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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Strafford

No. 2017-0385

THE STATE OF NEW HAMPSHIRE

v.

DAVID MARTINKO

Argued: April 17, 2018

Opinion Issued: August 17, 2018

Gordon J. MacDonald, attorney general (Elizabeth A. Lahey, assistant 

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

Law Office of Joshua L. Gordon, of Concord (Joshua L. Gordon on the 

brief and orally), for the defendant.

LYNN, C.J. The defendant, David Martinko, appeals an order of the 

Superior Court (Houran, J.) denying his motion to vacate guilty pleas that he 

entered in 2014 to three felony informations. The informations charged him 

with aggravated felonious sexual assault under the pattern sexual assault

statute. See RSA 632-A:2, III (2016). He argues that: (1) the informations 

violated his state and federal constitutional protections against double 

jeopardy; and (2) his trial counsel provided ineffective assistance because he

did not advise the defendant of these violations. We affirm. 
2

The State made the following proffer at the 2014 sentencing hearing. On 

October 31, 2013, the defendant went to the Dover Police Department and

confessed that he had sexually assaulted the fifteen-year-old victim on the 

preceding night. On November 1, 2013, the victim participated in a forensic 

interview in which she confirmed that she had been sexually assaulted by the 

defendant on October 30. She also reported that the assaults began when she 

was four or five years of age when they were living out of state. The defendant 

continued to sexually assault the victim after they moved to New Hampshire in 

2010. The abuse happened every night or every other night until just before 

her fourteenth birthday when she told him to stop; thereafter he assaulted her 

approximately once a month. 

At the sentencing hearing, the defendant waived indictment and pled 

guilty to the three informations. Each information charged him with a pattern

of assaults that spanned different dates: the first information charged assaults 

that occurred between September 1, 2010 and August 31, 2011; the second 

charged assaults that occurred between September 1, 2011 and August 31, 

2012; and the third charged assaults that occurred between September 1, 

2012 and October 31, 2013. The trial court accepted his negotiated plea and 

imposed three consecutive sentences. The court also ordered that the 

minimum sentence imposed on the third charge “may be suspended by the 

Court on application of the defendant, provided the defendant demonstrates 

meaningful participation in the sexual offender program while incarcerated.” 

In April 2017, the defendant filed the motion to vacate his plea and the

sentences underlying this appeal. He argued that the three pattern 

informations to which he pled guilty violated the Double Jeopardy Clauses of 

the State and Federal Constitutions because they charged “three separate sets 

of acts during overlapping time periods, alleging identical variants of sexual 

behavior that occurred at the same location.” He further argued that his trial 

counsel was ineffective for failing to advise him of the double jeopardy 

violations. The trial court denied his motion, finding that “the State’s charges 

allege three separate sets of acts during three discrete time periods.” This 

appeal followed.

A guilty plea must be knowing, intelligent, and voluntary to be valid. 

State v. Ortiz, 163 N.H. 506, 509 (2012). Thus, a defendant must voluntarily 

waive his rights and fully understand the elements of the offense to which he is 

pleading, the direct consequences of the plea, and the rights he is forfeiting.

Id. In a collateral attack to a guilty plea, the defendant bears the initial burden 

and must describe the specific manner in which the waiver was in fact 

involuntary or without understanding. Id. If the defendant meets his initial 

burden, and if the record indicates that the trial court affirmatively inquired 

into the knowledge and volition of the defendant’s plea, then the defendant has 

the burden to demonstrate by clear and convincing evidence that the trial court 
3

was wrong and that his plea was either involuntary or unknowing for the 

reason he specifically claims. Id.

The Double Jeopardy Clauses of the State and Federal Constitutions 

each provide three protections: (1) protection against subsequent prosecution 

for the same offense after acquittal; (2) protection against subsequent 

prosecution for the same offense after conviction; and (3) protection against 

multiple punishments for the same offense. State v. Wilson, 169 N.H. 755, 772 

(2017). The defendant argues that the three informations violated his 

protection against multiple punishments. 

In support of his argument, he observes that the informations “are 

precisely successive”; that is, the second information charged assaults 

beginning on the next day after the period charged in the first information

ended, and the third information charged assaults beginning on the next day 

after the end of the period charged in the second information. He contends 

that because there is no evidence in the record “that three distinct patterns 

began and ended on those dates,” “the periods are arbitrary, and therefore the 

Informations are multiplicitous, in violation of federal and state constitutional 

bars against double jeopardy.” Accordingly, he argues, we should reverse two 

of his convictions and remand this case for resentencing on the third 

information.

Whether charging documents violate double jeopardy protections found 

in the State and Federal Constitutions presents a question of constitutional 

law, which we review de novo. See id. Challenges to multiple convictions 

based on multiplicity can be divided into two categories. State v. Lynch, 169 

N.H. 689, 706 (2017). In “double-description” cases, the question is whether 

two statutes describe separate offenses or are simply different descriptions of 

the same offense. Id. In “unit of prosecution” cases, the question is whether a 

defendant’s course of conduct constitutes more than one violation of a single 

statutory provision. Id. The parties agree that the issue in this case requires 

us to determine the applicable unit of prosecution.

When a defendant argues that his rights have been violated under both 

the State and Federal Constitutions, we consider the arguments first under our 

State Constitution and rely upon federal law only to aid our analysis. State v. 

Mitchell, 166 N.H. 288, 296 (2014). To determine whether charged offenses 

violate the double jeopardy protections of our State Constitution in unit of 

prosecution cases, we examine whether proof of the elements of the crimes as 

charged will require a difference in evidence. State v. Ramsey, 166 N.H. 45, 51 

(2014). Although we have consistently articulated this test, we have not 

consistently applied it and have previously invited parties “to suggest a 

formulation of the double jeopardy test to be applied under our State

Constitution.” State v. Locke, 166 N.H. 344, 353 (2014). Neither party has 

accepted our invitation in this case.
4

RSA 632-A:2, III, the pattern sexual assault statute, provides:

A person is guilty of aggravated felonious sexual assault 

when such person engages in a pattern of sexual assault against 

another person, not the actor’s legal spouse, who is less than 16 

years of age. The mental state applicable to the underlying acts of 

sexual assault need not be shown with respect to the element of 

engaging in a pattern of sexual assault.

“Pattern of sexual assault” is defined as “committing more than one act under 

RSA 632-A:2 or RSA 632-A:3, or both, upon the same victim over a period of 2

months or more and within a period of 5 years.” RSA 632-A:1, I-c (2016).

“The essential culpable act, the actus reus, is the pattern itself, that is, the 

occurrence of more than one sexual assault over a period of time.” State v. 

Fortier, 146 N.H. 784, 791 (2001). 

In declining our invitation to propose a formulation of the double 

jeopardy test to be applied under our State Constitution, the defendant 

observes that our “unit of prosecution” jurisprudence “is probably not 

susceptible of ready harmonization.” He contends, however, that, although we 

have “allowed small differences to constitute separate patterns,” we have 

required “that there be some material differences in the acts to justify separate 

pattern allegations.” He cites State v. Richard, 147 N.H. 340 (2001), and State 

v. Jennings, 155 N.H. 768 (2007), to support his contention. We do not read 

these opinions so narrowly.

The defendant correctly observes that we affirmed convictions on ten 

pattern indictments in Richard after finding that “each charged a particular 

variant of sexual assault different from the type charged in the other patterns.”

State v. Richard, 147 N.H. 340, 343 (2001). Relying upon this language in

Richard, the defendant argues that because the dates charged in each of the 

three informations to which he pled guilty did not encompass distinct patterns 

of sexual assault, as reflected by any pattern-centered difference in the 

evidence, the informations violated his constitutional protection against double 

jeopardy. Unlike in his case, however, the pattern indictments in Richard

charged overlapping time frames. Id. Addressing the specific allegations of the 

Richard indictments, we held that multiple pattern indictments that charged 

numerous assaults within a common time frame committed against a single 

victim could not rely on the same underlying act or acts to comprise the 

charged pattern. Id. Thus, the narrow holding in Richard does not resolve the 

issue raised in this case, where the three informations do not charge patterns 

with overlapping time frames.

Nor does Jennings provide support for the defendant’s argument. In 

Jennings, we concluded that three indictments that “allege[d] three separate 

sets of acts during three discrete time periods at three different locations” did 
5

not subject the defendant to multiple punishments for the same offense and 

did not violate the federal protection against double jeopardy. State v. 

Jennings, 155 N.H. 768, 778 (2007). However, Jennings did not establish that 

each of these factors was required when the State sought to indict a defendant 

for multiple pattern offenses that had been committed during a common fiveyear period.

Indeed, in Jennings, we rejected the defendant’s argument that the 

pattern sexual assault statute is intended to define as a single pattern all 

sexual assaults of the same variant committed against a single victim that 

occur within the same five-year period, observing that the “statute on its face 

contains no such limit.” Id. at 777. We observed that the purpose of the 

pattern statute is to address the concern that young victims, who have been 

subjected to numerous, repeated incidents of sexual assault over a period of 

time by the same assailant may be unable to identify discrete acts. Id. To 

construe the statute to define all assaults of the same variant committed 

against the same victim within a five-year period as a single pattern would 

undermine its very purpose. Id. at 778. “The more plausible reading of the 

statute allows the State to charge more than one pattern of a given sexual 

assault variant within a five-year time frame, each as an individual unit of 

prosecution, when the evidence of discrete patterns so warrants.” Id. Because 

the challenged indictments in Jennings charged three discrete patterns of 

sexual assault and the “prosecution at trial would have to prove that the acts 

occurred within each of the alleged, discrete periods of time,” we concluded 

that the defendant was not subjected to multiple punishments for the same 

offense. Id.

The defendant contends that because his “conduct was one continuous 

pattern spanning three years,” the State could not charge him with three 

different one-year pattern offenses. Rather, he argues, the State must plead 

“actual distinct patterns” found in the evidence. Absent legislative direction, 

we decline to impose this requirement. The defendant was charged with 

committing acts that occurred within discrete periods of time that did not 

overlap. To obtain conviction, the State was required to prove that two or more

acts occurred within each of the charged discrete periods. Given the difference 

in the evidence required to obtain a conviction and the purpose of the statute, 

we hold that the State was permitted to seek separate convictions on the 

charged informations, without violating the defendant’s protection against 

double jeopardy.

We reach the same conclusion when we review the defendant’s claim 

under the Federal Constitution. As noted above, the defendant cites State v. 

Richard and State v. Jennings to support his double jeopardy challenge. The 

defendants in those cases relied exclusively on the Federal Constitution to 

argue that their convictions violated double jeopardy. To determine whether a 

defendant is subject to multiple punishments for the same offense, in violation 
6

of the protection provided by the Federal Constitution, “we must determine the 

unit of prosecution intended by the legislature.” Richard, 147 N.H. at 342. 

“Because the substantive power to prescribe crimes and determine 

punishments is vested with the legislature, the question under the Double 

Jeopardy Clause whether punishments are ‘multiple’ is essentially one of 

legislative intent.” Ohio v. Johnson, 467 U.S. 493, 499 (1984) (citations 

omitted). “With respect to cumulative sentences imposed in a single trial, the 

Double Jeopardy Clause does no more than prevent the sentencing court from 

prescribing greater punishment than the legislature intended.” Missouri v. 

Hunter, 459 U.S. 359, 366 (1983). As we noted above, to construe the pattern 

sexual assault statute to define all assaults of the same variant committed 

against the same victim within a five-year period as a single pattern would 

undermine its very purpose. Accordingly, we conclude that, under the Federal 

Constitution, the State was permitted to seek separate convictions on the 

charged informations. 

For the foregoing reasons, we reject the defendant’s argument that his 

trial counsel was ineffective because he failed to advise the defendant that his 

pleas were in violation of the Double Jeopardy Clauses of the Federal and State 

Constitutions.

In reaching this result, we emphasize, as we have in previous cases, that 

the State should be mindful of its obligation to exercise meaningful 

prosecutorial discretion when determining the pattern to be charged. See, e.g., 

Jennings, 155 N.H. at 779.

Affirmed.

HICKS, BASSETT, and HANTZ MARCONI, JJ., concurred.