New Hampshire Supreme Court Announces Adoption of Lafler When Reviewing IAC Claims in Plea Bargain Cases
by Douglas Ankney
The Supreme Court of New Hampshire announced that it has adopted the approach of Lafler v. Cooper, 566 U.S. 156 (2016), in reviewing claims of ineffective assistance of counsel where the defendant rejected a plea offer and chose to go to trial based upon advice of counsel.
Keith Fitzgerald was indicted on five counts of theft by unlawful taking (Class A felonies) for using his power of attorney to transfer money from his father’s accounts into accounts in his name. Each count carries a penalty of 7.5 to 15 years. The State notified Fitzgerald in a plea offer that the sentence enhancements of RSA 651:6, III (2016) could be applied because his father was over 65 years old. Unable to reach an agreement at the first settlement conference, the parties filed a motion stating they continue to “engage[ ] in productive settlement discussions [and] are in agreement that the defendant have some time to consider the State’s current offer.”
Ultimately, the State made its final offer of two years’ incarceration in a county facility, followed by two years of home confinement in exchange for a guilty plea to all five counts.
Defense counsel advised Fitzgerald that he was not opposed to Fitzgerald taking his case to trial and that counsel was “feeling good” about the jury finding reasonable doubt as to whether Fitzgerald did not have authorization to transfer the money. Fitzgerald declined the plea offer. A jury found him guilty of all five counts and found that the State had proved the father’s age for application of the sentencing enhancements. The trial court sentenced Fitzgerald to a term of 9.5 years to 25 years in state prison.
Fitzgerald subsequently filed a motion for new trial based on ineffective assistance of counsel, arguing, inter alia, that his attorney had incorrectly explained the “Elder Abuse (over 65 years old) charge.” At a hearing on the motion, defense counsel testified that he did not “recall specifically talking to [Fitzgerald] about the distinction between Class A felonies and the extended term.” Counsel further testified that he told Fitzgerald if he were convicted it would be unlikely that he would receive a sentence of more than three years. Counsel testified that he arrived at the three-year figure by checking the press for similar cases but that he did not research actual court cases. Had he done so, he would have discovered a similar case tried by the same judge wherein the defendant received a sentence similar to that received by Fitzgerald. Counsel also testified that Fitzgerald chose to go to trial based on the advice received from counsel.
The trial court denied the motion, reasoning that Fitzgerald failed to establish he was prejudiced because he did not prove that the trial court would have accepted the deal. Fitzgerald appealed.
The New Hampshire Supreme Court observed that to prove counsel was ineffective a defendant must demonstrate that counsel’s performance fell below an objective standard of reasonableness, and there was a reasonable probability that the deficient performance prejudiced the outcome of the case. Strickland v. Washington, 466 U.S. 668 (1984).
A defendant has a right to effective assistance of counsel during plea bargaining. Lafler. An accused is entitled to rely upon his counsel to make an independent examination of the facts, circumstances, pleadings, and laws involved and to offer an informed opinion as to what plea should be entered. State v. Hall, 8 A.3d 12 (N.H. 2010).
Because Fitzgerald’s counsel failed to communicate to him the severity of the enhancements and his possible sentence exposure at trial and failed to reasonably research the law, counsel’s performance fell below an objective standard of reasonableness, the Court concluded.
Turning to the prejudice prong, the Court explained that because the analysis of ineffective assistance claims is the same under both the state and federal constitutions, the Court would adopt the approach developed in Lafler. A defendant must show: (1) the offer would’ve been presented to the court – he would have accepted the offer and the prosecution would not have withdrawn it due to intervening circumstances, (2) the court would’ve accepted the terms, and (3) the conviction or sentence, or both, under the offer would’ve been less severe than under the judgment actually imposed. Lafler.
The record demonstrated a reasonable probability Fitzgerald would’ve accepted the offer if not for counsel’s bad advice, the Court determined. The State offered no evidence that it would have rescinded the offer. Even though the trial judge had imposed a similar sentence in a similar case, the court is not to consider the idiosyncrasies of a particular judge when deciding the claim. Strickland. The record was absent of any evidence to suggest that the trial court would have rejected the offer as it is the usual course for trial courts to accept plea agreements. Woods v. State, 48 N.E.3d 374 (Ind. Ct. App. 2015). And the terms of the offer were less severe than the sentence actually imposed. Therefore, the Court concluded that Fitzgerald satisfied all three prongs of Lafler and was prejudiced by counsel’s error.
Lafler instructs that when the defendant was convicted of more severe charges than those in the offer the appropriate remedy is to vacate the judgment and allow the defendant to accept the offer. But if the defendant was convicted of the same charges as he would have been if he had accepted the plea bargain, then the sole advantage the defendant would’ve received under the plea was a lesser sentence. The remedy in such a case is to remand to the trial court to determine a sentence that’s fair to both parties, i.e., either the sentence offered in the plea bargain or the sentence imposed at trial – or something in between.
Accordingly, the Court remanded the case to the trial court to determine the sentence. See: State v. Fitzgerald, 2020 N.H. LEXIS 154 (2020).
Related legal case
State v. Fitzgerald
|Cite||2020 N.H. LEXIS 154 (2020)|
|Level||State Supreme Court|