2006-946, STATE OF NH v. ROBERT OFFEN

The defendant, Robert Offen, appeals an order of the

and orally, for the defendant. James T. Brooks, assistant appellate defender, of Concord, on the brief

general, on the brief and orally), for the State. to press. Errors may be reported by E-mail at the following address: Kelly A. Ayotte, attorney general (Lucy H. Carrillo, assistant attorney

editorial errors in order that corrections may be made before the opinion goes No. 2006-946 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Manchester District Court Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

the complaint failed to state a crime. the absence of any reference to the thirty-day time frame, Offen also urges that thirty days in which to report upon his return to New Hampshire. Moreover, in

as expressed in the words of a statute considered as a whole.”

essential elements of the crime to which he pleads guilty.” Id. corrections, six months suspended for two years. knowing, intelligent, and voluntary, the defendant must understand the him.” Arsenault, 153 N.H. at 416 (quotation omitted). “For a plea to be essential element of the offense charged; namely, that the statute afforded him A defendant must receive “real notice of the true nature of the charge against not knowing, intelligent and voluntary because he was never advised of an Arsenault, 153 N.H. at 416; see Boykin v. Alabama, 395 U.S. p. 2 238, 243 (1969). “[A] guilty plea must be knowing, intelligent, and voluntary to be valid.”

155 N.H. 477, 481 ( p. 2 2007) (quotation omitted).

statutory interpretation, “we are the final arbiter of the intent of the legislature of Hinsdale v. Town of Chesterfield, 153 N.H. 70, 7 p. 2 2 (2005). In matters of questions of law de novo. State v. Arsenault, 153 N.H. 413, 415 (2006); Town We review questions of statutory interpretation and constitutional 651-B:4, I. The trial court sentenced him to 12 months in the house of him in a plea colloquy. Offen pleaded guilty to failure to report contrary to RSA Subpoena (Issued July 10, 2006), 155 N.H. 557, 559 (2007). acknowledgement and waiver of rights form. Thereafter, the trial court engaged trial court and, thus, did not preserve it for our review. See In re Grand Jury genuine issue for adjudication. On appeal, Offen contends that his plea was within statutory definitions because Offen did not brief it or raise it before the motion because Offen did not establish that his specific claim presented a decline to address the issue of whether a homeless individual has a “residence” complaint failed to state a crime. After a hearing, the trial court denied his became a New Hampshire resident at some point prior to his arrest. We sufficient notice of the true nature of the charged offense and because the time of his arrest. For purposes of this case, however, we assume that he The record suggests that Offen was homeless and living in a park at the

indicated his intention to plead guilty and was provided with and signed an

from a Florida prison and establishing residency in Manchester. acceptance of his plea violated his due process rights because he was denied In p. 2 2006, Offen moved to vacate his 2004 conviction on grounds that the

At Offen’s arraignment in June p. 2 2004, he appeared without a lawyer,

temporary domicile to the Manchester Police Department after being released knowingly failed to report his current mailing address, place of residence, or offenders. We disagree.

act and likens the thirty-day component to a non-elemental grace period for

by clear and convincing evidence that the trial court was wrong and that his defendant’s plea, then the burden remains with the defendant “to demonstrate that the trial court affirmatively inquired into the knowledge and volition of the omitted). If the defendant meets his initial burden, and if the record indicates specific claim presents a genuine issue for adjudication.” Id. (quotation and must at least go forward with evidence sufficient to indicate that his manner in which the waiver was in fact involuntary or without understanding, “essential.” The State argues that the failure to report is the essential criminal plea, the defendant bears the initial burden and “must describe the specific while possibly an element, must be a material element of the offense to be opinions for guidance only. Id. at 2 p. 3 32-33. In a collateral attack of a guilty one way to violate the statute. Alternatively, it urges that the thirty-day period, the State Constitution, State v. Ball, 124 N.H. 226, 231 (1983), and cite federal element of the charged offense, we examine Offen’s due process claim under Having determined that the thirty-day reporting period is an essential

individual who has a duty to report must do so within thirty days. The thirty-day period is included in the definition of the offense. Any

offense because it is not included in the definition of the offense, but is simply The State argues that the thirty-day period is not an element of the

as . . . [is] included in the definition of the offense.” RSA 625:11, III(a) (1996). “such conduct, or such attendant circumstances, or such a result of conduct The legislature defines “[e]lement of an offense” to mean, in relevant part,

RSA 651-B:4, I(a)(1) (Supp. 2005)(amended 2005, 2006) (emphasis added). for failure to report. specifies the elements that must be proven for the State to secure a conviction residence in New Hampshire if convicted elsewhere.

p. 3 30 days after the person’s date of establishment of release from custody following a conviction or within enforcement agency within 30 days after the person’s place of employment or schooling to the local law address, place of residence or temporary domicile, and chapter shall report such person’s current mailing Any person required to be registered under this

offense, June 1, 2004, RSA 651-B:4, I(a)(1) provided in part, as follows:

a New Hampshire residence is an element of RSA 651-B:4, I. RSA 651-B:4, I, At issue is whether the failure to report within thirty days of establishing in New Hampshire.

p. 4 reasonable doubt that thirty days had elapsed since he established residency

court, however, never explained to Offen that the State had to prove beyond a 2004, approximately forty-five days before the date of his arrest. The trial voluntary or knowing in the respect specifically challenged. established that Offen admitted to moving to New Hampshire in mid-April demonstrating to a clear and convincing degree that the defendant’s plea was established residency in New Hampshire. Thus, the State carries the burden of prove beyond a p. 4 reasonable doubt that thirty days had elapsed since he failed to inform Offen of the thirty-day element.

because its offer of proof along with an affidavit on file with the trial court Additionally, the State argues that Offen was aware of this element

to report. The trial court, however, never informed Offen that the State had to do so; and that being temporarily domiciled in the City of Manchester, he failed colloquy. The record reveals, however, that both the complaint and colloquy to report his residence, having been convicted of a crime that required him to court and the trial court discussed the elements of the charge in a plea complaint, including: that Offen acted knowingly; that he was subject to a duty contention, the State provides that the complaint was read aloud to Offen in plea colloquy, the trial court explained the elements contained in the sufficiently notified of the nature of the charge against him. In support of its In an attempt to meet its burden, the State argues that Offen was

initial burden. element he would not have pleaded guilty. Accordingly, Offen satisfied his Hampshire for a total of thirty days. He testified that had he been aware of this failed to register after having a residence or temporary residence in New

court did not advise Offen of the thirty-day element of the charge. During the Id. The State concedes, and our review of the record indicates, that the trial specifically challenged. affirmatively inquired into the knowledge and volition of the defendant’s plea. and convincing degree that the plea was voluntary or knowing in the respect The next step in the analysis is to determine whether the trial court to the State to respond to the defendant’s claim by demonstrating to a clear

understand that the State had to prove beyond a reasonable doubt that he that he appeared pro se, that he has a limited education and he did not Offen carried his initial burden. In his motion to vacate, Offen stated

court’s inquiries into the defendant’s volition and knowledge, the burden shifts Alternatively, if there is no record or an inadequate record of the trial

Id. (quotation omitted). plea was either involuntary or unknowing for the reason he specifically claims.” p. 5 5

concurred.

BRODERICK, C.J., and DALIANIS, DUGGAN and GALWAY, JJ.,

we need not consider his claim under the Federal Constitution. (197 p. 5 5); State v. Laponsee, 115 N.H. 56, 59 (1975). Constitution. Because the defendant prevailed under the State Constitution, that the complaint failed to state a crime. State v. Horan, 115 N.H. 35, 36 Given the result reached, we need not consider the defendant’s argument

support such a finding. See State v. Pseudae, 1 p. 5 54 N.H. 196, 202 (2006). essential elements of the charged offense. The record before us simply does not challenged. because the defendant would have pled guilty even if he understood all the understanding or volition, such error was harmless beyond a reasonable doubt In its final argument, the State urges that even if Offen’s plea lacked

N.H. at 237.

process rights as guaranteed by Part I, Article 1 p. 5 5 of the New Hampshire As such, the trial court’s acceptance of Offen’s plea violated his due

that Offen’s plea was knowing, voluntary and intelligent in the respect of law, we conclude that the State failed to carry its burden of demonstrating understanding of the true nature of the charge against him. Thus, as a matter Offen moved to New Hampshire, without more, provided him with an We cannot conclude, in the case before us, that a reference to the date