Argued: November 16, 2016
A. Foster, attorney general (Sean R. Locke, assistant
attorney general, on the brief and orally), for the State.
& Utter, P.A., of Manchester (Philip H. Utter on the
brief and orally), for the defendant.
defendant, Paul R. Santamaria, appeals an order of the
Superior Court (MacLeod, J.) dismissing his petition
for a writ of coram nobis. We affirm.
record supports the following facts. On June 10, 1998, the
defendant was convicted of first degree assault. His trial
counsel filed a motion to set aside the verdict, which the
court denied. Subsequently, the court sentenced the defendant
to incarceration for twelve months. The defendant's trial
counsel withdrew from the case and, through appellate
counsel, the defendant appealed to this court, challenging
the sufficiency of the evidence at trial and the trial
court's decision to permit a police officer to testify as
an expert witness. See State v. Santamaria, 145 N.H.
138, 139 (2000). We affirmed his conviction. See id.
December 30, 2014, sixteen years after his conviction, the
defendant filed a petition for a writ of coram nobis
seeking to have his conviction vacated for ineffective
assistance of trial counsel. The trial court denied the
defendant's petition, ruling that he was procedurally
barred because he "could have, and should have, raised
this claim earlier either on direct appeal, in a motion for a
new trial, or in a habeas corpus petition, " and because
he failed to show "sound reasons" for failing to
seek proper relief earlier. (Quotation omitted.) This appeal
case requires us for the first time to discuss the
extraordinary writ of coram nobis. See State v.
Almodovar, 158 N.H. 548, 550 (2009) (concluding, without
discussing, the defendant's appeal was not moot because
he could file a writ of coram nobis). In so
doing, we make clear that, because the parties have not
argued otherwise, we discuss only the common law writ of
coram nobis. We express no opinion as to whether the
writ has a second source of authority in our State
Constitution. See Trujillo v. State, 310 P.3d 594,
599-600 (Nev. 2013) (determining that the writ of coram
nobis is authorized by the Nevada Constitution).
writ of coram nobis is an ancient writ that
developed in sixteenth century England." Id. at
597. The First Circuit Court of Appeals has described the
writ as the "criminal-law equivalent" of a
"Hail Mary pass." United States v. George,
676 F.3d 249, 251 (1st Cir. 2012). The writ addresses errors
"discovered when the petitioner is no longer in custody
and therefore cannot avail himself of the writ of habeas
corpus." M. Diane Duszak, Note,
Post-McNally Review of Invalid Convictions Through the
Writ of Coram Nobis, 58 Fordham L. Rev. 979, 979 (1990).
Granting such an extraordinary writ is reserved for the
rarest of cases. See George, 676 F.3d at 254
(stating that "successful petitions for coram nobis are
the writ of coram nobis existed within the body of
English common law prior to adoption of our constitution, it
continues to exist as a matter of New Hampshire common law so
long as it is not "repugnant to the rights and liberties
contained in [our] constitution." N.H. CONST. pt. II,
art. 90; Dennett v. Dennett, 43 N.H. 499, 502 (1862)
("It has been long settled, and very often decided, that
the body of the common law, and the English statutes in
amendment of it . . . were in force here . . . and they have
been continued in force by the constitution, so far as they
are not repugnant to that instrument . . . .");
State v. Rollins, 8 N.H. 550, 563-65 (1837)
(interpreting Part II, Article 90 as recognizing the
continuation of English common law and English statutes
amending it). The parties have not suggested, nor do we
discern, any respect to which the availability of the writ of
coram nobis would be repugnant to the rights and
liberties established by the New Hampshire Constitution.
Indeed, we see no conflict between the writ of coram
nobis and other specific rights guaranteed in our
constitution. See N.H. CONST. pt. I, art. 15
(guaranteeing rights to accused, including due process), pt.
II, art. 91 (establishing that the "privilege and
benefit of the habeas corpus, shall be enjoyed in this
begin by determining our standard of review. In an appeal
from a denial of a petition for a writ of habeas corpus, we
accept the trial court's factual findings unless they
lack support in the record or are clearly erroneous, but
review the trial court's legal conclusions de
novo. Barnet v. Warden, N.H. State Prison for
Women, 159 N.H. 465, 468 (2009). This standard is
similar to the standard the First Circuit applies to review a
denial of a petition for a writ of coram nobis.
See George, 676 F.3d at 256. Accordingly, we apply
in this case our standard for reviewing the denial of
petitions for habeas corpus.
the issues in this appeal requires us to engage in statutory
interpretation. "Statutory interpretation is a question
of law, which we review de novo." State v.
Maxfield, 167 N.H. 677, 679 (2015) (quotation omitted).
"In matters of statutory interpretation, we are the
final arbiter of the intent of the legislature as expressed
in the words of the statute considered as a whole."
Id. (quotation omitted). "We first look to the
language of the statute itself, and, if possible, construe
that language according to its plain and ordinary
meaning." Id. (quotation omitted). "We
interpret legislative intent from the statute as written and
will not consider what the legislature might have said or add
language that the legislature did not see fit to
include." Id. (quotation omitted).
first address whether, as the State contends, the common law
writ of coram nobis was abolished by RSA 526:1
(2007), which provides: "A new trial may be granted in
any case when through accident, mistake or misfortune justice
has not been done and a further hearing would be
equitable." "Statutes in derogation of the common
law are to be interpreted strictly." Estate of
Gordon-Couture v. Brown, 152 N.H. 265, 266 (2005).
"While a statute may abolish a common law right, there
is a presumption that the legislature has no such
purpose." Id. "If such a right is to be
taken away, it must be expressed clearly by the
legislature." Id. The plain language of RSA