LYNN, J.
The defendant, Timothy Bobola, appeals a decision of the Superior Court (Anderson, J.) denying his petition to annul a criminal conviction for second degree assault (assault conviction) and a second degree assault charge that did not result in a conviction (assault charge). See RSA 651:5 (Supp. 2015) (amended 2015). On appeal, he argues that the trial court erred by denying his petition to annul on the basis that he had a conviction for driving under the influence (DUI) on his record that was ineligible for annulment. We affirm.
The record supports the following facts. On October 1, 2002, the defendant was indicted on two counts of second degree assault. Both charges alleged that, on June 9, 2002, the defendant struck the same victim in the head using his fists. On November 17, 2003, the day that the defendant's trial was scheduled to begin, the State entered a nolle prosequi on one of the charges. Following trial, a jury convicted the defendant on the remaining charge.
On March 12, 2004, the trial court sentenced the defendant to serve two to four years in the New Hampshire State Prison. The court also ordered him to pay restitution to the victim. In 2007, the court rescinded the remainder of the restitution payments.
On May 12, 2008, the defendant pleaded guilty to DUI, first offense. The trial court sentenced the defendant to pay a $600 fine and complete the Impaired Driver Intervention Program, and suspended his license for nine months. The license suspension was later reduced to three months.
On February 12, 2015, the defendant petitioned the superior court to annul the assault conviction and assault charge. The State objected, citing the defendant's DUI conviction. The trial court denied the defendant's petition regarding the assault conviction "for the reasons stated by the State and more specifically, the 2008 [DUI] conviction." The trial court also denied the petition to annul the assault charge "for the reasons articulated in [the file bearing the assault conviction docket number]." This appeal followed.
The defendant first argues that the trial court erred by concluding that the DUI conviction bars annulment of the assault conviction. Specifically, the defendant argues that "nothing in New Hampshire law requires that all parts of a defendant's criminal record be annulment-eligible prior to other parts of the defendant's criminal record becoming annulment-eligible." The State counters that the trial court properly denied the defendant's petition because the DUI conviction is not yet eligible for annulment.
"Because resolution of this issue requires the interpretation of a statute, our review is de novo." State v. Pinault, 168 N.H. 28, 31, 120 A.3d 913 (2015). "We are the final arbiter of the intent of the
"RSA 651:5 sets forth both procedural prerequisites and categorical bars to obtaining annulments." Id. at 146, 106 A.3d 425. Specifically, RSA 651:5, III states:
RSA 265-A:21, the statute referenced in the first sentence of RSA 651:5, III states, in relevant part, that "[n]otwithstanding the provisions of RSA 651:5, no court shall order an annulment of any record of conviction of driving ... while under the influence of intoxicating liquor or any controlled drug ... until 10 years after the date of conviction." RSA 265-A:21, I (2014). Additionally, RSA 651:5, VI states that "[i]f a person has been convicted of more than one offense, no petition for annulment shall be brought and no annulment granted ... [u]ntil the time requirements under paragraphs III and IV for all offenses of record have been met." RSA 651:5, VI(b). Thus, under RSA 651:5, VI, if a person is convicted of multiple offenses, he may not be granted an annulment as to any of the convictions until the time requirements of RSA 651:5, III are met for all the convictions. See id.
The defendant concedes that his DUI conviction was not eligible for an annulment when he filed his petition, because ten years had not passed since the conviction. However, he argues that this fact does not preclude annulment of the assault conviction, because all parts of his record, including the DUI conviction, meet the requirements of RSA 651:5, III. To support his argument, the defendant applies to his DUI conviction the three-year waiting period listed for a conviction of a class B misdemeanor generally. The State argues that, for DUI convictions, the language in RSA 651:5, III that references the ten-year annulment provision of RSA 265-A:21 is meant to replace the time period
The subparagraphs of RSA 651:5, III include several exceptions to the time periods expressed for a given offense classification. See RSA 651:5, III(a)-(d). For instance, a person convicted of a single class B misdemeanor, and no other crime, may not petition for an annulment until three years after the petitioner has completed all the terms and conditions of that sentence "except as provided in subparagraph (f)." RSA 651:5, III(b). RSA 651:5, III(f) states that a petitioner seeking to annul a conviction for sexual assault under RSA 632-A:4 must wait ten years after completing all terms and conditions of the sentence. Thus, if a person is convicted of class B misdemeanor sexual assault under RSA 632-A:4, the three-year waiting period generally applicable to class B misdemeanors under RSA 651:5, III(b) is replaced with a ten-year waiting period, pursuant to subparagraph (f).
Similarly, paragraph III states that "[e]xcept as provided in RSA 265-A:21 or in paragraphs V and VI," a petition for annulment may be filed after all the terms and conditions of the sentence have been completed for the specified time periods. RSA 651:5, III. RSA 265-A:21 requires a ten-year waiting period after conviction before a DUI conviction becomes eligible for annulment. See RSA 265-A:21, I. Thus, as with the exceptions provided in the subparagraphs, the phrase "[e]xcept as provided in RSA 265-A:21" alters the waiting period for an annulment of a DUI conviction to ten years. That the phrase appears in the introductory portion of paragraph III, and not in a subparagraph, does not persuade us that the legislature intended to treat the two identical phrases differently. Its placement outside of any specific subparagraph is logical given that RSA 265-A:21, I, applies to all DUI convictions, which span multiple offense classifications. See generally RSA 265-A:18 (2014) (stating that, depending upon the circumstances, a DUI offense might be classified as a violation, class A or B misdemeanor, or class B felony).
Under the defendant's interpretation, the ten-year waiting provision of RSA 265-A:21, I, applies only to the annulment of the DUI conviction itself, but the three-year waiting period, applicable to class B misdemeanors generally, applies to his DUI conviction when, as here, he is seeking to annul other parts of his criminal record. To interpret the statute in this way would require us to ignore the language "[e]xcept as provided in" as used in paragraph III. RSA 651:5, III. We decline to do so, as "[w]e must give effect to all words in a statute." Petition of State of N.H. (State v. Milner), 159 N.H. 456, 457, 986 A.2d 592 (2009).
The defendant argues that the phrase "[e]xcept as provided in RSA 265-A:21" in RSA 651:5, III "is meant to clarify that the two statutes are meant to be read harmoniously." This argument ignores the plain meaning of the word "except," which is "with the exclusion ... of." Webster's Third New International Dictionary 791 (unabridged ed. 2002). Thus, by creating an exception for RSA 265-A:21, paragraph III incorporates the ten-year waiting period into the statute. Because the defendant acknowledges that the ten-year waiting period on his DUI conviction has not lapsed, it (as well as his other criminal record) is not eligible for annulment, and the trial court did not err by denying his petition. See RSA 651:5, VI(b).
The defendant also relies upon State v. Patterson, 145 N.H. 462, 764 A.2d 901 (2000), in support of his argument. In Patterson, a defendant filed a petition to annul two class A felony drug convictions, relying on a provision in the Controlled
The defendant also argues that interpreting the ten-year waiting period in RSA 265-A:21, I, which begins to run upon a defendant's conviction, to replace the waiting periods contained in RSA 651:5, III, which begin to run upon completion of the defendant's sentence, would lead to an absurd result. Specifically, the defendant posits a scenario whereby a defendant, who has been convicted of multiple DUI crimes, has his license suspended for a period exceeding ten years. The defendant argues that if the ten-year waiting period begins to run following conviction, such a defendant would become eligible for an annulment while still serving his license suspension. We need not decide whether the ten-year waiting period in RSA 265-A:21, I, sets only a minimum time in which a defendant must wait before petitioning for an annulment or replaces, in all aspects, the requirements of RSA 651:5, III. Even assuming the defendant's premise is correct, a trial court would presumably take into consideration the fact that the person seeking the annulment was still serving the terms of a sentence before making its determination whether to grant an annulment. See RSA 651:5, I (stating that an annulment "may" be granted "if in the opinion of the court, the annulment will assist in the petitioner's rehabilitation and will be consistent with the public welfare").
The defendant next argues that, even if we determine that the assault conviction is not eligible for annulment because of the DUI conviction, the trial court erred when it denied his petition to annul the assault charge. The State argues that the trial court properly rejected the defendant's petition to annul the assault charge because the "case" to which that charge pertained was prosecuted and resulted in a conviction.
RSA 651:5, II states:
(Emphasis added.) The defendant argues that, pursuant to RSA 651:5, II, the assault charge itself qualifies as a "case [that] was dismissed or not prosecuted" and is, therefore, eligible for annulment at any time. Relying upon the separate docket numbers assigned to the assault charge on which the State entered a nolle prosequi and the assault charge on which he was convicted, he contends that they were separate cases, and that he, therefore, is eligible for an annulment of the nolle prosequi case. The State argues that both assault charges were part of the same "case," and, therefore, RSA 651:5, II is inapplicable because the case was prosecuted, ultimately resulting in a conviction.
We conclude that both assault charges arose from the same "case" as that term is used in RSA 651:5, II. Both parties agree that the assault charge on which the State entered a nolle prosequi was an alternative theory to the assault charge that resulted in a conviction. The indictments both alleged that the defendant, on the same date and in the same location, knowingly struck the victim in the head, using his fists, and causing serious bodily injury. Moreover, both charges were scheduled to be tried on the same date.
We find further support for our conclusion that the alternative charges here were part of the same "case" by examining the statute as a whole. RSA 651:5, IX authorizes the department of corrections to charge a petitioner a fee for annulment investigations "unless the petitioner ... has been found not guilty, or the case has been dismissed or not prosecuted in accordance with paragraph II." (Emphasis added.) This language is verbatim with, and specifically references, RSA 651:5, II. Under the defendant's interpretation, he would not need to pay for these services in conjunction with a petition to annul the alternative assault charge. We do not believe that the legislature intended that someone convicted of a crime should be able to avoid paying for services regarding a charge that did not result in a conviction when he was convicted of the same conduct under an alternative theory of culpability.
Nor are we persuaded by the defendant's reference to the separate docket numbers assigned to the two charges. The fact that, administratively, the charges were assigned separate docket numbers does not, standing alone, mean that these charges were separate cases. See Town of Nottingham v. Bonser, 146 N.H. 418, 425-26, 777 A.2d 851 (2001) (concluding that two actions were the same case because although they "were assigned separate docket numbers, the cases more closely resembled bifurcated issues of a single matter").
The defendant also argues that, if we agree with the State's interpretation, the annulment statute provides "no time limitations of any kind for charges not resulting in a conviction where one or more of its companion charges did result in a conviction." However, simply because RSA 651:5, II does not apply to the assault charge here does not mean that there is no vehicle by which that charge can be annulled. The defendant may seek to annul the alternative charge once the time requirement of RSA 651:5, III is satisfied regarding the charge on which he was convicted.
Further, we note that, although statutes in other jurisdictions often contain terms that differ from the term "case" found in RSA 651:5, II, it appears that defendants generally are not entitled to an
Finally, the defendant makes several arguments regarding the assault charge that are based upon the assumption that the rest of the defendant's criminal record is annulment-eligible under RSA 651:5, III. However, as discussed above, that assumption is incorrect. Therefore, we need not address these arguments.
Affirmed.
DALIANIS, C.J., and HICKS, CONBOY, and BASSETT, JJ., concurred.