Cited by

State v. Faragi, 127 N.H. 1, 5, 498 A.2d 723, 726 (1985) (noting “strong presumption” that counsel’s conduct was not deficient).

“If the defendant is unable to demonstrate such prejudice, we need not even decide whether counsel’s performance fell below the standard of reasonable competence,” State v. Faragi, 127 N.H. 1, 5, 498 A.2d 723, 726 (1985), unless prejudice can be presumed.

The proper standard to apply is the one set forth in State v. Faragi, 127 N.H. 1, 4-5, 498 A.2d 723, 726 (1985), and Strickland v. Washington, 466 U.S. 668, 687 (1984).

Because the standard for attorney performance is the same under the New Hampshire and Federal Constitutions, see State v. Chase, 135 N.H. 209, 211, 600 A.2d 931, 933 (1991), we consider the defendant’s claim under the State Constitution, see id., using federal law only as an aid in our analysis.

Both constitutions “measure the defendant’s right to assistance of counsel under an objective standard of reasonable com *302 petence.” State v. Faragi, 127 N.H. 1, 4, 498 A.2d 723, 726 (1985); see also Strickland v. Washington, 466 U.S. 668, 687 (1984).

Because the standard for attorney performance is the same under the New Hampshire and Federal Constitutions, see State v. Matiyosus, 134 N.H. 686, 687, 597 A.2d 1068, 1069 (1991), we consider the defendant’s claim under the State Constitution, see State v. Ball, 124 N.H. 226, 231, 471 A.2d 347, 350 (1983), using federal law only as an aid in our analysis, see State v. Faragi, 127 N.H. 1, 4, 498 A.2d 723, 726 (1985).

Since we find in this case that the fourteenth amendment to the United States Constitution provides no greater protection to the defendant than article fifteen, see Champagne, 127 N.H. at 270, 497 A.2d at 1245; State v. Faragi, 127 N.H. 1, 8-9, 498 A.2d 723, 729 (1985), we need not conduct a separate due process analysis under the Federal Constitution.

bearing in mind the limitless variety of strategic and tactical decisions that counsel must make.” State v. Faragi, 127 N.H. 1, 4-5, 498 A.2d 723, 726 (1985).

bearing in mind the limitless variety of strategic and tactical decisions that counsel must make.’” Fennell, supra at 405, 578 A.2d at 331 (quoting State v. Faragi, 127 N.H. 1, 4-5, 498 A.2d 723, 726 (1985) (citations omitted)).

Strickland v. Washington, 466 U.S. 668, 687 reh’g denied, 467 U.S. 1267 (1984); State v. Faragi, 127 N.H. 1, 5, 498 A.2d 723, 726 (1985).

The test for determining ineffectiveness requires the defendant to show first that counsel’s performance was deficient, see State v. Fennell, 133 N.H. 402, 405, 578 A.2d 329, 331 (1990), and must overcome “the strong presumption that counsel’s conduct falls *352 within the limits of reasonable practice,” State v. Faragi, 127 N.H. 1, 4-5, 498 A.2d 723, 726 (1985).

at 409, 578 A.2d at 333 (holding that because a motion to dismiss one of the indictments charging the de *734 fendant with aggravated felonious sexual assault would properly have been granted, the defendant was prejudiced by counsel’s failure to bring such a motion); cf. State v. Faragi, 127 N.H. 1, 7, 498 A.2d 723, 728 (1985) (deciding that because a motion to suppress would not have been successful, there was no prejudice to the petitioner and therefore no ineffective assistance of counsel).

A petitioner for writ of habeas corpus bears the burden of proving entitlement to relief, see State v. Hesse, 117 N.H. 329, 331, 373 A.2d 345, 346 (1977), and a defendant who invokes a trial court’s post-trial jurisdiction to grant a new trial based on prejudice from ineffective assistance of counsel likewise bears the entire burden of proof, see State v. Faragi, 127 N.H. 1, 5, 498 A.2d 723, 726 (1985).

Strickland v. Washington, 466 U.S. 668, 687, 690, reh’g denied, 467 U.S. 1267 (1984); State v. Faragi, 127 N.H. 1, 4-5, 498 A.2d 723, 726 (1985).

F.2d 1534 (11th Cir. 1985); Strader v. Garrison, 611 F.2d at 64, we must recognize at least the possibility that deficiencies in advice about collateral consequences of a plea may pull a lawyer’s representation below the level of “reasonable competence” by which effective assistance of counsel is constitutionally measured, see Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Faragi, 127 N.H. 1, 4, 498 A.2d 723, 726 (1985).

To prevail on an ineffective assistance of counsel claim, a petitioner must demonstrate that trial counsel’s competence fell below an “objective standard of reasonable competence,” State v. Faragi, 127 N.H. 1, 4-5, 498 A.2d 723, 726 (1985), and that “but for counsel’s unprofessional errors, the result of the proceeding would have been different,” Faragi, 127 N.H. at 5, 498 A.2d at 726 (quoting Breest v. Perrin, 125 N.H. 703, 706, 484 A.2d 1192, 1194-95 (1984)).

Under this test, a court must determine, using an objective standard, whether trial counsel acted with reasonable competence.

We have previously held that the same objective standard of reasonable competence governs claims of ineffective assistance, whether raised under part I, article 15 of the Constitution of New Hampshire or under the sixth and fourteenth amendments of the National Constitution, State v. Faragi, 127 N.H. 1, 4-5, 498 A.2d 723, 726 (1985), and we therefore do not discuss the federal claim separately from our State analysis, see State v. Ball, 124 N.H. 226, 232, 471 A.2d 347, 351 (1983).

When an ineffective assistance of counsel claim is made, reviewing courts start with the strong presumption that counsel’s conduct falls within the limits of reasonable practice.

bearing in mind the limitless variety of strategic and tactical decisions that counsel must make[,]” State v. Faragi, 127 N.H. 1, 498 A.2d 723 (1985) (citations omitted), and we do not believe that the defendant has overcome this presumption in the instant case.

In conclusion, this court has stated that “[reviewing courts start with the strong presumption that counsel’s conduct falls within the limits of reasonable practice.” State v. Faragi, 127 N.H. 1, 498 A.2d 723 (1985).

We recently had occasion to discuss whether “the constitutional standard of competence varies with the trial decision in question.” In State v. Faragi, 127 N.H. 1, 9-10, 498 A.2d 723, 729 (1985), we held that “Dusky provides the appropriate standard against which the existence of reasonable doubt about competence must be assessed” for judging competence not only to stand trial but also to waive an insanity defense.