THE STATE OF NEW HAMPSHIRE
NOS. 98-S-329, 1316
STATE OF NEW HAMPSHIRE
PIERRE G. RIENDEAU
OPINION AND ORDER
The issue presently before the court in this case is whether the defendant is entitled to collaterally attack the felony sentences he received following his convictions for two counts of driving while certified as an habitual offender, on the ground that the indictments alleged only misdemeanor level offenses. I conclude that the defendant is procedurally defaulted from challenging the sufficiency of the indictments to charge felony level offenses because of his failure to raise the issue before trial, at sentencing, or on direct appeal.
The defendant has a lengthy motor vehicle record, which includes, inter alia, convictions in 1995 for driving while certified as an habitual offender and driving while intoxicated. On February 19, 1998 and August 20, 1998, respectively, the defendant was indicted for violating RSA 262:23 (1993 and Supp. 2000). The first indictment, # 98-S-329, alleged that on or about January 15, 1998, the defendant "did knowingly drive a motor vehicle on Second Street in Manchester, N.H. after having been certified as an habitual offender and while an order of the Director of the Division of Motor Vehicles prohibiting such driving remained in effect." The second indictment, # 98-S-1316, alleged that on or about July 2, 1998, the defendant "did knowingly drive a motor vehicle . . . upon a public way, to wit: Route #31 in Hillsboro, while being deemed an Habitual Offender by the Director of Motor Vehicles on May 2, 1995, such order of the Director of Motor Vehicles was (sic) still in effect."
Following a consolidated trial, a jury found the defendant guilty of both offenses on December 22, 1998. On February 11, 1999, I imposed a stand committed sentence of 2 1/2 - 5 years at the state prison on # 98-S-329, and a consecutive stand committed sentence of 1 1/2 - 3 at the state prison on # 98-S-1316.
The defendant sought review of the sentences by the sentence review division of the superior court. By order of June 28, 1999, the sentence review division affirmed the sentences. The defendant also appealed his convictions to the New Hampshire Supreme Court. By an unpublished order dated November 1, 2000, the supreme court affirmed the convictions.
On July 17, 2001 and July 26, 2001, respectively, the defendant filed a Motion to Suspend All But One Year of the Minimum and All of the Maximum Sentence and a Motion to Dismiss Felony/Motion to be Heard. In these motions, the defendant argues that because the indictments returned against him did not allege that his habitual offender certification was based on a conviction for driving while intoxicated (DWI) or certain other serious motor vehicle violations, the indictments charged him only with misdemeanor level offenses. As support for this argument, the defendant relies primarily on the decision of the Strafford County Superior Court in State v. Hartford, No. 99-S-871 (Order of April 7, 2000, Mohl, J.). Because, in his view, the convictions are for two misdemeanors, defendant contends that it was a violation of his constitutional right to due process of law for me to have imposed sentences in excess of two years incarceration. See State v. Shannon, 125 N.H. 653, 665 (1984) (quoting State v. Champagne, 119 N.H. 118, 121-22 (1979) ("it is unconstitutional for the trial court to upgrade an offense when the State has not specified in the indictment the aggravating facts set forth in the statutory definition")). He therefore asks that the sentences actually imposed be vacated insofar as they exceed this maximum.
The State objected to the motions, and I held a hearing on the matter on October 23, 2001. At the hearing, the defendant acknowledged that throughout the proceedings before this court, before the sentence review division and before the supreme court, he at all times had the belief and understanding that the indictments at issue charged him with felony level offenses which carried a maximum sentence of 5 years imprisonment and a minimum mandatory sentence of one year on each charge. 1 He therefore cannot and does not make any claim that he was surprised when felony level sentences were imposed. It also is undisputed that the defendant never raised the issue of the alleged insufficiency of the indictments to charge felony level offenses at any point during the direct proceedings involving this case, up through and including the appeal of his convictions to the supreme court.
In Hartford, Justice Mohl held that by virtue of the 1992 amendment to RSA 262:23, which added paragraph III to the statute, the legislature had created two separate habitual offender offenses, one a felony and the other a misdemeanor. 2 The difference between the two offenses is that, in order for the crime to constitute a felony, the defendant's certification as an habitual offender must be based on a prior conviction for DWI, RSA 265:82 (Supp. 2000), or a misdemeanor or felony motor vehicle offense specified in RSA title XXI. Inasmuch as the RSA 262:23 offense is a felony only if the defendant has such a predicate conviction, Justice Mohl concluded that the existence of such a conviction is an element of the offense, which must be alleged in the indictment. Because the indictments at issue in Hartford and its companion cases did not specifically allege the existence of any predicate offense, Justice Mohl determined that the defendants in those cases could be sentenced only within the limits for a misdemeanor offense.
In the wake of Hartford, a number of other superior court justices have addressed the issue of whether an indictment for a felony level habitual offender offense must specifically allege the existence of a predicate conviction. Justices McHugh, Smukler and Abramson have rendered decisions following Hartford. See State v. Brochu, No. 96-S-321 (Belk.Cty.Super.Ct.), Order of July 10, 2001 (McHugh, J.); State v. Beckford, No. 98-S-552-F (Rock.Cty.Super.Ct.), Order of May 28, 2001 (Abramson, J.); State v. Porter, No. 00-S-163 (Belk.Cty.Super.Ct.), Order of Jan. 11, 2001 (Smuker, J.). On the other hand, in State v. Cattell, No. 01-E-037 (Coos Cty.Super.Ct.), Order of Aug. 30, 2001, Justice Smith held that it was not until the 2000 amendment to RSA 262:23 that the legislature created both a misdemeanor and a felony level habitual offender offense. 3 Rather than creating a separate misdemeanor offense, Justice Smith found that the 1992 amendment merely eliminated the minimum mandatory sentence requirement for habitual offenders who did not have the requisite underlying convictions. Thus, under Justice Smith's reasoning, such persons were still guilty of a felony, but they could be sentenced to incarceration for any period between zero and 5 years. Because the presence of a predicate conviction does not raise the offense from a misdemeanor to a felony, Justice Smith determined that such a conviction was not an element of the offense which must be specifically alleged in the indictment. In State v. Michael, No. 99-S-073 (Hills.Cty.Super.Ct.-N.D.), Order of Oct. 4, 2001, Justice Barry followed Cattell.
I need not decide in this case whether the Hartford or the Cattell line of cases is correct. Assuming arguendo that Hartford represents a correct statement of the law, I find that the defendant is procedurally defaulted from challenging the sufficiency of the indictments. Although the defendant has filed the instant motions in this court under the same docket numbers as pertain to his original convictions, the motions are the functional equivalent of a petition for habeas corpus relief. That is, the motions amount to a collateral attack on the convictions and sentences, after they were affirmed on direct appeal, and are based on the assertion that the defendant is being held in custody unlawfully. Consequently the legal principles governing habeas corpus proceedings are applicable. See State v. Daigle, 114 N.H. 679, 681 (1974) (holding that post-conviction motion to vacate guilty plea, filed with the court in which the plea was entered, was "in the nature of a petition for a writ of habeas corpus").
In the federal system, Congress and the Supreme Court have established a well-defined body of law governing the procedural requirements for a state prisoner to obtain habeas corpus relief. See, e.g., 28 U.S.C. §§ 2244, 2254; Edwards v. Carpenter, 120 S.Ct. 1587 (2000); O'Sullivan v. Boerckel, 526 U.S. 838 (1999). Among the most important of these procedural requirements is the rule which precludes relief in federal court based upon alleged constitutional errors which were not raised in the state proceedings. In order to secure access to the federal writ, the prisoner must establish both "cause" for his failure to raise the issue in state court and "prejudice" resulting from the alleged constitutional violation. Wainwright v. Sykes, 433 U.S. 72, 90-91 (1977); accord. Engle v. Isaac, 456 U.S. 107, 133-34 (1982); Murray v. Carrier, 477 U.S. 492 (1986); Coleman v. Thompson, 501 U.S. 722, 750 (1991) (cause and prejudice standard applies "uniformly to all independent and adequate state procedural defaults"). The only exception to the cause and prejudice standard is in circumstances where the habeas petitioner can "demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Id. at 750. A classic example of the latter type involves a situation wherein a constitutional error "has probably resulted in the conviction of one who is actually innocent." Bousley v. United States, 523 U.S. 614, 623 (1998) (quoting Murray, 477 U.S. at 496)).
New Hampshire law regarding the procedural aspects of habeas corpus is not nearly as well developed as federal law. It is clear, however, that the state writ is generally designed to serve the same purpose as its federal counterpart: to test the validity of the detention or restraint imposed upon the person seeking the writ. See RSA 534:1 ("A person imprisoned or otherwise restrained of his personal liberty . . . is entitled of right to a writ of habeas corpus according to the provisions of this chapter."); Knowles v. Warden, 140 N.H. 387, 389 (1995) (applicant for writ of habeas corpus must allege "a present deprivation of a protected liberty interest"). Furthermore, while the New Hampshire Supreme Court has indicated on several occasions that habeas corpus is available to remedy "harmful constitutional error" "after the time for direct appeal has expired," Bonser v. Courtney, 124 N.H. 796, 808 (1984) (emphasis added); see State v. Clough, 115 N.H. 7, 11 (1975), the court also "has adopted the common law rule that habeas corpus is not a substitute for an appeal." Avery v. Cunningham, 131 N.H. 138, 143 (1988) (citing Springer v. Hungerford, 100 N.H. 503, 505 (1957)). In Avery, the court held that the habeas petitioner was procedurally barred from raising an incompetency claim long after trial when he had knowledge of the issue shortly after his conviction and failed to raise it on direct appeal. Id. The court reasoned that recognition of procedural default as a ground for denying habeas relief was necessary to ensure "an orderly and nondisruptive presentation of claims" and to prevent "circumventing the court's procedural requirements." Id. at 143, 144. See also Roy v. Perrin, 122 N.H. 88, 100 (1982) (citing Wainwright approvingly en route to holding that this state's contemporaneous objection rule precluded a habeas petitioner from asserting a defect in sentencing when he had failed to object at the sentencing hearing and had not raised the issue for four years); Martineau v. Perrin, 119 N.H. 529 (1979) (again citing Wainwright in support of holding that failure to contemporaneously object to jury instructions precluded reliance on allegedly defective instructions as basis for habeas corpus relief).
Although the matter is not entirely free from doubt, 4 the Martineau, Roy and Avery decisions cited above, as well as the court's statement in Bonser that alleged constitutional error must be harmful in order to be vindicated through the vehicle of habeas corpus, are sufficient to convince me that the New Hampshire Supreme Court has effectively adopted as a matter of state law the substance, if not the terminology, of the federal "cause" and "prejudice" standard for obtaining collateral relief based on claims that were not raised at trial or on direct review. Applying this standard, it is clear that the defendant's claim based on Hartford is procedurally defaulted.
There is no dispute that the defendant's habitual offender certification is based upon one or more predicate convictions sufficient to raise his offenses to the felony level. Thus, had the defendant challenged the sufficiency of the indictments by way of pretrial motions, and had I agreed with the reasoning of Hartford, the State could easily have sought superseding indictments containing the requisite allegations necessary to charge felony offenses. The same result would likely have obtained even if the defendant had waited until after jeopardy attached to raise the issue of the defective indictments. In the latter circumstance, the State presumably would have moved for a mistrial, and I would have been justified in finding that the defective indictments created a "manifest necessity" for granting one. See Illinois v. Somerville, 410 U.S. 458 (1973) (no double jeopardy bar to retrial following trial court's declaration of mistrial due to defective indictment); accord. Lee v. United States, 432 U.S. 23 (1977) (retrial not barred by double jeopardy when defendant requests dismissal that is functional equivalent of mistrial); State v. Janvrin, 121 N.H. 370 (1981) (same). See also Montana v. Hall, 481 U.S. 400, 403-04 (1987) ("It is clear that the Constitution permits retrial after a conviction is reversed because of a defect in the charging instrument."); Parker v. Norris, 64 F.3d 1178, 1181-82 (8th Cir. 1995). Therefore, to say that the defendant actually suffered prejudice is speculative at best. More importantly, the defendant has offered absolutely no justification, or "cause," for his failure to raise the issue previously. Indeed, the defendant does not even attempt to show that he has satisfied either the "cause" of the "prejudice" prong of the test. Finally, and again because the defendant's record does include the requisite predicate convictions, the defendant obviously can make no claim of actual innocence of felony level offenses.
Instead of attempting to demonstrate "cause" and "prejudice," or " actual innocence," the defendant contends that the failure of the indictments to charge felonies deprived this court of jurisdiction to impose felony sentences. He argues that such jurisdictional defects are not subject to waiver and can be raised at any time. Several of my colleagues have accepted this argument and have applied the Hartford decision retroactively to cases in which no challenge to the indictments was raised at trial or on direct appeal. See State v. Beckford, No. 99-S-016-F (Straf.Cty.Super.Ct.), Order of April 11, 2001 (Mohl, J.) (applying Hartford retroactively to defendant who pleaded guilty to felony habitual offender charge); State v. Beckford, No. 99-S-552 (Rock.Cty.Super.Ct.), Order of May 28, 2001 (Abramson, J.) (same); State v. Brochu, No. 96-S-321 (Belk.Cty.Super.Ct.), Order of July 10, 2001 (McHugh, J.) (applying Hartford retroactively to defendant who was found guilty after trial); State v. Hoyt, No. 97-S-624 (Straf.Cty.Super.Ct.), Order of July 19, 2001 (Mohl, J.) (same). I must respectfully disagree with these rulings.
It is, of course, a well-settled proposition that lack of subject matter jurisdiction cannot be waived; it may be raised by the parties at any time or noticed by the tribunal on its own motion. See State v. Baron, 106 N.H. 149, 151 (1965); Pokigo v. International Brotherhood of Electrical Workers, 106 N.H. 384, 385 (1965); Jackson v. Company, 86 N.H. 341, 342 (1933). But the notion that the allegedly faulty indictments deprived this court of subject matter jurisdiction cannot withstand critical scrutiny. To accept the proposition that the manner in which the indictments were drafted deprived this court of jurisdiction to impose felony sentences would mean that even an express waiver of the defects would be ineffective. Thus, under this jurisdictional-defect thesis, even if the defendant had been fully informed of the so-called Hartford issue, had made a knowing, intelligent and voluntary waiver of the issue pursuant to a proper Boykin colloquy, and had then entered guilty pleas under an agreement which called for him to receive felony level sentences, there would be nothing to prevent him from thereafter collaterally attacking his sentences on the ground that the court lacked jurisdiction to impose them. Given the unquestioned ability of a criminal defendant to waive all sorts of fundamental constitutional rights, including the right to waive an indictment in its entirety, it would be strange indeed if the defendant did not have the right to waive a defect which (under the Hartford analysis) amounts to the failure of the indictment to allege one element of the felony offense. Once it is recognized, as it obviously must be, that a defendant can make an express waiver of an indictment with a Hartford defect (or any other kind of defect, for that matter), it becomes clear that the existence of such a defect does not affect this court's subject matter jurisdiction. The superior court unquestionably has jurisdiction 5 to hear felony cases and to impose felony sentences, cf. State v. Smith, 144 N.H. 1, 6 (1999) (absence of indictment did not deprive superior court of jurisdiction to impose sentence in excess of one year imprisonment), and the real question here is simply whether the defendant's failure to raise the Hartford defect before or at trial, or on appeal, amounts to an implicit waiver, or procedural default, of the claim. Since the defendant has not shown "cause" for the failure and "prejudice" resulting therefrom, I hold that it does, and that the defendant therefore is barred from raising the Hartford claim at this late date. See State v. Ryan, 142 N.H. 486 (1997).
For the reasons stated above, the defendant's motions seeking to have his felony sentences vacated and to be resentenced for misdemeanor level offenses are all hereby denied.
BY THE COURT:
November 14, 2001
ROBERT J. LYNN
1 At the hearing, I made specific inquiry as to whether the defendant was making any claim that at any time prior to or during the trial, sentencing, sentence review, or direct appeal, he had been under the impression that the charges against him were other than felony level offenses which carried 5 year maximum terms and one year minimum mandatory terms of imprisonment. Through counsel, the defendant represented on the record that he was making no such claim. In light of this concession, I found that there were no factual issues in dispute, and thus there was no need for an evidentiary hearing.
2 As amended by Laws 1992, ch. 31:1, RSA 262:23 provided, in pertinent part:
I. It shall be unlawful for any person to drive any motor vehicle on the ways of this state while an order of the director or the court prohibiting such driving remains in effect. If any person found to be an habitual offender under the provisions of this chapter is convicted of driving a motor vehicle on the ways of this state while an order of the director or the court prohibiting such operation is in effect, he shall be sentenced, notwithstanding the provisions of RSA title LXII, to imprisonment for not less than one year nor more than 5 years. No portion of the minimum mandatory sentence shall be suspended, and no case brought to enforce this chapter shall be continued for sentencing; provided, however, that any sentence or part thereof imposed pursuant to this section may be suspended in cases in which the driving of a motor vehicle was necessitated by situations of apparent extreme emergency which required such operation to save life or limb. Any sentence of more than one year imposed pursuant to this paragraph shall be served in the state prison.
. . . .
III. Notwithstanding paragraph I, any person who qualifies under RSA 259:39, who does not have a conviction under RSA 265:82 or any misdemeanor or felony motor vehicle convictions pursuant to RSA title XXI, shall not be subject to the minimum mandatory provisions of paragraph I; provided, however, that any such person may be sentenced to one year or less. Any person incarcerated on June 8, 1992, pursuant to certification as an habitual offender under RSA 259:39, who does not have a conviction under RSA 265:82 or any misdemeanor or felony motor vehicle convictions pursuant to RSA title XXI, may apply immediately to the superior court for sentence review and reduction.
3 As amended by Laws 2000, ch. 307:1, 2, RSA 262:23 now provides, in pertinent part:
I. It shall be unlawful for any person to drive any motor vehicle on the ways of this state while an order of the director or the court prohibiting such driving remains in effect. If any person found to be an habitual offender under the provisions of this chapter is convicted of driving a motor vehicle on the ways of this state while an order of the director or the court prohibiting such operation is in effect, he or she shall be guilty of a felony and sentenced, notwithstanding the provisions of RSA title LXII, to imprisonment for not less than one year nor more than 5 years. No portion of the minimum mandatory sentence shall be suspended, and no case brought to enforce this chapter shall be continued for sentencing; provided, however, that any sentence or part thereof imposed pursuant to this section may be suspended in cases in which the driving of a motor vehicle was necessitated by situations of apparent extreme emergency which required such operation to save life or limb. Any sentence of one year or less imposed pursuant to this paragraph shall be served in a county correctional facility and the court may order that any such offender may serve his or her sentence under home confinement pursuant to RSA 651:19 on such terms and conditions as the court may order, for the minimum mandatory term or any portion thereof, provided the offender first serves 8 consecutive weekends or 14 consecutive days of imprisonment prior to eligibility for home confinement. habitual offenders shall only be eligible for the home confinement sentencing option once per lifetime. Any sentence of more than one year imposed pursuant to this paragraph shall be served in the state prison.
. . . .
III. Notwithstanding paragraph I, any person who qualifies under RSA 259:39, who does not have a conviction under RSA 265:82 or any misdemeanor or felony motor vehicle convictions pursuant to RSA title XXI, shall not be subject to the minimum mandatory provisions of paragraph I; provided, however, that any such person shall be guilty of a class A misdemeanor and may be sentenced to one year or less. Any person incarcerated on the effective date of this paragraph, pursuant to certification as an habitual offender under RSA 259:39, who does not have a conviction under RSA 265:82 or any misdemeanor or felony motor vehicle convictions pursuant to RSA title XXI, may apply immediately to the superior court for sentence review and reduction.
4 The supreme court has, on occasion, reached the merits of habeas corpus claims notwithstanding the existence of circumstances which arguably would support a finding of procedural default. See, e.g., Humphrey v. Cunningham, 133 N.H. 727, 732-33 (1990) (court addressed merits of ineffective assistance of counsel claim despite assertion of State that claim waived by failure to raise on direct appeal).
5 Employing what has been aptly described as "a somewhat expansive notion of `jurisdiction,'" Custis v. United States, 511 U.S. 485, 494 (1994), there is language in several decisions of the New Hampshire Supreme Court indicating that a court's jurisdiction may be "lost" if the defendant's constitutional rights have been violated. See, e.g., Bussiere v. Cunningham, 132 N.H. 747, 750 (quoting Bonser, 124 N.H. at 807-08). However, the only cases in which our supreme court has ever granted any measure of relief under this rationale involved situations wherein the defendants claimed that they had been convicted without benefit of counsel and in the absence of a knowing and voluntary waiver of counsel. See Clough, 115 N.H. at 10-11; Daigle, 114 N.H. 679; State v. Herbert, 108 N.H. 332 (1967). Clough, Daigle and Herbert are thus consistent with the view repeatedly expressed by the United States Supreme Court that a violation of the right to counsel established in Gideon v. Wainwright, 372 U.S. 335 (1963) "`is a unique constitutional defect' which therefore warrants special treatment" that does not apply to other alleged constitutional violations. Lackawanna County D.A. v. Coss, 149 L.Ed.2d 608, 618 (2001); see also Daniels v. United States, 149 L.Ed.2d 590, 597 (2001). The constitutional violation alleged by the defendant in this case simply does not rise to the kind of "jurisdictional defect resulting from the failure to appoint counsel at all," Custis, 511 U.S. at 496 (citing Johnson v. Zerbst, 304 U.S. 458 (1938)), that was at issue in Clough, Daigle or Herbert.