State of New Hampshire v. Ernesto Rivera

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Hillsborough-southern judicial district
No. 2021-0009

THE STATE OF NEW HAMPSHIRE

v.

ERNESTO RIVERA

Argued: April 14, 2022
Opinion Issued: June 3, 2022

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

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

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

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

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

The parties subsequently agreed that our holding in State v. Folds, 172
N.H. 513 (2019), rendered the defendant’s armed career criminal convictions
unlawful. See Folds, 172 N.H. at 527 (holding that the armed career criminal
statute “applies only to persons whose qualifying convictions arise from three
or more criminal episodes”). Accordingly, the defendant moved to vacate them,
his motion was granted, and the armed career criminal convictions, in effect,
were replaced by the felon-in-possession convictions (the lesser-included
offenses).

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

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

For the convictions from the defendant’s first trial, the trial court
imposed the following sentences: (1) concurrent 3.5-to-7 year stand committed
sentences for the felon-in-possession convictions to be served consecutively to
one of the sentences for solicitation to witness tampering; (2) a stand
committed sentence of 7.5 to 20 years for possession with intent; and (3)
concurrent 3.5-to-7 year sentences for solicitation to witness tampering to be
served consecutively to the defendant’s sentence for narcotic possession (from
his second trial). For the convictions from his second trial, the court imposed
the following sentences: (1) a 3.5-to-7 year stand committed sentence for the
possession of a narcotic drug conviction to be served consecutively to the
sentence for possession with intent from the defendant’s first trial; (2) a 12-
month stand committed sentence for criminal threatening to be served
concurrently with the sentence for narcotic possession and consecutively to the
sentences for domestic-violence-related simple assault; and (3) 12-month
suspended sentences for domestic-violence-related simple assault to be served
concurrently with the sentence for possession of a narcotic drug and
consecutively to one another. Thus, in 2020, the defendant was sentenced to
an aggregate prison term of 18 to 41 years.

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

II. Analysis

A. 2020 Sentences for Narcotic Possession and Criminal Threatening

“In general, trial judges are vested with broad discretionary powers with
regard to sentencing.” State v. Benner, 172 N.H. 194, 198 (2019) (quotation
and brackets omitted). We ordinarily review a trial court’s sentencing decision
under our unsustainable exercise of discretion standard. State v. Castine, 172
N.H. 562, 567 (2019). However, when, as in this case, the defendant argues
that the sentencing decision violated his constitutional rights, we review that
decision de novo. State v. Willey, 163 N.H. 532, 541 (2012). We review
questions of law, including questions of constitutional law, de novo. See State
v. DeCato, 156 N.H. 570, 573 (2007).

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 On appeal, the defendant first argues that the trial court erred by
resentencing him for any of the convictions from his second trial because the
original sentences for those convictions were neither concurrent to nor
consecutive with the sentences on the armed career criminal convictions from
his first trial and because New Hampshire has not adopted the federal
“sentencing package” doctrine. See State v. Abram, 156 N.H. 646, 654-56
(2008). We disagree.

Under the federal “sentencing package” doctrine, “federal courts presume
that when a defendant is found guilty on a multicount indictment, there is a
strong likelihood that the district court will craft a disposition in which the
sentences on the various counts form part of an overall plan.” Id. at 654
(quotations omitted). With this presumption “in mind, several federal courts
have held that when one or more counts of a ‘bundled’ sentence are vacated,
the federal district court may rebundle the package by resentencing the
defendant on the affirmed charges in order to effectuate its original sentencing
intent.” Id. (quotation omitted). The defendant’s reliance on our rejection of
the federal “sentencing package” doctrine in Abram is misplaced because here,
the parties agreed that the defendant would be resentenced on all counts,
including those from his second trial. See State v. Goodale, 144 N.H. 224, 227
(1999) (quotation and brackets omitted) (explaining that under the invited error
doctrine, “a party may not avail himself of error into which he has led the trial
court, intentionally or unintentionally”).

The defendant next asserts that the trial court violated his state and
federal constitutional rights to due process by resentencing him for convictions
entered in his second trial “to the extent that it increased those sentences.”
See N.H. CONST. pt. I, art. 15; U.S. CONST. amends. V, XIV. Specifically, he
contends that by imposing stand committed, instead of suspended, sentences
for his narcotic possession and criminal threatening convictions, the 2020
sentencing court impermissibly increased his sentences in violation of his due
process rights. We first address the defendant’s claim under the State
Constitution and rely upon federal law only to aid our analysis. State v. Ball, 124 N.H. 226, 231-33 (1983).

To support his argument, the defendant relies upon case law concerning
due process limitations on a trial court’s ability to modify a previously-imposed
sentence. See State v. Fletcher, 158 N.H. 207, 211 (2009) (explaining that
“where the original sentence is clear as to the intent and is legal, the
sentencing court does not have authority to later increase the sentence”); State
v. Ortiz, 162 N.H. 585, 596 (2011) (“Due process . . . imposes an outer limit
upon the court’s ability to correct a sentence after pronouncing it.”). We agree
with the trial court that the defendant’s reliance on that body of law is
misplaced because here, the 2020 sentencing court did not “modify” the
defendant’s prior sentences; rather, at the specific request of the parties, the

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court sentenced the defendant “anew,” as if the 2015 sentences had never been
imposed. Instead, we liken the circumstances here to those in which a trial
court has imposed a new sentence after the defendant has successfully
appealed his conviction following a trial, or his original sentence. See State v.
Goode, 710 S.E.2d 301, 303 (N.C. Ct. App. 2011) (“[T]here was no modification”
of the defendant’s original sentences because they had been vacated by the
federal court; “[t]hus, the matter before the court at the resentencing hearing
was the entry of new [sentences].”).

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

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

Nor does it apply where, as here, “the disparate sentences were imposed
by two different judges.” Id.; see Texas v. McCullough, 475 U.S. 134, 140
(1986) (“The presumption is . . . inapplicable because different sentencers
assessed the varying sentences that [the defendant] received.”); United States v.
Twitty, 104 F.3d 1, 2 (1st Cir. 1997) (“We have held . . . that [the presumption
of vindictiveness] . . . does not apply . . . when the two proceedings are handled
by different judges.”); United States v. Rodriguez, 602 F.3d 346, 358-59 (5th
Cir. 2010) (“[W]e join our seven sister circuits that . . . do not apply the
presumption when different judges preside over the first and second
sentencing.”) (collecting cases). When “the second sentence is not meted out by
the same judicial authority” as the first, the second judicial authority has “no
motivation to engage in self-vindication.” Chaffin v. Stynchcombe, 412 U.S. 17,
27 (1973). “[W]hen different sentencers are involved, it may often be that the
second sentencer will impose a punishment more severe than that received
from the first. But it no more follows that such a sentence is a vindictive
penalty . . . than that the first sentencer imposed a lenient penalty.”
McCullough, 475 U.S. at 140 (quotations and brackets omitted); see State v.
Landry, 131 N.H. 65, 68 (1988). Therefore, to establish a due process violation

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when disparate sentences are imposed by two different judges, the defendant
“must prove actual vindictiveness.” State v. Hurlburt, 135 N.H. 143, 147
(1991) (decided under Federal Constitution) (quotation omitted); see Smith, 490
U.S. at 799-800; cf. Landry, 131 N.H. at 67-68 (discussing resentencing after
de novo appeal to superior court).

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

We next turn to the evidence of actual vindictiveness. Here, the 2020
sentencing court provided “on-the-record, wholly logical, nonvindictive
reason[s] for the sentence[s].” McCullough, 475 U.S. at 140. Specifically, the
2020 sentencing court considered aggravating factors, such as the defendant’s
1991 conviction on a “very serious drug” charge and his “multiple assault
convictions” in another state, and mitigating factors, such as his ability, after
leaving the other state, to work and “get [his] kids back.” The court also
considered the specific circumstances of the crimes for which the defendant
was convicted. The court “carefully considered [the] sentencing goals of
punishment, deterrence, and rehabilitation in constructing [the 2020]
sentences.” The record, therefore, establishes a reasonable basis for the
increased sentences and contains nothing to suggest a reasonable likelihood
that they were the product of actual vindictiveness by the sentencing judge.
See Goodell v. Williams, 643 F.3d 490, 502 (6th Cir. 2011) (finding no evidence
of actual vindictiveness where the resentencing court “thoroughly review[ed]
the trial transcript and the newly prepared presentence report,” considered the
defendant’s “extensive criminal history and the violence of the offense conduct,”
and concluded that imposing consecutive sentences “was necessary to reflect
the seriousness of the offenses, to protect the public, and to punish [the
defendant]”).

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

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 B. Ineffective Assistance of Counsel at 2020 Sentencing Hearing

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

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.

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.” Strickland v. Washington, 466 U.S. 668, 687-88
(1984). The defendant must show that counsel made such egregious errors
that he failed to function as the counsel the State Constitution guarantees and
must overcome the presumption that counsel’s strategy was reasonably
adopted. See Collins, 166 N.H. at 212-13. To satisfy the second prong, the
defendant must demonstrate actual prejudice by showing that there is a
reasonable probability that the result of the proceeding would have been
different had competent legal representation been provided. State v. Wilbur, 171 N.H. 445, 449 (2018). A reasonable probability is a probability sufficient to
undermine confidence in the outcome. Id. Both the performance and
prejudice components of the ineffectiveness inquiry are mixed questions of law
and fact. Collins, 166 N.H. at 213. We will not disturb the trial court’s factual
findings unless they are unsupported by the evidence or erroneous as a matter
of law, and we review its ultimate determination of whether each prong is met
de novo. Id.

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

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stemming from his second trial.” Thus, the court determined that because the
defendant could not show that the result of the 2020 sentencing proceeding
would have been different, he failed to satisfy the second prong of the analysis.

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

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

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

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

Although in Abram we declined to adopt the federal “sentencing package”
doctrine, a trial court need not be blind to the fact that a defendant is being
sentenced on more than one count, or is serving other sentences at the time of
sentencing. Indeed, a trial court must consider such facts when exercising its
discretion to make a particular sentence consecutive or concurrent to other
sentences. Cf. Duquette v. Warden, N.H. State Prison, 154 N.H. 737, 739, 745-
46 (2007) (discussing factors the court may consider when deciding to impose
concurrent or consecutive sentences).

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

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

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

In addition, the trial court, understandably, did not analyze the first
prong of the ineffective assistance of counsel test. Thus, on remand, the trial
court may choose first to address whether the agreement by the defendant’s
trial counsel to the resentencing process “fell below an objective standard of
reasonableness.” Strickland, 466 U.S. at 688, 697 (court may consider either
prong of ineffective assistance test first).

Affirmed in part; vacated in
part; and remanded.

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

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