State v. Horner

Duggan, J.,

concurring specially. In my view, the legislature did not intend to deprive defendants such as Philip Horner of the opportunity for a sentence reduction. I therefore disagree with the majority’s interpretation of RSA 651:20,1(a) (Supp. 2005), but concur with respect to the remaining issues.

The defendant argues that his “minimum sentence” under RSA 651:20, 1(a) should be calculated by aggregating the minimum sentences for each of his consecutive sentences. However, the majority concludes that because the statute uses the word “sentence” in the singular, each minimum sentence must be considered separately. We construe Criminal Code provisions “according to the fair import of their terms and to promote justice.” RSA 625:3 (1996); accord State v. Grimes, 152 N.H. 310, 312 (2005). Application of the majority’s literal interpretation of the statute to these facts does not promote justice.

Under the majority’s interpretation of the statute, this defendant can only petition the court after serving four years of any one of his three and one-half to seven year sentences. However, this defendant has already served the minimum of three and one-half years of his first sentence and was paroled to his second sentence in October 2003. He may be paroled to *314his third sentence after serving the minimum of three and one-half years of the second sentence, and then released after serving the minimum of three and one-half years of his third sentence. He may thus serve a total of ten and one-half years in prison, but never have the opportunity to petition the court for a sentence suspension because he never served four years of any one of his consecutive sentences. At the same time, a defendant serving a sentence of ten and one-half to twenty-one years for a single offense is able to petition the court after serving two-thirds of his minimum sentence, or seven years. Under the majority’s interpretation, similarly situated petitioners are treated differently. While the legislative purpose here may have been to curtail motions to reduce sentences, I do not perceive a legislative purpose to treat similarly situated petitioners differently.

‘We construe all parts of a statute together to effectuate its overall purpose and avoid an absurd or unjust result.” Franklin v. Town of Newport, 151 N.H. 508, 510 (2004). In State v. Decker, 127 N.H. 468, 470 (1985), the defendant argued at sentencing that he was entitled to credit for pretrial confinement on each of his three consecutive sentences, which was, in effect, triple credit. We pointed out that his argument would result in a significant disparity between his sentence and the actual length of the same sentence for a similarly situated defendant able to furnish bail. Id. “Such a disparity could have no conceivable penological justification.” Id. Thus, we did “not presume that ... the legislature intended the absurd result that the defendant’s argument entails.” Id.

I thus conclude that, to calculate this defendant’s minimum sentence for purposes of RSA 651:20, 1(a), his minimum sentence should be the aggregate of the consecutive minimum sentences imposed. Accordingly, the trial court should be able to consider the defendant’s petition after he has served two-thirds of ten and one-half years, or seven years. However, because the defendant has not yet served seven years, even under my interpretation of RSA 651:20,1(a), the trial court did not err in denying his petition for suspension of a portion of his sentence.