At-a-Glance Contributor James Allmendinger, A sole practitioner in Durham, NH

Strafford No. 2017-0385

August 17, 2018


  • Whether, in the circumstances of this case, the defendant’s guilty plea to three counts of aggravated felonious sexual assault violated his protections against double jeopardy, and whether he received ineffective assistance of counsel at the time of his plea.

The defendant, David Martinko, appealed an order denying his motion to vacate guilty pleas to three felony informations that he entered in 2014. The informations charged him with aggravated felonious sexual assault under the pattern sexual assault statute. He now argues that: (1) the informations violated his state and federal constitutional protections against double jeopardy; and (2) his trial counsel provided ineffective assistance because he did not advise the defendant of these violations.

The facts are not good, at least from the defendant’s perspective. On October 31, 2013, the defendant went to the Dover Police Department and confessed that he had sexually assaulted a fifteen-year-old victim on the preceding night. On November 1, 2013, the victim participated in a forensic interview in which she confirmed  that she had been sexually assaulted by the defendant on October 30. She also reported that the assaults began when she was four or five years of age and they were living out of state. The defendant continued to sexually assault the victim after they moved to New Hampshire in 2010. The abuse happened every night or every other night until just before her fourteenth birthday when she told him to stop; thereafter he assaulted her approximately once a month. At the sentencing hearing, the defendant waived indictment and pled guilty to the three informations.

In April 2017, the defendant filed a motion to vacate his plea and the sentences. He argued that the three pattern informations to which he pled guilty violated double jeopardy because they charged “three separate sets of acts during overlapping time periods, alleging identical variants of sexual behavior that occurred at the same location.” He further argued that his trial counsel was ineffective for failing to advise him of the double jeopardy violations. The trial court denied his motion, finding that “the State’s charges allege three separate sets of acts during three discrete time periods.” The defendant appealed.

The defendant contended, among other things, that because his “conduct was one continuous pattern spanning three years,” the State could not charge him with three different one-year pattern offenses. The Court rejects that argument, under both the state and federal constitutions. “[T]he purpose of the pattern statute is to address the concern that young victims, who have been subjected to numerous, repeated incidents of sexual assault over a period of time by the same assailant may be unable to identify discrete acts.” Because that argument is without merit, the Court also rejects the defendant’s assertion that his trial counsel was ineffective for failing to advise the defendant that his pleas were in violation of double jeopardy protections. Since there was no double jeopardy violation, defense counsel was under no obligation to advise the client — incorrectly — that there was a double jeopardy violation.

Gordon J. MacDonald, attorney general and Elizabeth A. Lahey, assistant attorney general, on the brief and orally, for the State. Law Offi of Joshua L. Gordon, of Concord on the brief and orally, for the defendant.