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                 THE SUPREME COURT OF NEW HAMPSHIRE

                           ___________________________


Hillsborough-northern 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.),
the defendant, Oscar Grande, was convicted of armed robbery. See RSA 636:1
(2007). On appeal, he argues 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, 2013, 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. The
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 conducted 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 residence located approximately one-and-one-half blocks from
the Food Mart. On January 9, Velasques overheard the defendant and a man,
whom 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
conversation, 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 concerning 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 chased 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 evidence of the 99
Cent Store robbery, arguing that it was necessary to corroborate the
defendant’s admissions regarding the Food Mart robbery. Specifically, it
sought to introduce Velasques’s testimony concerning what she had overheard
about that robbery, as well as the testimony of the 99 Cent Store employee who
was working on the night of that robbery. The trial court denied the State’s
motion, but stated that it would revisit its ruling after opening statements.
During opening statements, defense counsel made several statements that
caused the trial court 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 defendant 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
subsequently appointed counsel in the post-trial proceedings. In October
2014, the trial court denied the defendant’s motion for new trial and his


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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 completion.
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,
substantive, or preservation issues that might 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 evidence
of the 99 Cent Store robbery and failed to articulate why that evidence was
inadmissible. The State argues that the defendant waived his ineffectiveness
claim when he failed to appeal the trial court’s rulings in his collateral
proceeding. The State also argues that the doctrines of collateral estoppel, res
judicata, and judicial estoppel prevent the defendant from re-litigating his
ineffectiveness claim. Alternatively, the State argues 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 this 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 bring his ineffectiveness 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 appears 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 strongly



                                         3
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 appeal, litigated his ineffectiveness claim
in the trial court, lost, and failed to appeal the trial court’s decision. We 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 rest of his appeal. Id. at 528. However, nothing 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 appeal. 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
or fact actually litigated and determined in the prior action.” Hansa Consult of
N. Am. v. Hansaconsult Ingenieurgesellschaft, 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 on 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 judgment. 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 civil 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 issues 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 Velasques’s
testimony about the 99 Cent Store robbery; and (2) Velasques’s testimony
constituted inadmissible hearsay. These issues are identical to those 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 that the evidence was inadmissible.”




                                         4
       We next consider whether these issues were resolved finally 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 final judgment. See Super. Ct. Civ. R. 46(b). Therefore, we conclude
that the first action resolved the issues 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 the 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 findings on the defendant’s ineffective assistance issues were
essential to the final judgment. The court considered and rejected the
defendant’s arguments on the merits, and, had it not done so, would have been
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.




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