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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Hillsborough-northern judicial district

Nos. 95-796, 95-811

THE STATE OF NEW HAMPSHIRE

v.

ERIC HARNUM

July 18, 1997

Jeffrey R. Howard, attorney general (Malinda R. Lawrence, attorney, on the brief and orally), for the State.

Joachim Barth, assistant appellate defender, of Concord, by brief and orally, for the defendant.

THAYER, J. The defendant, Eric Harnum, appeals the Superior Court's (Barry, J.) denial of his request for pretrial confinement credit for the time he spent incarcerated in Florida contesting extradition. We affirm.

As a consequence of a series of probation violation reports and the defendant's indictment for selling cocaine to an undercover Manchester police officer, see RSA 318-B:2, I (1995), the defendant was sought by law enforcement authorities. In January 1995, the defendant was arrested in Florida as a fugitive from justice, and New Hampshire sought to extradite him. The defendant was returned to New Hampshire in May 1995, the delay resulting from the defendant contesting extradition.

In early September 1995, the superior court held a probation violation hearing and found the defendant chargeable for failing to report, using drugs, and failing to notify his probation officer concerning an arrest. Later that month, a jury found the defendant guilty of selling cocaine. At a sentencing hearing in October 1995, the court imposed a two to four year sentence for the probation violation, and a consecutive two to four year sentence for the narcotics conviction. The latter sentence was suspended, conditioned upon good behavior and compliance with certain sentencing orders. The court granted the defendant one hundred and sixty-eight days of pretrial confinement credit against the term of his probation violation for the time the defendant served after his return to New Hampshire.

The sole issue on appeal is whether the defendant is entitled to additional pretrial credit pursuant to RSA 651:3, I (1996) and RSA 651-A:23 (1996). Although the defendant's brief marginally invokes a constitutional claim, the defendant failed to adequately apprise the trial court of his claim. Accordingly, we consider it waived. See State v. Chick, 141 N.H. 503, 504, 688 A.2d 553, 555 (1996). Nevertheless, we note that there is generally no federal constitutional right to pretrial credit. See Palmer v. Dugger, 833 F.2d 253, 254 (11th Cir. 1987).

The defendant argues that the trial court erred by failing to credit his sentence with the time he served in Florida while contesting extradition to New Hampshire. He asserts that under RSA 651:3, I, and RSA 651-A:23, all time served, regardless of jurisdiction, must be credited to the sentence imposed. The State counters by arguing that statutory pretrial confinement credit only applies when a defendant is actually under the control of New Hampshire authorities. The State further argues that the statutory credit is inapplicable because the defendant was not awaiting trial, but was instead awaiting extradition. See RSA 651-A:23. Finally, the State contends that when a defendant is incarcerated as a fugitive from justice, the basic principles underlying pretrial confinement credit do not apply. See State v. Decker, 127 N.H. 468, 470, 503 A.2d 796, 797 (1985).

RSA 651:3, I, instructs that "[a]ll time actually spent in custody prior to the time [the defendant] is sentenced shall be credited [against the defendant's sentence] in the manner set forth in RSA 651-A:23." RSA 651-A:23, in turn, provides:

Any prisoner who is confined to the state prison, any house of correction, any jail or any other place shall be granted credit against both the maximum and minimum terms of his sentence equal to the number of days during which the prisoner was confined in jail awaiting and during trial prior to the imposition of sentence and not under any sentence of confinement.

As in all cases involving statutory interpretation, the starting point is the language of each statute. State Employees' Ass'n of N.H. v. Bd. of Trustees, 120 N.H. 272, 273, 415 A.2d 665, 666 (1980). We construe each statute as a whole, Dionne v. City of Manchester, 134 N.H. 225, 228, 589 A.2d 1016, 1018 (1991), and if the statute's language is clear and unambiguous, we do not look beyond the language of the statute to discern legislative intent, Silva v. Botsch, 120 N.H. 600, 601, 420 A.2d 301, 302 (1980). Accordingly, "[w]e interpret legislative intent from the statute as written, and therefore, will not consider what the legislature might have said or add words that the legislature did not include." Petition of Walker, 138 N.H. 471, 474, 641 A.2d 1021, 1024 (1994).

RSA 651-A:23 clearly and unambiguously mandates that defendants shall receive pretrial sentencing credit for time spent incarcerated while "awaiting and during trial." The defendant has pointed to nothing that demonstrates that the legislature intended to extend pretrial confinement credit to fugitives from New Hampshire justice who are awaiting extradition in another State. The defendant essentially requests that we modify RSA 651-A:23 by adding the words "while awaiting extradition." This we cannot do, because the meaning of statutory language that is clear and unambiguous "is not subject to modification by judicial construction." State v. Melcher, 140 N.H. 823, 826, 678 A.2d 146, 148 (1996) (quotation omitted); see also Johnson v. Mason, 493 A.2d 846, 850 (Conn. 1985) (concluding statute clearly specifies that credit is available for time spent "while awaiting trial" and contains no language regarding credit for time spent "while awaiting extradition"), cert. denied, 474 U.S. 1063 (1986); Commonwealth v. Beauchamp, 595 N.E.2d 307, 309 & n.3 (Mass. 1992) (in the context of an escapee's case, court stated that no Massachusetts statute affords defendant credit for time spent fighting rendition despite statute that accords credit for time spent incarcerated while awaiting trial).

The defendant's argument also fails because he was not "in custody" for purposes of New Hampshire law while he was under the control of Florida authorities. Cf. Johnson, 493 A.2d at 852 ("petitioner was not within the jurisdiction of Connecticut when confined in Florida awaiting extradition"). The laws of New Hampshire had no binding effect on the defendant until he was made available to the officers of this State. Cf. id. at 852-53 (Connecticut legislature cannot bind Florida authorities or petitioner while in Florida). As used in RSA 651:3, the term "custody" necessarily presupposes a form of custody over which New Hampshire can exercise its control. New Hampshire authorities control prisoners incarcerated in New Hampshire, as well as those incarcerated outside New Hampshire pursuant to the New England Interstate Corrections Compact, see RSA ch. 622-A (1986), or the National Interstate Corrections Compact, see RSA ch. 622-B (1986), but not prisoners wanted by New Hampshire authorities who are confined in Florida awaiting extradition.

Accordingly, the defendant is not entitled to credit for time spent incarcerated in Florida while he awaited extradition. See Kronz v. State, 462 So. 2d 450, 451 (Fla. 1985). For us to hold otherwise would allow the defendant to select the State where he would serve a portion of his sentence. See Beauchamp, 595 N.E.2d at 310.

Affirmed.

BRODERICK, J., with whom HORTON, J., joined, dissented; the others concurred.

BRODERICK, J., dissenting: Because I believe that the trial court erred by failing to credit the defendant's sentence with the time he was incarcerated in Florida while contesting extradition to New Hampshire, I respectfully dissent.

When this court interprets a statute, "we examine the statutory language itself and construe the law consistently with its plain meaning." Penrich, Inc. v. Sullivan, 140 N.H. 583, 589, 669 A.2d 1363, 1367 (1995). Under the language of the statute, the defendant is entitled to credit for "[a]ll the time actually spent in custody," RSA 651:3 (1996), in "the state prison, any house of correction, any jail or any other place." RSA 651-A:23 (1996). The statute makes no distinction between out-of-state and in-state custody, and I see no reason to change the plain meaning of RSA 651:3 by reading into it an exception for the time a prisoner has spent in the custody of another State pursuant to an arrest for a New Hampshire offense. Accord State v. Mahler, 626 P.2d 593, 594 (Ariz. 1981); State v. Mattson, 376 N.W.2d 413, 416 (Minn. 1985); State v. Brown, 780 P.2d 880, 890 (Wash. Ct. App. 1989), review denied, 791 P.2d 897 (Wash. 1990). "When the language used in a statute is clear and unambiguous, its meaning is not subject to modification by judicial construction." State v. Flynn, 123 N.H. 457, 462, 464 A.2d 268, 271 (1983). As we have often said, "legislative intent is to be found not in what the legislature might have said, but rather in the meaning of what it did say." Appeal of Astro Spectacular, 138 N.H. 298, 300, 639 A.2d 249, 250 (1994) (quotation omitted). If the legislature had intended to limit pretrial credit to time served in a New Hampshire jail or facility, it could have said so explicitly.

The State argues, and the majority agrees, that the defendant was not under the control of New Hampshire authorities while he was incarcerated in Florida, and, therefore, he was not "in custody" under RSA 651:3. The New Hampshire charges, however, were the sole reason for the defendant's incarceration in Florida. See Birden v. Dept. of Correctional Serv., 521 N.Y.S.2d 909, 910 (App. Div. 1987) (defendant entitled to credit when incarceration in New Jersey was "solely by reason of the New York detainer"). The time the defendant served in Florida was attributable solely to the New Hampshire offense for which he was later convicted and sentenced, and Florida was, for all intents and purposes, acting as New Hampshire's agent when it incarcerated him. While the State constructs an inventive argument focusing upon the outer limits of New Hampshire's control over this defendant,

[i]n the real world this [defendant] was . . . subject to the jurisdiction of this state while he was held in Florida, because . . . his incarceration was . . . within the control of this state, subject to continuance or termination solely at its command.

Johnson v. Manson, 493 A.2d 846, 859 (Conn. 1985) (Shea, J., dissenting), cert. denied, 474 U.S. 1063 (1986).

The State also argues that the pretrial confinement credit statute is inapplicable because the defendant was not awaiting trial, but was instead awaiting extradition. See RSA 651-A:23. The State contends that "[s]ince the attempt to extradite the defendant could have proven unsuccessful, he was not `awaiting . . . trial' until the extradition was completed."

A State's extradition powers flow from the United States Constitution:

A person charged in any state with treason, felony, or other crime, who shall flee from justice, and be found in another state, shall on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime.

U.S. CONST. art. IV,