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                  THE SUPREME COURT OF NEW HAMPSHIRE

                            ___________________________


Strafford
No. 2017-0385


                        THE STATE OF NEW HAMPSHIRE

                                         v.

                                DAVID MARTINKO

                             Argued: April 17, 2018
                        Opinion Issued: August 17, 2018

      Gordon J. MacDonald, attorney general (Elizabeth A. Lahey, assistant
attorney general, on the brief and orally), for the State.


      Law Office of Joshua L. Gordon, of Concord (Joshua L. Gordon on the
brief and orally), for the defendant.

       LYNN, C.J. The defendant, David Martinko, appeals an order of the
Superior Court (Houran, J.) denying his motion to vacate guilty pleas that he
entered in 2014 to three felony informations. The informations charged him
with aggravated felonious sexual assault under the pattern sexual assault
statute. See RSA 632-A:2, III (2016). He argues that: (1) the informations
violated his state and federal constitutional protections against double
jeopardy; and (2) his trial counsel provided ineffective assistance because he
did not advise the defendant of these violations. We affirm.
       The State made the following proffer at the 2014 sentencing hearing. On
October 31, 2013, the defendant went to the Dover Police Department and
confessed that he had sexually assaulted the fifteen-year-old victim on the
preceding night. On November 1, 2013, the victim participated in a forensic
interview in which she confirmed that she had been sexually assaulted by the
defendant on October 30. She also reported that the assaults began when she
was four or five years of age when they were living out of state. The defendant
continued to sexually assault the victim after they moved to New Hampshire in
2010. The abuse happened every night or every other night until just before
her fourteenth birthday when she told him to stop; thereafter he assaulted her
approximately once a month.

       At the sentencing hearing, the defendant waived indictment and pled
guilty to the three informations. Each information charged him with a pattern
of assaults that spanned different dates: the first information charged assaults
that occurred between September 1, 2010 and August 31, 2011; the second
charged assaults that occurred between September 1, 2011 and August 31,
2012; and the third charged assaults that occurred between September 1,
2012 and October 31, 2013. The trial court accepted his negotiated plea and
imposed three consecutive sentences. The court also ordered that the
minimum sentence imposed on the third charge “may be suspended by the
Court on application of the defendant, provided the defendant demonstrates
meaningful participation in the sexual offender program while incarcerated.”

       In April 2017, the defendant filed the motion to vacate his plea and the
sentences underlying this appeal. He argued that the three pattern
informations to which he pled guilty violated the Double Jeopardy Clauses of
the State and Federal Constitutions because they charged “three separate sets
of acts during overlapping time periods, alleging identical variants of sexual
behavior that occurred at the same location.” He further argued that his trial
counsel was ineffective for failing to advise him of the double jeopardy
violations. The trial court denied his motion, finding that “the State’s charges
allege three separate sets of acts during three discrete time periods.” This
appeal followed.

       A guilty plea must be knowing, intelligent, and voluntary to be valid.
State v. Ortiz, 163 N.H. 506, 509 (2012). Thus, 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. In a collateral attack to a guilty plea, the defendant bears the initial burden
and must describe the specific manner in which the waiver was in fact
involuntary or without understanding. Id. If the defendant meets his initial
burden, and if the record indicates that the trial court affirmatively inquired
into the knowledge and volition of the defendant’s plea, then the defendant has
the burden to demonstrate by clear and convincing evidence that the trial court



                                        2
was wrong and that his plea was either involuntary or unknowing for the
reason he specifically claims. Id.

       The Double Jeopardy Clauses of the State and Federal Constitutions
each provide three protections: (1) protection against subsequent prosecution
for the same offense after acquittal; (2) protection against subsequent
prosecution for the same offense after conviction; and (3) protection against
multiple punishments for the same offense. State v. Wilson, 169 N.H. 755, 772
(2017). The defendant argues that the three informations violated his
protection against multiple punishments.

       In support of his argument, he observes that the informations “are
precisely successive”; that is, the second information charged assaults
beginning on the next day after the period charged in the first information
ended, and the third information charged assaults beginning on the next day
after the end of the period charged in the second information. He contends
that because there is no evidence in the record “that three distinct patterns
began and ended on those dates,” “the periods are arbitrary, and therefore the
Informations are multiplicitous, in violation of federal and state constitutional
bars against double jeopardy.” Accordingly, he argues, we should reverse two
of his convictions and remand this case for resentencing on the third
information.

      Whether charging documents violate double jeopardy protections found
in the State and Federal Constitutions presents a question of constitutional
law, which we review de novo. See id. Challenges to multiple convictions
based on multiplicity can be divided into two categories. State v. Lynch, 169
N.H. 689, 706 (2017). In “double-description” cases, the question is whether
two statutes describe separate offenses or are simply different descriptions of
the same offense. Id. In “unit of prosecution” cases, the question is whether a
defendant’s course of conduct constitutes more than one violation of a single
statutory provision. Id. The parties agree that the issue in this case requires
us to determine the applicable unit of prosecution.

       When a defendant argues that his rights have been violated under both
the State and Federal Constitutions, we consider the arguments first under our
State Constitution and rely upon federal law only to aid our analysis. State v.
Mitchell, 166 N.H. 288, 296 (2014). To determine whether charged offenses
violate the double jeopardy protections of our State Constitution in unit of
prosecution cases, we examine whether proof of the elements of the crimes as
charged will require a difference in evidence. State v. Ramsey, 166 N.H. 45, 51
(2014). Although we have consistently articulated this test, we have not
consistently applied it and have previously invited parties “to suggest a
formulation of the double jeopardy test to be applied under our State
Constitution.” State v. Locke, 166 N.H. 344, 353 (2014). Neither party has
accepted our invitation in this case.


                                        3
      RSA 632-A:2, III, the pattern sexual assault statute, provides:

            A person is guilty of aggravated felonious sexual assault
      when such person engages in a pattern of sexual assault against
      another person, not the actor’s legal spouse, who is less than 16
      years of age. The mental state applicable to the underlying acts of
      sexual assault need not be shown with respect to the element of
      engaging in a pattern of sexual assault.

“Pattern of sexual assault” is defined as “committing more than one act under
RSA 632-A:2 or RSA 632-A:3, or both, upon the same victim over a period of 2
months or more and within a period of 5 years.” RSA 632-A:1, I-c (2016).
“The essential culpable act, the actus reus, is the pattern itself, that is, the
occurrence of more than one sexual assault over a period of time.” State v.
Fortier, 146 N.H. 784, 791 (2001).

      In declining our invitation to propose a formulation of the double
jeopardy test to be applied under our State Constitution, the defendant
observes that our “unit of prosecution” jurisprudence “is probably not
susceptible of ready harmonization.” He contends, however, that, although we
have “allowed small differences to constitute separate patterns,” we have
required “that there be some material differences in the acts to justify separate
pattern allegations.” He cites State v. Richard, 147 N.H. 340 (2001), and State
v. Jennings, 155 N.H. 768 (2007), to support his contention. We do not read
these opinions so narrowly.

       The defendant correctly observes that we affirmed convictions on ten
pattern indictments in Richard after finding that “each charged a particular
variant of sexual assault different from the type charged in the other patterns.”
State v. Richard, 147 N.H. 340, 343 (2001). Relying upon this language in
Richard, the defendant argues that because the dates charged in each of the
three informations to which he pled guilty did not encompass distinct patterns
of sexual assault, as reflected by any pattern-centered difference in the
evidence, the informations violated his constitutional protection against double
jeopardy. Unlike in his case, however, the pattern indictments in Richard
charged overlapping time frames. Id. Addressing the specific allegations of the
Richard indictments, we held that multiple pattern indictments that charged
numerous assaults within a common time frame committed against a single
victim could not rely on the same underlying act or acts to comprise the
charged pattern. Id. Thus, the narrow holding in Richard does not resolve the
issue raised in this case, where the three informations do not charge patterns
with overlapping time frames.

       Nor does Jennings provide support for the defendant’s argument. In
Jennings, we concluded that three indictments that “allege[d] three separate
sets of acts during three discrete time periods at three different locations” did


                                         4
not subject the defendant to multiple punishments for the same offense and
did not violate the federal protection against double jeopardy. State v.
Jennings, 155 N.H. 768, 778 (2007). However, Jennings did not establish that
each of these factors was required when the State sought to indict a defendant
for multiple pattern offenses that had been committed during a common five-
year period.

      Indeed, in Jennings, we rejected the defendant’s argument that the
pattern sexual assault statute is intended to define as a single pattern all
sexual assaults of the same variant committed against a single victim that
occur within the same five-year period, observing that the “statute on its face
contains no such limit.” Id. at 777. We observed that the purpose of the
pattern statute is to address the concern that young victims, who have been
subjected to numerous, repeated incidents of sexual assault over a period of
time by the same assailant may be unable to identify discrete acts. Id. To
construe the statute to define all assaults of the same variant committed
against the same victim within a five-year period as a single pattern would
undermine its very purpose. Id. at 778. “The more plausible reading of the
statute allows the State to charge more than one pattern of a given sexual
assault variant within a five-year time frame, each as an individual unit of
prosecution, when the evidence of discrete patterns so warrants.” Id. Because
the challenged indictments in Jennings charged three discrete patterns of
sexual assault and the “prosecution at trial would have to prove that the acts
occurred within each of the alleged, discrete periods of time,” we concluded
that the defendant was not subjected to multiple punishments for the same
offense. Id.

       The defendant contends that because his “conduct was one continuous
pattern spanning three years,” the State could not charge him with three
different one-year pattern offenses. Rather, he argues, the State must plead
“actual distinct patterns” found in the evidence. Absent legislative direction,
we decline to impose this requirement. The defendant was charged with
committing acts that occurred within discrete periods of time that did not
overlap. To obtain conviction, the State was required to prove that two or more
acts occurred within each of the charged discrete periods. Given the difference
in the evidence required to obtain a conviction and the purpose of the statute,
we hold that the State was permitted to seek separate convictions on the
charged informations, without violating the defendant’s protection against
double jeopardy.

      We reach the same conclusion when we review the defendant’s claim
under the Federal Constitution. As noted above, the defendant cites State v.
Richard and State v. Jennings to support his double jeopardy challenge. The
defendants in those cases relied exclusively on the Federal Constitution to
argue that their convictions violated double jeopardy. To determine whether a
defendant is subject to multiple punishments for the same offense, in violation


                                       5
of the protection provided by the Federal Constitution, “we must determine the
unit of prosecution intended by the legislature.” Richard, 147 N.H. at 342.
“Because the substantive power to prescribe crimes and determine
punishments is vested with the legislature, the question under the Double
Jeopardy Clause whether punishments are ‘multiple’ is essentially one of
legislative intent.” Ohio v. Johnson, 467 U.S. 493, 499 (1984) (citations
omitted). “With respect to cumulative sentences imposed in a single trial, the
Double Jeopardy Clause does no more than prevent the sentencing court from
prescribing greater punishment than the legislature intended.” Missouri v.
Hunter, 459 U.S. 359, 366 (1983). As we noted above, to construe the pattern
sexual assault statute to define all assaults of the same variant committed
against the same victim within a five-year period as a single pattern would
undermine its very purpose. Accordingly, we conclude that, under the Federal
Constitution, the State was permitted to seek separate convictions on the
charged informations.

       For the foregoing reasons, we reject the defendant’s argument that his
trial counsel was ineffective because he failed to advise the defendant that his
pleas were in violation of the Double Jeopardy Clauses of the Federal and State
Constitutions.

      In reaching this result, we emphasize, as we have in previous cases, that
the State should be mindful of its obligation to exercise meaningful
prosecutorial discretion when determining the pattern to be charged. See, e.g.,
Jennings, 155 N.H. at 779.

                                                 Affirmed.

      HICKS, BASSETT, and HANTZ MARCONI, JJ., concurred.




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