Unsettled-Law Defeats Plain Error and Voluntary Refusal of Transport Permits Sentencing in Absentia

I. Introduction

In State of New Hampshire v. Dale E. Holloway, Jr. (N.H. June 17, 2026), the Supreme Court of New Hampshire affirmed multiple convictions arising from a shooting at a church during a wedding in Pelham. The defendant, Dale E. Holloway, Jr., represented himself at trial with standby counsel and asserted a not-guilty-by-reason-of-insanity defense.

The appeal presented a wide set of issues, many framed through the lens of preservation and plain error: (1) change of venue; (2) failure to order a competency evaluation; (3) exclusion of testimony about prior out-of-state convictions during the felon-in-possession phase; (4) failure to instruct on the definition of “felony”; (5) sufficiency of the evidence supporting the felon-in-possession conviction; (6) sentencing in absentia; and (7) application of an extended term under RSA 651:6.

Although the court ultimately “Affirmed,” the order is consequential for criminal practice because it tightly applies preservation rules, emphasizes how “unsettled law” defeats a claim of plain error, and reiterates that an in-custody defendant who refuses transport can waive the right to be present for sentencing.

II. Summary of the Opinion

  • Venue: No manifest error in denying change of venue; no abuse of discretion in denying a hearing; and no error in ruling before receiving an unauthorized reply.
  • Competency: No due-process violation; the record did not raise a “bona fide or legitimate doubt” requiring a competency hearing/evaluation.
  • Felon-in-possession phase: Exclusion of defendant’s proposed background testimony about Massachusetts convictions was unpreserved; no plain error because no prejudice shown.
  • “Felony” instruction: Unpreserved; no plain error because whether felony classification is a legal or factual question is unsettled in New Hampshire.
  • Sufficiency: Unpreserved; no plain error because the argument depended on the same unsettled legal/factual premise.
  • Sentencing in absentia: Unpreserved; no plain error—refusal of transport supported a factual finding of voluntary waiver.
  • Extended term (RSA 651:6): Unpreserved; no plain error—equal protection/racial disparate impact challenge presented an issue of first impression and was underdeveloped below.

III. Analysis

A. Precedents Cited

1. Preservation and Plain Error

The court anchored its preservation analysis in State v. Batista-Salva, 171 N.H. 818 (2019), which reiterates that appellate review generally requires the issue to have been presented to the trial court with sufficient specificity to permit correction there. Batista-Salva also supplies the four-part plain error framework.

The order’s repeated reliance on State v. Ortiz, 162 N.H. 585 (2011) is especially important: an error is not “plain” when the relevant law is unsettled at trial and remains unsettled on appeal. That principle controlled the defendant’s unpreserved claims about (i) whether “felony” classification is for the judge or jury and (ii) whether evidentiary rules apply to waiver determinations for an absent defendant.

On preservation mechanics, the court invoked State v. Hodgdon, 143 N.H. 399 (1999) and State v. Plantamuro, 171 N.H. 253 (2018) (contemporaneous and specific objection; offer of proof), and State v. Gay, 169 N.H. 232 (2016) (if the trial court misunderstands an argument, the proponent must seek reconsideration/clarification).

For plain error prejudice, the court cited State v. Leroux, 175 N.H. 204 (2022) (prejudice exists when the court cannot confidently say the verdict would be the same absent the error).

2. Change of Venue and Hearings

The venue discussion is governed by State v. Webster, 166 N.H. 783 (2014), which emphasizes deference to the trial court’s assessment of juror impartiality and pretrial publicity. Webster’s key doctrinal contribution here is the distinction between inherent prejudice and actual prejudice, and the requirement that inherent prejudice depends on the adverse nature of publicity, not merely its quantity.

The decision not to hold an evidentiary hearing was reviewed under State v. Tsopas, 166 N.H. 528 (2014), recognizing superior court discretion to decide whether a hearing is necessary absent a statutory mandate.

In assessing whether the defendant’s cited publicity was the “extreme case,” the court also referenced State v. Addison, 165 N.H. 381 (2013), which declined to presume prejudice despite extensive media coverage in a capital police-officer-murder prosecution.

3. Competency

On competency, the court relied on State v. Smith, 177 N.H. 159 (2025), 2025 N.H. 1, adopting the federal test of Dusky v. United States, 362 U.S. 402 (1960): a defendant must be able to consult with counsel rationally and understand proceedings factually and rationally.

The duty to order a competency hearing when doubt is raised came from State v. Kincaid, 158 N.H. 90 (2008), which lists nonexclusive factors (irrational behavior, demeanor, prior medical opinion) and underscores deference to the trial court.

The court also cited Hart v. Warden, N.H. State Prison, 171 N.H. 709 (2019) to highlight that self-representation gives the trial judge more opportunity to observe a mentally ill defendant’s functioning, and State v. Zorzy, 136 N.H. 710 (1993) for the proposition that a record devoid of inability to assist/understand supports a finding of competency.

4. Felon-in-Possession: Elements, Jury Instructions, and Out-of-State Felonies

For the elements of RSA 159:3, the court cited State v. Young, 159 N.H. 332 (2009).

The “jury must be instructed on rules of law applicable to issues of fact” proposition came from N.H. Ball Bearings v. Jackson, 158 N.H. 421 (2009). The court declined to decide whether classifying a prior conviction as a “felony” under RSA 625:9, III is a question of law or fact, noting the parties did not ask it to do so and invoking In re J.W., 172 N.H. 332 (2019) (reluctance to address unraised/unbriefed issues).

To illustrate that other courts generally treat predicate-felony classification as a legal question, the order cited United States v. Broadnax, 601 F.3d 336 (5th Cir. 2010), United States v. Boaz, 558 F.3d 800 (8th Cir. 2009), State v. Rainoldi, 268 P.3d 568 (Or. 2011), and State v. Wilson, 534 P.3d 547 (Idaho 2023). Those citations did not establish New Hampshire law, but they reinforced why any instructional or sufficiency “error” could not be “plain” under Ortiz: the governing New Hampshire law remains unsettled.

On sufficiency preservation specifically, the court referenced State v. Labrie, 171 N.H. 475 (2018) (sufficiency review is based on evidence at trial), State v. Dodds, 159 N.H. 239 (2009) (a general insufficiency claim does not preserve a distinct statutory-interpretation argument about missing elements), and State v. Hodges, 176 N.H. 751 (2024), 2024 N.H. 44 (plain error review of unpreserved sufficiency issues).

5. Sentencing in Absentia

The waiver doctrine for a defendant’s right to be present relied on State v. Davis, 139 N.H. 185 (1994), holding that the right may be waived by voluntary absence, including an in-custody refusal to attend. The court cited State v. Lister, 119 N.H. 713 (1979) for the burden and standard: the State must show voluntary absence/waiver by a preponderance of the evidence, and the finding is for the trial court.

On preservation, the court cited a non-precedential order, State v. Joshua Baud, No. 2014-0682 (non-precedential order at 2), 2015 WL 11071589 (N.H. Dec. 22, 2015), for the practical point that a defendant may seek reconsideration of a sentence—undercutting the argument that an absent defendant is categorically unable to present the issue to the trial court.

B. Legal Reasoning

1. Change of Venue: Quantity Is Not Enough

The court treated the venue motion as asserting inherent prejudice. Applying State v. Webster, the court held that the defendant’s showing focused on the volume of coverage (“excessively televised and broadcasted”) rather than demonstrating “prejudicial, inflammatory” content that saturated the community.

Two procedural moves are significant. First, the court held there was no error in ruling before receiving the defendant’s reply because the rules do not expressly permit a reply to an objection (absent leave). Second, under State v. Tsopas, the court held it was within discretion to deny a hearing because the trial judge could assess local publicity’s depth and effect.

2. Competency: Insanity Defense Does Not Equal Incompetency

The court reaffirmed that competency is an “absolute basic condition” of a fair trial (State v. Smith), but the due-process duty to hold a hearing arises only when a “bona fide or legitimate doubt” exists (State v. Kincaid). The court emphasized the trial judge’s unique vantage point after four years of interactions with the frequently self-represented defendant.

Substantively, the record supported the two Dusky prongs: the defendant repeatedly articulated strategic frustrations with counsel (not inability to consult rationally), and he filed coherent motions citing legal authority and describing his rights—supporting rational and factual understanding of proceedings. Thus, no competency evaluation was constitutionally required.

3. Felon-in-Possession Phase: Preservation and Proof of Affirmative Defense

The defendant attempted to testify to underlying facts of his Massachusetts convictions to support an affirmative defense under RSA 159:3, III (out-of-state felony would not have been a felony in New Hampshire at the time). The court’s key holdings were:

  • Not preserved: Raising the affirmative defense in pretrial motions did not preserve evidentiary relevance at trial. When asked for relevance, the defendant did not say “affirmative defense,” but instead said he was “talking about the incident itself” and “indictment itself,” then pivoted to annulment. Under State v. Hodgdon and State v. Plantamuro, the proponent must articulate the admissibility theory contemporaneously; under State v. Gay, the defendant should have sought reconsideration if he believed the court misunderstood.
  • No plain-error prejudice: Even assuming exclusion was erroneous and plain, the defendant did not show prejudice under State v. Leroux. His proposed testimony was conclusory (“self-defense/defense of another”) and he offered no other supporting evidence, despite bearing the burden of proving the affirmative defense by a preponderance (RSA 626:7, I(b)).

4. Jury Instruction and Sufficiency: “Unsettled Law” Blocks Plain Error

The defendant’s unpreserved jury-instruction claim hinged on whether “felony” classification is for the jury (fact) or the judge (law). The court refused to resolve that underlying question in this case, but held that because New Hampshire law has not clearly settled it, any failure to instruct could not be “plain” under State v. Ortiz.

The same reasoning defeated the unpreserved sufficiency claim: the defendant’s theory depended on the premise that the jury needed sufficient evidence to decide “felony” status as a factual matter. With that premise unsettled, there could be no “plain” error.

5. Sentencing in Absentia: Refusal of Transport as Voluntary Waiver

The court held the issue unpreserved (continuance motions concerned access to materials, not presence), then rejected plain error on the merits. Under State v. Davis and State v. Lister, an in-custody defendant who refuses to attend can voluntarily waive the right to be present; the State must prove waiver by a preponderance.

The sheriff’s reports indicated the defendant “immediately stated he was refusing to go,” and said the court could sentence him in absentia. That was sufficient for the trial court’s factual waiver finding. The defendant’s hearsay argument failed at the “plainness” step because it was “unclear whether the rules of evidence apply” to the waiver determination—again invoking State v. Ortiz (unsettled law defeats plain error).

6. Extended Term (RSA 651:6): Underdevelopment Below and First Impression on Appeal

The defendant’s equal protection challenge argued RSA 651:6 causes racial disparity and lacks a rational basis. The court found the issue unpreserved because the trial court expressly declined to adjudicate the underdeveloped challenge pretrial, invited development (including an evidentiary hearing), and the defendant did not renew it at sentencing (including in his sentencing memorandum). On plain error, the claim failed because the asserted racial-disparate-impact constitutional question was an issue of first impression; therefore any error could not be “plain” under State v. Ortiz.

C. Impact

  • Sharper preservation demands—especially for self-represented defendants: The order underscores that courts will not “trace” trial objections back through pretrial filings to infer relevance theories or element-based challenges. If the theory is not stated when evidence is offered/excluded (or when instructions are discussed), it is likely forfeited.
  • Plain error is tightly constrained by legal clarity: The decision operationalizes State v. Ortiz: when an issue is unsettled (and remains so), plain error generally fails at prong two. Litigants should expect that novel claims must be preserved and developed below, not rescued on appeal via plain error.
  • Competency gatekeeping remains highly deferential: The court reaffirmed that the trial judge’s longitudinal observation of a defendant—particularly one who self-represents—carries substantial weight in deciding whether a “bona fide doubt” exists under State v. Kincaid.
  • Sentencing in absentia doctrine is reaffirmed for in-custody refusals: Consistent with State v. Davis, refusal of transport can constitute voluntary absence and waiver, supporting sentencing in absentia where the trial court finds waiver by a preponderance under State v. Lister.
  • Extended-term constitutional challenges must be evidentiary and timely: The order signals that generalized assertions of racial disparity will not be reached without a developed record, and that failing to renew the objection at sentencing risks forfeiture.

IV. Complex Concepts Simplified

  • Change of venue (inherent vs. actual prejudice): “Inherent prejudice” is presumed only in extreme cases where the content of publicity is so inflammatory that an impartial jury is virtually impossible. “Actual prejudice” focuses on whether seated jurors were biased. Here, the defendant argued inherent prejudice but showed mostly quantity, not inflammatory content.
  • Competency vs. insanity: Competency asks whether the defendant can participate in the trial process now (under Dusky v. United States). Insanity asks whether the defendant was criminally responsible at the time of the act. A defendant may be mentally ill (or raise insanity) yet still be competent to stand trial.
  • Affirmative defense and burden of proof: An affirmative defense is something the defendant must prove (here, by a preponderance under RSA 626:7, I(b)), even if the State must prove the crime beyond a reasonable doubt.
  • Preservation: To preserve an issue for appeal, a defendant must raise the same argument in the trial court clearly and at the right time (e.g., when evidence is excluded or when challenging sufficiency after the State’s case).
  • Plain error: A narrow safety valve for unpreserved errors. If the law is unsettled, the error usually cannot be “plain” (clear/obvious), so the claim fails early.
  • Sentencing in absentia and waiver: A defendant can lose the right to be present if the absence is voluntary. Refusing transport from custody can qualify as voluntary absence if the court finds waiver by a preponderance.

V. Conclusion

State v. Holloway affirms serious convictions, but its lasting importance lies in procedure: the Supreme Court of New Hampshire rigorously enforced preservation rules, treated “unsettled law” as fatal to plain-error review, and reaffirmed that a jailed defendant’s refusal of transport can support a finding of voluntary waiver permitting sentencing in absentia. For practitioners, the decision is a cautionary roadmap: develop constitutional and statutory challenges with evidence, renew them at the procedurally correct moments, and articulate precise admissibility and element-based theories contemporaneously—or risk losing appellate review.