State of New Hampshire v. Scott LeBlanc

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2021-0614, State of New Hampshire v. Scott
LeBlanc, the court on June 22, 2023, issued the following
order:

The court has reviewed the written arguments and the record submitted
on appeal, and has determined to resolve the case by way of this order. See
Sup. Ct. R. 20(2). The defendant, Scott LeBlanc, appeals an order of the
Superior Court (Nicolosi, J.) denying his motion for a new trial based upon
ineffective assistance of counsel, and an order of the Superior Court (Messer,
J.) denying his appointed post-conviction attorney’s motion to withdraw. We
affirm.

The trial court found the following relevant facts. In July 2013, a grand
jury indicted the defendant on twelve counts of aggravated felonious sexual
assault for assaults allegedly occurring between 1995 and 2000 perpetrated
against his stepdaughter, who was younger than thirteen at the time. The
defendant failed to appear at his August 2013 arraignment, and a bench
warrant was issued for his arrest. The defendant was abroad until May 2015,
when he was apprehended in Jamaica.

The defendant was tried by a jury in Superior Court (Ruoff, J.) over four
days in April 2016. The defendant’s two trial attorneys called no witnesses,
but rather elicited exculpatory facts from the State’s witnesses, and, consistent
with their theory that the defendant’s stepdaughter had fabricated the
allegations, attempted to undermine her credibility through cross-examination
and the presentation of exhibits contradicting her claims. The defendant chose
not to testify. The jury convicted him on five of the twelve indictments. We
affirmed his convictions on appeal in a non-precedential order. See State v.
LeBlanc, Case No. 2016-0353, 2017 WL 4770564 (N.H. Sept. 20, 2017).

The defendant filed a motion for a new trial as a self-represented party
on October 16, 2018, alleging that his two trial attorneys had rendered
constitutionally ineffective assistance. His request for appointed post-
conviction counsel was granted; his new attorney filed a substitute motion for a
new trial and a supplemental motion for a new trial on the defendant’s behalf.
The defendant’s motion for a new trial was heard over several days in Superior
Court (Nicolosi, J.). The day before the third day of hearing was to occur, the
defendant’s post-conviction attorney filed a motion to withdraw. The Superior
Court (Messer, J.) denied the motion to withdraw. Thereafter, the Superior
Court (Nicolosi, J.) denied the defendant’s motion for a new trial and his
subsequent motion for reconsideration. This appeal followed.

I. Motion for New Trial

The State and Federal Constitutions guarantee a criminal defendant
reasonably competent assistance of counsel. See N.H. CONST. pt. I, art. 15;
U.S. CONST. amend. VI. To demonstrate a violation of this right, the defendant
must show that his trial attorneys’ conduct so undermined the proper
functioning of the adversarial process that the trial cannot be relied on as
having produced a just result. State v. Marden, 172 N.H. 258, 262 (2019). 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 prevail upon his claim of ineffective assistance of counsel, the
defendant must demonstrate, first, that his trial attorneys’ representation was
constitutionally deficient and, second, that their 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 his trial attorneys’
performance was not constitutionally defective. Id.

To satisfy the performance prong, the defendant must show that his trial
attorneys’ representation fell below an objective standard of reasonableness.
Id. To meet this first prong, the defendant must show that his trial attorneys
made such egregious errors that they failed to function as the counsel that the
State Constitution guarantees. Id. 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. Id. at 212-13. The
defendant must overcome the presumption that his trial attorneys reasonably
adopted their 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 his trial attorneys’
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. In conducting the prejudice inquiry, we consider the
totality of the evidence presented at trial. Id.

Both the performance and prejudice components of the ineffectiveness
inquiry are mixed questions of law and fact. Id. Therefore, we will not disturb
the trial court’s factual findings unless they are not supported by the evidence

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or are erroneous as a matter of law, and we review the ultimate determination
of whether each prong is met de novo. Id.

The defendant first argues that his two trial attorneys were ineffective
because they failed to prepare him adequately to testify. The defendant relies
upon Turner v. Duncan, 158 F.3d 449, 457 (9th Cir. 1998), where the defense
attorney spent “at most forty-five minutes” with a defendant before trial, and
United States v. Ray, 735 F. App’x 290, 293 (9th Cir. 2018), where the attorney
was alleged to have never met the defendant outside the courthouse and to
have met him only immediately before or after a court appearance. The facts of
this case are not analogous to those in Turner or Ray.

The record supports the trial court’s finding that the defendant’s two trial
attorneys “spent hours with him” on his case. The trial court credited notes
prepared by the defendant’s trial attorneys, which included a list of prepared
questions or points of interest for his direct examination, referenced
discussions with him about testifying, and noted information he gave them,
including the names of people with whom he thought they should speak. The
court also credited testimony that trial counsel spoke with the defendant on a
number of occasions about his direct testimony. As the trial court found, and
as the record supports, the defendant’s claim that he decided not to testify
because his attorneys had failed to prepare him simply lacked credibility. In
light of this record, we agree with the trial court that the attorneys’ preparation
of the defendant to testify did not fall below an objective standard of
reasonableness. See Collins, 166 N.H. at 212.

The defendant next asserts that the trial court erred as a matter of law
because it applied a subjective, instead of an objective, standard of
reasonableness. We do not share the defendant’s interpretation of the trial
court’s order. See State v. Kay, 162 N.H. 237, 242 (2011) (“Our interpretation
of a trial court order is a question of law, which we review de novo.”). Contrary
to the defendant’s assertions, the trial court did not rest its ineffective
assistance analysis upon a determination of his subjective satisfaction, at the
time of trial, with his attorneys. Rather, the trial court cited and applied the
correct legal standard, see Collins, 166 N.H. at 212-13, determining that the
degree to which the defendant’s trial attorneys prepared him to testify at trial,
should he have decided to do so, was objectively reasonable under the
circumstances. To the extent that the defendant implies that his trial
attorneys’ performance fell below an objective standard of reasonableness
because they advised him not to testify, he fails to develop that argument
sufficiently for our review. See State v. Blackmer, 149 N.H. 47, 49 (2003).
Accordingly, we decline to address it. See id.

The defendant next contends that his trial attorneys were ineffective for
failing to introduce certain testimony and other evidence to rebut the State’s
case. Specifically, the defendant faults his trial attorneys for failing to

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introduce more evidence to “blunt[] the State’s portrayal of [him] as a man on
the lam.” He acknowledges that his attorneys “elicited some of the available
evidence to counter the impression created by the State” that he fled because
he was guilty, but argues that “much more evidence was available,” and that
his attorneys’ failure to introduce the additional evidence rendered their
assistance constitutionally infirm.

As the trial court found, and as the record supports, however, “contrary
to [the] defendant’s claim, the defense did address the flight evidence, just, in
retrospect, not in the way the defendant now thinks would have been most
effective.” The defendant’s trial attorneys sought a favorable flight instruction
that advised the jury that innocent inferences can be drawn from flight; they
argued, with partial success, for introduction of his emails to provide an
exculpatory explanation; they argued to the jury as to how the flight evidence
should be viewed; and, over the State’s objection, asked a witness to read into
evidence an excerpt from one of the defendant’s emails, which stated, in
pertinent part, “You know I didn’t leave because I was guilty. But
unfortunately, being innocent isn’t a guarantee that I would have had a fair
hearing.”

As the trial court determined, and as the record supports, the defense
submitted sufficient evidence and was able to use the emails the State
introduced “to put forth a plausible innocent explanation for [the] defendant’s
absence,” and “to capitalize on [his] denials of criminal wrongdoing without
exposing [him] and his witnesses to cross-examination.” We agree with the
trial court that the defense strategy to minimize the flight evidence was
“reasonable and artful,” and conclude that the defendant has failed to
overcome the presumption that his trial attorneys reasonably adopted their
trial strategy with respect to the flight evidence. See Collins, 166 N.H. at 213.

The defendant also faults his trial attorneys for failing to use certain
photographs to impeach the victim’s description of the layout of the home. The
trial court found that “the layout of the house was reasonably covered by other
evidence” and that “defense counsel had and used the copious amount of
information to challenge [the victim’s] credibility.” These findings are
supported by the evidence. Based upon these findings, we conclude that the
decision by the defendant’s trial attorneys not to use certain photographs to
impeach the victim’s memory of the layout of the home did not fall below an
objective standard of reasonableness. See id. at 212.

For all of these reasons, we conclude that the defendant has failed to
establish that his trial attorneys’ representation fell below an objective
standard of reasonableness, and, therefore, has not satisfied the first prong of
the ineffective assistance of counsel test. See id. We need not address his
arguments related to the prejudice prong. See id. at 212-13. Having failed to
satisfy the first prong of the ineffective assistance of counsel test, the defendant

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has necessarily failed to establish that he received constitutionally defective
assistance of counsel. See id. at 213. “Because the standard for determining
whether a defendant has received ineffective assistance of counsel is the same
under both constitutions, necessarily, we reach the same result under the
Federal Constitution as we do under the State Constitution.” State v. Cable, 168 N.H. 673, 689 (2016) (quotation omitted); see Strickland v. Washington, 466 U.S. 668, 687 (1984).

II. Motion to Withdraw

Although the defendant had no right under either the State or Federal
Constitution to appointed counsel to assist him with his post-conviction motion
for a new trial based upon ineffective assistance of counsel, the trial court
granted his motion for such counsel. See State v. Hall, 154 N.H. 180, 182, 184
(2006); Pennsylvania v. Finley, 481 U.S. 551, 553-57 (1987). The day before
the third day of the hearing on his motion for a new trial was to occur, the
defendant’s appointed post-conviction attorney filed a motion to withdraw,
alleging he had a “clear conflict of interest” under the New Hampshire Rules of
Professional Conduct (Rules), which required his withdrawal. The attorney
averred that the conflict had come to light “[a]fter a nearly five hour meeting”
over the weekend, and that,“[a]lthough the personal relationship between
counsel and client might have been somewhat repaired at the end of that
meeting,” the attorney believed it to be in the defendant’s best interest to
withdraw.

The motion was heard by a different judge than the judge presiding over
the defendant’s motion for a new trial. Most of the hour-long evidentiary
hearing was conducted outside of the State’s presence and was sealed so that
privileged attorney-client communications could be revealed. Based upon the
testimony at the hearing, the trial court found that “the communication issues
between defendant and counsel [did] not merit” the attorney’s withdrawal “at
[that] time.”

We review the trial court’s denial of defendant’s appointed post-
conviction attorney’s motion to withdraw under our unsustainable exercise of
discretion standard. Cf. State v. Dukette, 127 N.H. 540, 543-44 (1986)
(reviewing trial court’s denial of defendant’s request to allow counsel to
withdraw from the case under abuse of discretion standard); State v. Lambert, 147 N.H. 295, 296 (2001) (explaining that we now refer to abuse of discretion
standard as unsustainable exercise of discretion standard). When we
determine whether a trial court has sustainably exercised its discretion, “we
are really deciding whether the record establishes an objective basis sufficient
to sustain the discretionary judgment made.” Lambert, 147 N.H. at 296. “To
show that the trial court’s decision is not sustainable, the defendant must
demonstrate that the court’s ruling was clearly untenable or unreasonable to
the prejudice of his case.” Id. (quotation omitted).

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 The defendant has failed to demonstrate that the trial court
unsustainably exercised its discretion by denying his appointed post-conviction
attorney’s motion to withdraw. Having reviewed the record submitted on
appeal, including the confidential portions of the hearing transcript, we
conclude that the record establishes an objective basis sufficient to sustain the
trial court’s decision. See id.

The defendant contends that the trial court erred as a matter of law by
inquiring as to his appointed post-conviction attorney’s “ethical concerns and
the privileged communications that gave rise to them.” We disagree.

To support his argument, the defendant relies upon a comment
published by the American Bar Association (ABA) in conjunction with its Model
Rules of Professional Conduct, which has been published with Rule 1.16. N.H.
R. Prof. Conduct Statement of Purpose; N.H. R. Prof. Conduct 1.16. The
comment at issue provides:

When a lawyer has been appointed to represent a client,
withdrawal ordinarily requires approval of the appointing
authority. See also Rule 6.2. Similarly, court approval or notice to
the court is often required by applicable law before a lawyer
withdraws from pending litigation. Difficulty may be encountered
if withdrawal is based on the client’s demand that the lawyer
engage in unprofessional conduct. The court may request an
explanation for the withdrawal, while the lawyer may be bound to
keep confidential the facts that would constitute such an
explanation. The lawyer’s statement that professional
considerations require termination of the representation ordinarily
should be accepted as sufficient. Lawyers should be mindful of
their obligations to both clients and the court under Rules 1.6 and
3.3.

N.H. R. Prof. Conduct 1.16 Comment [3] (emphasis added).

Nothing in this comment precludes a trial court from doing what the trial
court did in this case. Indeed, the comment expressly acknowledges that when
an appointed attorney seeks to withdraw, “[t]he court may request an
explanation for the withdrawal.” Id. Although the comment recommends one
way to safeguard the lawyer’s ethical responsibility to keep attorney-client
communications confidential, it does not preclude courts from devising other
ways to satisfy their desire for an explanation, while protecting counsel’s
ethical obligation to keep certain communications confidential. Moreover, even
if the comment could be construed as the defendant construes it, “[t]he ABA
. . . Comments are intended to be interpretive, not mandatory.” N.H. R. Prof.
Conduct Statement of Purpose. In short, the trial court did not commit an
error of law by inquiring into the reasons for appointed post-conviction

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counsel’s motion to withdraw, particularly given that here, the motion to
withdraw was not heard by the same judge who presided over the motion for a
new trial, and most of the hearing on the motion to withdraw was confidential
and conducted outside of the State’s presence.

The defendant also argues that the trial court erred as a matter of law
because the court failed to give him the choice of proceeding with appointed
post-conviction counsel or representing himself. The record on appeal does not
support this contention.

The defendant next asserts that the trial court’s decision is clearly
untenable or unreasonable because, here, the conflict with his appointed post-
conviction attorney “was so great that it resulted in a total lack of
communication preventing an adequate defense.” State v. Sweeney, 151 N.H.
666, 671 (2005). For the purposes of this appeal, we assume that Sweeney
applies to this case. Nonetheless, we disagree with the defendant that the
record compelled the trial court to find that his relationship with his appointed
post-conviction attorney had totally broken down.

The defendant next contends that the trial court erred because it failed to
focus “on the breakdown in the attorney-client relationship.” We find no error
in the trial court’s analysis of the issues. For all of the above reasons,
therefore, we conclude that the defendant has failed to establish that the trial
court unsustainably exercised its discretion by denying his appointed post-
conviction attorney’s motion to withdraw.

Affirmed.

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

Timothy A. Gudas,
Clerk

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