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                 THE SUPREME COURT OF NEW HAMPSHIRE

                           ___________________________


Hillsborough-southern judicial district
No. 2013-086


                        THE STATE OF NEW HAMPSHIRE

                                          v.

                                   SEAN BROWN

                             Argued: April 16, 2014
                         Opinion Issued: August 6, 2014

      Joseph A. Foster, attorney general (Nicholas Cort, assistant attorney
general, on the brief and orally), for the State.


      Sisti Law Offices, of Chichester (Jared Bedrick on the brief and orally),
for the defendant.

      DALIANIS, C.J. Following his conviction on four counts of sale of a
narcotic drug, see RSA 318-B:2 (2004) (amended 2008, 2011, 2013), and our
affirmance of his conviction on appeal, see State v. Brown, 159 N.H. 544
(2009), the defendant, Sean Brown, filed a motion for new trial in superior
court alleging ineffective assistance of appellate counsel. He appeals the
decision of the Superior Court (Nicolosi, J.) concluding that it lacked
jurisdiction to hear his claim and, therefore, denying his motion for new trial.
We reverse and remand.
       Recitation of the underlying facts leading to the defendant’s conviction is
unnecessary for resolution of the issue on appeal. In this appeal, we are
asked, as a matter of first impression, to determine the proper forum in which
a defendant should raise a claim of ineffective assistance of appellate counsel.
At the hearing on the defendant’s motion for new trial, the State contended
that the trial court lacked jurisdiction to decide the claim and, therefore,
should refrain from deciding it. In response, the defendant asserted that his
ineffective assistance of appellate counsel claim should be treated in the same
manner as ineffective assistance of trial counsel claims, which are routinely
resolved in superior court. The trial court agreed with the State, adopting the
view of a number of courts that such a claim “must be presented to the
appellate court with jurisdiction over the appeal.” Arizona v. Herrera, 905 P.2d
1377, 1380 (Ariz. Ct. App. 1995). Concluding that the proper remedy for a
meritorious ineffective assistance of appellate counsel claim would be a new
appeal, rather than a new trial as the defendant sought, the trial court stated
that “it would be ‘incongruous’ for an inferior court to order the supreme court
to allow the defendant to file a new appeal.”

       On appeal, the State’s position is different. It now “recommends that
[we] . . . hold that [ineffective assistance of appellate counsel] claims should be
brought in the original trial court.” Thus, both parties urge us to adopt the
same procedure. Because we agree that “appellate courts have an interest in
avoiding cases which require the Court to perform the unfamiliar task of fact
finding,” State v. City of Dover, 153 N.H. 181, 189 (2006) (quotation omitted),
we conclude that such claims should be heard in the trial court.

       Courts are split in determining the proper procedure for raising an
ineffective assistance of appellate counsel claim. On the one hand, some
courts have concluded that a trial court “should not have authority to rule on
the constitutionality of an appellate proceeding.” Watson v. United States, 536
A.2d 1056, 1060 (D.C. 1987); see, e.g., United States v. Winterhalder, 724 F.2d
109, 111 (10th Cir. 1983); Smith v. State, 400 So. 2d 956, 960 (Fla. 1981);
Hemphill v. State, 566 S.W.2d 200, 207-08 (Mo. 1978); People v. Bachert, 509
N.E.2d 318, 319-20 (N.Y. 1987), superseded by statute as stated in People v.
Andrews, 2014 WL 2608455 (N.Y. June 12, 2014); State v. Murnahan, 584
N.E.2d 1204, 1208-09 (Ohio 1992), superseded by rule as stated in State v.
Davis, 894 N.E.2d 1221 (Ohio 2008); State v. Knight, 484 N.W.2d 540, 544-45
(Wis. 1992). On the other hand, other courts have determined that such
claims should be presented to the trial court, reasoning that “[t]he trial court is
no less competent to assess in the first instance the seriousness of the alleged
flaw and appellate counsel’s reasons, if any, for bypassing a particular issue,
than it is to assess trial counsel’s alleged miscues and strategic choices.”
Hollon v. Com., 334 S.W.3d 431, 439 (Ky. 2010); see, e.g., United States v.
Pearce, 992 F.2d 1021, 1022-23 (9th Cir. 1993); Page v. United States, 884
F.2d 300, 301-02 (7th Cir. 1989); Tedder v. State, 586 So. 2d 50, 53-54 (Ala.



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Crim. App. 1991); Herrera, 905 P.2d at 1381; Wilson v. State, 399 A.2d 256,
263-64 (Md. 1979); Commonwealth v. Sullivan, 371 A.2d 468, 474-75 (Pa.
1977). Additionally, at least one court has adopted a hybrid approach,
concluding that an ineffective assistance of appellate counsel claim should be
raised in the trial court “if the claim for relief can be best determined after a
fact hearing,” but should be presented to the appellate court “if the basis of a
decision is peculiarly within the knowledge of the Appellate Court.” Buskuehl
v. State, 719 S.W.2d 504, 506 (Mo. Ct. App. 1986).

         We do not agree that a trial court’s assessment of appellate counsel’s
performance usurps an appellate court function. In an ineffective assistance of
appellate counsel claim, “although appellate counsel’s performance is being
attacked, the basis of the attack is an alleged flaw in the trial proceedings for
which appellate counsel neglected to seek relief.” Hollon, 334 S.W.3d at 439.
“The claim then is at root and in essence a collateral attack on the judgment
 . . . .” Id. Indeed, when a defendant has been denied appellate review of his or
her claims due to the ineffectiveness of appellate counsel, “the basic contention
does not constitute errors going to the appellate stage of criminal proceedings
 . . . , but rather are errors relating to the validity of the original judgment.”
Wilson, 399 A.2d at 262-63.

       The defendant also argues that we can decide as a matter of law whether
appellate counsel rendered ineffective assistance because he represented the
defendant despite a conflict of interest. We need not decide in this appeal
whether to adopt, for claims of ineffective assistance of appellate counsel, the
rule we adopted in State v. Thompson, 161 N.H. 507 (2011), for ineffective
assistance of trial counsel claims. In Thompson, we concluded that although
generally those claims should first be presented to the trial court, in rare
circumstances, when there is no additional fact finding necessary and the face
of the record is indisputably clear, the claim can be presented to this court
directly for decision as a matter of law. Thompson, 161 N.H. at 524-28. Even
if we assume that we would adopt the same rule for claims of ineffective
assistance of appellate counsel, however, it would not apply here because it is
not clear on the face of the record that appellate counsel had a conflict of
interest.

       Because the trial court is better equipped to resolve the factual disputes
that frequently underlie assertions of ineffective assistance of appellate
counsel, we conclude that the proper forum for raising such claims is the trial
court. Accordingly, we reverse and remand.

                                                   Reversed and remanded.

      CONBOY and BASSETT, JJ., concurred.




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