State v. Levey

• Decision Date: 27 April 1982
• Docket Number: No. 81-400,81-400
• Citation: 122 N.H. 375,445 A.2d 1089
• Parties: The STATE of New Hampshire v. Pamela S. LEVEY.
• Court: New Hampshire Supreme Court

Page 1089

445 A.2d 1089

122 N.H. 375

The STATE of New Hampshire v.Pamela S. LEVEY.

No. 81-400.

Supreme Court of New Hampshire.

April 27, 1982.

Gregory H. Smith, Atty. Gen. (Richard C. Nelson, Asst. Atty. Gen., on brief and orally), for the State.

Law Office of William H. Kennedy, Keene (Lawrence G. Brann, Keene, on brief and orally), for defendant.

KING, Chief Justice.

The defendant, Pamela S. Levey, was charged with driving while under the influence of intoxicating liquor, subsequent offense, in violation of RSA 262-A:62 I (Supp.1979), as amended byLaws 1981, 543:2.The second offense allegedly occurred on September 27, 1981, and the defendant's prior conviction was on July 24, 1981, in the Keene District Court.At the time of her first conviction, the defendant formally waived her right to be represented by counsel and pleaded guilty to the charge of driving while intoxicated.

Prior to the commencement of trial for her second offense, the defendant filed a written motion to have her case tried as a first offense because she asserted she was not aware that waiving her rights and pleading guilty to a first offense would affect her later.The defendant's first conviction was under the provisions of RSA 262-A:62 I (Supp.1979), which permitted a jail sentence for a subsequent offense, but did not provide for the imposition of a mandatory jail sentence.On August 29, 1981, the amendment to RSA 262-A:62 I became effective and provided for the imposition of a mandatory jail sentence for conviction of a subsequent offense.The Keene District Court(Davis, J.) transferred to this court the question presented by the defendant's motion.We conclude that the defendant may be charged with driving while intoxicated, subsequent offense.

The defendant first argues that, at the time of her first offense, her guilty plea and her waiver of counsel were not knowingly and intelligently made because she did not know at the time that a mandatory jail sentence could be imposed for a subsequent offense.While we agree that the defendant did not possess that knowledge, we cannot conclude that the absence of such knowledge invalidated her waiver of counsel or guilty plea.

In accepting a guilty plea, a court is not obligated to inform a defendant of all consequences of her plea.State v. Fournier, 118 N.H. 230, 231, 385 A.2d 223, 224(1978).Similarly, a defendant need not be aware of all the future effects the plea might have.Seeid. at 231, 385 A.2d at 224.Consequently, we conclude that the defendant's signing of a constitutionally valid waiver of counsel and acknowledgement of rights form sufficiently established that her guilty plea was made knowingly.SeeState v. Buckwold, 122 N.H. 111, ---, 441 A.2d 1165(1982).

Additionally, we conclude that the defendant's waiver of counsel was knowingly and intelligently made.She signed a constitutionally valid waiver form, and she has not rebutted the presumption which that waiver created.Seeid. at ---, 441 A.2d at 1166.Furthermore, counsel could not have supplied the defendant with the information she was lacking regarding a future change in the law which would set a harsher penalty for a second offense of driving while intoxicated than had been imposed previously.

The defendant next argues that RSA 262-A:62 I (Supp.1979) as amended violates the New Hampshire Constitution, pt. I, art. 23 by creating an ex post facto law.We disagree.The amendment to RSA 262-A:62 I (Supp.1979) did not increase the penalty imposed on offenses predating the effective date of the statute.Rather, the amendment created a penalty for an offense that would necessarily take place in the future.Merely allowing a conviction obtained before the amendment to be used in the assessment of the penalty for a subsequent offense does not violate the constitutional prohibition against ex post facto laws.SeeState v. Vashaw, 113 N.H. 636, 637-38, 312 A.2d 692, 693(1973)(offenses prior to statute can be used as basis for conviction as an habitual offender);see alsoState v. Heald, 120 N.H. 319, 325, 414 A.2d 1288, 1291-92(1980)(past criminal record may be a factor in determining sentence);cf.Baldasar v. Illinois, 446 U.S. 222, 223, 227-28, 100 S.Ct....