State v. CHRISICOS

HICKS, J.

The defendant, Michelle Chrisicos, appeals an order of the Superior Court (Groff, J.) ruling that she is ineligible for a sentence of home confinement under the terms of RSA 262:23 (2004) (amended 2006). We reverse and remand for resentencing.

This is the second time the issue of the defendant’s sentence for driving after being certified as a habitual offender has come before us. See State v. Chrisicos, 158 N.H. 82 (2008). The following facts are recited in Chrisicos or appear in the record before us. The defendant was indicted on August 15, 2006, for driving a motor vehicle after having been certified as a habitual offender, in violation of RSA 262:23. Id. at 84. On November 21,2006, while prosecution of the August 15 offense was pending, the defendant was indicted for another violation of RSA 262:23. Id. The State prosecuted both indictments jointly and the defendant pled guilty under a capped plea agreement. Id.

Notwithstanding the plea agreement, the trial court determined that it could not sentence the defendant to home confinement. First, at that time, Hillsborough County did not have a home confinement program. Id. at 84-85; see Petition of State of N.H. (State v. Campbell), 152 N.H. 515, 522 (2005). Based upon the lack of a home confinement program in only one county (Hillsborough) in the state, the trial court ruled that RSA 262:23,1, was facially unconstitutional because it violated the defendant’s right under the State Constitution to equal protection. Chrisicos, 158 N.H. at 85.

Nevertheless, the court concluded it was unable to order home confinement because the defendant had been charged with two distinct violations of RSA 262:23. Id. Specifically, the court ruled that the plain language of RSA 262:23,1, which limits eligibility for the home confinement program to “once per lifetime,” barred the defendant from being sentenced to home confinement on the second indictment. Id. Thus, the court sentenced the defendant to two concurrent sentences of “twelve months at the house of corrections, stand committed.” Id.

*407The defendant appealed the trial court’s statutory interpretation and the State cross-appealed the constitutional ruling. Id. at 84. We assumed without deciding that the defendant was eligible under the statute for home confinement and addressed the constitutional issue. Id. at 86. We held that RSA 262:23,1, did not violate the defendant’s right to equal protection, thus reversing the trial court on that issue. Id. at 90. We affirmed the defendant’s sentence, however, based upon the unavailability of home confinement in Hillsborough County. Id.

The State represents that shortly before our decision in Chrisicos was issued, “the Hillsborough County Board of Commissioners adopted a policy to institute a program of administrative home confinement in that county.” In light of this development, the trial court determined that the statutory issue we did not decide in Chrisicos “is now ripe for determination.” Accordingly, the court stayed imposition of the defendant’s sentence pending her appeal of the court’s “earlier determination that RSA 262:23 prevents the defendant from obtaining the benefit of a sentence to home confinement on both indictments.”

Our review of the trial court’s interpretation of a statute is de novo. Petition of State of N.H. (State v. Laporte), 157 N.H. 229, 231 (2008). “In interpreting a statute, we first look to the language of the statute itself, and, if possible, construe that language according to its plain and ordinary meaning. Furthermore, we interpret statutes in the context of the overall statutory scheme and not in isolation.” Id. (citation omitted). ‘We interpret legislative intent from the statute as written and will not consider what the legislature might have said or add language that the legislature did not see fit to include.” State v. Hayden, 158 N.H. 597, 599 (2009) (quotation omitted).

RSA 262:23, I, provides, in pertinent part:

Any sentence of one year or less imposed pursuant to this paragraph shall be served in a county correctional facility. The sentencing court may order that any such offender may serve his or her sentence under home confinement pursuant to RSA 651:19 based on the rules and regulations of the county correctional facility where the sentence is to be served for the minimum mandatory term or any portion thereof, provided the offender first serves 14 consecutive days of imprisonment prior to eligibility for home confinement. Habitual offenders shall only be eligible for the home confinement program once per lifetime.

RSA 262:23,1.

The defendant contends that the plain language of RSA 262:23,1, does not base eligibility for a sentence of home confinement upon the number of *408habitual offender violations a defendant is charged with or convicted of, but rather limits eligibility to “once per [the defendant’s] lifetime.” RSA 262:23, I. The State, on the other hand, asserts that the statute’s language is “ambiguous on its face” and argues that the provision at issue:

can be read to mean either, as the defendant argues, that a habitual offender is entitled to home confinement once regardless of how many convictions are involved in the first adjudication, or, as the superior court held, that a defendant may be eligible for home confinement after a single conviction, but that a second conviction forecloses such eligibility.

We will find a statutory provision ambiguous, and, therefore, consult its legislative history where there is “more than one reasonable interpretation of the[]... provision[].” Appeal of Gamas, 158 N.H. 646, 649 (2009). The interpretation urged by the State and employed by the trial court, however, is not a reasonable one because it reads a limitation of “one conviction,” or language of similar import, into the statute, contrary to our rules of statutory construction. See Hayden, 158 N.H. at 599. Accordingly, we do not find RSA 262:23,1, ambiguous. Moreover, because the trial court read such a limitation into the statute, we conclude that it erred in finding home confinement on the second indictment categorically precluded by RSA 262:23, I. Cf. State v. Gordon, 148 N.H. 681, 684 (2002) (where plain language of statute required only prior convictions to trigger enhanced sentencing provision, statute did “not require that the previous convictions precede the commission of the offenses upon which an enhanced sentence is being imposed,” because “[t]o conclude otherwise would impose a requirement that the legislature did not intend”).

By its plain language, RSA 262:23, I, makes home confinement a sentencing option available only once in a habitual offender’s lifetime. Nevertheless, the State, citing State ex rel Fortin v. Harris, 109 N.H. 394 (1969), and State v. Johnson, 134 N.H. 570 (1991), argues against reading the statute “absolutely literally” where such a reading would be inconsistent with the statute’s purpose. Admittedly, we will reject “a literal construction of a statute [if it] does violence to the apparent policy of the Legislature,” Fortin, 109 N.H. at 395 (quotation omitted), but we also “will not modify the meaning of a statute that is plain on its face,” Johnson, 134 N.H. at 576. With these principles in mind, we consider the State’s argument.

The State, citing State v. O’Brien, 132 N.H. 587, 592 (1989), asserts that it is “well established that the principal purpose of the [habitual offender] statutory scheme is to ensure that drivers who have proven *409themselves dangerous by repeated offenses are punished severely” and argues that allowing concurrent sentences of home confinement on multiple violations is inconsistent with that purpose. We first take issue with the State’s assertion that punishment is the principal purpose of the habitual offender statute. Although we have stated that “RSA 262:23 is designed specifically to punish the[] recidivism” of habitual offenders, State v. Rix, 150 N.H. 131, 133 (2003), we have also consistently noted that “[t]he primary purpose of the habitual offender statute is to foster safety on the highways. In this respect, the penalty imposed upon an habitual offender is primarily for the protection of the public in removing from the highways an operator who is a dangerous and persistent offender.” State v. Dean, 115 N.H. 520, 524 (1975) (citation omitted; emphasis added). We note that O’Brien does not hold to the contrary. See O’Brien, 132 N.H. at 592 (stating that the legislature “has determined that protection of the public by removing dangerous drivers from highways is a serious priority and that violators of the habitual offender law must be dealt with severely”).

Admittedly, the risk that a person on home confinement may still choose to drive makes it a less effective means of keeping habitual offenders off the highways than incarceration. Cf. id. (concluding that “[t]he imposition of a mandatory minimum sentence may be thought to be a reasonable means of protecting the public”). However, such policy considerations are for the legislature to make.

The State also speculates that the home confinement option in RSA 262:23 may have been “intended to give habitual offenders an opportunity to reform after one offense of driving while certified” and concludes that it should be unavailable where “this defendant has consciously rejected that opportunity by offending a second time.” This argument is just another attempt to further penalize the defendant for her recidivism. As we noted in Rix, habitual offender certification is already designed to address recidivism, and we will not add to the penalty that the legislature, through the plain language of RSA 262:23, has chosen to impose upon habitual offenders. Rix, 150 N.H. at 133-34.

We conclude on the facts presented here that the defendant is eligible for home confinement under the plain meaning of RSA 262:23,1. We also conclude that nothing in the plain language of RSA 262:23,1, precludes the imposition of concurrent sentences of home confinement for multiple violations of the habitual offender statute, subject again to the “once per lifetime” limitation. On the other hand, it is within the trial court’s discretion to decline to order home confinement under circumstances where, as here, the defendant has committed more than one violation. Of course, should the legislature disagree with our interpretation of RSA *410262:23,1, it is free to amend the statute as it sees fit. Zorn v. Demetri, 158 N.H. 437, 441 (2009). As both the decision whether to impose a sentence of home confinement, see .RSA 262:23, I (sentencing court “may order” habitual offender to serve all or part of sentence under home confinement), and the “selection of either concurrent or consecutive sentences rest[] within the discretion of sentencing judges,” Duquette n Warden, N.H. State Prison, 154 N.H. 737, 742 (2007) (quotation omitted), we remand for the trial court’s determination, in its sound discretion, of an appropriate sentence.

Sentence vacated and remanded.

DALIANIS and CONBOY, JJ., concurred; Broderick, C.J., dissented; Duggan, J., dissented.