State of New Hampshire v. Kurt Carpentino

NOTICE: This opinion is subject to motions for rehearing under Rule 22 as
well as formal revision before publication in the New Hampshire Reports.
Readers are requested to notify the Reporter, Supreme Court of New
Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any
editorial errors in order that corrections may be made before the opinion goes
to press. Errors may be reported by E-mail at the following address:
reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00
a.m. on the morning of their release. The direct address of the court's home
page is: http://www.courts.state.nh.us/supreme.

THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Cheshire
No. 2012-632

THE STATE OF NEW HAMPSHIRE

v.

KURT CARPENTINO

Argued: September 19, 2013
Opinion Issued: January 14, 2014

Michael A. Delaney, attorney general (Nicholas Cort, assistant attorney
general, on the brief and orally), for the State.

Desmeules, Olmstead & Ostler, of Norwich, Vermont (George H. Ostler
and Christopher A. Dall on the brief, and Mr. Ostler orally), for the defendant.

LYNN, J. The defendant, Kurt Carpentino, appeals an order of the
Superior Court (Arnold, J.) denying his motion to amend one of his sentences,
originally imposed in 2003, based upon an amendment to RSA 632-A:4 (Supp.
2002) (amended 2003, 2005, 2008, 2010) that took effect after the offense but
before his conviction became final. We affirm.
 I

The pertinent facts are undisputed on appeal. In 2003, the defendant
was found guilty of, among other charges, aggravated felonious sexual assault
(AFSA), for which he was sentenced to serve 3 1/2 to 20 years in prison. The
conviction was based upon an indictment that charged the defendant with
AFSA under RSA 632-A:2, III, which provides that “[a] person is guilty of
aggravated felonious sexual assault when such person engages in a pattern of
sexual assault against another person, not the actor’s legal spouse, who is less
than 16 years of age.” RSA 632-A:2, III (1996). “Pattern of sexual assault” is
defined by statute as “committing more than one act under RSA 632-A:2 [the
AFSA statute] or RSA 632-A:3 [the felonious sexual assault (FSA) statute], or
both, upon the same victim over a period of 2 months or more and within a
period of 5 years.” RSA 632-A:1, I-c (1996). A person convicted of AFSA may
be sentenced to a maximum of twenty years and a minimum of not more than
one half of the maximum sentence. RSA 632-A:10-a, I(b) (2007). The
indictment alleged a pattern of assault occurring between January 1, 2001,
and December 27, 2001, consisting of “sexual penetration, against another, . . .
who was then and there more than 13 years but less than 16 years old, and
not his legal spouse.” See RSA 632-A:3, II (1996) (amended 2006, 2008).
During this period of time the defendant was seventeen or eighteen years old
and the victim was fourteen or fifteen years old. The age difference between the
two was less than three years.

In 2003, the legislature repealed and reenacted RSA 632-A:4, which
defines misdemeanor sexual assault. Laws 2003, 316:7 (2003 Amendment).
Among other things, the reenacted statute added subparagraph I(b), making
the act of “engag[ing] in sexual penetration with a person, other than the
actor’s legal spouse, who is 13 years of age or older and under 16 years of age
where the age difference between the actor and the other person is 3 years or
less,” a class A misdemeanor. Id. A person convicted of a class A
misdemeanor may be sentenced to a maximum term of one year in prison.
RSA 651:2, II(c) (2007). The 2003 Amendment took effect on January 1, 2004.
Laws 2003, 316:10, I. Although the addition of subparagraph I(b) to RSA 632-
A:4 apparently was intended to remove the conduct described therein from the
purview of RSA 632-A:3, the legislature did not amend the latter statute until
2006, when it narrowed the scope of RSA 632-A:3, II to apply only “where the
age difference between the actor and the other person is 3 years or more.”
Laws 2006, 162:1.

The defendant’s conviction became final on May 5, 2004, when this court
affirmed it by order. On March 30, 2012, he filed a motion to amend sentence,
in which he urged that his conviction be treated as a misdemeanor based upon

2
the fact that the 2003 Amendment took effect before his conviction was final.1
The trial court denied the motion, and this appeal followed.

II

The defendant argues that his sentence should be reduced because he is
entitled to the retroactive application of the 2003 Amendment to RSA 632-A:4.
He asserts that, because the legislature intended to reduce the penalty for
sexual penetration between teenagers by making the offense a class A
misdemeanor, his sentence should be amended to reflect the new, lesser
punishment. More specifically, he argues that he should not be required to
serve a sentence for pattern AFSA because, he contends, the 2003 Amendment
removed his conduct from the ambit of the FSA statute, the putative violations
of which constituted the predicate acts for the pattern charge. We disagree.

Resolution of this issue turns upon whether our savings statute, RSA
21:38 (2012), precludes the retroactive application of an ameliorative
sentencing amendment to a criminal conviction that has not yet become final
when the amendment takes effect. RSA 21:38 (2012) states: “No suit or
prosecution, pending at the time of the repeal of any act, for any offense
committed or for the recovery of a penalty or forfeiture incurred under the act
so repealed, shall be affected by such repeal.” We review matters involving
statutory interpretation de novo. State v. Hayden, 158 N.H. 597, 599 (2009).
To determine a statute’s meaning, we first examine its language, and ascribe
the plain and ordinary meaning to the words used. Chatman v. Brady, 162
N.H. 362, 365 (2011); see RSA 21:2 (2012). We interpret legislative intent from
the statute as written and will neither consider what the legislature might have
said nor add language that the legislature did not see fit to include. Chatman,
162 N.H. at 365. We interpret a statute in the context of the overall statutory
scheme and not in isolation. Id.; see RSA 21:1 (2012). Our goal is to apply
statutes in light of the legislature’s intent in enacting them and the policy
sought to be advanced by the entire statutory scheme. Chatman, 162 N.H. at
365. Further, we construe provisions of the Criminal Code according to the
fair import of their terms and to promote justice. RSA 625:3 (2007). We are
the final arbiters of the legislative intent as expressed in the words of the
statute considered as a whole. Chatman, 162 N.H. at 365.

1 The defendant filed an earlier motion to amend sentence in 2010. In that motion, he asserted
that he was entitled to the benefit of 2008 amendments to the sexual assault statutes. The
motion was denied by the trial court. On appeal of that ruling, he argued that he was entitled to
the retroactive benefit of the 2003 Amendment for the purposes of decreasing his sentence. We
affirmed the trial court’s ruling on January 11, 2012, declining to address his argument regarding
the 2003 Amendment because he had failed to present it to the trial court.

3
 As a general rule, a newly amended criminal statute applies to offenses
committed after its enactment, but the prior statute remains applicable to all
offenses committed prior to the amendment’s effective date. State v. Sampson,
120 N.H. 251, 254 (1980). The Ex Post Facto Clauses of the United States and
New Hampshire Constitutions prohibit both prosecution for conduct that did
not constitute an offense at the time it occurred and imposition of punishment
greater than that authorized by the law in effect at the time a crime was
committed. See U.S. CONST. art. I, § 9, cl. 3; § 10, cl. 1; N.H. CONST. pt. I,
art. 23; Holiday v. United States, 683 A.2d 61, 66 (D.C. 1996). “On the other
hand, if the repealing legislation enacted more lenient sentencing options, the
ex post facto clause[s] did not prohibit courts from continuing the prosecution
and applying a new ameliorative sentencing scheme to pending cases.”
Holiday, 683 A.2d at 66; see Sekt v. Justice’s Court of San Rafael Tp., 159 P.2d
17, 21 (Cal. 1945) (retroactive application of mitigating statutes “is not
complicated by the prohibition against ex post facto laws, since it is well settled
that beneficial legislation is not within the prohibition of the constitutional
provision”).

However, although there is no constitutional prohibition against the
retroactive application of legislation that reduces the punishment for a
previously committed crime, the common law theory of abatement by repeal
remained as an obstacle to achieving this result. The theory holds that “the
repeal of a criminal statute abate[s] all prosecutions which had not reached
final disposition in the highest court authorized to review them.” Bradley v.
United States, 410 U.S. 605, 607 (1973); see People v. Oliver, 134 N.E.2d 197,
200-01 (N.Y. 1956) (“At common law, it was generally held that the repeal or
amendment of a penal statute barred any further prosecution under that
statute for violations committed before the repeal, and abated all pending
prosecutions which had not reached final judgment.” (citations omitted)); see
also Sekt, 159 P.2d at 21; Holiday, 683 A.2d at 66-67. Under the common law
rule, the abatement theory applied even to situations where a statute was
repealed and re-enacted with reduced penalties. See Bradley, 410 U.S. at 607-
08; Comment, Today’s Law and Yesterday’s Crime: Retroactive Application of
Ameliorative Criminal Legislation, 121 U. Pa. L. Rev. 120, 125-26 (1972) (citing
cases).

In the absence of a specific savings clause in the legislation that
effectuates the repeal, the theory of abatement carries an obvious potential for
injustice: the prospect that crimes committed before the effective date of a
statutory amendment would go entirely unpunished even though (as evidenced
by the terms of the new legislation applicable prospectively) the legislature
quite obviously had no intention of removing the conduct at issue from the
ambit of the criminal law. In response to this common law doctrine, New
Hampshire was one of many states that enacted a general savings statute
abrogating the common law theory of abatement. See RSA 21:38; Holiday, 683

4
A.2d at 66-67; Comment, Today’s Law, supra at 127-28 & n.51. Savings
clauses “‘save[]’ pending or future prosecutions of crimes committed under a
repealed or amended statute from being abated.” State v. Cummings, 386
N.W.2d 468, 470 (N.D. 1986); see also People v. Schultz, 460 N.W.2d 505, 510
(Mich. 1990); Oliver, 134 N.E.2d at 201. Under RSA 21:38, “[n]o suit or
prosecution, pending at the time of the repeal of any act, for any offense
committed or for the recovery of a penalty or forfeiture incurred under the act
so repealed, shall be affected by such repeal.”2 Of course, the savings statute
is intended only as a general rule of construction, which must give way if the
legislature has unambiguously expressed an intent contrary to the statutory
“default” position it establishes. See RSA 21:1 (2012) (providing that rules of
construction established under RSA chapter 21 “shall be observed, unless such
construction would be inconsistent with the manifest intent of the legislature
or repugnant to the context of the [statute under consideration]”).

Before further addressing the savings statute, therefore, we consider
whether there is any legislative indication that it intended the 2003
Amendment to apply retroactively. We find none. There is no dispute that,
when it enacted the 2003 Amendment, the legislature did not specifically state
whether it was to apply prospectively or retrospectively. In support of his
argument that an intent to apply it retrospectively should be inferred, the
defendant first points out that the 2003 Amendment followed at least one
earlier attempt by the legislature to enact a similar amendment to the sexual
assault statutes. The same legislature that enacted the 2003 Amendment also
passed House Bill 278, which would have effectuated a similar change to RSA
632-A:4, except that the age difference between the victim and perpetrator
could have been up to four years instead of three. That bill was vetoed by the
Governor, who objected to the larger age gap. N.H.H.R. Jour. 987 (2003)
(Governor’s veto message on HB 278). In 2006, the legislature corrected an
apparent ambiguity created by the 2003 Amendment by narrowing the scope of
RSA 632-A:3, II to apply only “where the age difference between the actor and
the other person is 3 years or more.” Laws 2006, 162:1.3 Then, in 2008, the
legislature amended RSA 632-A:3, II and :4, I(c), increasing the age gap in both
statutes to four years. Laws 2008, 334:9, :14. Although this sequence of
enactments undoubtedly evidences the legislature’s intent to reduce the

2 The term “repeal,” as it is used in RSA 21:38, has generally been construed to include both
repeals and amendments. See Schultz, 460 N.W.2d at 510 n.12 (“The term ‘repeal’ also includes
the reenactment of the same statute with modification.”). The defendant does not argue to the
contrary.

3 That the 2006 legislation sought to correct an ambiguity resulting from the fact that the 2003
Amendment did not change the terms of the FSA statute, RSA 632-A:3, may support the inference
that the 2006 legislation was intended to apply retroactively to offenses covered by the 2003
Amendment. It does not, however, provide any guidance on the issue of whether the 2003
Amendment itself applies prospectively or retrospectively.

5
punishment for certain sexual conduct between teenagers, nothing contained
therein demonstrates a “manifest intent of the legislature,” RSA 21:1, that the
reduced punishment should apply to those who were charged with such
conduct prior to the effective date of the 2003 Amendment. Thus, we do not
find this other legislation helpful in resolving the question of the retroactive
application of the 2003 Amendment.

A more significant indicator of legislative intent regarding retroactive
application of the 2003 Amendment may be gleaned from its effective date.
Laws 2003, chapter 316, which was enacted in July 2003, called for six of its
nine substantive sections to take effect sixty days after passage. The other
three substantive sections, including the one enacting the 2003 Amendment,
were made effective on January 1, 2004. Laws 2003, 316:10. We find it
difficult to infer legislative intent that an amendment should apply
retrospectively when the legislature set an effective date for that amendment
nearly six months into the future. See State v. Banks, 108 N.H. 350, 352
(1967) (finding legislature intended new burglary statute to apply prospectively
where it set an effective date sixty days after passage), cf. Dorsey v. United
States, 132 S. Ct. 2321, 2332-33 (2012) (finding that more lenient penalties
enacted by federal Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat.
2372, applied to pre-Act offenders sentenced after the Act took effect because,
in part, the Act gave “Emergency Authority” to the sentencing commission to
promulgate amendments to sentencing guidelines “as soon as practicable” and
not later than 90 days after passage (quotations omitted)).

Since neither the 2003 Amendment nor any of the related enactments
discussed above contain a definitive expression of legislative intent regarding
retroactive application of the 2003 Amendment, the default rule embodied in
RSA 21:38 controls. Although our savings statute has been part of our law
since at least the publication of our Revised Statutes in 1842, see RS 1:27
(1842), we have never had occasion to construe the statute in the context
presented here. Indeed, in at least one case where the statute would appear to
have been implicated, we reached a decision without even mentioning it. In
State v. Gobin, 96 N.H. 220, 223 (1950), which dealt primarily with an
unrelated question on appeal, we held in the final sentence of the opinion that
an amendment reducing the punishment for the defendant’s crime that took
effect after its commission governed sentencing in that case. The opinion did
not discuss or reference RSA 21:38, but supported its holding by citing State v.
Arlin, 39 N.H. 179 (1859). See Gobin, 96 N.H. at 223. Arlin, however, also did
not present any issue involving the general savings statute. Instead, the issue
in that case was whether a defendant, who had not yet been indicted at the
time a change in the law reduced the punishment for robbery, was entitled to
the procedural protections established under the statute in force at the time of
the offense. Arlin, 39 N.H. at 180. The legislation effecting the amendment
contained a provision that stated it did not apply to pending prosecutions. Id.

6
We held that, because the defendant had not been indicted when the new
statute took effect, his prosecution was not pending and therefore the amended
statute was applicable to his offense. Id.4

In State v. Banks, the defendant relied upon RSA 21:38 in arguing that
the enactment of a new burglary statute subsequent to his offense but prior to
his arraignment and indictment operated as a repeal of the old statute, thus
preventing his prosecution. Banks, 108 N.H. at 351. We rejected the
argument, reasoning that by making the repeal of the old statute and the
enactment of the new one effective on the same date, the legislature had clearly
indicated its intention that the old statute apply to offenses committed before
the new one took effect. Id. at 352. That the new statute increased the
penalties for burglary provided further support for our conclusion, as it made it
unlikely that the legislature intended to “effect a legislative pardon for all
crimes of burglary committed prior to the effective date of [the new statute].”
Id.

In State v. Breest, 116 N.H. 734, 737 (1976), the defendant was
convicted of first degree murder. At the time of the offense, the punishment for
first degree murder was life imprisonment with no provision for parole. Breest,
116 N.H. at 754. Before sentencing, the legislature made two amendments to
the Criminal Code: the first provided that a prisoner serving a life sentence
would be eligible for parole after serving eighteen years; the second created an
exception from the first amendment for prisoners convicted of first degree
murder of a psycho-sexual nature, instead making them eligible for parole after
serving forty years. Id. at 753. Although we held that the defendant could be
sentenced under the amended statute in effect at the time of sentencing, the
only issue we addressed in reaching this decision was the defendant’s claim
that the amended statute imposed a harsher penalty than the statute in force
before the second amendment to the Code. Id. at 754-55. We rejected this
argument, holding that by establishing parole eligibility not available to the
defendant at the time of the commission of the crime, the amendment
mitigated the punishment for murder, and therefore application of the
amended statute was not constitutionally prohibited. Id. Because the State
apparently acquiesced in the defendant being sentenced under the amended
statute, we had no occasion in Breest to discuss or consider the applicability of
RSA 21:38. Id.

Finally, in Sampson, we addressed whether the defendant should receive
the benefit of a post-offense amendment of the theft statute that raised the
threshold value of stolen goods necessary to make the offense a felony.

4 From all that appears in the opinion, the defendant in Arlin did not argue that he was entitled
to escape liability completely based upon the criminal abatement theory, and the State did not
contend that the defendant was subject to punishment under the pre-existing statute.

7
Sampson, 120 N.H. at 253-54. The defendant urged that because the
amendment took effect before he was indicted and had the effect of reducing
his crimes to misdemeanors, the charges should be dismissed because the
indictments were not brought within the one-year statute of limitations
applicable to misdemeanor-level offenses. See RSA 625:8, I(c) (1996);
Sampson, 120 N.H. at 253-54. We specifically rejected the defendant’s
argument that he was entitled to the benefit of the legislature’s post-offense
reclassification of his crimes to misdemeanors. Sampson, 120 N.H. at 254.
Although recognizing that the purpose of the amendment was to alter the
seriousness of punishments to account for the decreased value of the dollar
over time, we discerned from this no indication that the legislature intended
the statute to apply retroactively. Id. Citing RSA 21:38, we noted that if the
defendant’s position were adopted, he would receive not merely a reduction in
potential punishments, but rather a complete avoidance of prosecution, a
result the legislature surely did not intend. Id. at 254-55. Consequently,
because the defendant’s offenses occurred at a time when theft of goods of the
value he allegedly stole was classified as a felony, we held that he was subject
to prosecution under the pre-amendment statute. Id. at 255.

Other jurisdictions that also have general savings statutes are split on
the question of whether their statutes permit giving retroactive effect to
amendments that reduce the penalty for crimes committed before the
amendments take effect. Although the terms of general savings statutes vary,
courts construing such statutes generally adopt one of two approaches. Under
one view, many state courts have held that general savings statutes do not
preclude retroactive application of penalty-reducing sentencing amendments.
See Holiday, 683 A.2d at 67-70 (surveying case law across jurisdictions). The
prevailing reasoning among these courts imputes a general legislative intent
that all ameliorative sentencing amendments are to apply retrospectively in any
case to which they could constitutionally apply. See, e.g., In re Estrada, 408
P.2d 948, 951 (Cal. 1966) (“When the Legislature amends a statute so as to
lessen the punishment it has obviously expressly determined that its former
penalty was too severe and that a lighter punishment is proper . . .” so it is an
“inevitable inference that the Legislature must have intended that the new
statute . . . should apply to every case to which it constitutionally could
apply.”); Lewandowski v. State, 389 N.E.2d 706, 707 (Ind. 1979) (approving
view that “the enactment of [an] ameliorative sentencing amendment was, in
itself, a sufficient indication of the legislative intent that it be applied to all to
whom such application would be possible and constitutional, thereby obviating
application of the general savings statute”); Schultz, 460 N.W.2d at 511
(adopting similar reasoning); Oliver, 134 N.E.2d at 202 (same).

A second group of jurisdictions, including the federal courts, have
adopted a more literal interpretation of their savings statutes. See Warden v.
Marrero, 417 U.S. 653, 663-64 (1974) (holding that repealed no-parole

8
provision applied based upon general savings statute); Holiday, 683 A.2d at 74
(following federal courts’ construction of federal savings statute as applied to
ameliorative amendment of mandatory minimum sentence statute); State v.
Alley, 263 A.2d 66, 69 (Me. 1970) (holding general savings statute precluded
retroactive application of statutory change reducing penalty for possession of
marijuana from felony to misdemeanor); Com. v Dotson, 966 N.E.2d 811, 814-
15 (Mass. 2012) (interpreting general savings statute to bar retroactive
application of statute reducing penalty for first offense disorderly conduct); cf.
Dorsey, 132 S. Ct. at 2331-35 (applying Fair Sentencing Act retrospectively to
pending prosecutions only upon finding of legislative intent that it be so
applied).

We are persuaded by the reasoning of the second group of jurisdictions.
As explained in Holiday, cases such as Oliver and Estrada, which hold that
ameliorative sentencing statutes should be applied retroactively, have tended to
pay scant heed to the specific terms of the savings statutes at issue and/or
have failed to take account of the specific purpose for which such statutes are
enacted: to provide a default rule for cases in which the legislature has not
clearly articulated its intent as to retroactivity. See Holiday, 683 A.2d at 67-70
(analyzing these cases). To adopt the reasoning of cases like Oliver and
Estrada would require us to read into the plain terms of RSA 21:38 an
exception to the default rule of non-retroactivity that does not appear in the
text of the statute – in effect, adding the words, “unless such repeal would
reduce a defendant’s sentence.” To do so would be contrary to long-standing
precedent that prohibits us from adding language to a statute that the
legislature did not see fit to include. Chatman, 162 N.H. at 365.

The implications of such retrospective application reinforce our
determination not to adopt it. For instance, if, rather than reducing the
penalty for consensual sexual penetration between teenagers prior to the
defendant’s conviction becoming final, the legislature had instead followed
Massachusetts by lowering the age of consent to fourteen5 (which would
essentially reduce to zero the punishment for consensual sexual penetration
between teenagers), the conduct of the defendant at issue would have become
entirely lawful. Yet in the absence of a clear legislative statement or other
manifest evidence of legislative intent that such an amendment apply
retroactively, the language of our savings statute, on its face, would in this
hypothetical case call for the continued prosecution of the defendant for the
offense proscribed by the law in effect at the time he acted. See RSA 21:38 (“No
suit or prosecution, pending at the time of the repeal of any act, . . . shall be
affected by such repeal.”). Applying the logic from cases such as Oliver and

5See Com. v. Shore, 840 N.E.2d 1010, 1011 (Mass. App. Ct. 2006) (noting that lack of consent is
an element of the offense of indecent assault against a child over the age of fourteen in violation of
Mass. Gen. Laws ch. 265, § 13H (2008)).

9
Estrada to this hypothetical case, however, would read into such an
amendment an implied legislative intent that it should apply retroactively. We
cannot square such a result with the plain language of our savings statute.

Moreover, to the extent that courts taking this view may differentiate
between full repeals of criminal statutes and ameliorative sentencing
amendments that reduce, but do not eliminate, criminal penalties, see Oliver,
134 N.E.2d at 202 n.3 (observing that a change in the law abolishing a crime or
changing its definition may not support an inference favoring retroactive
application because “the State may prefer to retain the right to prosecute for
the act previously committed in deliberate defiance of the law as it then
existed”), such differentiation would potentially create illogical outcomes. To
apply ameliorative sentencing amendments retroactively while applying full
repeals only prospectively would deny criminal defendants the benefit of the
legislature’s full step of decriminalizing conduct – i.e., reducing the penalty to
zero – while giving them the benefit of the half step of reducing the existing
penalty. This would be unjust and illogical. See State v. Farrow, 140 N.H.
473, 476 (1995) (“This court will avoid construing statutes in a manner that
would produce an unjust and seemingly illogical result.” (quotation omitted)).

Furthermore, even if we were inclined to adopt the Oliver/Estrada
reasoning, it would not apply here. The 2003 Amendment does not simply
reduce the penalty for a pre-existing crime. Rather, it effectively eliminates the
crime of pattern sexual assault of which the defendant was convicted. See
State v. Sleeper, 150 N.H. 725, 728 (2004) (holding that “the pattern itself” is
an element of the crime of pattern AFSA). Thus, despite the defendant’s
suggestion that if we apply the 2003 Amendment retroactively he can simply be
resentenced for a misdemeanor violation of RSA 632-A:4, that obviously is not
the case. In order for the defendant to receive the benefit of the 2003
Amendment, he would need to be sentenced under the misdemeanor sexual
assault statute even though the crime for which he was indicted, tried, and
convicted was pattern aggravated felonious sexual assault.

The defendant was charged with and convicted of engaging in a pattern
of sexual assaults, which means that he must have committed more than one
such assault against the same victim within the one-year time frame alleged in
the indictment. See RSA 632-A:1, I-c. The record before us suggests that the
pattern of conduct occurred weekly over the course of a year, but as the State
argued in the trial court, at a minimum there were at least two discrete
assaults. Hence, we could not simply remand to the trial court for imposition
of a sentence for a single misdemeanor offense, even assuming that the court
had the authority to impose sentence for that crime.

Moreover, under the pattern AFSA statute, “the essential culpable act,
the actus reus, is the pattern itself, that is, the occurrence of more than one

10
sexual assault over a period of time, and not the specific assaults comprising
the pattern.” State v. Hannon, 151 N.H. 708, 714 (2005) (quotation omitted).
The jury in this case need not have been unanimous on the underlying acts
comprising the pattern offense, but need only have unanimously agreed that
the defendant perpetrated more than one act of sexual assault as described in
RSA 632-A:2 and :3, during the statutory time period. Id. Because there is no
way of knowing how many discrete assaults the jury found to exist when
returning a guilty verdict on the pattern charge – and in fact, the jury need not
have agreed on how many discrete assaults occurred or that any particular
assault in fact occurred – the trial court would be unable to determine
sentences for multiple uncharged individual assaults.

In sum, for the reasons stated above, we hold that the defendant is not
entitled to the retrospective application of the 2003 Amendment to his sentence
for pattern AFSA. Although our ruling achieves the result that we believe to be
mandated by the savings statute, we emphasize that it is for the legislature to
determine whether a statute that reduces the penalty for an offense is to apply
prospectively or retrospectively. We urge the legislature, in the future, to avoid
any uncertainty by clearly stating its intentions on this point when it considers
legislation dealing with sentencing.

III

The defendant also argues that the United States and New Hampshire
Constitutions require retroactive application of the 2003 Amendment to his
case. He invokes the following constitutional provisions in support of this
argument: (1) the prohibition against cruel or unusual punishments found in
the Eighth Amendment to the United States Constitution and Part I, Article 33
of the New Hampshire Constitution; (2) the guarantee of due process contained
in the Fifth and Fourteenth Amendments to the United States Constitution and
Part I, Article 15 of the New Hampshire Constitution; and (3) the
Proportionality Clause of Part I, Article 18 of the New Hampshire Constitution.
Based solely upon the 2003 Amendment, which makes sexual penetration
between teenagers punishable as a class A misdemeanor that carries a
sentence of no more than one year of imprisonment, the defendant asserts that
his sentence of 3 1/2 to 20 years for that same conduct is cruel and unusual
and grossly disproportionate in violation of the foregoing constitutional
protections. We find no merit in this argument.

Where, as here, the defendant asserts that his constitutional rights have
been violated as a result of the trial court’s sentencing decision, we review that
decision de novo. State v. Burgess, 156 N.H. 746, 752 (2008). We first address
the defendant’s claim under the State Constitution and rely upon federal law
only to aid our analysis. State v. Ball, 124 N.H. 226, 231-33 (1983). We must
presume that the sentencing scheme is constitutional and we cannot declare it

11
unconstitutional except upon inescapable grounds. State v. Bird, 161 N.H. 31,
40 (2010). For a sentence to violate the New Hampshire Constitution, it must
be grossly disproportionate to the crime. State v. Enderson, 148 N.H. 252, 259
(2002).

The defendant does not argue that his sentence was cruel, unusual, or
disproportionate under the law as it existed at the time of his conviction and
sentencing. Rather, he argues that his sentence was thereafter rendered
disproportionate by virtue of the legislature’s later amendment of the penalty
applicable to his conduct.

To adopt the defendant’s argument would essentially require us to hold
that when the legislature reduces the penalty for certain criminal conduct, at
least all sentences imposed pursuant to the original statute which have not yet
become final and which exceed what is authorized by the amendment are per
se unconstitutional. Courts have uniformly rejected claims to this effect. See
Dorsey, 132 S. Ct. at 2344 (holding that “[t]here is no constitutional doubt
triggered by the application” of mandatory minimums later amended by
ameliorative statute); Marrero, 417 U.S. at 664 (holding that “Congress
trespassed no constitutional limits” in amending parole eligibility
prospectively); Thompson v. Missouri Bd. of Parole, 929 F.2d 396, 400-01 (8th
Cir. 1991) (holding that state’s decision to maintain parole system for
defendants convicted prior to amendment was not irrational or invidiously
discriminatory); United States ex rel. Hayden v. Zelker, 506 F.2d 1228, 1229-
30 (2d Cir. 1974) (holding that punishment of persons convicted before
amendment under old law pursuant to a savings clause did not constitute
unconstitutional discrimination).

In support of his position, the defendant relies upon Griffith v. Kentucky,
479 U.S. 314 (1987), but we find that case inapposite. Griffith deals with the
retroactive application of new rules of constitutional criminal procedure, not
the retroactive application of statutory amendments. Griffith, 479 U.S. at 322
(“[F]ailure to apply a newly declared constitutional rule to criminal cases
pending on direct review violates basic norms of constitutional adjudication.”
(emphasis added)). The “application of new statutes to pending cases is quite a
different situation” than that to which the Griffith rationale applies, United
States v. Santana, 761 F. Supp. 2d 131, 163 (S.D.N.Y. 2011), and courts also
have uniformly rejected the proposition that Griffith imposes a constitutional
requirement that ameliorative sentencing amendments must be given
retroactive effect, id.; see United States v. Finley, 487 Fed. Appx. 260, 266-67
(6th Cir. 2012), United States v. Acoff, 634 F.3d 200, 202 (2d Cir. 2011) (“It is
not irrational for Congress to impose a penalty on those who committed their
offenses at a time when they knew or should have known the severity of the
applicable penalty, even while reducing the penalty as to future offenders.”),
abrogated on other grounds by Dorsey v. United States, 132 S. Ct. 2321 (2012).

12
We agree with the reasoning of these cases, and hold that none of the
provisions of the State Constitution on which the defendant relies requires that
he be given the benefit of the 2003 Amendment.

The Federal Constitution offers the defendant no greater protection than
does the State Constitution under these circumstances. Dorsey, 132 S. Ct. at
2344; Enderson, 148 N.H. at 259. Accordingly, we reach the same result
under the Federal Constitution as we do under the State Constitution.

Affirmed.

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

13