Petition of State of New Hampshire

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2022-0201, Petition of State of New
Hampshire, the court on February 16, 2024, issued the
following order:

The court has reviewed the written arguments and the record submitted
on appeal, has considered the oral arguments of the parties, and has
determined to resolve the case by way of this order. See Sup. Ct. R. 20(2). The
State seeks review by way of a petition for writ of certiorari of a sentencing
order of the Circuit Court (Subers, J.) treating the defendant’s, John Kenny, III,
conviction as a class B misdemeanor and sentencing him accordingly after the
State failed to file a notice of intent to seek class A misdemeanor penalties
pursuant to RSA 625:9, IV(c)(2) (Supp. 2023). We affirm.

The following facts were found by the trial court or derive from the record
submitted to this court. On September 17, 2021, the defendant, a bartender
and server, served an underage customer eight cocktails in the course of
approximately an hour. The defendant did not ask the customer for proof of
age before serving him.

The State charged the defendant with two misdemeanors under RSA
179:5: one count of prohibited sales of alcohol to a minor and one count of
prohibited sales to an intoxicated individual. See RSA 179:5, I (2022). Both
are unclassified misdemeanors. See RSA 179:58, I (2022); RSA 625:9, IV(c)
(governing how to classify “[a]ny crime designated within or outside this code
as a misdemeanor without specification of the classification”). RSA 625:9, IV(c)
provides that an unclassified misdemeanor “shall be presumed to be a class B
misdemeanor unless” an element of the offense involves an act or threat of
violence, the State files a notice of intent to seek class A misdemeanor penalties
on or before the date of the arraignment on a form approved in accordance with
RSA 490:26-d, or the misdemeanor charge is filed directly in superior court.

The State checked the class A misdemeanor box on both complaints.
The defendant’s arraignment date was set for November 18, 2021. The
defendant requested appointed counsel and the court granted that request on
October 21, 2021. Prior to the arraignment date, the defendant entered a not
guilty plea and waived arraignment. At no point prior to the scheduled
arraignment date did the State file a notice of intent to seek class A
misdemeanor penalties.
 On February 17, 2022, after a bench trial, the trial court found the
defendant guilty of prohibited sales of alcohol to a minor and not guilty of
prohibited sales of alcohol to an intoxicated individual. At all times prior to the
sentencing hearing the trial court and the parties understood the charged
offenses to be class A misdemeanors.

On March 17, 2022, at the defendant’s sentencing hearing, the trial
court ruled that “the charge he’s being convicted of is to be considered a Class
B misdemeanor” and that it could impose only class B penalties. See RSA
625:9, IV(c). The trial court reasoned that because prohibited sales of alcohol
to a minor is an unspecified misdemeanor that does not meet one of the other
exceptions to RSA 625:9, IV(c) and the State did not file a notice of intent to
seek class A misdemeanor penalties under RSA 625:9, IV(c)(2), it could impose
only class B penalties. The State did not object to the trial court’s ruling. That
same day, the trial court issued a written sentencing order reiterating its ruling
and imposing the maximum allowable fine for a class B misdemeanor. The
State did not move to reconsider. This petition followed. See Sup. Ct. R. 11(1).

Certiorari is an extraordinary remedy that is not granted as a matter of
right, but, rather, at the court’s discretion. Petition of State of N.H., 175 N.H.
371, 376 (2022); see Sup. Ct. R. 11. Our review of a decision on a petition for
writ of certiorari entails examining 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.
Petition of State of N.H., 175 N.H. at 376. We exercise our power to grant such
writs sparingly and only where to do otherwise would result in substantial
injustice. Petition of Chase Home for Children, 155 N.H. 528, 532 (2007).

In support of its petition, the State argues that the trial court erred by
reducing the defendant’s conviction to a class B misdemeanor and imposing
only class B misdemeanor penalties based on the State’s failure to file an RSA
625:9, IV(c)(2) notice of intent to seek class A misdemeanor penalties. The
defendant counters that the State failed to preserve its arguments because it
failed to raise them before the trial court and, therefore, we should review the
trial court’s sentencing order for plain error only. We agree with the defendant
that the State failed to preserve the issue.

We have long held that parties may not have judicial review of issues not
raised before the trial court. Bean v. Red Oak Prop. Mgmt., 151 N.H. 248, 250
(2004). The purpose of our preservation rule is to ensure that trial courts have
an opportunity to rule on issues and to correct errors before parties seek
appellate review. State v. Perez, 173 N.H. 251, 258 (2020). Our preservation
“requirement is intended to discourage parties who are unhappy” with a trial
court decision “from combing the record to find an alleged error never raised
before the trial judge that might support a motion to set aside the judge’s
ruling.” Id. An issue is preserved when the trial court understood and

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therefore addressed the substance of an objection. Id. It is well settled that
even when an issue is raised for the first time by a trial court’s order, such that
a party has not had a chance to address it, the party must identify the error in
a motion for reconsideration to preserve the issue for appeal. See N.H. Dep’t of
Corrections v. Butland, 147 N.H. 676, 679 (2002); N.H. R. Crim. P. 43(a).

The State does not dispute that it did not object or file a motion for
reconsideration with the trial court. The State argues that because the trial
court raised and resolved the RSA 625:9, IV(c)(2) notice issue sua sponte it was
not required to file a motion for reconsideration of the sentencing order and the
issue is adequately preserved. The State also argues that even if the issue is
not preserved, this court should address the issue because preservation “is a
limitation upon the parties to an appeal, not upon the reviewing court, the
issue constitutes a discrete issue of law requiring no further factual
development, and the issue is important to the administration of justice.”
(Quotation omitted.)

The State does not cite, nor have we found, any cases supporting its
argument that, because the trial court raised the notice of intent issue sua
sponte, the issue is adequately preserved without filing a motion for
reconsideration. Because the State failed to object or file a motion for
reconsideration, we conclude that the State’s argument is not preserved, see
Butland, 147 N.H. at 679; N.H. R. Crim. P. 43(a), and we decline the State’s
invitation to waive our preservation requirement, see State v. Mouser, 168 N.H.
19, 28 (2015).

Because we find the State’s arguments not preserved, we confine our
review to plain error. State v. Ruiz, 170 N.H. 553, 566 (2018); see Sup. Ct. R.
16-A. The plain error rule allows us to consider issues that were not raised in
the trial court. State v. Pennock, 168 N.H. 294, 310 (2015). We apply the rule
sparingly — its use is limited to those circumstances in which a miscarriage of
justice would otherwise result. Id. To reverse a trial court decision under
the plain error rule: (1) there must be an error; (2) the error must be plain; (3)
the error must affect substantial rights; and (4) the error must seriously affect
the fairness, integrity or public reputation of judicial proceedings. Id.

The State argues that the trial court committed plain error when it
concluded that the absence of an RSA 625:9, IV(c)(2) notice required it to treat
the defendant’s conviction as a class B misdemeanor even though the trial
court issued an appointment of counsel order at the outset of the case “finding”
that the defendant had been charged with a class A misdemeanor. We
disagree.

Based on our reading of the record and the applicable precedent, we
conclude that if there was an error it was not plain. For the purposes of
the plain error rule, an error is plain if it was or should have been obvious in

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the sense that the governing law was clearly settled to the contrary. Pennock,
168 N.H. at 310. The State bears the burden of demonstrating plain error.
State v. Batista-Salva, 171 N.H. 818, 824 (2019). The State does not cite any
authority to support its position that the governing law is clearly settled and
that the trial court plainly erred when, given its earlier appointment of counsel
order, it sentenced the defendant to a class B misdemeanor. Based on our
review of the record and the applicable law, we are not convinced that the trial
court’s decision was contrary to clear or obvious precedent.

Because the State’s argument fails under the second prong of the plain
error analysis, we need not address the remaining plain error arguments. See
State v. Ortiz, 162 N.H. 585, 591 (2011). Finally, we decline the State’s
invitation to overrule State v. Blunt, 164 N.H. 679 (2013), and State v.
Whitney, 172 N.H. 380 (2019).

Affirmed.

MACDONALD, C.J., and BASSETT, HANTZ MARCONI, and DONOVAN,
JJ., concurred; HICKS, J., sat for oral argument but subsequently disqualified
himself and did not participate in further review of the case, see also N.H.
CONST. pt. II, art. 78.

Timothy A. Gudas,
Clerk

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