State v. Jason Candello

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Cheshire
No. 2019-0103

THE STATE OF NEW HAMPSHIRE

v.

JASON CANDELLO

Submitted: January 9, 2020
Opinion Issued: January 31, 2020

Gordon J. MacDonald, attorney general (Meghan C. Hagaman, attorney,
on the memorandum of law), for the State.

Stephanie Hausman, deputy chief appellate defender, of Concord, on the
brief, for the defendant.

HICKS, J. The defendant, Jason Candello, appeals an order of the
Superior Court (Ruoff, J.) denying his motion to amend his sentences. We
affirm.

The relevant facts follow. On December 6, 2007, the defendant was
sentenced on two felonies pursuant to a negotiated plea. On one felony
conviction, the trial court sentenced the defendant to a stand-committed
sentence of two and one-half to nine years (sentence 1). The maximum of that
sentence was subsequently reduced to seven years. On the other felony, the
trial court imposed a three-and-one-half-to-seven year sentence that was to
run consecutively to the stand-committed sentence on the first felony (sentence
2). The court suspended sentence 2 for ten years subject to conditions.

At some point before November 12, 2012, the defendant was paroled on
sentence 1. On November 12, 2012, the defendant committed second degree
assault. The defendant’s parole was revoked, and, on November 18, 2012, he
resumed serving sentence 1. Sentence 1 ended on March 9, 2014.

On March 6, 2013, the trial court set the defendant’s bail on the second
degree assault charge at $10,000 cash, which he was unable to pay. In
February 2014, a jury convicted the defendant of the second degree assault
charge. He was sentenced on that charge on May 6, 2014 (sentence 3).
Sentence 3 was to run consecutively to sentence 2. On that day, the trial court
also imposed sentence 2 (which had previously been suspended for ten years).

In December 2018, the defendant filed a motion requesting that the trial
court amend sentences 2 and 3 so that they ran concurrently, instead of
consecutively. The court denied his motion, and this appeal followed.1

On appeal, the defendant argues that the trial court erred by declining to
amend sentences 2 and 3 so that they began to run concurrently on May 6,
2014, the date on which they were imposed. He asserts that such a result is
required by the plain language of RSA 651:3, I (2016).

Resolving this issue requires that we engage in statutory interpretation.
We review the trial court’s statutory interpretation de novo. Appeal of Local
Gov’t Ctr., 165 N.H. 790, 804 (2014). In matters of statutory interpretation, we
are the final arbiter of the intent of the legislature as expressed in the words of
a statute considered as a whole. Duquette v. Warden, N.H. State Prison, 154
N.H. 737, 740 (2007). We construe provisions of the Criminal Code according
to the fair import of their terms and to promote justice. Id.; see RSA 625:3
(2016). We begin by looking to the plain language of the statute to determine
legislative intent. Duquette, 154 N.H. at 740.

RSA 651:3, I, provides, in pertinent part: “A sentence of imprisonment
commences when it is imposed if the defendant is in custody or surrenders into
custody at that time. Otherwise, it commences when he becomes actually in
custody.” The defendant argues that because he was in custody on May 6,
2014, sentences 2 and 3 began to run on that date, and could not have been
imposed as consecutive sentences.

1 We note that the defendant also filed a motion regarding his purported entitlement to pretrial
confinement credit and that the trial court denied this motion as well. Although the defendant
included a question about the trial court’s denial of that motion in his notice of appeal, he has not
briefed an argument on that issue, and, therefore, we deem it waived. See In re Estate of King,
149 N.H. 226, 230 (2003).

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 In general, “[t]rial judges are vested with broad discretionary powers with
regard to sentencing.” State v. Van Winkle, 160 N.H. 337, 340 (2010)
(quotation omitted). In Duquette, we held that, even though there is no explicit
statutory authority to do so, trial courts retain the inherent common law
authority to impose consecutive sentences. Duquette, 154 N.H. at 741-44.

The defendant argues that Duquette is not controlling in this case given
the plain language of RSA 651:3, I. We disagree. “We have often stated that we
will not interpret a statute to abrogate the common law unless the statute
clearly expresses that intent.” State v. Etienne, 163 N.H. 57, 74 (2011)
(quotation omitted). We find no clear expression of that intent in RSA 651:3, I.
Accordingly, we conclude that the trial court was not required to amend
sentences 2 and 3 so that they ran concurrently, instead of consecutively, and
that it, therefore, did not err by denying the defendant’s motion to amend.

Affirmed.

BASSETT, HANTZ MARCONI, and DONOVAN, JJ., concurred.

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