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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Hillsborough

- n orthern judicial district

No. 2013

- 0762

THE STATE OF NEW HAMPSHIRE

v.

OSCAR GRANDE

Argued: October 15, 2015 Opinion Issued: January 12, 2016

Joseph A. Foster , attorney general ( Susan P. McGinnis

, senior assistant

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

Stephanie Hausman

, deputy chief appellate defender , of Concord , on the

brief and orally, for the defendant.

DALIANIS

, C. J. Following a jury trial in Superior Court ( Abramson , J.),

t he defendant, Oscar Grande, was convicted of armed robbery. See RSA 636:1 (2007) . On appeal, he a rgues that his trial counsel was ineffective by failing to

contest the admission of evidence concerning an uncharged robbery. We

affirm.

The relevant facts follow. On January 9, 201 3, two men, both wearing

masks and gloves, and one carrying a knife, entered the “ Bremmer Street Food

Mart ” (Food Mart) , in Manchester, and demanded money from the clerk

. The2

clerk did not give the men any money, but stated that he was going to call the police. The two men left the store, and the clerk called 911. When the police arrived, the clerk showed them the surveillance footage of the robbery

. The police conduct ed a canine track of the suspects , which was unsuccessful

.

At the time of the robbery , the defendant was living with Lisa Velasques,

and others, at a resi dence located approximately one

- and

- one

- half blocks from

the Food Mart. On January 9, Velasqu es overheard the defendant and a man , who m she knew as “Danny

, ” discussing a robbery they had committed at a

store “off of Bremmer Street.” The two said that the defendant “went in with

the knife and was at the counter with the clerk

, ” who told them that “there was a cop out back

, ” and they left without getting any money . They also discussed having put “their gloves and masks in the garbage cans and jump[ed] fences so the dogs wouldn’t follow them back to [the] house.” After hearing this

conversati on, Velasques contacted her attorney because she had a pending theft charge and “didn’t need any more . . . trouble.” Velasques’s attorney advised her to speak with the police.

A few days later, Velasques gave a statement to the police concerning

what she had heard about the Food Mart robbery

. She also told the police

that , on January 6, she overheard a separate conversation between the

defendant and Danny concernin g a robbery of the 99 Cent and Cedar Market (99 Cent Store) in Manchester. During that robbery, Danny , acting alone, went into the store with a knife and demanded money from an employee

, who ran

into a back room , grabbed a shovel, and c hased Danny out of the store

. The

defendant was charged with the robbery of only the Food Mart.

Before trial, the State moved in limine to introduce eviden ce of the 99 Cent Store robbery, arguing that it wa s necessary to corroborate the

defendant’ s admissions regarding the Food Mart robbery. Specifically, it

s ought to introduce Velasques’s testimony concerning what she had over heard

about th at robbery, as well as the testimony of the 99 Cent Store employee who was working on the night of th at robbery

. The trial court denied the State’s

motion

, but stated that it would revisit its ruling after opening statements. During opening statement s , defense counsel made several statements that

caused the trial co urt to reverse its ruling and allow the State to present evidence of the 99 Cent Store robbery. Following trial

, the jury convicted the

defendant.

After the defend ant filed his direct appeal

, he filed in the trial court a motion for new trial

, alleging ineffective assistance of counsel

. Although the defendant was appointed counsel in his direct appeal, he filed his motion for a

new trial as a self

- represented party. We stayed the direct appeal pending the

outcome of the post

- trial proceedings in the trial court. The defendant was subseq uently appointed counsel in the post

- trial proceeding s

. In October 2014, the trial court denied the defendant’s motion for new tria l and his3

subsequent motion for reconsideration

. The defendant did not timely appeal

the trial court’s denial of his motion for new trial

. See Sup. Ct. R. 7 (1) (B).

In February 2015, the defendant filed a “motion to allow late filing of a notice of appeal” of the trial court’s denial of his motion for new trial. However,

because he did not accompany the motion with the required notice of appeal,

see Sup. Ct. R. 21(6), we deferred ruling on his motion and ordered him to file

the notice of appeal on or before March 23, 2015. Included with our order was

both the notice of discretionary appeal form and instructions on its c ompletion. The defendant again failed to file a notice of appeal, and we denied his motion

to allow late filing. See id

. Afterward , the defendant filed another motion to
allow late filing, which we interpreted as a motion for reconsideration and

denied on May 11, 2015

.

Approximately a month later, the defendant filed a motion to add an ineffective assistance of counsel claim to his direct appeal. We granted the

motion subject to the State’s reservation of the right to raise any procedural,

substantiv e, or preservation issues that m ight arise upon its review of the

record. The defendant’s ineffective assistance of counsel claim is the sole issue presented in this appeal.

The defendant argues that his trial counsel was ineffective because he

failed to contest the trial court’s ruling that he had opened the door to eviden ce of the 99 Cent Store robbery and failed to articulate why that evidence was

inadmissible. The State argues that the defendant w aived his ineffectiveness claim when he failed to appeal the trial court’s rulings in his collateral proceeding

. The State also argues that the do ctrines of collateral estoppe l, res judicata, and judicial estoppel prevent the defendant from re

- litigating his

ineffectiveness claim. Alter natively, the State argue s that, even if we reach the

merits of the defendant’ s claim, it was not error for the trial court to have admitted evidence of the 99 Cent Store robbery.

We begin with the State’s argument that the defendant is procedurally barred from raising his ineffectiveness claim in t his direct appeal. In his brief,

the defendant relies solely upon State v. Thompson , 161 N.H. 507 (2011)

, in support of his assertion that he may b ring his ineff ectiveness claim under

these circumstances

.

In Thompson , we held that in certain “extraordinary” situations

, a defendant may raise an ineffective assistance of counsel claim in his direct appeal. Thompson , 161 N.H. at 527. Such a claim can be decided on direct appeal “where the factual basis of the claim appe ar s indisputably on the trial

record.” Id . (quotation omitted). Thus, we provided a defendant “with the choice of whether to raise an ineffectiveness claim on direct appeal or in a later

collateral proceeding.” Id . However, “we again emphasize[d] that we strongly4

disfavor adjudication on direct appeal,” and that “we maintain a strong preference for collateral review of ineffectiveness claims.” Id

.

Thompson is readily distinguishable from the instant case. Thompson

involved a defendant who brought his ineffectiveness claim in his direct appeal

, without having first sought collateral review in the superior court. Id . at 509

. Here, the defendant stayed his direct appe al, litigated his ineffectiveness claim in the trial court, lost, and failed to appeal the trial court’s decision. W e have

stated that a defendant may request that we stay his direct appeal in order for

him to raise his ineffectiveness claim in the trial court before proceeding with

the re st of his appeal. I d . at 528. However, n othing in Thompson allows a defendant to litigate his ineffectiveness claim in the trial court

, fail to appeal the trial court’s ruling, and then obtain appellate review of his claim as part of his direct appeal

.

The State contends that the defendant is precluded, under the doctrine of collateral estoppel, from making his ineffective assistance of counsel
argument in this a ppeal

. The doctrine of collateral estoppel “bars a party to a prior action, or a person in privity with such a party, from relitigating any issue

o r fact actually litigated and determined in the prior action.” Hansa Consult of N. Am. v. Hansaconsult Ingenieurges ellschaft , 163 N.H. 46, 50 (2011). The State sets forth the test, generally applicable in civil cases, that collateral estoppel applies when: (1) the issue subject to estoppel is identical in each action; (2) the first action resolved the issue finally o n the merits; (3) the party to be estopped appeared in the first action or was in privity with someone who did; (4) the party to be estopped had a full and fair opportunity to litigate the issue; and (5) the finding at issue was essential to the first judg ment. Id

. Because we have held that “[p]ost

- conviction relief, such as a motion for a new trial based upon ineffective assistance of counsel, is civil in nature,” and

because the defendant does not argue otherwise, we assume without deciding

that the civ il test applies. State v. Hall , 154 N.H. 180, 182 (2006) (quotation omitted); see Pennsylvania v. Finley , 481 U.S. 551, 557 (1987).

We first consider whether the issue s the defendant raised in his motion

for new trial are identical to those he now raises on appeal. In the trial court, the defendant argued that his trial counsel was ineffective because he had failed to argue that: (1) in fact, he had not opened the door to Velasque s ’s testimony about the 99 Cent Store robbery; and (2) Velasque s ’s testimony constituted inadmissible hearsay. These issues are identical to th ose which the defendant raises on appeal. On appeal, he argues that his trial counsel was ineffective because, “when the trial court indicated that counsel had opened the door

, . . . counsel appeared to have agreed that he opened the door” and because counsel “did not present the trial court with the basis upon which

it could determine tha t the evidence was inadmissible. ”5

We next consider whether these issues were resolved f inally on the merits. The trial court held a hearing on the merits and, after the court rejected the defendant’s argument, the defendant failed to appeal the trial court’s ruling. The defendant’s failure to appeal rendered the trial court ’s

decision a fi nal judgment. See Super. Ct. Civ. R. 46( b ). Therefore, we conclude

that the first action resolved the issue s on the merits.

We conclude that the third and fourth prongs of the collateral estoppel

test are also met because the defendant was a party to th e trial court action and is a party in this appeal , was appointed counsel, and the trial court held a hearing on the merits of his motion for new trial. We likewise conclude that the trial court’s finding s on the defendant’s ineffective assistance issues were

esse ntial to the final judgment. The court considered and rejected the defendant’s argument s on the merits, and, had it not done so, would have b e e n required to grant his request for a new trial. See Tyler v. Hannaford Bros. , 161 N.H. 242, 247 (2010 ). Therefore, because all of the prongs of the test are satisfied, we hold that the defendant is collaterally estopped from raising his

ineffective assistance of counsel issues again in this direct appeal.

Affirmed

.

CONBOY, LYNN, and BASSETT, JJ ., concurred.