State v. Fitzgerald
| Decision Date | 22 September 2020 |
| Docket Number | No. 2019-0280,2019-0280 |
| Citation | 243 A.3d 1206,173 N.H. 564 |
| Parties | The STATE of New Hampshire v. Keith FITZGERALD |
| Court | New Hampshire Supreme Court |
Gordon J. MacDonald, attorney general (Gregory M. Albert, assistant attorney general, on the brief and orally), for the State.
Ramsdell Law Firm, of Concord (Michael D. Ramsdell on the brief and orally), for the defendant.
The defendant, Keith Fitzgerald, appeals an order of the Superior Court (Smukler, J.) denying his motion for a new trial based on ineffective assistance of counsel. After an evidentiary hearing on the motion, the court ruled that the defendant failed to sustain his burden of showing that the outcome of his case would have been different but for his counsel's performance. On appeal, the defendant argues that the trial court erred by concluding that, even if defense counsel rendered ineffective assistance, the defendant was not prejudiced by: (1) defense counsel's failure to adequately advise the defendant regarding the merits of the State's plea offer; or (2) counsel's failure either to object to the trial court's jury instructions on a sentence enhancement provision on the basis that it had not been presented to the grand jury for indictment, or to move for dismissal of the indictment on that same basis. For the reasons that follow, we affirm in part, reverse in part, and remand for further proceedings.
The trial court found, or the record supports, the following facts. In December 2015, the defendant was indicted on five counts of theft by unauthorized taking in violation of RSA 637:3 (2016). The following appears near the bottom of each indictment: " RSA 637:3 (Class A Felony); 651:6" and "Penalty: NHSP 7 ½ - 15 years and up to $4,000 fine." Defense counsel, whose assistance is alleged to have been ineffective, was retained by the defendant in March 2016, after the defendant's prior counsel withdrew. Prior to representing the defendant, defense counsel had tried only one felony case, which was a sexual assault case.
Defense counsel, the defendant, and the prosecutor engaged in several plea discussions leading up to trial. In January 2016, the State offered a plea agreement through the defendant's previous counsel of five to ten years, stand committed, with restitution in the amount of $409,980 on one indictment and suspended incarceration on the four remaining indictments. The letter containing the plea offer also purported "to notify [the defendant] of the possible application of RSA 651:6 to each of the five indictments in this case based upon RSA 651:6, I(l)." RSA 651:6, (I)(l) (2016) provides that a defendant may be sentenced pursuant to the sentence enhancements contained in RSA 651:6, III (2016) if the defendant:
Has committed or attempted to commit any of the crimes defined in RSA 637 or RSA 638 against a victim who is 65 years of age or older or who has a physical or mental disability
and that in perpetrating the crime, the defendant intended to take advantage of the victim's age or a physical or mental condition that impaired the victim's ability to manage his or her property or financial resources or to protect his or her rights or interests.
In June 2016, defense counsel drafted a counteroffer that included the following terms: payment of $409,980 in restitution on a schedule of the defendant's choosing; a plea of guilty to all counts reduced to Class A misdemeanors; one year in the house of corrections on each count to run concurrently, all suspended for five years good behavior; and community service. Before forwarding the counteroffer to the State, defense counsel emailed it to the defendant for his consideration. In that e-mail he stated, "As we have discussed in detail, you do not have to plead guilty at all, and you have a right to have a trial."
The parties were unable to reach a plea agreement at the first settlement conference in August 2016, but they filed an assented-to motion stating that the "parties engaged in productive settlement discussions" and "are in agreement that the defendant have some time to consider the State's current offer." Following that conference, defense counsel sent an e-mail requesting the State to reiterate its most recent plea offer. The State sent a reply e-mail restating its latest offer, explaining that, in exchange for pleading guilty to each of the five pending charges, the defendant would serve two years in the Belknap County House of Corrections, followed by two years on administrative home confinement. Additionally, the defendant would have a four to ten-year suspended sentence with a window of ten years after completion of his final year of home confinement. Defense counsel responded to the State's offer with the counteroffer that he and the defendant had discussed in June 2016. In his e-mail to the State, defense counsel explained that the defendant "has not ruled out a plea including some incarceration, so it makes sense to return to the second day of the Settlement Conference regardless of your response [to the defendant's counteroffer]." The State rejected the defendant's counteroffer and stated that its most recent offer was "essentially as low as the State was willing to go on a negotiated disposition."
Defense counsel forwarded the State's e-mail to the defendant and, in the ensuing string of e-mails between the two, wrote that he was not "in any way opposed to [the defendant] taking this case to trial." Defense counsel indicated to the defendant that he believed there was a very good chance that a jury would find a reasonable doubt as to whether the defendant was not authorized by his father to have the money at issue. Prior to trial, the defendant told defense counsel in an e-mail that he was feeling good about their "direction" for trial. Defense counsel replied, "I am feeling good about it too."
At trial, the jury heard evidence that the defendant made a number of 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 moved his father's assets from accounts and trusts in his father's name to accounts only in the defendant's name. The jury also heard testimony from the defendant that his father authorized the transactions. On cross-examination, the State elicited a number of admissions from the defendant, which defense counsel did not anticipate, that severely damaged the defendant's credibility and undercut his defense.
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 the victim's age. Defense counsel did not object to these instructions, and never moved for dismissal of the indictments, despite the fact that the sentence enhancement provision was never presented to the grand jury. The jury returned verdicts of guilty on all five counts of theft by unauthorized taking. Additionally, the jury specified that it had determined that the State had proven the sentence enhancement factors beyond a reasonable doubt. Ultimately, the court sentenced the defendant to a term of not less than nine and one-half years and not more than 25 years in the New Hampshire State Prison.
Following his conviction, the defendant sent an e-mail to defense counsel with the subject line "Elder Abuse (over 65 years old) charge?" in which the defendant asked: In response, defense counsel informed the defendant that
On January 25, 2019, the court held an evidentiary hearing on the defendant's motion for a new trial based on ineffective assistance of counsel. In support of his claim, the defendant presented testimony of defense counsel. When asked about the advice that he provided to the defendant regarding the sentence enhancement provision, defense counsel testified that he did not "recall specifically talking to [the defendant] about the distinction between the Class A felonies and the extended term." Counsel further testified that, "having reviewed the file, I don't see any documents where I spelled [the sentence enhancement provision] out for [the defendant] explicitly." Counsel also testified that he had believed that if the defendant were to be convicted at trial, it would have been unlikely that he would have received a sentence of more than three years. However, the defendant's potential sentencing exposure was actually 150 years due to the sentence enhancement contained in RSA 651:6. Defense counsel further testified that he gave the defendant the impression that the sentence he might receive if he were convicted at trial would be far less significant than it turned out to be, and that the defendant relied upon counsel's opinion in deciding whether he should reject the State's plea offer and go to trial.
When testifying about what steps were taken to determine the defendant's potential sentencing exposure, defense counsel explained that he and the defendant conducted research and shared "various verdicts associated with cases similar to this and cases that are not as similar but similar." On cross-examination, defense counsel testified that his research did not include "actual court document cases, it was more press — things that were in the press." Despite those efforts, defense counsel did not locate the most comparable case to the defendant's — in which the same judge imposed a similar sentence in a case involving similar theft charges — and was unaware of the sentence imposed in that case as a result. Cou...
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State v. Fitzgerald
...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) (remanding for resentencing). On appeal, the defendant argues that the trial court: (1) unsustainably exercised it......
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State v. Fitzgerald
...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 (2020) (remanding for resentencing). On appeal, the defendant that the trial court: (1) unsustainably exercised its discretion an......
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State v. Marino
... ... See ... Wilbur, 171 N.H. at 449 ... Because ... the standard for determining whether a defendant has received ... ineffective assistance of counsel is the same under both the ... State and Federal Constitutions, State v ... Fitzgerald, 173 N.H. 564, 584 (2020), we reach the same ... result under the Federal Constitution as we do under the ... State Constitution. Accordingly, we conclude that the trial ... court did not err in denying Marino's motion for a new ... trial ... ...