State of New Hampshire v. Ernesto Rivera ( 2022 )


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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
    2
    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).
    3
    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
    4
    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
    5
    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.
    6
    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
    7
    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
    8
    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.
    9