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                  THE SUPREME COURT OF NEW HAMPSHIRE

                              ___________________________


Grafton
No. 2016-0176


                        THE STATE OF NEW HAMPSHIRE

                                          v.

                                PAUL R. SANTAMARIA

                          Argued: November 16, 2016
                         Opinion Issued: March 10, 2017

      Joseph A. Foster, attorney general (Sean R. Locke, assistant attorney
general, on the brief and orally), for the State.


      Green & Utter, P.A., of Manchester (Philip H. Utter on the brief and
orally), for the defendant.

      HICKS, J. The defendant, Paul R. Santamaria, appeals an order of the
Superior Court (MacLeod, J.) dismissing his petition for a writ of coram nobis.
We affirm.

       The record supports the following facts. On June 10, 1998, the
defendant was convicted of first degree assault. His trial counsel filed a motion
to set aside the verdict, which the court denied. Subsequently, the court
sentenced the defendant to incarceration for twelve months. The defendant’s
trial counsel withdrew from the case and, through appellate counsel, the
defendant appealed to this court, challenging the sufficiency of the evidence at
trial and the trial court’s decision to permit a police officer to testify as an
expert witness. See State v. Santamaria, 145 N.H. 138, 139 (2000). We
affirmed his conviction. See id.

       On December 30, 2014, sixteen years after his conviction, the defendant
filed a petition for a writ of coram nobis seeking to have his conviction vacated
for ineffective assistance of trial counsel. The trial court denied the defendant’s
petition, ruling that he was procedurally barred because he “could have, and
should have, raised this claim earlier either on direct appeal, in a motion for a
new trial, or in a habeas corpus petition,” and because he failed to show
“sound reasons” for failing to seek proper relief earlier. (Quotation omitted.)
This appeal followed.

       This case requires us for the first time to discuss the extraordinary writ
of coram nobis. See State v. Almodovar, 158 N.H. 548, 550 (2009) (concluding,
without discussing, the defendant’s appeal was not moot because he could file
a writ of coram nobis). In so doing, we make clear that, because the parties
have not argued otherwise, we discuss only the common law writ of coram
nobis. We express no opinion as to whether the writ has a second source of
authority in our State Constitution. See Trujillo v. State, 310 P.3d 594, 599-
600 (Nev. 2013) (determining that the writ of coram nobis is authorized by the
Nevada Constitution).

       “The writ of coram nobis is an ancient writ that developed in sixteenth
century England.” Id. at 597. The First Circuit Court of Appeals has described
the writ as the “criminal-law equivalent” of a “Hail Mary pass.” United States v.
George, 676 F.3d 249, 251 (1st Cir. 2012). The writ addresses errors
“discovered when the petitioner is no longer in custody and therefore cannot
avail himself of the writ of habeas corpus.” M. Diane Duszak, Note, Post-
McNally Review of Invalid Convictions Through the Writ of Coram Nobis, 58
Fordham L. Rev. 979, 979 (1990). Granting such an extraordinary writ is
reserved for the rarest of cases. See George, 676 F.3d at 254 (stating that
“successful petitions for coram nobis are hen’s-teeth rare”).

         Because the writ of coram nobis existed within the body of English
common law prior to adoption of our constitution, it continues to exist as a
matter of New Hampshire common law so long as it is not “repugnant to the
rights and liberties contained in [our] constitution.” N.H. CONST. pt. II, art.
90; Dennett v. Dennett, 43 N.H. 499, 502 (1862) (“It has been long settled, and
very often decided, that the body of the common law, and the English statutes
in amendment of it . . . were in force here . . . and they have been continued in
force by the constitution, so far as they are not repugnant to that instrument
. . . .”); State v. Rollins, 8 N.H. 550, 563-65 (1837) (interpreting Part II, Article
90 as recognizing the continuation of English common law and English
statutes amending it). The parties have not suggested, nor do we discern, any


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respect to which the availability of the writ of coram nobis would be repugnant
to the rights and liberties established by the New Hampshire Constitution.
Indeed, we see no conflict between the writ of coram nobis and other specific
rights guaranteed in our constitution. See N.H. CONST. pt. I, art. 15
(guaranteeing rights to accused, including due process), pt. II, art. 91
(establishing that the “privilege and benefit of the habeas corpus, shall be
enjoyed in this state”).

      We begin by determining our standard of review. In an appeal from a
denial of a petition for a writ of habeas corpus, we accept the trial court’s
factual findings unless they lack support in the record or are clearly erroneous,
but review the trial court’s legal conclusions de novo. Barnet v. Warden, N.H.
State Prison for Women, 159 N.H. 465, 468 (2009). This standard is similar to
the standard the First Circuit applies to review a denial of a petition for a writ
of coram nobis. See George, 676 F.3d at 256. Accordingly, we apply in this
case our standard for reviewing the denial of petitions for habeas corpus.

       Resolving the issues in this appeal requires us to engage in statutory
interpretation. “Statutory interpretation is a question of law, which we review
de novo.” State v. Maxfield, 167 N.H. 677, 679 (2015) (quotation omitted). “In
matters of statutory interpretation, we are the final arbiter of the intent of the
legislature as expressed in the words of the statute considered as a whole.” Id.
(quotation omitted). “We first look to the language of the statute itself, and, if
possible, construe that language according to its plain and ordinary meaning.”
Id. (quotation omitted). “We interpret legislative intent from the statute as
written and will not consider what the legislature might have said or add
language that the legislature did not see fit to include.” Id. (quotation omitted).

       We first address whether, as the State contends, the common law writ of
coram nobis was abolished by RSA 526:1 (2007), which provides: “A new trial
may be granted in any case when through accident, mistake or misfortune
justice has not been done and a further hearing would be equitable.” “Statutes
in derogation of the common law are to be interpreted strictly.” Estate of
Gordon-Couture v. Brown, 152 N.H. 265, 266 (2005). “While a statute may
abolish a common law right, there is a presumption that the legislature has no
such purpose.” Id. “If such a right is to be taken away, it must be expressed
clearly by the legislature.” Id. The plain language of RSA 526:1 does not
clearly repeal or replace the common law writ of coram nobis. Accordingly, we
hold that RSA 526:1 does not abrogate the writ.

       We next consider whether, as the defendant argues, a petition for a writ
of coram nobis may be used to assert a legal error, such as ineffective
assistance of counsel. See United States v. Morgan, 346 U.S. 502, 512-13
(1954) (holding that coram nobis is available to correct a constitutional
violation). “The writ of coram nobis was traditionally brought before the trial
court to correct an error of fact which did not appear on the record.” Duszak,


                                         3
supra at 981. In the federal courts, the writ of coram nobis is now “available to
correct violations of the Constitution and laws of the United States,” in addition
to correcting factual errors. Trujillo, 310 P.3d at 598 (citing cases); see
Morgan, 346 U.S. at 512-13.

        Such is not the case in most states. In the majority of states, “[t]he writ
of coram nobis is not available . . . because those states have enacted uniform
post-conviction acts that provide a streamlined, single remedy for obtaining
relief from a judgment of conviction, and that remedy is available to petitioners
who are no longer in custody.” Trujillo, 310 P.3d at 598. In the states that
have not abrogated the writ by statute, seven “strictly follow the common-law
definition of the writ,” thus, limiting it “to claims of factual error.” Id. at 598 &
n.4 (citing cases). Another five jurisdictions allow the writ to be used to
address both factual errors and certain limited categories of legal errors. Id. at
598 n.4 (citing cases).

      We need not decide in this case whether the writ may be used in New
Hampshire to correct legal errors because, even if it may be so used, it is not
available to the defendant.

       A common threshold requirement to bringing a petition for a writ of
coram nobis is that “sound reasons exist[] for fail[ing] to seek appropriate
earlier relief.” Morgan, 346 U.S. at 512; see State v. Smith, 117 A.3d 1093,
1108 (Md. 2015); State v. Hutton, 776 S.E.2d 621, 639 (W. Va. 2015). Here,
the defendant has failed to meet that requirement. See Morgan, 346 U.S. at
512.

       The defendant argues that he could not have brought his ineffective
assistance claim earlier in a direct appeal, a motion for a new trial, or a petition
for a writ of habeas corpus. Even if we assume without deciding that the
defendant’s claim could not have been brought in a direct appeal, we conclude
that he could have brought his claim in a motion for a new trial or a petition for
a writ of habeas corpus. See State v. Pepin, 159 N.H. 310, 312 (2009) (stating
that “in other cases this court has decided the merits of ineffective assistance
of counsel claims on motions for new trial and petitions for writs of habeas
corpus”). We disagree with the defendant’s assertion that a claim of ineffective
assistance of counsel cannot constitute “accident, mistake or misfortune”
within the meaning of RSA 526:1. See 2A Richard B. McNamara, New
Hampshire Practice: Criminal Practice and Procedure § 32.85, at 115-16 (5th
ed. 2010). A motion for a new trial based upon ineffective assistance of counsel
has long been available to criminal defendants. See State v. Thompson, 161
N.H. 507, 524 (2011) (generally ineffective assistance of counsel claims “should
be adjudicated in the superior court by collateral review”). We also disagree
with the defendant’s argument that he could not have filed a habeas corpus
petition because he was in custody for only eight months.



                                          4
       The defendant contends that he could not have brought his claim earlier
because “he could not possibly have known that his trial counsel provided
constitutionally defective representation at the conclusion of the trial.”
However, all of the errors that he alleges occurred during trial. His petition
stated that his trial counsel erred by: (1) setting forth a theory of defense that
was inconsistent with the known evidence and the defendant’s testimony; (2)
failing meaningfully to consult with the defendant regarding the decision that
he testify; and (3) wrongfully declining the State’s plea offer. We agree with the
trial court that his claims were based “entirely on facts known to him at the
conclusion of the trial.”

       Although at oral argument, the defendant faulted the trial court for
having ruled upon his petition without holding a hearing, because he has not
briefed that argument, it is deemed waived. See State v. Kelly, 159 N.H. 390,
394 (2009). We acknowledge the viability of the extraordinary common law writ
of coram nobis. However, we agree with the trial court that it is not available to
the defendant. Thus, we conclude that the trial court correctly denied the
petition.

                                                  Affirmed.

      DALIANIS, C.J., and CONBOY, LYNN, and BASSETT, JJ., concurred.




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