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State v. Vogt

Supreme Court of New Hampshire

January 31, 2013

State of New Hampshire
v.
Walter Vogt

The defendant, Walter Vogt, appeals an order of the trial court denying his motion to vacate his guilty plea to a charge of operating after suspension, subsequent offense. See RSA 263:64 (Supp. 2012). He argues that his plea was not knowing, intelligent, and voluntary because the prosecutor advised him that he would not lose his license as a result of his guilty plea. We affirm.

We briefly summarize the facts in the record. The defendant pled guilty to operating after suspension, subsequent offense in February 2010. He signed an acknowledgement of rights form and the court conducted a plea colloquy. In March 2011, the defendant filed a motion to vacate his plea in which he stated that: (1) he was unrepresented by counsel at the time of his plea; (2) he was unaware of the significant consequences to his license status as it relates to being a habitual offender; and (3) he believed he would "merely pay a fine as a result of operation after suspension and would not suffer any loss of license."

A guilty plea must be knowing, intelligent, and voluntary to be valid. State v. Ortiz, 163 N.H. 506, 509 (2012). Thus, a defendant must voluntarily waive his rights and fully understand the elements of the offense to which he is pleading, the direct consequences of the plea, and the rights he is forfeiting. Id. In a collateral attack on a guilty plea, the defendant bears the initial burden and must describe the specific manner in which the waiver 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. Id. 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 defendant has the burden 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.

We have consistently held that, as a matter of constitutional due process, the defendant must be advised of the direct consequences of entering a guilty plea, but not the potential collateral consequences, in order for a guilty plea to be considered knowing. Id. at 510. "Direct consequences may be described as those within the sentencing authority of the trial court, as opposed to the many other consequences to a defendant that may result from a criminal conviction." Id. (quotation omitted); see State v. Elliott, 133 N.H. 190, 192 (1990) ("The possible significance of a guilty verdict for purposes of the habitual offender act is a classic example of a conviction's consequence that is collateral.").

To the extent that the defendant seeks to link the ineffective assistance of counsel analysis relied upon in Padilla v. Kentucky, 130 S.Ct. 1473 (2010), to his claim of error, we note, first, that he was unrepresented by counsel at the time of his plea, and, second, that we rejected a similar attempt by the defendant in Ortiz. As we observed in Ortiz, the standards applied in reviewing the effectiveness of representation of defense counsel during a plea colloquy are different and higher than those imposed upon a trial judge, who often knows very little about the defendant appearing before him or her to enter a guilty plea. Ortiz, 163 N.H. at 512.

We are not persuaded by the defendant's argument that an inadequate record of the plea colloquy existed and that the burden shifted to the State to demonstrate that his plea was knowing and voluntary. Nor do we agree that the trial court was required to accept his assertion that the prosecutor misrepresented the collateral effects of his guilty plea, particularly in light of the prosecutor's testimony. Defense counsel conceded at the hearing on the defendant's motion to vacate his plea that, at the time of the hearing on his guilty plea, the trial court conducted a brief colloquy with the defendant that included the elements of the offense with which he was charged, and that he advised that court that he had read the acknowledgment of rights form that he signed. That form specifically provided: "I understand that as few as three motor vehicle convictions including this one may result in my being declared an HABITUAL OFFENDER."

Based upon the record before us, we conclude that the defendant failed to meet his burden to demonstrate that his plea was unknowing. We affirm the decision of the trial court.

Affirmed.

HICKS, LYNN, and BASSETT, JJ., ...


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