2016-0176, The State of New Hampshire v. Paul R. Santamaria

trial counsel withdrew from the ca se and, through appellate counsel, the sentenced the defendant to incarceration for twelve month s. The defendant’s to set aside the verdict, which the court denied. Subsequently, the co urt defendant was convicted of first degree assault. His trial counsel filed a motion The record supports the following facts. On June 10, 1998, the

We affirm. Superior Court (MacLeod, J.) d ismissing his petition for a writ of coram nobis. HICKS, J. The defendant, Paul R. Santamaria, appeals an order of the

orally), for the defendant. Green & Utter, P.A., of Manchester (Philip H. Utter on the brief and

general, on the brief and orally), for the State. Joseph A. Foster, attorney general (Sean R. Locke, assistant attorney

N o. 2016 - 0 176 Grafton

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 to press. Errors may be reported by E - mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concor d, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New 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

statutes amending it). T he parties have not suggested, nor do we discern, any 90 as recognizing the continuation of English common law and English ....”); State v. Rollins, 8 N.H. 550, 563 - 65 (1837) (interpreting Part II, Article forc e by the constitution, so far as they are n ot repugnant to that instrument in amendment of it... were in force here... and they have been continued in very often decided, that the body of the common law, and the English statutes 90; Dennett v. Dennett, 43 N.H. 499, 50 p. 2 2 (1862) (“It has been long settled, and rights and liberties contained in [our] constitution.” N.H. CONST. p t. II, art. matter of New Hampshire common law so long as it is not “repugnant to the common law prior to adoption of our constitution, it continues to exist as a Because the writ of coram nobis existed within the body of English

“successful pe titions for coram nobis are hen’ s - teeth rare”). reserved for the rarest of cases. See George, 676 F.3d at p. 2 254 (stati ng that Fordham L. Rev. 979, 979 (1990). Granting such an extraordinary writ is McN ally Review of Invalid Convictions Through the Writ of Coram Nobis, 58 avail himself of the writ of habea s corpus.” M. Diane Duszak, Note, Post - “discovered when the petitioner is no longer in custody and therefore cannot George, 676 F.3d 249, 251 (1st Cir. 2012). The writ addresses errors the writ as the “criminal - law equivalent” of a “Hail Mary pass.” United States v. century England.” Id. at 597. The First Circuit Court of Appeals has described “The writ of coram nobis is an ancient writ that developed in sixteenth

Nevada Constitution). 60 0 (Nev. p. 2 2013) (determining that the writ of coram nobis is authorized by the authority in our State Constitution. See Trujillo v. State, 310 P.3d 594, 599 nobis. We express no opinion as to whether the writ has a second source of have not argued otherwise, we discuss only the common law writ of coram a writ of coram nobis). In so doing, we make clear that, because the parties without discussing, the defendant’s appeal was not moot because he could file of coram nobis. See State v. Almodovar, 158 N.H. 548, 550 (2009) (concluding, This case requires us for the first time to disc uss the extraordinary writ

This appeal followed. “sound reasons” for failing to seek proper relief earl ier. (Quotation omitted.) new trial, or in a habeas corpus petition,” and because he failed to show should have, raised this claim earlier either on direc t appeal, in a motion for a petition, ruling that he was procedurally barred because he “could have, and for ineffective assistance of trial counsel. The trial court denied the defendant’s filed a petition for a writ of coram nobis seeking to have his conviction vacated On December 30, p. 2 2014, sixteen years after his conviction, the defendant

affirmed his conviction. See id. expert witness. See State v. Santamaria, 145 N.H. 1 p. 3 38, 139 ( p. 2 2000). We trial and the trial court’s decision to permit a pol ice officer to testify as an defendant appealed to this c ourt, challenging the sufficiency of the evidence at 3

court to correct an error of fact which did not appear on the record.” Duszak, violation). “The writ of coram nobis was traditionally brought before the trial (1954) (holding that coram nobis is available to correct a constitutional assistance of counsel. See United State s v. Morgan, p. 3 346 U.S. 502, 512 - 13 of coram nobis may be used to assert a legal error, such as ineffective We next consider whether, as the defendant argues, a petition for a writ

hold that RSA 526:1 does not abrogate t he writ. clearly repeal or replace the common law writ of coram nobis. Accordingly, we clearly by the legislature.” Id. T he plain language of RSA 526:1 does not such purpose.” Id. “If such a right is to be taken away, it must be expressed abolish a common law right, there is a presumption that the legislature has no Gordon - Couture v. Brown, 152 N.H. 265, 266 (2005). “While a statute may in derogat ion of the common law are to be interpreted strictly.” Estate of justice has not been done and a furthe r hearing would be equitable.” “Statutes may be granted in any case when through accident, mistake or misfortune coram nobis was abolished by RSA 526:1 (2007), which provides: “A new trial We first address whether, as the State contends, the c ommon law writ of

language that the legislature did not see fit to include.” Id. (quotation omitted). written and will not consider what the legislature might have said or add Id. (quotation omitted). “We interpre t legislative intent from the statute as possible, construe that language according to its plain and ordinary meaning.” (quotation omitted). “We first look to the language of the statute itself, and, if legislature as expressed in the words of the statute considered as a whole.” Id. matters of statutory interpretation, we are the final arbiter of the intent of the de novo.” State v. Maxfield, 167 N.H. 677, 679 (2015) (quotation omitted). “In interpretation. “Statutory interpretation is a question of law, which we review Resolving the issues in this appeal requires us to engage in statutory

case our standard for review ing the denial of petitions for habeas corp us. of coram nobis. See George, 676 F. p. 3 3d at 256. Accordingly, we apply in this the standard the First Circuit applies to review a denial of a petition for a writ State Prison for Women, 159 N.H. 465, 468 (2009). This standard is similar to but review the trial c ourt’s legal conclusions de novo. Barnet v. Warden, N.H. factual findings unless they lack support in the re cord or are clearly erroneous, denial of a petition for a writ of habeas corpus, we accept the trial court’s We begin by determining our standard of review. In an appeal from a

enj oyed in this state”). (establishing that the “privilege and benefit of the habeas corpus, shall be (guaranteeing rights to accused, including due process), pt. II, art. 91 rights guaranteed in our constitution. See N.H. CONST. pt. I, art. 15 Indeed, we see no conflict between the writ of coram nobis and other specific to the rights and liberties established by the New Hampshire Constitution. respect to which the availability of the writ of coram nobis would be repugnant p. 4 4

petition because he was in custody for only eight months. with the defendant ’s argumen t that he could not have fil e d a habeas corpus be adjudicated in the superior court by collateral review”). We also disagree N.H. 507, 52 p. 4 4 (2011) (generally ineffective assistance of counsel claims “should has long been available to criminal defendants. See State v. Thompson, 161 ed. 2010). A motion for a new trial based upon ineffective assistance of counsel Hampshire Practice: Criminal Practice and Procedure § 32.85, at 115 - 16 (5th within the meaning of RSA 526:1. See 2A Richard B. McNamara, New assistance of counsel cannot constitute “accident, mistake or misfortune” corpus”). We disagree with the defendant ’s assertion that a claim of ineffective of counsel claims on motions for new trial and petitions for writs of habeas that “in other cases this court has decided the merits of ineffective assistance a writ of habeas corpus. See State v. Pepin, 159 N.H. 310, 312 (2009) (stating that he could have b rought his claim in a motio n for a new trial or a petition for defendant’s claim cou ld not have been brought in a direct appeal, we conclude for a writ of habeas corpus. Even if we assume without deciding that the assistance claim earlier in a direct appeal, a motion for a new trial, or a petition The defendant argues that he could not have brought his ineffective

512. t he defendant has failed to meet that requirement. See Morgan, 3 p. 4 46 U.S. at 1108 (Md. 2015); State v. Hutton, 776 S.E.2d 621, 639 (W. Va. 2015). Here, earlier relief.” Morgan, 346 U.S. at 512; see State v. Smith, 117 A.3d 1093, coram nobis is that “sound reasons exist [] for fai l[ing] to see k appropriate A common threshold requirement to bringing a petition for a writ of

available to the defendant. Hampshire to correct legal errors because, even if it may be so used, it is not We need not decide in this case whe ther the writ may b e used in New

598 n. p. 4 4 (citing cases). address both factual errors and certain limited categories of legal errors. Id. at n.4 (citing cases). Another five jurisdictions allow the writ to be used to definition of the writ,” thus, limit ing it “to claims of f actual error.” Id. at 598 & have not abrogated the writ by statute, seven “strictly follow the common - law who are no longer in custody.” Trujillo, 310 P.3d at 598. In the states that relief from a judgment of conviction, and that remedy is available to petitioners post - conviction acts that provide a streamlined, single remedy for obtaining of coram nobis is not available . . . because those states have enacted uniform Such is not the cas e in most states. In the majority of states, “[t] he writ

Morgan, 3 p. 4 46 U.S. at p. 5 512 - 13. to correcting factual errors. Trujillo, 310 P.3d at 598 (citing cases); see correct violations of the Constitution and laws of the United States,” in addition supra at 981. In the federal courts, the writ of coram nobis is now “available to 5

DALIANIS, C.J.