State of New Hampshire v. Nathan Chernis

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2017-0652, State of New Hampshire v. Nathan
Chernis, the court on November 2, 2018, issued the following
order:

Having considered the briefs, the oral arguments of the parties, and the
record submitted on appeal, we conclude that a formal written opinion is
unnecessary in this case. The defendant, Nathan Chernis, seeks interlocutory
review of the Circuit Court’s (Spath, J.) order denying his Motion to Dismiss.
See Sup. Ct. R. 8. The transferred question for our review is whether double
jeopardy bars the continued prosecution of the defendant for an open container
violation and driving under the influence (“DUI”). We conclude that it does not,
and we therefore affirm the trial court’s ruling and remand the case for trial.

The record supports the following facts. On February 3, 2016, the
defendant was arrested for an open container violation and DUI. During an
October 2016 hearing, the defendant, who was self-represented at the time,
pleaded guilty to the DUI pursuant to an agreement with the State. After the
Trial Court (Gordon, J.) approved the agreement and accepted the defendant’s
plea, the State informed both the defendant and the trial judge that this guilty
plea would classify the defendant as a habitual offender. The following
discussion ensued between the trial court and the defendant:

The Court: Were you aware that this would certify you as a
habitual offender?

Mr. Chernis: No, sir; I was not.

The Court: Okay. Do you still want to go forward with your plea?

Mr. Chernis: I will — honestly like to consult somebody who knows
something about that if that’s going to be the case.

The Court: I think that’s an excellent idea. Now, you are here for a
plea today. You’ve already been arraigned on the complaint. If I
were to schedule you out for a case status hearing in 30 days, do
you want to do that?

Mr. Chernis: And I would just need to talk to an attorney before
then or — I already was talking to an attorney that I was
considering putting on retainer so, yeah, 30 days should be fine to
have that all taken care of.
 The Court: Now, I’m just going to put it in for a case status
hearing, and I’m going to destroy the acknowledgement and the
sentencing order which I just completed, okay?

Mr. Chernis: Sorry, Your Honor.

The Court: I’m going to destroy those —

Mr. Chernis: Oh, no. I said I’m sorry; I understand what you’re
saying.

The defendant’s plea was subsequently vacated by the trial court.
Thereafter, the defendant retained counsel and filed a motion to dismiss on
double jeopardy grounds. The Trial Court (Spath, J.) denied the defendant’s
motion following a hearing. This interlocutory appeal followed.

The defendant argues that the trial court withdrew his plea and vacated
the conviction without his prompting or approval. He posits that the conviction
was not properly vacated because he did not acquiesce to such a result, but,
given that the trial court destroyed the record of conviction and sentence, the
Double Jeopardy Clauses of the State and Federal Constitutions prohibit a trial
on the charge. In ruling on the defendant’s motion to dismiss, the trial court
found that the defendant “accepted the opportunity to withdraw his plea in
order to consult an attorney.” Thus, we must determine whether the trial court
properly found that the defendant withdrew his guilty plea. In reviewing the
trial court’s ruling, we accept its factual findings unless they lack support in the
record or are clearly erroneous, and we review its legal conclusions de novo.
Barnet v. Warden, N.H. State Prison for Women, 159 N.H. 465, 468 (2009).

On review of the record, we conclude that the trial court did not err in
finding that the defendant withdrew his guilty plea. Following the initial plea
colloquy, the State informed the defendant and the trial court that as a result
of the guilty plea the defendant became eligible for habitual offender
certification — an action the State was not required to take. Cf. State v. Elliott, 133 N.H. 190, 192 (1990) (“[W]e have consistently held that a sentencing court
need not advise a defendant about the habitual offender law before accepting a
guilty plea to a predicate offense under that law.” (citations omitted)). The trial
court then asked the defendant whether he wanted to move forward with his
plea knowing this consequence. In response, the defendant requested the
opportunity to speak with an attorney and agreed to a case status hearing
thirty days later. Moreover, when the trial court explained that it would
“destroy the acknowledgement and the sentencing order which [it] just
completed,” the defendant responded that he understood. In ruling on the
motion to dismiss, the trial court found that this exchange amounted to the
trial judge offering the defendant the option to withdraw his plea in order to
speak with counsel, which the defendant accepted. This finding is supported
by the record. See Barnet, 159 N.H. at 468.

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 The defendant argues that his actions should not be construed as a
withdrawal of his plea because he did not explicitly move to vacate his
conviction. He suggests that instead of vacating his conviction, the trial court
should have maintained the “status quo” and done nothing with his conviction,
while affording him an opportunity to speak with an attorney. Even if we were
to assume that this was an option available to the trial court, the defendant
provides no authority for his claim that the constitution requires such an
option.1 Furthermore, the trial court found — and the record supports — that
the defendant accepted the offer to withdraw the plea in order to consult with
an attorney. To the extent that the defendant argues that, because he did not
explicitly move to withdraw his plea, he did not want it revoked, that assertion
is not supported by the record. Moreover, the fact that the defendant seeks to
nullify his original conviction and avoid exposure to any punishment at all
indicates that he does not want to be subject to the conviction to which he
originally pleaded guilty. The only legally binding way for the defendant to
dispose of that conviction was to, as the trial court determined, withdraw his
guilty plea. See United States v. Franco, No. 00 CR. 300 (LMM), 2003 WL
21305352, at *6 (S.D.N.Y. June 6, 2003) (“Where a defendant withdraws a
guilty plea, that does not entitle him to dismissal, but a trial.”).

Because we conclude that the trial court did not err in finding that the
defendant withdrew his plea, the double jeopardy provisions of the State and
Federal Constitutions do not bar his further prosecution on the original
charges. See United States v. Kim, 884 F.2d 189, 191-92 (5th Cir. 1989)
(“When defendant repudiates the plea bargain, either by withdrawing the plea
or by successfully challenging his conviction on appeal, there is no double
jeopardy (or other) obstacle to restoring the relationship between defendant and
state as it existed prior to the defunct bargain.” (quotation and brackets
omitted)); see also Serfass v. United States, 420 U.S. 377, 393 (1975) (noting
“the fundamental principle that an accused must suffer jeopardy before he can
suffer double jeopardy”).

Affirmed and remanded.

LYNN, C.J., and HICKS, BASSETT, HANTZ MARCONI, and DONOVAN,
JJ., concurred.

Eileen Fox,
Clerk

1 In this case the defendant — who is charged with a class B misdemeanor and a violation level

offense — is not constitutionally entitled to counsel. State v. Westover, 140 N.H. 375, 377 (1995)
(holding that where there is no possibility of imprisonment “the defendant does not have a right to
appointed counsel”). The trial court, therefore, by allowing the defendant to withdraw his plea and
obtain counsel to assist him, provided the defendant with greater protection than the law requires.

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