State v. Allegra

• Decision Date: 09 October 1987
• Docket Number: No. 84-602,84-602
• Citation: 129 N.H. 720,533 A.2d 338
• Parties: The STATE of New Hampshire v. Joseph A. ALLEGRA.
• Court: New Hampshire Supreme Court

Page 338

533 A.2d 338

129 N.H. 720

The STATE of New Hampshire v. Joseph A. ALLEGRA.

No. 84-602.

Supreme Court of New Hampshire.

Oct. 9, 1987.

Stephen E. Merrill, Atty. Gen. (T. David Plourde, Asst. Atty. Gen., on the brief and orally), for the State.

McNamara, Larsen & Schuster P.A., Lebanon (Mark A. Larsen, Lebanon, on the brief and orally), for defendant.

SOUTER, Justice.

The defendant appeals from an order of the Superior Court (Dickson, J.) denying his motion for a new trial on related charges of forgery and attempted theft by deception. He claims to have been denied the effective assistance of counsel and argues that the trial court should have found that in four instances he was prejudiced by performance of trial counsel that fell below the standard of reasonable competence: when counsel (1) failed to move for dismissal of the class B felony forgery indictment that in fact charged only a misdemeanor; (2) failed to object to repeated jury instructions that materially altered the forgery charge; (3) failed to object to the introduction of extrinsic evidence of bad character; and (4) failed to move to suppress evidence seized under a warrant to search the defendant's house. Although we conclude that the trial court erred in failing to find that counsel's performance fell below the standard of reasonable competence in the second of these instances, the defendant has not demonstrated constitutionally cognizable prejudice. Because, however, the sentencing determinations could have been affected by counsel's failure to challenge the forgery indictment as charging only a misdemeanor, we remand the case for reconsideration of the sentences.

After a storm had damaged an advertising sign maintained by the defendant in his business, Public Service Company of New Hampshire disconnected the sign's power supply on December 8, 1983. The power company apprised the defendant of the damage and disconnection by a letter dated December 7, addressed to the defendant's business but directed to the defendant at a post office box address. On December 8, the defendant arranged to cover the sign under an existing insurance policy, although he did not disclose the earlier damage for which he submitted a claim under the policy in January 1984. The supporting documentation for the claim which he provided at that time included a copy of the letter from the Public Service Company, the date of which had been altered from December 7 to December 19, 1983.

Before the insurer paid the claim, however, an informer told the police that the defendant had submitted a fraudulent claim, using the altered letter from the power company. The police verified the fact of the claim, and the date the insurance coverage was added. They then compared the Public Service Company's copy of the letter with the copy submitted by the defendant to the insurance agent. They concluded that the date on the letter submitted with the claim had been altered with a typewriter having somewhat larger characters than those on the machine used by the power company and, on the basis of this information, obtained a warrant to search the defendant's house for, inter alia, an unaltered copy of the letter and the typewriter used to change its date. They found a copy bearing the correct date, which the State introduced in evidence at the defendant's ensuing trial.

After his conviction, the defendant filed a series of motions for new trial on grounds of ineffective assistance of counsel. After these were denied, the defendant's most recent counsel brought this appeal, resting it on both State and federal grounds raised in the superior court.

We have previously held that the same objective standard of reasonable competence governs claims of ineffective assistance, whether raised under part I, article 15 of the Constitution of New Hampshire or under the sixth and fourteenth amendments of the National Constitution, State v. Faragi, 127 N.H. 1, 4-5, 498 A.2d 723, 726 (1985), and we therefore do not discuss the federal claim separately from our State analysis, see State v. Ball, 124 N.H. 226, 232, 471 A.2d 347, 351 (1983).

Under the procedure detailed in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a defendant claiming post-trial relief based on inadequate representation must first demonstrate that his lawyer's performance fell below the objective standard of reasonably effective assistance, by errors so serious that he was not in fact functioning as counsel guaranteed by the Constitutions. Id. at 687, 104 S.Ct. at 2064. This burden reflects the strong initial presumption that counsel's actions fall within the limits of reasonable conduct, "bearing in mind the limitless variety of strategic and tactical decisions that counsel must make." Faragi, supra 127 N.H. at 5, 498 A.2d at 726. Second, the defendant must show active prejudice to the degree of a reasonable probability that the result of the proceeding would have been different, had it not been for counsel's deficient performance. Strickland, supra at 466 U.S. 694, 104 S.Ct. at 2068; Faragi, supra 127 N.H. at 5, 498 A.2d at 726. We proceed to this dual inquiry, then, with respect to each of the examples adduced as instances of inadequate representation.

The first was trial counsel's failure to move for dismissal of the forgery indictment on the ground that it merely charged a misdemeanor. This claim of incompetence initially raises two distinct issues: whether the indictment charged only a misdemeanor, and whether counsel should have moved to dismiss it. The trial court apparently thought it was uncertain whether the indictment charged a felony or a misdemeanor, and concluded that the uncertainty left counsel free to move for dismissal or not, as a tactical matter not subject to review. Before us, the defendant stands his ground in maintaining that the indictment charged only a misdemeanor, and the State has taken the position that it charged a felony. The defendant is correct.

Forgery is defined in terms of the fraudulent preparation or alteration of a written document, or the fraudulent use of such an altered writing. RSA 638:1, I(a) and (b). RSA 638:1, III and IV grade the seriousness of the offense by these provisions:

"III. Forgery is a class B felony if the writing is or purports to be:

(a) A security, revenue stamp, or any other instrument issued by a government, or any agency thereof; or

(b) A check, an issue of stocks, bonds, or any other instrument representing an interest in or a claim against property, or a pecuniary interest in or claim against any person or enterprise.

IV. All other forgery is a misdemeanor."

The forgery indictment in this case charged that the defendant "did purposely alter the writing of the Public Service Company ... by changing the date on a disconnect notice [i.e., letter] sent to Joseph Allegra...." The indictment included the notation, "Class B Felony."

The notation was clearly wrong. The letter or "disconnect notice" is not one of the documents specifically listed in RSA 638:1, III(a) and (b). Nor does it fall within the latter subparagraph's general category of "any other instrument representing an interest in or a claim against property, or a pecuniary interest in or claim against any person or enterprise." RSA 638:1, III(b). The document was a letter informing the defendant that the company had turned off the power to an advertising sign damaged by wind. It created no property interest and independently predicated no claim of title or entitlement in the manner of a check, a stock certificate, or a bond. While the State points out that the defendant employed the letter to support his claim for insurance reimbursement, this position fails to recognize the distinction between the nature of the document and the nature of the defendant's independent use of that document. There is no serious argument for classifying the letter under RSA 638:1, III(a) or (b); its alteration was necessarily governed under the heading of "other forgery," which is a misdemeanor under RSA 638:1, IV.

It does not follow, however, that the indictment was invalid or that counsel should have moved for its dismissal. Although RSA 601:1 provides that felonies must be charged by indictment, there is no statutory prohibition against indicting for a misdemeanor. Despite the virtually universal practice of charging misdemeanors by complaint or information, the common-law practice, which is regarded as constitutionally permissible, allowed misdemeanor charges beyond the jurisdiction of a justice of the peace to be brought by indictment or information. See State v. Gerry, 68 N.H. 495, 497, 38 A. 272, 273 (1896). Therefore, although the instant forgery charge could have been commenced by complaint in a district court, no statutory or constitutional right of the defendant was infringed by indicting him in the superior court. And while the superior court could have dismissed the indictment because it charged an offense within the original jurisdiction of a district court to try, the superior court would have had discretion to retain jurisdiction, RSA 592-A:1; State v. Blouin, 110 N.H. 202, 263 A.2d 677 (1970), and probably would have done so for reasons of judicial economy, even if the defendant had moved for dismissal of the indictment. It would have been obvious that the evidence to be offered on the attempted theft charge would overlap substantially with evidence of the alleged forgery, and the trial court undoubtedly would have seen the practical sense in trying the two together. We therefore do not interpret the failure of original trial counsel to seek dismissal of the forgery indictment as necessarily the product of professional incompetence. In any event, even if our opinion were otherwise, we would conclude that the defendant had not demonstrated a probability of resulting prejudice, because his sentence on the forgery conviction was not more than a misdemeanor...