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8/12/2019 State v. Percy, Brief for the State, New Hampshire Supreme Court
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THE STATE OF NEW HAMPSHIRE
SUPREME COURT
2014 TERM
No. 2013-0648
State of New Hampshire
v.
Benjamin Percy
APPEAL PURSUANT TO RULE 7 FROM A JUDGMENT OF THE2ND CIRCUIT COURTDISTRICT DIVISIONLEBANON
BRIEF FOR THE ATTORNEY GENERAL
THE STATE OF NEW HAMPSHIRE
Joseph A. FosterAttorney General
Natch GreyesFellow
NH Bar # 265230Criminal Justice Bureau33 Capitol StreetConcord, N.H. 03301-6397(603) 271-3671(5-minute 3JX argument)
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TABLE OF CONTENTS
TABLE OF CONTENTS ................................................................................................ iTABLE OF AUTHORITIES ......................................................................................... iiISSUES PRESENTED ................................................................................................... 1STATEMENT OF THE FACTS and case ..................................................................... 2SUMMARY OF THE ARGUMENT ............................................................................ 6ARGUMENT ................................................................................................................. 7I. THE DEFENDANTS CHALLENGE TO HIS DECEMBER 2007 PLEA IS
MOOT BECAUSE HIS SENTENCE HAS BEEN SERVED AND BARREDBYLACHESBECAUSE HE DID NOT TIMELY SEEK REDRESS. ............. 7
II. THE CIRCUIT COURT PROPERLY REJECTED THE DEFENDANTSMOTION BECAUSE THE DEFENDANT UNDERSTOOD THAT HE WASPLEADING GUILTY WITH THE ASSISTANCE OF COUNSEL. .............. 10
III. THE DEFENDANTS ATTORNEY PROPERLY ENTERED A PLEA ONBEHALF OF HIS CLIENT. ............................................................................. 12
IV. DEFENSE COUNSEL DID NOT REPRESENT THAT THE DEFENDANTINTENDED TO TAKE THE CASE TO TRIAL. ............................................ 18
CONCLUSION ............................................................................................................ 20
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TABLE OF AUTHORITIES
Cases
Board of School Commrs v. Jacobs, 420 U.S. 128 (1975) ........................................... 7
DAllesandro v. United States, 517 F.2d 429 (2d Cir. 1975)....................................... 13
Diamontopoulas v. State, 140 N.H. 182 (1995) ........................................................... 11
Healey v. Town of New Durham Zoning Bd. of Adjustment, 140 N.H. 232 (1995) ....... 8
In re Belair, 158 N.H. 273 (2009) ................................................................................. 8
In re Smith, 339 P.2d 796 (Okla. Crim. App. 1959) ...................................................... 9
In re Southard, 217 A.2d 49 (Vt. 1966) ................................................................. 13, 17
Leonhart v. McCormick, 395 F. Supp. 1073 (W.D. Pa. 1975) ...................................... 7
McCray v. State, 699 So. 2d 1366 (Fla. 1997) ............................................................... 9
Millette v. Warden, 141 N.H. 653 (1997) ...................................................... 7, 8, 10, 11
Otero-Rivera v. United States, 494 F.2d 900 (1st Cir. 1974) ...................................... 13
Richard v. MacAskill, 129 N.H. 405 (1987) .......................................................... 11, 17
Roy v. Perrin, 122 N.H. 88 (1982) ................................................................................. 8
Schlup v. Delo, 513 U.S. 298 (1995) ............................................................................. 8
Stano v. Dugger, 921 F.2d 1125 (11th Cir. 1991) ....................................................... 16
State ex rel. Smalley v. Morgan, 211 Wis. 2d 795 (Wis. Ct. App. 1997) ...................... 9
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State v. LaRose, 71 N.H. 435, 438, 52 A. 943 (1902) ................................................... 7
State v. Ortiz, 163 N.H. 506 (2012) ............................................................................... 7
State v. Percy, No. 452-2007-CR001981 (2nd Cir. Aug. 5, 2013) .............................. 10
State v. Thornton, 140 N.H. 532 (1995) ...................................................................... 11
United States ex rel. Hairston v. Myers, 237 F. Supp. 472 (E.D. Pa. 1965) .......... 13, 16
United States v. Denniston, 89 F.2d 696 (2d Cir. N.Y. 1937) ........................... 6, 12, 13
Other Authorities
21 Am. Jur. 2d Criminal Law 676 (2008) ................................................................... 7
Rules
F.R.CRIM.P.11 Notes on Advisory Committee on Rules ......................................... 14
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ISSUES PRESENTED
I. Whether the defendants challenge to his December 2007 plea is moot andbarred by lachesbecause his 2007 sentence has already been served and
the State would be unfairly prejudiced in its attempt to try the defendant.
II. Whether the lower courts determination that the defendant was fullyaware of the terms of the plea agreement and knowingly and voluntarily
assented to his attorney entering a nolo contendereor guilty plea on his
behalf was clearly erroneous.
III. Whether the court properly accepted the plea negotiated by the State anddefendant, which was reduced to writing, and discussed throughout the
legal proceeding, and where the defendant raised no objection to it.
IV. Whether the defendant disputed his intention to plead nolo contendereorguilty, where defense counsel pointed out the shortcomings of the States
case, but reiterated the defendants request that the court accept the
negotiated plea.
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The court then explained the nature of the penalty to the defendant, including
that it could impose a fine of between $500 to $1,200 and the defendant could lose his
operating privileges for nine months to two years. Tr. 3. The court also explained that
it could subtract up to six months of the license suspension. Tr. 3. The court then
detailed the penalty for a subsequent offense. Tr. 34. The court concluded its initial
statement to the defendant by saying, Youre waiving your right to a trial. Youre
giving up your right to challenge the reason the police stopped your vehicle, any
subsequent evidence they may have developed during their investigation. Do you
understand that? Tr. 4. The defendant replied, Yes, your Honor, Tr. 4. The court
then asked the defendant whether he had any questions regarding the information in
the form of any questions that I can answer in general? Tr. 4. The defendant replied,
No, sir. Tr. 4.
The court then asked the State for an offer of proof. Tr. 4 5. After the State
gave the facts that formed the basis for the arrest, the court addressed the defendants
attorney, who told the court what the defense would have done were we to litigate
this case. Tr. 5 7. He concluded by stating, [f]or those various reasons we would
ask the Court to accept a negotiated settlement. Tr. 7.
Next, the court discussed the agreement with the attorneys, ultimately deleting
the first item of the agreement, without objection from the State and the defense. Tr.
8. The court then addressed the defendant, reading the terms of the agreement to him:
Mr. Percy, it will be a 500 plus $100 fine, nine month suspension ofyour right to operate in New Hampshire, with the ability to petition theCourt for reinstatement after 90 days provided you enter into theprogram approved by the State within 45 days. Comply with theprogram requirements and then follow what is ordered on page 2 of this
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three-page order that in part tells you that you have the ability topetition and outlines the methodology, and well give you a copy of
that out of the clerks window.
Tr. 89. See also D.B.A. 29, 32 (containing a handwritten reference to the agreement
(Attachment A) on the Acknowledgment and Waiver of Rights: DUIFirst
Offense form (hereinafter Acknowledgement and Waiver)and the agreement, in the
form of Attachment A, itself).2
The defendants attorneythen stated that he had one other request and asked
if the court would follow the pretrial credit for suspension recommendation
contained in Judge Kellys memo for the Superior Courts. Tr. 9. However, the
defendants attorneyassured the court that Mr. Percy is not seeking to withdraw his
pleaif the court did or did not follow the pretrial recommendation. Tr. 9.
In July 2013, five and a-half years after he was stopped, the defendant filed a
motion to vacate his conviction. In this motion, he alleged that it is a foundational
requirement for a plea of guilty to be accepted that the defendant actually enter a plea
of guilty and that the defendant himself never said that he was guilty; nordid
Attorney Apfel enter a plea of guilty on his behalf. D.B.A. 3 4. On July 29, 2013,
the State filed an objection raising as its basis the fact that Attorney Apfel requested
that the court accept the settlement that the State and defense worked without
contradiction from the defendant,meeting the legal standard, and there was no need
for the defendant himself to speak the word guilty.D.B.A. 34. On August 5, 2013,
the trial court denied the defendantsmotion, citing the States objection as the reason
for the denial.
2D.B.A. refers to the appendix to the Defendants brief.
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A motion to reconsider was filed on August 15, 2013, reiterating the
defendants position. The State objected to that motion for the same reasons as
articulated in its July 29, 2013 response. The Circuit Court denied the defendants
motion.
This appeal followed.
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SUMMARY OF THE ARGUMENT
I. The defendants challenge to his December 2007 plea is mootbecause hehas served his sentence or barred by lachesbecause he sat on his rights for
too long enough and the State would be unfairly prejudiced in its attempt
to retry the defendant.
II. The lower courts determination that the defendant clearly understoodthathe was pleading guilty with the assistance of counselwas amply
supported by the record and, therefore, not clearly erroneous.
III. A defendants attorney may enter a plea of nolo contendereor guilty forhis client under circumstances which fairly show that the attorney speaks
for his client who understands what is being done and its import and who
acquiesces. The court did not err by accepting the negotiated plea
agreement. The defendant had signed an Acknowledgment and Waiver, the
court explained the terms of the agreement to him, and the defendant was
given the opportunity to ask questions during the hearing. The court
committed no error in accepting the plea and imposing a sentence.
IV. The trial court committed no error when it did not ask the defendant aboutthe States offer of proof. The defendants lawyer responded to the offer by
explaining the likely defense strategy and by asking the court to accept the
agreement. The defendant was given the opportunity to ask questions and
the record supports the trial courts ruling.
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ARGUMENT
I. THE DEFENDANTS CHALLENGE TO HIS DECEMBER 2007PLEA IS MOOT BECAUSE HIS SENTENCE HAS BEEN SERVED
AND BARRED BYLACHES
BECAUSE HE DID NOT TIMELYSEEK REDRESS.
The defendants challenge to his December 2007 nolo contendereor guilty
plea3(hereinafter plea)is moot and barred by lachesbecause he sat on his rights.
His 2007 sentence has already been served and, as such, the claim is moot. Moreover,
there has been a long enough delay and the State would be unfairly prejudiced in its
attempt to try the defendant and, as such, the claim is barred by laches.
This Court will generally will refuse to review a question that no longer
presents a justiciable controversy because issues involved have become academic or
dead.Millette v. Warden, 141 N.H. 653, 655 (1997) (internal quotation omitted). A
case is mootwhen a determination is sought on a matter which, when rendered,
cannot have any practical effect on the existing controversy.Leonhart v.
McCormick, 395 F. Supp. 1073, 1077 (W.D. Pa. 1975). See alsoBoard of School
Commrs v. Jacobs, 420 U.S. 128, 129 (1975) (where the high school students who
had brought the case to restrain certain school regulations had graduated the case was
moot). Here, unlikeMillette, the defendant is not currently serving a sentence
3In New Hampshire, nolo contenderepleas have the same legal effect as guilty pleas. SeeStatev. Ortiz, 163 N.H. 506, 509 (2012) (Because a conviction results from a plea of nolo contendere,we find no reason here to distinguish a noloplea from a plea of guilty. See State v. LaRose, 71N.H. 435, 438, 52 A. 943 (1902) ([A] plea of nolo contenderehas the same legal effect as a pleaof guilty.); 21 Am. Jur. 2d Criminal Law 676 (2008)(For practical purposes, a plea of nolocontendereis a plea of guilty, or the functional or substantive equivalent of such a plea. (footnoteomitted)). Therefore, our jurisprudence regarding guilty pleas is applicable here.). As aconsequence, the State treats the intended plea, whether nolo contendereor guilty, as equivalentthroughout this brief.
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based, in whole or in part, on a sentence he received as a result of his plea. See
Millette, 141 N.H. at 655. The defendant was sentenced on December 12, 2007 to a
nine month suspension of his right to operate a motor vehicle in the State of New
Hampshire and $500 plus $100 fine. Tr. 8. The nine month sentence of suspension
had already been served by the time the defendant filed a motion to vacate his
conviction with the Lebanon Circuit Court in July 2013, nearly six years after the
sentence was imposed. Therefore, this challenge is moot and the court should refuse
to review it.
In addition, the defendants motion to vacate his conviction should be barred
by laches. The defendants motion to vacate his conviction is, in effect, a petition for
writ ofhabeas corpusand, therefore, subject to equitable defenses. The State never
tried the defendant. He plead. Therefore, the defendants motion is really a petition
for writ ofhabeas corpusas he is actually claiming the plea was constitutionally
defective. Since a writ ofhabeas corpusis an equitable remedy, it is subject to
equitable defenses. Schlup v. Delo, 513 U.S. 298 (1995) ([H]abeas corpusis, at its
core, an equitable remedy.);Healey v. Town of New Durham Zoning Bd. of
Adjustment, 140 N.H. 232, 241 (1995) (Lachesis an equitable doctrine.).
Lachesis an equitable doctrine that bars litigation when a potential plaintiff
has slept on his rights. The doctrine of lachesis not a mere matter of time, but is
principally a question of the inequity of permitting the claim to be enforced.In re
Belair, 158 N.H. 273, 279 (2009). This Court has discouraged petitions filed after
significant delays. See, e.g.,Roy v. Perrin, 122 N.H. 88 (1982) (holding that the
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defendant was not permitted to raise an issue in a habeas corpusproceeding after
unjustifiably remaining silent about the issue for four years).
The defendant does not explain why he failed to file for post-conviction relief
for nearly six years after his sentence was imposed in December 2007. In other
jurisdictions, such delay and probable loss of evidence has been sufficient to find
filings for post-conviction relief barred by laches. See, e.g.,McCray v. State, 699 So.
2d 1366 (Fla. 1997) (holding post-conviction relief barred by lacheswhere there was
a 15 year delay in filing petition and the defendant gave no reason for the delay);
State ex rel. Smalley v. Morgan, 211 Wis. 2d 795 (Wis. Ct. App. 1997) (holding post-
conviction relief barred by lacheswhere there was a seven year delay in filing petition
and no reason the defendant could not have learned of failure to file appeal during
that time);In re Smith, 339 P.2d 796 (Okla. Crim. App. 1959) (holding post-
conviction relief barred by lacheswhere there was a 24 year delay in filing for relief,
including 10 years spent on parole, the trial judge had probably forgotten the case,
and evidence had been destroyed due to the passage of time).
The delay in filing his motion would prejudice the State since memories rarely
improve with age. As a result, the Court should decline to review the claim as it is
both untimely and moot.
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II. THE CIRCUIT COURT PROPERLY REJECTED THEDEFENDANTS MOTION BECAUSE THE DEFENDANT
UNDERSTOOD THAT HE WAS PLEADING GUILTY WITH THE
ASSISTANCE OF COUNSEL.
Despite his delay in filing for relief, the defendant still contends that he is
entitled to relief. D.B. 19.4He argues that the written plea agreement and colloquy
were insufficient as an admission of guilt or other recognized substitute. D.B. 6.
This Court will not overturn a trial courts finding of fact unless unsupported
by the record. Gelinas v. Metropolitan Property & Liab. Ins. Co., 131 N.H. 154, 164
(1988) (internal quotations omitted) (brackets in original) (The standard of review
we apply to a trial courts factual findings is that [a]bsent an abuse of discretion, we
will not overturn the trial courts findings unless it clearly appears they were made
without evidence.). This court will not overturn the trial courts determination on a
mixed question of law and fact unless that determination is clearly erroneous.Great
Lakes Aircraft Co. v. Claremont, 135 N.H. 270, 282 (1992). The court agreed with the
States objection. D.B. 11. It found that [t]he Defendant clearly understood that he
was pleading guilty with the assistance of counsel and that the sentence would be
imposed as negotiated with the exception that the Court did not believe it had the
power to make orders regarding the ALS suspension and its impact on the Court
ordered suspension.Id.
In reviewing entry of a guilty plea, this Court must determine whether the
existing record of the case clearly indicates that the petitioner entered his plea
knowingly and voluntarily.Millette, 141 N.H. at 655. This Court will not limit its
4D.B. refers to the Defendants Brief.
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review of the record to the dialogue between the trial judge and the petitioner during
the plea hearing to determine whether the record indicates a knowing and voluntary
plea.Id.at 65556. See, e.g., State v. Thornton, 140 N.H. 532, 538 (1995) (signed
acknowledgment of rights form, motion to dismiss, and hearing thereon are
considered part of the record);Diamontopoulas v. State, 140 N.H. 182, 185 (1995)
(signed acknowledgment of rights form is considered part of the record);Richard v.
MacAskill, 129 N.H. 405, 409 (1987) (noting that a written waiver of rights form is
considered part of the record).
The defendant was fully aware of the terms of the plea agreement and
knowingly and voluntarily assented to his attorney entering plea on his behalf. The
record contains not only the colloquy between the court and defendant, along with the
State and defense attorneys representations in court, but also a written waiver of
rights form which includes the words See Attachment A and bears the defendants
name above the signature line. D.B.A. 29, 30. Attachment A was the negotiated plea
agreement that the court eventually accepted as the sentence. CompareD.B.A. 32,
withTr. 89.
Nothing suggests that the plea was anything except knowing, voluntary, and
intelligent. The defendant had a college degree. SeeD.B.A. 30. He was given the
opportunity to ask questions of the court. Tr. 4. He told the court that he understood
his loss of rights. Tr. 4. Therefore, the defendant knew what the terms of the
negotiated agreement were and understood that he was pleading guilty with the
assistance of counsel during the hearing. As a consequence, the trial court committed
no error in accepting his knowing, voluntary, and intelligent plea.
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III. THE DEFENDANTS ATTORNEYPROPERLY ENTERED A PLEAON BEHALF OF HIS CLIENT.
The defendants main issue on appeal centers on the argument that the court
erred during the colloquy with the defendant because it did not specifically ask the
defendant whether he wanted to plead nolo contendere, guilty, or not guilty. SeeD.B.
4. In the defendants view, then, error existed because (1) there was no admission of
guilt . . . on the record, D.B. 6, and (2) the State Bar would be well served by a
policy requiring the pronouncement of guilt to come from the defendant personally
before the acceptance of any guilty plea. D.B. 7.
The defendants contention, however, is unpersuasive. The law allows a
defendants attorney under circumstances which fairly show that the attorney speaks
for his client who understands what is being done and its import and who acquiesces
to enter a nolo contendereor guilty plea on behalf of his client. See United States v.
Denniston, 89 F.2d 696 (2d Cir. 1937). Moreover, all the facts and circumstances
surrounding sentencing indicate that the defendant intended to change his plea at the
plea hearing. Tr. 19.
A. The law allows the defendants attorney under circumstances whichfairly show that the attorney speaks for his client who understands
what is being done and its import and who acquiesces to enter a nolo
contendereor guilty plea on behalf of his client, the defendant.
The defendant argues for a prophylactic rule that an attorney may not enter a
plea of nolo contendereor guilty for a defendant. D.B. 57. United States v.
Dennistonstands for the proposition that:
If an indicted [or charged] person is actually present in open court withhis attorney who is competent to represent him and does so undercircumstances which fairly show that the attorney speaks for his client
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who understands what is being done and its import and who acquiesceswhen the attorney enters a plea of guilty for him, nothing but a slavishadherence to archaism could underlie a holding that the plea was void.
Id.at 698.
AlthoughDennistonpredated the 1966 change in Rule 11 of the Federal Rules
of Criminal Procedure, it is still valid law.DAllesandro v. United States, 517 F.2d
429, 434 (2d Cir. 1975) (first set of ellipses added) (second set of ellipses present in
original) (The 1966 amendment to Rule 11 . . . was not intended to resuscitate what,
in United States v. Denniston, 89 F.2d 696, 698 (2nd Cir. 1937), cert. denied, 301
U.S. 709, 57 S. Ct. 943, 81 L. Ed. 1362 (1937), we called the technical objection
that a plea that was entered by the attorney and not by the appellant personally . . . is
of no effect.).
AsDennistonstated, such an objection is a mere technical objection to the
plea itself.Denniston, 89 F.2d at 698. It is of no effect.Id.at 698. It is well
settled that an attorney may, in the presence of the defendant and on his behalf, enter
a plea of guilty. United States ex rel. Hairston v. Myers, 237 F. Supp. 472, 475 (E.D.
Pa. 1965). Both the United States Court of Appeals for the First Circuit and the
Vermont Supreme Court have adoptedDennistons reasoning. See Otero-Rivera v.
United States, 494 F.2d 900, 904 (1st Cir. 1974) (United States v. Denniston, 89 F.2d
696, 698 (2d Cir. 1937) indicates that the circumstances must fairly show that the
attorney speaks for his client who understands what is being done and its import and
who acquiesces . . . .);In re Southard, 217 A.2d 49, 51 (Vt. 1966) (ellipses added)
(At common law the accused was required to plead in person. 21 Am. Jur. 2d
Criminal Law, 459. In the case of United States v. Frank J. Denniston, 89 F.2d 696,
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the court failed to subscribe to the rigidity of the common law procedure with the
following comments: . . . It is our view that neither 13 V.S.A. 7002, nor Article 10
of Chapter I of the Vermont Constitution, make it mandatory that a plea of guilty
must be made personally by an accused.).
Under the federal rule, a court must address the defendant personally in the
course of determining that the plea is made voluntarily and with understanding of the
nature of the charge. F.R.CRIM.P.11 Notes on Advisory Committee on Rules. A
court must make sure that a defendant understands the nature of the charge and give
him the chance to tell the court that the plea is not voluntary. See id.
Before the hearing, the defendant signed and reviewed with his lawyer the
Acknowledgment and Waiver, and referenced the plea agreement eventually accepted
by the court as Attachment A. SeeTr. 3 (Mr. Percy, with respect to the
acknowledgement of rights form, did you and Mr. Apfel review that? Yes, your
Honor.); D.B.A. 29, 31. Further, the court addressed the defendant and the defendant
responded appropriately. Tr. 34, 79. The circumstances surrounding the hearing
demonstrated that all of the parties, including the defendant, understood the purpose
of the hearing. Tr. 4, 79. The defendants contention now that his plea was
defective because he did not personally enter it is without support on the record.
B. The defendant intended to plead nolo contendere or guilty at theplea hearing.
The defendant notes that the Acknowledgment and Waiver does not require an
entry of intended plea. D.B. 6. But this contention ignores the fact that a handwritten
note on that signed form referenced the plea agreement negotiated by the State and
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defense, Attachment A. D.B.A. 29. The terms of Attachment A, as supplied in the
defendants brief at D.B.A. 32, contained the same sentence imposed by the court.
CompareD.B.A. 32, withTr. 89. This agreement was discussed by the court and
counsel throughout hearing. Tr. 19. Throughout the proceeding, the defendant was
not only clearly informed of the range of sentences, Tr. 3 (court describing to the
defendant the possible sentences), and the fact that he was waiving some of his
constitutional rights, Tr. 34; D.B.A. 29, but also that both his own attorney and the
States attorney were advocating for the court to impose the sentence referenced on
the Acknowledgment and Waiver. Tr. 19. The defendant knew at the time the court
read the sentence to him that the terms of the agreement were virtually the same as the
terms imposed. CompareD.B.A. 32, withTr. 89.
Further, the record supports the conclusion that the defendant knew that he
was giving up certain rights by pleading guilty. CompareD.B.A. 29, withTr. 4. He
signed and reviewed with his lawyer the Acknowledgment and Waiver. Tr. 4. The
Acknowledgment and Waiver stated that by pleading GUILTY or NOLO to the
complaint he would be giving up certain rights. D.B.A. 29. The court asked the
defendant if he understood that he was giving up those rights mentioned in the
Acknowledgment and Waiver. CompareD.B.A. 29, withTr. 4. The defendant noted
on his plea form that he held a college degree. D.B.A. 30. It is reasonable to conclude
that a defendant with that level of education would have understood that, in waiving
his rights to a trial, he was no longer contesting his guilt.
The record is clear that the defendant intended to waive his right to trial. See
Tr. 19; D.B.A. 29, 32. It would have been unreasonable for him to sign the
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Acknowledgment and Waiver if he was not intending to plead, as the handwritten
note on it referenced Attachment A, which was clearly a proposed punishment. He
made no objection during the proceedings. SeeTr. 19. He was silent when his own
lawyer stated that Mr. Percy is not seeking to withdraw his plea if the answer is no.
Tr. 9. Thus, the circuit court made no error in denying the defendants motion and this
court should affirm.
C. The defendants proposed rule is unnecessary.Finally, the defendant argues that the State Bar would be well served by a
policy requiring the pronouncement of guilt to come from the defendant personally
before the acceptance of any guilty plea. D.B. 7.This suggestion is at odds with the
jurisprudence surrounding a plea. [I]t is not the attorney, but the defendant who
enters a guilty plea and who is questioned by the court to determine whether the plea
is made voluntarily, knowingly, and intelligently.Stano v. Dugger, 921 F.2d 1125,
1140 (11th Cir. 1991) (citingHaring v. Prosise, 462 U.S. 306, 319 (1983)). The
concern, then, is on the interaction between the defendant and the court, not the
lawyers. See id. at 1140 (Although counsel is physically present with the defendant
during plea proceedings, the actual plea is between the court and the defendant.).
Therefore, the State Bar would see no benefit as a consequence of a prophylactic rule
that the defendant must always say the word guilty when entering a plea.
The current rule, which is widely employed and well-settled, has long served
defendants and courts. See, e.g., United States ex rel. Hairston v. Myers, 237 F. Supp.
472, 475 (E.D. Pa. 1965) (It is well settled that an attorney may, in the presence of
the defendant and on his behalf, enter a plea of guilty.);In re Southard, 217 A.2d 49,
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51 (Vt. 1966) (ellipses added) (At common law the accused was required to plead in
person. 21 Am. Jur. 2d Criminal Law, 459. In the case of United States v. Frank J.
Denniston, 89 F.2d 696, the court failed to subscribe to the rigidity of the common
law procedure with the following comments: . . . It is our view that neither 13 V.S.A.
7002, nor Article 10 of Chapter I of the Vermont Constitution, make it mandatory
that a plea of guilty must be made personally by an accused.).Such a rule allows the
trial court to make certain that the plea represented a voluntary and intelligent
choice among the alternative courses of action open to the defendant.Richard v.
MacAskill, 129 N.H. 405, 40708 (1987) (quotingNorth Carolina v. Alford, 400
U.S. 25, 31 (1970)). In this case, the trial court was satisfied that the defendants plea
was knowing, voluntary, and intelligent. SeeD.B. 11. It rejected the defendants claim
to the contrary. D.B. 11. The defendants proposed prophylactic rule does nothing to
enhance the trial courts ability to make sure the plea is knowing, intelligent, and
voluntary.
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that the negotiated plea was appropriate in a case that the defense felt was not
overwhelming. Despite the shortcomings of the States case, however, defense
counsel reiterated that the defendant wanted the court to accept the negotiated plea
agreement.
The trial court committed no error when it declined to allow the defendant to
withdraw his plea on this ground.
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CONCLUSION
For the foregoing reasons, the Attorney General asks this court to affirm the
judgment of the Circuit Court.
Respectfully submitted,
THE STATE OF NEW HAMPSHIRE
By its attorneys,
Joseph A. Foster
Attorney General
____________________________Natch GreyesFellowCriminal Justice Bureau33 Capitol StreetConcord, N.H. 03301-6397(603) 271-3671
February 26, 2014
I hereby certify that two copies each of the foregoing were mailed this day, postageprepaid, to Jared Bedrick, counsel for the Defendant.
Natch Greyes