Argued: April 17, 2018
J. MacDonald, attorney general (Elizabeth A. Lahey, assistant
attorney general, on the brief and orally), for the State.
Office of Joshua L. Gordon, of Concord (Joshua L. Gordon on
the brief and orally), for the defendant.
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.
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.
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."
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
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.
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
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.
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.
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 ...