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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Cheshire

No. 2017-0246

THE STATE OF NEW HAMPSHIRE

v.

JEREMY SURRELL

Argued: March 15, 2018

Opinion Issued: June 22, 2018

Gordon J. MacDonald, attorney general (Elizabeth A. Lahey, assistant 

attorney general, on the memorandum of law and orally), for the State.

Christopher M. Johnson, chief appellate defender, of Concord, on the 

brief and orally, for the defendant.

BASSETT, J. The defendant, Jeremy Surrell, appeals an order of the 

Superior Court (Ruoff, J.) denying his petition to suspend his sentence under 

RSA 651:20, I (2016). We affirm.

The record reflects the following facts. In 2011, the defendant was 

indicted on four counts of aggravated felonious sexual assault (AFSA). See RSA 

632-A:2, I(l) (2016). These indictments alleged that, on four occasions, the 

defendant engaged in fellatio with a child under the age of thirteen. In May 

2013, the defendant pleaded guilty to two of the AFSA charges and the State 

entered a nolle prosequi on the other two. The trial court sentenced the 
2

defendant to a stand committed sentence of seven and one-half to fifteen years 

and to a suspended sentence of ten to twenty years.

In January 2017, the defendant filed a petition to suspend his sentence 

under RSA 651:20, I(a). RSA 651:20, I, provides:

I. Notwithstanding any other provision of law, except as 

provided in subparagraphs (a), (b), and (c), the sentence to 

imprisonment of any person may be suspended by the sentencing 

court at the time of imposition of the sentence or at any time 

thereafter in response to a petition to suspend sentence which is 

timely brought in accordance with the limitations set forth below in 

subparagraphs (a), (b), and (c).

(a) Any person sentenced to state prison for a 

minimum term of 6 years or more shall not bring a petition 

to suspend sentence until such person has served at least 4 

years or 2/3 of his minimum sentence, whichever is greater, 

and not more frequently than every 3 years thereafter.

RSA 651:20, I(a). The defendant attached an affidavit supporting his petition 

and documentation demonstrating his successful completion of educational 

and rehabilitative programs while incarcerated. The trial court then requested 

that the Warden of the New Hampshire State Prison prepare and file a synopsis 

of the defendant’s incarceration for the court to consider prior to ruling on the 

petition. The Warden complied with this request.

Subsequently, the trial court denied the defendant’s petition to suspend 

his sentence, stating that the “conduct against the [victim] does not warrant a 

lesser sentence.” The defendant filed a motion to reconsider. In denying the 

motion to reconsider, the trial court stated:

The Court carefully considered all of the mitigating evidence 

submitted by the defendant prior to denying his RSA 651:20 

request.

The Court was impressed with the defendant’s efforts while serving

his sentence. However, the Court cannot ignore the punitive 

aspect of the original sentence, which is why the Court looked to 

the offense conduct when making its decision.

This appeal followed.

On appeal, the defendant argues that RSA 651:20, I, prohibits a trial 

court from denying “a petition on the basis, even in part, of the nature of the

offense conduct” and, therefore, the trial court erred when it denied his petition
3

on that basis. He also argues that, even if pursuant to RSA 651:20, I, a trial 

court can take account of the nature of the offense, the court erred when it 

denied the petition to suspend solely on that basis without “weigh[ing] [his] 

rehabilitative success against the need for further punishment.”

The suspension of a sentence is not obligatory: a trial court has broad 

discretion in deciding whether or not to grant a petition to suspend a sentence.

State v. Duquette, 153 N.H. 315, 316-17 (2006). “The legislature has vested in 

the trial court the power to adapt sentencing to best meet the constitutional 

objectives of punishment, rehabilitation and deterrence — within these 

parameters, the judge has broad discretion to assign different sentences, 

suspend sentence, or grant probation.” Petition of State of N.H. (State v. 

Fischer), 152 N.H. 205, 211 (2005), superseded by rule on other grounds as 

stated in State v. Mottola, 166 N.H. 173, 176 (2014). Although we normally 

review a trial court’s decision on a petition to suspend for an unsustainable 

exercise of discretion, State v. LeCouffe, 152 N.H. 148, 153 (2005), resolution of 

the instant dispute requires statutory interpretation, which is a question of law 

for us to decide, see State v. Moran, 158 N.H. 318, 321 (2009); Thayer v. Town 

of Tilton, 151 N.H. 483, 486 (2004).

In matters of statutory interpretation, we are the final arbiters of the 

intent of the legislature as expressed in the words of the statute considered as 

a whole. See Moran, 158 N.H. at 321. 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. We interpret legislative intent 

from the statute as written and will not consider what the legislature might 

have said or add language that the legislature did not see fit to include. State 

v. Diallo, 169 N.H. 355, 357 (2016). We do not consider words and phrases in 

isolation, but rather within the context of the statute as a whole. Id. 

Additionally, we do not consider legislative history to construe a statute that is 

clear on its face. Moran, 158 N.H. at 321.

The defendant first argues that the trial court erred by denying his 

petition to suspend on the basis of the nature of the underlying offense. He 

argues that RSA 651:20, I, prohibits the trial court from denying a petition on 

the basis, even in part, of the nature of the offense and, instead, requires that 

the court base its decision on only the prisoner’s rehabilitative efforts. He 

makes two overarching arguments in support of this contention: (1) he asserts 

that the plain language of the statute supports his interpretation; and (2) he 

argues in the alternative that we should conclude that the statute is 

ambiguous and examine legislative history, which, he asserts, supports his 

interpretation of the statute. The State counters that the statute is 

unambiguous and that the plain language of RSA 651:20 does not preclude the 

trial court from considering the nature of the underlying offense. We agree 

with the State.
4

We first address the defendant’s arguments that the plain language of 

RSA 651:20, I(a)-(c) supports his interpretation of the statute. The defendant 

argues that we should read the plain language of subparagraph I(a), which 

permits state prisoners to file petitions to suspend after serving two-thirds of 

the minimum sentence, as requiring that the trial court’s decision “depend 

entirely on whether the prisoner has demonstrated successful rehabilitation.” 

We disagree. The plain language of subparagraph I(a) neither prohibits the 

trial court from denying a petition based upon the nature of the offense, nor 

requires the court to consider only rehabilitative efforts.

The defendant also argues that the plain language of subparagraphs I(b) 

and (c) supports his interpretation of the statute. Specifically, he contends 

that, because I(b) authorizes a prisoner to file a petition at any time if the

commissioner deems him or her a suitable candidate, and I(c) empowers the 

attorney general to file a petition on a prisoner’s behalf at any time based on 

that prisoner’s assistance in investigating or prosecuting a felony, it is evident 

that the legislature intended that the trial court consider only a prisoner’s postsentencing rehabilitative efforts, to the exclusion of other factors. We disagree. 

Although subparagraphs I(b) and (c) relate to a prisoner’s post-sentencing 

conduct, as assessed by either the commissioner or the attorney general, these 

provisions govern when and whether a petition can be filed; they do not relate 

to the factors that the trial court may properly consider. See RSA 651:20, I.

Indeed, although RSA 651:20, I, is silent regarding the evidence or 

factors that the trial court may consider in ruling upon a petition to suspend a 

sentence, the plain language of the statute does not prohibit the trial court 

from considering any particular evidence or factors in reaching its decision, nor 

does it require the trial court to consider any specific factor. Consequently, the 

defendant’s interpretation of the statute — that the plain language precludes 

the trial court from denying a petition based, even in part, on the nature of the 

offense — would require us to add language to the statute, which we will not 

do. See Diallo, 169 N.H. at 357 (“We . . . will not consider what the legislature 

might have said or add language that the legislature did not see fit to 

include.”).

Moreover, the statute provides that a sentence “may be suspended by the 

sentencing court,” RSA 651:20, I (emphasis added), reflecting a legislative 

intent to vest the trial court with discretion, see, e.g., Duffy v. City of Dover, 

149 N.H. 178, 181 (2003) (“As a general rule of statutory construction, the 

word ‘may’ is permissive and implies the use of discretion.”). Other provisions 

in RSA 651:20, I, demonstrate that the legislature knows how to impose 

limitations on the trial court when it chooses to do so. For example, as 

discussed above, subparagraphs I(a), (b), and (c) explicitly limit who may file a 

petition to suspend, and when it may be filed. See RSA 651:20, I (authorizing 

the court to suspend a sentence “in response to a petition to suspend sentence 

which is timely brought in accordance with the limitations set forth below in 
5

subparagraphs (a), (b), and (c)” (emphasis added)). The statute does not in any 

way limit the factors that a court may consider when ruling on a timely filed 

petition. We conclude, therefore, that the plain language of RSA 651:20, I,

neither prevents the trial court from considering the nature of the offense, nor 

requires it to consider only the defendant’s post-sentencing rehabilitative

efforts.

We next turn to the defendant’s alternative argument: that, because RSA 

651:20, I, does not itemize the factors the trial court may consider when ruling 

on a timely petition, it is ambiguous. He argues that we must, therefore, 

examine the legislative history of the statute, which, he asserts, supports his 

interpretation. He further contends that, “to the extent that any ambiguity 

remains after consideration of the text and history of RSA 651:20, the rule of 

lenity requires” us to adopt his position. The State counters that the statutory 

language is unambiguous, and, therefore, we need not examine legislative 

history, or apply the rule of lenity. We agree with the State.

The defendant argues that the statute is ambiguous because its “silence 

leaves [it] open to more than one reasonable interpretation.” We will consider a 

statutory provision to be ambiguous, and, therefore, consult its legislative 

history, only when there is more than one reasonable interpretation of the 

provision. See State v. Chrisicos, 159 N.H. 405, 408 (2009). Here, the 

defendant’s interpretation of RSA 651:20, I — that the trial court cannot deny a 

petition based, even in part, on the nature of the offense, and must consider 

only rehabilitative efforts — is not reasonable because it reads limitations into 

the statute that are simply not in the plain language. See id. (holding statute 

unambiguous and State’s interpretation unreasonable because it read a 

limitation into the statutory language).

The defendant also argues that the statute is ambiguous because it is 

silent as to what factors the court may consider in ruling on a petition. 

Although we have observed that a statute’s silence can “arguably” create an 

ambiguity, In re Juvenile 2005-212, 154 N.H. 763, 766 (2007), we have never 

held that silence necessarily renders a statute ambiguous. Indeed, “[t]aking 

liberty with legislative silence by fashioning judicial rules in its stead is 

contrary to well-settled rules of statutory construction.” State v. Dushame, 

136 N.H. 309, 314 (1992). Accordingly, we have concluded that silence in a 

statute, may, in fact, reflect a legislative intent that a determination be left to 

the trial court’s sound discretion. For example, in In re Juvenile 2005-212, a 

case involving interpretation of the child in need of services statute, although

we observed that silence in a statute “arguably creates an ambiguity,” we 

refused to add words to the statute that the legislature did not see fit to 

include, and concluded that the statute’s silence reflected a legislative intent 

that the trial court should have discretion over the determination at issue. In 

re Juvenile 2005-212, 154 N.H. at 766-68.
6

Here, we conclude that the statute is not ambiguous. The legislature’s 

silence as to what factors the court should consider, coupled with the use of 

the permissive term “may,” demonstrates a legislative intent to leave the 

decision as to what factors or evidence to consider to the trial court’s 

discretion. The trial court’s discretion is not unfettered: it must be exercised 

“to best meet the constitutional objectives of punishment, rehabilitation and 

deterrence.” Petition of State of N.H. (Fischer), 152 N.H. at 211.

Because we have concluded that RSA 651:20, I, is unambiguous, we 

need not consider the defendant’s arguments regarding the legislative history of 

RSA 651:20, or the rule of lenity. See Moran, 158 N.H. at 321 (“We do not 

consider legislative history to construe a statute that is clear on its face.” 

(quotation omitted)); State v. Dansereau, 157 N.H. 596, 602 (2008) (describing 

the rule of lenity as a rule of statutory construction “for interpreting criminal 

statutes where the legislature failed to articulate its intent unambiguously”

(quotation omitted)). Accordingly, we conclude that the trial court did not err 

when it denied the defendant’s petition to suspend based, in part, on the 

nature of the underlying offense.

Next, we turn to the defendant’s argument that the trial court erred 

because, “even if a court can take account of the nature of the offense, it 

cannot deny a petition to suspend on the basis only of a judgment about the 

nature of the offense.” The defendant asserts that the trial court erred when,

in its order, it did not weigh the defendant’s rehabilitative success against the 

need for continuing punishment, and based its decision only on the nature of 

the offense. The defendant’s argument is based upon an incorrect premise. 

We disagree with the defendant’s interpretation of the trial court order — in 

fact, the trial court did not deny the petition based solely on the nature of the 

offense.

The interpretation of a trial court order presents a question of law for us 

to decide. See Edwards v. RAL Auto. Group, 156 N.H. 700, 705 (2008). In its

order denying the motion to reconsider, the trial court stated that it had 

“carefully considered all of the mitigating evidence submitted by the defendant” 

in support of his petition. The court explained that, despite having reviewed

that evidence, it could not “ignore the punitive aspect of the original sentence, 

which is why [it] looked to the offense conduct when making its decision.” It is 

evident that the trial court, after considering both the defendant’s rehabilitative 

efforts and the punitive purpose of his sentence, simply reached a conclusion 

opposite of that desired by the defendant.

Finally, the defendant argues that the trial court erred because it did not 

make sufficient factual findings about the quality of the defendant’s

rehabilitation and whether he had a continuing need for treatment. However, 

the defendant has not demonstrated that he preserved this issue for our 
7

review, and, therefore, we will not address it. See State v. Brooks, 162 N.H. 

570, 583 (2011).

Affirmed.

HICKS and HANTZ MARCONI, JJ., concurred.