State of New Hampshire v. Michael Jordan

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Strafford
No. 2021-0605

THE STATE OF NEW HAMPSHIRE

v.

MICHAEL JORDAN

Argued: October 18, 2022
Opinion Issued: June 29, 2023

John M. Formella, attorney general, and Anthony J. Galdieri, solicitor
general (Elizabeth C. Woodcock, senior assistant attorney general, on the brief
and orally), for the State.

Samdperil & Welsh, PLLC, of Exeter (Richard E. Samdperil on the brief
and orally), for the defendant.

HICKS, J. The defendant, Michael Jordan, appeals a decision of the
Superior Court (Will, J.) denying his motion for earned time credits. On
appeal, the defendant argues that the trial court erred when it declined to
approve the recommendations made by the Commissioner of the New
Hampshire Department of Corrections that the defendant receive several 60-
day reductions of his minimum and maximum sentences. We affirm.
 The following facts were recited in the trial court’s orders, are agreed
upon by the parties, or are otherwise contained in the record. In April 2014,
the defendant pled guilty to eight counts of Aggravated Felonious Sexual
Assault (AFSA). See RSA 632-A:2 (Supp. 2003) (amended 2008, 2012, 2014,
2017, 2018, 2020). Pursuant to a plea agreement, the defendant accepted, and
the Superior Court (Fauver, J.) imposed, various concurrent and consecutive
sentences, aggregating to a stand-committed sentence of twenty to sixty years.
The court also imposed concurrent ten-to-twenty-year suspended sentences.
The court further ordered the defendant would be ineligible for “work,
programs or supervision outside prison grounds until such time as he is
deemed eligible for parole.”

On September 9, 2014, RSA 651-A:22-a, the earned time credits statute,
became effective, affording prisoners the opportunity to receive reductions in
their maximum and minimum sentences upon completion of certain approved
programs. Laws 2014, 166:1. During his first seven years of incarceration, the
defendant successfully completed several such programs. In September 2021,
he filed his first motion for court approval of earned time credits after having
secured the commissioner’s recommendation. The State opposed court
approval, citing the serious nature of the defendant’s crimes, their lasting
impact on the victims, and the victims’ opposition to approval.

The day before the defendant’s motion was considered, the superior court
granted a motion for earned time credits in another case, State v. Cook, No.
219-1999-CR-839 (N.H. Super. Ct. Sept. 27, 2021). In Cook, the court
observed that although RSA 651-A:22-a prescribed no guidance regarding the
court’s approval of earned time credits, thereby affording the court broad
discretion, the statute demonstrated the legislature’s intent to “incentivize
prisoners to utilize their incarcerated time productively, as part of the
rehabilitative goal of sentencing.” The following day, the court granted the
defendant’s motion over the State’s objection, citing its reasoning in Cook.

The State moved for reconsideration, arguing that the court had
“overlooked or misapprehended” the scope of RSA 21-M:8-k, II(p) (“Rights of
Crime Victims”) regarding the victims’ right to appear and be heard at the
earned time credits hearing. The defendant objected. The court granted the
State’s motion and ordered a hearing.

At the hearing, the defendant argued that the earned time credits statute
was enacted after he pled guilty, and that it was the legislature’s intent that
earned time credits be “included for all inmates.” He urged the court to
readopt its prior reasoning that the intent of RSA 651-A:22-a is to incentivize
prisoners to utilize available rehabilitative programming. The State opposed
the defendant’s request, arguing that “[t]here should not be any further
reductions of things that didn’t exist at the time, of reductions that the family
never could have been consulted about.”

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 The victims and their parents made impact statements at the hearing.
The victims noted that, prior to his incarceration, the defendant had been a
business owner and community volunteer, and that it was not surprising that
he had been a model inmate. They then recounted how the defendant sexually
abused them and used their family friendship to aid in his abuse, and how the
resulting trauma continued to affect their lives. Both the victims and their
parents noted that, at the time of sentencing, they understood they would have
a minimum of twenty years to heal.

Upon reconsideration, the trial court denied the defendant’s motion for
earned time credits. The trial court stated that, in its initial granting of earned
time credits to the defendant, it had misapprehended the breadth of judicial
discretion under RSA 651-A:22-a and overlooked the fact that victim input
“could bear on the exercise of that broad discretion.” The court stated that it
had also overlooked the sentencing order language that the “[d]efendant shall
not be eligible for work programs or supervision outside prison grounds until
such time as he is deemed eligible for parole.” The trial court found that the
victims and the sentencing judge agreed to the plea agreement with an
understanding that the defendant would serve his full minimum sentence, and
that the sentencing orders “strongly suggest[ed] that, had the defendant been
sentenced after enactment of the earned time credit[s] statute, the sentencing
judge would not have made credit[s] available to the defendant.” The trial court
concluded that while “the statute . . . incentivized the defendant to complete
extensive programming as is its purpose, an award of earned time credit[s] in
this case would undermine a pillar of the original sentence.”

On appeal, the defendant argues that the trial court erred by: (1)
interpreting RSA 651-A:22-a in a manner contrary to its statutory scheme; (2)
speculating that the sentencing judge would not have made the defendant
eligible for earned time credits, contrary to the plain language of the statute;
and (3) denying the defendant his constitutional right to equal protection. We
address these arguments in turn.

The defendant first argues that the trial court erred in its interpretation
of RSA 651-A:22-a because the statutory scheme looks solely to efforts at
rehabilitation and behavior while in prison, and does not consider the
underlying offense. We disagree.

Statutory interpretation presents a question of law that 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, this court is the final arbiter of the intent of
the legislature as expressed in the words of the statute considered as a whole.
Id. 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
legislative intent from the statute as written and will not consider what the
legislature might have said or add language that the legislature did not see fit

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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. Moreover, 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 and to interpret statutory language in light of the policy or purpose
sought to be advanced by the statutory scheme. Id. We must give effect to all
words in a statute, and presume that the legislature did not enact superfluous
or redundant words. State v. Proctor, 171 N.H. 800, 805 (2019). We construe
provisions of the Criminal Code according to the fair import of their terms and
to promote justice. Id.

RSA 651-A:22-a authorizes a one-time reduction in a prisoner’s
minimum and maximum sentences for successful completion of each program
specified in the statute. See RSA 651-A:22-a (Supp. 2022). The statute
became effective on September 9, 2014, see Laws 2014, 166:3, and applies to
prisoners incarcerated both before and after that date. See RSA 651-A:22-a, II.
Paragraph I of the statute states that “[t]he commissioner, after reviewing a
prisoner’s record, shall award to a prisoner or recommend that the prisoner
receive a one-time reduction in his or her minimum and maximum sentences”
after he or she successfully completes one of the programs listed in the statute.
RSA 651-A:22-a, I. Paragraph II provides in relevant part:

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 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. As we stated in Fiske v. Warden, N.H. State Prison, 175
N.H. 526, 528 (2022), this paragraph “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.” In Fiske, we held that, for prisoners incarcerated on or after
the effective date, paragraph II unambiguously gives the sentencing court
discretion, at the time of sentencing, to grant or deny eligibility to obtain
earned time credits. Id. at 528-29. We concluded 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 . . . who was sentenced on or after September 9, 2014.” Id.

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 We now hold that the language, “upon recommendation of the
commissioner and upon approval of the sentencing court,” unambiguously
gives the sentencing court discretion to grant or deny approval of earned time
credits to a prisoner, like the defendant in this case, who was incarcerated
before September 9, 2014. RSA 651-A:22-a, II. Had the legislature intended to
mandate the award of earned time credits to all prisoners who completed
approved programming and received the commissioner’s recommendation it
could have said so. Indeed, the inclusion of the qualifying language, “upon
approval of the sentencing court,” makes clear that this is not what the
legislature intended.

The defendant argues that the statutory scheme of RSA 651-A:22-a
limits the court’s discretion to consider only the prisoner’s rehabilitative efforts
and behavior during incarceration in its approval decision. In support of this
interpretation of the statute, the defendant points to paragraph III, which
states in relevant part:

The earned time reductions authorized in paragraph I
of this section shall only be earned and available to
prisoners while in the least restrictive security
classifications of general population and minimum
security. The earned time may be forfeited for
involvement or membership in a security threat group,
attempted escape, escape, or commission of any
category A offense listed in the department of
corrections policy and procedure directives.

RSA 651-A:22-a, III. The defendant argues that because the statute imposes
limitations based only on the defendant’s activity while in prison, “there is no
evidence of a legislative intent to exclude prisoners because of the nature of the
underlying offense or the criminal conduct prior to sentencing.”

Reading the statute as a whole, we conclude that the legislature intended
courts to have broad discretion in approving earned time credit. The
legislature included no language limiting what the sentencing court can
consider, nor differentiated between the information that could be considered
for prisoners incarcerated before and after the statute’s effective date. See RSA
651-A:22-a. To limit the court’s consideration to only the rehabilitative efforts
made by the prisoner during incarceration, as the defendant suggests, would
require us to add language that the legislature did not see fit to include. See
Avery, 173 N.H. at 733. Additionally, a practical application of the statute
demonstrates that a defendant’s behavior other than that demonstrated while
in prison will increasingly serve as the dominant basis for court approval of
earned time credits going forward, as the population of eligible prisoners shifts
toward those incarcerated after the effective date of the statute and court
approval is rendered at the time of sentencing.

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 We agree with the trial court that courts have broad discretion to
consider all relevant factors in their decision to grant, or decline to grant,
approval for earned time credit, and that the court is free to consider either the
crime for which the defendant was convicted or the degree of harm suffered by
the victims when it exercises this discretion.

The defendant argues that under the principle of ejusdem generis we
should interpret “approval” in RSA 651-A:22-a, II as being limited by the
language in RSA 651-A:22-a, III, so that the sentencing court is required to
accept the commissioner’s recommendation for earned time credit “unless that
court finds that the defendant’s security status, disciplinary record, or other
conduct since being incarcerated is contrary to the rehabilitative purpose of the
statute.” We disagree that the principle of ejusdem generis applies.

Ejusdem generis means “of the same kind,” and is a principle of
statutory construction used to reconcile the incompatibility between general
and specific words, considering that each word in a statute must be given
effect. 2A Norman J. Singer & J.D. Shambie Singer, Statutes and Statutory
Construction § 47.17 (7th rev. ed. 2014). We have articulated the principle of
ejusdem generis in two ways.

We have said that it provides that where general words follow an
enumeration of persons or things, by words of a particular and
specific meaning, such general words are not to be construed in
their widest extent, but are to be held as applying only to persons
or things of the same kind or class as those specifically mentioned.
We have also stated that the doctrine provides that, when specific
words in a statute follow general ones, the general words are
construed to embrace only objects similar in nature to those
enumerated by the specific words. Under either articulation, the
general words are construed to apply only to persons or things that
are similar to the specific words.

State v. Proctor, 171 N.H. 800, 806 (2019) (quotations and citations omitted).

Here, even assuming that “approval” could be considered a general term
requiring interpretation, the defendant does not seek to determine what the
term “approval” means, or to what specific thing it might refer, by reference to
specific terms that precede or follow it (of which there are none). Rather, he
seeks to use limitations listed in a different paragraph of the statute to restrict
what the court can consider when it decides whether to grant or deny
“approval.” Ejusdem generis does not apply in these circumstances.

The defendant next argues that the trial court erred by determining that
the original sentencing judge would not have made the defendant eligible for
earned time credits because that determination was speculative and

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constructively amended the sentencing order to prohibit the granting of earned
time credits. Further, the defendant argues that it was illogical for the trial
court to find that a grant of earned time credits would undermine his plea
agreement because such credits do not guarantee he will serve less than his
full minimum sentence.

Having found that RSA 651-A:22-a provides the sentencing court with
broad discretion in its decision to grant or decline to grant earned-time credits,
we review the trial court’s decisions on the defendant’s motions for earned time
credits under the unsustainable exercise of discretion standard. “When we
determine whether a ruling made by a judge is a proper exercise of judicial
discretion, we are really deciding whether the record establishes an objective
basis sufficient to sustain the discretionary judgment made.” State v. Lambert, 147 N.H. 295, 296 (2001). We will reverse the trial court’s ruling only if it “was
clearly untenable or unreasonable to the prejudice of [the defendant’s] case.”
Id. (quotation omitted).

To support his contention that the trial court erred, the defendant cites
to the order on the motion for earned time credits after reconsideration:

While the defendant has indisputably completed
what the earned time credit statute would require were
he eligible, the record reflects that the victims acceded,
and the sentencing judge agreed, to the plea
agreement in significant part on their collective
understanding and intent that the defendant would
serve his full minimum sentence. Not only do the
sentencing orders attempt to foreclose any release
prior to the minimum, they strongly suggest that, had
the defendant been sentenced after enactment of the
earned time credit statute, the sentencing judge would
not have made credit available to the defendant.

This is neither speculation nor an amendment of the sentence. The trial
court’s reliance on the sentencing order language to determine the sentencing
judge’s intent, for use in his consideration of whether or not to grant earned
time credits to the defendant, is simply proper reliance upon the record as
provided by the parties. The trial court may, as it did in this case, consider a
variety of relevant factors, including the sentencing orders, the rehabilitation of
the defendant while in prison, the nature of the offense and its impact on the
victims, as well as the mutual understanding of the parties as expressed by the
plea agreement. The trial court ultimately concluded that to grant earned time
credits in the defendant’s case would have undermined the plea agreement. It
was within the trial court’s broad discretion to do so.

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 We also disagree that the lack of a guaranteed earlier release makes the
trial court’s finding illogical. Regardless of whether earned time credits
guarantee an earlier release date or merely provide an earlier opportunity for
parole, any possibility of the defendant’s early release alters the terms of the
plea agreement to which the parties agreed. The record contains objective
support for the trial court’s finding that the parties and the sentencing judge
had a mutual understanding that the defendant would serve no less than his
full minimum sentence. The trial court did not unsustainably exercise its
discretion by considering the effect of the defendant’s possible early release on
the underlying plea agreement in its denial of earned time credits.

Finally, the defendant argues that allowing the trial court to consider
factors outside the statutory scheme in its approval decision results in similar
prisoners being treated differently and violates equal protection under the
Fourteenth Amendment to the United States Constitution and Part I, Articles 2
and 12 of the New Hampshire Constitution. We disagree. We first address the
defendant’s claim under the State Constitution and rely upon federal law only
to aid our analysis. State v. Ball, 124 N.H. 226, 231-33 (1983).

We held earlier in this opinion that RSA 651-A:22-a grants the trial court
broad discretion in its approval or denial of earned time credits and that it may
consider all relevant information in doing so. Nevertheless, the defendant
argues that this interpretation “presents an opportunity to reach inconsistent
and disparate results,” and that, “[t]o arrive at consistent results, the court
should limit itself to those factors identified in the statutory scheme: did the
prisoner complete one of the recognized rehabilitative programs, and has the
prisoner’s conduct while incarcerated been meritorious.”

Such “inconsistent” results are an accepted consequence of granting trial
court judges broad discretion in adjudicating the claims that come before
them. See Engquist v. Oregon Dept. of Agriculture, 553 U.S. 591, 603 (2008)
(reasoning that “some forms of state action . . . which by their nature involve
discretionary decisionmaking based on a vast array of subjective,
individualized assessments,” do not violate equal protection “because treating
like individuals differently is an accepted consequence of the discretion
granted”); see also Caesars Massachusetts Management Co. v. Crosby, 778
F.3d 327, 336 (1st Cir. 2015) (stating that Engquist’s “reasoning extends
beyond its particular facts”).

We find this reasoning persuasive and applicable considering the broad
discretion afforded to the trial court in making what is, by nature, a subjective
and individualized decision to approve or deny earned time credits. Cf. Franks
v. Rubitschun, No. 5:06-cv-164, 2010 WL 1424253, at *4, 7, 8 (W.D. Mich.
Mar. 31, 2010) (noting that “several courts have extended Engquist’s rationale
to parole denials” and concluding that plaintiff failed to state a class-of-one
equal protection claim because the Michigan Parole Board’s decision to deny

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parole is “inherently discretionary”). As a result, the defendant’s equal
protection claim fails. Because the Federal Constitution offers no greater
protection than our State Constitution, we reach the same result under both.
See In re Sandra H., 150 N.H. 634, 637 (2004). Accordingly, we affirm.

Affirmed.

MACDONALD, C.J., and BASSETT, HANTZ MARCONI, and DONOVAN,
JJ., concurred.

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