State v. Percy, Brief for the State, New Hampshire Supreme Court

8/12/2019 State v. Percy, Brief for the State, New Hampshire Supreme Court

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THE STATE OF NEW HAMPSHIRE

SUPREME COURT

2014 TERM

No. 2013-0648

State of New Hampshire

v.

Benjamin Percy

APPEAL PURSUANT TO RULE 7 FROM A JUDGMENT OF THE2ND CIRCUIT COURTDISTRICT DIVISIONLEBANON

BRIEF FOR THE ATTORNEY GENERAL


Joseph A. FosterAttorney General

Natch GreyesFellow

NH Bar # 265230Criminal Justice Bureau33 Capitol StreetConcord, N.H. 03301-6397(603) 271-3671(5-minute 3JX argument)


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TABLE OF CONTENTS

TABLE OF CONTENTS ................................................................................................ iTABLE OF AUTHORITIES ......................................................................................... iiISSUES PRESENTED ................................................................................................... 1STATEMENT OF THE FACTS and case ..................................................................... 2SUMMARY OF THE ARGUMENT ............................................................................ 6ARGUMENT ................................................................................................................. 7I. THE DEFENDANTS CHALLENGE TO HIS DECEMBER 2007 PLEA IS

MOOT BECAUSE HIS SENTENCE HAS BEEN SERVED AND BARREDBYLACHESBECAUSE HE DID NOT TIMELY SEEK REDRESS. ............. 7

II. THE CIRCUIT COURT PROPERLY REJECTED THE DEFENDANTSMOTION BECAUSE THE DEFENDANT UNDERSTOOD THAT HE WASPLEADING GUILTY WITH THE ASSISTANCE OF COUNSEL. .............. 10

III. THE DEFENDANTS ATTORNEY PROPERLY ENTERED A PLEA ONBEHALF OF HIS CLIENT. ............................................................................. 12

IV. DEFENSE COUNSEL DID NOT REPRESENT THAT THE DEFENDANTINTENDED TO TAKE THE CASE TO TRIAL. ............................................ 18

CONCLUSION ............................................................................................................ 20


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TABLE OF AUTHORITIES

Cases

Board of School Commrs v. Jacobs, 420 U.S. 128 (1975) ........................................... 7

DAllesandro v. United States, 517 F.2d 429 (2d Cir. 1975)....................................... 13

Diamontopoulas v. State, 140 N.H. 182 (1995) ........................................................... 11

Healey v. Town of New Durham Zoning Bd. of Adjustment, 140 N.H. 232 (1995) ....... 8

In re Belair, 158 N.H. 273 (2009) ................................................................................. 8

In re Smith, 339 P.2d 796 (Okla. Crim. App. 1959) ...................................................... 9

In re Southard, 217 A.2d 49 (Vt. 1966) ................................................................. 13, 17

Leonhart v. McCormick, 395 F. Supp. 1073 (W.D. Pa. 1975) ...................................... 7

McCray v. State, 699 So. 2d 1366 (Fla. 1997) ............................................................... 9

Millette v. Warden, 141 N.H. 653 (1997) ...................................................... 7, 8, 10, 11

Otero-Rivera v. United States, 494 F.2d 900 (1st Cir. 1974) ...................................... 13

Richard v. MacAskill, 129 N.H. 405 (1987) .......................................................... 11, 17

Roy v. Perrin, 122 N.H. 88 (1982) ................................................................................. 8

Schlup v. Delo, 513 U.S. 298 (1995) ............................................................................. 8

Stano v. Dugger, 921 F.2d 1125 (11th Cir. 1991) ....................................................... 16

State ex rel. Smalley v. Morgan, 211 Wis. 2d 795 (Wis. Ct. App. 1997) ...................... 9


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State v. LaRose, 71 N.H. 435, 438, 52 A. 943 (1902) ................................................... 7

State v. Ortiz, 163 N.H. 506 (2012) ............................................................................... 7

State v. Percy, No. 452-2007-CR001981 (2nd Cir. Aug. 5, 2013) .............................. 10

State v. Thornton, 140 N.H. 532 (1995) ...................................................................... 11

United States ex rel. Hairston v. Myers, 237 F. Supp. 472 (E.D. Pa. 1965) .......... 13, 16

United States v. Denniston, 89 F.2d 696 (2d Cir. N.Y. 1937) ........................... 6, 12, 13

Other Authorities

21 Am. Jur. 2d Criminal Law 676 (2008) ................................................................... 7

Rules

F.R.CRIM.P.11 Notes on Advisory Committee on Rules ......................................... 14


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ISSUES PRESENTED

I. Whether the defendants challenge to his December 2007 plea is moot andbarred by lachesbecause his 2007 sentence has already been served and

the State would be unfairly prejudiced in its attempt to try the defendant.

II. Whether the lower courts determination that the defendant was fullyaware of the terms of the plea agreement and knowingly and voluntarily

assented to his attorney entering a nolo contendereor guilty plea on his

behalf was clearly erroneous.

III. Whether the court properly accepted the plea negotiated by the State anddefendant, which was reduced to writing, and discussed throughout the

legal proceeding, and where the defendant raised no objection to it.

IV. Whether the defendant disputed his intention to plead nolo contendereorguilty, where defense counsel pointed out the shortcomings of the States

case, but reiterated the defendants request that the court accept the

negotiated plea.


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The court then explained the nature of the penalty to the defendant, including

that it could impose a fine of between $500 to $1,200 and the defendant could lose his

operating privileges for nine months to two years. Tr. 3. The court also explained that

it could subtract up to six months of the license suspension. Tr. 3. The court then

detailed the penalty for a subsequent offense. Tr. 34. The court concluded its initial

statement to the defendant by saying, Youre waiving your right to a trial. Youre

giving up your right to challenge the reason the police stopped your vehicle, any

subsequent evidence they may have developed during their investigation. Do you

understand that? Tr. 4. The defendant replied, Yes, your Honor, Tr. 4. The court

then asked the defendant whether he had any questions regarding the information in

the form of any questions that I can answer in general? Tr. 4. The defendant replied,

No, sir. Tr. 4.

The court then asked the State for an offer of proof. Tr. 4 5. After the State

gave the facts that formed the basis for the arrest, the court addressed the defendants

attorney, who told the court what the defense would have done were we to litigate

this case. Tr. 5 7. He concluded by stating, [f]or those various reasons we would

ask the Court to accept a negotiated settlement. Tr. 7.

Next, the court discussed the agreement with the attorneys, ultimately deleting

the first item of the agreement, without objection from the State and the defense. Tr.

8. The court then addressed the defendant, reading the terms of the agreement to him:

Mr. Percy, it will be a 500 plus $100 fine, nine month suspension ofyour right to operate in New Hampshire, with the ability to petition theCourt for reinstatement after 90 days provided you enter into theprogram approved by the State within 45 days. Comply with theprogram requirements and then follow what is ordered on page 2 of this


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three-page order that in part tells you that you have the ability topetition and outlines the methodology, and well give you a copy of

that out of the clerks window.

Tr. 89. See also D.B.A. 29, 32 (containing a handwritten reference to the agreement

(Attachment A) on the Acknowledgment and Waiver of Rights: DUIFirst

Offense form (hereinafter Acknowledgement and Waiver)and the agreement, in the

form of Attachment A, itself).2

The defendants attorneythen stated that he had one other request and asked

if the court would follow the pretrial credit for suspension recommendation

contained in Judge Kellys memo for the Superior Courts. Tr. 9. However, the

defendants attorneyassured the court that Mr. Percy is not seeking to withdraw his

pleaif the court did or did not follow the pretrial recommendation. Tr. 9.

In July 2013, five and a-half years after he was stopped, the defendant filed a

motion to vacate his conviction. In this motion, he alleged that it is a foundational

requirement for a plea of guilty to be accepted that the defendant actually enter a plea

of guilty and that the defendant himself never said that he was guilty; nordid

Attorney Apfel enter a plea of guilty on his behalf. D.B.A. 3 4. On July 29, 2013,

the State filed an objection raising as its basis the fact that Attorney Apfel requested

that the court accept the settlement that the State and defense worked without

contradiction from the defendant,meeting the legal standard, and there was no need

for the defendant himself to speak the word guilty.D.B.A. 34. On August 5, 2013,

the trial court denied the defendantsmotion, citing the States objection as the reason

for the denial.

2D.B.A. refers to the appendix to the Defendants brief.


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A motion to reconsider was filed on August 15, 2013, reiterating the

defendants position. The State objected to that motion for the same reasons as

articulated in its July 29, 2013 response. The Circuit Court denied the defendants

motion.

This appeal followed.


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SUMMARY OF THE ARGUMENT

I. The defendants challenge to his December 2007 plea is mootbecause hehas served his sentence or barred by lachesbecause he sat on his rights for

too long enough and the State would be unfairly prejudiced in its attempt

to retry the defendant.

II. The lower courts determination that the defendant clearly understoodthathe was pleading guilty with the assistance of counselwas amply

supported by the record and, therefore, not clearly erroneous.

III. A defendants attorney may enter a plea of nolo contendereor guilty forhis client under circumstances which fairly show that the attorney speaks

for his client who understands what is being done and its import and who

acquiesces. The court did not err by accepting the negotiated plea

agreement. The defendant had signed an Acknowledgment and Waiver, the

court explained the terms of the agreement to him, and the defendant was

given the opportunity to ask questions during the hearing. The court

committed no error in accepting the plea and imposing a sentence.

IV. The trial court committed no error when it did not ask the defendant aboutthe States offer of proof. The defendants lawyer responded to the offer by

explaining the likely defense strategy and by asking the court to accept the

agreement. The defendant was given the opportunity to ask questions and

the record supports the trial courts ruling.


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ARGUMENT

I. THE DEFENDANTS CHALLENGE TO HIS DECEMBER 2007PLEA IS MOOT BECAUSE HIS SENTENCE HAS BEEN SERVED

AND BARRED BYLACHES

BECAUSE HE DID NOT TIMELYSEEK REDRESS.

The defendants challenge to his December 2007 nolo contendereor guilty

plea3(hereinafter plea)is moot and barred by lachesbecause he sat on his rights.

His 2007 sentence has already been served and, as such, the claim is moot. Moreover,

there has been a long enough delay and the State would be unfairly prejudiced in its

attempt to try the defendant and, as such, the claim is barred by laches.

This Court will generally will refuse to review a question that no longer

presents a justiciable controversy because issues involved have become academic or

dead.Millette v. Warden, 141 N.H. 653, 655 (1997) (internal quotation omitted). A

case is mootwhen a determination is sought on a matter which, when rendered,

cannot have any practical effect on the existing controversy.Leonhart v.

McCormick, 395 F. Supp. 1073, 1077 (W.D. Pa. 1975). See alsoBoard of School

Commrs v. Jacobs, 420 U.S. 128, 129 (1975) (where the high school students who

had brought the case to restrain certain school regulations had graduated the case was

moot). Here, unlikeMillette, the defendant is not currently serving a sentence

3In New Hampshire, nolo contenderepleas have the same legal effect as guilty pleas. SeeStatev. Ortiz, 163 N.H. 506, 509 (2012) (Because a conviction results from a plea of nolo contendere,we find no reason here to distinguish a noloplea from a plea of guilty. See State v. LaRose, 71N.H. 435, 438, 52 A. 943 (1902) ([A] plea of nolo contenderehas the same legal effect as a pleaof guilty.); 21 Am. Jur. 2d Criminal Law 676 (2008)(For practical purposes, a plea of nolocontendereis a plea of guilty, or the functional or substantive equivalent of such a plea. (footnoteomitted)). Therefore, our jurisprudence regarding guilty pleas is applicable here.). As aconsequence, the State treats the intended plea, whether nolo contendereor guilty, as equivalentthroughout this brief.


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based, in whole or in part, on a sentence he received as a result of his plea. See

Millette, 141 N.H. at 655. The defendant was sentenced on December 12, 2007 to a

nine month suspension of his right to operate a motor vehicle in the State of New

Hampshire and $500 plus $100 fine. Tr. 8. The nine month sentence of suspension

had already been served by the time the defendant filed a motion to vacate his

conviction with the Lebanon Circuit Court in July 2013, nearly six years after the

sentence was imposed. Therefore, this challenge is moot and the court should refuse

to review it.

In addition, the defendants motion to vacate his conviction should be barred

by laches. The defendants motion to vacate his conviction is, in effect, a petition for

writ ofhabeas corpusand, therefore, subject to equitable defenses. The State never

tried the defendant. He plead. Therefore, the defendants motion is really a petition

for writ ofhabeas corpusas he is actually claiming the plea was constitutionally

defective. Since a writ ofhabeas corpusis an equitable remedy, it is subject to

equitable defenses. Schlup v. Delo, 513 U.S. 298 (1995) ([H]abeas corpusis, at its

core, an equitable remedy.);Healey v. Town of New Durham Zoning Bd. of

Adjustment, 140 N.H. 232, 241 (1995) (Lachesis an equitable doctrine.).

Lachesis an equitable doctrine that bars litigation when a potential plaintiff

has slept on his rights. The doctrine of lachesis not a mere matter of time, but is

principally a question of the inequity of permitting the claim to be enforced.In re

Belair, 158 N.H. 273, 279 (2009). This Court has discouraged petitions filed after

significant delays. See, e.g.,Roy v. Perrin, 122 N.H. 88 (1982) (holding that the


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defendant was not permitted to raise an issue in a habeas corpusproceeding after

unjustifiably remaining silent about the issue for four years).

The defendant does not explain why he failed to file for post-conviction relief

for nearly six years after his sentence was imposed in December 2007. In other

jurisdictions, such delay and probable loss of evidence has been sufficient to find

filings for post-conviction relief barred by laches. See, e.g.,McCray v. State, 699 So.

2d 1366 (Fla. 1997) (holding post-conviction relief barred by lacheswhere there was

a 15 year delay in filing petition and the defendant gave no reason for the delay);

State ex rel. Smalley v. Morgan, 211 Wis. 2d 795 (Wis. Ct. App. 1997) (holding post-

conviction relief barred by lacheswhere there was a seven year delay in filing petition

and no reason the defendant could not have learned of failure to file appeal during

that time);In re Smith, 339 P.2d 796 (Okla. Crim. App. 1959) (holding post-

conviction relief barred by lacheswhere there was a 24 year delay in filing for relief,

including 10 years spent on parole, the trial judge had probably forgotten the case,

and evidence had been destroyed due to the passage of time).

The delay in filing his motion would prejudice the State since memories rarely

improve with age. As a result, the Court should decline to review the claim as it is

both untimely and moot.


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II. THE CIRCUIT COURT PROPERLY REJECTED THEDEFENDANTS MOTION BECAUSE THE DEFENDANT

UNDERSTOOD THAT HE WAS PLEADING GUILTY WITH THE

ASSISTANCE OF COUNSEL.

Despite his delay in filing for relief, the defendant still contends that he is

entitled to relief. D.B. 19.4He argues that the written plea agreement and colloquy

were insufficient as an admission of guilt or other recognized substitute. D.B. 6.

This Court will not overturn a trial courts finding of fact unless unsupported

by the record. Gelinas v. Metropolitan Property & Liab. Ins. Co., 131 N.H. 154, 164

(1988) (internal quotations omitted) (brackets in original) (The standard of review

we apply to a trial courts factual findings is that [a]bsent an abuse of discretion, we

will not overturn the trial courts findings unless it clearly appears they were made

without evidence.). This court will not overturn the trial courts determination on a

mixed question of law and fact unless that determination is clearly erroneous.Great

Lakes Aircraft Co. v. Claremont, 135 N.H. 270, 282 (1992). The court agreed with the

States objection. D.B. 11. It found that [t]he Defendant clearly understood that he

was pleading guilty with the assistance of counsel and that the sentence would be

imposed as negotiated with the exception that the Court did not believe it had the

power to make orders regarding the ALS suspension and its impact on the Court

ordered suspension.Id.

In reviewing entry of a guilty plea, this Court must determine whether the

existing record of the case clearly indicates that the petitioner entered his plea

knowingly and voluntarily.Millette, 141 N.H. at 655. This Court will not limit its

4D.B. refers to the Defendants Brief.


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review of the record to the dialogue between the trial judge and the petitioner during

the plea hearing to determine whether the record indicates a knowing and voluntary

plea.Id.at 65556. See, e.g., State v. Thornton, 140 N.H. 532, 538 (1995) (signed

acknowledgment of rights form, motion to dismiss, and hearing thereon are

considered part of the record);Diamontopoulas v. State, 140 N.H. 182, 185 (1995)

(signed acknowledgment of rights form is considered part of the record);Richard v.

MacAskill, 129 N.H. 405, 409 (1987) (noting that a written waiver of rights form is

considered part of the record).

The defendant was fully aware of the terms of the plea agreement and

knowingly and voluntarily assented to his attorney entering plea on his behalf. The

record contains not only the colloquy between the court and defendant, along with the

State and defense attorneys representations in court, but also a written waiver of

rights form which includes the words See Attachment A and bears the defendants

name above the signature line. D.B.A. 29, 30. Attachment A was the negotiated plea

agreement that the court eventually accepted as the sentence. CompareD.B.A. 32,

withTr. 89.

Nothing suggests that the plea was anything except knowing, voluntary, and

intelligent. The defendant had a college degree. SeeD.B.A. 30. He was given the

opportunity to ask questions of the court. Tr. 4. He told the court that he understood

his loss of rights. Tr. 4. Therefore, the defendant knew what the terms of the

negotiated agreement were and understood that he was pleading guilty with the

assistance of counsel during the hearing. As a consequence, the trial court committed

no error in accepting his knowing, voluntary, and intelligent plea.


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III. THE DEFENDANTS ATTORNEYPROPERLY ENTERED A PLEAON BEHALF OF HIS CLIENT.

The defendants main issue on appeal centers on the argument that the court

erred during the colloquy with the defendant because it did not specifically ask the

defendant whether he wanted to plead nolo contendere, guilty, or not guilty. SeeD.B.

4. In the defendants view, then, error existed because (1) there was no admission of

guilt . . . on the record, D.B. 6, and (2) the State Bar would be well served by a

policy requiring the pronouncement of guilt to come from the defendant personally

before the acceptance of any guilty plea. D.B. 7.

The defendants contention, however, is unpersuasive. The law allows a

defendants attorney under circumstances which fairly show that the attorney speaks

for his client who understands what is being done and its import and who acquiesces

to enter a nolo contendereor guilty plea on behalf of his client. See United States v.

Denniston, 89 F.2d 696 (2d Cir. 1937). Moreover, all the facts and circumstances

surrounding sentencing indicate that the defendant intended to change his plea at the

plea hearing. Tr. 19.

A. The law allows the defendants attorney under circumstances whichfairly show that the attorney speaks for his client who understands

what is being done and its import and who acquiesces to enter a nolo

contendereor guilty plea on behalf of his client, the defendant.

The defendant argues for a prophylactic rule that an attorney may not enter a

plea of nolo contendereor guilty for a defendant. D.B. 57. United States v.

Dennistonstands for the proposition that:

If an indicted [or charged] person is actually present in open court withhis attorney who is competent to represent him and does so undercircumstances which fairly show that the attorney speaks for his client


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who understands what is being done and its import and who acquiesceswhen the attorney enters a plea of guilty for him, nothing but a slavishadherence to archaism could underlie a holding that the plea was void.

Id.at 698.

AlthoughDennistonpredated the 1966 change in Rule 11 of the Federal Rules

of Criminal Procedure, it is still valid law.DAllesandro v. United States, 517 F.2d

429, 434 (2d Cir. 1975) (first set of ellipses added) (second set of ellipses present in

original) (The 1966 amendment to Rule 11 . . . was not intended to resuscitate what,

in United States v. Denniston, 89 F.2d 696, 698 (2nd Cir. 1937), cert. denied, 301

U.S. 709, 57 S. Ct. 943, 81 L. Ed. 1362 (1937), we called the technical objection

that a plea that was entered by the attorney and not by the appellant personally . . . is

of no effect.).

AsDennistonstated, such an objection is a mere technical objection to the

plea itself.Denniston, 89 F.2d at 698. It is of no effect.Id.at 698. It is well

settled that an attorney may, in the presence of the defendant and on his behalf, enter

a plea of guilty. United States ex rel. Hairston v. Myers, 237 F. Supp. 472, 475 (E.D.

Pa. 1965). Both the United States Court of Appeals for the First Circuit and the

Vermont Supreme Court have adoptedDennistons reasoning. See Otero-Rivera v.

United States, 494 F.2d 900, 904 (1st Cir. 1974) (United States v. Denniston, 89 F.2d

696, 698 (2d Cir. 1937) indicates that the circumstances must fairly show that the

attorney speaks for his client who understands what is being done and its import and

who acquiesces . . . .);In re Southard, 217 A.2d 49, 51 (Vt. 1966) (ellipses added)

(At common law the accused was required to plead in person. 21 Am. Jur. 2d

Criminal Law, 459. In the case of United States v. Frank J. Denniston, 89 F.2d 696,


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the court failed to subscribe to the rigidity of the common law procedure with the

following comments: . . . It is our view that neither 13 V.S.A. 7002, nor Article 10

of Chapter I of the Vermont Constitution, make it mandatory that a plea of guilty

must be made personally by an accused.).

Under the federal rule, a court must address the defendant personally in the

course of determining that the plea is made voluntarily and with understanding of the

nature of the charge. F.R.CRIM.P.11 Notes on Advisory Committee on Rules. A

court must make sure that a defendant understands the nature of the charge and give

him the chance to tell the court that the plea is not voluntary. See id.

Before the hearing, the defendant signed and reviewed with his lawyer the

Acknowledgment and Waiver, and referenced the plea agreement eventually accepted

by the court as Attachment A. SeeTr. 3 (Mr. Percy, with respect to the

acknowledgement of rights form, did you and Mr. Apfel review that? Yes, your

Honor.); D.B.A. 29, 31. Further, the court addressed the defendant and the defendant

responded appropriately. Tr. 34, 79. The circumstances surrounding the hearing

demonstrated that all of the parties, including the defendant, understood the purpose

of the hearing. Tr. 4, 79. The defendants contention now that his plea was

defective because he did not personally enter it is without support on the record.

B. The defendant intended to plead nolo contendere or guilty at theplea hearing.

The defendant notes that the Acknowledgment and Waiver does not require an

entry of intended plea. D.B. 6. But this contention ignores the fact that a handwritten

note on that signed form referenced the plea agreement negotiated by the State and


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defense, Attachment A. D.B.A. 29. The terms of Attachment A, as supplied in the

defendants brief at D.B.A. 32, contained the same sentence imposed by the court.

CompareD.B.A. 32, withTr. 89. This agreement was discussed by the court and

counsel throughout hearing. Tr. 19. Throughout the proceeding, the defendant was

not only clearly informed of the range of sentences, Tr. 3 (court describing to the

defendant the possible sentences), and the fact that he was waiving some of his

constitutional rights, Tr. 34; D.B.A. 29, but also that both his own attorney and the

States attorney were advocating for the court to impose the sentence referenced on

the Acknowledgment and Waiver. Tr. 19. The defendant knew at the time the court

read the sentence to him that the terms of the agreement were virtually the same as the

terms imposed. CompareD.B.A. 32, withTr. 89.

Further, the record supports the conclusion that the defendant knew that he

was giving up certain rights by pleading guilty. CompareD.B.A. 29, withTr. 4. He

signed and reviewed with his lawyer the Acknowledgment and Waiver. Tr. 4. The

Acknowledgment and Waiver stated that by pleading GUILTY or NOLO to the

complaint he would be giving up certain rights. D.B.A. 29. The court asked the

defendant if he understood that he was giving up those rights mentioned in the

Acknowledgment and Waiver. CompareD.B.A. 29, withTr. 4. The defendant noted

on his plea form that he held a college degree. D.B.A. 30. It is reasonable to conclude

that a defendant with that level of education would have understood that, in waiving

his rights to a trial, he was no longer contesting his guilt.

The record is clear that the defendant intended to waive his right to trial. See

Tr. 19; D.B.A. 29, 32. It would have been unreasonable for him to sign the


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Acknowledgment and Waiver if he was not intending to plead, as the handwritten

note on it referenced Attachment A, which was clearly a proposed punishment. He

made no objection during the proceedings. SeeTr. 19. He was silent when his own

lawyer stated that Mr. Percy is not seeking to withdraw his plea if the answer is no.

Tr. 9. Thus, the circuit court made no error in denying the defendants motion and this

court should affirm.

C. The defendants proposed rule is unnecessary.Finally, the defendant argues that the State Bar would be well served by a

policy requiring the pronouncement of guilt to come from the defendant personally

before the acceptance of any guilty plea. D.B. 7.This suggestion is at odds with the

jurisprudence surrounding a plea. [I]t is not the attorney, but the defendant who

enters a guilty plea and who is questioned by the court to determine whether the plea

is made voluntarily, knowingly, and intelligently.Stano v. Dugger, 921 F.2d 1125,

1140 (11th Cir. 1991) (citingHaring v. Prosise, 462 U.S. 306, 319 (1983)). The

concern, then, is on the interaction between the defendant and the court, not the

lawyers. See id. at 1140 (Although counsel is physically present with the defendant

during plea proceedings, the actual plea is between the court and the defendant.).

Therefore, the State Bar would see no benefit as a consequence of a prophylactic rule

that the defendant must always say the word guilty when entering a plea.

The current rule, which is widely employed and well-settled, has long served

defendants and courts. See, e.g., United States ex rel. Hairston v. Myers, 237 F. Supp.

472, 475 (E.D. Pa. 1965) (It is well settled that an attorney may, in the presence of

the defendant and on his behalf, enter a plea of guilty.);In re Southard, 217 A.2d 49,


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51 (Vt. 1966) (ellipses added) (At common law the accused was required to plead in

person. 21 Am. Jur. 2d Criminal Law, 459. In the case of United States v. Frank J.

Denniston, 89 F.2d 696, the court failed to subscribe to the rigidity of the common

law procedure with the following comments: . . . It is our view that neither 13 V.S.A.

7002, nor Article 10 of Chapter I of the Vermont Constitution, make it mandatory

that a plea of guilty must be made personally by an accused.).Such a rule allows the

trial court to make certain that the plea represented a voluntary and intelligent

choice among the alternative courses of action open to the defendant.Richard v.

MacAskill, 129 N.H. 405, 40708 (1987) (quotingNorth Carolina v. Alford, 400

U.S. 25, 31 (1970)). In this case, the trial court was satisfied that the defendants plea

was knowing, voluntary, and intelligent. SeeD.B. 11. It rejected the defendants claim

to the contrary. D.B. 11. The defendants proposed prophylactic rule does nothing to

enhance the trial courts ability to make sure the plea is knowing, intelligent, and

voluntary.


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that the negotiated plea was appropriate in a case that the defense felt was not

overwhelming. Despite the shortcomings of the States case, however, defense

counsel reiterated that the defendant wanted the court to accept the negotiated plea

agreement.

The trial court committed no error when it declined to allow the defendant to

withdraw his plea on this ground.


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CONCLUSION

For the foregoing reasons, the Attorney General asks this court to affirm the

judgment of the Circuit Court.

Respectfully submitted,


By its attorneys,

Joseph A. Foster

Attorney General

____________________________Natch GreyesFellowCriminal Justice Bureau33 Capitol StreetConcord, N.H. 03301-6397(603) 271-3671

February 26, 2014

I hereby certify that two copies each of the foregoing were mailed this day, postageprepaid, to Jared Bedrick, counsel for the Defendant.

Natch Greyes

State v. Percy, Brief for the State, New Hampshire Supreme Court

Documents

Transcript of State v. Percy, Brief for the State, New Hampshire Supreme Court