:5, III include several exceptions to the time periods expressed for a given offense classification." Bobola, 138 A.3d at 523. Additionally, the first sentence of the provision specifies that an exception to the listed time periods is also contained in paragraph V of the annulment statute. See RSA 651:5, III ("Except as provided in RSA 265-A:21 or in paragraphs V and VI . . . ."); accord Bobola, 138 A.3d at 523. Given this structure, the Court could reasonably construe paragraph V's categorical bar on annulments of violent offenses to apply to only those records governed by paragraph III—that is, conviction records.
Furthermore, the placement of the violent crime annulment prohibition in paragraph V, "outside of any specific subparagraph" of paragraph III, "is logical given that [the violent crimes listed in paragraph XIII] span multiple offense classifications." Bobola, 138 A.3d at 523. In other words, the prohibition's existence as a separate provision in the statute does not mean that it also creates an exception to paragraph II, which contains no such reference to paragraph V, as noted above.
The annulment statute's other references to paragraph V further suggest that this paragraph only applies to cases resulting in a conviction, as opposed to arrests that did not result in convictions (e.g., acquittals). As discussed above, the first sentence of paragraph III states that conviction records can be annulled under the circumstances of that provision "[e]xcept as provided in RSA 265-A:21 or in paragraphs V and VI." RSA 651:5, III. Paragraph VI and RSA 265-A:21 only apply to conviction records, which suggests that paragraph V is similarly limited to conviction records. As the Bobola court noted, "RSA 265-A:21 requires a ten-year waiting period after conviction before a DUI conviction becomes eligible for annulment." Bobola, 138 A.3d at 523 (emphasis added) (citing RSA 265-A:21, I). Likewise, paragraph VI of RSA 651:5 "pertains only to individuals seeking to annul records pertaining to their convictions, and not to individuals . . . who seek to annul the records of arrests that did not result in convictions." Skinner, 149 N.H. at 104 (emphasis added). Notably, the Supreme Court reached this conclusion even though paragraph VI contains the same broad-sounding language—"[n]o petition shall be brought and no annulment granted"—as paragraph V, the provision at issue here.
The Skinner court concluded that RSA 651:5, VI only applies to annulments of convictions in part because paragraph Vl(b) "references paragraph III of the statute, which . . . applies only to petitions to annul convictions." Id. Both paragraph III and paragraph Vl(a) reference paragraph V, which suggests that all three paragraphs deal with the same subject matter—that is, records of convictions. Similarly, as noted above, the language of limitation in paragraph III suggests that, like the other two provisions referenced (i.e., paragraph VI and RSA 265-A:21), paragraph V applies only to cases that resulted in a conviction. By contrast, a petition seeking to annul the record of an arrest not resulting in a conviction is governed by RSA 651:5, II, Skinner, 149 N.H. at 103-04, which does not reference any other provisions of the statute.
Paragraph VII of the annulment statute provides further support for the conclusion that paragraph V's prohibition on annulling violent crimes applies only where the case resulted in a conviction. Cf. Bobola, 138 A.3d at 525 (directing court to "examin[e] the statute as a whole" when engaging in statutory interpretation). Paragraph VII of the annulment statute provides:
If, prior to disposition by the court of a petition for annulment, the petitioner is charged with an offense conviction for which would bar such annulment under paragraph V or Vl(a) or would extend the time requirements under paragraphs III, IV and Vl(b), the petition shall not be acted upon until the charge is disposed.RSA 651:5, VII (emphases added). This provision contemplates a situation in which the petitioner seeks an annulment of his conviction for crime A and, while that petition for annulment is pending, gets charged with crime B, a "violent crime" within the meaning of RSA 651:5, XIII. Paragraph VII directs the court to hold the petition for annulment in abeyance until the charge of crime B is resolved, expressly contemplating that the outcome of the charge, and not its mere existence, will affect the court's ability to consider the original petition for annulment of conviction for crime A. This is because, pursuant to the annulment statute, a subsequent conviction (not merely an arrest) automatically extends the time a defendant must wait before he may seek (and the court may grant) an annulment of conviction for crime A. See RSA 651:5, III, Vl(b); see also Bobola, 138 A.3d at 523-24. Furthermore, if the defendant's subsequent conviction is for a "violent crime," he can never seek an annulment of his conviction for crime A, see RSA 651:5, Vl(a), nor can he seek an annulment of the subsequent violent crime conviction, see RSA 651:5, V. Accordingly, the statute directs the court to wait until the subsequent charge is disposed of before acting on the petition to annul, because that disposition could affect the court's power to grant the annulment.
If the State's proposed construction was correct, and the mere act of being charged with a violent crime precluded annulment of that record pursuant to paragraph V, then the word "conviction" in paragraph VII would be redundant. In other words, if the operation of paragraph V was triggered merely by a charge, instead of a conviction, then the statute would read in relevant part: "the petitioner is charged with an offense which would bar such annulment under paragraph V . . . ." Because the Court "must give effect to all words in a statute, and presume[s] that the legislature did not enact superfluous or redundant words," State v. Thiel, 160 N.H. 462, 465 (2010), the Court concludes that a conviction, not merely an arrest or an indictment, is necessary to invoke paragraph V's categorical bar to annulment in "the case of any violent crime," RSA 651:5, V.
As the foregoing analysis illustrates, the Court's ultimate conclusion in this case turns on its interpretation of both paragraph II and paragraph V of the annulment statute. A different provision of the statute further supports the proposition that RSA 651:5, II stands on its own, without any offense-based exceptions imposed by paragraph V. "RSA 651:5, IX authorizes the department of corrections to charge a petitioner a fee for annulment investigations 'unless the petitioner . . . has been found not guilty, or the case has been dismissed or not prosecuted in accordance with paragraph II.'" Bobola, 138 A.3d at 525 (emphasis omitted) (quoting RSA 651:5, IX). This language evinces the legislature's intention to treat as one category petitioners who were arrested for, but not convicted of, crimes and who now seek annulment of the records relating thereto.
B. Construing the Statute to Effectuate Its Purpose and to Avoid an Unjust Result
In addition to considering the language and structure of the annulment statute, the Court must interpret the provisions at issue "in light of the policy or purpose sought to be advanced by the statutory scheme." K.L.N., 167 N.H. at 184. The New Hampshire Supreme Court has read language into the annulment statute several times in order to effectuate its overall purpose. See discussion infra. The Supreme Court has also placed a heavy emphasis on avoiding interpretations that would "lead to an absurd, unjust, or illogical result." Skinner, 149 N.H. at 104 (2003); accord Roger M., 121 N.H. at 21-22; Doe v. State, 114 N.H. 714, 717 (1974).
Because this Court must interpret the annulment statute in a way that "effectuate[s] [its] evident purpose," Bulcroft, 166 N.H. at 614, said purpose(s) warrant an extended discussion. "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.'" Wolfgram v. N.H. Dep't of Safety, 168 N.H. ___, ___, 140 A.3d 517, 520 (2016) (quoting State v. Roe, 118 N.H. 690, 692-93 (1978)). For those individuals whose cases did not result in a conviction, "the purpose of annulment is to reduce the collateral consequences of a criminal arrest." Canner, ___ N.H. at ___ (slip op. at 3) (emphasis added), including the stigma that results from having an arrest record, see id. "As [the Supreme Court] recently observed, the purpose of an annulment is to limit the legal effect of a prior arrest rather than to conceal the fact that it occurred." Canner, ___ N.H. at ___ (slip op. at 5-6) (citing Wolfgram, 140 A.3d at 522).
The New Hampshire Supreme Court uses the terms "legal effect" and "collateral consequence" interchangeably. See Canner, ___ N.H. at ___ (slip op, at 3, 6).
The collateral consequences of a prior arrest often materialize when the individual seeks employment. Cf. Kurlychek, Brame & Bushway, Scarlet Letters and Recidivism: Does an Old Criminal Record Predict Future Offending?, 5 CRIMINOLOGY & PUB. POL'Y 483, 484 (2006) ("[T]he use of criminal history records in employment decisions has been increasing over the last 10 years."). Indeed, New Hampshire statutory and decisional law recognizes that the stigma associated with past involvement in the criminal justice system is particularly likely to arise in the employment context. See Doe, 114 N.H. at 717 (noting that conviction confers stigma upon an individual, which remains "in his records subject to being obtained by anyone to whom he applies for employment"); cf. RSA 651:5, X(f) (limiting content of employment application question about prior criminal record to arrests and crimes "that ha[ve] not been annulled by a court"). That stigma endures even for those who were acquitted or whose cases were dismissed or nolle prossed. See Mukamal & Samuels, Statutory Limitations on Civil Rights of People with Criminal Records, 30 FORDHAM URB. L.J. 1501, 1503-04 (2003) ("Thirty-eight states permit all employers (public and private) and occupational licensing agencies to inquire about and rely upon arrests that did not result in a conviction. . . . New Hampshire prohibits only public employers [from doing so]." (citing RSA 21-I:51)). The legislature provided these individuals with the opportunity to remove or reduce the stigma associated with being accused of a crime by allowing them to seek an annulment as soon as the case terminated in their favor. See RSA 651:5, II.
Courts from other jurisdictions have recognized the purposes of similar statutes, including those that allow a person who was accused but not convicted to seek annulment of the arrest and court records associated with the case. See, e.g., Lechner v. Holmberg, 328 A.2d 701, 706-07 (Conn. 1973) ("The obvious purpose of the statute is to protect innocent persons from the harmful consequences of a criminal charge of which he is subsequently acquitted."); In re Robinson, 615 S.E.2d 884, 886 (N.C. Ct. App. 2005) ("The purpose of the statute is to clear the public record of entries so that a person who is entitled to expunction may omit reference to the charges to potential employers and others, and so that a records check for prior arrests and convictions will not disclose the expunged entries." (quotation omitted)); State v. Adler, 92 S.W.3d 397, 402 (Tenn. 2002) ("This Court has previously described the purpose of the expungement statute as being to prevent a citizen from bearing the stigma of having been charged with a criminal offense, where he was acquitted of the charge or prosecution of the charge was abandoned." (quotation omitted)); Bargas v. State, 164 S.W.3d 763, 768-69 (Tex. Ct. App. 2005) ("A central purpose of the expunction statute is to allow a fresh start to individuals who have been wrongly charged. . . . It is designed to provide a means for those persons who have been arrested and indicted for a criminal offense as a result of mistake, false information, or other reason indicating the absence of probable cause for arrest or indictment, to expunge those records." (citations omitted)).
As noted above, RSA 651:5, II was enacted to accomplish similar purposes. And given the legislature's "intention to broadly confer upon qualified individuals the opportunity to remove the stigma of a conviction," Doe, 114 N.H. at 716, the Court reasonably infers that the legislature intended to provide those who were arrested/charged but not convicted with an equal, if not greater, opportunity to remove the stigma associated with having a criminal record. The legislative history of this provision further supports such an inference. See Relative to Annulment of Arrest Records: Hearing on S.B. 366 Before the House Judiciary Comm. (Apr. 2, 1986) (letter of Attorney Laurence Gillis in support of bill) (noting that SB 66 "allow[s] us to treat the [n]ot [g]uilty at least as well as we treat the [g]uilty").
To effectuate the intent of the legislature and the purposes of the annulment statute, the Court construes paragraph II as an exception to the time limitations contained in paragraphs lll-VI, including the categorical prohibitions on annulment listed in paragraph V. In doing so, the Court reads into the relevant language of paragraph V the phrase "that results in a conviction" after the words "in the case of any violent crime." The Court thus construes paragraph V to read in relevant part: "No petition shall be brought and no annulment granted in the case of any violent crime that results in a conviction." (Emphasis added.)
It is true that, "[w]hen the language of a statute is plain and unambiguous, [the Court] need not look beyond it for further indication of legislative intent and [the Court] do[es] not consider what the legislature might have said or add language that the legislature did not include in the statute." Bulcroft, 166 N.H. at 614 (emphasis added). This principle does not apply here, however, because the language of the annulment statute is not "plain and unambiguous." Id. Indeed, the plain language of paragraphs II and V are inconsistent and create ambiguity, and thus the Court must read additional language into the annulment statute in order to resolve this conflict. In doing so, the Court must choose the construction that effectuates the evident purposes of the statute, which include reducing the collateral consequences of having a criminal record. The New Hampshire Supreme Court has frequently read language into the annulment statute to effectuate its overall purpose and to avoid unjust or absurd results.
In Doe, for example, the Supreme Court held that "the lesser punishment of a fine [wa]s included in the greater punishment of imprisonment," and thus a defendant sentenced to only a fine could seek annulment under the then-applicable provision, even though that provision made no mention of a fine. Doe, 114 N.H. at 717-18. The court reasoned that "it would clearly do violence to the intent of this statute to deny its benefits to defendants like this one who committed one foolish misdemeanor because the judge sentenced him to a small fine rather than the harsh sentence of imprisonment." Id. at 718. Similarly, in Roe, the Supreme Court held that a disposition of "continued for sentence" was also a lesser-included punishment of imprisonment for purposes of the same provision at issue in Doe, at least where there had never been a request for imposition of the sentence and several years had passed since the conviction. Roe, 118 N.H. at 692.
In Roger M., the Supreme Court interpreted a different provision of the then-applicable annulment statute, holding that although the provision only allowed annulment where the defendant "ha[d] been sentenced to probation or conditional discharge," it applied to a defendant who had received a conditional discharge and a fine. Roger M., 121 N.H. at 20-21. The court observed that, "[i]n this case, the defendant was ordered to pay a small fine and was not placed on probation. It would be illogical to conclude that defendants whom the court finds it necessary to give a term of probation may have their records annulled while those who receive only a fine may not, where the trial court expressly included the phrase 'conditional discharge' in their sentence." Id. at 21. In reaching its holding, the court observed that "the criminal code [must] be construed liberally 'to promote justice.'" Id. at 22 (quoting RSA 625:3).
The State's proposed construction would not only undermine the purposes of the annulment statute, it would produce illogical and unjust results.
Under the State's proposed construction of RSA 651:5, V, an individual who is arrested and/or charged with one of the offenses defined as a "violent crime" in paragraph XIII can never seek an annulment, even if further investigation concretely establishes that person's innocence and the charges are dropped. No matter what, the person's criminal record will forever retain a black mark, which will follow him whenever he applies for employment, seeks housing, or otherwise engages in an activity that requires a criminal background check. Perpetuating this lasting stigmatization by construing paragraph V to prohibit annulment in cases not resulting in convictions would contravene the purpose of New Hampshire's annulment statute, which is to provide even those convicted of a crime the opportunity to reduce the collateral consequences which persist as a result of that conviction. Such a construction also would not "promote justice," an important consideration in the Court's interpretation of the Criminal Code. Doe, 114 N.H. at 716 (quoting RSA 625:3).
This possibility epitomizes Attorney Dean Strang's harrowing observation that, "in some ways, to be accused is to lose." Making a Murderer: The Great Burden (Netflix 2015).
The State's proposed construction would likewise produce "unjust and seemingly illogical result[s]," id. at 717 (quotation omitted), by conditioning the ability to annul on the initial charging decision. For example, a defendant arrested and charged with first degree assault could never seek to have these records annulled, even if he was acquitted or if the entire case was dropped, see RSA 651:5, Xlll(b) (defining first degree assault as a violent crime), while a defendant charged with second degree assault for comparable conduct could seek an annulment, even if he was convicted, after the statutory period of time elapsed, see RSA 651:5, lll(e) (providing 10-year waiting period for class A felony). In effect, the decision whether an arrest would remain on an individual's official criminal record for life would be determined at the outset by the police officer or prosecutor who decided the severity of the charge for which the individual should be arrested or indicted. This would be true regardless of what further investigation revealed or what a jury decided after the State's evidence was put to the test at trial.
Unlike most states, New Hampshire allows police officers to prosecute offenses at the Circuit Court level without requiring them to have a law degree.
Because even the most diligent prosecutors and law enforcement officers can make mistakes, our criminal justice system imposes a series of obstacles, including a trial requiring proof of guilt beyond a reasonable doubt, to protect individuals from suffering lifelong consequences as a result of government error. The State's interpretation of the annulment statute would allow the initial charging decision to "permanently harm a defendant" by preventing annulment of his record even if he was later exonerated. Adler, 92 S.W.3d at 403. Had the legislature intended to prohibit annulment of all arrest records in violent crime cases, it could have carved out such an exception in the language of paragraph II or even repealed this paragraph altogether. Cf. Mobile Press Register, Inc. v. Lackey, 938 So. 2d 398, 402-03 (Ala. 2006) (holding that current statute did not allow court to expunge files and "urg[ing] the legislature to address the policy of expunging the criminal records of adults"); State v. Blane, 985 So. 2d 384, 387 (Ala. 2007) ("The legislature knows how to draft a statute providing for the expungement of a criminal record."). Instead, the legislature chose to allow defendants whose arrest and/or prosecution resulted in a favorable termination to petition for annulment "at any time." RSA 651:5, II, without specifying a limitation on the type of offense involved.
For these reasons, the Court concludes that a categorical bar to annulment which is triggered solely by the charging decision and without any regard for the ultimate outcome of the accusation fails to promote justice or to effectuate the evident purpose of the annulment statute. See Wolfgram, 140 A.3d at 521 (rejecting construction that "would undermine the purpose of the annulment statute and lead to an unjust result"). Accordingly, the Court declines to adopt the State's proposed construction.
The Supreme Court's recent decision in Canner, which was issued after the parties submitted their legal arguments to this Court, does not compel a different conclusion. There, the court examined "whether records pertaining to [an] annulled arrest and the related prosecution maintained by arresting and prosecuting agencies are categorically exempt from public inspection pursuant to RSA 91-A:4, I." Canner, ___ N.H. at ___ (slip op. at 4). To resolve this issue, the Supreme Court considered the interaction between the annulment statute and the Right-to-Know Law and concluded that those types of records were not categorically exempt from disclosure. See id. at 2-3, 6-7. In reaching this conclusion, the Supreme Court observed that, "for all relevant purposes, the annulment statute prescribes the same rules regarding the use of annulled records, regardless of whether an individual has been acquitted or convicted." Id. at 7 (emphasis added). There is an important difference, however, between the use of records once an annulment has been granted and the ability to seek an annulment in the first place. Canner examined the former, while this case involves the latter. With respect to the circumstances under which a person can seek an annulment in the first place, "the annulment statute differentiates between those individuals who have been acquitted and those who have been convicted." Id.
Furthermore, unlike Canner, this case does not involve the application of the Right-to-Know Law, and thus this Court must focus solely on effectuating the purpose of the annulment statute, which is "to reduce the collateral consequences of a criminal arrest" by treating a person "whose record [has been] annulled . . . in all respects as if he or she had never been arrested . . . ." Id. at 3 (quoting RSA 651:5, X(a)). The legislature necessarily considered the impact annulment would have on the availability of public records when it enacted RSA 651:5. By enacting paragraph II, which allows annulment of records where the case did not result in a conviction, the legislature recognized that (1) an acquittal, dismissal, or nolle prosequi does not protect the accused from the collateral consequences of that accusation, and (2) allowing annulment of those records would reduce these collateral consequences. The legislature also chose to require "the court records relating an annulled arrest, conviction or sentence [to be] sealed" upon entry of the order of annulment, RSA 651:5, X(c), which necessarily precludes these records from being used by members of the public to compile statistical information. "To the extent that the [State] argues that the legislature improperly balanced policy considerations, [the Court] observe[s] that [m]atters of public policy are reserved for the legislature . . . ." CaremarkPCS Health, LLC v. N.H. Dep't of Admin. Servs., 167 N.H. 583, 590-91 (2015) (citation and quotation omitted).
Assuming, arguendo, that public access to court records is an appropriate concern for this Court in resolving how to properly interpret and apply the annulment statute, that factor can be considered in deciding the merits of the annulment petition—that is, whether granting such a petition is "consistent with the public welfare." RSA 651:5, I. In deciding whether to grant an annulment petition, the Court must be mindful of the fact that the legislature, by enacting the annulment statute, has already made certain policy choices about how annulment should affect the treatment of "the person whose record is annulled," Canner, ___ N.H. at ___ (slip op. at 5) (quoting RSA 651:5, X(a), as compared to the treatment of the records themselves and the facts underlying those records, see id. (citing Lovejoy v. Linehan, 161 N.H. 483, 486-87 (2011)). In making said determination, the Court can also take into account the Supreme Court's suggestion that the underlying police and prosecutor records of the annulled case may remain accessible to the public via the Right-to-Know Law. See Canner, ___ N.H. at ___ (slip op. at 7-8).
In sum, the language, structure, and purposes of the annulment statute support the Court's conclusion that RSA 651:5, V imposes a categorical ban on annulments of violent crimes only where the case resulted in a conviction.
C. Legislative History of the Annulment Statute
The annulment statute's legislative history further supports the Court's conclusion that RSA 651:5, V only applies to cases resulting in convictions. Because the plain language of the statute is ambiguous, i.e., it "is subject to more than one reasonable interpretation," Appeal of Naswa Motor Inn, 144 N.H. 89, 90 (1999), the Court can consider legislative history in determining the legislature's intent, see Favazza v. Braley, 160 N.H. 349, 351 (2010); Howe, 167 N.H. at 145.
Until 1986, the annulment statute only contemplated annulments for individuals who had been convicted of a crime, not those who had been arrested but not convicted. See Laws 1971, 518:1; Laws 1986, 189:1. Furthermore, the ability to seek an annulment was tied to the type of sentence the individual received for his conviction, not the type of crime itself. See generally Doe, 114 N.H. at 716-17 (summarizing statutory framework). By 1993, certain convictions for sex and drug offenses were subject to a seven-year waiting period before an annulment could be sought, but there was still no categorical prohibition against annulment other than for defendants sentenced to imprisonment. See Laws 1985, ch. 205; Laws 1986, 189:1.
In 1994, the legislature ultimately repealed and reenacted the entire annulment statute. See Laws 1994, 224:1. The new version of the annulment statute shifted the focus from the type of sentence received to the type of offense for which the defendant was convicted. Id. These changes arose out of two bills introduced in the House of Representatives, both of which sought to expand the types of crimes for which annulment of a conviction could never be sought. House Bill (HB) 1232 sought to amend the provision that imposed a seven-year waiting period for sex and drug offenses by removing the waiting period language and instead prohibiting any annulment of such convictions. See HB 1232 (as introduced on Jan. 5, 1994). The bill also added to the list a number of other types of crimes, including homicide offenses, convictions for which would no longer be eligible for annulment. See id. House Bill (HB) 1315 sought to prohibit annulment of "the record of conviction and sentence" for "a person who was imprisoned for" any homicide offense, AFSA, or FSA. See HB 1315 (as introduced on Jan. 5, 1994).
Representative Donna Sytek, HB 1232's prime sponsor, spoke on behalf of the bill at its public hearing before the House Committee on Corrections and Criminal Justice. She explained that the current version of the statute allowed records to be annulled unless the person had served time for the conviction, without any "consideration of the seriousness of the crime." Relative to Prohibiting Annulments for Certain Crimes: Hearing on H.B. 1232 Before the House Comm. on Corrections & Criminal Justice (Jan. 20, 1994), at 1. HB 1232 reflected the position that "[i]n some crimes there should be no opportunity to annul." Id. Throughout the public hearing, the speakers referred to "crimes" generally, just as Representative Sytek did in the above-quoted remark, when discussing how eligibility for an annulment should be determined. It is apparent that the term "crimes" was being used as a synonym for "convictions," given that the then-existing version of HB 1232 only addressed records of conviction, as did HB 1315. See, e.g., id. at 2 (statement of Michael Brown, Dep't of Corrections, in support of the bill) ("Maybe we should look at the crime side (conviction side) for annulment, not the sentencing side." (emphasis added)). Moreover, the use of the word "crimes" implies that the speakers were referring to crimes that had actually occurred and been proven, as opposed to mere accusations. This further suggests that Representative Sytek and the other speakers meant that "there should be no opportunity to annul" convictions of certain crimes.
The House Committee on Corrections and Criminal Justice ultimately recommended that HB 1232 ought to pass as amended. See N.H.H.R. Jour. 461 (1994). The Committee explained that it effectively rewrote the entire annulment statute using input from the sponsors of HB 1232 and HB 1315. Id. at 461-62. The amended version contained the same language in paragraph V that was ultimately enacted into law and the relevant portion of which remains identical in the current statute. The Committee further explained that "[t]he amended bill tighten[ed] the requirements for annulment of serious offense records and, in the case of certain crimes of violence or obstruction of justice, it prohibit[ed] annulment altogether." Id. at 462. The Committee's statement uses the term "crimes," just like the speakers at the public hearing on HB 1232, and nothing in the Committee's statement nor in the rest of the legislative history suggests that the Committee meant to convey a different meaning of that term (e.g., that it was now synonymous with accusations instead of convictions). Indeed, the use of the term "crimes" suggests that the legislature envisioned something greater than an accusation would prohibit annulment under paragraph V.
The only difference is the wording of the clause describing obstruction of justice crimes. Compare Laws 1994, 224:1 ("No petition shall be brought and no annulment granted in the case of any violent crime, of any crime of obstruction of justice, or of any offense for which the petitioner was sentenced to an extended term of imprisonment under RSA 651:6." (emphasis added)), with RSA 651:5, V ("No petition shall be brought and no annulment granted in the case of any violent crime, of felony obstruction of justice crimes, or of any offense for which the petitioner was sentenced to an extended term of imprisonment under RSA 651:6."). This change was the result of an amendment to the statute in 2014 See Laws 2014, 170:1.
Representative Sytek continued to use the term "crimes" when she spoke on behalf of the now-amended HB 1232 at the bill's public hearing before the Senate Judiciary Committee. See, e.g., Relative to Prohibiting Annulments for Certain Crimes: Hearing on H.B. 1232 Before the Senate Judiciary Comm. (Mar. 30, 1994), at 1 ("This bill is a rewrite of the whole annulment section of the law and bases the possibility of annulment on the crime. This bill says that there are certain crimes that are so serious that they should never be taken from the record. . . . Other crimes it would be possible to have annulled, if you[r] request was found meritorious, and we said set a time period."). Furthermore, she and the other legislators use the term "crimes" when discussing paragraph V and when discussing paragraph III, which only governs convictions. See supra. This illustrates that "crimes" remained synonymous with "convictions" throughout the enactment of HB 1232.
Moreover, had the legislature intended to impose a categorical bar on annulment to all accusations of violent crimes (e.g., arrest, indictment, charge) instead of convictions, the Court would expect the legislative history of HB 1232 to affirmatively indicate such an intention at some point along the way. It does not, and thus the Court concludes that the legislative history does not support the State's proposed construction; rather, it supports the Court's construction of the statute.
To be clear, the Court recognizes that the legislature could decide that some accusations are so serious that they should remain on a person's criminal history record, regardless of whether they ultimately resulted in convictions, after balancing the relevant policy considerations. Cf. Mobile, 938 So. 2d at 403 ("Whether citizens should be entitled to have their criminal arrest records expunged is a substantive matter involving policy considerations within the purview of the legislature, not this Court."); State v. Faria, 947 A.2d 863, 864-65 (R.I. 2008) (holding statute did not allow expungement of arrest and court records, even though defendant was "acquitted or otherwise exonerated," where defendant had previously been convicted of a felony). The problem is that the legislative history does not contain any indication that this choice was actually considered, let alone made, by the legislature when it enacted HB 1232. Accordingly, the Court is hesitant to infer legislative intent that would undermine the ultimate purpose of the annulment statute where the legislative history does not affirmatively support that particular construction of the statute. Compare Union Leader Corp. v. N.H. Ret. Sys., 162 N.H. 673, 678 (2011) (quotation omitted) ("Where th[e legislative] history plainly supports a particular construction of the statute, [the Court] will adopt that construction, since [its] task in interpreting statutes is to determine legislative intent."), with Petition of State of New Hampshire, 152 N.H. 185, 189 (2005) (recognizing that the legislative history of the statute in question was "unclear as to how to reconcile" the sections at issue and thus not particularly helpful to the court). Moreover, the legislative history supports the Court's conclusion that the legislature intended RSA 651:5, V to apply only to cases resulting in convictions.
The lingering question is why the legislature used the term "case" in paragraph V. The legislative history suggests one possible explanation: the legislature was seeking to prevent annulment where the case involved a violent crime but the defendant pled guilty to a lesser (nonviolent) offense. See Hearing on H.B. 1232 Before the Senate Judiciary Comm., supra, at 3-5 (noting that Representative Sytek introduced HB 1232 after learning about a case in which the defendant obtained an annulment after resolving his sexual assault case by pleading guilty to a misdemeanor with no time served). Here, the Court is not deciding the issue of whether paragraph V prohibits annulment where the defendant is originally charged with one or more violent crimes and the case ultimately results in a conviction for a nonviolent crime. Rather, the Court is deciding whether annulment is prohibited in violent crime cases that did not result in any conviction. The Court concludes that the annulment statute imposes no such categorical bar and that arrest and court records are eligible for annulment in these types of cases.
The Court expresses no opinion on how it would decide this issue. --------
For the reasons set forth above, S.T. petition to annul is timely. The Court will schedule a hearing on the merits of this petition as the docket permits. SO ORDERED. 9/20/2016
DATE
/s/_________
N. William Delker
Presiding Justice