State v. Grondin

• Decision Date: 30 August 1989
• Docket Number: 88-368 and 88-485,Nos. 88-320,s. 88-320
• Citation: 563 A.2d 435,132 N.H. 194
• Parties: The STATE of New Hampshire v. Leo GRONDIN.
• Court: New Hampshire Supreme Court

Page 435

563 A.2d 435

132 N.H. 194

The STATE of New Hampshire v. Leo GRONDIN.

Nos. 88-320, 88-368 and 88-485.

Supreme Court of New Hampshire.

Aug. 30, 1989.

John P. Arnold, Atty. Gen. (Robert E. Dunn, Jr., Asst. Atty. Gen., on the brief and orally), for the State.

James E. Duggan, Appellate Defender, Concord, by brief and orally, for defendant.

SOUTER, Justice.

The Superior Court (Nadeau, J.) dismissed four indictments charging violations of a motor vehicle habitual offender order, thereby sustaining a collateral attack on the order based on constitutional deficiencies said to infect the convictions on which the order was predicated. In this consolidation of appeals by the State, we reverse.

During the twelve months ending in February, 1985, the defendant, Leo Grondin, was convicted three times in the Rochester District Court of operating a motor vehicle after suspension of his license, RSA 263:64, was convicted once of speeding, RSA 265:60, and once of driving an uninspected vehicle, RSA 266:5. As a consequence of his record, and following a hearing at which he was represented by counsel, the superior court found him to be a motor vehicle habitual offender as of February 27, 1985, RSA 262:21, IV, issued an order prohibiting him from operating a motor vehicle until such time as his license might be restored, RSA 262:24, and advised him that any violation of the order would subject him to imprisonment from one to five years, RSA 262:23. He did not appeal.

Although the record indicates that the defendant later admitted that he understood the order to be a revocation of his license under the habitual offender law, according to his same admission he operated a motor vehicle on a public highway on October 28, 1986, for which he was indicted, as he was for operating again on December 7, 1986. Following these two indictments he was indicted for unlawful operation on January 3, 1987, and was indicted a fourth time for operation on January 24, 1987.

In June, 1987, he moved the superior court to vacate the habitual offender order, alleging that the three underlying convictions for operating after suspension rested on guilty pleas that "were not made knowingly or intelligently," in that he entered the pleas "without benefit of counsel, and without ... knowing that he would be subject to a finding of an habitual offender as a result...." The Trial Judge (Nadeau, J.) did not dwell on the adequacy of these claims to State constitutional infirmities, but denied the motion on the ground that there was no deficiency in the habitual offender proceeding, at which the defendant had been represented by counsel, and which had resulted in an order personally served upon him.

The defendant then addressed the Rochester District Court with a motion to vacate the guilty pleas that had resulted in two of the three misdemeanor convictions underlying the habitual offender order. He did not notify the county attorney of this proceeding, and a police officer represented the State at the hearing, after which the Court (Jones, J.) granted the motion. The county attorney's subsequent attempt to enter the proceeding by motion for reconsideration was denied.

The district court did not indicate whether the defendant had appeared without counsel in the underlying prosecutions, but found that the forms on which the defendant had acknowledged his rights in those proceedings had not been signed by the district court judge and that the defendant "did not understand the acknowledgment of rights form when he signed the same." The record indicates that the defendant was subsequently retried on one of the charges, was found guilty, and appealed.

With the two convictions vacated, the defendant filed three motions in the superior court to dismiss the four pending indictments. The appellate record contains two of the motions, as well as transcripts of two hearings held on them, and the order of Nadeau, J., ruling on the first of them. No evidence was offered, and the superior court relied on the district court's order in assuming that the defendant had been denied constitutional rights, including the right to counsel, at the district court proceedings. The superior court relied on Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979), and Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980), in ruling that dismissal was required, having concluded that State v. Cook, 125 N.H. 452, 481 A.2d 823 (1984), was not in point, since it dealt with the predicate effect only of violation, as distinguished from misdemeanor, convictions. The superior court order did not refer to Lewis v. United States, 445 U.S. 55, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980), as applied in Cook, or to State v. Lemire, 125 N.H. 461, 481 A.2d 820 (1984), decided immediately after Cook, which held that the defendant charged with violating an habitual-offender certification resting on misdemeanors as well as violations was not generally entitled to "attack his habitual-offender finding [collaterally], after having failed to appeal it." Id. at 462, 481 A.2d at 821.

In granting the motions to dismiss the four indictments, based on post-indictment findings that the convictions on which the habitual offender order rested were subject to constitutional infirmities, the trial court in effect sustained a collateral attack on that order as a defense to an indictment charging its violation. Since Lemire held that a defendant was not entitled to collateral review in that circumstance, this appeal calls for us to examine the vitality and applicability of Lemire, which we follow in reversing the order under appeal.

We should say here that neither the defendants who mounted collateral attacks in Cook and Lemire, nor the defendant now before us, have claimed a statutory right to do so under the habitual offender law itself. Despite this implicit concession, we should pause long enough to indicate our agreement with the defendant's assumption that no such statutory right exists, lest we appear unduly ready to reach constitutional issues that might not require decision, see New Hampshire Ins. Co. v. Duvall, 115 N.H. 215, 218, 337 A.2d 533, 535 (1975); Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 345-48, 56 S.Ct. 466, 482-83, 80 L.Ed. 688 (1936) (Brandeis, J., concurring).

The text of the statute not only fails to provide expressly for any collateral review of an order at the behest of a defendant indicted for its violation, but indicates the legislature's intent to afford no such review. It is instructive to note that RSA 262:19, I (Supp.1988) (for text in force in 1985, identical in relevant respects, see Laws 1983, 373:2) provides that the abstract of the record of any person sought to be certified as an habitual offender shall be prima facie evidence that the individual was "duly" convicted of the offenses listed, thus indicating that the validity of a predicate conviction may be an issue for consideration in the proceeding held to determine whether a named respondent is an habitual offender. See State v. Buckwold, 122 N.H. 111, 112, 441 A.2d 1165, 1166 (1982).

By way of contrast, however, the provisions penalizing operation on the highway by someone so certified and enjoined from driving contain no indication that anything but the facts of certification, prohibition and violation are relevant. Thus, it is unlawful for one declared to be an habitual offender to drive on a highway "while an order ... prohibiting such driving remains in effect." RSA 262:23, I (Supp.1988) (for text in force in 1985, similar in relevant respects, see Laws 1981, 543:8). If anyone "found" to be an habitual offender is convicted of violating the prohibitory order, a specified minimum sentence is mandatory. Id. The quoted language contains no suggestion that the validity of an order once issued might be questioned after indictment by reexamining the convictions on which it was predicated, and no indication that a court trying an indictment for violating an order should look behind the order to the predicate convictions. The validity of those convictions was, then, apparently meant to be open to examination before being considered in support of an habitual offender order, but not for the purpose of nullifying such an order claimed to have been violated.

In the absence of any statutory authorization for collateral review at the behest of a defendant charged with its violation, the constitutional vulnerability of an order to such a collateral attack was addressed in a sequence of two opinions of even date with each other. State v. Cook, 125 N.H. 452, 481 A.2d 823, held, inter alia, that neither the specific guarantee of counsel nor the general guarantee of due process contained in part I, article 15 of the Constitution of New Hampshire forbad the use of uncounselled violation convictions as predicates for an habitual offender order. Cook found Lewis v. United States, 445 U.S. 55, 100 S.Ct. 915, in point, and Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, inapposite, in reaching the same result under the sixth and fourteenth amendments of the National Constitution. In the companion case of State v. Lemire, 125 N.H. 461, 481 A.2d 820, we held, inter alia, that an habitual offender order resting on misdemeanor as well as violation convictions was not generally subject to collateral attack, although we recognized "the inherent power of any court to correct errors, if such there be, concerning the court's jurisdiction over the party or the subject matter of the litigation." Id. at 464, 481 A.2d at 823 (citing Paragon Homes Inc. v. Gagnon, 110 N.H. 279, 266 A.2d 207 (1970); Sununu v. Clamshell Alliance, 122 N.H. 668, 448 A.2d 431 (1982) (setting aside default judgment)).

The defendant seeks to rely on this latter element of the Lemire opinion, by arguing that the superior court's consideration of the collateral attack on the habitual offender order in this case was...