2021-0009, State of New Hampshire v. Ernesto Rivera

We affirm in part, vacate in part, and remand. his claim that his counsel in the 2020 re sentencing procedure was ineffective. impermissibly “increase d” certain of his sentences and that it erred by rejecting on certain of his 2015 conviction s. On appeal, he argues that the trial court Superior Court (Temple, J.) denying his motion to vacate his 2020 re sentencing HICKS, J. The defendant, Ernesto Rivera, appeals an order of the

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

memorandum of law and orally), for the State. general (Eliza beth C. Woodcock, senior assistant attorney general, on the John M. Formella, attorney general, and Anthony J. Galdieri, solicitor

No. 2021 - 0009 Hillsborough - southern judicial district

page is: https://www.courts.nh.gov/our - courts/supreme - court 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 email 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

sentences” by considering the defendant’s convictions “anew. . . tak[ing] i nto trial. As the parties had agreed, the trial court “fashion[ed] appropriate defendant on all of his remaining convictions, including those from his second January p. 2 2020 at which, by agreement of the parties, the court re sentenced the The Superior Court (Temple, J.) held a new sentencing hearing in

offenses). were replaced by the felon - in - possession convictions (the lesser - included his motion was granted, and t he armed ca reer criminal convictions, in effect, or more criminal episodes”). Accordingly, the defendant moved to vacate them, statute “applies only to persons whose qualifying convictions arise from three unlawful. See Folds, 17 p. 2 2 N.H. at 527 (holding that the armed career criminal N.H. 513 (2019), rendered the defendant’s armed career criminal convictions The parties subsequently agreed that our holding in State v. Folds, 172

aggregate prison term of 33.5 to 67 years. witness tampering. Thus, in p. 2 2015, the defendant was sentenced to an trial), but concurrently with the 3.5 - to - 7 year sentences for solicitation of to - 20 year stand committed sentence for possession with intent (from his first The 12 - mo nth sentence was to be served consecutively to the defendant’s 10 sentence for one of his domestic - violence - related simple assault convictions. co nvictions from his second trial; it imposed a stand committed 12 - month intent. The court suspended all but one of the defendant’s sentences for the tampering to be served consecutively to the sentence for possession with concurrent 3.5 - to - 7 year stand committed sentences for solicitation to witness inte nt to be served consecutively to the armed career criminal sentences, and court imposed a 10 - to - 20 year st and committed sentence for possession with (2014). For the remaining convictions from the defendant’s first trial, the trial consecutive 10 - to - 20 year stand committed sentences. See RSA 159:3 - a, II convictions. For the armed career criminal convictions, the trial court imposed armed career criminal convictions and not on the felon - in - possession armed career criminal charges, the trial court sentenced the defendant on the Be cause the felon - in - possession charges were lesser - included offenses of the the defendant on all convictions at a single hearing in December 2015. By agreement of the parties, the Superior Court (Garfunkel, J.) sentenced

and five counts of domestic - violence - related simple assault. one count of possession of a narco tic drug, one count of criminal threatening, solicitation of witness tampering. At his second trial, the jury convicted him o n possession of a narcotic drug with intent to sell or dispense, and four counts of the lesser - incl uded charge of being a felon in possession, one count of defendant o n two counts of being an armed career criminal and two counts of p. 2 2015 on different sets of charges. At his first trial, the jury convicted the The relevant facts follow. The defendant had two separate jury trials in

I. Facts p. 3 3

v. De C ato, 156 N.H. 570, 57 p. 3 3 (2007). questions of law, inc luding questions of constitutional law, de novo. See State decision de novo. State v. Willey, 163 N.H. 532, 541 (2012). We review that the sentencing decision violated his constitutional rights, we review that N.H. 562, 567 (2019). However, when, as in this case, the defendant argues under our unsustainable exercise of discretion standard. State v. Castine, 172 and brackets omitted). We ordinarily review a trial court’ s sentencing decision regard to sentencing.” State v. Benner, 172 N.H. 194, 198 (2019) (quotation “In general, trial judges are vested with broad discretionary po wers with

A. 2020 Sentences for Narcotic Possession and Criminal Threatening

II. Analysis

defendant’s motion. This appeal followed. re sentencing proceeding. Following a hearing, the trial court denied the ineffective assistance of counsel in connection with the January 2020 had impermissibly increased those sentences, and asserting that he received sentences for the convictions from his second trial, arguing that the trial court The defendant subsequently moved to vacate his stand committed

an aggregate prison term of 18 to 41 years. consecutively to one another. Thus, in 2020, the defendant was sentenced to concurrently with the sentence for possession of a narcotic drug and su spended sentences for domestic - v iolence - related simple assault to be served sentences for domestic - violence - related simple assault; and ( p. 3 3) 12 - month concurrently with the sentence for narco tic possession and consecutively to the month stand committed sentence for criminal threatening to be served sentence for possession with intent from the defendant’s first trial; (2) a 12 possess ion of a narcotic drug conviction to be served consecutively to the the following sentences: (1) a 3.5 - to - 7 year stand committed sentence for the his second trial). For the convictions from his second trial, the court imposed served consecutively to the defendant’s sentence for narcotic possession (from concurrent 3.5 - to - 7 year sentences for solicitation to witness tampe ring to be committed sentence of 7.5 to 2 0 year s for possession with intent; and (3) one of the sentences for solicitation to witness tampering; (2) a stand sentences for the felon - in - possession convictions to be served consecutively to imposed the following sentences: (1) concurrent 3.5 - to - 7 year stand committed For the convictions from the defendant’s first trial, the trial court

resentencing.” could impose “all new sen tences” and that the proceeding was “a de novo The parties indicated their understanding and agreement that the trial court history, [the] aggravating [and] mitigating factors, and the sentencing rules.” account the facts and circumstances of [the defendant’s] crimes, [his] criminal p. 4 4

defendant’s prior sentences; rather, at the specific request of the parties, the misplaced because here, the 2020 sentencing court did not “modify” the with the trial court that the defendant’s reliance on that body of law is upon the court’s ability to correct a sentence after pronouncing it.”). We agree v. Ortiz, 1 62 N.H. 585, 596 (2011) (“Due process . . . imposes an outer limit sentencing court does not have authority to later increase the sent ence”); State “where the original sentence is clear as to the intent and is legal, the sentence. See State v. Fletcher, 158 N.H. 207, 211 (2009) (explaining that due process limitations on a trial court’s ability to modify a previously - imposed To support his argument, the defendant relies upon case law concerning

12 p. 4 4 N.H. 226, 231 - 33 (1983). Constitution and rely upon federal law only to aid our analysis. State v. Ball, process rights. We first address the defen dant’s claim under the State sentencing court impermissibly increased his sentences in violation of his due for his narcotic possession and criminal threatening convictions, the 2020 contends that by imposing stand committed, instead of suspended, sentences See N.H. CONST. pt. I, art. 15; U.S. CONST. amends. V, XIV. Specifically, he entered in his second trial “to the extent that it increased those sentences.” federal constitutio nal rights to due process by re sentencing him for convictions The defendant next asserts that the trial court violated his state and

court, i ntentionally or unintentionally”). doctrine, “a party may not avail himself of error into which he has led the trial (1999) (quotation and brackets omitted) (explaining that under the invited error including those from his second trial. See State v. Goodale, 1 p. 4 44 N.H. 224, 227 the parties agreed that the defendant would be resentenced on all counts, t he federal “sentencing package” doctrine in Abram is misplaced because here, intent.” Id. (quotation omitted). The defendant’s reliance on our rejection of defendant on the affirmed charges in order to effectuate its original sentencing the federal district court may rebundle the package by resentencing the have held that when one or more counts of a ‘bundled’ s entence are vacated, (quotation s omitted). With this presumption “in mind, several federal courts sentences on the various counts form part of an overall plan.” Id. at 654 strong likelihood that the distr ict court will craft a disposition in which the that when a defendant is found guilty on a multicount indictment, there is a Under the federal “sentencing package” doctrine, “federal courts presume

(2008). We disagree. “sentencing package” doct rine. S ee State v. Abram, 1 p. 5 56 N.H. 6 p. 4 46, 654 - 56 his first trial and because New Hampshire has not adopted the federal consecutive with the sentences on the armed career criminal convictions from original sentences for those convictions were neither concurrent to n or resentencing him for any of the convictions from his second trial because the On appeal, the defendant first ar gues that the trial cour t erred by 5

Landry, 131 N.H. 6 p. 5 5, 68 (1988). Therefore, to establish a due process violation McCullough, 475 U.S. at 140 (quotation s and brackets omitted); see State v. penalty . . . than that the first sentence r imposed a lenient penalty.” from the first. But it no more follows that such a sentence is a vindictive second sentence r will impose a punishment more severe than that received 27 (1973). “[W] hen different sentence r s are involved, it may often be that the motivation to engage in self - vindication.” Chaffin v. Stynchcombe, 412 U.S. 17, the same judicial authority” as the first, the second judicial authority has “no sent encing.”) (collecting cases). When “the second sentence is not meted out by presumption when different judges preside over the first and second Cir. 2010) (“[W]e join our seven sister circui ts that. . . do not apply the by different judges.”); United States v. Rodriguez, 602 F.3d 346, 358 - 59 (5th of vindictiveness] . . . does not apply . . . when the two proceedings are handled Twitty, 104 F.3d 1, 2 (1st Cir. 1997) (“We have held . . . that [the presumption assessed the varying sentences that [the defendant] received.”); United States v. (1986) (“The presumption is . . . inapplicable because different sentencers by two dif ferent judges.” Id.; see Texas v. McCullough, 475 U.S. 134, 140 Nor does it apply where, as here, “the disparate sentences were imposed

Id. sentence was imposed following a trial de novo in a two - tiered court system.” (quotations omitted). For instance, it does not apply “where . . . the second applies only when “there is a realistic likelihood of vindictiveness.” Id. sentence” after a successful appeal. Id. at 6 p. 5 52 (quotation omitted). Rather, it does not arise in every case where a convicted defendant receives a higher Abram, 156 N.H. at 652 - 53. However, “[t] his presumption of vindictiveness In some circumstances, a presumption of vindictiveness arises. See

must affirmativel y appear.” Pearce, 39 p. 5 5 U.S. at 726. a successful appeal of the defendant’s conviction, “the reasons for his doi ng so . . . whenever a judge imposes a more severe sentence upon a defendant,” after U.S. 794 (1989). “In order to assure the absence of such a motivation, U.S. 711, 725 - 26 (1969), overruled on other grounds by Alabama v. S mith, 490 Abram, 156 N.H. at 652 (quotation s omitted); see North Carolina v. Pearce, 395 successful appeal “not be the result of judicial or prosecutorial vindictiveness.” “[D] ue process requires that any increased sentence. . . imposed” after a

was the entry of new [sentences].”). federal court; “[t]hus, the matter before the court at the resentencing hearing of the defendant’s original sentences because they had been vacate d by the Goode, 710 S.E.2d 301, 303 (N.C. Ct. App. 20 11) (“[T]here was no modification” appealed his conviction following a trial, or his original sentence. S ee State v. court has imposed a new sentence after the defe ndant has successfully imposed. Instead, we liken the circumstances here to those in which a trial court sentenced the defendant “anew,” as if the 201 p. 5 5 sentences had never been p. 6 6

p. 6 651, we reach the same result under both constitutions. th e Federal Constitution under these circumstances, see Abram, 156 N.H. at 140. Because the State Constitution provides at least as much protection as N.H. at 148 (decided under Federal Constitution); McCullough, 475 U.S. at sentences were within the trial court’s sound discretion. See Hurlburt, 135 we hold that his due process rights were not v iolated and that the 2020 defendant has pointed to no indicia of vindictiveness,” L andry, 131 N.H. at 68, defendant’s narcotic possession and criminal threatening convictions. “As the discretion, imposed stand committed, instead of suspended, sentences for the burden of proving actual vindictiveness. The 2020 sentencing court, in its Accordingly, w e conclude that the defendant has failed to meet his

defendant]”). the seriousness of the offenses, to protect the public, and to punish [the and concluded that imposing consecutive sentences “was necessary to reflect defendant’s “extensive criminal history and the violence of the offense conduct,” the trial transcript and the newly prepared presentence r eport,” considered the of actual vindictiveness where the resentencing court “thoroughly review [ed] See Goodell v. Williams, p. 6 643 F.3d 490, 5 02 (6 th Cir. 2011) (finding no evidence that they were the product of actual vindictivene ss by the sentencing judge. increased sentences and contains nothing to suggest a reasonable likelihood sentences.” The record, therefore, establishes a reasonable basis for the punishment, de terrence, and rehabilitation in constructing [the 2020] was convicted. T he court “carefully considered [the] sentencing goals of considered the specific circumstances of the crimes for which the defendant leaving the other state, to work and “get [his] kids back.” The court also convictions” in another state, and mitigating factors, such as his ability, after 1991 conviction on a “very serious drug” charge and his “multiple assault 2020 sentencing court considered aggravating factors, such as the defendant’s reason[s] for the sentence[s].” McCullough, 475 U.S. at 140. Specifically, the sentencing court provided “on - the - record, wholly logical, nonvindictive We next turn to the evide nce of actual vindictiveness. Here, t he 2020

than his 2015 suspended se ntences for those convictions. sentences for narcotic possession and criminal threatening are more severe assumption, we agree with the defendant that his 2020 stand committed 2015 sentences, we consider each sentence individually. With that evaluate whether the defendant’s 2020 sentences were mor e severe than his For the purposes of this discussion, we assume without deciding that to

de novo appeal to superior court). U.S. at p. 7 799 - 800; cf. Landry, 131 N.H. at p. 6 67 - 68 (discussing resentencing after (1991) (decided under Federal Constitution) (quotation omitted); see Smith, 490 “must prove actual vindictiveness.” State v. Hurlburt, 135 N.H. 143, 14 7 when disparate sentences are imposed by two different judges, the defendant 7

necessary — for the C ourt to resentence the defendant on the convictions defendant’s armed career criminal convictions, “it was pro per — if not overruled such an objection.” The court explained that when it vacated the vacated the armed career criminal convictions, “[t]he C ourt would have decision to resentence the defendant on all of his convictions, after having The court found that even if defense counsel had objected to the trial court’s claim because he failed to satisfy the second prong of our two - prong analysis. The trial court rejected the defendant’s ineffective assistance of counsel

de novo. Id. of law, and we review its ultimate determination of whether each prong is met findings unless they are unsupported by the evidence or erroneous as a matter and fact. Collins, 166 N.H. at 213. We will not disturb the trial court’s factual prejudice components of the ineffectiveness inquiry are mixed questions of law undermine confidence in the outcome. Id. Both the performance and 1 p. 7 71 N.H. 445, 449 (2018). A reasonable probability is a probability sufficient to different had competent legal representation been provid ed. State v. Wilbur, reasonable probability that the result of the proceeding would have been defendant must demonstrate actual prejudice by showing that there is a adopted. See Collins, 166 N.H. at 212 - 13. To satisfy the second prong, the must overcome the presumption that counsel’s strategy was reasonably that he failed to function as the counsel the State Constitution guarantees and (1984). The defendant must show that counsel made such egregious errors standard of reasonableness.” Strickland v. Washington, 466 U.S. 668, 687 - 88 defendant must show that counsel’s representation fell below an o bjective To satisfy the first prong of the test, the performance prong, “the

constitutionally defective. Id. to establish either prong requires a finding that counsel’s performance was not the outcome of the case. State v. Collins, 166 N.H. 210, 212 (2014). A fa ilure deficient and, second, that counsel’s deficient performance actually prejudiced must demonstrate, first, that counsel’s representation was constitutionally To prevail upon a claim of ineffective assistance o f counsel, the defendant

only to aid in our analysis. Ball, 124 N.H. at 231 - 33. defendant’s claim under the State Constitution, and rely upon federal case law N.H. CO NST. pt. I, a rt. 15; U.S. CONST. amend. VI. We first examine the guarantee a criminal defendant reasonably competent assistance of counsel. with the 2020 resentencing proceeding. The State and Federal Constitutions claim that his counsel rendered ineffective assistance of counsel in connection The defendant next asserts that the trial court erred by rejecting his

B. Ineffective Assistance of Counsel at 2020 Sentencing Hearing p. 8 8

the new sentences should be consecutive or concurrent. If it had done so, the court properly could ha ve considered those sentences when deciding whether convictions from the defendant’s second trial remained unchanged, the trial Here, ha d defense counsel objected, and the 2015 sentences for the

concurrent or consecutive sentences). 4 6 (2007) (discussing factors the court may consider when deciding to impose sentences. Cf. Duquette v. Warden, N.H. State Prison, 154 N.H. 737, 739, 74 5 discretion to make a particular sentence consecutive or concurrent to other sentenc ing. Indeed, a trial court must consider such facts when exercising its sentenced on more than one count, or is serving other sentences at the time of doctrine, a trial court need not be blind to the fact that a defendant is being Although in Abram we declined to adopt the federal “sentencing package”

convictions from the second trial remained unchanged is an o pen question. have been more favorable to the defendant had the sentences imposed for the Strickland, 466 U.S. at 694 - 95 (emphasis added). Whether the result would

“nullification,” and the like. exclude the possibility of arbitrariness, whims y, caprice, the likelihood of a result more favorable to the defendant must that the judge or jury acted according to law. An assessment of challenge to the judgment on grounds of evidentiary insufficiency, in the required prejudice, a court should pre sume, absent In making the determination whether the specified errors resulted

applied: counsel analysis. As the Supreme Court has noted in explaining the test to be does not necessarily satisfy the prejudice prong of the ineffective assistance of However, that the result would have been different had counsel objected

remained unchanged. senten ces imposed for the convictions from the second trial would have sustained the objection. Thus, the result would have been different, in that the defense counsel objected, the trial court, consistent with Abram, should have the defendant’s first and second trials are not interrelated. Accordingly, h ad actually interrelated.” Abram, 156 N.H. at 655, 656. Here, the cha rges from have multicount convictions, regardless of whether the individual charges are affords trial courts the discretion to resentence all defendants who happen to overruled the objection. In Abram, we eschewed adopting “a blanket rule that that, even if defense counsel had objected, the court would have properly We agree with the defendant that the trial court erred when it decided

would have been diffe rent, he failed to satisfy the second prong of the analysis. defe ndant could not show that the result of the 2020 sentencing proceeding stemming from his second trial.” Thus, the court determined that because the p. 9 9

BASSETT, HANTZ MARCONI, and DONOVAN, JJ., concurred.

prong of inef fective assistance test first). reasonableness.” Strickland, 466 U.S. at 6 88, 6 p. 9 97 (court may consider either trial counsel to the resente ncing process “fell below an objective standard of court may choose first to address whether the agreement by the defendant’s prong of the ineffective assistance of counsel test. Thus, on remand, the trial In addition, the trial court, understandably, did not analyze the first

opinion. properly overruled, and we remand for further proceedings consistent with this resentencing on the second trial convictions, the objection would have been upon the court’s erroneous ruling that had defense counsel objected to prong of the ineffective assistance of counsel test because it was premised opinion on that matter. We vacate the trial court’s ruling on the prejudice resentencing on the second trial convictions. Accordi ngly, we express no should have sustained the objection, had it been made by defense counsel, to the defendant must make in this case beyond showing that the trial court The parties have not fu lly briefed what showing of prejudice, if any, that

him than the aggregate prison term the court, in fact, imposed in 2020. to an aggregate prison term of 18 to 41 years, which is no more favorable to convictions from the second trial intact, the defendant would have been subject trial as it actually imposed in 2020 and if it had left the 2015 sentences for the and otherwise imposed the same sentences for the convictions from the first sentences consecutive, instead of concurrent. If the trial court had done so trial court could have, for instance, decided to make the felon - in - possession