194 A.3d 69 (N.H. 2018), 2017-0385, State v. Martinko

Docket Nº:2017-0385
Citation:194 A.3d 69
Opinion Judge:LYNN, C.J.
Party Name:The STATE of New Hampshire v. David MARTINKO
Attorney:Gordon J. MacDonald, attorney general (Elizabeth A. Lahey, assistant attorney general, on the brief and orally), for the State. Law Office of Joshua L. Gordon, of Concord (Joshua L. Gordon on the brief and orally), for the defendant.
Judge Panel:HICKS, BASSETT, and HANTZ MARCONI, JJ., concurred.
Case Date:August 17, 2018
Court:Supreme Court of New Hampshire
 
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194 A.3d 69 (N.H. 2018)

The STATE of New Hampshire

v.

David MARTINKO

No. 2017-0385

Supreme Court of New Hampshire

August 17, 2018

Argued: April 17, 2018

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[Copyrighted Material Omitted]

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Gordon J. MacDonald, attorney general (Elizabeth A. Lahey, assistant attorney general, on the brief and orally), for the State.

Law Office of Joshua L. Gordon, of Concord (Joshua L. Gordon on the brief and orally), for the defendant.

OPINION

LYNN, C.J.

The defendant, David Martinko, appeals an order of the Superior Court (Houran, J.) denying his motion to vacate guilty pleas that he entered in 2014 to three felony informations. The informations charged him with aggravated felonious sexual assault under the pattern sexual assault statute. See RSA 632-A:2, III (2016). He 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. We affirm.

The State made the following proffer at the 2014 sentencing hearing. On October 31, 2013, the defendant went to the Dover Police Department and confessed that he had sexually assaulted the 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 when 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. Each information charged him with a pattern of assaults that spanned different dates: the first information charged assaults that occurred between September 1, 2010 and August 31, 2011; the second charged assaults that occurred between September 1, 2011 and August 31, 2012; and the third charged assaults that occurred between September 1, 2012 and October 31, 2013. The trial court accepted his negotiated plea and imposed three consecutive sentences. The court also ordered that the minimum sentence imposed on the third charge "may be suspended by the Court on application of

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the defendant, provided the defendant demonstrates meaningful participation in the sexual offender program while incarcerated."

In April 2017, the defendant filed the motion to vacate his plea and the sentences underlying this appeal. He argued that the three pattern informations to which he pled guilty violated the Double Jeopardy Clauses of the State and Federal Constitutions 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." This appeal followed.

A guilty plea must be knowing, intelligent, and voluntary to be valid. State v. Ortiz, 163 N.H. 506, 509, 44 A.3d 425 (2012). Thus, a defendant must voluntarily waive his rights and fully understand the elements of the offense to which he is pleading, the direct consequences of the plea, and the rights he is forfeiting. Id. In a collateral attack to a guilty plea, the defendant bears the initial burden and...

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