July 16, 2019
- Issue: Whether the Superior Court lacked jurisdiction over an appeal of a class B misdemeanor from circuit court.
The defendant was convicted under RSA 642:2 (2019) of resisting arrest and appealed to the superior court. On appeal, prior to trial, the State advised the court they lacked jurisdiction because the defendant was convicted of a class B misdemeanor. The Court agreed with the State and after filing a motion to reconsider, the defendant appealed.
The Court reviewed jurisdiction de novo. The defendant’s right to an appeal to superior court is conferred by statute. Class B misdemeanors are appealed on direct appeal, whereas class A misdemeanors are appealed to Superior Court or to the Supreme Court. The defendant argued that he was charged with a class A misdemeanor or that his statutory right to appeal was violated by classifying the offense as a class B misdemeanor.
Evaluating the language of the statute, the Court determined that resisting arrest is an unspecified misdemeanor that can be classified as either class A or B. RSA 625:9, IV. They found that resisting arrest under RSA 642:2 does not involve an “act of violence” and that the State did not provide notice that they sought class A misdemeanors penalties. Therefore, the offense was a class B misdemeanor and the defendant was not entitled to a de novo jury trial.
Gordon J. MacDonald, attorney general, (Stephen D. Fuller, senior assistant attorney general, on the memorandum of law) for the State. Wiberg Law Office, of Portsmouth, (Sven D. Wiberg on the brief), for the defendant.