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                  THE SUPREME COURT OF NEW HAMPSHIRE

                            ___________________________


Merrimack
No. 2015-0609


                                 ALBERTO RAMOS

                                         v.

                  WARDEN, NEW HAMPSHIRE STATE PRISON

                          Argued: November 17, 2016
                       Opinion Issued: February 17, 2017

      Thomas Barnard, senior assistant appellate defender, of Concord, on the
brief and orally, for the petitioner.


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

       CONBOY, J. The petitioner, Alberto Ramos, appeals an order of the
Superior Court (Delker, J.) dismissing his ineffective assistance of counsel (IAC)
claim asserting that his trial counsel failed to inform him, prior to pleading
guilty to felony charges, that he could be transferred to a prison in another
state. We affirm.

      The following facts are taken from the trial court’s order or otherwise
found in the record. In 1998, pursuant to a plea agreement, the petitioner
pleaded guilty to second degree murder and attempted escape. Pursuant to the
agreement, he was sentenced to 28 years to life. Some 15 years later, in April
2013, the petitioner was transferred from the New Hampshire State Prison to a
Florida prison. In June 2013, he filed a habeas corpus petition as a self-
represented party. After the appointment of counsel, the petitioner
supplemented his habeas corpus petition with an IAC claim, alleging that he
was “denied his right to the effective assistance of counsel” because his trial
attorneys “failed to ensure that he made a knowing waiver of his rights” by not
telling him when he pleaded guilty that he could be transferred to a prison
outside of New Hampshire. (Bolding and capitalization omitted.) The State
moved to dismiss the claim.

       After a telephonic hearing, the trial court dismissed the petitioner’s IAC
claim, ruling that, because “the possibility of being sent out of state is a
collateral consequence,” and the “fail[ure] to inform a client of the collateral
consequences of his conviction . . . does not constitute ineffective assistance of
counsel,” he could not “demonstrate [that] his trial attorneys were ineffective by
failing to warn him that he could serve his time out of state.” (Emphasis and
capitalization omitted.) This appeal followed.

       “On an appeal from an order granting a motion to dismiss, we assume
the truth of both the facts alleged in the [petitioner’s] pleadings and all
reasonable inferences therefrom as construed most favorably to the
[petitioner].” Cross v. Warden, N.H. State Prison, 138 N.H. 591, 593 (1994).
“We need not, however, accept allegations . . . that are merely conclusions of
law.” Suprenant v. Mulcrone, 163 N.H. 529, 530 (2012); see Cross, 138 N.H. at
593. “We then engage in a threshold inquiry, testing the facts alleged in the
pleadings against the applicable law.” Suprenant, 163 N.H. at 530-31. “We
will uphold the trial court’s grant of a motion to dismiss if the facts pleaded do
not constitute a basis for legal relief.” Id.

       The petitioner’s claim of ineffective assistance of counsel rests upon Part
I, Article 15 of the State Constitution and the Sixth and Fourteenth
Amendments to the Federal Constitution. We first address the petitioner’s
claim under the State Constitution and rely upon federal law only to aid our
analysis. State v. Ball, 124 N.H. 226, 231-33 (1983).

      Our State and Federal Constitutions guarantee a criminal defendant
reasonably competent assistance of counsel. State v. Sharkey, 155 N.H. 638,
640 (2007); see U.S. CONST. amends. VI and XIV; N.H. CONST. pt. I, art. 15.
Generally, to resolve an IAC claim, we apply the two-pronged Strickland test,
which requires a criminal defendant to demonstrate that his or her defense
counsel provided constitutionally deficient performance that resulted in
prejudice. State v. Whittaker, 158 N.H. 762, 768 (2009); see Strickland v.
Washington, 466 U.S. 668, 687 (1984). However, when the alleged deficient
performance is defense counsel’s failure to inform a client of a particular
consequence of a guilty plea, we first determine whether Strickland applies at


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all. See Wellington v. Comm’r, Dept. of Corrections, 140 N.H. 399, 400-02
(1995). To do so, we examine whether the particular consequence was direct or
collateral to the plea. See id. If collateral, the Strickland test does not apply.
See id. at 402. If direct, the protections against IAC are triggered and we
undertake a Strickland analysis. Cf. id. at 402 (holding that the Strickland test
does not apply to IAC claims involving collateral consequences).

       The petitioner argues that this framework contravenes the United States
Supreme Court’s decision in Padilla v. Kentucky, 559 U.S. 356, 364-66 (2010),
and our decision in State v. Ortiz, 163 N.H. 506, 512-14 (2012). According to
the petitioner, Padilla and Ortiz render the distinction between direct and
collateral consequences immaterial to an IAC claim. He contends that the
distinction applies only in the context of determining whether a trial court has
violated a criminal defendant’s due process rights by accepting his or her guilty
plea without advising a defendant of the potential consequences.
Consequently, he argues that his IAC claim concerning his trial counsel’s
failure to inform him of a collateral consequence should be evaluated under the
Strickland test.

      For the purposes of this appeal, we assume without deciding that we
would adopt Padilla in construing the State Constitution and that we would
apply it retroactively to the petitioner’s IAC claim. But see Chaidez v. United
States, 133 S. Ct. 1103, 1107-11 (2013) (holding that Padilla applies only
prospectively under the Federal Constitution). Nevertheless, we disagree with
the petitioner’s assertion that Padilla is controlling here.

       In Padilla, the Supreme Court neither mandated nor rejected the
“distinction between direct and collateral consequences to define the scope of
constitutionally ‘reasonable professional assistance’ required under
Strickland.” Padilla, 559 U.S at 365. To the contrary, the Court established
that deportation is a singular exception to the direct/collateral consequences
model because deportation is “uniquely difficult to classify as either.” Id. at
366. Thus, in Padilla, the Supreme Court held that an attorney’s failure to
warn a client that a guilty plea would result in deportation could constitute IAC
and that such a claim should be evaluated under the Strickland test. Id. at
365-66. In Chaidez, the Court explained that “in Padilla [it] did not eschew the
direct-collateral divide across the board,” but rather “relied on the special
‘nature of deportation’ . . . to show that ‘[t]he collateral versus direct distinction
[was] ill-suited’” to dispose of the claim in Padilla. Chaidez, 133 S. Ct. at 1112.

      Our decision in Ortiz did not involve an IAC claim. Ortiz, 163 N.H. at
507. Rather, it concerned a due process challenge to a trial court’s plea
colloquy. Id. In that case, we held that “our state’s constitutional due process
protections do not require trial courts to advise defendants of . . . potential
[immigration] consequences during plea colloquies.” Id. at 514. In doing so,
we noted in dicta that “defense counsel may be ineffective in relation to a guilty


                                          3
plea due to professional duties for the representation of their individual clients
that set a standard different –– and higher –– than those traditionally imposed
on trial courts conducting plea hearings for defendants.” Id. at 512 (quotation
omitted). Furthermore, we noted that the IAC analysis and the due process
analysis “differ markedly.” Id.

      The petitioner here argues that this dicta “implicitly overruled” our prior
cases establishing the inapplicability of the Strickland test to IAC claims based
upon failure of counsel to advise of collateral consequences. See Wellington,
140 N.H. at 402. However, our statements in Ortiz were made in response to
the petitioner’s argument, based upon the holding in Padilla, that deportation
should not be subject to the direct/collateral consequences model in the
context of a due process challenge alleging error by the trial court. Ortiz, 163
N.H. at 511. We neither explicitly nor implicitly overruled our prior decisions
regarding the standard applicable to alleged errors by trial counsel. See id. at
511-12; see also Wellington, 140 N.H. at 401-02.

       Alternatively, the petitioner argues that, although some collateral
consequences may “be categorically excluded from the range of matters about
which a lawyer must provide advice,” interstate prison transfer, like
deportation, is not among them. He asserts that interstate prison transfer is,
like deportation, a “particularly severe penalty” that is “intimately related to the
criminal process,” and “most difficult to divorce” from the underlying
conviction. Padilla, 559 U.S. at 365, 366 (quotation omitted). He argues that
interstate prison transfer constitutes a “severe penalty” because of the “impact”
that such transfers have upon inmates’ families living near the prison in the
“sending state.” (Quotation omitted.)

       Interstate prison transfer is qualitatively different from deportation;
deportation affects a protected liberty interest, whereas interstate prison
transfer does not. See Flores-Chavez v. Ashcroft, 362 F.3d 1150, 1161 (9th
Cir. 2004) (holding that “an [a]lien facing deportation confronts the loss of a
significant liberty interest”); Mejia Rodriguez v. Reno, 178 F.3d 1139, 1146
(11th Cir. 1999); cf. Olim v. Wakinekona, 461 U.S. 238, 248 (1983) (explaining
that interstate prison transfer “does not deprive an inmate of any liberty
interest protected by the Due Process Clause”). Moreover, interstate prison
transfer is not “intimately related to the criminal process”; it may or may not
occur, whereas deportation is “nearly an automatic result” of many convictions.
Padilla, 559 U.S. at 365, 366. Thus, we are not persuaded by the petitioner’s
attempt to liken interstate prison transfer to deportation.

       We hold that, as a matter of law, interstate prison transfer is a collateral
consequence of a guilty plea. Accordingly, we conclude that, even if the
petitioner showed that his trial counsel failed to advise him of the potential for
interstate prison transfer, such failure would not constitute constitutionally
infirm assistance. Because the Federal Constitution offers the petitioner no


                                         4
greater protection than does the State Constitution under these circumstances,
we necessarily reach the same result under the Federal Constitution as we do
under the State Constitution. See Wellington, 140 N.H. at 400.

                                                Affirmed.

      DALIANIS, C.J., and BASSETT, J., concurred.




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