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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________

Coos Grafton Nos. 2009-569 2009-691

THE STATE OF NEW HAMPSHIRE v. BERNARD KINNE Argued: June 23, 2010 Opinion Issued: October 27, 2010 Michael A. Delaney, attorney general (Nicholas Cort, assistant attorney general, on the brief and orally), for the State. Lisa L. Wolford, assistant appellate defender, of Concord, on the brief and orally, for the defendant. DUGGAN, J. The petitioner, Bernard Kinne, appeals an order of the Superior Court (Vaughan, J.) denying his request for writ of habeas corpus. We affirm. The parties do not dispute the following facts. In February 1999, a Grafton County grand jury indicted Kinne on a charge of conspiracy to commit robbery. The indictment alleged that Kinne:

did commit the crime of Conspiracy to Commit Robbery, in that the Defendant did purposefully committed [sic] the crime of Robbery by agreeing with Jason Bridges and Rhiannon Richardson to commit the crime of Robbery at Pares Market and as an overt act in furtherance of the conspiracy, did gather masks and items of clothing for use in said Robbery and did go to Pares Market with Jason Bridges and Rhiannon Richardson[.] The indictment further stated that this alleged conduct was "Contrary to RSA 629:3[;] Conspiracy to Commit Robbery[;] Class A FELONY." The indictment did not allege any of the additional facts required by statute to elevate the charge from a class B to a class A felony. Nonetheless, Kinne pleaded guilty to the class A felony charge in March 2000. At that time, both Kinne and his counsel signed an acknowledgment and waiver of rights form, in which Kinne agreed he was pleading guilty to a class A felony, for which "the maximum penalty is 15 years and the minimum penalty is 7

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