Opinion
C.A. PM-2019-9762 P1 2013-3128A
02-05-2020
AMILIO FELICIANO v. STATE OF RHODE ISLAND
For Plaintiff: Christopher S. Gontarz, Esq. For Defendant: Judy Davis, Esq.
For Plaintiff: Christopher S. Gontarz, Esq.
For Defendant: Judy Davis, Esq.
DECISION
CARNES, J.
Amilio Feliciano (Petitioner) has filed an application for postconviction relief (hereinafter, Application) with this Court. After appointment of counsel to assist Petitioner, the matter is presently before the Court on Petitioner's motion for summary judgment. Petitioner asserts two theories in support of his Application: (1) that his counsel rendered constitutionally ineffective assistance of counsel and (2) that his nolo contendere plea was in violation of his constitutional rights and Super. R. Crim. P. 11 (hereinafter, Rule 11). Specifically, Petitioner maintains that his attorney failed to advise him that his plea would subject him to community supervision pursuant to G.L. 1956 §§ 13-8-30, 13-8-32 and 13-8-33 (hereinafter, community supervision) and therefore that the Court violated Rule 11 when it accepted the plea without any colloquy relative thereto. The matter is before this Court pursuant to G.L. 1956 § 10-9.1-1 and Super. R. Civ. P. 56.
In his original Application, Petitioner has asserted other theories in support of his Application. None of those theories has been meaningfully addressed during these proceedings. Petitioner has expressly waived those theories on the record. This Court deems them waived. See State v. Barros, 148 A.3d 168, 175 (R.I. 2016) (holding "[t]he raise-or-waive rule requires that objections are to be raised at trial so that opposing counsel has an opportunity to respond appropriately to claims raised") (internal quotation omitted).
I
Facts and Travel
On October 21, 2013, the State of Rhode Island (State) filed an indictment against Petitioner for five counts of first and second degree child molestation. Petitioner was arraigned on October 23, 2013. Not guilty pleas were entered, and Petitioner's case proceeded through the courts until April 26, 2017 when Petitioner entered a plea of nolo contendere to charges of first degree child molestation as charged in counts one and four. He received a sentence of twenty years with nine years to serve and the balance suspended with probation on each count to run concurrently. In addition, Petitioner was ordered to have no contact with the victim, register as a sex offender, and receive counselling pursuant to the sex offender program. In return for Petitioner's pleas to counts one and four, the State dismissed counts two, three, and five of the indictment. For the purposes of this hearing, all material facts are not in dispute. Affidavits filed by Petitioner and his counsel at the time of his plea, as well as a transcript of the plea colloquy demonstrate that community supervision was never discussed or mentioned. Further, Petitioner alleges in his affidavit he would not have entered the plea if he had knowledge of the community supervision requirement. None of the allegations in the affidavits are challenged by the State.
The indictment charged Petitioner with first degree child molestation in counts one, four and five under G.L. 1956 §§ 11-37-8.1 and 11-37-8.2. The indictment further charged Petitioner with second degree child molestation in counts two and three under §§ 11-37-8.3 and 11-37-8.4.
II
Standard of Review
A
In Rhode Island, '"[p]ost-conviction relief is available to a defendant convicted of a crime who contends that his [or her] original conviction or sentence violated rights that the state or federal constitutions secured to him [or her]."' Otero v. State, 996 A.2d 667, 670 (R.I. 2010) (quoting Ballard v. State, 983 A.2d 264, 266 (R.I. 2009)). A defendant may petition for postconviction relief by asserting:
"(1) That the conviction or the sentence was in violation of the constitution of the United States or the constitution or laws of this state;
"(2) That the court was without jurisdiction to impose sentence;
"(3) That the sentence exceeds the maximum authorized by law, or is otherwise not in accordance with the sentence authorized by law;
"(4) That there exists evidence of material facts, not previously presented and heard, that requires vacation of the conviction or sentence in the interest of justice;
"(5) That his or her sentence has expired, his or her probation, parole, or conditional release unlawfully revoked, or he or she is otherwise unlawfully held in custody or other restraint; or
"(6) That the conviction or sentence is otherwise subject to collateral attack upon any ground of alleged error heretofore available under any common law, statutory or other writ, motion, petition, proceeding, or remedy; may institute, without paying a filing fee, a proceeding under this chapter to secure relief." Section 10-9.1-1(a).
"[A]n applicant bears the burden of proving, by a preponderance of the evidence, that he [or she] is entitled to postconviction relief." Burke v. State, 925 A.2d 890, 893 (R.I. 2007). "Generally, 'in the case of someone who has entered a plea of nolo contendere, [t]he sole focus of an application for post-conviction relief . . . is the nature of counsel's advice concerning the plea and the voluntariness of the plea.'" State v. Gibson, 182 A.3d 540, 552 (R.I. 2018) (quoting Guerrero v. State, 47 A.3d 289, 300 (R.I. 2012)).
B
Summary Judgment
When deciding a motion for summary judgment, the trial justice must keep in mind that it '"is a drastic remedy and should be cautiously applied."' Steinberg v. State, 427 A.2d 338, 339-40 (R.I. 1981) (quoting Ardente v. Horan, 117 R.I. 254, 256-57, 366 A.2d 162, 164 (1976)). "Thus, '[s]ummary judgment is appropriate when, viewing the facts and all reasonable inferences therefrom in the light most favorable to the nonmoving party, the [C]ourt determines that there are no issues of material fact in dispute, and the moving party is entitled to judgment as a matter of law.'" Quest Diagnostics, LLC v. Pinnacle Consortium of Higher Education, 93 A.3d 949, 951 (R.I. 2014) (quoting Peloquin v. Haven Health Center of Greenville, LLC, 61 A.3d 419, 424-25 (R.I. 2013)). However, only when the facts reliably and indisputably point to a single permissible inference can this process be treated as a matter of law. Steinberg, 427 A.2d at 340. During a summary judgment proceeding, the court does not pass upon the weight or credibility of the evidence. See DeMaio v. Ciccone, 59 A.3d 125, 130 (R.I. 2013).
The party who opposes the motion for summary judgment "carries the burden of proving by competent evidence the existence of a disputed material issue of fact and cannot rest on allegations or denials in the pleadings or on conclusions or legal opinions." Accent Store Design, Inc. v. Marathon House, Inc., 674 A.2d 1223, 1225 (R.I. 1996); see also McAdam v. Grzelczyk, 911 A.2d 255, 259 (R.I. 2006). In this context, "'material' means that a contested fact has the potential to change the outcome of the suit under the governing law if the dispute over it is resolved favorably to the nonmovant." McCarthy v. Northwest Airlines, Inc., 56 F.3d 313, 315 (1st Cir. 1995).
III
Analysis
A
Rule 11
Petitioner asserts that he is entitled to relief because his plea was not made knowingly and voluntarily since he was not informed that, as a direct consequence of his plea, he would be subject to community supervision. In response, the State contends that Petitioner's lack of knowledge that he would be subject to community supervision did not render his plea involuntary, as community supervision is only a collateral consequence of his plea.
It is well settled that in order for a plea to comply with constitutional requirements, "a court which accepts a plea of guilty or nolo must determine that the defendant offers the plea voluntarily and intelligently." State v. Feng, 421 A.2d 1258, 1266 (R.I. 1980). "Waivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences." Brady v. United States, 397 U.S. 742, 748 (1970). Furthermore,
"the voluntariness of a plea should not be determined by whether 'a ritualistic litany of the formal legal elements of an offense was read to [a] defendant,' but by examining 'the totality of the circumstances' and determining 'whether the substance of the charge, as opposed to its technical elements, was conveyed to the accused.'" State v. Williams, 122 R.I. 32, 39, 404 A.2d 814, 819 (1979) (quoting Henderson v. Morgan, 426 U.S. 637, 644 (1976)).
The Fourteenth Amendment made this requirement applicable to the states. See Williams, 122 R.I. at 37, 404 A.2d at 818. Rule 11 of the Superior Court Rules of Criminal Procedure, "adopted [] to formalize procedures for attainment of that constitutional requirement[, ] requires that the trial court shall not accept a plea of guilty or nolo contendere 'without first . . . determining that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea.'" Feng, 421 A.2d at 1266-67 (quoting Rule 11). Therefore, a plea that is not entered into knowingly and voluntarily constitutes a violation of both due process and Rule 11 entitling an individual to postconviction relief. See § 10-9.1-1.
As Rhode Island cases have made clear, '"[a] defendant need only be made aware of the direct consequences of his plea for it to be valid."' Beagen v. State, 705 A.2d 173, 175 (R.I. 1998) (quoting State v. Figueroa, 639 A.2d 495, 499 (R.I. 1994)). At issue is whether the community supervision statute imposing community supervision is a collateral or direct consequence of a sentencing. "A consequence is deemed collateral, rather than direct, if its imposition 'is controlled by an agency which operates beyond the direct authority of the trial judge.'" Beagen, 705 A.2d at 175 (quoting Figueroa, 639 A.2d at 499).
In Furlong v. State, No. KM-2018-0320, 2019 WL 3035444, at *10 (R.I. Super. July 3, 2019), Taft-Carter, J. sitting, the Court determined that the community supervision statute was a direct consequence of a defendant's nolo contendere plea for first-degree child molestation. Id. In reaching this conclusion, the Court determined that the Parole Board, and not the Court, is responsible for imposing the supervision and is given broad authority over the administration of the supervision by statute. Id. at *6. Specifically, the use of conjunctive language within the statute evidenced that the imposition of the supervision illustrated an intention by our Legislature that supervision be a separate and distinct sentence from the original criminal sentence imposed by the trial judge. Id. at *8.
After a review of jurisdictions that have deemed their respective supervision statutes either direct or collateral, the Court, in Furlong, reasoned that Rhode Island's supervision statute reflects those other jurisdictions where the imposition has been deemed a direct consequence. Id. at *9. The Furlong Court found that language in the statute refers to its imposition as a "sentence" and as being "in addition to any other penalty imposed." Id. Based on this language and the broad authority granted to the Parole Board, the Furlong Court found the imposition of the community supervision statute to be a direct consequence of the defendant's plea. Id. at *10. Based on this finding, the Furlong Court vacated the defendant's nolo contendere plea because he had not been advised of the mandatory imposition of the community supervision parole requirements upon release from incarceration prior to the entry of his plea. Id. Accordingly, the nolo contendere plea was not made knowingly and voluntarily and thus did not comport with constitutional requirements. Id.
This Court agrees and adopts the reasoning set forth in Furlong and is satisfied that the mandatory imposition of the community supervision requirements represent a direct and additional punishment which flows directly from the Petitioner's court-imposed sentence. When the reasoning enunciated in Furlong is applied to the Petitioner's case, the Court is compelled to vacate the Petitioner's guilty plea entered in relation to Counts one and four, first-degree child molestation, as the record is bare of any indication that the trial justice informed the Petitioner during his colloquy of the extensive requirements of the supervision statute. See State v. Frazar, 822 A.2d 931, 935 (R.I. 2003); see also Cote v. State, 994 A.2d 59, 63 (R.I. 2010). Likewise, the record is devoid of any indication that Petitioner's counsel informed him of the mandatory imposition of the statute prior to his guilty plea. See Feng, 421 A.2d at 1267 (finding that "[t]he record must affirmatively disclose the voluntary and intelligent character of the plea because a valid waiver of constitutional rights cannot be presumed from a silent record"). Accordingly, this Court is satisfied that the Petitioner has proven by a preponderance of the evidence that his plea was not entered knowingly or voluntarily, thus requiring it be vacated in relation to Counts one and four at this time. See id.
Having found the Petitioner's plea invalid in relation to Counts one and four, the Court must now determine the appropriate remedy. Our Supreme Court has held that the proper remedy for an involuntary plea is a remand to the Superior Court to allow that court to proceed as if the original plea was not entered. Cole v. Langlois, 99 R.I. 138, 146, 206 A.2d 216, 220-21 (1965). Likewise, the United States Supreme Court has similarly held "that a defendant whose plea has been accepted in violation of Rule 11 should be afforded the opportunity to plead anew. . . ." McCarthy v. United States, 394 U.S. 459, 472 (1969). The Supreme Court in McCarthy reasoned that allowing a defendant to plead anew "will insure that every accused is afforded those procedural safeguards, but also will help reduce the great waste of judicial resources required to process the frivolous attacks on guilty plea convictions that are encouraged, and are more difficult to dispose of, when the original record is inadequate." Id.
Thus, when faced with an involuntary plea, as this Court has concluded is the case here, the appropriate remedy is to vacate the original plea and allow the case to proceed as if the plea was not entered. Therefore, this Court will vacate Petitioner's plea.
B
Ineffective Assistance of Counsel
Petitioner also argues that he was denied effective assistance of counsel guaranteed by the Sixth Amendment when Petitioner's attorney failed to advise him about the imposition of the community supervision statute. The State again asserts that community supervision is a collateral consequence of the Petitioner's plea and thus is not a required disclosure by counsel.
The case of Strickland v. Washington, 466 U.S. 668 (1984), adopted by the Rhode Island Supreme Court, is the benchmark decision regarding when the Court is faced with a claim of ineffective assistance of counsel. Navarro v. State, 187 A.3d 317, 325 (R.I. 2018); LaChappelle v. State, 686 A.2d 924, 926 (R.I. 1996). A Strickland claim entails a two-part inquiry, and a petitioner must satisfy both requirements to prevail. First, a petitioner must prove that counsel's performance was deficient in such a way that the attorney was "not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687; Neufville v. State, 13 A.3d 607, 610 (R.I. 2011). Second, a petitioner must show that, even if counsel's performance was deficient, the attorney's shortcomings "prejudiced [petitioner's] defense." Strickland, 466 U.S. at 687.
The first prong of the Strickland analysis evaluates whether counsel's performance "fell below an objective standard of reasonableness." Id. at 688. Reyes v. State, 141 A.3d 644, 654 (R.I. 2016). However, the Sixth Amendment standard is "'very forgiving, "' United States v. Theodore, 468 F.3d 52, 57 (1st Cir. 2006) (quoting Delgado v. Lewis, 223 F.3d 976, 981 (9th Cir. 2000)), and there is a strong presumption that counsel performed competently. Gonder v. State, 935 A.2d 82, 86 (R.I. 2007). "As the Strickland Court cautioned, a reviewing court should strive 'to eliminate the distorting effects of hindsight."' Clark v. Ellerthorpe, 552 A.2d 1186, 1189 (R.I. 1989) (quoting Strickland, 466 U.S. at 689).
A petitioner claiming ineffective assistance of counsel must overcome a heavy burden in proving his claim. See Rice v. State, 38 A.3d 9, 16-17 (R.I. 2012). In the case of a plea, the petitioner must show that there is a reasonable probability that "he would have not entered a guilty plea and would have instead proceeded to trial were it not for the attorney's errors." Hassett v. State, 899 A.2d 430, 434 (R.I. 2006). Moreover, "in the context of a negotiated plea, to prevail on an allegation of ineffective assistance of counsel, the defendant must show that he would have insisted on going to trial and that the outcome of that trial would have been different." Neufville, 13 A.3d at 614 (citing Hill v. Lockhart, 474 U.S. 52, 59 (1985)); see also Figueroa, 639 A.2d at 500.
Having determined that imposition of the community supervision statute is a direct consequence of Petitioner's plea, the failure to apprise the Petitioner of this consequence necessitates a finding that his trial counsel's failure constitutes deficient performance under Strickland. This finding is buttressed by holdings in other jurisdictions which have found that a failure to inform a defendant about a community supervision parole requirement constitutes deficient performance because the requirements act as "an additional part of a defendant's sentence." Calvert v. State, 342 S.W.3d 477, 490 (Tenn. 2011) (finding ineffective assistance of counsel when counsel did not advise defendant of the statute and defendant testified this would have altered his decision making); State v. Smullen, 96 A.3d 317, 322 (N.J.Super.Ct.App.Div. 2014) (finding counsel's failure to alert defendant to the relevant supervision statute prior to entry of plea amounted to deficient performance) Here, the record is devoid of any indication that Petitioner's trial counsel informed him of the community supervision requirements accompanying Counts one and four prior to the entry of his plea. In fact, Petitioner's trial counsel admits to failing to inform the Petitioner about the community supervision requirements. Aff. of Judith Crowell ¶ 5. Accordingly, this error by counsel represents deficient performance.
Next, the Court considers whether the petitioner "would have not entered a guilty plea and would have instead proceeded to trial were it not for the attorney's errors." Hassett, 899 A.2d at 434. Here, the Petitioner submitted an affidavit with his motion for summary judgment where he states that he would not have entered the plea if he had knowledge of the provisions of the community supervision statute.
Petitioner did not, however, provide any evidence or information to suggest the outcome- meaning, a disposition of not guilty-would have been possible had he proceeded with the trial. It is possible he would have been found guilty on all counts and sentenced to life imprisonment, with the maximum for each count running consecutively. This outcome would have subjected him to a life sentence, while his plea agreement subjected him to a full sentence of only twenty years. See Hassett, 899 A.2d at 437 (noting that because there was a strong possibility that the defendant may have received a more severe sentence had he not followed counsel's advice to accept a plea, the defendant could not demonstrate prejudice by counsel's allegedly deficient performance). Therefore, as Petitioner failed to provide any evidence to suggest he would have been acquitted of the charges had the trial proceeded or that his sentence would have been less than twenty years if convicted, this Court finds that he fails to meet the second prong of the Strickland analysis. See Hassett, 899 A.2d at 437. Accordingly, this Court finds that Petitioner's ineffective assistance of counsel claim must fail.
IV
Conclusion
For the reasons stated herein, this Court finds that there are no material facts in dispute. Furthermore, based on the uncontroverted record before this Court, the Court finds that Petitioner has proven by a preponderance of the evidence that he is entitled to postconviction relief. Specifically, Petitioner's plea was not knowing and voluntary as he was not informed that, as a result of his plea, he would be subject to community supervision under §§ 13-8-30, 13-8-32 and 13-8-33. Accordingly, Petitioner's Application is granted, and his plea of nolo contendere to two counts of first degree child molestation is vacated and is remanded to the Superior Court. Additionally, this Court finds that Petitioner was not denied effective assistance of counsel. Petitioner's motion for summary judgment is granted on the grounds stated herein.
Counsel is instructed to prepare an appropriate judgment and order for entry.