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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 ___________________________ Hillsborough-southern judicial district No. 2008-135 THE STATE OF NEW HAMPSHIRE v. MICHELLE CHRISICOS Argued: September 16, 2008 Opinion Issued: November 7, 2008 Kelly A. Ayotte, attorney general (Nicholas Cort, assistant attorney general, on the brief and orally), for the State. Bernstein, Bartis & Mello, PLLC, of Nashua (Adam Bernstein on the brief and orally), for the defendant. HICKS, J. The defendant, Michelle Chrisicos, appeals an order of the Superior Court (Groff, J.) sentencing her to twelve months in the House of Corrections, stand committed. The State cross-appeals, challenging the trial court's conclusion that the home confinement provisions of RSA 262:23 (2004) (amended 2006) violate the Equal Protection Clause of the New Hampshire Constitution. See N.H. CONST. pt. I, arts. 1, 2. We reverse the ruling that RSA 262:23 is unconstitutional and affirm the sentence. The trial court's order recites, or the record reveals, the following facts. On August 15, 2006, the defendant was indicted for driving a motor vehicle while deemed a habitual offender, in violation of RSA 262:23. While prosecution for that offense was pending, the defendant was indicted on

November 21, 2006, for a subsequent violation of RSA 262:23. The State then prosecuted both indictments jointly. The defendant pled guilty to both counts under a capped plea agreement, pursuant to which: [T]he State requested two concurrent sentences of one to two years in the New Hampshire State Prison, stand committed, with home confinement at the discretion of the prison administration in accordance with its rules and regulations. The defendant sought a sentence to the House of Corrections, deferred for two years, with monitoring during the deferral period as "house arrest" by the probation department. The defendant requested one year of probation. At the sentencing hearing, the court determined that it was prevented from imposing the defendant's requested sentence by Petition of State of New Hampshire (State v. Campbell), 152 N.H. 515 (2005). In Campbell, we held that "pursuant to RSA 651:19, sentencing to home confinement under RSA 262:23 may only occur if the applicable correctional facility has a home confinement program." Campbell, 152 N.H. at 520. We further concluded that because the Hillsborough County House of Corrections "does not have an electronic bracelet program, it does not have a home confinement program within the meaning of RSA 262:23 and RSA 651:19," and, therefore, held that the trial court erred in sentencing the defendant to home confinement. Id. at 522. The trial court first noted that due to its lack of a home confinement program, Hillsborough County is the only New Hampshire county "in which a defendant is doomed to serve the full minimum mandatory sentence at the House of Corrections." The court then ruled RSA 262:23, I, facially unconstitutional as violating the defendant's State constitutional right to equal protection. Notwithstanding that ruling, the court found that the defendant did not qualify for home confinement where she had been charged with two distinct violations of RSA 262:23. The court based its ruling upon the plain language of RSA 262:23, I, which provides, in pertinent part: Any sentence of one year or less imposed pursuant to this paragraph shall be served in a county correctional facility. The sentencing court may order that any such offender may serve his or her sentence under home confinement pursuant to RSA 651:19 based on the rules and regulations of the county correctional facility where the sentence is to be served for the minimum mandatory term or any portion thereof, provided the offender first 2

serves 14 consecutive days of imprisonment prior to eligibility for home confinement. Habitual offenders shall only be eligible for the home confinement program once per lifetime. RSA 262:23, I. Citing the phrase "once per lifetime," the trial court concluded that "[u]nder the plain language of the statute, the defendant could not be sentenced to home confinement on the second indictment." The court reasoned that "[e]ven if the sentences were ordered to run concurrently, the defendant would be required to serve her stand-committed sentence at the same time she was serving home confinement under the first sentence. The home confinement sentence would be subsumed by the stand-committed sentence." The court therefore sentenced the defendant, on both indictments concurrently, to twelve months at the house of corrections, stand committed. On appeal, the defendant argues that the trial court erred in finding her ineligible for home confinement. She contends that RSA 262:23 does not prohibit concurrent sentences that include a home confinement component because "[t]he plain language of [the statute] does not limit the availability of home confinement sentencing to defendants charged or convicted of only one habitual offender offense." We note that before the superior court, the State agreed with the defendant that RSA 262:23 did not preclude home confinement for a defendant charged with two separate violations of that statute. It has reconsidered that position on appeal. For purposes of this appeal, we assume, without deciding, that the defendant is correct that she is eligible for home confinement under RSA 262:23 despite having been charged with two violations of that statute, and we turn to the constitutional ruling appealed by the State. Notwithstanding our "longstanding policy against reaching a constitutional issue in a case that can be decided on other grounds," Britton v. Town of Chester, 134 N.H. 434, 441 (1991), we choose to reach the constitutional issue, without deciding the statutory question, for reasons of judicial economy. Cf. State v. Porelle, 149 N.H. 420, 422 (2003) (addressing constitutional claim in interest of judicial economy). This case presents RSA 262:23 not as an untested statute, with the presumption of constitutionality intact, see Petition of N.H. Bar Assoc., 151 N.H. 112, 115 (2004), but as a statute already declared facially unconstitutional by the superior court. In light of the uncertainty raised by the trial court's ruling, the issue of RSA 262:23's constitutionality will likely continue to arise until a definitive declaration is made by this court. Accordingly, we consider "immediate resolution of [the constitutional] issue both necessary and prudent." Petition of N.H. Bar Assoc., 151 N.H. at 113.

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In a previous order, we assumed, without deciding, that the State's cross-appeal should be treated as a petition for writ of certiorari, which we accepted. Review on certiorari is an extraordinary remedy, usually available only in the absence of a right to appeal, and only at the discretion of the court, to determine whether another tribunal has acted illegally in respect to jurisdiction, authority or observance of the law, or has engaged in an unsustainable exercise of discretion or has acted arbitrarily or capriciously. We exercise our power to grant the writ sparingly and only where to do otherwise would result in substantial injustice. Here, we grant review because certiorari is the only avenue by which the State may appeal the sentencing order at issue in this case. Petition of State of N.H. (State v. Marcoux), 154 N.H. 118, 121 (2006) (citations omitted). In addressing the constitutional issue, we consider both RSA 262:23 and RSA 651:19, as RSA 262:23, I, refers to "home confinement pursuant to RSA 651:19." RSA 262:23, I. RSA 651:19, at the time of the defendant's offenses, provided in part: A sentencing court may order any person who has been committed to a correctional institution other than state prison under a criminal sentence may be released therefrom for the purpose of obtaining and working at gainful employment, for the performance of uncompensated public service as provided in RSA 651:68-70, or to serve the sentence under home confinement, provided the correctional facility has a home confinement program. RSA 651:19 (2007) (amended 2007) (emphasis added). "The constitutionality of a statute involves a question of law, which we review de novo." Gonya v. Comm'r, N.H. Ins. Dep't, 153 N.H. 521, 524 (2006) (quotation omitted). We note that although the trial court did not undertake a separate federal constitutional analysis, the statute's validity under both the State and Federal Constitutions was before the court, and is now presented to us. See U.S. CONST. amend. XIV,

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