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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Cheshire

No. 2016-0530

THE STATE OF NEW HAMPSHIRE

v.

DANIEL ALLAIN

Argued: October 26, 2017

Opinion Issued: September 11, 2018

Gordon J. MacDonald, attorney general (Elizabeth C. Woodcock, 

assistant attorney general, on the brief and orally), for the State.

Christine C. List, assistant appellate defender, by brief and orally, for the 

defendant.

HANTZ MARCONI, J. The defendant, Daniel Allain, appeals orders of the 

Superior Court (Kissinger, J.; Ruoff, J.) denying his request for pretrial 

confinement credit toward a suspended sentence imposed for violating a good 

behavior condition. We reverse and remand.

The record supports the following facts. In October 2011, the defendant 

pleaded guilty to an extended term felony of receiving stolen property. He 

received a sentence of four to 14 years in the New Hampshire State Prison,
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suspended for 15 years. The sentence included a condition that he “be of good 

behavior.”

On October 10, 2015, the defendant was arrested for an August 31, 2015 

burglary. He was unable to post bail and remained incarcerated. On February 

22, 2016, the State obtained eight indictments against the defendant relating 

to burglaries and thefts that took place during the late summer of 2015, 

including the August 31 burglary. On July 8, 2016, the State moved to impose 

the defendant’s 2011 suspended sentence because he violated the good 

behavior condition by committing the August 31 burglary. On August 15, 

2016, the State entered a nolle prosequi on the charge involving the August 31, 

2015 burglary. 

The trial court held a hearing on August 22, 2016, at which the State 

presented evidence — including sworn testimony and exhibits — regarding the 

defendant’s participation in the August 31, 2015 burglary to prove that the 

defendant had not been of good behavior. On August 24, the trial court 

imposed a term of three to six years of the 2011 sentence. On September 6, 

the defendant moved for pretrial confinement credit pursuant to RSA 651:3

(2016) and RSA 651-A:23 (2016). He argued that because he had been in 

custody since October 10, 2015 “for want of cash bail,” but for his “indigency 

and the timing of the Government’s motion he would have been free on bail 

until the finding entered on August 24, 2016.” The trial court denied the 

motion, reasoning that the defendant’s confinement was the result of the 2015 

charges and that he would receive pretrial credit on any sentence he received if 

convicted on those charges.

On appeal, the defendant argues that the trial court erred by denying 

him “presentence confinement credit beginning October 10, 2015.” He 

contends that had he posted bail on October 10, 2015, he would serve a total 

of three to six years of the 2011 sentence, but “[b]ecause he is indigent and the 

court denied credit, he will serve three years, 332 days to six years, 332 days.” 

(Footnote omitted.) Requiring him to serve more time because of his indigency, 

he argues, “involves precisely the discrimination” the presentence confinement 

credit statutes seek to prohibit. The State counters that “[a]lthough the trial 

court had decided to suspend the defendant’s sentence in 2011, he had, in 

fact, been sentenced at that time” and, therefore, the defendant could not “have 

been awaiting sentence on the 2011 charges.” The State argues that the 

pretrial confinement time will be properly credited toward any sentence that 

may be imposed should the defendant be convicted on the unresolved 

indictments obtained in February 2016.

Resolving this issue requires us to interpret the relevant statutory 

provisions. This court is the final arbiter of the intent of the legislature as 

expressed in the words of the statute considered as a whole. See State v. Bosa, 
3

170 N.H. 452, 455 (2017). We construe provisions of the Criminal Code 

according to the fair import of their terms and to promote justice. Id.; see RSA 

625:3 (2016). When interpreting a statute, we first look to the language of the 

statute itself, and, if possible, construe the language according to its plain and 

ordinary meaning. Bosa, 170 N.H. at 455. We do not read words or phrases in 

isolation, but in the context of the entire statutory scheme. Id. When the 

language of a statute is plain and unambiguous, we do not look beyond it for 

further indications of legislative intent. Id. We review the trial court’s 

statutory interpretation de novo. Id.

The allocation of presentence confinement credit is governed by RSA 

651:3 and RSA 651-A:23. RSA 651:3, I, provides in pertinent part: “All the 

time actually spent in custody prior to the time [the defendant] is sentenced 

shall be credited in the manner set forth in RSA 651-A:23 against the 

maximum term of imprisonment that is imposed and against any minimum 

term authorized by RSA 651:2 or 6.” RSA 651-A:23 provides in pertinent part:

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.

Presentence confinement credit statutes “stem principally from the 

recognition that presentence detention is often the result of indigency.” State 

v. Edson, 153 N.H. 45, 49 (2005). “A principle underlying the credit statutes is 

that an indigent offender unable to furnish bail should serve neither more nor 

less time in confinement than an otherwise identically situated offender who 

succeeds in furnishing bail.” State v. Forest, 163 N.H. 616, 619 (2012). These 

statutes “mandate that a prisoner is to receive credit for all jail time — neither 

more nor less — served before sentencing which relates to the criminal episode 

for which the prisoner is sentenced, but does not receive credit greater than the 

number of days of his presentencing confinement.” State v. Decker, 127 N.H. 

468, 471 (1985) (quotation omitted). 

As set forth above, under the plain language of the statute, any prisoner 

confined to jail prior to sentencing “shall be granted credit . . . 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.” RSA 651-A:23. In this case, the defendant was in jail following 

his arrest on October 10, 2015 for the August 31, 2015 burglary. The State 

relied upon that burglary as grounds for requesting that the trial court impose 

the defendant’s previously suspended sentence. On August 22, 2016, the trial 

court conducted the equivalent of a trial and found that “the State proved the 
4

defendant failed to be of good behavior in that he committed” the August 31

burglary. Accordingly, on August 24, 2016 the court sentenced the defendant 

to three to six years. Thus, the defendant’s confinement period related to the 

“criminal episode” for which the trial court imposed the suspended sentence 

because he was confined for the August 31 burglary, the same conduct for 

which the court imposed the suspended sentence. See Decker, 127 N.H. at 

471.

As the defendant argues, had he been able to post the cash bail 

associated with the August 31 burglary, he would have been released from jail

between the time of his arrest on October 10, 2015, and the date of his 

sentencing on August 24, 2016. Thus, solely due to his indigency, absent an 

award of pretrial confinement credit the defendant will serve nearly a year more 

than would a defendant who was able to post bail. The trial court’s allocation 

of pretrial credit “must reflect an application of the credit statutes that ensures

the equal treatment of those confined prior to trial due to indigency, and those 

who are able to post bail.” Edson, 153 N.H. at 49; see State v. Philbrick, 127 

N.H. 353, 355 (1985) (explaining that to ignore the pretrial incarceration of the 

indigent offender is to permit discrimination based on economic status which is 

“unwise and unjust” (quotation omitted)).

Accordingly, we reverse the trial court’s orders denying the defendant’s 

request for pretrial confinement credit and remand with instructions to the 

court to grant pretrial credit toward the defendant’s sentence of three to six 

years for the period in which he was confined prior to the imposition of that 

sentence.

Reversed and remanded.

LYNN, C.J., and HICKS and BASSETT, JJ., concurred.