Argued: November 17, 2016
Barnard, senior assistant appellate defender, of Concord, on
the brief and orally, for the petitioner.
A. Foster, attorney general (Sean R. Locke, assistant
attorney general, on the brief and orally), for the State.
petitioner, Alberto Ramos, appeals an order of the Superior
Court (Delker, J.) dismissing his ineffective
assistance of counsel (IAC) claim asserting that his trial
counsel failed to inform him, prior to pleading guilty to
felony charges, that he could be transferred to a prison in
another state. We affirm.
following facts are taken from the trial court's order or
otherwise found in the record. In 1998, pursuant to a plea
agreement, the petitioner pleaded guilty to second degree
murder and attempted escape. Pursuant to the agreement, he
was sentenced to 28 years to life. Some 15 years later, in
April 2013, the petitioner was transferred from the New
Hampshire State Prison to a Florida prison. In June 2013, he
filed a habeas corpus petition as a self-represented party.
After the appointment of counsel, the petitioner supplemented
his habeas corpus petition with an IAC claim, alleging that
he was "denied his right to the effective assistance of
counsel" because his trial attorneys "failed to
ensure that he made a knowing waiver of his rights" by
not telling him when he pleaded guilty that he could be
transferred to a prison outside of New Hampshire. (Bolding
and capitalization omitted.) The State moved to dismiss the
telephonic hearing, the trial court dismissed the
petitioner's IAC claim, ruling that, because "the
possibility of being sent out of state is a collateral
consequence, " and the "fail[ure] to inform a
client of the collateral consequences of his conviction . . .
does not constitute ineffective assistance of counsel, "
he could not "demonstrate [that] his trial attorneys
were ineffective by failing to warn him that he could serve
his time out of state." (Emphasis and capitalization
omitted.) This appeal followed.
an appeal from an order granting a motion to dismiss, we
assume the truth of both the facts alleged in the
[petitioner's] pleadings and all reasonable inferences
therefrom as construed most favorably to the
[petitioner]." Cross v. Warden, N.H. State
Prison, 138 N.H. 591, 593 (1994). "We need not,
however, accept allegations . . . that are merely conclusions
of law." Suprenant v. Mulcrone, 163 N.H. 529,
530 (2012); see Cross, 138 N.H. at 593. "We
then engage in a threshold inquiry, testing the facts alleged
in the pleadings against the applicable law."
Suprenant, 163 N.H. at 530-31. "We will uphold
the trial court's grant of a motion to dismiss if the
facts pleaded do not constitute a basis for legal
petitioner's claim of ineffective assistance of counsel
rests upon Part I, Article 15 of the State Constitution and
the Sixth and Fourteenth Amendments to the Federal
Constitution. We first address the petitioner's claim
under the State Constitution and rely upon federal law only
to aid our analysis. State v. Ball, 124 N.H. 226,
State and Federal Constitutions guarantee a criminal
defendant reasonably competent assistance of counsel.
State v. Sharkey, 155 N.H. 638, 640 (2007);
see U.S. CONST. amends. VI and XIV; N.H. CONST. pt.
I, art. 15. Generally, to resolve an IAC claim, we apply the
two-pronged Strickland test, which requires a
criminal defendant to demonstrate that his or her defense
counsel provided constitutionally deficient performance that
resulted in prejudice. State v. Whittaker, 158 N.H.
762, 768 (2009); see Strickland v. Washington, 466
U.S. 668, 687 (1984). However, when the alleged deficient
performance is defense counsel's failure to inform a
client of a particular consequence of a guilty plea, we first
determine whether Strickland applies at all. See
Wellington v. Comm'r, Dept. of Corrections, 140 N.H.
399, 400-02 (1995). To do so, we examine whether the
particular consequence was direct or collateral to the plea.
See id. If collateral, the Strickland test
does not apply. See id. at 402. If direct, the
protections against IAC are triggered and we undertake a
Strickland analysis. Cf. id. at
402 (holding that the Strickland test does not apply
to IAC claims involving collateral consequences).
petitioner argues that this framework contravenes the United
States Supreme Court's decision in Padilla v.
Kentucky, 559 U.S. 356, 364-66 (2010), and our decision
in State v. Ortiz, 163 N.H. 506, 512-14 (2012).
According to the petitioner, Padilla and
Ortiz render the distinction between direct and
collateral consequences immaterial to an IAC claim. He
contends that the distinction applies only in the context of
determining whether a trial court has violated a criminal
defendant's due process rights by accepting his or her
guilty plea without advising a defendant of the potential
consequences. Consequently, he argues that his IAC claim
concerning his trial counsel's failure to inform him of a
collateral consequence should be evaluated under the
purposes of this appeal, we assume without deciding that we
would adopt Padilla in construing the State
Constitution and that we would apply it retroactively to the
petitioner's IAC claim. But see Chaidez v. United
States, 133 S.Ct. 1103, 1107-11 (2013) (holding that
Padilla applies only prospectively under the Federal
Constitution). Nevertheless, we disagree with the
petitioner's assertion that Padilla is
Padilla, the Supreme Court neither mandated nor
rejected the "distinction between direct and collateral
consequences to define the scope of constitutionally
'reasonable professional assistance' required under
Strickland." Padilla, 559 U.S at 365.
To the contrary, the Court established that deportation is a
singular exception to the direct/collateral consequences
model because deportation is "uniquely difficult to
classify as either." Id. at 366. Thus, in
Padilla, the Supreme Court held that an
attorney's failure to warn a client that a guilty plea
would result in deportation could constitute IAC and that
such a claim should be evaluated under the
Strickland test. Id. at 365-66. In
Chaidez, the Court explained that "in
Padilla [it] did not eschew the direct-collateral
divide across the board, " but rather "relied on