Opinion
PM-2022-04253
09-12-2023
ROBERT SUDUE v. STATE OF RHODE ISLAND
For Plaintiff: Jason Knight, Esq. For Defendant: Judy Davis, Esq.
For Plaintiff: Jason Knight, Esq.
For Defendant: Judy Davis, Esq.
DECISION
KRAUSE, J.
On June 15, 2021, petitioner Robert Sudue pled guilty to three felonies: assaulting a Providence nightclub security guard with a gun, discharging the firearm during that assault, and unlawfully carrying a pistol without a license. He agreed to accept a thirteen-year term of imprisonment for two of those offenses, and the Court suspended, with probation, a ten-year nonparolable consecutive sentence for the firearm-discharge offense. The state dismissed two other nightclub felonies and three misdemeanors, as well as a Cranston case charging Sudue with six felonies and a misdemeanor which he allegedly committed after he left the nightclub.
Sudue now asserts in a postconviction-relief (PCR) application that he was "not in the right frame of mind" to plead guilty and that his attorney provided him with constitutionally flawed representation.
Sudue professes that at a Frye hearing the prosecutor's narration of the sentencing ranges of all the pending charges, coupled with the Court's explanation that it would not bind itself to a different sentence if Sudue rejected the final disposition offer, so startled and unnerved him that he did not appreciate the rights he was waiving and felt that he had no option but to plead guilty. He contends that his convictions should be vacated because he did not offer his plea knowingly and voluntarily.
The Court disagrees.
General Laws 1956 § 10-9.1-1 cedes to a convicted felon an opportunity to seek postconviction relief if, inter alia, his conviction resulted from a violation of his constitutional rights. An applicant must prove that claim by a preponderance of the evidence, Hazard v. State, 64 A.3d 749, 756 (R.I. 2013); Larngar v. Wall, 918 A.2d 850, 855 (R.I. 2007), and if he alleges that his attorney rendered prejudicially substandard assistance, he must support that challenge by surmounting the two-tiered test prescribed by Strickland v. Washington, 466 U.S. 668, 688 (1984) and adopted by our Supreme Court. E.g. LaChappelle v. State, 686 A.2d 924, 926 (R.I. 1996); Brown v. Moran, 534 A.2d 180, 182 (R.I. 1987).
When he pled guilty under oath, Sudue was represented by an experienced criminal defense attorney. He was a mature and intelligent adult, approaching thirty years of age, and had completed two years of college. He was unaffected by any alcohol or drugs and was appropriately responsive to all of the Court's questions during a searching dialog to ensure that he had not been coerced to plead guilty. He was also personally familiar with the criminal justice system and especially aware of his trial rights, having previously availed himself of all of them at a Massachusetts trial, where, as here, he had also been charged with criminally possessing a firearm and had secured an acquittal.
Sudue's claims and his testimony at the July 20-21, 2023 PCR hearing are far astray from the credible evidence.
The Charges
The charges arose from unpleasantries exchanged among and between Sudue, his codefendant Dajour Hutchins, and others at a Providence nightclub on August 19, 2019. After Sudue and Hutchins were ejected, they retrieved handguns and immediately headed back to the club. A video surveillance camera captured Hutchins firing numerous shots, seriously wounding a patron, and Sudue pointing a revolver at Michael Bolden, one of the club's bouncers. Not seen on the video is Sudue firing his weapon, which Bolden recounted to the police when he was reinterviewed some months later.
After the shooting, both men fled in separate vehicles. Later that night Cranston police stopped a car driven by Derek Mensah. Sudue, the lone passenger, ran but was caught after a foot chase. After apprehending him, the police recovered a .38-caliber revolver along the pursuit path. Laboratory analysis disclosed Sudue's DNA on the gun, which had been reported stolen. The police also found a plastic bag containing numerous oxycodone tablets in the pocket of the passenger seat where Sudue had been sitting. The state initially charged both men with six felonies relating to firearm and drug offenses and a misdemeanor. (P2/20-0650ABG.) Mensah, who was not charged with any of the nightclub offenses, was ultimately relieved of the felony charges when he pled to a reckless driving misdemeanor on April 13, 2021. All of the felonies, along with a misdemeanor obstruction count, remained pending against Sudue.
The nightclub case charged Sudue with five felonies: assault with a dangerous weapon upon Bolden (Count 3), discharging a firearm during that crime of violence, without causing injury (Count 4), three additional firearm-related offenses (Counts 5, 6, 7), and three misdemeanors (Counts 8, 9, 10). Hutchins was joined with Sudue in Counts 5, 6, 7, and in all of the misdemeanors. He was separately charged in Counts 1 and 2 with assault and battery with serious injury and discharging a firearm during that crime of violence which resulted in injury to the club patron. (P2/20-0636ABG.)
The cases were conferenced with counsel for the parties on multiple occasions between December 15, 2020 and June 8, 2021, with principal focus on the nightclub case. At the initial conference, the state suggested prison terms of twenty years for Sudue and twenty-five years for Hutchins. Without determining specific sentences, the Court indicated that it seemed to be a "double-digit" case. Counsel alerted Sudue of all the sentencing commentary after that conference, and he agreed with her suggestion to seek a ten-year term, as there was no evidence on the videotape or in Bolden's initial statement that Sudue had fired his gun at the nightclub. On May 19, 2021, however, the state notified counsel and the Court that in a recent interview Bolden said that Sudue had, in fact, discharged his weapon.
At the July 21-22, 2023 PCR hearing, counsel's contemporaneous file notes were submitted without objection (Exhibit A), which chronicled counsel's activities with and on behalf of Sudue. Some of this section refers to that log, along with testimony from the PCR hearing relating to those notes.
At a June 8, 2021 conference, the Court undercut the prosecutor's recommendations and firmly settled on a thirteen-year term of incarceration for Sudue and an eighteen-year prison term for Hutchins, stating that those were the Court's final offers. It was contemplated that Sudue would plead to Counts 3, 4, and 6. On Count 3 (the felony assault upon Bolden), Sudue would be ordered to serve six years, and on Count 6 (unlawfully carrying a pistol), he would receive a seven-year consecutive term. On Count 4 (discharging a firearm during the felony assault without causing injury), the Court agreed not to impose any term of incarceration and, instead, would suspend, with probation, all of the statutorily-mandated nonparolable ten-year term and, as also mandated by statute, apply it consecutively to the thirteen-year period of incarceration. In exchange, the state would dismiss the two remaining nightclub felonies and all three misdemeanors, as well as the entire Cranston case.
A Frye hearing was scheduled for June 15, 2021 for both defendants. The Court advised the attorneys that since these were final offers, if a defendant rejected the proposed disposition, the Court would not thereafter bind itself to another sentence, a customary measure familiar to Sudue's attorney, who relayed the final proposal and the Frye hearing procedure to Sudue.
At a Frye hearing, a defendant is offered the choice of accepting the proposed disposition or, instead, rejecting it and opting for a trial, with full awareness of all of the potential consequences to which he may be exposed if convicted after a trial. See page 2 of the plea form (court's certification), and infra at 20. The principal purpose of the hearing is to ensure that there is a record apprising the defendant of the offer and range of sentences in the pending charges, thereby protecting a defense attorney from a postconviction-relief challenge that counsel had not notified him of the proposed disposition in the event of a subsequent adverse sentence and/or other unfavorable consequences. See Missouri v. Frye, 566 U.S. 134 (2012). At the PCR hearing, trial counsel testified, and Sudue does not dispute, that she had explained a Frye proceeding to him. (PCR Tr. at 104.).
Counsel scheduled a June 10, 2021 meeting with Sudue "to go through everything and discuss [the] offer and options" with him. See Ex. A. He failed to appear, and counsel began receiving calls from other lawyers, which indicated to her that Sudue was considering hiring a different attorney. On the morning of June 15, 2021, the day of the Frye hearing, counsel noted in her file that she had sent a text message to Sudue telling him about the calls from other attorneys and that she was unclear about his intentions. She reminded him, however, that he was expected at court at 2:00 p.m. for the Frye hearing. Sudue replied that he did not want to accept the disposition and wanted another attorney "to fight this." Id.
Counsel recorded in her file that she sent him another message "[to] remind him that ultimately the decision is his," and she warned him "that once he rejects [the] offer it is off the table and, should we go to trial and lose, the sentence will most certainly be worse[.]" Counsel complied with Sudue's request to meet at the courthouse before the hearing, where he told her that he did not want to accept the offer. He also said that he did "not want to go into jail today." With Sudue's concurrence, counsel offered to ask the Court if it would stay execution of the sentence. Id.
Counsel for both Hutchins and Sudue then met with the Court. Hutchins's attorney said that his client would accept the offer, requiring him to serve eighteen years, followed by a nonparolable twenty-year suspended/probationary term. Counsel for Sudue related that he did not want to accept the disposition but that he was nevertheless seeking a stay of execution of the sentence. The Court postponed the Frye hearing for an hour so that Sudue could continue to confer with his family and friends and further consider the disposition, which, in any case, he had known about for several days. Hutchins expected to begin serving his sentence immediately upon imposition of sentence that day, and the Court declined the request by Sudue's attorney to stay execution of sentence. After about an hour, Sudue told counsel that at the Frye hearing he intended to pass the case for trial.
At the PCR hearing, trial counsel confirmed, as was recorded in her file, that she had warned Sudue to expect a longer sentence if convicted at trial if he rejected the proposed disposition. Although she mentioned a potential forty-year term, she told him that she believed it would more likely fall between twenty and thirty years. (PCR Tr. at 125-26.) Sudue testified that she had never said that. He claimed that "all she ever told me I was going to get was the max. She never told me, If you go to trial you're looking at 40 years or -- no. We never discussed nothing like that." (PCR Tr. at 53.)
The June 15, 2021 Frye Hearing
After Sudue had conferred with counsel and others, the Court commenced the Frye hearing. The prosecutor outlined the proposed disposition and then identified the pending offenses alleged in both cases, noting that the maximum statutory range of the sentences aggregated 186 years. (Plea Tr. at 1-3.) Thereafter, the following colloquy with the Court, counsel, and Sudue ensued:
"THE COURT: [Counsel], I take it you have had ample time and opportunity to discuss with your client the proposed disposition that the State has put forward?
"[COUNSEL]: Yes, Your Honor.
"THE COURT: Of course, I make no prejudgment as to whether or not the State can prove any of these charges, the charges before the Court in the 0636 case or the Cranston case, P2-20-0650. Those matters would have to be determined after a full trial by jurors, not this Court.
"In any event, if convicted at any such trial, this Court would certainly have a sentencing hearing, hear from counsel, look at all documents, presentence reports and the like. On the other hand, it may very well be that the State could be unsuccessful in proving these charges. As I said, I don't prejudge any of them.
"In any event, I need to know, [counsel], what your client's position is, whether he wishes to proceed to trial or whether he wishes to dispose of the case this afternoon?
"[COUNSEL]: Your Honor, at this time my client would object to the State's offer and exercise his right to have a trial.
"THE COURT: Mr. Sudue, I need to hear directly from you what your desires are. You certainly have a fundamental right to trial on each and every count in both cases, or you can take advantage of the offer that has been put before you.
"In any event, please know that if you decide to proceed to trial and do not wish to dispose of the case this afternoon relative to the offers that have been proposed, this Court, meaning me, will no longer involve itself in any binding plea negotiations whatsoever and the case will proceed to trial.
"If, on the other hand, during the course of the time between now and the time of trial you decide that you want to dispose of any of these charges and plead guilty, whatever those counts are that are agreed upon by you and your lawyer and the State, this Court will not in any way bind itself to a disposition or any kind of a sentence that is being proposed today. In other words, the offer is off the table.
I will no longer involve myself in any further plea negotiations of a binding nature.
"So, what is your desire, Mr. Sudue?
"THE DEFENDANT: I'll take the deal.
"[COUNSEL]: Can I just have a few moments with him, Your Honor, to go over the form?
"THE COURT (addressing counsel and Sudue): Just a minute. Before you disappear.
"[COUNSEL]: Yes, Your Honor.
"THE COURT: Mr. Sudue, up until just a moment ago I was informed that you want to exercise your right to trial. Within minutes you have now said you want to take "the deal," your words. I want to be sure and certain that the steps and measures that you take to resolve this case, and the so-called "take the deal," are decisions that you have made. You surely should listen to your counsel's advice, whatever that may be, but in the end it is your call, your decision, and I want to be sure that you mean what you say, that you wish to take advantage of the so-called "deal." Am I correct?
"THE DEFENDANT: Yes.
"THE COURT: You sit with [your attorney] and fill out the plea form as she explains it to you, and I'll take a recess." Id. at 3-6.
Sudue, his cousin Noel Stemn, counsel, and his girlfriend Tanisha (who did not testify at the hearing) then gathered privately elsewhere within the courthouse, where counsel began reviewing the plea affidavit with Sudue. Meanwhile, Stemn called "Hector," a family member who was a lawyer. Stemn testified that he did not know what Sudue and his attorney were discussing when he spoke to Hector, who could offer no advice. Stemn passed the phone to Sudue, who, Stemn said, spoke briefly to Hector. (PCR Tr. at 81.)
Counsel testified that when Sudue took the phone, she stopped and waited until he had finished the conversation before resuming her discussion with him. She testified that when she had completed explaining the plea form to him, there was no question in her mind that he understood it, that he agreed with its terms, and he then signed it. Id. at 119-20.
The Guilty Plea
After the recess, the Court reconvened the proceedings with both defendants present. For ready reference, relevant colloquy and dialog drawn from pages 6-20 of the June 15, 2021 plea transcript is set forth with pages noted in the margin, eliminating where practicable the portions relating to Hutchins.
P. 6: "THE CLERK: The matter before the Court is State of Rhode Island versus Dajour Hutchins and Robert Sudue, case number P2-2020-0626A and BG, on for a disposition.
"THE COURT: Swear both of the defendants, please.
SUDUE and HUTCHINS DULY SWORN
P. 7: "THE COURT: I have two plea forms in front of me, one by Mr. Hutchins and by Mr. Sudue. I'm going to ask the sheriff to pass these plea forms to the respective defendants and ask you, Mr. Hutchins and Mr. Sudue, whether those are documents that you read and signed.
"Mr. Sudue, is that your signature on that plea form?
"DEFENDANT SUDUE: Yes, Your Honor.
P. 9: "THE COURT: Mr. Sudue, how old are you?
"DEFENDANT SUDUE: Twenty-eight, Your Honor.
"THE COURT: How far did you go in school?
"DEFENDANT SUDUE: Two years of college.
P. 9 /10: "THE COURT: Are you satisfied with the assistance of your lawyer?
"DEFENDANT SUDUE: Yes.
"THE COURT: Is there any question in your mind about that?
"DEFENDANT SUDUE: No.
"THE COURT: And have you had any drugs or alcohol or medication or marijuana in the last 24 hours?
"DEFENDANT SUDUE: No."
The Court reviewed the requisite immigration admonitions with both defendants, none of which applied, and thereafter addressed Hutchins regarding his guilty pleas and the expected disposition of his charges. (Plea Tr. at 10-12.) The Court then engaged Sudue in a dialog to confirm that he was fully aware of the charges, that he agreed with the prosecutor's statement of facts, that he fully understood the consequences of his plea, and that he was pleading guilty voluntarily and of his own accord, without any coercion:
PP. 12/13: "THE COURT: [Counsel], if you would be so kind, please, as to indicate upon the record what your client expects to plead to and the counts involved.
"[COUNSEL]: My client is requesting permission to plead guilty to the following counts: Count 3, felony assault, in exchange for six years at the ACI to serve. Count 4, use of a firearm while committing a crime of violence, that would be a ten-year ACI suspended sentence, with ten years probation. That sentence would be nonparolable and would run consecutive to Count 6. Count 6, which is one count of carrying a pistol without a license, would carry a flat sentence of seven years to serve. That seven years to serve would be consecutive to the six years in Count 3. For a total of 13 years to serve, followed by ten years suspended with probation, nonparolable, consecutive to the jail time. In exchange for that, all remaining counts in case number P2-2020-0650AG would be dismissed in its entirety.
"THE COURT: Mr. Sudue, do you agree with what your lawyer has placed upon the record and advised the Court?
"DEFENDANT SUDUE: Yes.
P. 14: "THE COURT: I'll hear from the State as to the various charges, please, respectively.
"[THE PROSECUTOR]: "Your Honor, had these matters proceeded to a trial, the State was prepared to prove beyond a reasonable doubt, that on August 18 into August 19, 2019, in the City of Providence, these two defendants, Dajour Hutchins and Robert Sudue, both of the Commonwealth of Massachusetts, went to a nightclub located at 727 Cranston Street, specifically Club Flow. While at that nightclub they were asked by club security at a certain point that night to leave based on their conduct inside the club, but they didn't leave. They walked to their vehicles, both returned with firearms; Dajour Hutchins, a nine-millimeter semi-automatic pistol; Robert Sudue had a .38-caliber revolver.
"As captured by club security surveillance videos, Mr. Sudue ultimately reentered the club brandishing that .38-caliber revolver. He initially pointed it at a female employee until a security guard, Michael Bolden, told him to point it at him, which Mr. Sudue then pointed at Bolden's chest, telling him to back up. At a later point, Robert Sudue pointed the gun at various individuals inside the club.
P. 15: "Robert Sudue also fired within the parking lot.
P. 16: "As to Count 3, that Robert Sudue committed an assault with a dangerous weapon, to wit, that .38-caliber revolver on Michael Bolden. As to Count 4, that Sudue used that firearm, the .38-caliber revolver, resulting in no injury from its use. And as to Count 6, both of them, that is, Dajour Hutchins, carried a firearm, to wit, a nine-millimeter semi-automatic pistol on his person and in his motor vehicle, without a license to do so. And that Mr. Sudue carried a firearm, a .38-caliber revolver on his person, without a license to do so.
"THE COURT: Mr. Sudue, do you agree with what the State's attorney has told me as to your activities?
"DEFENDANT SUDUE: Yes.
"THE COURT: Each of you has a right to trial on the charges. You would have been presumed innocent.
PP. 16/17: "You would not have had to testify or present evidence.
"The State would have been required to prove your respective guilt beyond a reasonable doubt.
"And you would have had the right to confront and cross-examine the State's witnesses.
"If convicted, you could have appealed any convictions to the Supreme Court.
"If I accept your respective pleas to these charges, your trial rights and your rights of appeal are waived, and they disappear.
"THE COURT: Do you understand that, Mr. Sudue?
"DEFENDANT SUDUE: Yes, Your Honor.
"THE COURT: If I accept your pleas, you cannot withdraw them without permission of the Court.
"And you give up any right in the future to ask the Court to reduce your sentences.
"Do you understand that, Mr. Sudue?
"DEFENDANT SUDUE: Yes, Your Honor.
PP. 17/18: "THE COURT: Mr. Sudue, has anybody forced you or coerced you to plead guilty to these charges? I cannot hear you.
"DEFENDANT SUDUE: I thought it wasn't a lot of time, but at the end of the day, I made the decision. So, no, I do not feel I was coerced.
"THE COURT: No, you what?
"DEFENDANT SUDUE: No, I do not feel like I was coerced.
"THE COURT: Do you feel that you have been rushed into this plea and you are not fully on board with this? I'm asking you, Mr. Sudue, whether you have been rushed into making this guilty plea to these charges or whether you need more time to consider these charges, because you have had ample time and I have told you that if you decide not to take advantage of this so-called "deal," as you described it, you can go to trial, but I want to be sure that if I accept your plea, as you said it was your decision to make, and that you did make this decision before we took a recess, I ask you now again, are you pleading guilty because, in fact, you did commit these offenses and because you have not been forced, you have not been coerced, you have not been pushed into making these pleas?
"DEFENDANT SUDUE: Yes.
"THE COURT: Yes, what?
PP. 18/19: "DEFENDANT SUDUE: Yes, I'm making the decision to accept the charges.
"THE COURT: Any question in your mind at all?
"DEFENDANT SUDUE: No.
"THE COURT: Are you pleading guilty to these offenses because, in fact, you did commit them?
"DEFENDANT SUDUE: Yeah.
"THE COURT: I don't want to hear, Mr. Sudue, a week from now, a year from now, or some other time that you were forced into making this plea.
"As we sit here today and speak to one another, are you fully comfortable with the decision you have made?
"DEFENDANT SUDUE: Yes.
"THE COURT: All right. I'm satisfied then that the defendants understand the nature of what the proceedings involve.
"THE COURT: Mr. Sudue, do you plead guilty or not guilty to these charges?
"DEFENDANT SUDUE: Guilty.
PP. 19/20: "THE COURT: Each of the defendants understand[s] the rights he's giving up. And I'm satisfied that the pleas are made knowingly and voluntarily, with full awareness of the consequences. And that there is a factual basis for the charges as filed against them. And the pleas will be accepted.
"THE COURT: [L]et me ask you, Mr. Sudue, is there anything you desire to speak upon the record now? As I say, you don't have to say anything, but if you want to, you may. Is there anything you want to say?
"DEFENDANT SUDUE: No, Your Honor."
Rule 11 Pleas
A trial justice cannot accept a proffered guilty plea unless, pursuant to Rule 11 of the Superior Court Rules of Criminal Procedure, the court addresses the defendant directly and determines that the plea is offered voluntarily, with an understanding of the nature of the charges and the consequences of acknowledging his or her guilt. "The sole focus of an application for post-conviction relief by an applicant who has pled guilty is the nature of counsel's advice concerning the plea and the voluntariness of the plea." Miguel v. State, 774 A.2d 19, 22 (R.I. 2001) (internal citations omitted); accord, Gonder v. State, 935 A.2d 82, 85-87 (R.I. 2007). In Njie v. State, 156 A.3d 429 (R.I. 2017), the Court wrote:
Rule 11 provides in pertinent part:
"A defendant may plead not guilty, guilty or, with the consent of the court, nolo contendere. The court may refuse to accept a plea of guilty and shall not accept such plea or a plea of nolo contendere without first addressing the defendant personally and determining that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea. *** The court shall not enter a judgment upon a plea of guilty or nolo contendere unless it is satisfied that there is a factual basis for the plea."
"Pursuant to Rule 11, a hearing justice should engage in as extensive an interchange as necessary so that the record as a whole and the circumstances in their totality will disclose to a court reviewing a guilty or nolo plea that the defendant understood the nature of the charge and the consequences of the plea. This Court will not vacate a plea unless the record viewed in its totality discloses no facts that could have satisfied the [hearing] justice that a factual basis existed for a defendant's plea." Njie, 156 A.3d at 434 (internal citations omitted) (emphasis added).
"On the other hand, Rule 11 is not intended to serve as a trap for those justices who fail to enumerate each fact relied on to accept such a plea." Camacho v. State, 58 A.3d 182, 186 (R.I. 2013) (internal citations omitted). After completing the proceedings "the trial justice should be able to say with assurance that the accused is fully aware of the nature of the charge and the consequences of the plea." Id. That objective may be met in three ways, by:
(1) the judge explaining the essential elements of the offense to the defendant;
(2) defense counsel's representing that he or she had explained the elements to the client; and,
(3) the defendant himself acknowledging the facts constituting the elements of the alleged crime. Id.
The test, said the Camacho Court, is not whether the trial court adequately explained the charges in detail, "element by element, and fact by fact, but, more importantly, whether the defendant understood them. A finding may be based on the record viewed in its totality." Id. As Justice O'Connor emphasized in Bradshaw v. Stumpf, 545 U.S. 175 (2005):
"While the court taking a defendant's plea is responsible for ensuring 'a record adequate for any review that may be later sought,' Boykin v. Alabama, 395 U.S. 238, 244 (1969), we have never held that the judge must himself explain the elements of each charge to the defendant on the record. Rather, the constitutional prerequisites of a valid plea may be satisfied where the record accurately reflects that the nature of the charge and the elements of the crime were explained to the defendant by his own, competent counsel." Bradshaw, 545 U.S. at 183.
A petitioner bears the burden of demonstrating by a preponderance of the evidence that he did not intelligently and understandingly waive his rights. Camacho, 58 A.3d at 186; State v. Figueroa, 639 A.2d 495, 498 (R.I. 1994). "[A]n intelligent plea does not necessarily mean that the plea is wise. Rather, it indicates that defendants are aware of the consequences of their pleas." Moniz v. State, 933 A.2d 691, 696 (R.I. 2007).
In assessing Sudue's plea and viewing the record in its totality, this Court has considered, among other pertinent factors, Sudue's age and maturity, his level of education and literacy, his prior experience with the criminal justice system, the absence of any drugs or alcohol, a factual basis for the charges and Sudue's stated agreement with it, as well as the explicit language of the plea affidavit which he signed. See, e.g., Njie, 156 A.3d at 434-35; Ouimette v. State, 785 A.2d 1132, 1136 (R.I. 2001); State v. Feng, 421 A.2d 1258, 1268-69 (R.I. 1980).
Every one of those factors is in play in this case, together with this Court's colloquy with Sudue, as well as the reliable testimony of his trial attorney, in marked contrast to Sudue's dissembling statements at the PCR hearing.
When Sudue pled guilty under oath, he was almost thirty years old and acknowledged that he was "fairly well educated," having accumulated two years of college, although he tried to downplay it by a year at the PCR hearing. He was not under the influence of any drugs or alcohol, and he unhesitatingly expressed his agreement with the prosecutor's statement of facts underlying the offenses. (Plea Tr. at 9; PCR Tr. at 6, 59.)
The Court readily accepts counsel's testimony assuring the Court that after having gone through the plea form with Sudue, she was confident that he understood it and accepted it when he signed it. Sudue never thereafter renewed his desire for a trial. "[I]n evaluating the validity of [defendant's] plea, we are reluctant to accord much weight to [defendant's] post hoc reevaluation of the wisdom of the [plea] bargain." Bradshaw, 545 U.S. at 186. And where, as here, "a defendant is represented by competent counsel, the court usually may rely on that counsel's assurance that the defendant has been properly informed of the nature and elements of the charge to which he is pleading guilty." Id. at 183.
The Court does not at all accept Sudue's claim that he had been rushed to complete the plea affidavit because he purportedly did not want to annoy the Court if he decided to change his mind. (PCR Tr. at 33-34.) Sudue had known of the proposed disposition long before the June 15, 2021 Frye hearing; and, even on that day, the Court postponed the hearing and accorded him additional time to consider it. Furthermore, his assertion is not at all borne out by the record. During its colloquy with Sudue, the Court provided him with numerous opportunities to protest or in some way alert the Court that he had been rushed or precipitously steered back to the courtroom. He never suggested or in any way signaled any such apprehension or misgiving, right up to his opportunity of allocution. Very much to the contrary, Sudue denied any such uneasiness. (Plea Tr. at 18-20.)
Counsel testified that although she was aware that the Court was about to reconvene, she did not feel that they had been rushed. She said that, by then, there was nothing she hadn't explained to Sudue before the proceedings resumed. (PCR Tr. at 123.) And, as noted above, several days earlier, after she had conveyed the final proposed disposition to Sudue, he considered it fully and had apparently thought about changing attorneys. He never did, and under oath he twice repeated his complete satisfaction with counsel. (Plea Tr. at 9-10.)
The Court fully credits counsel's testimony that after she had finished explaining the plea affidavit and the process to Sudue, she really had nothing more to add when the Frye hearing resumed. This Court finds that Sudue's protestation that he was unceremoniously herded back to the courtroom unprepared and not wanting to change his plea is entirely without credibility.
Sudue also contends that the absence of his initials next to each right listed on the plea affidavit signifies that he had little or no appreciation or understanding of them and that he therefore could not have intelligently waived them. The Court rejects that assertion. Counsel as well as the Court reviewed with Sudue the rights he would surrender if he pled guilty. The Court finds credible counsel's testimony that she was well satisfied that after going through the plea form with Sudue, he fully appreciated and understood that he would be relinquishing the rights listed within the plea affidavit.
Some consideration of the admissibility of Mirandized statements may be useful here. When a custodial defendant confesses or makes a statement, the prerequisite for its admissibility at trial corresponds to the requirements of accepting a Rule 11 guilty plea. In each instance their validity is premised on the defendant "knowingly, intelligently, and voluntarily" waiving fundamental constitutional rights. State v. Yon, 161 A.3d 1118, 1125 (R.I. 2017); Miranda v. Arizona, 384 U.S. 436 (1966). At a trial, it is the state's burden to demonstrate those requisite criteria by clear and convincing evidence. Yon, 161 A.3d at 1125. The circumstances are markedly different, however, in the context of a postconviction relief action, where the petitioner is obliged to prove by a preponderance of the evidence the invalidity of his plea. Camacho, 58 A.3d at 186- 87; Figueroa, 639 A.2d at 498. Although the relevant burden is lessened for a PCR applicant, it is nonetheless Sudue's onus.
Many less educated individuals without Sudue's maturity and educational advantages have waived paramount and fundamental constitutional rights in critical settings with far-reaching effects and while in custodial settings. See State v. Crowhurst, 470 A.2d 1138, 1142-43 (R.I. 1984); State v. Ferola, 518 A.2d 1339, 1346 (R.I. 1986). See also State v. Lassor, 555 A.2d 339, 348 (R.I. 1989). In Crowhurst, the Court observed, "In determining whether an individual understands his constitutional rights, we must consider several factors, including, of course, the level of a suspect's educational attainments . . ., or by personal . . . contacts either with the police or with the courts." Crowhurst, 470 A.2d at 1142. See United States v. Kiendra, 663 F.2d 349, 352 (1st Cir. 1981) ("An explicit written [rights] waiver is strong evidence of a knowing and intelligent act."). Defendant Kiendra, the antithesis of Sudue, had a ninth-grade education, had been on a hunger strike, and had spent thirty days in solitary confinement, which still did not prevent the admissibility of his statement.
The Court assigns no credibility to Sudue's assertion that he was too unnerved and "not in the right frame of mind" to appreciate his rights when he offered his plea. (Sudue's Mem. 6.) Sudue is without any trustworthy basis to avow that when he pled guilty he was somehow uninformed of the fundamental rights a defendant enjoys at trial and the consequences of surrendering them. After all, save for pursuing an appeal after conviction, he exercised all of those rights when, previously accused of a felony firearm offense in Massachusetts, he contested the charge and obtained an acquittal after trial. (PCR Tr. at 29.) Any notion that he did not appreciate those concepts when he pled guilty under oath carries no weight whatsoever.
Reference to the language of the plea affidavit which Sudue executed also significantly diminishes his claims. The acknowledgment prefacing the list of rights on the plea form recites:
"I will be admitting sufficient facts to substantiate the charge(s) which has (have) been brought against me in the case to which this plea relates. I understand that by changing my plea I will be giving up and waiving each and all of my rights as follows:" [Rights listed thereafter.]
And at the conclusion of the plea affidavit, there is this coda:
"I have discussed the entire contents of this form with my attorney, who has explained it to me. I have no questions as to what it states or what it means, and I understand it completely."
The Rhode Island Supreme Court considers sworn affidavits as "inherent indicia of reliability," and "the statements asserted therein [are] regarded as truthful and the document is therefore available as evidence of the facts stated." Ferrell v. Wall, 889 A.2d 177, 184 (R.I. 2005) (quoting In re Testa, 489 A.2d 331, 335 (R.I. 1985)). More specifically, the Supreme Court has said that a plea affidavit executed under oath by a literate, mature adult with college experience reflects the defendant's clear understanding of its contents and import:
"We believe that a literate defendant with a college education can readily comprehend the statement that his attorney has explained to
him the nature of the charge and the consequences of the plea. A college-educated defendant who is willing to swear to such a statement provides the trial court with a reliable indication that the out-of-court explanation, attested to in the affidavit, has actually occurred." Feng, 421 A.2d at 1268-69.
It is the Court's opinion, from its vantage point as a front-row observer of the proceedings, both at the time of Sudue's plea and after considering his testimony at the PCR hearing, that his professed ignorance of those basic rights and the effect of surrendering them overruns even the most elastic bounds of credulity.
Sudue's reliance on Desamours v. State, 210 A.3d 1177 (R.I. 2019) is misplaced. (PCR Tr. at 142-43.) In Desamours, the Court sustained a bare-bones plea colloquy. Desamours's attorney had no recollection of representing him but said that because she routinely went through the plea form with her clients and would not proceed absent their understanding of the process, she assumed that she had applied the same practice with Desamours. Moreover, the Desamours Court additionally relied on the doctrine of laches to reject his challenge to the validity of his plea. Here, this Court had a dialog with Sudue to ensure that he was pleading voluntarily, and it also covered the surrender of his trial rights. In light of that entire discourse, coupled with counsel's reliable testimony that, unlike Desamours's attorney, she recounted personally going through the plea form with Sudue until she was fully satisfied that he understood it, and, importantly, given his prior trial experience, Sudue's case stands in neon contrast to Desamours.
Sudue also testified that when he heard the prosecutor recite the extent of the legislatively-prescribed penalties, he "had no option" but to plead guilty, lest he be imprisoned for 186 years if convicted at a trial. (PCR Tr. at 56.) That entreaty is also meritless.
At the outset, Sudue overlooks the caveat at the conclusion of the plea form that, prior to accepting a guilty plea, the court must certify that the "defendant has also been made aware of the range of punishment which may be imposed." (Plea affidavit at 2). Moreover, at no time did the prosecutor or the Court ever suggest or imply what sentence the state would seek or what term would be imposed if Sudue were convicted of any of the charges after trial.
Notably, the Court twice emphasized that it would not prejudge the merits of any of the allegations, expressly stating that it could not predict whether or not the state could even prove any of the offenses in either of the two cases, determinations which only a jury, not the Court, could make. The Court made it clear that sentencing after any conviction would depend upon the outcome of post-trial proceedings, where "this Court would certainly have a sentencing hearing, hear from counsel, look at all documents, presentence reports and the like. On the other hand, it may very well be that the State could be unsuccessful in proving these charges. As I said, I don't prejudge any of them." (Plea Tr. at 3-4.)
Just as the prosecutor had recounted the maximum reach of the statutory penalties of the open charges, so too, and quite appropriately, counsel had also informed Sudue that while he could "technically get" the maximum sentences, she had forewarned him that if he rejected the proposed disposition, he was likely to receive a greater sentence if convicted after trial, because the sentences "could be stacked on top of each other, which expands his exposure." (PCR Tr. at 95.) She testified, however, that the most she had predicted if an adverse verdict included a disputed count, such as the gun-discharge offense, was a sentence in the area of forty years, but more realistically, a term between twenty and thirty years. Id. at 125.
Sudue claimed at the PCR hearing that counsel "never discussed nothing like that." Id. at 53. He says that counsel only told him to expect "the max" or that he would "get lit up" if convicted after trial. Counsel said that if she used any of those colloquial idioms, it was to impress upon Sudue, in unvarnished fashion, that he would likely receive a heavier sentence if convicted after trial. She testified that she had alerted Sudue in advance of the Frye hearing that if he rejected the final offer, it would not be extended to him again and that the Court would not be involved in other binding plea bargains. She also told him that if he later decided to plead guilty prior to trial, it would be an open-ended plea, or "open sentence." (PCR Tr. at 111-14.)
The Court flatly rejects, as not credible, Sudue's averment that experienced trial counsel did not have any of those plainspoken discussions with him, which are expected and commonplace between attorney and client when discussing resolution of any criminal case.
Counsel also testified that although she had told Sudue that she could contest Bolden's credibility during cross-examination because of his recently disclosed statement of seeing Sudue fire his weapon, she cautioned him that the only way to challenge Bolden would be at a trial, where Sudue would inevitably be convicted of other charges, and most certainly the felony assault upon Bolden and for unlawfully carrying the gun, a result which Sudue, along with his trial and PCR attorneys, acknowledged multiple times during the PCR hearing.
As the hearing unfolded, it became clear that Sudue's only regret was pleading guilty to Count 4, the gun-discharge offense. He agreed with the prosecutor that "there was no disputing any of the other charges except for the discharge of the firearm" (PCR Tr. at 52), and he conceded that he had only "wanted to fight that specific charge," id. at 20; see also 14, 16, because "there was no video showing [him] discharging a firearm." Id. at 44.
Sudue knew full well, however, that he would not be acquitted on Counts 3 and 6: "Yes, I agreed that I'm guilty for possession of a firearm and for pointing it at the bouncer, which I'm sorry for[.]" Id. at 56; see also 42-44, 128-30. Additionally, during cross-examination of Sudue's trial lawyer, PCR counsel himself was obliged to acknowledge that there was "high definition" video of Sudue "holding a weapon and you can see him pointing it at another human[.]" Id. at 131.
Colloquy between the Court and Sudue's trial counsel also confirms that Sudue knew that going to trial simply to challenge Bolden's statement that he had seen Sudue fire the gun would, at best, essentially result in a Pyrrhic victory, because Sudue would have been convicted on other uncontestable counts (PCR Tr. 128-30). It should be further borne in mind that, absent the disposition, Sudue would also have risked additional convictions on the Cranston case charges.
Sudue oddly remonstrates that because the Court personally addressed him to ensure that he had not been forced or coerced to plead guilty, that direct inquiry somehow "indicates that the proceedings were unfair." (Sudue's Mem. at 9.) Rule 11 mandates that the court "address[] the defendant personally and determin[e] that the plea is made voluntarily[.]" The Court's dialog and personal inquiry of Sudue to ensure that he had not been forced or coerced to plead guilty was a paramount precondition of this or any plea proceeding.
Sudue also contends that because he was lachrymose and jittery, that, too, adversely affected the validity of his plea. Even if he was not dry-eyed or was nervous (not uncommon when a defendant is about to plead guilty and ordered imprisoned for a substantial term of years), this Court remains well persuaded that Sudue was fully attentive and engaged during the plea colloquy, without any manifested reluctance to plead guilty. And, as earlier noted, had Sudue harbored any misgivings, at the conclusion of the proceedings he was afforded yet another chance to voice them at the time of allocution. He offered none.
It is the firm view here that if Sudue offered his admission of guilt cheerlessly, he unquestionably did so willingly and with full awareness of the consequences. See Ferola, 518 A.2d at 1346, where the Court rejected, as not credible, the defendant's claim that he was too emotionally upset to be rational when he made incriminating statements: "Even though there was evidence that he wept upon giving each confession, we are convinced that his tears are not indicative of an overborne will. Rather, the tears more likely indicated relief, 'remorse, embarrassment, and possibly revulsion at the viciousness of the murder."' Id. (citing State v. Verlaque, 465 A.2d 207, 210 (R.I. 1983). See also, State v. Briggs, 756 A.2d 731, 738 (R.I. 2000) (also noting in the Miranda context, that the police may play "midwife to a declaration naturally born of remorse or relief, or desperation, or calculation") (citing People v. Tarsia, 405 N.E.2d 188, 192 (N.Y. 1980) (quoting Culombe v. Connecticut, 367 U.S. 568, 576 (1961)).
Imposition of Sentences after Conviction at Trial
Sudue further advances that he felt that he would be "punished for exercising his right to trial." (Sudue's Mem. at 6.) This sentiment is misdirected.
First, the very act of pleading guilty and acknowledging one's culpability is a salutatory step, which of itself may justify leniency. Alabama v. Smith, 490 U.S. 794, 802 (1989). For those who plead, the fact itself is a consideration that is not present when one is found guilty by a jury. Corbitt v. New Jersey, 439 U.S. 212, 224 n.14 (1978). See Johnson v. Vose, 927 F.2d 10, 13 (1st Cir. 1991) (quoting Commonwealth v. Johnson, 543 N.E.2d 22 (Mass. 1989)) ('"The willingness of the defendant to admit guilt . . . is a proper factor in more lenient sentencing."'). See Rhode Island Superior Court Benchmarks, Section 3, noting that a defendant's plea of guilty is relevant to a downward departure from a recommended sentence.
Moreover, a defendant who prefers a trial rather than a dispositive guilty plea risks conviction on all counts, including some that carry mandatory sentences, which would normally be bargained away and dismissed, or, as in the instant case, suspended, in a negotiated plea. United States v. Gaines, 200 Fed.Appx. 707 (9th Cir. 2006), cert. denied, 549 U.S. 1150 (2007) (holding that consecutive sentences totaling 182 years of imprisonment after the defendant had rejected a plea offer of twenty-five years and went to trial, were mandated by statute and permissibly imposed); see People v. Carpenter, 88 A.D.3d 1160 (N.Y. 2011) (imposition of a sentence of fifteen years to life was statutorily mandated after trial where defendant had turned down a pretrial offer which would have substituted lesser charges and resulted in a considerably lighter sentence).
In addition, pretrial discussions and resulting compromises usually do not reveal all of the facts of the case nor a complete exposition of a defendant's criminal misconduct. "[The] plea-bargained sentence normally is predicated upon a more rudimentary record of the alleged criminal conduct, [not the] graphic trial presentation regarding the sheer recklessness . . ." of defendant's transgressions. Correia v. Hall, 364 F.3d 385, 389 (1st Cir. 2004).
Thus, the relevant sentencing information available to the court will usually be considerably less than that available after trial, when the judge has gathered a complete appreciation of the nature and extent of the crime. Smith, 490 U.S. at 801. Further, in a case of violence, the court will learn with particularity during the trial and through a presentence report, which is rarely, if at all, available at a plea-bargained sentence, the full extent and impact of the injuries, physical and emotional, sustained by a victim, such as Bolden, who had a gun thrust in his face.
If a sentence is longer after a trial, it is a consequence of the foregoing considerations, and not at all measured by Sudue's imprecations.
Effective Assistance of Counsel
In his PCR application, Sudue alleged that his trial attorney provided him with ineffective assistance. (PCR Appl. ¶ 8.) At the outset of the hearing, he withdrew that claim, and PCR counsel announced that "we'll not be pursuing an ineffective assistance claim in this hearing . . . [W]e are not alleging deficient performance in line with Strickland v. Washington." (PCR Tr. at 2, 3.) At the conclusion of the hearing, however, Sudue renewed his criticism of counsel anyway. (PCR Tr. at 146-47.)
When reviewing a claim of ineffective assistance of counsel, a court examines the petition under the test delivered by Strickland and its prolific progeny in order to measure the adequacy of a lawyer's performance. Tassone v. State, 42 A.3d 1277, 1284-85 (R.I. 2012); LaChappelle, 686 A.2d at 926. The Court need not expand the pages of this Decision unnecessarily with an elaboration of what has essentially become hornbook law. Under Strickland, "applicants must demonstrate both that counsel's performance was deficient in that it fell below an objective standard of reasonableness, and that 'such deficient performance was so prejudicial to the defense and the errors were so serious as to amount to a deprivation of the applicant's right to a fair trial.'" Njie, 156 A.3d at 433 (internal citations omitted). Courts are not only obliged to "recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment," but should also strive "to eliminate the distorting effects of hindsight[.]" Strickland, 466 U.S. at 689, 690.
Just as an applicant pursuing a postconviction-relief application must shoulder the burden of demonstrating that the relief he seeks is justified, Hazard, 64 A.3d at 756, a "heavy burden" attends a petitioner who claims that his attorney rendered constitutionally defective assistance. Rice v. State, 38 A.3d 9, 17 (R.I. 2012). See Padilla v. Kentucky, 559 U.S. 356, 371-72 (2010) (observing that "[s]urmounting Strickland's high bar is never an easy task").
Moreover, even if a petitioner surmounts Strickland's first step and demonstrates counsel's deficiency, he must also hurdle Strickland's second and higher barrier by showing that counsel's shortcomings "prejudiced" his defense, such that a reasonable probability exists that but for such unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 687, 694; Crombe v. State, 607 A.2d 877, 878 (R.I. 1992).
Substantiating such prejudice is a "prodigious burden," Evans v. Wall, 910 A.2d 801, 804 (R.I. 2006), and one that is "highly demanding and heavy." Whitaker v. State, 199 A.3d 1021, 1027 (R.I. 2019) (internal citations omitted); accord, Barros v. State, 180 A.3d 823, 829 (R.I. 2018) (citing Knight v. Spencer, 447 F.3d 6, 15 (1st Cir. 2006)).
Both of Strickland's requirements must be satisfied to mount a successful ineffectiveness claim. Hazard v. State, 968 A.2d 886, 892 (R.I. 2009). Sudue cannot overcome either of them.
Trial counsel in this case has been a criminal defense practitioner for some ten years, admitted to practice in Rhode Island and Massachusetts, and an alumna of the Public Defender's Office. She has represented many defendants who have been charged with capital offenses and other significant felonies. (PCR Tr. at 85-86.)
To the extent that Sudue maintains a belief that counsel ill-served him, he is acutely mistaken. This Court finds that his lawyer's efforts easily fall within Strickland's objective standard of reasonable and effective assistance. Strickland, 466 U.S. at 687-88. In the face of compelling evidence of guilt in the nightclub case, let alone the risk of conviction on any of the six felonies in the Cranston case, counsel afforded Sudue with a most sensible resolution. It was below the state's recommendation and closely approached the ten-year disposition she and Sudue had agreed to seek from the outset. Additionally, it resulted in the dismissal of every remaining charge in both cases, and avoided, as well, the genuine potential of incarceration for a consecutive ten-year term without parole.
Counsel's advice to Sudue to take advantage of the proposed disposition was sensible and sound. See Pelletier v. State, 966 A.2d 1237, 1241-42 (R.I. 2009) (heeding an attorney's advice to enter a plea resulting in a shorter sentence than the defendant could otherwise receive was not ineffective assistance); Gonder, 935 A.2d at 88 (observing that if the defendant failed to follow his lawyer's advice to accept a plea, he risked receiving a much more severe sentence; and, thus, counsel's performance was not deficient); Hassett v. State, 899 A.2d 430, 433 (R.I. 2006) (same); Rodrigues v. State, 985 A.2d 311, 317 (R.I. 2009) (same).
Rather than doing Sudue a disservice, counsel spared him several more years of imprisonment as a result of the disposition arrangements. "[W]hen counsel has secured a shorter sentence than what the defendant could have received had he gone to trial, the defendant has an almost insurmountable burden to establish prejudice." Neufville v. State, 13 A.3d 607, 614 (R.I. 2011); accord, Perkins v. State, 78 A.3d 764, 769 (R.I. 2013); Rodrigues, 985 A.2d at 317. Sudue's last-moment, unwise renewal of his entreaty that his attorney provided him with incomplete or defective representation is beyond the widest margins of unsupportable. It is illusory.
Conclusion
Withal, this Court can say, with utmost assurance, that Sudue was fully aware of the nature of the charges and the consequences of his guilty pleas. Camacho, 58 A.3d at 186-87. The Court finds, unreservedly, from the record viewed in its totality, that Sudue entered his guilty pleas knowingly, intelligently, and voluntarily. In short, he has failed to carry his burden in this action.
Sudue's application for postconviction relief is denied. Judgment shall enter in favor of the State of Rhode Island.