Petition of State of New Hampshire

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2014-0800, Petition of State of New
Hampshire, the court on October 22, 2015, issued the following
order:

Having considered the briefs of the parties and the record submitted on
appeal, the court concludes that a formal written opinion is unnecessary in
this case. In this petition for original jurisdiction, see Sup. Ct. R. 11, the
petitioner, the State of New Hampshire, seeks review of an order of the Circuit
Court (Rappa, J.) denying the State’s motion for partial reconsideration and
ruling that the respondent, William Wertz, could be found guilty only of a class
B misdemeanor because the State failed to file the notice of intent to seek class
A misdemeanor penalties required by RSA 625:9, IV(c) (Supp. 2014). We deny
the petition.

The relevant facts follow. In October 2013, the State filed a complaint
that charged the respondent with indirect criminal contempt for purposely
violating a condition of his bail by committing the crime of driving after
suspension while on release. At a bench trial in August 2014, the trial court
convicted the respondent. At sentencing, the respondent argued that, because
the State had not filed the notice required by RSA 625:9, IV(c) of its intent to
seek class A misdemeanor penalties, the court could impose only a class B
misdemeanor sentence. The trial court agreed with the respondent, imposing a
fine of $500 with $250 of the fine suspended. In its motion for partial
reconsideration, the State argued that RSA 625:9 (Supp. 2014) does not apply
to indirect criminal contempt. The trial court denied the State’s motion. This
petition for writ of certiorari followed.

Certiorari is an extraordinary remedy that is not granted as a matter of
right, but rather at the discretion of the court. Petition of State of N.H. (State v.
San Giovanni), 154 N.H. 671, 674 (2007). We exercise our power to grant the
writ sparingly and only where to do otherwise would result in substantial
injustice. Id. Certiorari review is limited to whether the trial court acted
illegally with respect to jurisdiction, authority or observance of the law, or
unsustainably exercised its discretion or acted arbitrarily, unreasonably, or
capriciously. Id.

Here, the State has failed to demonstrate that the trial court improperly
sentenced the defendant. As the respondent cogently argues:
 [T]here is no reason to believe that, if the State were to prevail in
this appeal, a remand to the circuit court would produce any
different result, because that court did not impose the maximum
possible sentence even for a class B misdemeanor. RSA 651:2,
IV(a) sets the maximum fine for a class B misdemeanor at $1200.
Here, the court sentenced [the respondent] to a $500 fine with half
of that amount suspended. Even if the offense were reclassified as
an A misdemeanor, the circuit court could impose the same
sentence, a decision that would, by operation of law, result in the
recording of the conviction as a class B misdemeanor. RSA 625:9,
VIII. Thus, even if the State were correct in its legal analysis, there
is no reason to anticipate a different outcome either as to sentence
or as to the recording of the conviction as a B misdemeanor.

(Citation omitted.) Because “[t]he trial court’s sentencing fell within the range
of its reasonable discretion[,] [w]e . . . deny the State’s petition for writ of
certiorari.” Petition of State of N.H., 152 N.H. 185, 191 (2005).

Petition denied.

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

Eileen Fox,
Clerk

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