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State v. Martinko

Supreme Court of New Hampshire, Strafford

August 17, 2018

THE STATE OF NEW HAMPSHIRE
v.
DAVID MARTINKO

          Argued: April 17, 2018

          Gordon J. MacDonald, attorney general (Elizabeth A. Lahey, assistant attorney general, on the brief and orally), for the State.

          Law Office of Joshua L. Gordon, of Concord (Joshua L. Gordon on the brief and orally), for the defendant.

          LYNN, C.J.

         The defendant, David Martinko, appeals an order of the Superior Court (Houran, J.) denying his motion to vacate guilty pleas that he entered in 2014 to three felony informations. The informations charged him with aggravated felonious sexual assault under the pattern sexual assault statute. See RSA 632-A:2, III (2016). He argues that: (1) the informations violated his state and federal constitutional protections against double jeopardy; and (2) his trial counsel provided ineffective assistance because he did not advise the defendant of these violations. We affirm.

         The State made the following proffer at the 2014 sentencing hearing. On October 31, 2013, the defendant went to the Dover Police Department and confessed that he had sexually assaulted the fifteen-year-old victim on the preceding night. On November 1, 2013, the victim participated in a forensic interview in which she confirmed that she had been sexually assaulted by the defendant on October 30. She also reported that the assaults began when she was four or five years of age when they were living out of state. The defendant continued to sexually assault the victim after they moved to New Hampshire in 2010. The abuse happened every night or every other night until just before her fourteenth birthday when she told him to stop; thereafter he assaulted her approximately once a month.

         At the sentencing hearing, the defendant waived indictment and pled guilty to the three informations. Each information charged him with a pattern of assaults that spanned different dates: the first information charged assaults that occurred between September 1, 2010 and August 31, 2011; the second charged assaults that occurred between September 1, 2011 and August 31, 2012; and the third charged assaults that occurred between September 1, 2012 and October 31, 2013. The trial court accepted his negotiated plea and imposed three consecutive sentences. The court also ordered that the minimum sentence imposed on the third charge "may be suspended by the Court on application of the defendant, provided the defendant demonstrates meaningful participation in the sexual offender program while incarcerated."

         In April 2017, the defendant filed the motion to vacate his plea and the sentences underlying this appeal. He argued that the three pattern informations to which he pled guilty violated the Double Jeopardy Clauses of the State and Federal Constitutions because they charged "three separate sets of acts during overlapping time periods, alleging identical variants of sexual behavior that occurred at the same location." He further argued that his trial counsel was ineffective for failing to advise him of the double jeopardy violations. The trial court denied his motion, finding that "the State's charges allege three separate sets of acts during three discrete time periods." This appeal followed.

         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 to 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. 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.

         The Double Jeopardy Clauses of the State and Federal Constitutions each provide three protections: (1) protection against subsequent prosecution for the same offense after acquittal; (2) protection against subsequent prosecution for the same offense after conviction; and (3) protection against multiple punishments for the same offense. State v. Wilson, 169 N.H. 755, 772 (2017). The defendant argues that the three informations violated his protection against multiple punishments.

         In support of his argument, he observes that the informations "are precisely successive"; that is, the second information charged assaults beginning on the next day after the period charged in the first information ended, and the third information charged assaults beginning on the next day after the end of the period charged in the second information. He contends that because there is no evidence in the record "that three distinct patterns began and ended on those dates," "the periods are arbitrary, and therefore the Informations are multiplicitous, in violation of federal and state constitutional bars against double jeopardy." Accordingly, he argues, we should reverse two of his convictions and remand this case for resentencing on the third information.

         Whether charging documents violate double jeopardy protections found in the State and Federal Constitutions presents a question of constitutional law, which we review de novo. See id. Challenges to multiple convictions based on multiplicity can be divided into two categories. State v. Lynch, 169 N.H. 689, 706 (2017). In "double-description" cases, the question is whether two statutes describe separate offenses or are simply different descriptions of the same offense. Id. In "unit of prosecution" cases, the question is whether a defendant's course of conduct constitutes more than one violation of a single statutory provision. Id. The parties agree that the issue in this case requires us to determine the applicable unit of prosecution.

         When a defendant argues that his rights have been violated under both the State and Federal Constitutions, we consider the arguments first under our State Constitution and rely upon federal law only to aid our analysis. State v. Mitchell, 166 N.H. 288, 296 (2014). To determine whether charged offenses violate the double jeopardy protections of our State Constitution in unit of prosecution cases, we examine whether proof of the elements of the crimes as charged will require a difference in evidence. State v. Ramsey, 166 N.H. 45, 51 (2014). Although we have consistently articulated this test, we have not consistently applied it and have previously invited parties "to suggest a ...


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