1. THE STATE OF NEW HAMPSHIRE
SUPREME COURT
In Case No. 2013-0648, State of New Hampshire v.
Benjamin Percy, the court on October 21, 2014, issued the
following order:
Having considered the briefs of the parties and the record submitted on
appeal, the court concludes that a formal written opinion is unnecessary in the
case. The defendant, Benjamin Percy, appeals an order of the Circuit Court
(Cirone, J.) denying his motion to vacate his conviction for driving while under
the influence (DUI) in violation of RSA 265-A:2 (Supp. 2006) (amended 2012).
Percy contends that the circuit court erred in denying his motion for the
following reasons: (1) at no point during his plea colloquy did he personally
pronounce his guilt; (2) at no point during his plea colloquy did he personally
admit to the facts contained in the State's offer of proof, which made the offer
of proof insufficient; and (3) his attorney's request that the trial court accept "a
negotiated settlement" could not be a surrogate for his pronouncement of guilt.
We interpret the essence of these arguments to articulate a legal question as to
whether a defendant must personally enter his guilty plea or admit to guilt for
the plea to be valid. We affirm.
The record supports the following facts. On December 12, 2007, the
parties appeared in the trial court to enter a plea with respect to the DUI
charge. Appearing in court were Lt. Matthew Isham for the State, Attorney
Gary Apfel for Percy, and Percy.
Prior to the hearing, the parties reached a negotiated settlement and
sentencing agreement. Percy signed an acknowledgement and waiver of rights
form, on which he indicated that he was represented by, and satisfied with,
counsel. The form explained the rights waived by Percy and set forth the direct
consequences of pleading guilty or nolo contendere. It explicitly stated that
Percy did not have to plead guilty or nolo contendere and could refuse to plead
guilty or nolo contendere even after signing the form. The parties attached to
the form a written sentencing agreement.
At the hearing, the trial court engaged Percy in a brief colloquy. It asked
Percy if he and Apfel had reviewed the acknowledgement and waiver of rights
form, to which Percy responded that they had done so. The trial court
explained the rights waived by, and the direct consequences of, entering a plea.
It then asked Percy if he understood that, by filing the pleading, he would be
waiving his rights, to which Percy responded that he did. The trial court ended

2. its colloquy with Percy by asking if he had any questions, to which Percy
responded that he had no questions. This was the last statement Percy made
in court.
After the trial court concluded its colloquy with Percy, it requested the
State's offer of proof. The State explained the circumstances leading up to
Percy's arrest and after his arrival at the Lebanon Police Department. Next,
Percy's attorney, Gary Apfel, responded to the State's offer of proof. Apfel
explained several challenges the defense would have raised but concluded by
urging the trial court to accept "a negotiated settlement."
At this point, the trial court sentenced Percy to pay a $600 fine and
suspended his privilege to operate a vehicle in New Hampshire for nine
months. The remainder of the hearing consisted of a discussion between Apfel
and the trial court regarding the court's ability to credit Percy for pretrial
license suspension time. Apfel stated that regardless of whether Percy could be
credited, Percy did not intend to withdraw his plea. After the hearing, the
judge certified that he had examined Percy concerning the plea entered, found
that Percy understood the charge against him, the minimum and maximum
penalties and the elements of the offense, that Percy was not under the
influence of drugs or alcohol, and that he intelligently, knowingly, and
voluntarily waived each of the rights set forth on the acknowledgement and
waiver of rights form.
More than six years later, Percy, through new counsel, Attorney Jared
Bedrick, filed a motion in the circuit court to vacate conviction. In his motion,
Percy argued that his plea was invalid because he had never admitted to his
guilt, that Apfel had never entered a guilty plea on his behalf, and that any plea
would be invalid because Percy did not know the length of his sentence. The
State objected to the motion and argued that Apfel had sufficient authority to
enter a plea and did so when he asked the trial court to approve the negotiated
settlement. On August 5, 2013, the circuit court denied Percy's motion. Percy
filed a motion for reconsideration, which was denied. This appeal followed.
Percy's argument that his guilty plea was invalid implicates Part I, Article
15 of the State Constitution and the Due Process Clause of the Fourteenth
Amendment to the United States Constitution. Boykin v. Alabama, 395 U.S.
238, 243 (1969); State v. Ortiz, 163 N.H. 506, 509 (2012). Because the State
does not argue to the contrary, we assume, as we did in State v. Arsenault,
that the same constitutional standards apply to the defendant's plea to a non-
criminal violation level offense as apply to a criminal offense. See State v.
Arsenault, 153 N.H. 413, 415 (2006); RSA 625:9, II (2007) (violation level
offense does not constitute a crime). We review questions of constitutional law
de novo. Id. We first address Percy's claim under the State Constitution and
rely upon federal law only to aid our analysis. State v. Ball, 124 N.H. 226, 231-
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3. 33 (1983). Furthermore, to the extent that the State argues that Percy's motion
was time barred or moot, we decline to consider these arguments.
"A guilty plea must be knowing, intelligent, and voluntary to be valid."
Ortiz, 163 N.H. at 509 (quotation omitted). Accordingly, 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. (quotation omitted).
In a collateral attack on a plea, the defendant bears the initial burden to
describe the specific manner in which the waiver or guilty plea was involuntary
or without understanding, and must at least go forward with evidence
sufficient to indicate that his specific claim presents a genuine issue for
adjudication. Id.; see also Richard v. MacAskill, 129 N.H. 405, 408 (1987)
("The plaintiff thus erroneously assumed that a mere allusion to an inadequate
Boykin record would state a claim for collateral relief ..."). Here, Percy bears
the initial burden to describe the specific manner in which his plea and waiver
of rights were involuntary or without understanding, and must present
evidence that the specific claim presents a genuine issue for adjudication.
Ortiz, 163 N.H. at 509.
In his motion to vacate and on appeal, Percy argues that his conviction is
invalid since he did not pronounce his guilt in open court and did not admit to
the facts presented in the State's offer of proof, and that his attorney's request
that the trial court adopt the negotiated settlement did not do either on his
behalf. These arguments present the legal question whether a defendant must
personally enter his guilty plea or admit to guilt for the plea to be valid.
In support of his argument, the defendant presents the December 2007
hearing transcript, his acknowledgment and waiver of rights form, and the
conviction form. Percy cannot carry his initial burden on collateral review,
however, simply through a recitation that the trial court failed to adequately
comply with Boykin v. Alabama. See Richard, 129 N.H. at 408. He must make
specific claims regarding his knowledge, understanding, and volition to
successfully carry his burden. See id. Thus, we must determine whether his
argument that he must personally enter his guilty plea or admit to his guilt,
which he did not do during his plea colloquy, has any bearing on whether his
plea was knowing, intelligent, and voluntary. We hold that it does not and that
Percy cannot meet his initial burden on collateral review.
In Boykin, the United States Supreme Court held that because a
defendant waives numerous constitutional rights, including the rights against
compelled self-incrimination, to a jury trial, and to confront adverse witnesses,
trial courts must create an adequate record to establish that a defendant's plea
is knowing, intelligent, and voluntary. Boykin, 395 U.S. at 242-44. Despite
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4. the requirement that the record reflect the defendant's knowledge,
understanding, and volition before the trial court can accept a guilty plea, no
set procedure exists to create a constitutionally adequate record. See
McCarthy v. United States, 394 U.S. 459, 465 (1969) (noting that strict
adherence to Rule 11 of the Federal Rules of Criminal Procedure has not been
constitutionally mandated); Richard, 129 N.H. at 409 ("While no one particular
form of procedure is necessary ... misdemeanor pleas are as much subject to
[Boykin's] requirements as pleas in felony cases."). The individual defendant's
particular circumstances, such as being self-represented, can cause these
requirements to shift. Compare Arsenault, 153 N.H. at 419 (holding that a
signed acknowledgement and waiver of rights form was insufficient to permit
the trial court to assume the self-represented defendant, without further
explanation, understood the elements of the offense charged) with State v.
Allard, 116 N.H. 240, 242 (1976) (holding that the trial court did not err by
accepting a guilty plea where a defendant had representation and
acknowledged that counsel had adequately explained the charges and potential
penalties). The law requires only that the record show that the defendant's
plea was knowing, intelligent, and voluntary, regardless of how the trial court
reaches that conclusion. Boykin, 395 U.S. at 242-44; Richard, 129 N.H. at
407.
To determine that a plea was knowing and intelligent, the trial court
must ascertain that the defendant understood his rights and that he would
waive those rights by entering a plea, the elements of the charged offense, the
potential sentencing range, and the direct consequences of his guilty plea. See,
~' Boykin, 395 U.S. at 243 (discussing rights waived in pleading guilty);
Ortiz, 163 N.H. at 510 (explaining that a defendant must be advised of direct
consequences of guilty plea); Arsenault, 153 N.H. at 419 (explaining that a
defendant must understand the elements of the charged offense); Allard, 116
N.H. at 242 (discussing that a defendant must understand the potential
penalties resulting from a guilty plea). To establish that a plea was voluntary
the trial court must ascertain that the decision to enter a guilty plea was not
the product of coercion, undue influence, or threats and that the defendant
was not under the influence of drugs or alcohol when he entered his plea. See,
~'Brady v. United States, 397 U.S. 742, 750 (1970) (explaining the
distinction with respect to voluntariness between facing a severe sentence and
coercion by the State). Ultimately, however, the plea does not become
unknowing, unintelligent, or involuntary simply because the defendant does
not admit to the facts presented by the State or personally pronounce his guilt
in open court. See North Carolina v. Alford, 400 U.S. 25, 37 (1970) ("[W]hile
most pleas of guilty consist of both a waiver of trial and an express admission
of guilt, the latter element is not a constitutional requisite to the imposition of
criminal penalty."). Therefore, any argument that Percy's guilty plea was
involuntary because he did not affirmatively declare his guilt in open court
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5. fails, and he cannot meet his initial burden without a specific claim regarding
his knowledge, intelligence, or understanding.
The facts in the record further undermine Percy's argument. His
attorney at the December 2007 hearing urged the trial court to accept the
negotiated settlement. The record is clear that the negotiated settlement had
been accepted by the parties prior to the plea hearing. Percy and Apfel had
reviewed the settlement, and it had been incorporated into the
acknowledgement and waiver of rights form, which Percy had signed. Later in
the proceeding, Apfel reiterated -Percy's intention to maintain his guilty plea,
regardless of whether the trial court would grant him pretrial credit as to his
suspension. From these statements by counsel, the signed acknowledgment
and waiver of rights form, Percy's responses during the colloquy, and Percy's
silence in the face of his attorney's requests, the trial court could properly infer
Percy's intention to enter a guilty plea. Moreover, Percy does not challenge
Apfel's authority to enter a plea on his behalf; nor does he argue that the trial
court entered a plea against his will.· He simply argues that his plea was
defective because he did not personally pronounce his guilt or admit to the
facts in the State's offer of proof. See,~' Alford, 400 U.S. at 37. Additionally,
Percy's decision to wait nearly six years from the date of his conviction to
assert the invalidity of his plea, while not dispositive, strongly suggests that he
had intended to plead guilty at the December 2007 hearJng.
The Federal Constitution offers the defendant no greater protectio1;1 than
the State Constitution under these circumstances. See Brady, 397 U.S. at 758
· (suggesting that trial courts can more readily accept guilty pleas from
defendants advised by competent counsel); Ortiz, 163 N.H. at 509 (detailing the
collateral review requirements fo'r state constitutional claims); Arsenault, 153
N.H. at 415-16 (detailing the collateral review requirements for,federal
constitutional claims). Accordingly, we reach the same result under the .
Federal Constitution as we do under the State Constitution.
Despite our ruling in this case, we emphasize to trial courts that the plea
colloquy is a constitutionally required element that a court must comply with
before accepting a guilty or nolo contendere plea~ See Arsenault, 153 N.H. at
418 ("[A] colloquy is constitutionally required when a defendant pleads guilty
..."). The purpose of such colloquies is two-fold. The primary purpose is to
assure the trial court that the defendant is aware ofhis rights, the elements of
the charged offense, and the direct consequences of his guilty plea, which
allows the trial court to establish that a plea is knowing, intelligent, and
voluntary. See Boykin, 395 U.S. at 244. The secondary purpose is to establish
a record that permits a court reviewing direct or collateral challenges to the
plea and conviction to more readily ascertain whether the defendant's plea was
knowing, intelligent, and voluntary. McCarthy, 394 U.S. at 467. Therefore, we
urge trial courts to look to our precedent and be certain that their questions
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6. during the plea colloquy satisfy all constitutional requirements for a plea
colloquy, regardless of the offenses charged. The better practice, of course, is
to hear the State's offer of proof, query the defendant, and then ask the
defendant for his plea. Such will largely obviate the need for post-conviction
review and interpretation of plea agreements.
Affirmed.
DALIANIS, C.J., and HICKS, CONBOY, LYNN, and BASSETT, JJ.,
concurred.
Distribution:
Eileen Fox,
Clerk
2nd N.H. Circuit Court- L~banon District Division, 452-2007-CR-01981
Honorable Albert J. Cirone, Jr.
Honorable Edwin W. Kelly
Jared J. Bedrick, Esquire
VNatch Greyes, Esquire
Timothy Gudas, Supreme Court
Allison Cook, Supreme Court
Lorrie Platt, Supreme Court
Irene Dalbec, Supreme Court
File
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