Sarah E. Lavoie, Partner at Burns, Bryant, Cox, Rockefeller & Durkin Dover, NH

No. 2019-0280

September 22, 2020

Affirmed in part, reversed in part, and remanded.


  • Whether the trial court erred in denying the defendant’s motion for new trial based on ineffective assistance of counsel?


The defendant was indicted on five counts of theft by unauthorized taking and each indictment referenced RSA 651:6, which provides for sentence enhancement if the victim of the crime is 65 years or older or who has a physical or mental disability and that the defendant intended to take advantage of the victim’s age or physical or mental conditions.  The State offered a plea agreement of 5 to 10 years, stand committed, with $409,980 in restitution on one indictment and suspended incarceration on the remaining four indictments.  The defendant made a counteroffer plea which was rejected by the State.  A jury returned guilty verdicts on the five counts of theft by unauthorized taking and determined that the State had proven the sentence enhancement factors beyond a reasonable doubt.  The trial court sentenced the defendant to a term of 9 ½ to 25 years in New Hampshire State Prison.  The trial court denied the defendant’s motion for a new trial due to his claim of ineffective assistance of counsel.  The defendant appealed the trial court’s decision that he did not sustain his burden of proving that the outcome of his case would have been different but for his counsel’s deficient performance.   To succeed on an ineffective assistance of counsel claim, the defendant must show that his counsel’s representation was constitutionally deficient and that the deficient performance actually prejudiced the case’s outcome.  The defendant argued that his counsel’s performance was deficient in that he failed to object to the trial court’s jury instructions on the sentence enhancement when it had not been presented to the grand jury for indictment and that he failed to move for dismissal of the indictment on that same basis.  The Court found that even if counsel had objected to the trial court’s jury instructions on sentence enhancement and the objection was sustained, there was nothing in the record to suggested that the defendant would not have received a similar sentence.  The Court found that the trial court correctly noted that the defendant faced a possible sentence of anything up to 37 ½ to 75 years without the sentence enhancement and therefore, the sentence of 9 ½ to 25 years was within that same range.  The defendant also argued that his counsel was ineffective in advising the defendant regarding the State’s plea offer and his possible sentence at trial.  The Court found that the defendant’s counsel’s performance was below an objective standard of reasonableness because his counsel did not adequately advise him about the sentence enhancement and the merits of the State’s plea offer as compared to his likely success at trial.  The Court found that the defendant proved a reasonable probability that but for his counsel’s deficient performance, he would have accepted the plea.  An evidentiary hearing on remand was not required of the trial court.  To decide the appropriate remedy, the trial court should examine whether the defendant should receive the prison term in the plea offered by the State, in the sentence he received at trial or something in between the two.  On remand, the trial court has the discretion under the circumstances of the case to put the defendant in as close a position as possible as he had been in if there had been no violation of his right to counsel.


Gordon MacDonald, Attorney General, (Gregory M. Albert on the brief and orally), for the State. Ramsdell Law Firm, of Concord (Michael D. Ramsdell on the brief and orally) for the defendant.