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The issue presently before the court in this case is whether the defendant is entitled to collaterally attack the felony sentences he received following his convictions for two counts of driving while certified as an habitual offender, on the ground that the indictments alleged only misdemeanor level offenses. I conclude that the defendant is procedurally defaulted from challenging the sufficiency of the indictments to charge felony level offenses because of his failure to raise the issue before trial, at sentencing, or on direct appeal.

The defendant was convicted on May 6, 1996 of one count of attempted felonious sexual assault, fifty-three counts of exhibiting or displaying child pornography, and 267 counts of possessing child pornography. He now moves for a new trial or, in the alternative, petitions for habeas corpus on the grounds of 1) ineffective assistance of his trial counsel; 2) violation of his First Amendment rights; 3) “failure of the Trial Judge and prosecutor to disclose a close personal and professional relationship;” and 4) prosecutorial misconduct and unfair prejudice which may have affected the jury. The New Hampshire Supreme Court previously upheld the defendant’s convictions. See State v. Cobb, 143 N.H. 638 (1999). As a result, the defendant acknowledges that his petition is a collateral attack on his convictions and concedes that he can only raise the issues in his motion in the context of an attack on the effectiveness of counsel.

The petitioner, Sean Croft, is currently serving two consecutive sentences of 10 to 20 years at the New Hampshire State Prison following his conviction in the Strafford County Superior Court (Fauver, J.) of aggravated felonious sexual assault (AFSA) (RSA 632-A:2, I(a), (b)) and first degree assault (RSA 631:1, I(a)). In this habeas corpus action, Croft originally sought resentencing on the grounds that: (1) his convictions of both AFSA and first degree assault violate the double jeopardy provisions of the state and federal constitutions because the offenses arise out of a single incident; and (2) the trial court committed a further double jeopardy violation when it imposed extended terms of imprisonment for both offense based upon the same factor, i.e., that the defendant "manifested exceptional cruelty or depravity in inflicting . . . serious bodily injury on the victim of his crime[s]." RSA 651:6, I(d).