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Hart v. Warden, New Hampshire State Prison

Supreme Court of New Hampshire, Merrimack

January 24, 2019

KENNETH H. HART
v.
WARDEN, NEW HAMPSHIRE STATE PRISON

          Argued: September 27, 2018

          Christopher M. Johnson, chief appellate defender, of Concord, on the brief and orally, for the petitioner.

          Gordon J. MacDonald, attorney general (Sean R. Locke, assistant attorney general, on the brief and orally), for the State.

          DONOVAN, J.

         The petitioner, Kenneth H. Hart, appeals an order of the Superior Court (Abramson, J.) denying his petition for a writ of habeas corpus alleging that he was incompetent to waive his right to counsel and represent himself at trial and on appeal following his convictions of multiple felonies in February 2000. We affirm.

         I. Factual and Procedural Background

         The record supports the following facts. In 1998, the petitioner was arrested and charged with two alternative counts of aggravated felonious sexual assault (AFSA), one count of witness tampering, and one count of resisting arrest. Prior to trial, the petitioner was provided with court-appointed counsel, but he dismissed three of these attorneys and moved to represent himself at trial. The State objected and, after a hearing on the motion, the Trial Court (Barry, J.) ruled that "a 'bona fide and legitimate doubt' exists as to the [petitioner's] current competency to stand trial and particularly his ability to clearly and effectively waive his constitutional right to counsel" and ordered that the petitioner submit to a psychiatric evaluation.

         Dr. Albert Drukteinis evaluated the petitioner and testified at a July 1999 competency hearing that he believed that the petitioner had a nonspecific personality disorder that "did not rise to the level of a major mental illness" that would "prevent him from being competent to stand trial." Drukteinis also testified that, in his view, competency to defend one's self pro se required a higher competency threshold than the competency standard needed to stand trial and the petitioner's paranoid personality traits "would interfere with a meaningful or reasonable defense of himself." Drukteinis agreed with the Trial Court's (Groff, J.) characterization of his testimony that the petitioner would be incapable of effectively cross-examining witnesses as a result of his inability to focus on important issues in a meaningful way. The doctor nonetheless reaffirmed his opinion that the petitioner was competent to stand trial pursuant to State v. Champagne, 127 N.H. 266 (1985). The trial court found the petitioner to be competent, but deferred its consideration of the question of the petitioner's competency to waive his right to counsel.

         The Trial Court (Groff, J.) subsequently held a motions hearing in August 1999 during which the court found that the petitioner maintained a sincere and unwavering desire to waive counsel and represent himself at trial. The court conducted a lengthy colloquy during which the petitioner acknowledged that he: (1) understood that he had an absolute right to be represented by counsel at the State's expense, if he could not afford to retain an attorney; (2) was aware and understood the maximum prison sentences that could be imposed upon conviction; (3) understood that he would be required to follow the applicable rules of evidence, select a jury, and examine witnesses; (4) would be required to conduct an opening statement and closing argument; and (5) understood that the court would not treat him differently than a licensed attorney and could not assist him with his defense. Following this colloquy, the trial court found that the petitioner was "aware of the serious nature of the charges against him, the potential sentence which may be imposed, the complex factual and legal issues presented by [his] case, and the serious limitations in acting as his own counsel." Finding that the petitioner had knowingly, intelligently, and voluntarily waived his right to counsel, the court granted his motion.

         The trial court appointed standby counsel to assist the petitioner during trial. Following jury selection, standby counsel informed the trial court of his "grave concerns" with the petitioner's ability and competency to represent himself after the petitioner refused to follow counsel's advice during jury selection. The petitioner objected and the trial court iterated its previous ruling that the defendant was competent to stand trial and competent to waive his right to counsel, and that he did so knowingly and intelligently. After an eight-day trial, the jury convicted the defendant of all charges. The trial court thereafter sentenced the petitioner to a 10 to 20 year prison sentence on the AFSA conviction, recommended that the petitioner complete the sex offender program, and imposed suspended sentences on the remaining convictions.

         Following sentencing, the trial court appointed standby counsel for the petitioner to advise and assist him with the preparation of a notice of appeal. However, the petitioner was unwilling to follow counsel's advice and did not authorize counsel to draft the notice of appeal for him. Despite a series of orders issued by this court extending the deadline for the filing of either a notice of appeal or a motion to appoint counsel, no notice or motion was filed by the petitioner, or on his behalf. In February 2001, we ruled that the petitioner had waived any appeal of his convictions.

         Since that ruling, the petitioner has filed numerous pro se pleadings unsuccessfully challenging his convictions in state and federal courts. In January 2017, the petitioner filed a complaint in the Superior Court (Schulman, J.) that the court construed as a petition for a writ of habeas corpus and appointed counsel to represent him. The petitioner's counsel thereafter filed an amended habeas petition challenging his conviction on the ground that the trial court erred in permitting the petitioner to represent himself at trial and for the purpose of filing a notice of appeal. The petitioner also argued that the trial court record does not reflect that he understood the significance and consequences of his decision to waive his right to counsel or that he knowingly and voluntarily waived this constitutional right. The State objected.

         In October 2017, the Superior Court (Abramson, J.) (habeas court) denied the petition without a hearing. The court found that "between October 1998 and August 1999, [the] petitioner consistently maintained his desire to proceed pro se" and that prior to trial, the court thoroughly explained the dangers and disadvantages of self-representation to the petitioner. Thus, the court concluded that the petitioner knowingly, intelligently, and voluntarily waived his right to counsel. Relying on our decision in Champagne, the court also rejected the petitioner's argument that a heightened standard of competency must be applied to a defendant who seeks to represent himself at trial than the standard of competency necessary to stand trial. The court reasoned that the United States Supreme Court decision in Indiana v. Edwards, 554 U.S. 164 (2008), allows, but does not require, state courts to impose counsel on defendants who suffer from some mental illness but are otherwise competent to stand trial. Accordingly, the court determined that, because the petitioner was found competent beyond a reasonable doubt to stand trial, he was competent to waive his right to counsel and, having done so, "'he cannot thereafter complain that the quality of his own defense amounted to a denial of effective assistance of counsel.'" (Quoting United States v. Manjarrez, 306 F.3d 1175, 1180-81 (1st Cir. 2002)). This appeal followed.

         II. Procedural Posture on Appeal

         Prior to addressing the parties' arguments, we note that this case stands in an unusual procedural posture. At oral argument, petitioner's counsel represented that his client had recently completed the maximum term of his sentences, was released from state prison, and was involuntarily committed to the New Hampshire Hospital. Given these circumstances, we requested that the parties submit their respective positions on whether our jurisdiction is affected by these recent events, or whether we should construe the habeas petition as a petition for a writ of coram nobis.

         The petitioner argues that we should reformulate his appeal as a petition for a writ of coram nobis because doing so will not alter our review of his claims, his case presents important questions of law that both parties have fully litigated, and the completion of his sentence does not render his challenge to his conviction moot given the immediate consequences of that conviction. The State counters that the petitioner's habeas corpus claims are not preserved because he failed to raise them in a direct appeal of his convictions or by way of a timely motion for a new trial. The State further maintains that the petitioner's claims are moot because he has completed his sentence, and he is not entitled to coram nobis relief in light of his inability to justify his delay in failing to raise the issue of his competency and seek relief on that basis prior to the filing of his January 2017 petition. See State v. Widi, 170 N.H. 163, 168-70 (2017) (denying writ of coram nobis where defendant could not satisfy his burden of showing that sound reasons explained his failure to seek relief earlier). We disagree with the State.

         We first address the State's preservation argument and its contention that the issues before us are moot. We have previously ruled that claims of ineffective assistance of counsel based upon alleged trial errors are not procedurally barred by the failure to raise those claims on direct appeal and, therefore, are eligible for review by way of a petition for writ of habeas corpus. See State v. Pepin, 159 N.H. 310, 312-13 (2009) (citing cases). Where, as here, the petitioner lacked the benefit of representation by counsel in his direct appeal, and he now argues that he was not competent to represent himself at trial or on appeal, we see no basis for procedurally barring his collateral attack in this case.

         We also find that the case is not moot. In State v. Almodovar, 158 N.H. 548, 550 (2009), we concluded that the defendant's completion of his deferred sentences did not render his appeal moot because the sentences carried potential future consequences and the defendant could file a writ of coram nobis. As in Almodovar, the petitioner's convictions here impose immediate consequences, such as lifetime sex offender registration, see RSA 651-B:6, I (Supp. 2018), and, perhaps, continued detention at the state hospital as a result of his involuntary civil commitment, see RSA ch. 135-C (2015 & Supp. 2018). Therefore, the petitioner's claims are not moot despite the fact that he has already served the maximum terms of the sentences that the trial court imposed on his underlying convictions.

         We note that if the petitioner were solely challenging his detention and involuntary commitment at the state hospital, a writ of habeas corpus might be available to him to challenge that detention. Yet, we question whether his involuntary commitment meets the "in custody" condition to obtain habeas corpus relief given that: (1) the record before us sheds little light on whether the previous conviction was a basis for the petitioner's commitment; and (2) the petitioner now seeks a remedy, the vacation of his prior conviction, that may be unrelated to his current confinement. See Maleng v. Cook, 490 U.S. 488, 490-91 (1989) (construing federal habeas corpus relief as requiring the petitioner be "'in custody' under the conviction or sentence under attack"). Indeed, the Maleng Court cautioned that the United States Supreme Court had "never held . . . that a habeas petitioner may be 'in custody' under a conviction when the sentence imposed for that conviction has fully expired at the time his petition is filed." Id. at 491. Nonetheless, we need not answer this question because the writ of coram nobis may provide the petitioner with the remedy he seeks, despite the expiration of his sentences. See Wilson v. Flaherty, 689 F.3d 332, 339 (4th Cir. 2012) (recognizing the availability of coram nobis relief where a habeas corpus petitioner has served his sentence and is no longer in custody). In light of his present circumstances, and in the interest of judicial efficiency and ...


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