Therrien v. Sullivan

2005 DNH 067

Opinion

Therrien v. Sullivan 04-CV-031-SM 04/21/05 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Robert Therrien, Plaintiff

v. Civil No. 04-cv-31-SM Opinion No. 2005 DNH 067 Mark F. Sullivan, Defendant

ORDER OF CERTIFICATION

Pursuant to Rule 34 of the Rules of the Supreme Court of New

Hampshire, the United States District Court for the District of

New Hampshire hereby certifies the following questions of New

Hampshire law, which may be determinative of causes pending

before it and as to which there appears to be no controlling

precedent in the decisions of the Supreme Court:

1. In the context of a civil action for criminal legal malpractice, see, e.g.. Mahoney v. Shaheen. Cappiello, Stein & Gordon. P.A.. 143 N.H. 491 (1999), when does a criminal defendant's cause of action against his or her defense counsel accrue?

2. If the cause of action for criminal legal malpractice accrues upon the criminal defendant's discovery of the attorney's alleged negligence and the resulting harm, is the pertinent state limitations period tolled until the criminal defendant obtains collateral relief from his or her underlying criminal conviction (thereby avoiding estoppel bars to proving actual innocence)? Statement of Relevant Facts

Much of the relevant factual background is described in

detail in the New Hampshire Supreme Court's opinion affirming

Therrien's criminal conviction. State v. Therrien. 144 N.H. 433

(1999) ("Therrien I" ). Accordingly, only an abbreviated

recitation of the pertinent facts is necessary here.

While living in Portsmouth, New Hampshire, Therrien

allegedly forced his first-grade daughter to perform fellatio on

him. Soon thereafter, the family moved to Maine. In 1995, the

victim informed her mother about the assault that had allegedly

occurred earlier in Portsmouth. Therrien was charged with that

assault, but before he was brought to trial in New Hampshire, he

was tried for other alleged sexual assaults committed against his

daughter while the family was living in Maine. Therrien was

acquitted of the Maine charges.

At his subsequent trial on the Portsmouth charge, the jury

was allowed to hear evidence of Therrien's alleged sexual

assaults against his daughter in Maine. Defense counsel was not,

however, permitted to introduce evidence that Therrien had been

2 acquitted of those charges. Additionally, over defense counsel's

objection, the jury was allowed to hear testimony from the

victim's social worker, who testified that Therrien had abused

the victim until she was thirteen years old. In March of 1997,

Therrien was convicted of aggravated felonious sexual assault.

On April 25, 1997, he was sentenced to serve seven and one-half

to fifteen years in prison.

On direct appeal to the New Hampshire Supreme Court,

Therrien, represented by different counsel, asserted that the

trial court erred in admitting evidence of other bad acts (i.e.,

the alleged sexual assaults that occurred in Maine), without

permitting him to introduce evidence that he had been acquitted

of those charges. He also challenged the trial court's decision

to allow the victim's therapist to testify about multiple

incidents of abuse. The Court affirmed Therrien's conviction,

concluding that the victim's testimony about sexual assaults that

allegedly took place in Maine amounted to harmless error. It

also concluded that Therrien failed to preserve for appellate

review his objections to: (1) the court's ruling precluding

introduction of evidence of his acquittal of the Maine charges;

3 and (2) introduction of the social worker's testimony. See

Therrien I .

Therrien then sought collateral relief in the state trial

court, asserting that he had been denied effective assistance of

counsel at his trial. The superior court denied Therrien's

motion for a new trial, concluding that counsel provided

constitutionally adequate representation. The New Hampshire

Supreme Court vacated that holding, reasoning that the trial

court should have conducted an evidentiary hearing on the matter

prior to ruling. The case was transferred to a new judge, an

evidentiary hearing was held, and the court determined that

Sullivan did, in fact, provide constitutionally deficient

representation:

The court finds that Sullivan's representation of defendant at trial was deficient, as he failed to properly prepare for, attempt to exclude, try to mitigate, or even preserve for appeal the issue of defendant's inherently prejudicial prior bad acts.

State v. Therrien. No. 96-S-541 (N.H. Super. C t . May 7, 2002).

Accordingly, the court vacated Therrien's conviction and granted

his motion for a new trial. The State, however, declined to re-

4 prosecute Therrien, perhaps because he had already served

approximately five years in prison.

On January 28, 2004, Therrien filed this diversity action

against Sullivan, asserting that he is actually innocent of the

charges brought against him and saying that Sullivan's deficient

representation proximately caused his allegedly wrongful

conviction and incarceration.1 Sullivan moves to dismiss

Therrien's one-count complaint on grounds that it is barred by

the applicable limitations period.

Discussion

Although there is no New Hampshire Supreme Court decision on

point, several other jurisdictions have addressed the

circumstances under which a cause of action for criminal

malpractice accrues. See generally Attached Order in Therrien v.

Sullivan. No. 04-cv-31-SM (D.N.H. March 14, 2005). Whether,

under New Hampshire's statutory limitations period, N.H. Rev.

1 It is appropriate, in this context, to note that no court has determined that Therrien was actually innocent of the criminal charge against him; his conviction was set aside on other grounds, and the charges were then dropped as a matter of prosecutorial discretion.

5 Stat. Ann. 508:4, and the facts alleged in plaintiff's complaint,

Therrien has asserted a timely malpractice claim against

defendant is a dispositive question of state law, with regard to

which the Supreme Court of New Hampshire should be accorded

deference by this Court. Accordingly, the Justices of the

Supreme Court of New Hampshire are respectfully requested to

resolve the matter according to New Hampshire law.

SO ORDERED.

Steven J. McAuliffe Chief Judge

April 21, 2 0 05

cc: Sven D. Wiberg, Esq. Richard Bell, Esq.

Attachment: Therrien v. Sullivan. No. 04-cv-31-SM (D.N.H. March 14, 2005) .