THE STATE OF NEW HAMPSHIRE SUPREME COURT

2014 TERM

No. 2013-0648

State of New Hampshire v. Benjamin Percy

APPEAL PURSUANT TO RULE 7 FROM A JUDGMENT OF THE 2ND CIRCUIT COURT DISTRICT DIVISION LEBANON

BRIEF FOR THE ATTORNEY GENERAL

THE STATE OF NEW HAMPSHIRE Joseph A. Foster Attorney General

Natch Greyes Fellow NH Bar # 265230 Criminal Justice Bureau 33 Capitol Street Concord, N.H. 03301-6397 (603) 271-3671 (5-minute 3JX argument)

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TABLE OF CONTENTS TABLE OF CONTENTS ................................................................................................ i TABLE OF AUTHORITIES .........................................................................................ii ISSUES PRESENTED................................................................................................... 1 STATEMENT OF THE FACTS and case ..................................................................... 2 SUMMARY OF THE ARGUMENT ............................................................................ 6 ARGUMENT ................................................................................................................. 7 I. THE DEFENDANTS CHALLENGE TO HIS DECEMBER 2007 PLEA IS MOOT BECAUSE HIS SENTENCE HAS BEEN SERVED AND BARRED BY LACHES BECAUSE HE DID NOT TIMELY SEEK REDRESS. ............. 7 THE CIRCUIT COURT PROPERLY REJECTED THE DEFENDANTS MOTION BECAUSE THE DEFENDANT UNDERSTOOD THAT HE WAS PLEADING GUILTY WITH THE ASSISTANCE OF COUNSEL. .............. 10 THE DEFENDANTS ATTORNEY PROPERLY ENTERED A PLEA ON BEHALF OF HIS CLIENT. ............................................................................. 12 DEFENSE COUNSEL DID NOT REPRESENT THAT THE DEFENDANT INTENDED TO TAKE THE CASE TO TRIAL. ............................................ 18

II.

III. IV.

CONCLUSION ............................................................................................................ 20

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TABLE OF AUTHORITIES Cases Board of School Commrs v. Jacobs, 420 U.S. 128 (1975) ........................................... 7 DAllesandro v. United States, 517 F.2d 429 (2d Cir. 1975)....................................... 13 Diamontopoulas v. State, 140 N.H. 182 (1995) ........................................................... 11 Healey v. Town of New Durham Zoning Bd. of Adjustment, 140 N.H. 232 (1995)....... 8 In re Belair, 158 N.H. 273 (2009) ................................................................................. 8 In re Smith, 339 P.2d 796 (Okla. Crim. App. 1959) ...................................................... 9 In re Southard, 217 A.2d 49 (Vt. 1966) ................................................................. 13, 17 Leonhart v. McCormick, 395 F. Supp. 1073 (W.D. Pa. 1975) ...................................... 7 McCray v. State, 699 So. 2d 1366 (Fla. 1997) ............................................................... 9 Millette v. Warden, 141 N.H. 653 (1997) ...................................................... 7, 8, 10, 11 Otero-Rivera v. United States, 494 F.2d 900 (1st Cir. 1974) ...................................... 13 Richard v. MacAskill, 129 N.H. 405 (1987) .......................................................... 11, 17 Roy v. Perrin, 122 N.H. 88 (1982) ................................................................................. 8 Schlup v. Delo, 513 U.S. 298 (1995) ............................................................................. 8 Stano v. Dugger, 921 F.2d 1125 (11th Cir. 1991) ....................................................... 16 State ex rel. Smalley v. Morgan, 211 Wis. 2d 795 (Wis. Ct. App. 1997) ...................... 9

-iiiState v. LaRose, 71 N.H. 435, 438, 52 A. 943 (1902) ................................................... 7 State v. Ortiz, 163 N.H. 506 (2012) ............................................................................... 7 State v. Percy, No. 452-2007-CR001981 (2nd Cir. Aug. 5, 2013) .............................. 10 State v. Thornton, 140 N.H. 532 (1995) ...................................................................... 11 United States ex rel. Hairston v. Myers, 237 F. Supp. 472 (E.D. Pa. 1965) .......... 13, 16 United States v. Denniston, 89 F.2d 696 (2d Cir. N.Y. 1937) ........................... 6, 12, 13 Other Authorities 21 Am. Jur. 2d Criminal Law 676 (2008) ................................................................... 7 Rules F. R. CRIM. P. 11 Notes on Advisory Committee on Rules ......................................... 14

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ISSUES PRESENTED I. Whether the defendants challenge to his December 2007 plea is moot and barred by laches because his 2007 sentence has already been served and the State would be unfairly prejudiced in its attempt to try the defendant. II. Whether the lower courts determination that the defendant was fully aware of the terms of the plea agreement and knowingly and voluntarily assented to his attorney entering a nolo contendere or guilty plea on his behalf was clearly erroneous. III. Whether the court properly accepted the plea negotiated by the State and defendant, which was reduced to writing, and discussed throughout the legal proceeding, and where the defendant raised no objection to it. IV. Whether the defendant disputed his intention to plead nolo contendere or guilty, where defense counsel pointed out the shortcomings of the States case, but reiterated the defendants request that the court accept the negotiated plea.

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STATEMENT OF THE FACTS AND CASE In December 2007, the defendant was stopped by Officer Jeremy Perkins on Interstate 99 between Exit 18 and 19. Tr. 4.1 He was stopped because his Jeep Cherokee was weaving outside of its lane. Tr. 4. During the vehicle stop, Officer Perkins asked the defendant if he had anything to drink. Tr. 4. The defendant replied that he had had a couple of alcoholic drinks. Tr. 4. Because the defendant admitted that he had been drinking, his breath smelled of alcohol and his eyes appeared to be bloodshot and watery, Officer Perkins asked the defendant to perform some field sobriety tests. Tr. 4 5. The defendant agreed to take the tests. Tr. 5. After conducting the tests, Officer Perkins determined that the defendant was unfit to operate a motor vehicle and arrested him. Tr. 5. The defendant was then brought to the Lebanon Police Department, where he was read his administrative license suspension rights, and asked to submit to further testing, which he refused. Tr. 5. The defendant appeared for a plea hearing in the Second Circuit Court (Cirone, Jr., J.) on December 12, 2007. Tr. 1. The court began the proceedings by noting that there was an agreement in this matter before the court. Tr. 3. The court then asked the defendant, with respect to the acknowledgement of rights form, did you and Mr. Apfel [the defendants attorney] review that? Tr. 3. The defendant replied, Yes, your Honor. Tr. 3.

Tr. refers to the transcript of the proceeding below, a copy of which is contained in the Defendants Briefs Appendix.
1

-3The court then explained the nature of the penalty to the defendant, including that it could impose a fine of between $500 to $1,200 and the defendant could lose his operating privileges for nine months to two years. Tr. 3. The court also explained that it could subtract up to six months of the license suspension. Tr. 3. The court then detailed the penalty for a subsequent offense. Tr. 3 4. The court concluded its initial statement to the defendant by saying, Youre waiving your right to a trial. Youre giving up your right to challenge the reason the police stopped your vehicle, any subsequent evidence they may have developed during their investigation. Do you understand that? Tr. 4. The defendant replied, Yes, your Honor, Tr. 4. The court then asked the defendant whether he had any questions regarding the information in the form of any questions that I can answer in general? Tr. 4. The defendant replied, No, sir. Tr. 4. The court then asked the State for an offer of proof. Tr. 4 5. After the State gave the facts that formed the basis for the arrest, the court addressed the defendants attorney, who told the court what the defense would have done were we to litigate this case. Tr. 5 7. He concluded by stating, [f]or those various reasons we would ask the Court to accept a negotiated settlement. Tr. 7. Next, the court discussed the agreement with the attorneys, ultimately deleting the first item of the agreement, without objection from the State and the defense. Tr. 8. The court then addressed the defendant, reading the terms of the agreement to him: Mr. Percy, it will be a 500 plus $100 fine, nine month suspension of your right to operate in New Hampshire, with the ability to petition the Court for reinstatement after 90 days provided you enter into the program approved by the State within 45 days. Comply with the program requirements and then follow what is ordered on page 2 of this

-4three-page order that in part tells you that you have the ability to petition and outlines the methodology, and well give you a copy of that out of the clerks window. Tr. 8 9. See also D.B.A. 29, 32 (containing a handwritten reference to the agreement (Attachment A) on the Acknowledgment and Waiver of Rights: DUI First Offense form (hereinafter Acknowledgement and Waiver) and the agreement, in the form of Attachment A, itself).2 The defendants attorney then stated that he had one other request and asked if the court would follow the pretrial credit for suspension recommendation contained in Judge Kellys memo for the Superior Courts. Tr. 9. However, the defendants attorney assured the court that Mr. Percy is not seeking to withdraw his plea if the court did or did not follow the pretrial recommendation. Tr. 9. In July 2013, five and a-half years after he was stopped, the defendant filed a motion to vacate his conviction. In this motion, he alleged that it is a foundational requirement for a plea of guilty to be accepted that the defendant actually enter a plea of guilty and that the defendant himself never said that he was guilty; nor did Attorney Apfel enter a plea of guilty on his behalf. D.B.A. 3 4. On July 29, 2013, the State filed an objection raising as its basis the fact that Attorney Apfel requested that the court accept the settlement that the State and defense worked without contradiction from the defendant, meeting the legal standard, and there was no need for the defendant himself to speak the word guilty. D.B.A. 34. On August 5, 2013, the trial court denied the defendants motion, citing the States objection as the reason for the denial.
2

D.B.A. refers to the appendix to the Defendants brief.

-5A motion to reconsider was filed on August 15, 2013, reiterating the defendants position. The State objected to that motion for the same reasons as articulated in its July 29, 2013 response. The Circuit Court denied the defendants motion. This appeal followed.

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SUMMARY OF THE ARGUMENT I. The defendants challenge to his December 2007 plea is moot because he has served his sentence or barred by laches because he sat on his rights for too long enough and the State would be unfairly prejudiced in its attempt to retry the defendant. II. The lower courts determination that the defendant clearly understood that he was pleading guilty with the assistance of counsel was amply supported by the record and, therefore, not clearly erroneous. III. A defendants attorney may enter a plea of nolo contendere or guilty for his client under circumstances which fairly show that the attorney speaks for his client who understands what is being done and its import and who acquiesces. The court did not err by accepting the negotiated plea agreement. The defendant had signed an Acknowledgment and Waiver, the court explained the terms of the agreement to him, and the defendant was given the opportunity to ask questions during the hearing. The court committed no error in accepting the plea and imposing a sentence. IV. The trial court committed no error when it did not ask the defendant about the States offer of proof. The defendants lawyer responded to the offer by explaining the likely defense strategy and by asking the court to accept the agreement. The defendant was given the opportunity to ask questions and the record supports the trial courts ruling.

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ARGUMENT I. THE DEFENDANTS CHALLENGE TO HIS DECEMBER 2007 PLEA IS MOOT BECAUSE HIS SENTENCE HAS BEEN SERVED AND BARRED BY LACHES BECAUSE HE DID NOT TIMELY SEEK REDRESS. The defendants challenge to his December 2007 nolo contendere or guilty plea3 (hereinafter plea) is moot and barred by laches because he sat on his rights. His 2007 sentence has already been served and, as such, the claim is moot. Moreover, there has been a long enough delay and the State would be unfairly prejudiced in its attempt to try the defendant and, as such, the claim is barred by laches. This Court will generally will refuse to review a question that no longer presents a justiciable controversy because issues involved have become academic or dead. Millette v. Warden, 141 N.H. 653, 655 (1997) (internal quotation omitted). A case is moot when a determination is sought on a matter which, when rendered, cannot have any practical effect on the existing controversy. Leonhart v. McCormick, 395 F. Supp. 1073, 1077 (W.D. Pa. 1975). See also Board of School Commrs v. Jacobs, 420 U.S. 128, 129 (1975) (where the high school students who had brought the case to restrain certain school regulations had graduated the case was moot). Here, unlike Millette, the defendant is not currently serving a sentence

In New Hampshire, nolo contendere pleas have the same legal effect as guilty pleas. See State v. Ortiz, 163 N.H. 506, 509 (2012) (Because a conviction results from a plea of nolo contendere, we find no reason here to distinguish a nolo plea from a plea of guilty. See State v. LaRose, 71 N.H. 435, 438, 52 A. 943 (1902) ([A] plea of nolo contendere has the same legal effect as a plea of guilty.); 21 Am. Jur. 2d Criminal Law 676 (2008) (For practical purposes, a plea of nolo contendere is a plea of guilty, or the functional or substantive equivalent of such a plea. (footnote omitted)). Therefore, our jurisprudence regarding guilty pleas is applicable here.). As a consequence, the State treats the intended plea, whether nolo contendere or guilty, as equivalent throughout this brief.

-8based, in whole or in part, on a sentence he received as a result of his plea. See Millette, 141 N.H. at 655. The defendant was sentenced on December 12, 2007 to a nine month suspension of his right to operate a motor vehicle in the State of New Hampshire and $500 plus $100 fine. Tr. 8. The nine month sentence of suspension had already been served by the time the defendant filed a motion to vacate his conviction with the Lebanon Circuit Court in July 2013, nearly six years after the sentence was imposed. Therefore, this challenge is moot and the court should refuse to review it. In addition, the defendants motion to vacate his conviction should be barred by laches. The defendants motion to vacate his conviction is, in effect, a petition for writ of habeas corpus and, therefore, subject to equitable defenses. The State never tried the defendant. He plead. Therefore, the defendants motion is really a petition for writ of habeas corpus as he is actually claiming the plea was constitutionally defective. Since a writ of habeas corpus is an equitable remedy, it is subject to equitable defenses. Schlup v. Delo, 513 U.S. 298 (1995) ([H]abeas corpus is, at its core, an equitable remedy.); Healey v. Town of New Durham Zoning Bd. of Adjustment, 140 N.H. 232, 241 (1995) (Laches is an equitable doctrine.). Laches is an equitable doctrine that bars litigation when a potential plaintiff has slept on his rights. The doctrine of laches is not a mere matter of time, but is principally a question of the inequity of permitting the claim to be enforced. In re Belair, 158 N.H. 273, 279 (2009). This Court has discouraged petitions filed after significant delays. See, e.g., Roy v. Perrin, 122 N.H. 88 (1982) (holding that the

-9defendant was not permitted to raise an issue in a habeas corpus proceeding after unjustifiably remaining silent about the issue for four years). The defendant does not explain why he failed to file for post-conviction relief for nearly six years after his sentence was imposed in December 2007. In other jurisdictions, such delay and probable loss of evidence has been sufficient to find filings for post-conviction relief barred by laches. See, e.g., McCray v. State, 699 So. 2d 1366 (Fla. 1997) (holding post-conviction relief barred by laches where there was a 15 year delay in filing petition and the defendant gave no reason for the delay); State ex rel. Smalley v. Morgan, 211 Wis. 2d 795 (Wis. Ct. App. 1997) (holding postconviction relief barred by laches where there was a seven year delay in filing petition and no reason the defendant could not have learned of failure to file appeal during that time); In re Smith, 339 P.2d 796 (Okla. Crim. App. 1959) (holding postconviction relief barred by laches where there was a 24 year delay in filing for relief, including 10 years spent on parole, the trial judge had probably forgotten the case, and evidence had been destroyed due to the passage of time). The delay in filing his motion would prejudice the State since memories rarely improve with age. As a result, the Court should decline to review the claim as it is both untimely and moot.

-10II. THE CIRCUIT COURT PROPERLY REJECTED THE DEFENDANTS MOTION BECAUSE THE DEFENDANT UNDERSTOOD THAT HE WAS PLEADING GUILTY WITH THE ASSISTANCE OF COUNSEL. Despite his delay in filing for relief, the defendant still contends that he is entitled to relief. D.B. 1 9.4 He argues that the written plea agreement and colloquy were insufficient as an admission of guilt or other recognized substitute. D.B. 6. This Court will not overturn a trial courts finding of fact unless unsupported by the record. Gelinas v. Metropolitan Property & Liab. Ins. Co., 131 N.H. 154, 164 (1988) (internal quotations omitted) (brackets in original) (The standard of review we apply to a trial courts factual findings is that [a]bsent an abuse of discretion, we will not overturn the trial courts findings unless it clearly appears they were made without evidence.). This court will not overturn the trial courts determination on a mixed question of law and fact unless that determination is clearly erroneous. Great Lakes Aircraft Co. v. Claremont, 135 N.H. 270, 282 (1992). The court agreed with the States objection. D.B. 11. It found that [t]he Defendant clearly understood that he was pleading guilty with the assistance of counsel and that the sentence would be imposed as negotiated with the exception that the Court did not believe it had the power to make orders regarding the ALS suspension and its impact on the Court ordered suspension. Id. In reviewing entry of a guilty plea, this Court must determine whether the existing record of the case clearly indicates that the petitioner entered his plea knowingly and voluntarily. Millette, 141 N.H. at 655. This Court will not limit its

D.B. refers to the Defendants Brief.

-11review of the record to the dialogue between the trial judge and the petitioner during the plea hearing to determine whether the record indicates a knowing and voluntary plea. Id. at 655 56. See, e.g., State v. Thornton, 140 N.H. 532, 538 (1995) (signed acknowledgment of rights form, motion to dismiss, and hearing thereon are considered part of the record); Diamontopoulas v. State, 140 N.H. 182, 185 (1995) (signed acknowledgment of rights form is considered part of the record); Richard v. MacAskill, 129 N.H. 405, 409 (1987) (noting that a written waiver of rights form is considered part of the record). The defendant was fully aware of the terms of the plea agreement and knowingly and voluntarily assented to his attorney entering plea on his behalf. The record contains not only the colloquy between the court and defendant, along with the State and defense attorneys representations in court, but also a written waiver of rights form which includes the words See Attachment A and bears the defendants name above the signature line. D.B.A. 29, 30. Attachment A was the negotiated plea agreement that the court eventually accepted as the sentence. Compare D.B.A. 32, with Tr. 8 9. Nothing suggests that the plea was anything except knowing, voluntary, and intelligent. The defendant had a college degree. See D.B.A. 30. He was given the opportunity to ask questions of the court. Tr. 4. He told the court that he understood his loss of rights. Tr. 4. Therefore, the defendant knew what the terms of the negotiated agreement were and understood that he was pleading guilty with the assistance of counsel during the hearing. As a consequence, the trial court committed no error in accepting his knowing, voluntary, and intelligent plea.

-12III. THE DEFENDANTS ATTORNEY PROPERLY ENTERED A PLEA ON BEHALF OF HIS CLIENT. The defendants main issue on appeal centers on the argument that the court erred during the colloquy with the defendant because it did not specifically ask the defendant whether he wanted to plead nolo contendere, guilty, or not guilty. See D.B. 4. In the defendants view, then, error existed because (1) there was no admission of guilt . . . on the record, D.B. 6, and (2) the State Bar would be well served by a policy requiring the pronouncement of guilt to come from the defendant personally before the acceptance of any guilty plea. D.B. 7. The defendants contention, however, is unpersuasive. The law allows a defendants attorney under circumstances which fairly show that the attorney speaks for his client who understands what is being done and its import and who acquiesces to enter a nolo contendere or guilty plea on behalf of his client. See United States v. Denniston, 89 F.2d 696 (2d Cir. 1937). Moreover, all the facts and circumstances surrounding sentencing indicate that the defendant intended to change his plea at the plea hearing. Tr. 1 9. A. The law allows the defendants attorney under circumstances which fairly show that the attorney speaks for his client who understands what is being done and its import and who acquiesces to enter a nolo contendere or guilty plea on behalf of his client, the defendant. The defendant argues for a prophylactic rule that an attorney may not enter a plea of nolo contendere or guilty for a defendant. D.B. 5 7. United States v. Denniston stands for the proposition that: If an indicted [or charged] person is actually present in open court with his attorney who is competent to represent him and does so under circumstances which fairly show that the attorney speaks for his client

-13who understands what is being done and its import and who acquiesces when the attorney enters a plea of guilty for him, nothing but a slavish adherence to archaism could underlie a holding that the plea was void. Id. at 698. Although Denniston predated the 1966 change in Rule 11 of the Federal Rules of Criminal Procedure, it is still valid law. DAllesandro v. United States, 517 F.2d 429, 434 (2d Cir. 1975) (first set of ellipses added) (second set of ellipses present in original) (The 1966 amendment to Rule 11 . . . was not intended to resuscitate what, in United States v. Denniston, 89 F.2d 696, 698 (2nd Cir. 1937), cert. denied, 301 U.S. 709, 57 S. Ct. 943, 81 L. Ed. 1362 (1937), we called the technical objection that a plea that was entered by the attorney and not by the appellant personally . . . is of no effect.). As Denniston stated, such an objection is a mere technical objection to the plea itself. Denniston, 89 F.2d at 698. It is of no effect. Id. at 698. It is well settled that an attorney may, in the presence of the defendant and on his behalf, enter a plea of guilty. United States ex rel. Hairston v. Myers, 237 F. Supp. 472, 475 (E.D. Pa. 1965). Both the United States Court of Appeals for the First Circuit and the Vermont Supreme Court have adopted Dennistons reasoning. See Otero-Rivera v. United States, 494 F.2d 900, 904 (1st Cir. 1974) (United States v. Denniston, 89 F.2d 696, 698 (2d Cir. 1937) indicates that the circumstances must fairly show that the attorney speaks for his client who understands what is being done and its import and who acquiesces . . . .); In re Southard, 217 A.2d 49, 51 (Vt. 1966) (ellipses added) (At common law the accused was required to plead in person. 21 Am. Jur. 2d Criminal Law, 459. In the case of United States v. Frank J. Denniston, 89 F.2d 696,

-14the court failed to subscribe to the rigidity of the common law procedure with the following comments: . . . It is our view that neither 13 V.S.A. 7002, nor Article 10 of Chapter I of the Vermont Constitution, make it mandatory that a plea of guilty must be made personally by an accused.). Under the federal rule, a court must address the defendant personally in the course of determining that the plea is made voluntarily and with understanding of the nature of the charge. F. R. CRIM. P. 11 Notes on Advisory Committee on Rules. A court must make sure that a defendant understands the nature of the charge and give him the chance to tell the court that the plea is not voluntary. See id. Before the hearing, the defendant signed and reviewed with his lawyer the Acknowledgment and Waiver, and referenced the plea agreement eventually accepted by the court as Attachment A. See Tr. 3 (Mr. Percy, with respect to the acknowledgement of rights form, did you and Mr. Apfel review that? Yes, your Honor.); D.B.A. 29, 31. Further, the court addressed the defendant and the defendant responded appropriately. Tr. 3 4, 7 9. The circumstances surrounding the hearing demonstrated that all of the parties, including the defendant, understood the purpose of the hearing. Tr. 4, 7 9. The defendants contention now that his plea was defective because he did not personally enter it is without support on the record. B. The defendant intended to plead nolo contendere or guilty at the plea hearing. The defendant notes that the Acknowledgment and Waiver does not require an entry of intended plea. D.B. 6. But this contention ignores the fact that a handwritten note on that signed form referenced the plea agreement negotiated by the State and

-15defense, Attachment A. D.B.A. 29. The terms of Attachment A, as supplied in the defendants brief at D.B.A. 32, contained the same sentence imposed by the court. Compare D.B.A. 32, with Tr. 8 9. This agreement was discussed by the court and counsel throughout hearing. Tr. 1 9. Throughout the proceeding, the defendant was not only clearly informed of the range of sentences, Tr. 3 (court describing to the defendant the possible sentences), and the fact that he was waiving some of his constitutional rights, Tr. 3 4; D.B.A. 29, but also that both his own attorney and the States attorney were advocating for the court to impose the sentence referenced on the Acknowledgment and Waiver. Tr. 1 9. The defendant knew at the time the court read the sentence to him that the terms of the agreement were virtually the same as the terms imposed. Compare D.B.A. 32, with Tr. 8 9. Further, the record supports the conclusion that the defendant knew that he was giving up certain rights by pleading guilty. Compare D.B.A. 29, with Tr. 4. He signed and reviewed with his lawyer the Acknowledgment and Waiver. Tr. 4. The Acknowledgment and Waiver stated that by pleading GUILTY or NOLO to the complaint he would be giving up certain rights. D.B.A. 29. The court asked the defendant if he understood that he was giving up those rights mentioned in the Acknowledgment and Waiver. Compare D.B.A. 29, with Tr. 4. The defendant noted on his plea form that he held a college degree. D.B.A. 30. It is reasonable to conclude that a defendant with that level of education would have understood that, in waiving his rights to a trial, he was no longer contesting his guilt. The record is clear that the defendant intended to waive his right to trial. See Tr. 1 9; D.B.A. 29, 32. It would have been unreasonable for him to sign the

-16Acknowledgment and Waiver if he was not intending to plead, as the handwritten note on it referenced Attachment A, which was clearly a proposed punishment. He made no objection during the proceedings. See Tr. 1 9. He was silent when his own lawyer stated that Mr. Percy is not seeking to withdraw his plea if the answer is no. Tr. 9. Thus, the circuit court made no error in denying the defendants motion and this court should affirm. C. The defendants proposed rule is unnecessary. Finally, the defendant argues that the State Bar would be well served by a policy requiring the pronouncement of guilt to come from the defendant personally before the acceptance of any guilty plea. D.B. 7. This suggestion is at odds with the jurisprudence surrounding a plea. [I]t is not the attorney, but the defendant who enters a guilty plea and who is questioned by the court to determine whether the plea is made voluntarily, knowingly, and intelligently. Stano v. Dugger, 921 F.2d 1125, 1140 (11th Cir. 1991) (citing Haring v. Prosise, 462 U.S. 306, 319 (1983)). The concern, then, is on the interaction between the defendant and the court, not the lawyers. See id. at 1140 (Although counsel is physically present with the defendant during plea proceedings, the actual plea is between the court and the defendant.). Therefore, the State Bar would see no benefit as a consequence of a prophylactic rule that the defendant must always say the word guilty when entering a plea. The current rule, which is widely employed and well-settled, has long served defendants and courts. See, e.g., United States ex rel. Hairston v. Myers, 237 F. Supp. 472, 475 (E.D. Pa. 1965) (It is well settled that an attorney may, in the presence of the defendant and on his behalf, enter a plea of guilty.); In re Southard, 217 A.2d 49,

-1751 (Vt. 1966) (ellipses added) (At common law the accused was required to plead in person. 21 Am. Jur. 2d Criminal Law, 459. In the case of United States v. Frank J. Denniston, 89 F.2d 696, the court failed to subscribe to the rigidity of the common law procedure with the following comments: . . . It is our view that neither 13 V.S.A. 7002, nor Article 10 of Chapter I of the Vermont Constitution, make it mandatory that a plea of guilty must be made personally by an accused.). Such a rule allows the trial court to make certain that the plea represented a voluntary and intelligent choice among the alternative courses of action open to the defendant. Richard v. MacAskill, 129 N.H. 405, 407 08 (1987) (quoting North Carolina v. Alford, 400 U.S. 25, 31 (1970)). In this case, the trial court was satisfied that the defendants plea was knowing, voluntary, and intelligent. See D.B. 11. It rejected the defendants claim to the contrary. D.B. 11. The defendants proposed prophylactic rule does nothing to enhance the trial courts ability to make sure the plea is knowing, intelligent, and voluntary.

-18IV. DEFENSE COUNSEL DID NOT REPRESENT THAT THE DEFENDANT INTENDED TO TAKE THE CASE TO TRIAL. The defendant contends that it was not clear that he did not dispute his guilt. D.B. 8. This misreads the record. The defense attorney told the court that, [The defendant] does not consume alcohol on a daily basis. And prior to being stopped, it was his impression that he had not consumed more alcohol than he should have. He has certainly read the police reports in this case, and recognized that the police office had a different impression. Tr. 5. This statement was made after the State recounted the arresting officers account of events and reviewed the defendants criminal record as an introduction to what the defense would do were we to litigate this case. Tr. 4 6. The defense attorney concluded his statement by saying for those various reasons we would ask the Court accept a negotiated settlement. Tr. 7. When the statement is taken as a whole, it is clear that the defense attorney meant first to mitigate the seriousness of the offense by telling the court that his client was not in the habit of consuming alcohol and did not believe that he was impaired at the time of the stop. The court had asked defense counsel for a response to the States offer of proof. Defense counsel not only offered the mitigating circumstances of the defendants background and lack of criminal record, he also offered a critique of the officers conduct and suggested that, had the matter proceeded to trial, the defense would have filed a motion in limine. This tactic was apparently to persuade the court

-19that the negotiated plea was appropriate in a case that the defense felt was not overwhelming. Despite the shortcomings of the States case, however, defense counsel reiterated that the defendant wanted the court to accept the negotiated plea agreement. The trial court committed no error when it declined to allow the defendant to withdraw his plea on this ground.

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CONCLUSION For the foregoing reasons, the Attorney General asks this court to affirm the judgment of the Circuit Court.

Respectfully submitted, THE STATE OF NEW HAMPSHIRE By its attorneys, Joseph A. Foster Attorney General

____________________________ Natch Greyes Fellow Criminal Justice Bureau 33 Capitol Street Concord, N.H. 03301-6397 (603) 271-3671

February 26, 2014 I hereby certify that two copies each of the foregoing were mailed this day, postage prepaid, to Jared Bedrick, counsel for the Defendant.

Natch Greyes