State v. Fitzgerald
| Decision Date | 11 January 2022 |
| Docket Number | 2020-0595 |
| Citation | 174 N.H. 722,274 A.3d 581 |
| Parties | The STATE of New Hampshire v. Keith C. FITZGERALD |
| Court | New Hampshire Supreme Court |
John M. Formella, attorney general, and Anthony J. Galdieri, solicitor general (Gregory M. Albert, assistant attorney general, on the brief), for the State.
Sheehan Phinney Bass & Green, P.A., of Manchester (Michael D. Ramsdell on the brief), for the defendant.
The defendant, Keith C. Fitzgerald, appeals an order of the Superior Court (O'Neill, J.) sentencing him, on remand, to nine and one-half to twenty-five years in prison. See State v. Fitzgerald, 173 N.H. 564, 583-84, 243 A.3d 1206 (2020) ( for resentencing). On appeal, the defendant argues that the trial court: (1) unsustainably exercised its discretion and committed an error of law by re-imposing the same sentence that it had imposed previously; and (2) violated his state and federal constitutional rights to due process by relying upon improper information and failing to set forth, in detail, the basis for its sentencing decision. We affirm.
In 2015, the defendant was indicted on five counts of theft by unauthorized taking in violation of RSA 637:3 (2016). Id. at 569, 243 A.3d 1206. His jury trial took place in 2017 in Superior Court (Smukler, J.). At trial, the jury heard evidence that the defendant made several transactions using his father's assets without consulting his father or the defendant's siblings, and that, after obtaining his father's durable power of attorney, he transferred his father's assets from accounts and trusts in his father's name to accounts only in the defendant's name. Id. at 570-71, 243 A.3d 1206. At the conclusion of trial, pursuant to the sentence enhancement contained in RSA 651:6, the jury was instructed to determine whether the defendant's father was 65 years or older and whether the defendant, in perpetrating a crime under RSA 637:3, intended to take advantage of his father's age. Id. at 571, 243 A.3d 1206. The jury returned guilty verdicts on all five charges and specifically found that the State had proven the sentence enhancement factors beyond a reasonable doubt. Id. The court subsequently sentenced the defendant to a term of no less than nine and one-half years and no more than twenty-five years in the New Hampshire State Prison. Id.
The defendant appealed his convictions, and we affirmed them in a non-precedential order in 2018. Thereafter, the defendant filed a motion for a new trial based upon ineffective assistance of counsel. Id. at 569, 243 A.3d 1206. The Superior Court (Smukler, J.) denied the motion, and the defendant appealed the denial. Id.
On appeal, the defendant argued that his trial counsel had been ineffective in advising him as to the merits of the State's plea offer and his exposure to the sentencing enhancement. See id. at 575, 243 A.3d 1206. Under the plea offer, the defendant would serve two years in the Belknap County House of Corrections, followed by two years on administrative home confinement, and he would have a four-to-ten-year suspended sentence "with a window of ten years after completion of his final year of home confinement." Id. at 570, 243 A.3d 1206.
With regard to the performance prong of the ineffective assistance of counsel test set forth in Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), we determined that the defendant's trial counsel failed to "adequately advise [him] about the applicable sentence enhancement and the merits of the State's plea offer relative to [his] likelihood of success at trial," and, thus, his performance fell below an objective standard of reasonableness. Id. at 576, 243 A.3d 1206.
As to the prejudice prong, we adopted the Supreme Court's approach in Lafler v. Cooper, 566 U.S. 156, 163-64, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012). Id. Under that approach, to demonstrate prejudice when the ineffective assistance has resulted in a defendant's rejection of a plea, the defendant must show that, but for his counsel's ineffective advice, "there is a reasonable probability that: (1) ‘the plea offer would have been presented to the court ...’; (2) ‘the court would have accepted its terms’; and (3) ‘the conviction or sentence, or both, under the offer's terms would have been less severe than under the judgment and sentence that in fact were imposed.’ " Id. at 577, 243 A.3d 1206 (quoting Lafler, 566 U.S. at 164, 132 S.Ct. 1376 ). We concluded that the defendant demonstrated prejudice under the Lafler test. Id. at 577-81, 243 A.3d 1206.
We then discussed the proper remedy. Id. at 581-84, 243 A.3d 1206. We again adopted the Supreme Court's approach in Lafler:
Fitzgerald, 173 N.H. at 581-82, 243 A.3d 1206 (footnote omitted).
We explained that the defendant acknowledged that the sole advantage that he would have received under the rejected plea was a lesser sentence. Id. at 582, 243 A.3d 1206. In light of that acknowledgement, we remanded to the trial court to allow it to "exercise [its] discretion in determining whether to resentence the defendant to either the term of imprisonment the government offered in the plea, the sentence he received at trial, or something in between." Id. at 583-84, 243 A.3d 1206. We explained that, in exercising that discretion, the trial court need not hold an evidentiary hearing to determine whether there was a reasonable probability that but for counsel's errors the defendant would have accepted the plea, because we had already made that determination. Id. at 582-83, 243 A.3d 1206. The defendant did not ask us to reconsider our decision.
On remand, the defendant asked that the trial court impose a sentence that was as close to the sentence offered in the rejected plea as possible, and the State asked the trial court to impose the same sentence that it had previously imposed. After holding a sentencing hearing over two days, the trial court adopted the State's recommendation, stating that its sentence was based upon its "review of the charges and convictions involving the Defendant, the applicable law, including the [remand order], and the pleadings and arguments made by respective counsel." The defendant unsuccessfully moved for reconsideration, and this appeal followed.
Generally, "trial judges are vested with broad discretionary powers with regard to sentencing." State v. Benner, 172 N.H. 194, 198, 211 A.3d 702 (2019) (quotation and brackets omitted). The trial court's discretion extends to determining the evidence to be considered at a sentencing hearing. State v. Castine, 172 N.H. 562, 567, 216 A.3d 951 (2019). We generally review a trial court's sentencing decision under our unsustainable exercise of discretion standard. Id. However, to the extent that the defendant argues that the sentencing decision violated his constitutional rights, we review that claim de novo. See State v. Willey, 163 N.H. 532, 541, 44 A.3d 431 (2012).
On appeal, the defendant first argues that the trial court unsustainably exercised its discretion and committed an error of law when it declined to impose a sentence that most closely approximated the sentence in the plea offer and, instead, imposed the same sentence that it had previously imposed. The defendant asserts that the re-imposed sentence failed to neutralize the taint of the ineffective assistance of counsel and place him in the same position he would have been had there been no violation of the right to counsel. He argues that, in this way, the trial court failed to comply with...
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