State of New Hampshire v. Jesse Warren

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2021-0161, State of New Hampshire v. Jesse
Warren, the court on September 29, 2022, issued the following
order:

Having considered the briefs, the record submitted on appeal, and the
oral arguments of the parties, the court concludes that a formal written opinion
is unnecessary in this case. The defendant, Jesse Warren, appeals his
conviction for driving with a suspended license, subsequent offense. See RSA
263:64, I, VI (2014). He argues that the Trial Court (Stephen, J.) erred when,
despite his lack of counsel at the time, it reinstated the complaint for that
charge, which had been placed on file without a finding. He also asserts that
the court erred when it reinstated the complaint as a consequence of his failure
to pay a fine without first making a finding as to his “ability to pay.” Because
we agree with the defendant that he had a right to counsel at the time the
complaint was reinstated, we vacate and remand.

In 2017, the State charged the defendant by complaint with two crimes
arising out of the same incident: one count of driving with a suspended license,
subsequent offense, see id., and one count of disorderly conduct, see RSA
644:2 (2016). The State filed a notice of intent to seek Class A misdemeanor
penalties on the operating after suspension (OAS) charge.

The defendant retained counsel and negotiated a plea agreement in
March 2018. He pleaded guilty on the disorderly conduct charge and the court
sentenced him to 90 days in the house of corrections, with 15 days to serve
and 75 days deferred, and imposed a fine and assessed a penalty totaling
$1860, with $620 to pay and $1240 suspended. In exchange, the court placed
the OAS charge on file without a finding for a period of two years conditioned
upon the defendant’s good behavior and compliance with the terms of the
disorderly conduct sentence. See RSA 262:42 (2014) (authorizing placement of
complaint on file). This disposition of the OAS charge prevented the defendant
from being at risk of becoming certified as a habitual offender. See RSA 259:39
(2014); RSA 262:19 (2014). That same day, the defendant entered into a
payment plan with the court in which he agreed to pay the $620 fine plus an
additional $25 fee within one month.

Because the defendant failed to timely pay the fine and fee, the court
added a $50 fine, bringing the total amount owed to $695. In July 2018, based
on the defendant’s continued failure to pay, the State filed a motion to reinstate
the OAS complaint that had been placed on file without a finding and to
impose the balance of the disorderly conduct sentence. On August 30, the
defendant paid the outstanding fine balance of $695 and the court scheduled a
hearing on the State’s motion for October.

The defendant’s counsel subsequently withdrew, and the defendant
represented himself at the October 2018 motion hearing. At the hearing, the
State acknowledged that resolution of the motion to impose the deferred
disorderly conduct sentence should be postponed so that the defendant could
acquire, or be appointed, counsel. However, notwithstanding the defendant’s
lack of counsel, the State requested that the court reinstate the OAS complaint
effective immediately because, by not timely paying the fine, the defendant had
failed to comply with the terms of the disorderly conduct sentence. After
hearing from both parties, the court granted the motion to reinstate the
complaint. Later that day, the defendant completed a financial affidavit and
the court appointed the Public Defender to represent him.

Appointed counsel thereafter filed an objection to the motion to impose
the deferred disorderly conduct sentence and a motion to reconsider the court’s
reinstatement of the OAS complaint. Before the start of trial on the OAS
charge, the court heard oral argument on the motion to reconsider
reinstatement of that charge and denied the motion. The court found the
defendant guilty of OAS. It sentenced him to 180 days in the house of
corrections, with 20 days to serve and 160 days suspended, and imposed a fine
of $1800, with $450 to pay and $1350 suspended. Immediately after trial of
the OAS charge, the court heard argument on the motion to impose the
deferred disorderly conduct sentence. The court did not impose any of the
deferred jail time and again suspended the remaining fine on the disorderly
conduct charge.

The defendant appealed his conviction to superior court for a de novo
jury trial. See RSA 599:1 (Supp. 2021) (authorizing appeal from Class A
misdemeanor conviction to the superior court for de novo jury trial). However,
he then waived his right to a jury trial and, based on the State’s offers of proof,
the superior court found him guilty and sentenced him. The defendant
appealed that decision to this court. See State v. Warren, No. 2019-0701 (N.H.
Jan. 29, 2021) (non-precedential order). On appeal, the parties agreed that the
superior court had erred when, upon the defendant’s waiver of his jury trial
right, the court did not immediately remand the case to the circuit court. See
id. at 1. Accordingly, we vacated the superior court’s rulings and instructed it
to remand the case to the circuit court for imposition of the sentence. See id.;
RSA 599:1. Upon remand, the circuit court imposed its original sentence on
the OAS conviction, but stayed imposition of that sentence pending appeal.
This appeal followed.

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 As a threshold matter, the State argues that, because the defendant did
not raise his present arguments in his first appeal to this court, he waived
them, and we should dismiss this appeal on that basis. The waiver doctrine
“serves judicial economy by forcing parties to raise issues whose resolution
might spare the court and parties later rounds of remands and appeals.” State
v. Robinson, 170 N.H. 52, 61 (2017) (quotation omitted). In applying the
concept of waiver in the context of a subsequent appeal, we have adopted the
First Circuit Court of Appeals’ approach: “whether ‘there is a waiver depends
not on counting the number of missed opportunities to raise an issue, but on
whether the party had sufficient incentive to raise the issue in the prior
proceedings.’” Id. (quoting United States v. Ticchiarelli, 171 F.3d 24, 32-33
(1st Cir. 1999); ellipses omitted). “This approach requires a fact-intensive,
case-by-case analysis.” Ticchiarelli, 171 F.3d at 33. Here, the parties dispute
whether the defendant had sufficient incentive in his first appeal to raise the
arguments he now advances regarding errors in the circuit court proceeding.
We agree with the defendant that, given the unique procedural history of this
case, the waiver doctrine does not preclude his present appeal.

The defendant’s appeal, under RSA 599:1, of his OAS conviction in
circuit court to the superior court had the effect of “vacat[ing] [that] judgment
and transfer[ing] the whole proceeding to the Superior Court, there to be tried
de novo on the original complaint.” State v. Cook, 96 N.H. 212, 214 (1950). In
short, once the defendant appealed to the superior court, “[t]he parties [stood]
as though there had been no trial.” Id. Following his conviction in the superior
court, the defendant filed his first appeal to this court. See Warren, No. 2019-
0701 (N.H. Jan. 29, 2021) (non-precedential order). At that time, he had no
incentive to challenge deficiencies in the circuit court proceeding because, as a
matter of law, the judgment of the circuit court had been vacated in its entirety
and supplanted by the superior court proceeding and judgment. Instead, the
defendant focused his first appeal on the only judgment against him — the
superior court’s ruling.

The State argues that the defendant should be precluded from pursuing
this appeal because the facts giving rise to his present claims were fully
developed at the time of the prior appeal and appellate counsel in the first
appeal was, or should have been, aware of them. We are not convinced.
Although both of the State’s factual assertions are correct, they do not vitiate
the legal principle that, at the time of the defendant’s first appeal, the circuit
court’s judgment had been nullified. Under these circumstances, we conclude
that the defendant did not have sufficient incentive during his first appeal to
raise the arguments he now advances as to the circuit court’s errors. See
Robinson, 170 N.H. at 61. Accordingly, he has not waived these arguments.

We now turn to the merits of the defendant’s appeal. On several
statutory and constitutional grounds, he asserts that the court erred when it
reinstated the OAS complaint at a time when he was not represented by

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counsel. We first address the defendant’s statutory arguments. See State v.
Locke, 166 N.H. 344, 346 (2014) (noting our “policy of deciding cases on
constitutional grounds only when necessary”). The defendant asserts that he
had a right to counsel at the October 2018 hearing under RSA 604-A:2, I
(Supp. 2021), RSA 604-A:2-f, I (Supp. 2021), and RSA 604-A:3 (2001). The
State counters that we should not address these arguments because the
defendant failed to adequately preserve them by raising them in the trial court.
We agree with the State that the defendant did not raise these statutory
grounds for his right to counsel claim in the trial court, including in his motion
to reconsider, and therefore, these arguments are not adequately preserved for
our review. See Blagbrough Family Realty Trust v. A & T Forest Prods., 155
N.H. 29, 35 (2007).

Because the defendant has not preserved his statutory arguments, we
confine our review to plain error. See Sup. Ct. R. 16-A; State v. Ruiz, 170 N.H.
553, 566 (2018). The plain error rule allows us to consider errors that were not
raised in the trial court. Ruiz, 170 N.H. at 566. “To reverse a trial court
decision under the plain error rule: (1) there must be an error; (2) the error
must be plain; (3) the error must affect substantial rights; and (4) the error
must seriously affect the fairness, integrity or public reputation of judicial
proceedings.” Id. (quotation omitted).

Here, even if we assume that the trial court erred, we conclude that the
second criterion — that the error be plain — is not met for each of the
defendant’s statutory claims. “For the purposes of the plain error rule, an error
is plain if it was or should have been obvious in the sense that the governing
law was clearly settled to the contrary.” Id. (quotation omitted). For each of
the defendant’s statutory arguments discussed below, the governing law is not
clearly settled.

Because the defendant raises similar arguments based on RSA 604-A:2
and RSA 604-A:3, we address them together. RSA 604-A:2, I, requires trial
courts to advise defendants charged with felonies and class A misdemeanors of
their right to counsel and sets forth a process by which an indigent defendant
may obtain appointed counsel. See RSA 604-A:2, I. RSA 604-A:3 provides that
“[a] defendant for whom counsel is appointed shall be represented by counsel
from his initial appearance before the court at every stage of the proceedings
until the entry of final judgment.” Although both statutes touch upon the right
to counsel, we have never interpreted either statute as providing a statutory
right to counsel independent of the constitutional right to counsel.
Accordingly, we see no plain error.

Next, RSA 604-A:2-f, I, provides for appointment of counsel at final
hearings regarding the “nonpayment of an assessment or nonperformance of
community service.” The State relies on State v. Brawley, 171 N.H. 333 (2018)
to argue that this statute is inapplicable here because “assessment” refers only

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to a defendant’s obligation under RSA 604-A:9 (Supp. 2021) to repay the state
for legal services rendered — “not to a fine levied as part of a defendant’s
sentence.” The defendant asserts to the contrary that Brawley does not
preclude the application of RSA 604-A:2-f to this scenario. Because we have
not yet had occasion to address the applicability of RSA 604-A:2-f to this type
of fine, and given the parties’ divergent and plausible interpretations of the
statute and applicable case law, we cannot say that any error that the trial
court might have committed by not invoking this statute sua sponte would
have been plain error. See State v. Pennock, 168 N.H. 294, 312 (2015).

Given that the defendant cannot prevail on any of his statutory
arguments, we now consider his constitutional claims. We first address the
defendant’s argument that he had the right to counsel under Part I, Article 15
of the New Hampshire Constitution and the Sixth and Fourteenth Amendments
to the United States Constitution. We address the defendant’s claim under the
State Constitution and rely upon federal law only to aid our analysis. See State
v. Ball, 124 N.H. 226, 231-32 (1983). Because this issue poses a question of
constitutional law, we review it de novo. State v. Hall, 154 N.H. 180, 182
(2006).

The State Constitution provides that: “Every person held to answer in
any crime or offense punishable by deprivation of liberty shall have the right to
counsel at the expense of the state if need is shown . . . .” N.H. CONST. pt. I,
art. 15. “This right is designed to give a defendant the benefit of legal advice
when making important decisions regarding his [or her] case.” State v. White, 163 N.H. 303, 308 (2012). The right attaches when adversary proceedings
have commenced through a formal charge, preliminary hearing, indictment,
information, or arraignment. Id. Once the right has attached, the defendant is
entitled to assistance of counsel “at critical stages of criminal proceedings in
order to preserve [the] defendant’s right to a fair trial.” Id.

The parties do not dispute that the right to counsel on the OAS charge,
for which the State sought Class A misdemeanor penalties, attached when the
OAS complaint was originally filed. See State v. Jeleniewski, 147 N.H. 462,
468 (2002); see also State v. Weeks, 141 N.H. 248, 250 (1996); RSA 651:2, I
(2016). They disagree, however, as to whether the October 2018 hearing on the
State’s motion to reinstate the OAS complaint was a “critical stage” of the
proceedings. The defendant argues that the hearing at issue was a critical
stage because the potential consequence of the hearing — reinstatement of the
OAS complaint — was adverse to him and to the ultimate resolution of that
charge, and because that consequence could have been avoided or mitigated by
counsel. The State counters that it was not a critical stage because none of the
defendant’s substantial rights were implicated. We agree with the defendant
that the hearing was a “critical stage” at which he was entitled to counsel.

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 A “critical stage” of the proceedings is one in which “substantial rights of
a criminal accused may be affected.” Mempa v. Rhay, 389 U.S. 128, 134
(1967); see also Woods v. Donald, 575 U.S. 312, 315 (2015) (per curiam)
(characterizing a critical stage as “one that h[olds] significant consequences for
the accused” (quotation omitted)). The core of the right to counsel is “the
opportunity for a defendant to consult with an attorney and to have him [or
her] investigate the case and prepare a defense for trial.” Kansas v. Ventris, 556 U.S. 586, 590 (2009) (quotation omitted); see State v. Moussa, 164 N.H.
108, 125 (2012). But the right to the assistance of counsel is not confined to
trial. State v. Chase, 109 N.H. 296, 297 (1969). It extends to other “critical
stages,” including certain arraignments and preliminary hearings, id., and
sentencing, Mempa, 389 U.S. at 137; State v. Parker, 155 N.H. 89, 91-92
(2007).

Here, the hearing on the motion to reinstate the complaint was a critical
stage of the proceedings because it affected “substantial rights” of the
defendant and held “significant consequences” for him: It had the potential to,
and did, result in reinstatement of the OAS complaint. The reinstatement of
the complaint presented the possibility that the court could impose bail
conditions pending trial. See RSA 597:2, I (Supp. 2021); N.H. R. Crim. P. 5(c)
(contemplating appointment of counsel for defendants charged with Class A
misdemeanors prior to determination of bail). Moreover, reinstatement of the
complaint put the defendant in jeopardy of the ultimate result he had
attempted to avoid with the negotiated plea — a conviction for OAS, which had
the potential to result in up to a year of imprisonment, see RSA 651:2, II(c)
(2016), and certification as a habitual offender.

Further, consultation with counsel might have enabled the defendant to
meet and counter the State’s motion. See United States v. Ash, 413 U.S. 300,
313 (1973) (describing “critical stage” inquiry as an examination of the
proceeding at issue “to determine whether the accused required aid in coping
with legal problems or assistance in meeting his adversary”). At the hearing,
the State’s sole basis for bringing forward the OAS complaint was the
defendant’s failure to timely pay the fine associated with the disorderly conduct
conviction. Although the defendant attempted to challenge this basis by
arguing that he had paid the fine, albeit late, he also made statements that
implied that the reason he did not timely pay the fine was because he had
forgotten about it. He made other statements, however, that suggested that he
may not have been financially able to pay the fine when it came due. Counsel
could have helped the defendant more clearly articulate why he had not timely
paid and could have provided context for those reasons by more fully
developing the record. Counsel also could have pursued the argument that the
defendant was entitled to an “ability to pay” hearing prior to reinstatement of
the OAS complaint.

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 The State argues that Jeleniewski requires a different result. We are
unpersuaded. In that case, the dispositive issue was whether the defendant’s
right to counsel had attached. See Jeleniewski, 147 N.H. at 467-69. We
concluded it had not. Id. at 468, 469. Whether the right to counsel has
attached is a separate and distinct inquiry from whether a particular
proceeding is a “critical stage.” See Rothgery v. Gillespie County, 554 U.S. 191,
212 (2008). Attachment occurs “when adversary proceedings have commenced
through a formal charge, preliminary hearing, indictment, information, or
arraignment.” Jeleniewski, 147 N.H. at 467-68. Once the right to counsel has
attached, the constitution guarantees the assistance of counsel at “critical
stages of criminal proceedings.” White, 163 N.H. at 308. In other words, the
right to counsel must first attach in order for the “critical stage” inquiry to
become relevant. See id. Because we concluded in Jeleniewski that the
defendant’s right had not attached, we had no need to reach the question of
whether the proceeding at issue was a “critical stage.” See Jeleniewski, 147
N.H. at 467-69. The opposite is true here. It is undisputed that the
defendant’s right to counsel had already attached at the time of the hearing on
the motion to reinstate the complaint; the only issue in dispute is whether that
hearing was a “critical stage.” Accordingly, Jeleniewski does not control.

For all these reasons, we conclude that the hearing on the motion to
reinstate the complaint was a “critical stage” of the proceedings, and, therefore,
the court violated the defendant’s state constitutional right to counsel when it
reinstated the complaint notwithstanding the defendant’s lack of counsel. This
conclusion does not end our analysis, however, because the parties disagree
about whether this error is reversible. The State argues that the harmless
error doctrine applies to this situation and that the court’s error was harmless.
The defendant counters that the deprivation of the right to counsel constitutes
a structural error for which no showing of prejudice is required, but, even if the
harmless error doctrine applies, the State has not met its burden of proving
harmless error. We assume, without deciding, that a harmless-error-like
analysis applies here, and agree with the defendant that the State has not met
its burden.

Generally, the harmless error doctrine applies to the erroneous
admission or exclusion of evidence at trial and requires the State to prove
beyond a reasonable doubt that the error did not affect the verdict. See State
v. Papillon, 173 N.H. 13, 28 (2020). Application of this doctrine in the present
context requires the State to show that the defendant was not prejudiced by
the absence of counsel at the October 2018 hearing. See Moses v. Helgemoe, 116 N.H. 190, 191 (1976); Coleman v. Alabama, 399 U.S. 1, 10-11 (1970)
(remanding for determination of harmless error, including whether or not
defendants were “prejudiced by the absence of counsel at the preliminary
hearing”).

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 The State argues that the defendant was not prejudiced by his lack of
counsel at the hearing on the motion to reinstate the complaint because he was
later appointed counsel who filed a motion to reconsider the court’s ruling. It
asserts that this gave him an opportunity to raise, with the benefit of counsel,
his argument that the complaint should not be reinstated because of his
inability to pay, which the court nevertheless rejected on its merits. We are not
persuaded that the motion to reconsider cured the prejudice to the defendant.

Although defense counsel was able to raise in the motion to reconsider
the argument that the defendant should have been afforded a hearing on
whether he willfully failed to comply with his disorderly conduct sentence, the
court’s resolution of that argument was infected by the defendant’s unfavorable
statements — made without the benefit of the advice of counsel — during the
hearing on the motion to reinstate. In its objection to the motion to reconsider,
the State emphasized statements the defendant made at the October 2018
hearing on the motion to reinstate, characterizing his statements as follows:
“[H]e lost track of his obligation to pay this fine due to his numerous court
matters. . . . [He] either ignored the fine or forgot to pay it.” Based on the
defendant’s statements, which the State described as showing willful
nonpayment, it argued that the defendant could not, on a motion to reconsider,
argue that he had lacked the ability to pay the fine. The State highlighted the
same point during oral argument on the motion to reconsider in January 2019,
asserting that the hearing on the motion to reinstate the complaint satisfied
the requirement of an ability to pay hearing and that the defendant’s
statements during that hearing proved that his failure to pay was willful.
Specifically, the State argued that “[i]t wasn’t an issue about . . . an inability to
pay. He ignored it. He disregarded it. He forgot it, for whatever reason. His
failure to pay the fine -- the Court made that inquiry -- was willful.” On appeal,
the State has not met its burden of proving that the trial court did not rely on
those statements — which the defendant made at the October 2018 hearing on
the motion to reinstate without the benefit of counsel’s clarification,
explanation of context, or evidentiary support — in ruling on the motion to
reconsider.

The State also argues that the defendant was not prejudiced by the lack
of counsel at the motion to reinstate hearing because reinstatement of the
complaint was an automatic consequence of the defendant’s failure to timely
pay the fine, thereby rendering the hearing “largely ministerial.” To the
contrary, had the court considered reinstatement of the complaint a truly
“automatic” consequence of the defendant’s failure to pay the fine, it could
have reinstituted the complaint without holding a hearing or before the State
had even filed the motion to reinstate the complaint.

Additionally, the record is not clear that the defendant’s failure to timely
pay the fine imposed as part of the disorderly conduct sentence would result in
reinstatement of the OAS complaint. The court’s March 2018 orders regarding

8
the complaint placed on file were not wholly consistent regarding the conduct
that would trigger reinstatement of the complaint. At the sentencing hearing
for the disorderly conduct conviction, the court explained to the defendant that
“as long as you’re on good behavior, meaning no major motor vehicle violations,
no misdemeanors, no felonies, and you comply with the terms of the disorderly
conduct sentence, then after two years the OAS would be dismissed, otherwise
it gets placed back on the trial docket.” (Emphasis added.) However, the
“placed on file agreement” that the parties and the court signed regarding the
OAS complaint is less clear. (Capitalization and bolding omitted.) That
agreement states that the complaint was placed on file without a finding for
two years “conditioned upon good behavior.” The agreement also includes the
following language:

Under terms of this agreement, defendant waives right to speedy
trial, and terms of disorderly sentence.

Under these facts, we are not persuaded that the court’s March 2018 orders
contemplated the automatic reinstatement of the OAS complaint such that the
defendant’s representation by counsel at the October 2018 hearing was
essentially pointless.

In sum, we conclude that the State has not met its burden of proving
that the defendant did not suffer prejudice as a result of the court’s error in
reinstating the OAS complaint when the defendant lacked counsel.
Accordingly, we vacate the defendant’s OAS conviction, and we also vacate the
reinstatement of the OAS complaint. On remand, the defendant must be
afforded the opportunity to retain counsel, or request appointed counsel, prior
to the court’s ruling on the State’s motion to reinstate the OAS complaint.
Because the defendant prevails on his claim under the State Constitution, we
need not address his claim under the Federal Constitution. See Ball, 124 N.H.
at 237. Additionally, the defendant argues that, if he prevails on his right-to-
counsel argument, we should remand for further development of the record
regarding his claim that the trial court erred when it reinstated the complaint
without first making an “ability to pay” finding. We, accordingly, do not reach
the merits of that issue; the defendant may raise it on remand.

Vacated and remanded.

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

Timothy A. Gudas,
Clerk

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