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The State of New Hampshire v. Josiah Davies

August 17, 2012


The opinion of the court was delivered by: Conboy, J.

Portsmouth District Court

Argued: May 3, 2012

The defendant, Josiah Davies, appeals an order of the Portsmouth District Court (Gardner, J.) partially denying his motion to withdraw his guilty plea and vacate his conviction. We affirm.

The defendant was charged with two counts of false imprisonment and one count of simple assault following a single incident of alleged domestic violence. On June 1, 2009, he appeared pro se for arraignment on the three class A misdemeanor charges. Prior to his arraignment, he spoke with the prosecutor regarding a potential plea agreement. During this discussion, the defendant indicated his intention to plead guilty, and then signed the acknowledgement and waiver of rights form that the prosecutor provided him. At this time, he was nineteen years old and had a GED and some technical college experience. The scheduled arraignment then went forward as a plea hearing.

The defendant's hearing followed other plea hearings and commenced with the trial court reading the complaints to him. The court then asked, "Sir, do you understand the nature of all three complaints?" to which the defendant responded, "Yes." Next, the court advised the defendant of his "absolute right to be represented by counsel," but the defendant indicated his intent to proceed pro se. Then, referencing its earlier colloquies with other defendants, the court asked, "Would you like me to review [your constitutional rights] again with you, or are you satisfied that you understand them?" The defendant replied, "I understand them."

Next, the court reviewed the acknowledgement and waiver of rights form with the defendant. The defendant authenticated his signature on the form, and indicated that he did not have any questions. After confirming that the defendant was not under the influence of any substances or medication that might impair his judgment, the court asked, "Sir, what is your plea?" to which he responded, "Guilty, I guess."

Following the defendant's plea, the prosecutor made an offer of proof. The court did not question the defendant regarding the State's offer, nor did the defendant comment on the offer. After hearing the State's sentencing recommendation and questioning the defendant regarding his personal circumstances, the trial court asked, "And you're satisfied with what you have worked out?" The defendant replied, "Yup." The court imposed the negotiated suspended sentence, which among other things, required the defendant to complete a batterer's evaluation within sixty days. The court again asked the defendant if he had any questions, and the defendant replied, "Nope."

The defendant failed to complete the batterer's evaluation within sixty days. Consequently, in September 2009, the State filed a motion to impose his suspended sentence. Thereafter, in February 2010, the State and the defendant's court-appointed counsel entered into an agreement to stay the State's motion, conditioned on his completion of the batterer's evaluation and compliance with its recommendations.

In November 2010, after repeatedly failing to comply with the recommendation that he participate in classes and counseling, the defendant moved to vacate his guilty pleas. He argued that the false imprisonment charges were defective because they did not allege that he confined the victims unlawfully. Additionally, he challenged the sufficiency of the court's plea colloquy, see Boykin v. Alabama, 395 U.S. 238, 242-43 (1969), arguing that the trial court failed to specifically review the elements of the simple assault charge. After a hearing, the trial court vacated his guilty pleas on the two false imprisonment charges, but found that he knowingly, voluntarily, and intelligently entered a guilty plea to the simple assault charge.

On appeal, the defendant argues that he did not enter a valid guilty plea because he was not advised of the essential elements of the simple assault charge. He contends, therefore, that his plea was not knowing, voluntary, and intelligent as required by Part I, Article 15 of the New Hampshire Constitution and the Fourteenth Amendment to the United States Constitution. See State v. Thornton, 140 N.H. 532, 536 (1995). We first address the defendant's claim under the State Constitution, and rely on federal law only to aid in our analysis. State v. Ball, 124 N.H. 226, 231-33 (1983). Allowing withdrawal of a plea rests within the sound discretion of the trial court, and we will not set aside its findings absent an unsustainable exercise of discretion. Thornton, 140 N.H at 537.

It is well established that to be valid, a guilty plea must be knowing, intelligent, and voluntary. E.g., State v. Dansereau, 157 N.H. 596, 603 (2008); see Boykin, 395 U.S. at 243. "A guilty plea does not qualify as intelligent unless the defendant first receives real notice of the true nature of the charge against him." State v. Arsenault, 153 N.H. 413, 416 (2006) (quotation omitted); see Henderson v. Morgan, 426 U.S. 637, 645 (1976) (noting plea is not voluntary unless defendant receives "real notice of the true nature of the charge against him, the first and most universally recognized requirement of due process" (quotation omitted)). Therefore, prior to pleading guilty, the defendant must be informed of every essential element of the alleged offense and the court must determine that the defendant understands the charge. State v. Kinne, 161 N.H. 41, 47 (2010).

To mount a successful collateral challenge to a guilty plea, the defendant bears the initial burden and must describe the specific manner in which his waiver of rights was in fact involuntary or without understanding, and must at least go forward with evidence sufficient to indicate that his specific claim presents a genuine issue for adjudication. State v. Offen, 156 N.H. 435, 438 (2007). If the defendant meets his initial burden, and if the record indicates that the trial court affirmatively inquired into the knowledge and volition of the defendant's plea, then the burden remains with the defendant to demonstrate by clear and convincing evidence that the trial court was wrong and that his plea was either involuntary or unknowing for the reason he specifically claims. Id. On the other hand, if there is no record or an inadequate record of the trial court's inquiries into the defendant's volition and knowledge, the burden rests on the State to respond to the defendant's claim by demonstrating to a clear and convincing degree that the plea was voluntary or knowing in the respect specifically challenged. Arsenault, 153 N.H. at 416.

Because the defendant seeks to collaterally attack his plea, he bears the initial burden. He argues that although the court read the simple assault complaint at the beginning of the hearing, "it did not explain to [him] what the complaint required the State to do in order to secure a simple assault conviction." In particular, he contends that he "did not understand what 'unprivileged' [physical contact] meant, and no one explained to him that it was an independent element of the offense that the State had to prove in order to secure a conviction." The defendant also points out that in his motion to vacate, he stated that at the time he entered his plea, he was nineteen years old and had limited exposure to the criminal justice system. Thus, the defendant carried his initial burden of describing the specific manner in which his plea was allegedly unknowing.

Next, we look to whether the record complies with Boykin. See Offen, 156 N.H. at 438. Relying on Arsenault, the defendant contends that the record is insufficient because the trial court failed to ensure that he adequately understood the nature and elements of the charge. He maintains that reading the complaint to a pro se ...

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