2009-801, Danien Brousseau v. Superintendent, Hillsborough County House of Corrections

The petitioner, Danien Brousseau, appeals the order of the

general, on the brief and orally), for the State. Michael A. Delaney, attorney general (Nicholas Cort, assistant attorney

for the petitioner. Richard Guerriero, public defender, of Concord, on the brief and orally, to press. Errors may be reported by E-mail at the following address:

SUPERINTENDENT, HILLSBOROUGH COUNTY HOUSE OF CORRECTIONS

page is: http://www.courts.state.nh.us/supreme. DANIEN BROUSSEAU

No. 2009-801 editorial errors in order that corrections may be made before the opinion goes Hillsborough-northern judicial district Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

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 plea today.

you want to try this case, I guess . . . we’ll try it.

fine off to permit the Court -- at its discretion -- to go forward with

THE [PETITIONER]: Yes, sir.

THE COURT: Sir, is that the agreement?

. . . .

THE COURT: All right.

plea, if they wish to have that. So if what you’re telling me is that

maintain that he’s entitled to time to pay, he’s opting to serve the MS. MELONE: Your Honor, my client -- while we

THE COURT: Yes. it and appeared in district court for sentencing. acknowledgement and waiver of rights form with counsel, the petitioner signed that be paid? my client? MS. MELONE: Your Honor, may I have a moment with punishments, the petitioner agreed to pay a $500 fine. After reviewing an

plea on that basis. . . . [P]eople have to be able to perform on their THE COURT: Well, I’m disinclined to accept a negotiated

requesting time to pay it, because he’s been incarcerated. MS. MELONE: Your Honor, [the petitioner is] going to be

and the condition of good behavior [and a] $500 fine. How would (operating without a license). As part of his plea, in addition to other in the House of Corrections, ten months suspended for two years [ ] disobeying a police officer, [the plea agreement is for] 1 p. 2 2 months plethora of charges in front of the Court. . . . [W]ith regard to the State agreed to THE COURT: All right, for the record, there are a

following exchange occurred: As the district court was reviewing the terms of the plea agreement, the

arrest, conduct after an accident, and disobeying an officer) and to a violation petitioner agreed to plead nolo contendere to three misdemeanors (resisting

p. 2 2009. On that day, the parties negotiated a plea agreement pursuant to which misdemeanor charges was scheduled in Manchester District Court for April 27, the district court violated the petitioner’s constitutional rights.

p. 3 of his original plea, we need not decide whether, by rejecting his original plea, 3

constitutional rights that occurred prior to [its] entry.”

the petitioner pled original plea by entering a new plea. As the superior court stated: “Because plea constituted a waiver of his right to challenge the district court’s rejection a renegotiated plea agreement.” Because we conclude that the petitioner’s new “waive[d] his right to contest this constitutional violation when he entered into [its] voluntary and intelligent character.” Tollett, 411 U.S. at 267. Tollett, 411 U.S. at 267. Having entered a plea, a defendant may only “attack Gaffney, 469 F.3d 211, 215 (1st Cir. 2006) (quotation and citation omitted); see unconditionally waives all “independent claims relating to the deprivation of to expeditiously resolve the criminal proceedings against him.” United States v. defendant’s decision to leave behind claims of constitutional error in an effort chain of events which has preceded it in the criminal process, and reflects a The Tollett court “reasoned that a guilty plea represents a break in the

(1987). petitioner waived his right to challenge the district court’s rejection of his without warranting its soundness.” Richard v. MacAskill, 129 N.H. 405, 407 which [Tollett] was concerned. We will proceed on the same assumption, but that a plea of considering [his] financial inability to pay”; and (2) whether the petitioner nolo contendere is functionally equivalent to a plea of guilty, with 411 U.S. 258, 267 (1973). “[B]oth the parties and the trial court have assumed the house of corrections pending the issuance of its ruling. Tollett v. Henderson,

A guilty plea, voluntarily, knowingly, and intelligently made,

court’s action had violated the petitioner’s equal protection rights, the

the grounds that [he] was unable to pay the fine immediately, without court violated his constitutional rights “when it rejected a plea agreement on May 5, 2009, and, on the same day, ordered the petitioner to be released from On appeal, the petitioner raises two questions: (1) whether the district could not pay his entire fine at once. The superior court heard argument on constitutional rights to equal protection when it “refused” his plea because he waived his right to challenge that violation now.” does not argue that his plea was not knowing, intelligent, or voluntary, he has

On July 2, 2009, the superior court ruled that although the district

superior court, arguing that the district court violated his state and federal Shortly thereafter, the petitioner brought a habeas corpus petition in

(2007), accepted the plea, and imposed the agreed-upon terms. Alabama, 395 U.S. 238, 242-44 (1969); State v. Lopez, 156 N.H. 193, 200 The district court then engaged the petitioner in a plea colloquy, see Boykin v. rights by rejecting his original plea. p. 4 petitioner waived any claim that the district court violated his constitutional

deemed waived. intelligently, and voluntarily.” rights occurring before its entry, we hold that by entering a new plea, the sentence legal, regardless of whether that consent was given knowingly,

See Guyotte v. O’Neill, 157 N.H. 616, 623 (2008). is also beyond the scope of the petitioner’s questions in his notice of appeal. voluntariness of a confession. See State v. Kelly, 159 N.H. 390, 394 (2009). This argument legality of his sentence, he did not brief this argument, and, therefore, it is rule that a plea waives all claims relating to the deprivation of constitutional petitioner intimated at oral argument that he was, in fact, challenging the Hampshire, consent of the defendant cannot make an otherwise illegal be so expanded. We, therefore, decline his invitation. To the extent that the proposition and does not develop an argument as to why our case law should judge in sentencing.” (Emphasis added.) He cites no authority for this agreement does not waive his right to challenge unconstitutional actions of the regarding illegal sentences and hold that “a defendant who enters [into] a plea plea must be vacated”). In his brief, the petitioner urges that we expand our existing case law has not been informed of the direct consequences of his plea, and, thus, the

Constitution; (7) a statute of limitations claim; and (8) a challenge to the

unconstitutionally by rejecting his original plea. Consistent with our general suspended sentence by previously negotiating a plea. We explained: “In New but instead claims that, before the district court accepted his new plea, it acted In this case, the petitioner is not challenging the legality of his sentence,

any constitutional defect in the sentence that arises when a sentence is illegal, a guilty plea is involuntary because the defendant Dansereau, 157 N.H. 596, 603 (2008) (declining to adopt general rule “that, omitted); see State v. Burgess, 141 N.H. 51, 54 (1996). But cf. State v.

Trial Act claim; (5) a constitutional challenge to a criminal statute; (6) upon a so-called “jurisdictional” element of a criminal statute; (4) a Speedy State’s assertion that the defendant had waived his ability to challenge his example, in State v. Moran, 158 N.H. 318, 320-21 (2009), we rejected the Molinas v. Commissioner of Correction, 652 A.2d 481, 487 (Conn. 1994). For

However, “[a] guilty plea does not foreclose a petitioner from challenging

an interstate commerce nexus; (2) a discovery violation claim; (3) a claim based guilty plea waives an appeal based upon: (1) claims of insufficient evidence of motion to suppress. Id. The First Circuit Court of Appeals has ruled that a plea, a defendant waives the right to appeal a trial court’s ruling upon his N.H. 821, 822 (1981). We have held, for instance, that, by entering a guilty New Hampshire follows this general rule. See State v. Parkhurst, 121 plea was not knowing, intelligent, or voluntary.” p. 5 The trial court specifically observed that the petitioner “does not argue that his

informed the court, “[W]hile we maintain that he’s entitled to time to pay, he’s petitioner volunteered to be incarcerated to “serve the fine off.” As his counsel knowing or intelligent character of his plea. Indeed, the record shows that the

made this claim to the superior court, and it is not preserved for our review.

when his parole became effective.”

arose before he entered his new plea. The

argument, the petitioner conceded that he did not challenge the voluntary,

voluntarily, knowingly or intelligently made, he has not demonstrated that he

continued incarceration did not become apparent until several years later, not alert the petitioner to the right at issue because its alleged impact on his constitutional defects. Molinas plea agreement “itself did not arise until after he entered his plea, in this case, the petitioner’s claim Moreover, whereas in Molinas, the petitioner’s constitutional claim did

time spent in jail rather than through time payments.” Further, at oral “voluntarily ple[d] no contest knowing that he would satisfy the fine through he was doing when he entered into the no contest plea” and that he To the extent that the petitioner seeks now to argue that his plea was not

forward with the plea today.” (Emphasis added.) opting to serve the fine off to permit the Court -- at its discretion -- to go occurring before its entry, it cannot constitute a waiver of subsequent

knowingly and intelligently made. In his brief, he concedes that he “knew what years of probation, and a $20,000 fine. Here, by contrast, the petitioner admits that his plea was voluntarily,

acknowledged that while a plea constitutes a waiver of constitutional claims not knowing, voluntary or intelligent. Id. at 486-88. The appellate court his failure to pay the fine could result in continued incarceration, his plea was not informed when he entered into the plea agreement seven years earlier that Id. at 483-84. The appellate court concluded that because the defendant was petition for a writ of habeas corpus, which was granted and upheld on appeal. paroled, but was not released because he had not paid the fine. Id. He filed a

then sentenced to a twelve-year term to be suspended after seven years, five the state of twelve years imprisonment.” Molinas, 652 A.2d at 483 n.4. He was a narcotics charge in exchange for a promise of a “sentence recommendation by In Molinas, the petitioner accepted a plea offer in 1989, pleading guilty to

A.2d at 486-87. Molinas, however, is factually distinguishable from this case. plea on equal protection grounds. For support, he relies upon Molinas, 652 expressly waive his right to challenge the district court’s rejection of his original made, the petitioner argues that it cannot be a waiver because he did not While conceding that his plea was voluntarily, knowingly and intelligently allow the defendant to perform community service in lieu of payment. p. 6 court has the discretion to defer payment, order periodic payments thereof, or before leaving the courthouse and, if the court finds that he is indigent, the

defendant “shall be required to complete an affidavit of resources, under oath,”

inability to pay” a court-ordered fine “forthwith.” Pursuant to that rule, the follow District Court Rule 2.7 when faced with a defendant who “indicates an the exercise of our supervisory authority, we strongly urge the district courts to

requiring payment of a fine when a defendant is financially unable to do so. In

BRODERICK, C.J., and DUGGAN, HICKS and CONBOY, JJ., concurred.

the petitioner’s assertions that district courts commonly reject plea agreements the defendant a reasonable opportunity to raise funds sufficient to pay the fine. the plea, but defer imposition of sentence for a brief period of time to provide Ct. R. 2.7. Additionally, it is well within the district court’s discretion to accept

While we do not need to reach the issue in this case, we are troubled by

before he entered his new plea. from the district court’s rejection of the petitioner’s original plea occurred