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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Belknap

No. 2019-0280

THE STATE OF NEW HAMPSHIRE

v.

KEITH FITZGERALD

Argued: May 20, 2020

Opinion Issued: September 22, 2020

Gordon J. MacDonald, attorney general (Gregory M. Albert, assistant 

attorney general, on the brief and orally), for the State.

Ramsdell Law Firm, of Concord (Michael D. Ramsdell on the brief and 

orally), for the defendant.

HICKS, J. The defendant, Keith Fitzgerald, appeals an order of the 

Superior Court (Smukler, J.) denying his motion for a new trial based on 

ineffective assistance of counsel. After an evidentiary hearing on the motion, 

the court ruled that the defendant failed to sustain his burden of showing that 

the outcome of his case would have been different but for his counsel’s 

performance. On appeal, the defendant argues that the trial court erred by 

concluding that, even if defense counsel rendered ineffective assistance, the 

defendant was not prejudiced by: (1) defense counsel’s failure to adequately 

advise the defendant regarding the merits of the State’s plea offer; or (2) 

counsel’s failure either to object to the trial court’s jury instructions on a 

sentence enhancement provision on the basis that it had not been presented to 
2

the grand jury for indictment, or to move for dismissal of the indictment on 

that same basis. For the reasons that follow, we affirm in part, reverse in part, 

and remand for further proceedings.

I

The trial court found, or the record supports, the following facts. In 

December 2015, the defendant was indicted on five counts of theft by 

unauthorized taking in violation of RSA 637:3 (2016). The following appears 

near the bottom of each indictment: “RSA 637:3 (Class A Felony); 651:6” and 

“Penalty: NHSP 7 1⁄2 - 15 years and up to $4,000 fine.” Defense counsel, whose 

assistance is alleged to have been ineffective, was retained by the defendant in 

March 2016, after the defendant’s prior counsel withdrew. Prior to 

representing the defendant, defense counsel had tried only one felony case, 

which was a sexual assault case. 

Defense counsel, the defendant, and the prosecutor engaged in several 

plea discussions leading up to trial. In January 2016, the State offered a plea 

agreement through the defendant’s previous counsel of five to ten years, stand 

committed, with restitution in the amount of $409,980 on one indictment and 

suspended incarceration on the four remaining indictments. The letter 

containing the plea offer also purported “to notify [the defendant] of the 

possible application of RSA 651:6 to each of the five indictments in this case 

based upon RSA 651:6, I(l).” RSA 651:6, (I)(l) (2016) provides that a defendant

may be sentenced pursuant to the sentence enhancements contained in RSA 

651:6, III (2016) if the defendant:

Has committed or attempted to commit any of the crimes defined 

in RSA 637 or RSA 638 against a victim who is 65 years of age or 

older or who has a physical or mental disability and that in 

perpetrating the crime, the defendant intended to take advantage 

of the victim’s age or a physical or mental condition that impaired 

the victim’s ability to manage his or her property or financial 

resources or to protect his or her rights or interests.

In June 2016, defense counsel drafted a counteroffer that included the 

following terms: payment of $409,980 in restitution on a schedule of the 

defendant’s choosing; a plea of guilty to all counts reduced to Class A 

misdemeanors; one year in the house of corrections on each count to run 

concurrently, all suspended for five years good behavior; and community 

service. Before forwarding the counteroffer to the State, defense counsel emailed it to the defendant for his consideration. In that e-mail he stated, “As

we have discussed in detail, you do not have to plead guilty at all, and you 

have a right to have a trial.”
3

The parties were unable to reach a plea agreement at the first settlement 

conference in August 2016, but they filed an assented-to motion stating that 

the “parties engaged in productive settlement discussions” and “are in 

agreement that the defendant have some time to consider the State’s current 

offer.” Following that conference, defense counsel sent an e-mail requesting 

the State to reiterate its most recent plea offer. The State sent a reply e-mail 

restating its latest offer, explaining that, in exchange for pleading guilty to each 

of the five pending charges, the defendant would serve two years in the 

Belknap County House of Corrections, followed by two years on administrative 

home confinement. Additionally, the defendant would have a four to ten-year 

suspended sentence with a window of ten years after completion of his final 

year of home confinement. Defense counsel responded to the State’s offer with 

the counteroffer that he and the defendant had discussed in June 2016. In his

e-mail to the State, defense counsel explained that the defendant “has not 

ruled out a plea including some incarceration, so it makes sense to return to 

the second day of the Settlement Conference regardless of your response [to the 

defendant’s counteroffer].” The State rejected the defendant’s counteroffer and 

stated that its most recent offer was “essentially as low as the State was willing 

to go on a negotiated disposition.”

Defense counsel forwarded the State’s e-mail to the defendant and, in the 

ensuing string of e-mails between the two, wrote that he was not “in any way 

opposed to [the defendant] taking this case to trial.” Defense counsel indicated 

to the defendant that he believed there was a very good chance that a jury 

would find a reasonable doubt as to whether the defendant was not authorized 

by his father to have the money at issue. Prior to trial, the defendant told 

defense counsel in an e-mail that he was feeling good about their “direction” for 

trial. Defense counsel replied, “I am feeling good about it too.”

At trial, the jury heard evidence that the defendant made a number of 

transactions using his father’s assets without consulting his father or the 

defendant’s siblings, and that, after obtaining his father’s durable power of 

attorney, he moved his father’s assets from accounts and trusts in his father’s 

name to accounts only in the defendant’s name. The jury also heard testimony 

from the defendant that his father authorized the transactions. On crossexamination, the State elicited a number of admissions from the defendant, 

which defense counsel did not anticipate, that severely damaged the 

defendant’s credibility and undercut his defense. 

At the conclusion of trial, pursuant to the sentence enhancement 

contained in RSA 651:6, the jury was instructed to determine whether the 

defendant’s father was 65 years or older and whether the defendant, in 

perpetrating a crime under RSA 637:3, intended to take advantage of the 

victim’s age. Defense counsel did not object to these instructions, and never 

moved for dismissal of the indictments, despite the fact that the sentence 

enhancement provision was never presented to the grand jury. The jury 
4

returned verdicts of guilty on all five counts of theft by unauthorized taking. 

Additionally, the jury specified that it had determined that the State had 

proven the sentence enhancement factors beyond a reasonable doubt. 

Ultimately, the court sentenced the defendant to a term of not less than nine 

and one-half years and not more than 25 years in the New Hampshire State 

Prison.

Following his conviction, the defendant sent an e-mail to defense counsel 

with the subject line “Elder Abuse (over 65 years old) charge?” in which the 

defendant asked: “Can you please give me the info on the last charge they 

found me guilty of? I can’t find it in the other indictments.” In response, 

defense counsel informed the defendant that “[i]t is not a separate charge. It is 

a sentence enhancement provision. That is the special felony aspect we 

discussed. Let’s set up a time this week to talk or meet to discuss all of the 

issues you are raising.”

On January 25, 2019, the court held an evidentiary hearing on the 

defendant’s motion for a new trial based on ineffective assistance of counsel. 

In support of his claim, the defendant presented testimony of defense counsel. 

When asked about the advice that he provided to the defendant regarding the 

sentence enhancement provision, defense counsel testified that he did not 

“recall specifically talking to [the defendant] about the distinction between the 

Class A felonies and the extended term.” Counsel further testified that, “having 

reviewed the file, I don’t see any documents where I spelled [the sentence 

enhancement provision] out for [the defendant] explicitly.” Counsel also

testified that he had believed that if the defendant were to be convicted at trial, 

it would have been unlikely that he would have received a sentence of more 

than three years. However, the defendant’s potential sentencing exposure was 

actually 150 years due to the sentence enhancement contained in RSA 651:6. 

Defense counsel further testified that he gave the defendant the impression 

that the sentence he might receive if he were convicted at trial would be far less 

significant than it turned out to be, and that the defendant relied upon 

counsel’s opinion in deciding whether he should reject the State’s plea offer 

and go to trial. 

When testifying about what steps were taken to determine the

defendant’s potential sentencing exposure, defense counsel explained that he 

and the defendant conducted research and shared “various verdicts associated 

with cases similar to this and cases that are not as similar but similar.” On 

cross-examination, defense counsel testified that his research did not include 

“actual court document cases, it was more press — things that were in the 

press.” Despite those efforts, defense counsel did not locate the most 

comparable case to the defendant’s — in which the same judge imposed a 

similar sentence in a case involving similar theft charges — and was unaware 

of the sentence imposed in that case as a result. Counsel testified that, had he

been aware of the sentence in that case, he would have advised the defendant
5

to “strongly think about whether or not you want to take this case to trial, 

because the sentence could be a lot worse.”

The trial court denied the defendant’s motion for a new trial based on 

ineffective assistance of counsel, which requires a showing of: (1) 

constitutionally deficient representation by counsel; and (2) actual prejudice to

the defendant. State v. Kepple, 155 N.H. 267, 269-70 (2007). With respect to 

the issues of the indictment and jury instructions relating to the sentence 

enhancement, the trial court ruled that the defendant failed to demonstrate 

prejudice. The court explained that, notwithstanding the sentence 

enhancement provision, the defendant’s potential sentencing exposure for each 

of the five indictments was seven and one-half to 15 years, which equated to a 

total maximum sentencing exposure of 37 and one-half to 75 years. The court 

concluded that because the defendant’s sentence of nine and one-half to 25 

years fell squarely within the defendant’s sentencing exposure without the 

sentence enhancement, the defendant had failed to establish that his counsel’s 

conduct prejudiced the outcome of his case.

As for the claim that defense counsel was ineffective during the pleabargaining process, the trial court noted that this court has not yet addressed 

how to analyze the prejudice prong of such a claim. Applying the framework 

developed by the Supreme Court of the United States in Lafler v. Cooper, 566 

U.S. 156 (2016), the court explained that, to show prejudice in this context, the 

defendant must satisfy the court that a reasonable probability exists that, but 

for counsel’s ineffectiveness: (1) the plea offer would have been presented to the 

court; (2) the court would have accepted its terms; and (3) the conviction or 

sentence, or both, under the offer’s terms would have been less severe than 

under the sentence that was imposed after trial. 

The court assumed without deciding that the first and third prongs of the 

test were met, but ruled that the second prong was not because the “defendant 

offered no evidence of similar plea agreements in similar cases or any evidence 

to suggest that the court would have accepted the plea agreement.” Therefore, 

the court denied the defendant’s motion for a new trial. The defendant then 

filed a motion to reconsider, which was also denied, and this appeal followed.

II

The defendant asserts that his counsel was ineffective under the State 

and Federal Constitutions. Both Part I, Article 15 of the State Constitution and 

the Sixth and Fourteenth Amendments to the Federal Constitution “guarantee 

a criminal defendant reasonably competent assistance of counsel.” State v. 

Hall, 160 N.H. 581, 584 (2010) (quotation omitted). The ineffective assistance 

analysis is the same under both the State and Federal Constitutions. State v. 

Wisowaty, 137 N.H. 298, 301 (1993). We first address the defendant’s claims 
6

under the State Constitution, citing federal opinions for guidance only. Hall, 

160 N.H. at 584.

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. We have recognized that the preferable course in 

a challenge based on ineffective assistance of counsel is to require the 

defendant to prove, as a threshold matter, that the alleged error by counsel 

prejudiced his case. Wisowaty, 137 N.H. at 302. Courts, however, have the 

flexibility to adopt the analytic approach that promotes clarity and ease of 

review. 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. Collins, 166 N.H. at 212. To meet this prong, the 

defendant must show that counsel made such egregious errors that he failed to 

function as the counsel that the State Constitution guarantees. Id. We judge 

the reasonableness of counsel’s conduct based upon the facts and 

circumstances of the particular case, viewed from the time of the conduct at 

issue. Hall, 160 N.H. at 584. 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. Collins, 166 N.H. at 

212-13. The defendant must overcome the presumption that trial counsel 

reasonably adopted his 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 counsel’s 

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. Not every error that conceivably could have influenced the 

outcome undermines the reliability of the result of the proceeding. Strickland 

v. Washington, 466 U.S. 668, 693 (1984). On the other hand, a defendant 

need not show that counsel’s deficient conduct more likely than not altered the 

outcome in the case. Id. In conducting the prejudice inquiry, we consider the 

totality of the evidence presented at trial. Collins, 166 N.H. at 213. 

Both the performance and prejudice components of the ineffectiveness 

inquiry are mixed questions of law and fact. Id. Therefore, we will not disturb 
7

the trial court’s factual findings unless they are not supported by the evidence 

or are erroneous as a matter of law, and we review the ultimate determination 

of whether each prong is met de novo. Id.

We first address the defendant’s argument that his counsel was 

ineffective for failing either to object to the trial court’s jury instructions on the 

sentence enhancement contained in RSA 651:6 on the basis that it had not

been presented to the grand jury for indictment, or to move for dismissal of the 

indictment on that same basis. 

Whether a sentence enhancement must be alleged in an indictment is an 

open question under the State Constitution, see State v. Marshall, 162 N.H. 

657, 665 (2011), and, therefore, whether counsel’s conduct fell below an 

objective standard of reasonableness is unclear. We need not decide this 

question, however, because we agree with the trial court that, even if counsel’s 

performance was constitutionally deficient, the defendant has failed to show 

prejudice. See Strickland, 466 U.S. at 697 (“a court need not determine 

whether counsel’s performance was deficient before examining the prejudice 

suffered by the defendant as a result of the alleged deficiencies”).

Even if counsel had objected to the trial court’s jury instructions and the 

objection had been sustained, there is nothing in the record to indicate that the 

defendant would not have received the same or a similar sentence. As the trial 

court correctly noted, the defendant’s sentencing exposure without considering 

the sentence enhancement provision was anything up to 37 and one-half to 75 

years, and the sentence that the defendant received of nine and one-half to 25 

years is within that permissible range. Similarly, as the State points out, even 

if defense counsel had successfully moved to dismiss the indictments for not 

including the sentence enhancement provision, the State could have simply reindicted the defendant and included the sentence enhancement. Thus, the 

defendant has failed to demonstrate a reasonable probability that, but for 

counsel’s performance, the outcome of the proceeding would have been 

different.

 

We turn next to the defendant’s argument that counsel was ineffective in 

advising the defendant as to the merits of the State’s plea offer and the 

defendant’s sentencing exposure at trial. A defendant’s right to reasonably 

competent assistance of counsel under the State and Federal Constitutions 

extends to the plea-bargaining stage of a proceeding. Lafler, 566 U.S. at 162; 

Hall, 160 N.H. at 585. Accordingly, the two-part Strickland test applies. 

Lafler, 566 U.S. at 162-63. Thus, to prevail on his claim of ineffective 

assistance at the plea-bargaining stage, the defendant must show that: (1) 

counsel’s performance was deficient; and (2) the deficient performance 

prejudiced the defendant. Strickland, 466 U.S. at 687. The trial court did not 

address the first prong of the Strickland test because the court ruled that the 

defendant failed to demonstrate prejudice. However, because the record is 
8

sufficiently developed for us to address the first prong as a matter of law, and 

because the determination of whether each prong is met is a question that we 

review de novo, see Collins, 166 N.H. at 213, we choose to address prong one 

first to promote clarity and ease of review. See Wisowaty, 137 N.H. at 302.

The first prong requires the defendant to show that counsel’s 

performance fell below an objective standard of reasonableness. Collins, 166 

N.H. at 212. In the plea-bargaining context, prior to trial an accused is entitled 

to rely upon his counsel to make an independent examination of the facts, 

circumstances, pleadings, and laws involved and then to offer his informed 

opinion as to what plea should be entered. Hall, 160 N.H. at 585. Counsel 

must not only communicate the terms of the plea offer to his client, but also 

the relative merits of the offer as compared to the client’s chances for success 

at trial. Id. Reasonable professional conduct, however, does not, under all 

circumstances, require an attorney to provide an explicit opinion as to whether 

a client should accept a plea offer. Id. 

The State argues that counsel’s conduct in advising the defendant about 

the merits of the State’s plea offer and his potential sentencing exposure at trial 

was reasonable because counsel told the defendant that he was exposed to an 

extended term and could get a “pretty severe” sentence if convicted at trial, 

counsel discussed the possibility of consecutive sentences with the defendant, 

and counsel researched sentences in cases similar to the defendant’s. We 

disagree that counsel’s conduct was objectively reasonable in this case. 

Even if defense counsel made reference to the possibility of a severe 

sentence, counsel testified that he gave the defendant the impression that the 

sentence he might receive after trial would be significantly less than it actually 

was — likely three years or less. Counsel also testified that the defendant 

relied on counsel’s opinion in deciding whether to accept the State’s plea offer 

or go to trial. Indeed, the defendant’s sentencing exposure at trial, including 

the sentence enhancement, was 150 years. Further, counsel testified that he 

did not recall, or have any documents in his file to indicate, that he discussed 

with the defendant the distinction between the Class A felonies with which he 

was charged and the sentence enhancement provision. That testimony, 

coupled with the defendant’s e-mail following his conviction asking counsel to 

explain the “Elder Abuse (over 65 years old) charge,” demonstrates that the 

defendant did not understand the nature or effect of the applicable sentence 

enhancement. 

In sum, counsel did not adequately advise the defendant about the 

applicable sentence enhancement and the merits of the State’s plea offer 

relative to the defendant’s likelihood of success at trial. Therefore, we conclude 

that counsel’s performance fell below an objective standard of reasonableness. 

See Byrd v. Skipper, 940 F.3d 248, 257 (6th Cir. 2019) (concluding that 

ignorance of the law applicable to the defendant’s case coupled with the 
9

inaccurate advice counsel gave his client about the likelihood of his success at 

trial was sufficient to deem counsel’s performance constitutionally inadequate);

Purdy v. U.S., 208 F.3d 40-41, 45 (2d Cir. 2000) (stating that “counsel must 

communicate to the defendant the terms of the plea offer, and should usually 

inform the defendant of the strengths and weaknesses of the case against him, 

as well as the alternative sentences to which he will most likely be exposed.” 

(citation omitted)); cf. Strickland, 466 U.S. at 691 (stating that “counsel has a 

duty to make reasonable investigations or to make a reasonable decision that 

makes particular investigations unnecessary”).

Next, we address prong two, the prejudice prong, of the Strickland test. 

This court has not yet addressed how to analyze the prejudice prong of an 

ineffective assistance claim where ineffective assistance results in the 

defendant’s rejection of a plea offer. The Supreme Court, however, has 

addressed this issue. See Lafler, 566 U.S. at 163. Because the analysis for 

ineffective assistance claims is the same under the State and Federal 

Constitutions, see Wisowaty, 137 N.H. at 301, we today adopt the approach to 

this inquiry that was developed by the Supreme Court in Lafler.

“To establish Strickland prejudice a defendant must show that there is a 

reasonable probability that, but for counsel’s unprofessional errors, the result 

of the proceeding would have been different.” Lafler, 566 U.S. at 163 

(quotation omitted). “In the context of pleas a defendant must show the 

outcome of the plea process would have been different with competent advice.” 

Id. “If a plea bargain has been offered, a defendant has the right to effective 

assistance of counsel in considering whether to accept it.” Id. at 168. “If that 

right is denied, prejudice can be shown if loss of the plea opportunity led to a 

trial resulting in a conviction on more serious charges or the imposition of a 

more severe sentence.” Id. 

When the prejudice alleged by the defendant is having to stand trial after 

rejecting a favorable plea offer as a result of counsel’s deficient performance, a 

defendant must show that, but for the ineffective advice of counsel, there is a 

reasonable probability that: (1) “the plea offer would have been presented to the 

court (i.e., that the defendant would have accepted the plea and the 

prosecution would not have withdrawn it in light of intervening 

circumstances)”; (2) “the court would have accepted its terms”; and (3) “the 

conviction or sentence, or both, under the offer’s terms would have been less 

severe than under the judgment and sentence that in fact were imposed.” Id. 

at 163-64.

First, we consider whether there is a reasonable probability that, but for 

counsel’s deficient performance, the defendant would have accepted the State’s 

plea offer. See id. at 163. The record demonstrates that the defendant was 

seriously considering the State’s plea offer at all times prior to trial. For 

example, when a plea agreement was not reached at the conclusion of the first 
10

settlement conference, the parties entered into an agreement “[t]o continue the 

Settlement Conference . . . in order to allow the Defendant time to consider the 

State’s current offer.” This agreement was approved by the trial court, which 

entered it as an order. The parties also filed an assented-to motion, which the 

court granted, for “Continuance of Pretrial and Trial.” The motion states that 

the “parties engaged in productive settlement discussions” and “are in 

agreement that the defendant have some time to consider the State’s current 

offer.” Additionally, in an e-mail response to the State’s reiteration of the plea 

offer in question, defense counsel informed the State that the defendant “has 

not ruled out a plea including some incarceration, so it makes sense to return 

to the second day of the Settlement Conference regardless of your response [to 

the defendant’s counteroffer].”

Moreover, but for counsel’s deficient advice regarding the merits of the 

State’s plea offer and the defendant’s sentencing exposure, the defendant 

would have better understood that the two-year period of incarceration 

included in the plea offer was at the low end of his sentencing exposure at trial, 

and the defendant would have been more likely to accept the State’s plea offer, 

which he was already considering. Compare Gramiak v. Beasley, 820 S.E.2d 

50, 56-57 (Ga. 2018) (stating that the significant difference between period of 

incarceration included in State’s plea offer and defendant’s sentencing 

exposure at trial could support an inference that the defendant would have 

accepted the plea offer); Com. v. Steckley, 128 A.3d 826, 833 (Pa. Super. Ct.

2015) (noting defendant’s willingness to enter into plea agreement corroborated 

by counsel’s testimony that she “strenuously” would have encouraged 

defendant to accept plea offer had she known extent of sentencing exposure),

with People v. Hale, 996 N.E.2d 607, 617 (Ill. 2013) (concluding that defendant 

did not demonstrate reasonable probability that he would have accepted plea 

because the record showed he was willing to risk a thirty-year sentence at trial 

rather than plead guilty in exchange for a sentence of fifteen years). 

The State argues that the evidence of the defendant’s willingness to 

consider a plea agreement consists of nothing more than vague assertions that 

the defendant had not ruled out a plea agreement and needed more time to 

consider the State’s offer, which, the State argues, “is far from indicating his 

acceptance.” However, the defendant is not required to establish that he would 

have accepted the plea. Rather, the defendant is required to demonstrate a 

reasonable probability that, but for counsel’s unprofessional errors, he would 

have accepted the plea. See Lafler, 566 U.S. at 163 (emphasis added). “The 

Strickland prejudice standard is not stringent — it is, in fact, less demanding 

than the preponderance standard.” Williams v. Beard, 637 F.3d 195, 227 (3d 

Cir. 2011) (quotation omitted); see Strickland, 466 U.S. at 693; see also

Woodford v. Visciotti, 537 U.S. 19, 22 (2002) (explaining that Strickland

“specifically rejected the proposition that the defendant had to prove it more 

likely than not that the outcome would have been altered”). Given the evidence 

of the defendant’s willingness to consider the State’s plea offer in this case, and 
11

counsel’s errors in advising the defendant, we conclude that, but for counsel’s 

deficient performance, there is a reasonable probability that the defendant 

would have accepted the plea offer.

Next, we consider whether the defendant has demonstrated that there is 

a reasonable probability that the State would not have withdrawn the plea offer

in light of intervening circumstances. Lafler, 566 U.S. at 164; see Missouri v. 

Frye, 566 U.S. 134, 147 (2012) (“Defendants must also demonstrate a 

reasonable probability the plea would have been entered without the 

prosecution canceling it or the trial court refusing to accept it, if they had the 

authority to exercise that discretion under state law.”); see also State v. 

Laforest, 140 N.H. 286, 290 (1995) (“In general, the State may withdraw a plea 

offer at any time before the defendant accepts the offer and has entered a guilty 

plea in reliance on it.”).

In an e-mail from the State to defense counsel, the State said it would 

keep the plea offer open through the second day of the settlement conference. 

The record does not include, and the State does not allege, any intervening 

circumstances to indicate that the prosecution would have withdrawn the plea 

offer prior to the defendant’s opportunity to accept it at the second settlement 

conference. Thus, we conclude that the defendant has demonstrated a 

reasonable probability that the State would not have withdrawn the plea offer. 

See Frye, 566 U.S. at 149-50 (stating that “it should not be difficult to make an 

objective assessment as to whether or not a particular fact or intervening 

circumstance would suffice, in the normal course, to cause prosecutorial 

withdrawal of a plea bargain” (ellipsis omitted)). 

We turn next to whether the defendant has demonstrated a reasonable 

probability that the court would have accepted the terms of the plea agreement 

if it had been presented. Lafler, 566 U.S. at 164; see State v. Jeleniewski, 147 

N.H. 462, 469 (2002) (stating that “a trial judge is vested with wide discretion 

when considering plea agreements and is free to reject an agreement”); N.H. R. 

Crim. P. 11(c)(1)-(2). In conducting this inquiry, we proceed on the assumption 

that “the decisionmaker is reasonably, conscientiously, and impartially 

applying the standards that govern the decision.” Strickland, 466 U.S. at 695. 

Our analysis does “not depend on the idiosyncrasies of the particular 

decisionmaker, such as unusual propensities toward harshness or leniency.” 

Id. “Thus, evidence about the actual process of decision, if not part of the 

record of the proceeding under review, and evidence about, for example, a 

particular judge’s sentencing practices, should not be considered in the 

prejudice determination.” Id. The Supreme Court has stated that, in most 

instances, because prosecutors and judges in most jurisdictions are assumed 

to be familiar with the boundaries of acceptable plea bargains and sentences, 

“it should not be difficult to make an objective assessment as to whether or not 

a particular fact or intervening circumstance would suffice, in the normal
12

course, to cause judicial nonapproval of a plea bargain.” Frye, 566 U.S. at 149

(ellipsis omitted).

The State argues that the defendant has not demonstrated a reasonable 

probability that the court would have accepted the plea agreement because, 

even if the plea had been presented to the court by the parties, that would not 

have given rise to anything more than a “hope” that the court would accept its 

terms. The State further argues that the record contains evidence that the trial 

court would not have accepted the terms of the plea agreement because the 

sentence imposed after trial was nearly five times greater than the sentence 

included in the State’s plea offer, and the presiding judge structured the 

defendant’s sentence similarly to a sentence that the judge had imposed 

previously in a similar case. We are not persuaded.

As the Supreme Court has explained, the prejudice inquiry under 

Strickland is an objective one that should not consider a particular judge’s 

sentencing practices. Strickland, 466 U.S. at 695. Thus, the fact that the 

sentence imposed by the judge after the defendant was convicted at trial was 

structured similarly to the sentence imposed in a previous case by the same 

judge should not be considered in determining whether the court would have 

accepted a plea agreement that included a lesser sentence. Further, although 

courts are not required to accept a plea agreement, that discretion in no way

heightens Strickland’s prejudice standard, nor detracts from the prominence of 

resolving matters in our criminal justice system through plea agreements. The 

Supreme Court has acknowledged that the plea process today “is not some 

adjunct to the criminal justice system; it is the criminal justice system.” Frye, 

566 U.S. at 144. Indeed, “ninety-four percent of state convictions are the 

result of guilty pleas.” Id. at 143. 

Absent some intervening circumstance, or evidence in the record, to 

suggest that the court would have rejected the plea agreement in the normal 

course, we conclude that there is a reasonable probability that the court would 

have accepted the plea agreement if it had been presented. See Frye, 566 U.S. 

at 151 (stating that, in light of the defendant’s new arrest for driving without a 

license, there is reason to doubt that the trial court would have accepted plea 

agreement); Rodriguez v. State, 470 S.W.3d 823, 829 (Tex. Crim. App. 2015) 

(determining that the court of appeals did not err in concluding that there was

a reasonable probability that the trial court would have accepted the plea

because nothing in the record indicated that the judge would have rejected the 

agreement); Woods v. State, 48 N.E.3d 374, 382-83 (Ind. Ct. App. 2015) 

(concluding that, without evidence to suggest otherwise, the trial court likely 

would have accepted the plea agreement because plea agreements are 

commonplace and conserve judicial resources); McMillion v. Commissioner of 

Correction, 97 A.3d 32, 40 (Conn. App. Ct. 2014) (stating that determination of

prejudice must be made by assessing whether a reasonable trial judge would 

have accepted the plea).
13

With respect to the final prejudice inquiry, the State concedes, as it 

must, that the sentence the defendant would have received under the plea 

agreement offered by the State is less severe than the sentence he received at 

trial. Therefore, having satisfied the two-part Strickland test, the defendant 

has prevailed on his claim that counsel provided constitutionally ineffective 

assistance in advising the defendant at the plea-bargaining stage regarding his 

sentencing exposure at trial and the merits of the State’s plea offer. 

“Even if a defendant shows ineffective assistance of counsel has caused 

the rejection of a plea leading to a trial and a more severe sentence, there is the 

question of what constitutes an appropriate remedy.” Lafler, 566 U.S. at 170. 

The remedy “should be tailored to the injury suffered from the constitutional 

violation and should not unnecessarily infringe on competing interests.” Id. 

(quotation omitted). Thus, the remedy “must neutralize the taint of [the]

constitutional violation, while at the same time not grant a windfall to the 

defendant or needlessly squander the considerable resources the State properly 

invested in the criminal prosecution.” Id. (quotation and citation omitted).

In Lafler, the Supreme Court stated that the “injury suffered by 

defendants who decline a plea offer as a result of ineffective assistance of 

counsel and then receive a greater sentence as a result of trial can come in at 

least one of two forms.” Id. In some cases, typically when the charges that 

would have been admitted as part of the plea bargain are the same as the 

charges the defendant was convicted of after trial, “the sole advantage a 

defendant would have received under the plea is a lesser sentence.” Id. at 170-

71. “In this situation the court may conduct an evidentiary hearing to 

determine whether the defendant has shown a reasonable probability that but 

for counsel’s errors he would have accepted the plea.” Id. at 171. “If the 

showing is made, the court may exercise discretion in determining whether the 

defendant should receive the term of imprisonment the government offered in 

the plea, the sentence he received at trial, or something in between.” Id.

In some cases, for example, where an offer was for a guilty plea to a 

count or counts less serious than the ones for which a defendant was convicted 

at trial, or if a mandatory sentence confines a judge’s sentencing discretion 

after trial, resentencing alone may not provide full redress for the 

constitutional injury. Id. “In these circumstances, the proper exercise of 

discretion to remedy the constitutional injury may be to require the 

prosecution to reoffer the plea proposal.” Id. “Once this has occurred, the 

judge can then exercise discretion in deciding whether to vacate the conviction 

from trial and accept the plea or leave the conviction undisturbed.” Id.

“In implementing a remedy in both of these situations, the trial court 

must weigh various factors; and the boundaries of proper discretion need not 

be defined here.” Id. In Lafler, the Supreme Court provided two guiding

considerations that the Court deemed to be of relevance: first, “a court may 
14

take account of a defendant’s earlier expressed willingness, or unwillingness, to 

accept responsibility for his or her actions”; and second, it is not necessary 

here to decide as a constitutional rule that the court is required to disregard 

“any information concerning the crime that was discovered after the plea offer

was made.”

1 Id. at 171-72. 

The defendant has acknowledged that the case now before us presents 

the first of the two scenarios described above, and by the Supreme Court in 

Lafler, because the sole advantage the defendant would have received under 

the plea is a lesser sentence. As a result, we pause to clarify our 

understanding of the Supreme Court’s description of this situation. The Court 

explained in Lafler that trial courts may exercise discretion in fashioning a 

remedy for a finding of ineffective assistance of counsel if the defendant has 

successfully demonstrated a reasonable probability, after an evidentiary 

hearing, that but for counsel’s errors he would have accepted the plea. See id. 

at 171. We understand the Supreme Court’s language to describe the 

discretion that may be exercised by the trial court after the defendant has 

demonstrated that he was prejudiced by counsel’s deficient performance; we do 

not understand that language to require an evidentiary hearing at the remedy 

stage to probe an inquiry that was already addressed during the prejudice 

analysis.

If the court has already determined that the defendant was prejudiced, in 

part because it is reasonably probable that the defendant would have accepted 

the plea agreement, it is difficult to understand why the court should consider 

the same inquiry again, using the same standard, when it exercises its 

discretion in fashioning a remedy. Cf. Ebron v. Commissioner of Correction, 53 

A.3d 983, 991-92 (Conn. 2012) (questioning why the trial court, when 

fashioning an appropriate remedy, should be permitted to consider whether it 

is reasonably probable that the court would have accepted the plea, since that 

question was already decided in the prejudice analysis). Indeed, reading Lafler

in such a way runs significant risks of conflicting findings at the prejudice and 

remedy stages at worst, cf. id. at 992, and expending scarce judicial resources 

on redundant proceedings at best. Further, when describing the second of the 

two scenarios, the Supreme Court did not include language about an 

evidentiary hearing or explain why a second evidentiary hearing might be 

required in the first set of circumstances but not the second. See Lafler, 566 

U.S. at 171. Therefore, because we have already determined in our prejudice 

analysis that the defendant has demonstrated a reasonable probability that,

 

1

The State erroneously relies on this language for the proposition that admissions made by the 

defendant at trial may be considered during the prejudice inquiry when determining whether 

there is a reasonable probability that the court would have accepted the plea agreement. 

However, this language appears in the discussion of a remedy for a finding of ineffective 

assistance of counsel, which is distinct from the prejudice inquiry, and nothing in Lafler suggests 

that the trial court may consider trial testimony in conducting the prejudice analysis.
15

but for counsel’s deficient performance, the defendant would have accepted the 

plea agreement, the trial court need not hold an evidentiary hearing on remand 

to determine that question. Rather, in deciding the appropriate remedy, the 

court’s inquiry should focus on whether the defendant should receive the term 

of imprisonment the State offered in the plea, the sentence he received at trial, 

or something in between. Id. 

The proper remedy upon a finding of ineffective assistance of counsel is 

to remand to the trial court, “which is vested with the discretion to place the 

[defendant], as nearly as possible, in the position that he would have been in if 

there had been no violation of his right to counsel.” H.P.T. v. Commissioner of 

Correction, 79 A.3d 54, 59 (Conn. 2013) (quotation omitted); cf. Lafler, 566 

U.S. at 172. “The time continuum makes it difficult to restore the defendant 

and the prosecution to the precise positions they occupied prior to the rejection 

of the plea offer, but that baseline can be consulted in finding a remedy that 

does not require the prosecution to incur the expense of conducting a new 

trial.” Lafler, 566 U.S. at 172. As the Supreme Court did in Lafler, our 

decision today leaves open to the trial court how best to exercise that discretion 

in all the circumstances of the case before it. Id. at 174-75.

Finally, the State argues that the defendant cannot be resentenced on 

remand to the sentence he would have received under the plea agreement 

without committing perjury. The State contends that such a remedy would 

require the defendant to admit facts under oath during a plea colloquy that he 

has already denied under oath at trial. We disagree. 

The State’s argument is premised upon the remedy applicable to the 

second situation described in Lafler. See id. at 171. In those circumstances, 

where resentencing alone may not provide full redress for the constitutional 

injury, the trial court has the discretion to decide whether to vacate the 

conviction from trial and accept the plea or leave the conviction undisturbed. 

Id. By contrast, the remedy applicable to the first scenario described in Lafler, 

and to the case now before us, does not give the trial court the discretion to 

vacate the conviction or accept the plea. Id. at 170-71. Rather, that remedy 

permits the court to exercise discretion in determining whether to resentence 

the defendant to either the term of imprisonment the government offered in the 

plea, the sentence he received at trial, or something in between. Id. at 171. 

Thus, no plea colloquy is necessary for application of the remedy, and the 

defendant is not at risk of committing perjury. 

Because the standard for determining whether a defendant has received 

ineffective assistance of counsel is the same under both the State and Federal 

Constitutions, we reach the same result under the Federal Constitution as we 

do under the State Constitution. Hall, 160 N.H. at 588. Accordingly, we affirm
16

the trial court’s order in part, reverse in part, and remand for resentencing 

consistent with this opinion.2

Affirmed in part; reversed in part;

and remanded.

 

DONOVAN, J., concurred; NADEAU, C.J., superior court justice, specially 

assigned under RSA 490:3, concurred.

 

2 In light of our decision, the defendant’s motion to supplement appendix is moot.