Jeremy Fiske v. Warden, New Hampshire State Prison

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Merrimack
No. 2021-0361

JEREMY FISKE

v.

WARDEN, NEW HAMPSHIRE STATE PRISON

Argued: June 23, 2022
Opinion Issued: November 16, 2022

Thomas Barnard, senior assistant appellate defender, of Concord, on the
brief and orally, for the petitioner.

John M. Formella, attorney general, and Anthony J. Galdieri, solicitor
general (Zachary L. Higham, assistant attorney general, on the brief, and Sam
M. Gonyea, attorney, orally), for the State.

HANTZ MARCONI, J. The petitioner, Jeremy Fiske, appeals a decision of
the Superior Court (Delker, J.), denying his petition for a writ of habeas corpus.
The petitioner asserts that the sentencing court exceeded its statutory
authority by denying his request during sentencing to grant the option to
receive earned-time credit. See RSA 651-A:22-a, II (2016). We affirm.

The following facts were recited in the trial court’s order or are otherwise
contained in the record. The petitioner was convicted on eight counts of
aggravated felonious sexual assault and one count of possession of child sexual
abuse images. In February 2016, the sentencing court imposed three
consecutive ten-to-thirty year, stand committed, state prison sentences with
the opportunity to have five years of the third sentence suspended, upon
successful completion of sex offender treatment. The remaining sentences
were “consecutive suspended sentences.” The petitioner “specifically requested
that the [sentencing c]ourt allow him to earn good time credit to reduce his
stand-committed sentences if he completed approved programming at the
prison.” After hearing argument, the sentencing court denied the request “in
light of the egregious nature of [the petitioner’s] crimes.”

Approximately five years later, the petitioner filed a petition for writ of
habeas corpus, asserting that the sentencing court “exceeded its statutory
authority” and “violated his right to due process” by denying the option of
earned-time credit. The trial court hearing the petition concluded that whether
to grant the opportunity to obtain earned-time credit is within the discretion of
the sentencing court and that the court’s decision on that matter was “not
arbitrary or capricious.” This appeal followed.

The petitioner’s primary argument on appeal is that “the sentencing
court lacked the statutory authority to refuse to authorize earned-time credit.”
(Capitalization omitted.). Put plainly, the petitioner asserts that, when read as
a whole, RSA 651-A:22-a (Supp. 2020) does not give the sentencing court the
discretion to deny earned-time credit. Resolving this question requires us to
engage in statutory interpretation. The interpretation of a statute is a question
of law, which we review de novo. Avery v. Comm’r, N. H. Dep’t of Corr., 173
N.H. 726, 733 (2020). In matters of statutory interpretation, we first look to
the language of the statute itself, and, if possible, construe that language
according to its plain and ordinary meaning. Id. We interpret 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. Id. We construe all
parts of a statute together to effectuate its overall purpose and to avoid an
absurd or unjust result. Id. We do not consider words and phrases in
isolation, but rather within the context of the statute as a whole, which enables
us to better discern the legislature’s intent in light of the policy or purpose
sought to be advanced by the statutory scheme. Id. Absent an ambiguity, we
will not look beyond the language of the statute. Id.

The statute at issue in this case is RSA 651-A:22-a, which provides in
pertinent part:

II. The earned time reductions authorized in paragraph I of this
section shall be available to prisoners who were incarcerated on or
after the effective date of this section and who have been granted
this option by the presiding justice at the time of sentencing. The
earned time reductions authorized in paragraph I of this section

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 shall be available to prisoners who were incarcerated prior to the
effective date of this section upon recommendation of the
commissioner and upon approval of the sentencing court in
response to a petition which is timely brought by the prisoner.

RSA 651-A:22-a, II. The petitioner was sentenced after the statute’s effective
date of September 9, 2014. See Laws 2014, 166:3. The petitioner concedes
that, “read in isolation,” RSA 651-A:22-a, II “may be interpreted to suggest that
sentencing courts have the power to pick and choose, in advance, which
prisoners can receive earned-time in the future, and which cannot” but argues
that “this interpretation is untenable” when the statute is read as a whole. We
disagree.

RSA 651-A:22-a, II contemplates two groups of prisoners: (1) those who
were incarcerated prior to September 9, 2014, when the earned-time statute
became effective; and (2) those who were incarcerated on or after the effective
date. RSA 651-A:22-a, II. Under paragraph II, a prisoner who was
incarcerated prior to September 9, 2014 is eligible to receive earned-time credit
provided the prisoner: (1) timely files a petition for such a request; (2) the
commissioner recommends him or her for earned-time credit; and (3) the
request is “approv[ed by] the sentencing court.” RSA 651-A:22-a, II. A prisoner
who was incarcerated on or after September 9, 2014 is eligible to receive
earned-time credit only if the prisoner was “granted this option by the presiding
justice at the time of sentencing.” Id. We conclude that the language, “who
have been granted this option by the presiding justice at the time of
sentencing,” in RSA 651-A:22-a, II plainly provides the court with the
discretion to either grant or decline to grant eligibility to obtain earned-time
credit to a prisoner, like the petitioner in this case, who was sentenced on or
after September 9, 2014.

In the alternative, the petitioner argues that, having found that RSA 651-
A:22-a, II provides the sentencing court with the discretion to decline to grant
eligibility for earned-time credit, we should “clarify that [prisoners] initially
denied the option to receive earned-time credit may petition the court to grant
that option upon the recommendation of the commissioner.” At this stage, we
decline to “clarify” whether the petitioner could later receive earned-time credit
upon the recommendation of the commissioner because the issue is not ripe
for our review. Ripeness relates to the degree to which the defined issues in a
case are based on actual facts and are capable of being adjudicated on an
adequately developed record. Univ. Sys. of N.H. Bd. of Trs. v. Dorfsman, 168
N.H. 450, 455 (2015). Although we have not adopted a formal test for ripeness,
we have found persuasive the two-pronged analysis used by other jurisdictions
that evaluates the fitness of the issue for judicial determination and the
hardship to the parties if the court declines to consider the issue. Id. With
respect to the first prong of the analysis, fitness for judicial review, a claim is fit
for decision when: (1) the issues raised are primarily legal; (2) they do not

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require further factual development; and (3) the challenged action is final. Id.
The second prong of the ripeness test requires that the contested action impose
an impact on the parties sufficiently direct and immediate as to render the
issue appropriate for judicial review at this stage. Id.

We need not determine whether the issue meets the first prong of the
ripeness doctrine, because we conclude that the issue is not “sufficiently direct
and immediate” to be appropriate for judicial review. Id. Here, the petitioner
has not asserted that he has completed any of the qualified programs under
RSA 651-A:22-a, I, or that he has received a recommendation for earned-time
credit from the commissioner. At this juncture, it is speculative at best
whether the petitioner will complete any of the qualified programs while
incarcerated and, if he does, whether the commissioner would recommend him
for earned-time credit. Thus, we conclude that a decision on this issue at this
time would not impose a sufficiently direct and immediate impact on the
parties such that it is appropriate for judicial review, and we decline to address
it. Id.

In sum, we conclude that RSA 651-A:22-a, II unambiguously gives the
sentencing court the discretion, at the time of sentencing, to grant or decline to
grant eligibility to obtain earned-time credit. RSA 651-A:22-a, II; see also
Avery, 173 N.H. at 733. All other issues raised in the notice of appeal, but not
briefed, are deemed waived. State v. Bazinet, 170 N.H. 680, 688 (2018).

Affirmed.
HICKS, BASSETT, and DONOVAN, JJ., concurred.

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