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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Rockingham

No. 2015-0149

THE STATE OF NEW HAMPSHIRE

v.

BRYON E. WHITNEY

Submitted: June 18, 2019

Opinion Issued: July 16, 2019

Gordon J. MacDonald, attorney general (Stephen D. Fuller, senior 

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

Wiberg Law Office, PLLC, of Portsmouth (Sven D. Wiberg on the brief), for 

the defendant.

DONOVAN, J. The defendant, Bryon E. Whitney, appeals an order of the 

Superior Court (Schulman, J.) remanding his case to the circuit court on the 

basis that, because he was convicted of a class B misdemeanor in circuit court, 

the superior court lacked jurisdiction over the appeal from the circuit court. 

See RSA 599:1 (Supp. 2014); RSA 599:1-c, II (2001). We affirm.

The record supports the following facts. The defendant was charged in 

circuit court with resisting arrest or detention. See RSA 642:2 (2016).

Following a bench trial, the defendant was found guilty and sentenced to pay a 
2

$500 fine, plus penalty assessment. The defendant filed an appeal with the 

superior court under RSA 599:1, seeking a de novo jury trial.

Prior to trial in the superior court, the State advised the court that the 

resisting arrest offense appeared to have been brought in circuit court as a 

class B misdemeanor rather than a class A misdemeanor, and therefore, the 

defendant’s conviction could not be appealed to the superior court. After 

reviewing the transcript from the circuit court, the superior court agreed with 

the State, and ruled that, because the offense was brought as a class B 

misdemeanor in circuit court and because the defendant was neither charged 

with nor convicted of a class A misdemeanor, the court lacked jurisdiction over 

the appeal. The defendant filed a motion to reconsider, which the court denied. 

This appeal followed.

Because the superior court’s jurisdiction to hear de novo appeals from 

circuit court is conferred by statute, determining the jurisdiction of the 

superior court in this case is a matter of statutory interpretation, which 

presents a question of law subject to our de novo review. See Rogers v. Rogers, 

171 N.H. 738, 743 (2019). A defendant’s right to appeal to superior court from 

circuit court depends upon whether he or she was charged with a class A or 

class B misdemeanor.

When a defendant is convicted of a violation or class B misdemeanor in 

circuit court, the only available appellate avenue is a direct appeal to this 

court. See RSA 599:1-c, II; State v. Blunt, 164 N.H. 679, 682 n.3 (2013). 

Because class B misdemeanors do not carry a possibility of incarceration, nor 

can a fine imposed for such offenses exceed $1,200, see RSA 651:2, III, IV(a)

(2016), defendants charged with such offenses do not have a constitutional 

right to a jury trial. See State v. Bilc, 158 N.H. 651, 655 (2009) (right to a jury 

trial is guaranteed to all criminal defendants facing the possibility of 

incarceration); State v. Morrill, 123 N.H. 707, 712-13 (1983). Accordingly,

those defendants charged with a class B misdemeanor in circuit court do not 

have a right to a de novo jury trial in superior court. See RSA 599:1-c, II; Bilc, 

158 N.H. at 655.

However, when a defendant is charged with and convicted of a class A 

misdemeanor in circuit court, he or she may elect to either appeal to the 

superior court for a de novo jury trial, or to this court for a review of questions 

of law. RSA 599:1; RSA 502-A:12 (2010). Because class A misdemeanors are 

punishable by imprisonment for up to one year and a maximum fine of $2,000, 

see RSA 651:2, I, II(c), IV(a) (2016), defendants accused of such offenses are 

constitutionally entitled to jury trials. N.H. CONST. pt. I, art. 15; State v. 

Thompson, 165 N.H. 779, 788 (2013) (State Constitution provides the 

defendant at least as much protection as the Federal Constitution under these 

circumstances); Bilc, 158 N.H. at 655. Notably, the right to a jury trial 

depends upon the “severity of the penalty authorized, not the one actually 
3

imposed.” Bilc, 158 N.H. at 654. Thus, a defendant who is exposed to the 

possibility of incarceration based on the classification of the charged offense

has a right to a de novo jury trial under RSA 599:1, regardless of the sentence 

that the circuit court actually imposed. Id. at 654-55.

In this case, the defendant argues that he was charged with a class A 

misdemeanor in the circuit court and, thus, the superior court erred in 

remanding the case back to the circuit court, rather than providing him with a 

jury trial. He further argues that by classifying the offense as a class B 

misdemeanor, the superior court effectively violated his statutory right to 

appeal to superior court for a de novo jury trial. He contends that the superior

court’s ruling that he was not entitled to a jury trial violates Part I, Article 15 of 

the New Hampshire Constitution and the Sixth Amendment to the United 

States Constitution.

Therefore, we have to determine whether the defendant was charged with

and tried for a class A or class B misdemeanor in circuit court. “Every offense 

is either a felony, misdemeanor or violation.” RSA 625:9, II (2016). 

“Misdemeanors are either class A misdemeanors or class B misdemeanors 

when committed by an individual.” RSA 625:9, IV (2016). Offenses can be 

expressly defined by statute as a class A or class B misdemeanor. RSA 625:9, 

IV(a)-(b). Offenses can also be simply defined as misdemeanors without 

specification as to whether they are class A or class B. RSA 625:9, IV(a)-(c). 

Resisting arrest is one such unspecified misdemeanor and, therefore, may be 

charged as either a class A or class B misdemeanor. See RSA 625:9, IV. RSA 

625:9, IV(c) provides:

(c) Any crime designated within or outside this code as a 

misdemeanor without specification of the classification shall be 

presumed to be a class B misdemeanor unless:

(1) An element of the offense involves an “act of violence” or 

“threat of violence” as defined in paragraph VII; or

(2) The state files a notice of intent to seek class A 

misdemeanor penalties on or before the date of arraignment. 

Such notice shall be on a form approved in accordance with 

RSA 490:26-d.

Regarding subparagraph (c)(1), the crime of resisting arrest, as defined 

by RSA 642:2, does not involve an act or threat of violence as an element of the 

offense. See Blunt, 164 N.H. at 683-84. As to subparagraph (c)(2), there is 

nothing in the record to indicate that the State filed a notice of intent at or 

before arraignment to seek class A misdemeanor penalties. In fact, the record 

reflects that the defendant argued to the circuit court that the offense was a 

class B misdemeanor because the State never filed a notice of intent to seek 
4

class A penalties. See RSA 625:9, IV(c)(2). The circuit court reserved ruling on

this argument, but acknowledged that its file did not include a notice that the 

State intended to seek class A misdemeanor penalties. The circuit court 

subsequently ruled that the offense was a class B misdemeanor. During the 

sentencing hearing, the defendant told the circuit court that he sought to 

appeal his conviction to the superior court, and the circuit court responded:

“Well, I’ll let you argue that . . . in Superior Court. But under the new 

sentencing statute that presumes a Class B, unless the intent is filed, I’m 

required to record this as a Class B misdemeanor conviction.” Moreover, even 

if the complaint asserted that the offense was a class A misdemeanor, “merely 

checking the ‘class A misdemeanor’ box on the standard complaint form does 

not constitute compliance with RSA 625:9, IV(c)(2).” Blunt, 164 N.H. at 684. 

Thus, we agree with the superior court’s determination that the defendant was 

“charged with a Class B misdemeanor, tried for a Class B misdemeanor, 

convicted of a Class B misdemeanor and sentenced for a Class B 

misdemeanor.” The fact that the circuit court reserved ruling on this issue 

until after the trial does not affect our analysis.

Furthermore, to the extent the defendant relies upon Bilc to support his

argument that he is entitled to a de novo jury trial, we disagree. In Bilc, the 

defendant was charged with two class A misdemeanors and, following a bench 

trial in then-district court, he was found guilty and sentenced to pay a fine of 

less than $1,200. Bilc, 158 N.H. at 652. We held in Bilc that, regardless of the 

sentence imposed, the defendant had been found guilty of two class A 

misdemeanors, which exposed him to possible incarceration, and thereby 

entitled him to seek a de novo jury trial in the superior court. Id. at 655. 

Thus, when a defendant is charged with a class A misdemeanor in circuit court 

but the sentence does not include a period of incarceration and, pursuant to 

RSA 625:9, VIII (2016), the court records the conviction and sentence as a 

class B misdemeanor, that defendant still has a right to a de novo jury trial in 

superior court. See id.

Those circumstances are not present here. Because the defendant was 

charged with a class B misdemeanor in circuit court, he was never exposed to 

the imposition of class A misdemeanor penalties and is, therefore, not entitled 

to a de novo jury trial. See id. at 654-55. We see no reason to extend our 

holding in Bilc beyond its original confines. Accordingly, the superior court 

properly found that it lacked jurisdiction over the appeal from circuit court. 

See RSA 599:1; RSA 599:1-c, II; Bilc, 158 N.H. at 655.

Affirmed.

LYNN, C.J., and HICKS, BASSETT, and HANTZ MARCONI, JJ., 

concurred.