State of New Hampshire v. Shawn Abbott

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2014-0537, State of New Hampshire v. Shawn
Abbott, the court on October 21, 2015, issued the following
order:

Having considered the parties’ briefs and oral arguments, the court
concludes that a formal written opinion is unnecessary in this case. The
defendant, Shawn Abbott, appeals his conviction, following a bench trial in
superior court, on one class B misdemeanor count of resisting arrest. See RSA
642:2 (Supp. 2014). On appeal, he argues, among other contentions, that he
was entitled to a jury trial under State v. Bilc, 158 N.H. 651, 655 (2009). We
agree, and therefore vacate and remand.

The trial court could have found the following facts. One night in April
2012, two Northfield police officers responded to a 911 call from the defendant.
Abbott had made the call under the mistaken belief that his granddaughter
was being kidnapped. When the officers knocked on Abbott’s door, he
answered but was nonresponsive to the officers’ questions. Abbott then turned
around, and walked back into his apartment. Concerned that Abbott might be
going for a weapon, the officers followed him inside. The officers then tried to
prevent Abbott from walking upstairs, and a struggle ensued, which
culminated in his arrest. Abbott is a diabetic and was suffering from high
blood sugar when the officers arrested him. Abbott had also taken Ambien as
a sleep aid before dialing 911. For these reasons, Abbott claimed that he did
not understand why the police came to his home or why they were arresting
him.

The State charged Abbott with two counts of resisting arrest as class A
misdemeanors. He was convicted on both counts after a bench trial in circuit
court and sentenced to a suspended fine of $1,200.

Abbott appealed to superior court for a de novo jury trial under RSA
599:1 (Supp. 2014) (amended 2015). The State then filed two new informations
charging Abbott with two counts of resisting arrest as class B misdemeanors
for the same conduct described above. The State also moved to schedule a
bench trial in superior court, stating its intent to enter a nolle prosequi on the
original class A charges. The Superior Court (McNamara, J.) granted the
State’s motion and, after a bench trial, the Superior Court (O’Neill, J.) acquitted
Abbott on one of the class B counts, but convicted him on the other.
 On appeal, Abbott’s main argument is that our decision in Bilc forbade
the State from entering a nolle prosequi on his two class A misdemeanor
charges for resisting arrest, substituting two new class B misdemeanor charges
for the same conduct, and proceeding against him in a bench trial in superior
court after he had invoked his right to a de novo jury trial under RSA 599:1.
The State disagrees, arguing that, unlike Abbott’s case, Bilc concerned RSA
625:9, VIII (2007). That statute required the district court to record the
defendant’s misdemeanor convictions as class B because, even though his
original charges were class A, the court had sentenced him to a fine of $1,200
or less. Bilc, 158 N.H. at 652. Thus, the State argues that on appeal to the
superior court, Bilc’s misdemeanor charges remained class A, and the court
could still have imposed a jail sentence. Here, however, the State reduced
Abbott’s charges to class B before his superior court trial, which eliminated the
possibility of incarceration along with his right to a jury trial.

We find the State’s argument unconvincing. In Bilc, we recognized that
RSA 599:1 complies with the New Hampshire Constitution because it
guarantees defendants, like Abbott, who have been tried and convicted on class
A misdemeanor charges in district court (now circuit court), the “absolute
right,” id. at 653 (quotation omitted), to appeal to superior court for a de novo
jury trial. See id. at 655. Once a defendant in Abbott’s position invokes this
right, the State may not undermine it by entering a nolle prosequi and
substituting new class B misdemeanor charges, or otherwise reducing the
defendant’s misdemeanor charges to class B. See id.

At oral argument, the State asked us to overrule Bilc, but it did not
provide a stare decisis analysis. See Ford v. N.H. Dep’t of Transp., 163 N.H.
284, 290 (2012) (explaining our stare decisis doctrine). Lacking an analysis as
to why we should overrule Bilc, we see no reason to deviate from that decision
now.

We therefore vacate the trial court’s decision and remand Abbott’s case
for a jury trial in superior court, where, if convicted, he faces the penalties for a
class A misdemeanor.

Vacated and remanded.

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

Eileen Fox,
Clerk

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