The defendant, Gabriel Bilc, appeals an order of the Superior Court (McGuire, J.) granting the State’s motion to remand his cases to the Hillsborough District Cоurt on the basis that the convictions are class B misdemeanors, which cannot be appealed to the superior court. We reverse аnd remand.
The defendant was charged in district court with one count of criminal threatening and one count of criminal trespass, both class A misdemeаnors. See RSA 631:4 (2007); RSA 635:2 (2007); RSA 625:9, IV(a)(2) (2007). Following a bench trial, the defendant was found guilty and fined $350 plus a $70 penalty assessment on each charge. The defendant appealed to the superior court, seeking a jury trial on both charges.
On appeal the defendant argues that the trial court’s ruling that he was not entitled to a jury trial violates Part I, Article 15 of the New Hampshire Constitution and the Sixth Amendment to the United States Constitution. The State agrees that, as applied in this case, RSA 625:9, VIII, read in conjunction with RSA 599:1 (Supp. 2008), deprived the defendant of his right to a jury trial. We first address this claim under the State Constitution аnd cite federal opinions for guidance only.
State v. Ball,
Part I, Article 15 of the State Constitution provides: “No subject shall be arrested, imprisoned, desрoiled, or deprived of his property, immunities, or privileges, put out of the protection of the law, exiled or deprived of his life, liberty, or estаte, but by the judgment of his peers, or the law of the land ...“It has never been denied or doubted that by this article trial by jury according to the course of the сommon law is secured to the defendant in all criminal cases without exception.”
State v. Gerry,
New Hamрshire has a two-tier statutory scheme for the trial of class A misdemeanors under which a person charged is tried in the district court without a jury and if found guilty is given thе right of appeal to the superior court with a trial
de novo
by jury.
See State v. Despres,
A person cоnvicted by a district court of a class A misdemeanor, at the time the sentence is declared, may appeal therefrom to obtain a de novo jury trial in the superior court... If, after a jury trial in the superior court, the defendant is found guilty, the superior court shall sentence the defendant, and the defеndant may appeal questions of law arising therefrom to the supreme court.
We have held that this two-tier system is constitutional in that it assures “an absоlute right of appeal to the Superior Court where the trial is de novo before a jury.”
Jenkins v. Canaan Mun. Ct.,
As amended in 2007, RSA 625:9, VIII provides:
If a person convicted of a class A misdemeanor has been sentenced and such sentence does not include any period of actual incarceration or a suspended or deferred jail sentence or any fine in excess of the maximum provided for a class B misdemeanor in RSA 651:2,IV(a), the court shall record such conviction and sentence as a class B misdemeanor.
Based upon this statute, the superior court ruled that because the defendant’s class A misdemeanor convictions must be recorded as class B misdemeanor convictions, “the defendant cannot face the possibility of incarceratiоn from these charges” and therefore “has no right to a jury trial.” (Quotation and brackets omitted.)
In
Duncan v. Louisiana,
A right to jury trial is granted to criminal defendants in order to prevent oppression by the Government. Thosе who wrote our constitutions knew from history and experience that it was necessary to protect against unfounded criminal charges brought to eliminate enemies and against judges too responsive to the voice of higher authority. The framers of the constitutions strove to create an independent judiciary but insisted upon further protection against arbitrary action. Providing an accused with the right to be tried by a jury of his peers gave him аn inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge. If the defendant preferred the common-sense judgment of a jury to the more tutored but perhaps less sympathetic reaction of the single judgе, he was to have it.
Id. at 155-56.
Although the defendant in
Duncan
was charged with a crime punishable by up to two years in prison, he had been sentenced to only sixty days’ incarceration and a $150 fine.
Id.
at 146. The Court was not persuaded, however, by the State’s argument that based upon his sentence, the defendant was not entitled to a jury trial.
Id.
at 159. In determining whether a crime is serious, the Court reasoned that the penalty authorized for a particular crime is of “major relevance.”
Id.
“The penalty authorized by the law of the locality may be taken as a gauge of its social and ethical judgments of the crime in question.”
Id.
at 160 (quotation and citation omitted). Moreover, the severity of the penalty authorized, not the one actually imposed, is the relevant measure.
Id.
Serious crimes, for purposes of the Sixth Amendment, are defined to include any offense which carries a maximum penalty of more than six months imprisonment; thе right to a jury trial attaches to those crimes regardless of the sentence in fact imposed.
See Baldwin v. New York,
Under the New Hampshire Constitution, the right to a jury trial is guaranteed to “all criminal defendants facing the possibility of incarceration.”
Opinion of the Justices (DWI Jury Trials),
Reversed and remanded.