State of New Hampshire v. Matthew L. Tsopas

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Strafford
No. 2014-309

THE STATE OF NEW HAMPSHIRE

v.

MATTHEW L. TSOPAS

Submitted: July 10, 2014
Opinion Issued: August 6, 2014

Joseph A. Foster, attorney general (Elizabeth C. Woodcock, assistant
attorney general, on the memorandum of law), for the State.

Harry N. Starbranch, Jr., of Portsmouth, on the memorandum of law, for
the defendant.

DALIANIS, C.J. The defendant, Matthew L. Tsopas, appeals an order of
the Superior Court (Tucker, J.) denying his third motion to modify bail. See
RSA 597:6-e, II (2001). The defendant contends that the trial court erred by:
(1) failing to conduct a hearing on the motion or issue written findings of fact
pursuant to RSA 597:6-e, II; and (2) unsustainably exercising its discretion by
setting an “unreasonably high cash only bail.” We affirm.
 The record establishes the following facts. The defendant faces multiple
felony and misdemeanor charges arising out of a single alleged drunk driving
incident. The district division set bail initially at $250,000 cash with
conditions, but subsequently reduced it to $75,000 cash with conditions. The
State asserts, and the defendant does not contest, that this reduction was in
response to the defendant’s request and over the State’s objection.

On August 13, 2013, the defendant filed a motion in the superior court
to modify bail, and the court held a hearing. On August 20, 2013, the superior
court ordered “[b]ail to remain as set by the District Court on 7/31/13.” On
November 18, 2013, the defendant filed a second motion in superior court to
modify bail, and, on November 22, 2013, the superior court held another
hearing, after which the court ordered “[n]o change in bail.” The defendant has
not supplied transcripts from either of those hearings.

On April 16, 2014, the defendant filed a third motion for bail review.
Although the defendant requested a hearing, he did not request that the court
make specific findings. The State objected, and the court denied the motion,
without holding a hearing, stating: “After review of the motion, supporting
documents, and the State’s objection, I am not persuaded that the present bail
is inappropriately high.” The defendant appeals this order.

The defendant argues that RSA 597:6-e, II required the superior court to
hold a hearing and make written findings of fact on his third motion for bail
review. Because resolution of this issue involves statutory interpretation, our
review is de novo. State v. Thompson, 164 N.H. 447, 448 (2012). In matters of
statutory interpretation, we are the final arbiters of legislative intent as
expressed in the words of the statute considered as a whole. Id. When
examining the language of the statute, we ascribe the plain and ordinary
meaning to the words used. Id.

RSA 597:6-e, II provides, in pertinent part:

The person [subject to bail] . . . may file with the superior court
a motion for . . . amendment of the conditions of release set by . . .
[the] district [division] . . . . In cases where a district [division]
justice has made a finding, pursuant to RSA 597:2, III-a that the
person poses a danger to another, the superior court shall . . .
conduct a hearing and make written findings supporting any
modifications and reasons for new conditions or changes from the
district [division] order.

At the outset, we assume, without deciding, that RSA 597:6-e (2001 & Supp.
2013) authorizes defendants to file successive motions for bail modification.

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However, RSA 597:6-e, II, by its express terms, requires that the superior court
hold a hearing and make written findings only when the district division has
found pursuant to RSA 597:2, III-a (2001), that the defendant “poses a danger
to another.” In this case, the district division did not make a finding that the
defendant posed such a danger. Therefore, the requirements of a hearing and
written findings under RSA 597:6-e, II did not apply to the defendant’s motion.
State v. Poulicakos, 131 N.H. 709 (1989), and State v. Hall, 131 N.H. 634
(1989), upon which the defendant relies, were decided under a different statute
that is no longer in effect. See RSA 597:6-a, VII (Supp. 1988) (repealed 1989).

In the absence of a statutory mandate, the superior court has discretion
to determine whether a hearing is necessary. See Super. Ct. Crim. R. 58, 115.
To obtain a hearing, the party seeking it must articulate why a hearing would
assist the court. See In re Erik M., 146 N.H. 508, 511 (2001) (stating no
hearing required in superior court on acceptance of certification and transfer
from district court where defendant did not set forth reasons why hearing
would assist court). We review the court’s determination not to hold a hearing
under our unsustainable exercise of discretion standard. State v. McGurk, 163
N.H. 584, 587 (2012). To show that the trial court’s decision is not
sustainable, the defendant must demonstrate that the court’s ruling was
clearly untenable or unreasonable to the prejudice of his case. State v.
Lambert, 147 N.H. 295, 296 (2001). In this case, the defendant argues only
that RSA 597:6-e, II entitled him to a hearing, which it does not. Therefore, he
has not demonstrated that the court unsustainably exercised its discretion by
denying him a hearing.

To the extent that the defendant contends that RSA 597:2, II (Supp.
2013) requires the superior court to make specific findings in these
circumstances, he has not provided us with a record that demonstrates that he
preserved this argument for our review, nor did he include the question in his
notice of appeal. See State v. Noucas, 165 N.H. 146, 152 (2013); State v.
Eschenbrenner, 164 N.H. 532, 543 (2013). In addition, he does not develop
this argument. Therefore, we decline to address it. See State v. Blackmer, 149
N.H. 47, 49 (2003).

Finally, we address the defendant’s contention that the trial court
unsustainably exercised its discretion in refusing to reduce his bail from
$75,000 cash, with conditions, to $25,000 cash or corporate surety, with
conditions, because “there is no legitimate concern [he] will fail to appear,” and
his substance abuse evaluation “standing alone outlines the combination of
conditions which would en[s]ure the safety of the community.” We review the
superior court’s decision on a motion to modify bail under our unsustainable
exercise of discretion standard. See Moses v. Helgemoe, 115 N.H. 672, 672
(1975). After considering the defendant’s arguments and supporting

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documents, including the evaluation, the superior court concluded that his
bail, as set, was not “inappropriately high.” On this record, we cannot say that
the court unsustainably exercised its discretion reaching this conclusion.

Affirmed.

HICKS, CONBOY, LYNN, and BASSETT, JJ., concurred.

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