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THE STATE OF NEW HAMPSHIRESUPREME COURT
No. 2015-0578
State of New Hampshire
V.
David Widi, Jr.
Appeal Pursuant to Rule 7 from Judgmentof the Rockingham County Superior Court
BRIEF FOR THE DEFENDANT
David M. RothsteinDeputy DirectorNew Hampshire Public Defender10 Ferry Street, Suite 434Concord, NH 03301NH Bar #5991603-224-1236(15 minute oral argument)
TABLE OF CONTENTS
Page
Table of Authorities ii
Question Presented 1
Statement of the Case 2
Statement of the Facts 5
Summary of the Argument 6
Argument
I. THE LOWER COURT ERRED WHEN IT DISMISSEDWIDI’S PETITION WITHOUT A HEARING 6
Conclusion 16
Appendix Supp. 1—14
TABLE OF AUTHORITIES
Page
Cases
Bailey v. United States,516 U.S. 137 (1995) 8, 9
Bousley v. United States,523 U.S. 614 (1998) passim
Lafler v. Cooper,132 S. Ct. 1376 (2012) 12, 14, 15
Lamb v. Shaker Regional School District,168 N.H. 47 (2015) 12, 14
Missouri v. Frye,132 S. Ct. 1399 (2012) 14
St. Pierre v. Vitek,144 N.H. 766 (1974) 14
State v. Arsenault,153 N.H. 413 (2006) 10
State v. Collins,133 N.H. 609 (1990) 12
State v. Davies,164 N.H. 71(2012) 9, 13
State v. Dor,165 N.H. 198 (2013) 8
State v. Kinne,161 N.H. 41(2010) passim
State v. Melvin,150 N.H. 134 (2003) 8
State v. Offen,156 N.H. 435 (2007) 9
United States v. Morrison,449 U.S. 361 (1981) 14
11
Statutes
18 U.S.C. §924(c)(1) 7, 8
RSA631:3,II 6,7
Constitutional Provisions
N.H. Const. pt. 1, art. 15 9, 12
U.S. Canst. Amend. XIV 9, 12
U.S. Const. Amend. VI 12
111
QUESTION PRESENTED
1. Whether the lower court erred when it dismissed Widi’s petition
without a hearing.
Issue preserved by Petition for Writ of Coram Nobis, A38-A62, and order,
Supp. 3.14*.
* Citations to the record are as follows:“Supp” refers to the supplement to this brief;“A” refers to the separately bound appendix.
1
STATEMENT OF THE CASE AND PACTS
A Rockingham County grand jury indicted David Widi Jr. with reckless
conduct on July 8, 2003. Al. The indictment, numbered 03-5-1714, alleged
that he placed a loaded .45 caliber gun inside a box at a Hallmark store, and
that the gun was a deadly weapon. Al. He filed a notice of intent to plead
guilty to the charge as a misdemeanor on February 4, 2004.’ A2-A3. The
proposed sentence was twelve months in the house of corrections, suspended;
one year of probation; and a tour of the State Prison. A2.
The information that was to be substituted for the indictment does not
allege that the object placed in the box was a gun, or that Widi had a deadly
weapon.2 A5 (alleging that Widi “placed an object in a hat box in Warner’s
Hallmark Store, placing customers in danger of serious bodily injury”). The
misdemeanor notice of intent form included the docket number associated with
the felony. A2. At the time he filed the notice of intent to plead guilty to the
misdemeanor, Widi was represented by Gary Reiner. A2. The court scheduled
his plea for April 7, 2004. A4.
Reiner filed a motion to withdraw as Widi’s counsel on March 22, 2004.
A6-A7. The motion included the same docket number as that associated with
the felony, indicated that the misdemeanor plea was scheduled for April 7, and
stated that Widi had hired Richard Foley to represent him. A6. The court
‘The notice of intent is dated February 2003, but that must be a typographical error. Thealleged offense occurred on April 18, 2003.
2 It appears that this information was never filed with the court.
2
granted the motion on March 29. AS. Foley entered his appearance the next
day. A9.
On April 7, 2004, Foley and the prosecutor filed an “agreement” that bore
the felony case’s docket number. AiD. The form, which was not signed by
Widi, stated that Widi wanted to withdraw his notice of intent to plead and
proceed to trial. AlO. Foley subsequently moved to withdraw as counsel on
June 18, 2004, and the court (Coffey, J.) granted the motion on July 1, 2004.
Al l-A13. The court scheduled a trial for August 9, 2004. A13. Ryan
Russman entered an appearance to represent Widi, and filed a motion to
continue the trial. Al4.
On October 29, 2004, the State sent Russman a “revised plea offer.”
A15. The offer required Widi to plead to “Reckless Conduct/03-S-1714” in
exchange for a sentence of twelve months in jail, suspended for two years, and
two years of probation. Al5. Widi filed a notice of intent to plead guilty on
November 18, 2004. A16. The court scheduled the plea and sentencing
hearing for December 15, 2004. A16.
On December 15, Widi pled guilty to a charge of reckless conduct, under
docket number 03-S-17 14. Al9-A20. His signature appears on a felony
acknowledgement and waiver of rights form. A17-A18. The court (Coffey, J.)
imposed the agreed-upon sentence. A19-A20. The reckless conduct
indictment bears a stamp indicating that Widi pled guilty to that charge, A21,
and the mittimus indicates that the plea was to a felony. A22. The record of
that hearing has been destroyed. Supp. 9.
3
In 2010, Widi filed a “motion to correct the record” alleging that he pled
guilty to a misdemeanor. A23-A25. The State objected. A26-A28. The court
denied the motion, and Widi filed a discretionary notice of appeal. A29, A33.
The Court asked the State to respond to Widi’s notice of appeal. ASS. The
Slate argued the appeal should be dismissed without prejudice to Widi’s ability
to “raise an appropriate claim in the superior court. . . .“ A36-A37. The Court
declined the appeal.
On November 10, 2014, Widi filed a “petition for writ of error coram
nobis” in superior court. A38-A62. The court (Wageling, J.) denied the petition
by order dated August 20, 2015. Supp. 1-2. Widi filed a motion to reconsider,
which the court addressed in an order dated January 19, 2016. Supp. 3-14.
The court rejected Widi’s claims of actual innocence, that his guilty plea to a
felony was invalid, and that he had received ineffective assistance of counsel.
Supp. 3-14. Widi filed a discretionary notice of appeal raising three issues:
ineffective assistance of counsel during the plea bargaining process; ineffective
assistance of counsel during the guilty plea, which rendered his plea to a felony
not knowing, intelligent, and voluntary; and that his sentence was illegal.
4
SUMMARY OF THE ARGUMENT
The lower court erred when it dismissed Widi’s claim without a hearing.
Widi made several claims that are not procedurally barred, including that he is
actually innocent of a felony, and that his plea to a felony was not knowing,
voluntary or intelligent. Moreover, in dismissing some of Widi’s claims, the
court employed the wrong standard of review. Accordingly, this Court must
remand Widi’s case for a hearing, so the lower court can determine the validity
of his claims, and fashion an appropriate remedy.
5
I. THE LOWER COURT ERRED WHEN IT DISMISSED WIDI’S PETITIONWITHOUT A HEARING.
The indictment numbered 03-S-17 14 alleged that Widi committed
reckless conduct in that he “engaged in conduct which may have placed others
in danger of serious bodily injury [in that he] placed a loaded .45 caliber gun in
a box in Warner’s Hallmark Store . . . such .45 caliber gun constituting a
deadly weapon. . . .“ Al. Under RSA 63 1:3, [1, “[rleckless conduct is a class B
felony if the person uses a deadly weapon. . . . All other reckless conduct is a
misdemeanor.” (Emphasis added).
Some of Widi’s arguments are predicated on a claim that the indictment
did not allege a felony. For that reason, this brief explains the distinction
between felony and misdemeanor reckless conduct. Other arguments are
predicated on claims of ineffective assistance of counsel irrespective of whether
the indictment alleged a felony.
A. Kinne Does Not Control.
The lower court relied on State v. Kinne, 161 N.H. 41(2010), to deny
Widi relief, Supp. 10-11. It ruled that Widi, like Kinne, failed to sufficiently
articulate why his plea was invalid, and that he “conflatejd) the sufficiency of
the indictment . . . with his understanding of the elements of the crime to
which he pled guilty.” Supp. 10-11. The court’s ruling fails to account for how
this case is distinguishable from Kinne.
In Kinne, the defendant pled guilty to a class A felony armed robbery
charge, but the indictment alleged a class B felony. Id. at 43. He argued that
his plea should be vacated because it was not knowing and intelligent, and that
6
he should have been convicted of a class B felony. Id. This Court rejected his
claim as an untimely, collateral attack on the facial sufficiency of the
indictment. Id. at 46.
Widi’s indictment was facially insufficient to charge a felony, but his
claim does not rest solely on that fact. The Kinne Court recognized three
exceptions to the procedural bar it applied: (1) the defendant argued that he is
actually innocent of the offense charged; (2) the defendant invoked due
process; or (3) the defendant raised ineffective assistance of counsel. Kinne,
161 N.H. at 45-48. Widi made these claims. The lower court denied them
without a hearing. Based on the arguments below, this Court should either
direct the lower court to enter a misdemeanor conviction, or it should remand
the case for an evidentiary hearing.
B. The Reckless Conduct Indictment Alleged Only A Misdemeanor.
The reckless conduct statute distinguishes its felony and misdemeanor
variants based on whether the defendant used a deadly weapon. RSA 63 1:3, II.
Indictment 03-5-1714 alleges that Widi placed a deadly weapon into a box. Al.
This conduct would be a felony if merely placing a weapon into a box
constituted “use” of the weapon. RSA 631:3, II (stating that a person must use
a deadly weapon to be guilty of a felony). It does not.
The issue of whether a weapon has been “used” has been addressed by
the United States Supreme Court. In Bousley v. United States, 523 U.S. 614,
616 (1998), the defendant pled guilty to “using” a firearm under 18 U.S.C.
§924(c)(1), which provides that “any person who, during and in relation to any
7
crime of violence or drug trafficking crime . . . uses [a firearm shall] be
sentenced to a term of imprisonment of not less than 5 years. . . .“ The district
court judge found that the defendant’s plea was knowing and intelligent. j at
617. In a subsequent habeas petition, the defendant challenged the validity of
his plea because there was an insufficient connection between the firearm and
the offense. Id. The court dismissed the petition, finding a sufficient
connection. Id.
The defendant appealed. Id. While his appeal was pending, the Court
decided Bailey v. United States, 516 U.S. 137 (1995), in which it held that the
“use” of a firearm requires its active employment which, in turn, “includes
‘brandishing, displaying, bartering, striking with, and, most obviously, firing or
attempting to fire the weapon, . . . but does not include mere possession of a
firearm.” Bousley, 523 U.S. at 617 (quoting Bailey, 516 U.S. at 143, 148).
Bousley argued that his plea was invalid because neither he, nor his counsel,
nor the court understood the essential element of “use” as clarified by Bailey.
Id. at 618. “Were this contention proven, [Bousley’s] plea would be .
constitutionally invalid.” Id. at 6 18-19. The Court remanded Bousley’s case so
that he could attempt to demonstrate his “actual innocence” of the offense
charged. Id. at 623-24.
While this Court has not directly addressed the meaning of the “use” of a
weapon, it cited Bailey in State v. Dor, 165 N.H. 198, 204 (2013), and it
followed the Supreme Court’s interpretation of 18 U.S.C. §924(c)(l) in State v.
Melvin, 150 N.H. 134, 137 (2003). In Widi’s case, the indictment, unlike that
8
in Bouslev, does not employ the term “use” to characterize Widi’s conduct.
Moreover, placing a gun into a box does not allege “use” as the term is defined
in Bailey. Thus, the element of “use” of the deadly weapon is neither expressly
set forth in the indictment, nor fairly described by its language. As argued
below, this fact undermines the validity of Widi’s plea, and entitles him to a
remand for either the entry of a misdemeanor conviction, or an evidentiary
hearing on his claims.
C. Widi’s Guilty Plea to a Felony Was Not Valid.
“In a collateral attack of 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, and must at least go forward with
evidence sufficient to indicate that his specific claim presents a genuine issue
for adjudication.” State v. Offen, 156 N.H. 435, 438 (2007) (quotation omitted).
In order for a plea to be valid, “prior to pleading guilty, the defendant must be
informed of every essential element of the alleged offense and the court must
determine that the defendant understands the charge.” State v, Davies, 164
N.H. 71, 74 (2012) (emphasis added). A plea invalid in these respects violates
the defendant’s rights to due process. N.H. Const. pt. I, art. 15; U.S. Const.
Amend. XIV; Kinne, 161 N.H. at 146.
In k’inne, the defendant pled guilty to robbery as a class A felony, and he
had counsel who was presumed to have reviewed the elements of class A
robbery with him before he pled guilty. Kinne, 161 N.H. at 48. As the Kinne
Court noted, when the defendant has counsel, “the court usually may rely on
9
that counsel’s assurance that the defendant has been properly informed of the
nature and elements of the charge to which he is pleading guilty.” Id. at 47
(quotation omitted). Kinne made no claim that his counsel did not review with
him the class A felony elements before he pled guilty. Id.
Widi’s case is different. Unlike in Kinne, the assumptions that counsel
and the court reviewed all of the essential elements, and that Widi understood
them, do not hold. Here, because the element of “use” of the weapon was not
in the charging document, there would have been no occasion for anyone to
review the element. No extrinsic evidence cited below demonstrated that the
court or defense counsel advised Widi of an element that was not patent in the
indictment. Moreover, because the record of the hearing has been destroyed,
Supp. 9, this Court has no ability to review what occurred. Under these
circumstances, there is no assurance that anyone explained the element of
use, or that Widi understood the State’s burden to prove it, which he was
waiving by entering the felony plea. That fact undermined the knowing and
intelligent character of Widi’s felony plea, and violated his due process rights.
See State v. Arsenault, 153 N.H. 413, 416 (2006) (“A guilty plea does not
qualify as intelligent unless the defendant first receives ‘real notice of the true
nature of the charge against him.”’) (Quoting Bouslev, 523 U.S. at 618).
Accordingly, here, as in Bousley, Widi has a claim that his felony plea was not
constitutionally valid. Bouslev, 523 U.S. at 6 18-19.
10
D. Widi is Innocent of a Felony.
In Bousley, the Court stated that a claim “may still be reviewed in a
collateral proceeding if [the defendant] can establish that the constitutional
error in his plea colloquy has probably resulted in the conviction of one who is
actually innocent.” Id. at 623 (quotation omitted). “To establish actual
innocence, petitioner must demonstrate that, in light of all the evidence, it is
more likely than not that no reasonable juror would have convicted him.”’ N
(quotations omitted). As applied here, no reasonable juror — having been
properly instructed on the definition of the term “use” — would have convicted
Widi of a felony.
The lower court found that Widi did not explain why placing the gun in a
box did not constitute its use. Supp. 10 & n.7. He did, however, allege in his
petition that the indictment “merely states that [he] placed a firearm in a box;”
that “the use of a deadly weapon is an ‘element’ or ‘ingredient’ of felony
Reckless Conduct;” and that because the State “never established the use of
the firearm referenced in the indictment this Court should conclude that [hej is
actually innocent of felony Reckless Conduct.” A43, A45, A47. Thus, Widi
asserted that placing a gun in a box did not constitute its use. To the extent
that more of an explanation was required, Bousley supports the proposition
that Widi is entitled to present it an evidentiary hearing.
E. Widi Received Ineffective Assistance of Counsel.
Another exception to the Kinne procedural bar applies when defendant
has alleged ineffective assistance of counsel. Kinne, 161 N.H. at 48. Kinne did
11
not. Id. Widi alleged ineffective assistance of counsel by Russman, who
handled his guilty plea, and by Foley, who entered an agreement to withdraw
Widi’s plea on April 7, 2004. The trial court erred rejecting these claims
without a hearing.
All defendants are guaranteed the right to effective assistance of counsel
by the New Hampshire and United States Constitutions. N.H. Const. pt. I, art.
15; U.S. Const. Amends. VI, XIV. The right extends to situations where
counsel’s flawed advice led to the defendant entering a plea that was not
knowing, voluntary and intelligent. See Lafler v. Cooper, 132 S. Ct. 1376
(2012) (counsel’s ineffective assistance caused defendant to go to trial instead
of plead guilty). The defendant must establish that had he received competent
advice, “the outcome of the plea process would have been different.” at
1384.
Widi argued that Russman failed to sufficiently apprise Widi that he was
pleading guilty to a felony reckless conduct offense. A51-A55. The lower court
rejected this claim without affording Widi a hearing. The court, in dismissing
Widi’s claim, also employed an improper standard of review. Widi’s claim was
in the nature of a habeas petition, which is civil. State v. Collins, 133 N.H.
609, 612 (1990). In determining whether to dismiss a civil claim, the lower
court “assume[s] the truth of the facts alleged by the plaintiff and construe[s]
all reasonable inferences in light of the plaintiff.” Lamb v. Shaker Regional
School District, 168 N.H. 47, 49 (2015). The court did not afford Widi the
12
benefit of that standard, as it determined his claims were not credible without
allowing him an opportunity to prove them at a hearing.
A hearing is necessary for several reasons. First, there is no record of
the plea colloquy to review, as it has been destroyed. Supp. 9; cf. Davies, 164
N.H. at 73-74 (relying on record of plea colloquy to uphold validity of plea).
Second, Widi was scheduled to plead guilty to a substituted information, which
the State drafted, and which the parties referred to using the same docket
number as the indictment. A2-A5. Under these circumstances, absent a clear
explanation, Widi may not have distinguished between the felony and
misdemeanor charges. Third, while the indictment does not use the term
“firearm,” it does refer to the item Widi placed into the box as a “loaded .45
caliber gun.” Al. At the time Widi was prosecuted, a defendant who was
convicted of reckless conduct with a firearm faced a minimum mandatory
penalty of at least three years in prison. Widi could reasonably have believed —
absent a clear explanation to the contrary — that since he was not getting the
mandatory minimum prison sentence, he must have been convicted of a
misdemeanor instead of a felony.
The lower court cited some evidence arguably supporting the proposition
that Widi validly pled guilty to a felony, including the waiver of rights form, the
fact that the indictment is stamped “guilty,” the fact that the felony box is
checked on the sentencing form, and the fact that the mittmus indicates that
Widi pled guilty to a felony. Supp. 8-9. With regard to the stamp on the
indictment, the sentencing form, and the mittimus, there is no evidence that
13
Widi saw these documents. Accordingly, they cannot serve as evidence that he
knew he pled guilty to a felony. The waiver of rights form is more probative,
but the Court must consider the totality of the circumstances. See St. Pierre v.
Vitek, 144 N.H. 766, 770-7 1 (1974) (“The trial court in arriving at its
conclusions on plaintiffs petition for a writ of habeas corpus could properly
consider the totality of the circumstances revealed by the record of the
proceedings at the time plaintiffs plea was entered as well as the plaintiffs
testimony on his petition for habeas corpus.”). The court could not have fairly
done that without affording Widi a hearing.
Widi also alleged ineffective assistance of counsel by Foley, claiming that
he did not authorize Foley to withdraw his notice of intent to plead guilty to the
misdemeanor charge on April 7, 2004, A53-A56, and that the misdemeanor
plea offer lapsed for that reason. See Missouri v. Frye, 132 S. Ct. 1399 (2012)
(counsel’s failure to communicate plea offer was ineffective assistance). The
court dismissed this claim. Supp. 11-12. However, in so doing, it did not
consider Widi’s claims in the light most favorable to him, see Lamb, 168 N.H.
at 49, and it did not grant him an evidentiaiy hearing.
F. Remedy.
“[R]emedies should be ‘tailored to the injury suffered from the
constitutional violation and should not unnecessarily infringe on competing
interests.” Cooper, 132 S. Ct. at 1388 (quoting United States v. Morrison, 449
U.S. 361, 364 (1981)). In considering the remedy, Widi has two points. First,
his case must be, at a minimum, remanded for a hearing. The lower court
14
ruled against Widi without viewing the facts he alleged in the light most
favorab]e to him. Widi made claims that survive Kinne, and having done so, he
should have a fair opportunity to prove them.
Second, the remedy will depend on which of Widi’s claims are successful.
His claims are that he pled to a misdemeanor, that he is innocent of a felony,
that his plea to a felony was invalid, and that ineffective assistance of counsel
caused him to plead guilty to a felony (Russman claim), or caused him to lose
the opportunity to plead to a misdemeanor (Foley claim). The court’s
determination of what relief is appropriate depends on the nature of the claim
it is considering. See Cooper, 132 S. Ct. at 1388-89 (“In [some] circumstances,
the proper exercise of discretion to remedy the constitutional injury may be to
require the prosecution to reoffer the plea proposal. Once this has occurred,
the judge can then exercise discretion in deciding whether to vacate the
conviction from trial and accept the plea or leave the conviction undisturbed.”).
For example, if Widi demonstrates his actual innocence of a felony, the remedy
should be that the conviction is recorded as a misdemeanor. If he
demonstrates that the indictment alleged a felony, but his plea was invalid, the
remedy may be to allow him to withdraw his felony plea.
15
CONCLUSION
WHEREFORE, Mr. Widi respectfully request that this Court remand his
case for a hearing on his claims.
Undersigned counsel requests fifteen minutes of oral argument.
The appealed decision is in writing and is appended to the brief.
Respectfully submitted,
3yDavi M. Rothstein, #599 1Deputy DirectorNew Hampshire Public Defender10 Ferry Street, Suite 434Concord, NH 03301
CERTIFICATE OF SERVICE
I hereby certify that two copies of the foregoing Brief have been mailed,postage prepaid, to:
Criminal BureauNew Hampshire Attorney General’s Office33 Capitol StreetConcord, NH 03301
Da id M. Rothstein
DATED: August 22, 2016
16
SUPPLEMENT
SUPPLEMENT - TABLE OP CONTENTS
Page
Order on Defendant’s Writ of Error Comm Nobis Supp. 1-A2
Order on Defendant’s Motion for Reconsideration andSupplemental Motion for Reconsideration of Denial ofWrit of Error Coram Nobis Supp. 3-A 14
lTr $tnte nf Teft iEInmps1irrRDCKINGHAM COUNTY SUPERIOR COURT
STATE OF NEW HAMPSHIRE
V.
DAVID WIDI, JR.
Docket No.: 218-2003-5-1714
ORDER ON DEFENDANT’S WRIT OF ERROR CORAM NOBIS
Now before the Court is a Writ of Error Comm Nob/s filed by David Widi, Jr. For the
reasons noted, Mr. Widi’s writ is DENIED.
Mr. Widi has filed numerous pleadings claiming that the court’s files are in error as
he contends that on December 15, 2004, he entered a plea of guilty to a misdemeanor
charge of reckless conduct, not a felony, as is reflected in the court’s file and his criminal
record. All of Mr. Widi’s prior motions have been denied, the most recent of which is dated
August 9, 2011 (Nadeau, J. — denying Mr. Widi’s Motion to Correct, Modify, or Reduce
Judgment in Error). A careful review of the court’s file indicates that Mr. Widi’s current writ
simply restates aH of the same facts and arguments as were previously raised within his
other filings. This Court reaches the same conclusion and denies Mr. Widi’s writ — as the
Court’s records dispel Mr. Widi’s claims.
Under docket 2003-5-1714 there is no misdemeanor charging document, only a
Class B Felony indictment alleging Reckless Conduct on April 18, 2003; a sentencing
sheet noting a sentence to a felony Reckless Conduct charge, and an acknowledgment
and waiver of rights felony form, signed by Mr. Widi. Lastly, while the court no longer
possesses a recording of the December 15th hearing, the State asserted within its August
24, 2010 objection to Mr. Widi’s Motion to Correct Record that “A review of the recording of
the December 15, 2004 plea and sentencing hearing revealed that (Coffey, J.) engaged in
Supp. 1
a full plea colloquy with the defendant and that he indeed entered a plea of guilty to a
felony level offense States Cbj. ¶f12. The court’s files also contain mailers annulled at
Mr. VVidi’s request. None of the annulled files contain a charge cf misdemeanor Reckless
Conduct.
So Ordered.I
YI / IU / r.t)// I
Date Marguerite L. WagelingPresiding Justice
Supp. 2
rniw $tair of NrIu 3i1ainpsijin
ROCKINGHAM COUNTY SUPERIOR COURT
STATE OF NEW HAMPSHIRE
V.
DAVID J. WIDI, JR.
Docket No. 218-2003-CR-01714
ORDER ON DEFENDANT’S MOTION FOR RECONSIDERATION ANDSUPPLEMENTAL MOTION FOR RECONSIDERATION
OF DENIAL OF WRIT OF ERROR CORAM NOBIS
Defendant David Widi, Jr., was convicted of felony reckless conduct after the
Court accepted his plea of guilty on December 15, 2004. In the intervening years, Mr.
Widi has filed several post-conviction motians, all of which have been denied. Most
recently, Mr. Widi filed a Petition for a Writ of Error Coram Nobis (Dcc . 66), which the
Court denied on August 20, 2015. Mr. Widi now asks the Court to reconsider its denial
of his writ. The Court finds and rules as follows.
Procedural Posture
In his Petition for a Writ of Error Coram Nobis, Mr. Widi made four arguments:
(1) he was actually innocent of felony reckless conduct; (2) his conviction for reckless
conduct was “misclassified as a felony due to an error in the proceedings”; (3) if he pied
guilty to a felony, that plea was not made knowingly and intelligently; and (4) he
received ineffective assistance of counsel during the plea-bargaining process. See Pet.
Writ Error Coram Nobis pp. 5, 9, 12, 16. Mr. Widi also requested that counsel be
appointed to represent him in this collateral proceeding. ki. at 22. In an order dated
August 20, 2015, the Court denied Mr. Widi’s writ, noting that the icurrent writ simply
1
Supp. 3
restates all of the same facts and arguments as were previously raised within his other
filings” Order on DeL’s Writ Error Coram Nobis 1 (Doc. 67).
Upon receipt of this order, Mr. Widi moved for reconsideration, arguing that his
actual innocence and ineffective assistance claims had not previously been raised and
asking the Court to address the factual dispute underlying these claims. See DeL’s
Mot. Recons. pp. 1, 3—4 (Doc. 68). Before the Court had an opportunity to rule on this
motion, Mr. Widi simultaneously filed a Supplemental Motion for Reconsideration with
this Court, see Def.’s Suppl. Mot. Recons. (Doc. 69), as well as a Notice of
Discretionary Appeal with the New Hampshire Supreme Court, seeking appellate review
of this Court’s denial of his writ, see Notice Discretionary Appeal (Doc. 70). In an order
dated November 5, 2015, this Court stayed consideration of Mr. Widi’s pending motions
“until (1) the New Hampshire Supreme Court rule[d] on Mr. Widi’s perfected appeal or
(2) Mr. Widi withdr[ewl his notice of appeal and notifie[dl this Court of such action.”
Order on Def.’s Mot. Recons. Denial Writ Error Coram Nobis p. 3 (Doe. 71).
As a result of the Court’s order, Mr. Widi filed with the Supreme Court a motion to
dismiss his discretionary appeal without prejudice and notified this Court of such
action.1 The Supreme Court denied Mr. Widi’s motion in an order dated December 15,
2015, but remanded [the casel to the superior court for the limited purpose of allowing
it to rule on the defendant’s motion for reconsideration and supplemental motion for
reconsideration of the superior court’s August 20, 2015 order.” Sup. Ct. Order (Doc.
76).
A thorough review of Mr. Widi’s tile reveals that, while based on the same factual
1 Mr. Widi also submitted type-written versions of his petition and his supplemental motion for
reconsideration to assist the court. Because the court finds Mr. Widis original motions to be legible, it
refers to the pagination of the hand-written versions when citing to these documents.
2
Supp. 4
assertions as his other post-conviction motions, his claims of actual innocence, invalid
guilty plea, and ineffective assistance of counsel have not previously been addressed.
The Court considers them now.2 Furthermore, because the court’s records contradict
some of his factual assertions, the Court provides a recitation of the procedural history
of Mr Widi’s case before analyzing his claims.
Background
in July 2003, Mr. Widi was indicted on one count of felony reckless conduct
occurring on April 18, 2003. See Indictment No. 03-S-17144. In February 2004, Mr.
Widi filed a notice of intent to plead guilty to a charge of misdemeanor reckless conduct
in exchange for a suspended sentence of one year in jail, a one-year probation term,
and completion of a tour of the state prison. See Notice Intent Enter Guilty Plea (Doc.
12). At the time the Notice of Intent to Plea Guilty was filed, the State had not yet flied a
misdemeanor information for reckless conduct. A plea and sentencing hearing was
scheduled for April 7, 2004. In late March, Mr Widi’s attorney, Gary Reiner, moved to
withdraw from the case because Mr. Widi had retained Attorney Richard Foley. See
Mot. Withdraw (Doc. 13).
On April 7, Attorney Foley and the prosecutor conferred with the Court about the
status of the case. The parties submitted an agreement, which the Court approved,
stating that Mr. Widi was withdrawing his notice of intent to plead guilty and that the
2 The court assumes that jurisdiction and venue are proper. Cf. State v. Fletcher, 158 N.H. 207, 211
(2009) (‘(W]here the case involves an illegal sentence, the trial court has the authority to reduce, modify
or correct it at any time.” (citation omitted)). The Court also assumes, without deciding, that Mr. With’s
cl?ims are timely.On July 18, 2003, the State filed a misdemeanor information charging Mr. Widi with possession of a
controlled drug arising out of the same incident. See Entry Not Guilty Plea & Waiver Arraignment (Doc. 3)
(referencing charge); Def.’s Mot. Amend Bail Conditions ¶ 1 (Doc. 4); Discharge of Bond (Doc. 6); State’s
Mot. Revoke Def.’s Bail ¶ 1 (Doc. 16).The court docket caption for 2003-5-1714 is now reflected as 218-2003-CR-1714.
3
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case should be scheduled for trial sometime after June 2004. See Agreement (Doc.
14). As a result, on July 2, 2004, the court sent Mr. Widi a notice of a new pre-trial
hearing date of July 30, 2004 and a new trial date of August 9, 2004 (Dcc 15). Mr. Widi
now claims he “did not have any knowledge of or consent to the withdrawal of the plea
agreement,” and that Attorney Foley did this unilaterally.5 Pet. Writ Error Coram Nobis
p. 18.
Mr. Widi also alleges that the prosecutor substituted the felony indictment for
misdemeanor information on April 7, 2004, and that he was thereafter facing only a
misdemeanor count of reckless conduct. See id. at 2. Mr. Widi’s assertion is contrary
to the record as the felony charge was never nolle prossed or dismissed. Also of note,
the court’s files do not contain a record of a complaint or information charging Mr. Widi
with misdemeanor reckless conduct occurring on April 18, 2003.
in May 2004, Mr Widi was accused of committing two counts of felony reckless
conduct for an unrelated incident in Portsmouth on May 10, 2004. As a result, the State
filed a motion to revoke Mr. Widi’s bail in the pending felony case (2003-5-1714). See,
Doc 16. In that motion, the State references the pending allegations of felony reckless
conduct and the misdemeanor possession of a controlled drug charges, both alleged to
have been committed on April 18, 2003. See State’s Met. Revoke Def.’s Bail. (Doc. 16).
Before the hearing on this motion, Attorney Foley moved to withdraw from the April 18,
2003 pending cases based on a breakdown in the attorney-client relationship. See Mot.
Withdraw (Dcc. 17). Mr With thereafter retained Attorney Ryan Russman, and trial was
continued until November 2004. See Mot. Continue (Dcc. 19); Trial Scheduling Order
The court’s explanation for why it rejects Mr. Widi’s assertion is contained in the section analyzing the
ineffective assistance of counsel claim against Attorney Foley.
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(Doc. 20).
In late October 2004, the prosecutor sent Attorney Russman a “revised plea
offer,’ which reflected ‘the defendant’s continued contact with law enforcement.” See
State’s Obj. to Def.’s Mot. Correct R. (Doc. 43) Ex. 16. In exchange for Mr. Widi’s guilty
plea to reckless conduct, the State offered a suspended sentence of one year in jail, a
two-year probation term, completion of a tour of the state prison, and a LADAC
evaluation. . While the offer letter did not specify that Mr. Widi would be pleading
guilty to a felony-level charge, it referenced the existing indictment for this offense by
number (03-5-1714). Id. The State also agreed to nolle pros the indictments arising out
of the May 2004 incident and the April 18, 2003 drug possession charge (03-S-1760) as
part of a global resolution. See ki. Mr. Widi apparently accepted the State’s offer and
filed a notice of intent to plead guilty on November 18, 2004. See Notice Intent (Doc.
22). A plea and sentencing hearing was scheduled for December 15, 2004.
According to Mr. Widi:
Just prior to the plea hearing, Attorney Russman approached Mr. Widi
with a form he identified as a waiver of trial rights. Both pages of the form
were illegible due to poor print quality and as a result they could not go
over them. Attorney Russman told Mr. Widi that the Court did not have
any legible copies available and asked him to sign the form because it
was needed for the hearing.
Pet. Writ Error Coram Nobis (Doc. 66) p. 11 (citations omitted). The form to which Mr.
Widi refers is the twa-page copy of the acknowledgement and waiver of rights form,
attached to his petition as Exhibit 14. See id. Ex. 14. The front of the form is clearly
marked “FELONY.” Id. Mr. Widi claims that the second page of this form, containing
signatures and dated December 15, 2004, “is indeed the one [he] signed,” but that”the
first page that appears there now has been swapped with the original (sic).” Id. at 11.
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Supp. 7
In effect, Mr. Widi argues that the courts file contains something other than the first
page of the two page document he signed on December 15, 2004. However, a review of
the court’s file evidences that Mr. Widi is either mistaken or is lying. The original
Acknowledgement and Waiver of Rights for a Felony is retained in the court’s file. It is a
one-page double sided, not a two-page document, and it contains Mr. Widi’s original
December 15, 2004 signature. See Acknowledgement & Waiver Rights Form (Doc. 25).
Moreover, both sides of the original form are very clearly legible, unlike the copy Mr.
Widi attaches as Exhibit 14 to his Pet. Writ Error Coram Nobis. The front side of the
acknowledgement form contains the word “felony” in bold and all-caps, while the back
side of the form—containing Mr. Widi’s signature—includes the following statement: ‘1
understand that this charge against me is a Class B Felony and that the maximum
penalty is 7 years and the minimum penalty is 3.5 years . . ..“ 14.
While the Court no longer possesses an audio recording of Mr. Widi’s plea and
sentencing hearing,6 the prosecutor who was present (and later reviewed the recording
before it was destroyed) subsequently certified that the Court (Coffey, J.) “engaged in a
full plea colloquy with the defendant. . . [who] indeed entered a plea of guilty to a felony
level offense.” State’s Obj. to Def.’s Mot. Correct R. (Doc. 43) 15. Mr. WitH argues
that the Court should not rely on the State’s representations, arguing that “[t]he State
can say anything in it’s [sic] pleadings and that doesn’t make them true.” Def.’s Mot.
Recons. (Doc. 68) p. 4. The same can be said of Mr. Widi’s representations. Moreover,
unlike Mr. Widi, the prosecuting attorney is bound by a duty of candor to the Court, the
violation of which would expose the lawyer to serious professional consequences. See
6 As a matter of course, the court only retains audio recordings for a certain number of years. All
recordings from 2004 and earlier have been destroyed.
6
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N.H. R. Prof. Conduct 3.3.
The Court need not rely solely on the State’s representation, however, as the rest
of the record corroborates its assertion. In addition to Mr. Widi’s signature on the felony
acknowledgment form, the felony reckless conduct indictment is stamped “guilty” the
felony box is checked on the House of Corrections Sentence form, see Doc. 26, and the
mittimus indicates the conviction is for a felony, see Doc. 27. In contrast, there is no
obiective support for Mr Widi’s bare assertion that he believed and was assured that he
was pleading guilty to a misdemeanor offense. ç Pet. Writ Error Coram Nobis 3.
In November 2008, Mr. Widi was charged with being a felon in possession of a
weapon in violation of federal statute, with his felony reckless conduct conviction
serving as the predicate offense. See Id. at 4. He was later convicted and sentenced to
108 months imprisonment. Id. In 2010, Mr. Widi filed the first of several motions with
this Court, seeking to have his conviction reflected as a misdemeanor instead of a
felony. The Court now addresses only the claims Mr. Widi has not previously raised.
Analysis
Mr. Widi makes a number of claims, all of which collaterally attack his guilty plea
in some form or another. First, he contends that the felony reckless conduct indictment
does not allege a necessary element of the offense: that he actually used a deadly
weapon. See hi. at 6. According to Mr. Widi, the State has conceded that it never
established the deadly weapon element. See Id. at 9. Therefore, Mr. Widi argues, he is
actually innocent of felony reckless conduct, and his conviction for this offense should
be amended to reflect a misdemeanor. ki.
Mr. Widi also asserts that Attorney Russman was ineffective by (1) failing to
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Supp. 9
advise him that he was pleading guilty to a felony, (2) failing to advise him of the
elements of felony reckless conduct, and (3) failing to inform him that the indictment did
not allege all of the necessary elements of this offense. W. at 13. Because of this,
Mr. Widi argues, his guilty plea was not knowing and intelligent. Seeid. at 13—14.
Finally, he argues that Attorney Foley withdrew his agreement to the original plea offer
without Mr. Widi’s knowledge or consent, thereby providing ineffective assistance of
counsel.
“To mount a successful collateral challenge to a guilty plea, ‘the defendant must
describe the specific manner in which the waiver was in fact involuntary or without
understanding, and must at least go forward with evidence sufficient to indicate that his
specific claim presents a genuine issue for adjudication.” State v. Kinne, 161 N.H. 41,
47(2010) (quoting State v. Arsenault, 152 N.H. 413, 416 (2006)). Mr. Widi has failed to
point to anything in the record, other than the alleged illegality of his initial bargained-for
sentence, to show that his plea was not knowing, intelligent, or voluntary. As the
recitation of the procedural history indicates, there is ample evidence that Mr. Widi knew
he was pleading guilty to a felony, and he has offered no evidence—except bare self-
sewing assertions, which is contradicted by the record—to suggest otherwise.
Moreover, at the time of his plea and sentencing hearing, Mr. Widi was represented by
counsel and signed an acknowledgement and waiver of rights form indicating that he
understDod he was pleading guilty to a Class B felony. See Kinne, 161 N.H. at 47
(“Where a defendant is represented by competent counsel, the court usually may rely
on that counsel’s assurance that the defendant has been properly informed of the
nature and elements of the charge to which he is pleading guilty.” (quoting Bradshaw v.
8
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Stumpf, 545 U.S. 175, 183 (2005))). By signing that form, Mr. Widi waived his right to
have the State prove all elements of the crime, including use of a deadly weapon,
beyond a reasonable doubt at trial. See Acknowledgement & Waiver Rights Form.
Mr. Widi “conflates the sufficiency of the indictment—the charging document—
with his understanding of the elements of the crime to which he pleaded guilty.” Kinne,
161 N.H. at 46. The facial sufficiency of the charging document is not relevant in
determining whether a defendant’s guilty plea was valid. See ki. This is because by
pleading guilty, the defendant has “waived any challenge to the sufficiency of the
indictment.” Id. at 44. Here, Mr. Widi waived any challenge to the sufficiency of the
indictment charging him with felony reckless conduct when he pled guilty to that
offense. Accordingly, he cannot succeed on his actual innocence claim, assuming such
a claim was cognizable, because it rests on the argument that the indictment is facially
deficient.7
Because Mr. Widi has failed to offer any credible evidence that his guilty plea
was not knowing, intelligent, or voluntary, his ineffective assistance claim against
Attorney Russman must also fail. In other words, the basis for Attorney Russman’s
allegedly deficient performance—his failure to properly advise Mr. Widi about the nature
and elements of the offense—has already been rejected by the Court for the reasons
discussed above.
The Court also rejects Mr. Widi’s assertion that Attorney Foley withdrew his
agreement to the original plea bargain without consent. Mr. Widi claims that Attorney
Even assuming this issue was not waived, Mr. Widi cannot prevail because the indictment sufficientlyalleges the elements of felony reckless conduct. Mr. Widi does not explain why placing a deadly weaponin a box in a Hallmark store, as the indictment alleges, does not fall within the definition of “using’ thatdeadly weapon under the relevant statutes.
9
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Foley told him that the plea hearing was being postponed so that he could review the
case as he had only become involved a week prior to the scheduled hearing.” Pet. Writ
Error Coram Nobis DecI. ¶ 3. However, if Attorney Foley wanted additional time to
review the case, he would have requested a continuance instead of withdrawing Mr.
Widi’s notice of intent to plead guilty. Furthermore, the agreement makes clear that the
reason Mr. Widi withdrew this notice was because he wanted to go to trial. See
Agreement. This is consistent with the fact that he retained Attorney Foley after
entering into a plea agreement negotiated by a different attorney; Mr. Widi wanted to
take his case to trial with Attorney Foley representing him. Further, on July 2, 2004,
notice of a new trial date, not a new plea and sentencing hearing date, was sent to Mr.
Widi. Mr. Widi was certainly on notice as of July 2, 2004 that his felony charge was
headed to trial and not to a plea and sentencing hearing.
In sum, the only logical conclusion from the record is that Mr. Widi himself
decided to withdraw from the plea agreement in April 2004. Accordingly, his claim of
ineffective assistance of counsel, based on losing the opportunity to plead guilty to a
misdemeanor, is without merit.
Finally, to the extent that Mr. Widi argues his plea was not knowing or intelligent
because he received an illegal sentence, this argument must also fail. Contrary to Mr.
Widi’s assertions, “deadly weapon” and “firearm” are not synonymous. See State v.
Mohamed, 159 N.H. 559, 561 (2009) (“A firearm, however, is not a deadly weapon p
se.’). The mandatory minimum sentencing enhancement in effect at the time only
applied to firearms, not all deadly weapons. See RSA 651:2, ll-g (2004); Mohamed,
159 N.H. at 561. To obtain a conviction for felony reckless conduct, the State only
10
Supp. 12
needed to prove that Mr. Widi used a deadly weapon, not a firearm. Accordingly, a
suspended sentence for felony reckless conduct would not automatically run afoul of the
mandatory minimum sentencing provision.
While it is true that the indictment identifies a gun as the deadly weapon Mr. Widi
used to commit felony reckless conduct, there is no finding on the record that the deadly
weapon was a firearm. This is consistent with the notion of ‘fact bargaining,” in which
the parties to a negotiated plea agreement omit the existence of a fact that would
otherwise trigger a mandatory minimum sentence. See, e.g., King, Judicial Oversight of
Negotiated Sentences in a World of Bargained Punishment, 58 Stan. L. Rev. 293, 297
(2005) (discussing fact bargaining in the federal system). Because a suspended
sentence for felony reckless conduct is permissible, and there is no factual finding that
would trigger the mandatory minimum sentencing provision, Mr. Widi received a legal
sentence.
Even assuming the sentencing court was required to apply the firearm
enhancement, Mr. Widi obtained the benefit of that error by receiving his bargained-for
sentence, which has now been fully discharged. In other words, Mr. Widi received
specific enforcement of his plea agreement, even if the sentence should have been
more severe under existing law. The Court thus has no legal basis to vacate Mr. Widi’s
guilty plea where he has already completed the sentence he received in exchange for
that plea.
11
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Conclusion
For the reasons discussed above, Mr. Widi’s motions to reconsider are DENIED.
So Ordered.
(&IkWtn 9
______________________
\bate / MargueritL. Wageiing
I Presiding Justice
12
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