State of New Hampshire v. Keith C. Fitzgerald

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Belknap
No. 2019-0280

THE STATE OF NEW HAMPSHIRE

v.

KEITH FITZGERALD

Argued: May 20, 2020
Opinion Issued: September 22, 2020

Gordon J. MacDonald, attorney general (Gregory M. Albert, assistant
attorney general, on the brief and orally), for the State.

Ramsdell Law Firm, of Concord (Michael D. Ramsdell on the brief and
orally), for the defendant.

HICKS, J. The defendant, Keith Fitzgerald, appeals an order of the
Superior Court (Smukler, J.) denying his motion for a new trial based on
ineffective assistance of counsel. After an evidentiary hearing on the motion,
the court ruled that the defendant failed to sustain his burden of showing that
the outcome of his case would have been different but for his counsel’s
performance. On appeal, the defendant argues that the trial court erred by
concluding that, even if defense counsel rendered ineffective assistance, the
defendant was not prejudiced by: (1) defense counsel’s failure to adequately
advise the defendant regarding the merits of the State’s plea offer; or (2)
counsel’s failure either to object to the trial court’s jury instructions on a
sentence enhancement provision on the basis that it had not been presented to
the grand jury for indictment, or to move for dismissal of the indictment on
that same basis. For the reasons that follow, we affirm in part, reverse in part,
and remand for further proceedings.

I

The trial court found, or the record supports, the following facts. In
December 2015, the defendant was indicted on five counts of theft by
unauthorized taking in violation of RSA 637:3 (2016). The following appears
near the bottom of each indictment: “RSA 637:3 (Class A Felony); 651:6” and
“Penalty: NHSP 7 ½ - 15 years and up to $4,000 fine.” Defense counsel, whose
assistance is alleged to have been ineffective, was retained by the defendant in
March 2016, after the defendant’s prior counsel withdrew. Prior to
representing the defendant, defense counsel had tried only one felony case,
which was a sexual assault case.

Defense counsel, the defendant, and the prosecutor engaged in several
plea discussions leading up to trial. In January 2016, the State offered a plea
agreement through the defendant’s previous counsel of five to ten years, stand
committed, with restitution in the amount of $409,980 on one indictment and
suspended incarceration on the four remaining indictments. The letter
containing the plea offer also purported “to notify [the defendant] of the
possible application of RSA 651:6 to each of the five indictments in this case
based upon RSA 651:6, I(l).” RSA 651:6, (I)(l) (2016) provides that a defendant
may be sentenced pursuant to the sentence enhancements contained in RSA
651:6, III (2016) if the defendant:

Has committed or attempted to commit any of the crimes defined
in RSA 637 or RSA 638 against a victim who is 65 years of age or
older or who has a physical or mental disability and that in
perpetrating the crime, the defendant intended to take advantage
of the victim’s age or a physical or mental condition that impaired
the victim’s ability to manage his or her property or financial
resources or to protect his or her rights or interests.

In June 2016, defense counsel drafted a counteroffer that included the
following terms: payment of $409,980 in restitution on a schedule of the
defendant’s choosing; a plea of guilty to all counts reduced to Class A
misdemeanors; one year in the house of corrections on each count to run
concurrently, all suspended for five years good behavior; and community
service. Before forwarding the counteroffer to the State, defense counsel e-
mailed it to the defendant for his consideration. In that e-mail he stated, “As
we have discussed in detail, you do not have to plead guilty at all, and you
have a right to have a trial.”

2
 The parties were unable to reach a plea agreement at the first settlement
conference in August 2016, but they filed an assented-to motion stating that
the “parties engaged in productive settlement discussions” and “are in
agreement that the defendant have some time to consider the State’s current
offer.” Following that conference, defense counsel sent an e-mail requesting
the State to reiterate its most recent plea offer. The State sent a reply e-mail
restating its latest offer, explaining that, in exchange for pleading guilty to each
of the five pending charges, the defendant would serve two years in the
Belknap County House of Corrections, followed by two years on administrative
home confinement. Additionally, the defendant would have a four to ten-year
suspended sentence with a window of ten years after completion of his final
year of home confinement. Defense counsel responded to the State’s offer with
the counteroffer that he and the defendant had discussed in June 2016. In his
e-mail to the State, defense counsel explained that the defendant “has not
ruled out a plea including some incarceration, so it makes sense to return to
the second day of the Settlement Conference regardless of your response [to the
defendant’s counteroffer].” The State rejected the defendant’s counteroffer and
stated that its most recent offer was “essentially as low as the State was willing
to go on a negotiated disposition.”

Defense counsel forwarded the State’s e-mail to the defendant and, in the
ensuing string of e-mails between the two, wrote that he was not “in any way
opposed to [the defendant] taking this case to trial.” Defense counsel indicated
to the defendant that he believed there was a very good chance that a jury
would find a reasonable doubt as to whether the defendant was not authorized
by his father to have the money at issue. Prior to trial, the defendant told
defense counsel in an e-mail that he was feeling good about their “direction” for
trial. Defense counsel replied, “I am feeling good about it too.”

At trial, the jury heard evidence that the defendant made a number of
transactions using his father’s assets without consulting his father or the
defendant’s siblings, and that, after obtaining his father’s durable power of
attorney, he moved his father’s assets from accounts and trusts in his father’s
name to accounts only in the defendant’s name. The jury also heard testimony
from the defendant that his father authorized the transactions. On cross-
examination, the State elicited a number of admissions from the defendant,
which defense counsel did not anticipate, that severely damaged the
defendant’s credibility and undercut his defense.

At the conclusion of trial, pursuant to the sentence enhancement
contained in RSA 651:6, the jury was instructed to determine whether the
defendant’s father was 65 years or older and whether the defendant, in
perpetrating a crime under RSA 637:3, intended to take advantage of the
victim’s age. Defense counsel did not object to these instructions, and never
moved for dismissal of the indictments, despite the fact that the sentence
enhancement provision was never presented to the grand jury. The jury

3
returned verdicts of guilty on all five counts of theft by unauthorized taking.
Additionally, the jury specified that it had determined that the State had
proven the sentence enhancement factors beyond a reasonable doubt.
Ultimately, the court sentenced the defendant to a term of not less than nine
and one-half years and not more than 25 years in the New Hampshire State
Prison.

Following his conviction, the defendant sent an e-mail to defense counsel
with the subject line “Elder Abuse (over 65 years old) charge?” in which the
defendant asked: “Can you please give me the info on the last charge they
found me guilty of? I can’t find it in the other indictments.” In response,
defense counsel informed the defendant that “[i]t is not a separate charge. It is
a sentence enhancement provision. That is the special felony aspect we
discussed. Let’s set up a time this week to talk or meet to discuss all of the
issues you are raising.”

On January 25, 2019, the court held an evidentiary hearing on the
defendant’s motion for a new trial based on ineffective assistance of counsel.
In support of his claim, the defendant presented testimony of defense counsel.
When asked about the advice that he provided to the defendant regarding the
sentence enhancement provision, defense counsel testified that he did not
“recall specifically talking to [the defendant] about the distinction between the
Class A felonies and the extended term.” Counsel further testified that, “having
reviewed the file, I don’t see any documents where I spelled [the sentence
enhancement provision] out for [the defendant] explicitly.” Counsel also
testified that he had believed that if the defendant were to be convicted at trial,
it would have been unlikely that he would have received a sentence of more
than three years. However, the defendant’s potential sentencing exposure was
actually 150 years due to the sentence enhancement contained in RSA 651:6.
Defense counsel further testified that he gave the defendant the impression
that the sentence he might receive if he were convicted at trial would be far less
significant than it turned out to be, and that the defendant relied upon
counsel’s opinion in deciding whether he should reject the State’s plea offer
and go to trial.

When testifying about what steps were taken to determine the
defendant’s potential sentencing exposure, defense counsel explained that he
and the defendant conducted research and shared “various verdicts associated
with cases similar to this and cases that are not as similar but similar.” On
cross-examination, defense counsel testified that his research did not include
“actual court document cases, it was more press — things that were in the
press.” Despite those efforts, defense counsel did not locate the most
comparable case to the defendant’s — in which the same judge imposed a
similar sentence in a case involving similar theft charges — and was unaware
of the sentence imposed in that case as a result. Counsel testified that, had he
been aware of the sentence in that case, he would have advised the defendant

4
to “strongly think about whether or not you want to take this case to trial,
because the sentence could be a lot worse.”

The trial court denied the defendant’s motion for a new trial based on
ineffective assistance of counsel, which requires a showing of: (1)
constitutionally deficient representation by counsel; and (2) actual prejudice to
the defendant. State v. Kepple, 155 N.H. 267, 269-70 (2007). With respect to
the issues of the indictment and jury instructions relating to the sentence
enhancement, the trial court ruled that the defendant failed to demonstrate
prejudice. The court explained that, notwithstanding the sentence
enhancement provision, the defendant’s potential sentencing exposure for each
of the five indictments was seven and one-half to 15 years, which equated to a
total maximum sentencing exposure of 37 and one-half to 75 years. The court
concluded that because the defendant’s sentence of nine and one-half to 25
years fell squarely within the defendant’s sentencing exposure without the
sentence enhancement, the defendant had failed to establish that his counsel’s
conduct prejudiced the outcome of his case.

As for the claim that defense counsel was ineffective during the plea-
bargaining process, the trial court noted that this court has not yet addressed
how to analyze the prejudice prong of such a claim. Applying the framework
developed by the Supreme Court of the United States in Lafler v. Cooper, 566
U.S. 156 (2016), the court explained that, to show prejudice in this context, the
defendant must satisfy the court that a reasonable probability exists that, but
for counsel’s ineffectiveness: (1) the plea offer would have been presented to the
court; (2) the court would have accepted its terms; and (3) the conviction or
sentence, or both, under the offer’s terms would have been less severe than
under the sentence that was imposed after trial.

The court assumed without deciding that the first and third prongs of the
test were met, but ruled that the second prong was not because the “defendant
offered no evidence of similar plea agreements in similar cases or any evidence
to suggest that the court would have accepted the plea agreement.” Therefore,
the court denied the defendant’s motion for a new trial. The defendant then
filed a motion to reconsider, which was also denied, and this appeal followed.

II

The defendant asserts that his counsel was ineffective under the State
and Federal Constitutions. Both Part I, Article 15 of the State Constitution and
the Sixth and Fourteenth Amendments to the Federal Constitution “guarantee
a criminal defendant reasonably competent assistance of counsel.” State v.
Hall, 160 N.H. 581, 584 (2010) (quotation omitted). The ineffective assistance
analysis is the same under both the State and Federal Constitutions. State v.
Wisowaty, 137 N.H. 298, 301 (1993). We first address the defendant’s claims

5
under the State Constitution, citing federal opinions for guidance only. Hall,
160 N.H. at 584.

To prevail upon a claim of ineffective assistance of counsel, the defendant
must demonstrate, first, that counsel’s representation was constitutionally
deficient and, second, that counsel’s deficient performance actually prejudiced
the outcome of the case. State v. Collins, 166 N.H. 210, 212 (2014). A failure
to establish either prong requires a finding that counsel’s performance was not
constitutionally defective. Id. We have recognized that the preferable course in
a challenge based on ineffective assistance of counsel is to require the
defendant to prove, as a threshold matter, that the alleged error by counsel
prejudiced his case. Wisowaty, 137 N.H. at 302. Courts, however, have the
flexibility to adopt the analytic approach that promotes clarity and ease of
review. Id.

To satisfy the first prong of the test, the performance prong, the
defendant must show that counsel’s representation fell below an objective
standard of reasonableness. Collins, 166 N.H. at 212. To meet this prong, the
defendant must show that counsel made such egregious errors that he failed to
function as the counsel that the State Constitution guarantees. Id. We judge
the reasonableness of counsel’s conduct based upon the facts and
circumstances of the particular case, viewed from the time of the conduct at
issue. Hall, 160 N.H. at 584. We afford a high degree of deference to the
strategic decisions of trial counsel, bearing in mind the limitless variety of
strategic and tactical decisions that counsel must make. Collins, 166 N.H. at
212-13. The defendant must overcome the presumption that trial counsel
reasonably adopted his trial strategy. Id. at 213. Accordingly, a fair
assessment of attorney performance requires that every effort be made to
eliminate the distorting effects of hindsight, to reconstruct the circumstances of
counsel’s challenged conduct, and to evaluate the conduct from counsel’s
perspective at the time. Id.

To satisfy the second prong, the prejudice prong, the defendant must
establish that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.
Id. A reasonable probability is a probability sufficient to undermine confidence
in the outcome. Id. Not every error that conceivably could have influenced the
outcome undermines the reliability of the result of the proceeding. Strickland
v. Washington, 466 U.S. 668, 693 (1984). On the other hand, a defendant
need not show that counsel’s deficient conduct more likely than not altered the
outcome in the case. Id. In conducting the prejudice inquiry, we consider the
totality of the evidence presented at trial. Collins, 166 N.H. at 213.

Both the performance and prejudice components of the ineffectiveness
inquiry are mixed questions of law and fact. Id. Therefore, we will not disturb

6
the trial court’s factual findings unless they are not supported by the evidence
or are erroneous as a matter of law, and we review the ultimate determination
of whether each prong is met de novo. Id.

We first address the defendant’s argument that his counsel was
ineffective for failing either to object to the trial court’s jury instructions on the
sentence enhancement contained in RSA 651:6 on the basis that it had not
been presented to the grand jury for indictment, or to move for dismissal of the
indictment on that same basis.

Whether a sentence enhancement must be alleged in an indictment is an
open question under the State Constitution, see State v. Marshall, 162 N.H.
657, 665 (2011), and, therefore, whether counsel’s conduct fell below an
objective standard of reasonableness is unclear. We need not decide this
question, however, because we agree with the trial court that, even if counsel’s
performance was constitutionally deficient, the defendant has failed to show
prejudice. See Strickland, 466 U.S. at 697 (“a court need not determine
whether counsel’s performance was deficient before examining the prejudice
suffered by the defendant as a result of the alleged deficiencies”).

Even if counsel had objected to the trial court’s jury instructions and the
objection had been sustained, there is nothing in the record to indicate that the
defendant would not have received the same or a similar sentence. As the trial
court correctly noted, the defendant’s sentencing exposure without considering
the sentence enhancement provision was anything up to 37 and one-half to 75
years, and the sentence that the defendant received of nine and one-half to 25
years is within that permissible range. Similarly, as the State points out, even
if defense counsel had successfully moved to dismiss the indictments for not
including the sentence enhancement provision, the State could have simply re-
indicted the defendant and included the sentence enhancement. Thus, the
defendant has failed to demonstrate a reasonable probability that, but for
counsel’s performance, the outcome of the proceeding would have been
different.

We turn next to the defendant’s argument that counsel was ineffective in
advising the defendant as to the merits of the State’s plea offer and the
defendant’s sentencing exposure at trial. A defendant’s right to reasonably
competent assistance of counsel under the State and Federal Constitutions
extends to the plea-bargaining stage of a proceeding. Lafler, 566 U.S. at 162;
Hall, 160 N.H. at 585. Accordingly, the two-part Strickland test applies.
Lafler, 566 U.S. at 162-63. Thus, to prevail on his claim of ineffective
assistance at the plea-bargaining stage, the defendant must show that: (1)
counsel’s performance was deficient; and (2) the deficient performance
prejudiced the defendant. Strickland, 466 U.S. at 687. The trial court did not
address the first prong of the Strickland test because the court ruled that the
defendant failed to demonstrate prejudice. However, because the record is

7
sufficiently developed for us to address the first prong as a matter of law, and
because the determination of whether each prong is met is a question that we
review de novo, see Collins, 166 N.H. at 213, we choose to address prong one
first to promote clarity and ease of review. See Wisowaty, 137 N.H. at 302.

The first prong requires the defendant to show that counsel’s
performance fell below an objective standard of reasonableness. Collins, 166
N.H. at 212. In the plea-bargaining context, prior to trial an accused is entitled
to rely upon his counsel to make an independent examination of the facts,
circumstances, pleadings, and laws involved and then to offer his informed
opinion as to what plea should be entered. Hall, 160 N.H. at 585. Counsel
must not only communicate the terms of the plea offer to his client, but also
the relative merits of the offer as compared to the client’s chances for success
at trial. Id. Reasonable professional conduct, however, does not, under all
circumstances, require an attorney to provide an explicit opinion as to whether
a client should accept a plea offer. Id.

The State argues that counsel’s conduct in advising the defendant about
the merits of the State’s plea offer and his potential sentencing exposure at trial
was reasonable because counsel told the defendant that he was exposed to an
extended term and could get a “pretty severe” sentence if convicted at trial,
counsel discussed the possibility of consecutive sentences with the defendant,
and counsel researched sentences in cases similar to the defendant’s. We
disagree that counsel’s conduct was objectively reasonable in this case.

Even if defense counsel made reference to the possibility of a severe
sentence, counsel testified that he gave the defendant the impression that the
sentence he might receive after trial would be significantly less than it actually
was — likely three years or less. Counsel also testified that the defendant
relied on counsel’s opinion in deciding whether to accept the State’s plea offer
or go to trial. Indeed, the defendant’s sentencing exposure at trial, including
the sentence enhancement, was 150 years. Further, counsel testified that he
did not recall, or have any documents in his file to indicate, that he discussed
with the defendant the distinction between the Class A felonies with which he
was charged and the sentence enhancement provision. That testimony,
coupled with the defendant’s e-mail following his conviction asking counsel to
explain the “Elder Abuse (over 65 years old) charge,” demonstrates that the
defendant did not understand the nature or effect of the applicable sentence
enhancement.

In sum, counsel did not adequately advise the defendant about the
applicable sentence enhancement and the merits of the State’s plea offer
relative to the defendant’s likelihood of success at trial. Therefore, we conclude
that counsel’s performance fell below an objective standard of reasonableness.
See Byrd v. Skipper, 940 F.3d 248, 257 (6th Cir. 2019) (concluding that
ignorance of the law applicable to the defendant’s case coupled with the

8
inaccurate advice counsel gave his client about the likelihood of his success at
trial was sufficient to deem counsel’s performance constitutionally inadequate);
Purdy v. U.S., 208 F.3d 40-41, 45 (2d Cir. 2000) (stating that “counsel must
communicate to the defendant the terms of the plea offer, and should usually
inform the defendant of the strengths and weaknesses of the case against him,
as well as the alternative sentences to which he will most likely be exposed.”
(citation omitted)); cf. Strickland, 466 U.S. at 691 (stating that “counsel has a
duty to make reasonable investigations or to make a reasonable decision that
makes particular investigations unnecessary”).

Next, we address prong two, the prejudice prong, of the Strickland test.
This court has not yet addressed how to analyze the prejudice prong of an
ineffective assistance claim where ineffective assistance results in the
defendant’s rejection of a plea offer. The Supreme Court, however, has
addressed this issue. See Lafler, 566 U.S. at 163. Because the analysis for
ineffective assistance claims is the same under the State and Federal
Constitutions, see Wisowaty, 137 N.H. at 301, we today adopt the approach to
this inquiry that was developed by the Supreme Court in Lafler.

“To establish Strickland prejudice a defendant must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.” Lafler, 566 U.S. at 163
(quotation omitted). “In the context of pleas a defendant must show the
outcome of the plea process would have been different with competent advice.”
Id. “If a plea bargain has been offered, a defendant has the right to effective
assistance of counsel in considering whether to accept it.” Id. at 168. “If that
right is denied, prejudice can be shown if loss of the plea opportunity led to a
trial resulting in a conviction on more serious charges or the imposition of a
more severe sentence.” Id.

When the prejudice alleged by the defendant is having to stand trial after
rejecting a favorable plea offer as a result of counsel’s deficient performance, a
defendant must show that, but for the ineffective advice of counsel, there is a
reasonable probability that: (1) “the plea offer would have been presented to the
court (i.e., that the defendant would have accepted the plea and the
prosecution would not have withdrawn it in light of intervening
circumstances)”; (2) “the court would have accepted its terms”; and (3) “the
conviction or sentence, or both, under the offer’s terms would have been less
severe than under the judgment and sentence that in fact were imposed.” Id.
at 163-64.

First, we consider whether there is a reasonable probability that, but for
counsel’s deficient performance, the defendant would have accepted the State’s
plea offer. See id. at 163. The record demonstrates that the defendant was
seriously considering the State’s plea offer at all times prior to trial. For
example, when a plea agreement was not reached at the conclusion of the first

9
settlement conference, the parties entered into an agreement “[t]o continue the
Settlement Conference . . . in order to allow the Defendant time to consider the
State’s current offer.” This agreement was approved by the trial court, which
entered it as an order. The parties also filed an assented-to motion, which the
court granted, for “Continuance of Pretrial and Trial.” The motion states that
the “parties engaged in productive settlement discussions” and “are in
agreement that the defendant have some time to consider the State’s current
offer.” Additionally, in an e-mail response to the State’s reiteration of the plea
offer in question, defense counsel informed the State that the defendant “has
not ruled out a plea including some incarceration, so it makes sense to return
to the second day of the Settlement Conference regardless of your response [to
the defendant’s counteroffer].”

Moreover, but for counsel’s deficient advice regarding the merits of the
State’s plea offer and the defendant’s sentencing exposure, the defendant
would have better understood that the two-year period of incarceration
included in the plea offer was at the low end of his sentencing exposure at trial,
and the defendant would have been more likely to accept the State’s plea offer,
which he was already considering. Compare Gramiak v. Beasley, 820 S.E.2d
50, 56-57 (Ga. 2018) (stating that the significant difference between period of
incarceration included in State’s plea offer and defendant’s sentencing
exposure at trial could support an inference that the defendant would have
accepted the plea offer); Com. v. Steckley, 128 A.3d 826, 833 (Pa. Super. Ct.
2015) (noting defendant’s willingness to enter into plea agreement corroborated
by counsel’s testimony that she “strenuously” would have encouraged
defendant to accept plea offer had she known extent of sentencing exposure),
with People v. Hale, 996 N.E.2d 607, 617 (Ill. 2013) (concluding that defendant
did not demonstrate reasonable probability that he would have accepted plea
because the record showed he was willing to risk a thirty-year sentence at trial
rather than plead guilty in exchange for a sentence of fifteen years).

The State argues that the evidence of the defendant’s willingness to
consider a plea agreement consists of nothing more than vague assertions that
the defendant had not ruled out a plea agreement and needed more time to
consider the State’s offer, which, the State argues, “is far from indicating his
acceptance.” However, the defendant is not required to establish that he would
have accepted the plea. Rather, the defendant is required to demonstrate a
reasonable probability that, but for counsel’s unprofessional errors, he would
have accepted the plea. See Lafler, 566 U.S. at 163 (emphasis added). “The
Strickland prejudice standard is not stringent — it is, in fact, less demanding
than the preponderance standard.” Williams v. Beard, 637 F.3d 195, 227 (3d
Cir. 2011) (quotation omitted); see Strickland, 466 U.S. at 693; see also
Woodford v. Visciotti, 537 U.S. 19, 22 (2002) (explaining that Strickland
“specifically rejected the proposition that the defendant had to prove it more
likely than not that the outcome would have been altered”). Given the evidence
of the defendant’s willingness to consider the State’s plea offer in this case, and

10
counsel’s errors in advising the defendant, we conclude that, but for counsel’s
deficient performance, there is a reasonable probability that the defendant
would have accepted the plea offer.

Next, we consider whether the defendant has demonstrated that there is
a reasonable probability that the State would not have withdrawn the plea offer
in light of intervening circumstances. Lafler, 566 U.S. at 164; see Missouri v.
Frye, 566 U.S. 134, 147 (2012) (“Defendants must also demonstrate a
reasonable probability the plea would have been entered without the
prosecution canceling it or the trial court refusing to accept it, if they had the
authority to exercise that discretion under state law.”); see also State v.
Laforest, 140 N.H. 286, 290 (1995) (“In general, the State may withdraw a plea
offer at any time before the defendant accepts the offer and has entered a guilty
plea in reliance on it.”).

In an e-mail from the State to defense counsel, the State said it would
keep the plea offer open through the second day of the settlement conference.
The record does not include, and the State does not allege, any intervening
circumstances to indicate that the prosecution would have withdrawn the plea
offer prior to the defendant’s opportunity to accept it at the second settlement
conference. Thus, we conclude that the defendant has demonstrated a
reasonable probability that the State would not have withdrawn the plea offer.
See Frye, 566 U.S. at 149-50 (stating that “it should not be difficult to make an
objective assessment as to whether or not a particular fact or intervening
circumstance would suffice, in the normal course, to cause prosecutorial
withdrawal of a plea bargain” (ellipsis omitted)).

We turn next to whether the defendant has demonstrated a reasonable
probability that the court would have accepted the terms of the plea agreement
if it had been presented. Lafler, 566 U.S. at 164; see State v. Jeleniewski, 147
N.H. 462, 469 (2002) (stating that “a trial judge is vested with wide discretion
when considering plea agreements and is free to reject an agreement”); N.H. R.
Crim. P. 11(c)(1)-(2). In conducting this inquiry, we proceed on the assumption
that “the decisionmaker is reasonably, conscientiously, and impartially
applying the standards that govern the decision.” Strickland, 466 U.S. at 695.
Our analysis does “not depend on the idiosyncrasies of the particular
decisionmaker, such as unusual propensities toward harshness or leniency.”
Id. “Thus, evidence about the actual process of decision, if not part of the
record of the proceeding under review, and evidence about, for example, a
particular judge’s sentencing practices, should not be considered in the
prejudice determination.” Id. The Supreme Court has stated that, in most
instances, because prosecutors and judges in most jurisdictions are assumed
to be familiar with the boundaries of acceptable plea bargains and sentences,
“it should not be difficult to make an objective assessment as to whether or not
a particular fact or intervening circumstance would suffice, in the normal

11
course, to cause judicial nonapproval of a plea bargain.” Frye, 566 U.S. at 149
(ellipsis omitted).

The State argues that the defendant has not demonstrated a reasonable
probability that the court would have accepted the plea agreement because,
even if the plea had been presented to the court by the parties, that would not
have given rise to anything more than a “hope” that the court would accept its
terms. The State further argues that the record contains evidence that the trial
court would not have accepted the terms of the plea agreement because the
sentence imposed after trial was nearly five times greater than the sentence
included in the State’s plea offer, and the presiding judge structured the
defendant’s sentence similarly to a sentence that the judge had imposed
previously in a similar case. We are not persuaded.

As the Supreme Court has explained, the prejudice inquiry under
Strickland is an objective one that should not consider a particular judge’s
sentencing practices. Strickland, 466 U.S. at 695. Thus, the fact that the
sentence imposed by the judge after the defendant was convicted at trial was
structured similarly to the sentence imposed in a previous case by the same
judge should not be considered in determining whether the court would have
accepted a plea agreement that included a lesser sentence. Further, although
courts are not required to accept a plea agreement, that discretion in no way
heightens Strickland’s prejudice standard, nor detracts from the prominence of
resolving matters in our criminal justice system through plea agreements. The
Supreme Court has acknowledged that the plea process today “is not some
adjunct to the criminal justice system; it is the criminal justice system.” Frye,
566 U.S. at 144. Indeed, “ninety-four percent of state convictions are the
result of guilty pleas.” Id. at 143.

Absent some intervening circumstance, or evidence in the record, to
suggest that the court would have rejected the plea agreement in the normal
course, we conclude that there is a reasonable probability that the court would
have accepted the plea agreement if it had been presented. See Frye, 566 U.S.
at 151 (stating that, in light of the defendant’s new arrest for driving without a
license, there is reason to doubt that the trial court would have accepted plea
agreement); Rodriguez v. State, 470 S.W.3d 823, 829 (Tex. Crim. App. 2015)
(determining that the court of appeals did not err in concluding that there was
a reasonable probability that the trial court would have accepted the plea
because nothing in the record indicated that the judge would have rejected the
agreement); Woods v. State, 48 N.E.3d 374, 382-83 (Ind. Ct. App. 2015)
(concluding that, without evidence to suggest otherwise, the trial court likely
would have accepted the plea agreement because plea agreements are
commonplace and conserve judicial resources); McMillion v. Commissioner of
Correction, 97 A.3d 32, 40 (Conn. App. Ct. 2014) (stating that determination of
prejudice must be made by assessing whether a reasonable trial judge would
have accepted the plea).

12
 With respect to the final prejudice inquiry, the State concedes, as it
must, that the sentence the defendant would have received under the plea
agreement offered by the State is less severe than the sentence he received at
trial. Therefore, having satisfied the two-part Strickland test, the defendant
has prevailed on his claim that counsel provided constitutionally ineffective
assistance in advising the defendant at the plea-bargaining stage regarding his
sentencing exposure at trial and the merits of the State’s plea offer.

“Even if a defendant shows ineffective assistance of counsel has caused
the rejection of a plea leading to a trial and a more severe sentence, there is the
question of what constitutes an appropriate remedy.” Lafler, 566 U.S. at 170.
The remedy “should be tailored to the injury suffered from the constitutional
violation and should not unnecessarily infringe on competing interests.” Id.
(quotation omitted). Thus, the remedy “must neutralize the taint of [the]
constitutional violation, while at the same time not grant a windfall to the
defendant or needlessly squander the considerable resources the State properly
invested in the criminal prosecution.” Id. (quotation and citation omitted).

In Lafler, the Supreme Court stated that the “injury suffered by
defendants who decline a plea offer as a result of ineffective assistance of
counsel and then receive a greater sentence as a result of trial can come in at
least one of two forms.” Id. In some cases, typically when the charges that
would have been admitted as part of the plea bargain are the same as the
charges the defendant was convicted of after trial, “the sole advantage a
defendant would have received under the plea is a lesser sentence.” Id. at 170-
71. “In this situation the court may conduct an evidentiary hearing to
determine whether the defendant has shown a reasonable probability that but
for counsel’s errors he would have accepted the plea.” Id. at 171. “If the
showing is made, the court may exercise discretion in determining whether the
defendant should receive the term of imprisonment the government offered in
the plea, the sentence he received at trial, or something in between.” Id.

In some cases, for example, where an offer was for a guilty plea to a
count or counts less serious than the ones for which a defendant was convicted
at trial, or if a mandatory sentence confines a judge’s sentencing discretion
after trial, resentencing alone may not provide full redress for the
constitutional injury. Id. “In these circumstances, the proper exercise of
discretion to remedy the constitutional injury may be to require the
prosecution to reoffer the plea proposal.” Id. “Once this has occurred, the
judge can then exercise discretion in deciding whether to vacate the conviction
from trial and accept the plea or leave the conviction undisturbed.” Id.

“In implementing a remedy in both of these situations, the trial court
must weigh various factors; and the boundaries of proper discretion need not
be defined here.” Id. In Lafler, the Supreme Court provided two guiding
considerations that the Court deemed to be of relevance: first, “a court may

13
take account of a defendant’s earlier expressed willingness, or unwillingness, to
accept responsibility for his or her actions”; and second, it is not necessary
here to decide as a constitutional rule that the court is required to disregard
“any information concerning the crime that was discovered after the plea offer
was made.”1 Id. at 171-72.

The defendant has acknowledged that the case now before us presents
the first of the two scenarios described above, and by the Supreme Court in
Lafler, because the sole advantage the defendant would have received under
the plea is a lesser sentence. As a result, we pause to clarify our
understanding of the Supreme Court’s description of this situation. The Court
explained in Lafler that trial courts may exercise discretion in fashioning a
remedy for a finding of ineffective assistance of counsel if the defendant has
successfully demonstrated a reasonable probability, after an evidentiary
hearing, that but for counsel’s errors he would have accepted the plea. See id.
at 171. We understand the Supreme Court’s language to describe the
discretion that may be exercised by the trial court after the defendant has
demonstrated that he was prejudiced by counsel’s deficient performance; we do
not understand that language to require an evidentiary hearing at the remedy
stage to probe an inquiry that was already addressed during the prejudice
analysis.

If the court has already determined that the defendant was prejudiced, in
part because it is reasonably probable that the defendant would have accepted
the plea agreement, it is difficult to understand why the court should consider
the same inquiry again, using the same standard, when it exercises its
discretion in fashioning a remedy. Cf. Ebron v. Commissioner of Correction, 53
A.3d 983, 991-92 (Conn. 2012) (questioning why the trial court, when
fashioning an appropriate remedy, should be permitted to consider whether it
is reasonably probable that the court would have accepted the plea, since that
question was already decided in the prejudice analysis). Indeed, reading Lafler
in such a way runs significant risks of conflicting findings at the prejudice and
remedy stages at worst, cf. id. at 992, and expending scarce judicial resources
on redundant proceedings at best. Further, when describing the second of the
two scenarios, the Supreme Court did not include language about an
evidentiary hearing or explain why a second evidentiary hearing might be
required in the first set of circumstances but not the second. See Lafler, 566
U.S. at 171. Therefore, because we have already determined in our prejudice
analysis that the defendant has demonstrated a reasonable probability that,

1
The State erroneously relies on this language for the proposition that admissions made by the
defendant at trial may be considered during the prejudice inquiry when determining whether
there is a reasonable probability that the court would have accepted the plea agreement.
However, this language appears in the discussion of a remedy for a finding of ineffective
assistance of counsel, which is distinct from the prejudice inquiry, and nothing in Lafler suggests
that the trial court may consider trial testimony in conducting the prejudice analysis.

14
but for counsel’s deficient performance, the defendant would have accepted the
plea agreement, the trial court need not hold an evidentiary hearing on remand
to determine that question. Rather, in deciding the appropriate remedy, the
court’s inquiry should focus on whether the defendant should receive the term
of imprisonment the State offered in the plea, the sentence he received at trial,
or something in between. Id.

The proper remedy upon a finding of ineffective assistance of counsel is
to remand to the trial court, “which is vested with the discretion to place the
[defendant], as nearly as possible, in the position that he would have been in if
there had been no violation of his right to counsel.” H.P.T. v. Commissioner of
Correction, 79 A.3d 54, 59 (Conn. 2013) (quotation omitted); cf. Lafler, 566
U.S. at 172. “The time continuum makes it difficult to restore the defendant
and the prosecution to the precise positions they occupied prior to the rejection
of the plea offer, but that baseline can be consulted in finding a remedy that
does not require the prosecution to incur the expense of conducting a new
trial.” Lafler, 566 U.S. at 172. As the Supreme Court did in Lafler, our
decision today leaves open to the trial court how best to exercise that discretion
in all the circumstances of the case before it. Id. at 174-75.

Finally, the State argues that the defendant cannot be resentenced on
remand to the sentence he would have received under the plea agreement
without committing perjury. The State contends that such a remedy would
require the defendant to admit facts under oath during a plea colloquy that he
has already denied under oath at trial. We disagree.

The State’s argument is premised upon the remedy applicable to the
second situation described in Lafler. See id. at 171. In those circumstances,
where resentencing alone may not provide full redress for the constitutional
injury, the trial court has the discretion to decide whether to vacate the
conviction from trial and accept the plea or leave the conviction undisturbed.
Id. By contrast, the remedy applicable to the first scenario described in Lafler,
and to the case now before us, does not give the trial court the discretion to
vacate the conviction or accept the plea. Id. at 170-71. Rather, that remedy
permits the court to exercise discretion in determining whether to resentence
the defendant to either the term of imprisonment the government offered in the
plea, the sentence he received at trial, or something in between. Id. at 171.
Thus, no plea colloquy is necessary for application of the remedy, and the
defendant is not at risk of committing perjury.

Because the standard for determining whether a defendant has received
ineffective assistance of counsel is the same under both the State and Federal
Constitutions, we reach the same result under the Federal Constitution as we
do under the State Constitution. Hall, 160 N.H. at 588. Accordingly, we affirm

15
the trial court’s order in part, reverse in part, and remand for resentencing
consistent with this opinion.2
Affirmed in part; reversed in part;
and remanded.

DONOVAN, J., concurred; NADEAU, C.J., superior court justice, specially
assigned under RSA 490:3, concurred.

2 In light of our decision, the defendant’s motion to supplement appendix is moot.

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