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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Sullivan No. 2008-026 THE STATE OF NEW HAMPSHIRE v. JAMES MORAN Argued: November 12, 2008 Opinion Issued: January 29, 2009 Kelly A. Ayotte, attorney general (Ann M. Rice, associate attorney general, on the brief and orally), for the State. Paul Borchardt, assistant appellate defender, of Concord, on the brief and orally, for the defendant. HICKS, J. The defendant, James Moran, appeals a ruling of the Superior Court (Arnold, J.) bringing forward and imposing nine months of a twelvemonth suspended jail sentence. We affirm. The record supports the following. The defendant was convicted in 2002 of committing an unfair or deceptive trade practice in violation of the Consumer Protection Act (CPA), see RSA 358-A:2 (Supp. 2002) (amended 2003, 2004); RSA 358-A:6, I (1995). He was sentenced in 2003 to twelve months in the house of correction, stand committed; restitution; and two years of probation, effective upon release. The defendant was also "ordered to be of good behavior" and prohibited from "own[ing], operat[ing] or manag[ing] a

construction or building trades company for 10 years." We affirmed the guilty finding on direct appeal. See State v. Moran, 151 N.H. 450, 454 (2004). The defendant did not appeal his sentence. See id. at 452. The defendant began serving his twelve-month sentence in December 2004. He pled guilty to another misdemeanor CPA violation in March 2004 (the 2004 offense). The trial court sentenced him to twelve months in the house of correction, suspended, provided that "[a]ny suspended sentence may be imposed after a hearing at the request of the State brought within 4 year(s)." The court also ordered two years of probation, restitution, and "good behavior" and, ultimately, that he refrain from "own[ing], operat[ing], control[ling] or manag[ing] a home contracting business for a period of 10 years." Although the defendant completed probation for the 2004 offense in March 2006, he remained on probation for the earlier offense. In April 2007, the State moved to bring forward the twelve-month suspended sentence because the defendant had violated the good behavior provision and ten-year proscription on certain types of work; had failed to make timely restitution payments; and had acted "in a managerial capacity of . . . a business registered . . . as a general contractor." After a hearing, the trial court found "that the State [had] met its burden of proof." For violating the 2004 sentence, the defendant was sentenced to twelve months in the house of correction, stand committed, with three months suspended for a period of ten years. He was further ordered to make restitution and comply with the ten-year prohibition outlined in the 2004 sentence. On appeal, the defendant argues that the trial court erred by bringing forward and imposing nine months of the twelve-month suspended sentence because: (1) the length of elapsed time exceeded the trial court's authority to suspend incarceration for a misdemeanor offense; and (2) the ten-year prohibition was not a condition of the suspended jail sentence. I We first consider whether the defendant properly preserved each argument for our review. The State claims that the defendant waived his ability to challenge the suspended sentence by negotiating a plea in 2004. We disagree. In New Hampshire, "consent of the defendant cannot make [an otherwise illegal] sentence legal, regardless of whether that consent was given knowingly, intelligently, and voluntarily." State v. Burgess, 141 N.H. 51, 54 (1996).

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We find the State's procedural distinction from Burgess unpersuasive. It is true, as the State points out, that the instant case is procedurally distinct because it is more accurately described as a collateral challenge rather than a direct appeal. However, because the defendant has asserted that the trial court lacked jurisdiction to deprive him of his liberty, see Baker v. Cunningham, 128 N.H. 374, 378 (1986), the legality of imposing his suspended sentence is properly before us on discretionary appeal to the extent that he presented these arguments to the trial court in the first instance. See Sup. Ct. R. 3 (defining "Mandatory appeal" to exclude "an appeal from a final decision on the merits issued in an imposition of sentence proceeding"); State v. Gibbs, 157 N.H. 538, 540 (2008) (discussing and addressing merits of appeal of imposition of sentence); cf. Crosby v. Warden, N.H. State Prison, 152 N.H. 44, 46 (2005) ("[A] defendant's failure to object to a sentence at the time of its imposition does not bar the later filing of an extraordinary writ."). Although the defendant's first argument was asserted in the trial court, our review of the record shows that his second, concerning the ten-year prohibition, was not. Accordingly, that issue is not preserved for our review, see State v. Patterson, 145 N.H. 462, 466-67 (2000), and we turn to the parties' substantive arguments concerning only the challenge to the trial court's authority to suspend a misdemeanor jail sentence. II The parties agree that the relevant statute governing the sentencing court's authority to suspend a misdemeanor jail sentence is RSA 651:20 (2007) (amended 2008). Although we normally "review a trial court's decision to impose a suspended sentence for an unsustainable exercise of discretion," Gibbs, 157 N.H. at 540, resolution of the instant dispute requires statutory interpretation, which we review de novo. Petition of State of N.H. (State v. Laporte), 157 N.H. 229, 231 (2008). "This court is the final arbiter of the intent of the legislature as expressed in the words of a statute considered as a whole." Id. "In interpreting a statute, we first look to the language of the statute itself, and, if possible, construe that language according to its plain and ordinary meaning." Id. "Furthermore, we interpret statutes in the context of the overall statutory scheme and not in isolation." Id. "We do not consider legislative history to construe a statute that is clear on its face." Id. "Finally, we do not strictly construe criminal statutes, but rather construe them according to the fair import of their terms and to promote justice." Id. (quotation omitted); see RSA 625:3 (2007). We recognized in State v. Ingerson, 130 N.H. 112 (1987), that RSA 651:20 contains no express limit upon how long a sentence may be suspended.

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Ingerson, 130 N.H. at 115. Both parties agree on this point, but dispute its significance. The defendant argues that the absence of any express time limit leads to various absurd results and, thus, should be rejected in favor of his alternative limiting constructions derived either from the maximum probation periods, see RSA 651:21 (2007); RSA 651:2, V (2007), or from adding "the maximum length of incarceration plus the maximum length of probation for the underlying offense." Conversely, the State argues that this absence signals legislative intent to permit the judiciary to exercise wide-ranging sentencing discretion subject only to constitutional limitations. We find the absurd results posited by the defendant unpersuasive insofar as they rely upon the premise that the trial court sanctioned perpetual sentence suspension. Much to the contrary, the trial court brought forward and imposed suspended incarceration roughly three and a half years into the four-year period established by the 2004 sentence. Next, we observe that, in order to fashion an appropriate sentence in the interest of justice, the trial court possesses broad, inherent power to suspend a misdemeanor sentence. See State v. Smith, 119 N.H. 674, 675 (1979); State v. Burroughs, 113 N.H. 21, 22 (1973); State v. Valrand, 103 N.H. 518, 519 (1961). While dicta in recent cases might suggest that this authority derives from a legislative grant, see, e.g., State v. Kierstead, 141 N.H. 803, 804 (1997); State v. Farrow, 140 N.H. 473, 476 (1995); State v. W.J.T. Enterprises, 136 N.H. 490, 495 (1992), "[f]rom the earliest times in this state as a matter of practice and precedent it has been assumed that courts had the power to suspend either the imposition or the execution of a criminal sentence." Valrand, 103 N.H. at 519. Statutes prescribing the terms upon which a sentence may be suspended confirm this power, id. at 520, and may permissibly limit its full exercise, Couture v. Brown, 82 N.H. 459, 461 (1926); State v. Drew, 75 N.H. 402, 403 (1909); see also 2 R. McNamara, New Hampshire Practice, Criminal Practice and Procedure

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