The defendant, Joseph LeBaron, appeals the felony sentence imposed upon him following his conviction for driving after having been certified a habitual offender. See RSA 262:23 (1993) (amended 2000,2001). We affirm.
The record discloses the following facts. On September 21, 1999, a grand jury indicted the defendant for violation of RSA 262:23. The indictment alleged in pertinent part:
[The defendant] did knowingly drive a motor vehicle upon a way of this State, to wit: Deerwood Drive, Merrimack, N.H., while his permit or privilege to drive was suspended or revoked after having been found to be an habitual offender, and while the order of the N.H. Department of Safety, Division of Motor Vehicles declaring [the defendant] to be an habitual offender and prohibiting such driving was still in effect----
The defendant was convicted by a jury and sentenced to the house of corrections for twelve months and to probation for one year following release from incarceration. He now appeals, arguing that the trial court erred in imposing a felony sentence where the indictment did not charge, as an element of the crime, a prior misdemeanor motor vehicle offense or a driving under the influence offense, which the defendant contends is required under RSA 262:23 to make the charged crime a felony.
The defendant asserts that RSA 262:23 creates two classes of offense, one of which is a felony, the other a misdemeanor. He then argues, citing State v. Shannon,
We first address the defendant’s contention that this case is controlled by our decision in an unpublished order, State v. Russell, No. 2000-116 (N.H. November 6, 2001). Because Russell decided a different issue from that presented here, we need not decide what precedential value, if any,
The defendant’s arguments rest on the premise that a prior conviction described in RSA 262:23, III is an element of a separate felony-level offense. The State, on the other hand, argues that such a prior conviction is merely a sentencing factor that need not be alleged in the indictment or proved beyond a reasonable doubt. The parties’ arguments raise issues of both statutory construction and constitutional analysis. We must first determine whether the legislature intended to make the existence of a specified prior conviction an element of the offense or merely a sentencing factor. Cf. Harris v. United States,
“In matters of statutory interpretation, this court is the final arbiter of the intent of the legislature as expressed in the words of a statute considered as a whole.” State v. AmeriGas Propane,
To determine whether RSA 262:23 makes a prior conviction an element of the offense charged or merely a sentencing factor, we first look to the language of the statute itself. Cf. Shannon,
It shall be unlawful for any person to drive any motor vehicle on the ways of this state while an order of the director or the court prohibiting such driving remains in effect. If any person found to be an habitual offender under the provisions of this chapter is convicted of driving a motor vehicle on the ways of this state while an order of the director or the court prohibiting such operation is in effect, he shall be sentenced,*229 notwithstanding the provisions of RSA title LXII, to imprisonment for not less than one year nor more than 5 years.
RSA 262:23, III (1993) (amended 2001), which the legislature added in 1992, provided, in part:
Notwithstanding paragraph I, any person who qualifies under RSA 259:39, who does not have a conviction under RSA 265:82 or any misdemeanor or felony motor vehicle convictions pursuant to RSA title XXI, shall not be subject to the minimum mandatory provisions of paragraph I; provided, however, that any such person may be sentenced to one year or less.
Thus, whether a defendant is subject to the mandatory minimum sentence of one year under paragraph I of the statute, or to a sentence of one year or less under paragraph III, depends upon whether the defendant has “a conviction under RSA 265:82 [driving under influence of drugs or liquor] or any misdemeanor or felony motor vehicle convictions pursuant to RSA title XXI.” RSA 262:23, III. For the following reasons, we conclude that such prior conviction is a sentencing factor and not an element of the offense.
First, the structure of the statute supports the conclusion that having a specified prior conviction is a sentencing factor. Cf. Harris,
A conviction on the charge of operation after certification as an habitual offender requires proof of three elements: (1) that an habitual offender order barring the defendant from driving a motor vehicle was in force; (2) that the defendant drove a motor vehicle on the ways of this State while that order remained in effect; and (3) that the defendant did so with knowledge of his status as an habitual offender.
Crotty,
Paragraph III, on the other hand, recites no prohibited conduct, but rather begins with the language “[n]otwithstanding paragraph I,” indicating that it sets forth an exception to an otherwise applicable rule. Cf.
The defendant would have us read paragraph III to define one offense, which is a misdemeanor, and paragraph I to define a separate felony offense with an additional element. We believe it unlikely, however, that the legislature would set forth an additional element of one substantive offense in the paragraph defining another substantive offense. Overall, the construction of RSA 262:23 supports the interpretation that there is only one substantive offense — driving after having been certified a habitual offender — that may carry a felony or misdemeanor sentence depending upon sentencing factors unrelated to the substantive offense itself.
Secondly, “we note that the relevant statutory subject matter is recidivism. That subject matter — prior commission of a serious crime — is as typical a sentencing factor as one might imagine.” AlmendarezTorres,
The defendant’s constitutional arguments rest solely on Part I, Article 15 of the State Constitution. We therefore, “do not engage in a separate federal due process analysis, but rather cite federal authority as an aid to our analysis under the State Constitution.” State v. Landry,
Part I, Article 15 of the New Hampshire Constitution provides in part:
No subject shall be held to answer for any crime, or offense, until the same is fully and plainly, substantially and formally, described to him____No subject shall be arrested, imprisoned, despoiled, or deprived of his property, immunities, or privileges, put out of the protection of the law, exiled or deprived of his life, liberty, or estate, but by the judgment of his peers, or the law of the land____
We have interpreted Part I, Article 15 as safeguarding “the right to indictment by a grand jury... for any offense punishable by imprisonment for more than one year,” State v. Erickson,
The issue before us is whether, notwithstanding the legislature’s intent to make the existence of a specified prior conviction a sentencing factor, it nevertheless constitutes an element that the constitution requires to be set forth in the indictment and proved to the jury. The United States Supreme Court recognized a similar requirement under the Federal Constitution in Apprendi v. New Jersey,
Significantly, the sentencing factor at issue here — a prior conviction — is explicitly excepted from Apprendi’s requirement of proof before a jury beyond a reasonable doubt. See Apprendi,
Many reasons have been propounded for the distinct treatment of recidivism, including that it “does not relate to the commission of the offense itself,” Apprendi,
For the foregoing reasons, we conclude that the defendant’s prior convictions need not have been alleged in the indictment nor proved to the jury beyond a reasonable doubt. The elements alleged in the indictment were sufficient to subject the defendant to a felony sentence under RSA 262:23,1. We therefore affirm.
Affirmed.