Opinion
C. A. PM-2019-11066
01-11-2022
DANIEL HUNT v. STATE OF RHODE ISLAND
For Plaintiff: Glenn Sparr, Esq. For Defendant: Peter F. Neronha, Esq. Judy Davis, Esq.
Providence County Superior Court
For Plaintiff: Glenn Sparr, Esq.
For Defendant: Peter F. Neronha, Esq. Judy Davis, Esq.
DECISION
PROCACCINI, J.
Before this Court is Petitioner Daniel Hunt's (Petitioner) Verified Application for Post-Conviction Relief (Application) challenging his jury conviction for second-degree child molestation. Petitioner was sentenced to twenty years, with nine years to serve, and the remaining eleven years suspended with probation. Petitioner now requests that this Court grant his Application and enter an order overturning his conviction. This matter is before the Court pursuant to G.L. 1956 chapter 9.1 of title 10.
I Facts and Travel
On December 4, 2012, Petitioner was charged by criminal information in case number P2-2012-3223 with two counts of second-degree child molestation sexual assault in violation of G.L. 1956 § 11-37-8.3. See Docket P2-2012-3223A; see also State v. Hunt, 137 A.3d 689, 691-92 (R.I. 2016). These charges stemmed from allegations that Petitioner fondled the breasts of his ex-girlfriend's twelve-year-old daughter on two separate occasions. Id.
Prior to trial, pursuant to Rule 11 of the Superior Court Rules of Criminal Procedure, the Superior Court held a plea hearing on December 5, 2013 to ensure Petitioner "completely [understood] whatever the last offer was from the state that was offered to [him] in an attempt to resolve the case short of a trial." (Pet'r's Mem. in Supp. of Appl. for Post-Conviction Relief (Pet'r's Appl.) App. D, Dec. 5, 2013 Hearing Transcript (Dec. 5, 2013 Hr'g Tr.), at 2:5-7.) The trial justice further admonished Petitioner that "the maximum penalty for the charge that [he] would be tried for [was] substantially higher than the offer of a sentence that [the State was] making[, ]" so the trial justice wanted to ensure that Petitioner was "knowingly and freely and with full [consultation]" with his attorney making an informed decision. Id. at 2:23-3:3.
Rule 11 provides the following:
"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. If a defendant refuses to plead or if the court refuses to accept a plea of guilty or if a defendant corporation fails to appear, the court shall enter a plea of not guilty. 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." Super. R. Crim. P. 11.
The State then presented its last offer before the trial justice and Petitioner, agreeing to
"amend the charge of two counts of second degree child molestation to felony assault charges, plus the defendant would not be required to register as a sex offender upon a plea to a term of eight years suspended, eight years probation, that being no jail term to serve at the adult correctional institution and only a no contact order would be in place, but there would be no registration, no sex offender counselling or any other requirements as required by the statute pursuant to the child molestation case statute." Id. at 3:15-24.
When the trial justice asked Petitioner if he understood the offer on the record, Petitioner stated that he did. Id. at 3:25-4:2. When the trial justice asked Petitioner if he had the opportunity to discuss the offer with his attorney, Petitioner stated that he did. Id. at 4:3-5. When the trial justice asked Petitioner if he was given enough time to think about the offer, Petitioner stated that he did. Id. at 4:6-9. The trial justice then asked Petitioner if his decision was to "reject that offer" and if he would "like [a] trial before a jury on the original charges[, ]" to which Petitioner answered yes. Id. at 4:10-13.
The trial justice then confirmed with Petitioner's trial attorney that he had discussed the charges and the offer with Petitioner as well as the "various possibilities and options." Id. at 4:14-16. After confirming this, the prosecutor then read the possible sentence Petitioner could face, "12 years, 5 years to serve," into the record. Id. at 5:16. When Petitioner's trial attorney asked if Petitioner remembered that possibility, Petitioner answered in the affirmative. Id. at 5:18-22. The trial justice again questioned Petitioner, asking if he understood that there was a "much higher probability, if convicted on the original charges after trial, of the possibility of imprisonment," to which Petitioner answered in the affirmative. Id. at 6:1-5.
On December 11, 2013, a jury found the Petitioner guilty of one count of second-degree child molestation sexual assault. See Docket P2-2012-3223A. One month later, on January 3, 2014, this Court heard and subsequently denied Petitioner's motion for a new trial. See id. On March 3, 2014, Petitioner was sentenced to twenty years, with nine years to serve, and the remaining eleven years suspended with probation. See id. Petitioner was also ordered to comply with a no contact order, sex offender counseling, and sex offender registration. Id. The Rhode Island Supreme Court later affirmed Petitioner's conviction in State v. Hunt, 137 A.3d 689.
Petitioner filed his first Application for Post-Conviction Relief on May 10, 2017, asserting that he received ineffective assistance of counsel because Petitioner's trial counsel did not request a bill of particulars, did not thoroughly cross-examine prosecution witnesses, and did not sufficiently advocate on Petitioner's behalf during trial. See Docket PM-2017-2129; see also Appl. for Post-Conviction Relief, May 10, 2017. On January 11, 2018, Petitioner's court-appointed counsel submitted a Memorandum of Law in Support of Motion to Withdraw as Appointed Counsel which argued that Petitioner's claims were without merit pursuant to Shatney v. State, 755 A.2d 130 (R.I. 2000). See Docket PM-2017-2129 .; see also Mem. in Supp. of Mot. to Withdraw as Appointed Counsel, Jan. 11, 2018. As a result, this Court dismissed Petitioner's Application for Post-Conviction Relief without prejudice on February 9, 2018. See Docket PM-2017-2129 Judgment, Procaccini, J., Feb. 9, 2018.
On April 2, 2019, Petitioner filed a second Application for Post-Conviction Relief seeking to vacate his conviction arguing that § 11-37-8.3 is unconstitutional because the statute fails to prescribe a penalty. See Docket PM-2019-4512; Pet'r's Appl., Apr. 2, 2019. On June 15, 2021, a trial justice of the Superior Court denied Petitioner's second Application for Post-Conviction Relief, ultimately holding that Petitioner's conviction was not rendered unconstitutional despite the fact the proscribed criminal conduct and the respective penalty are stated in separate statutory provisions. See PM-2019-4512 Order, Rodgers, J., June 15, 2021 (June 2021 Order). In coming to this conclusion, the trial justice relied on the Supreme Court memorandum decision, In re Petitions for Writ of Certiorari Seeking Review of Denials of Applications for Postconviction Relief, 219 A.3d 320 (Mem.) (R.I. 2019) (hereafter In re Petitions), which addressed forty-one postconviction-relief applications arguing that § 11-37-8.3 is unconstitutional because the statute fails to prescribe a penalty. Id. In this decision, the Rhode Island Supreme Court held that a criminal penalty for specified conduct may be stated separately as part of a clear statutory scheme. See id at 321. The trial justice provided Petitioner with ninety days to reply to the trial justice's proposed dismissal in the June 2021 Order, but ultimately, in September 2021, Petitioner's second Application for Post-Conviction Relief was denied. See PM-2019-4512, Judgment, Rodgers, J., Sept. 10, 2021.
While his second Application for Post-Conviction Relief was still pending, on July 22, 2020, Petitioner filed his third Verified Application for Post-Conviction Relief, which is the subject of this Decision. See Docket PM-2019-11066; see also Pet'r's Appl. Petitioner filed a Memorandum of Law in Support of Application for Post-Conviction Relief on June 8, 2021. See Docket PM-2019-11066 . The State filed a Memorandum of Law in Support of Objection to Petitioner's Application for Post-Conviction Relief on July 22, 2021. (State's Mem.) See Docket PM-2019-11066; see also State's Answer to Pet'r's Appl. for Post-Conviction Relief (State's Answer).
II Standard of Review
Postconviction relief is a statutory remedy for
"[a]ny person who has been convicted of, or sentenced for, a crime, a violation of law, or a violation of probationary or deferred sentence status and who claims:
"(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;
". . .
"(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[.]" Section 10-9.1-1(a).
In pursuing such claims, a petitioner "bears the burden of proving, by a preponderance of the evidence, that he is entitled to postconviction relief." Burke v. State, 925 A.2d 890, 893 (R.I. 2007) (citing Larngar v. Wall, 918 A.2d 850, 855 (R.I. 2007)). The proceedings for such relief are "civil in nature." Ouimette v. Moran, 541 A.2d 855, 856 (R.I. 1988) (citing State v. Tassone, 417 A.2d 323 (R.I. 1980)). In accordance with the statute, "[t]he court shall make specific findings of fact, and state expressly its conclusions of law, relating to each issue presented." Section 10-9.1-7.
III Analysis
In his Application, Petitioner asserts four separate and distinct claims for relief. He asserts that his sentence should be vacated as a matter of law as a violation of the statutory regulations described in the General Laws of the State of Rhode Island, the Constitutions of the State of Rhode Island and the United States, and/or established Rules of Procedure set forth in the Rhode Island Court Rules. (Pet'r's Appl. 1.) Specifically, Petitioner set forth the following four claims:
1. The statute under which he was convicted, § 11-37-8.3, is unconstitutional because it does not contain within the statutory language the terms and penalties of both the Community Supervision Statute (presumably, G.L. 1956 §§ 13-8-30 and 13-8-32) and the Community Notification Statute (presumably § 11-37.1-3(a)) with which he must comply as a result of his conviction, or, in the alternative, § 11-37-8.3 fails to reference these terms and penalties, and therefore is violative of the prohibition against double jeopardy. See Pet'r's Appl. 1.
2. The Community Supervision Statutes, §§ 13-8-30 and 13-8-32, violated his due process rights because they empower the parole board with the authority to "sentence" him when imposing the conditions of community supervision. See id. at 2.
3. His decision to reject the pretrial offer and to proceed to trial was not knowing and voluntary because neither his attorney nor the Court advised him that if he was convicted, he would be required to comply with the requirements set forth under §§ 13-8-30 and 13-8-32. Id.
4. He received ineffective assistance of counsel, which prejudiced him, when his attorney failed to advise him that if he rejected the plea offer and was convicted at trial, he would be required to comply with the provisions of community supervision. Id.
A Res Judicata and Dismissal
Before reviewing Petitioner's underlying substantive claims, the Court must first turn its attention to the threshold issue that the State raises, the doctrine of res judicata. See State's Mem. 5. Specifically, the State argued that Petitioner's Application should be dismissed because the claims he set forth in this Application could have been included in either of his two previous applications for postconviction relief but were not. See id. at 5-6 (referencing Pet'r's Appl. for Post-Conviction Relief, PM-2017-2129; Pet'r's Appl. for Post-Conviction Relief, PM-2019-4512). In support of this argument, the State contended that Petitioner could have raised his community supervision claim in his 2017 Post-Conviction Relief Application, stating he was given notice of his community supervision conditions on May 7, 2014, "according to the document filed with his memorandum in the instant case." Id. at 6.
The State concedes that Petitioner's second Postconviction-Relief Application,
"PM-2019-4512, should not be considered as a grounds [sic] for the State's assertion of res judicata. That case was one of well over 100 cases filed and heard before Justice Rodgers. The parties agreed that the State would not assert res judicata if the applicant had previously had an application adjudicated. However, if a subsequent application was filed raising a different issue the State would be permitted to raise the affirmative defense." See State's Mem. at 5-6 n.1.
The State had not provided any further identifying reference to the document that it is relying on. Petitioner was informed of his sentence on March 3, 2014. See Pet'r's Appl. 27; Pet'r's Appl. App. B (March Hr'g Tr.), at 85:7-12, 103:2-11. Though no mention of community supervision was made, he was informed that he was required to register as a sex offender. Id. For the reasons set forth in this Decision, registering as a sex offender encompasses the Community Supervision Statute's requirements. Further, Petitioner was approached with the terms and conditions of community supervision on June 28, 2019. (Pet'r's Appl. App. C 63.) Petitioner claimed that this was the first time he was given notice about community supervision. Id.
Section 10-9.1-8 codifies the doctrine of res judicata within the postconviction relief context. This section provides in pertinent part:
"All grounds for relief available to an applicant at the time he or she commences a proceeding under this chapter must be raised in his or her original, or a supplemental or amended, application. Any ground finally adjudicated or not so raised, or knowingly, voluntarily and intelligently waived in the proceeding that resulted in the conviction or sentence or in any other proceeding the applicant has taken to secure relief, may not be the basis for a subsequent application, unless the court finds that in the interest of justice the applicant should be permitted to assert such a ground for relief." Section 10-9.1-8.
This principle is intended to preclude the relitigation of substantially identical issues raised in prior postconviction relief proceedings as well as an applicant's direct appeal. Carillo v. Moran, 463 A.2d 178, 182 (R.I. 1983). However, a limited and narrow exception to this otherwise absolute bar exists which provides that issues which were "'finally adjudicated or not so raised' may nonetheless be the basis for a subsequent application for postconviction relief if the court finds it to be 'in the interest of justice."' Mattatall v. State, 947 A.2d 896, 905 (R.I. 2008) (quoting § 10-9.1-8).
In the present Application, Petitioner is reasserting a claim of ineffective assistance of counsel as well as one regarding the alleged unconstitutionality of the statute under which he was convicted. See generally Pet'r's Appl. Based on the well-established Rhode Island approach to applying res judicata in the context of postconviction-relief applications, the Court finds that these issues are waived because they were not raised in Petitioner's first or second postconviction-relief applications. Further, Petitioner has failed to identify why he could not and did not raise these issues in his previous applications for postconviction relief. See Ramirez v. State, 933 A.2d 1110, 1112 (R.I. 2007) (holding that the trial justice properly found that § 10-9.1-8 barred consideration of the petitioner's claims where the petitioner raised his claims for the first time in his third postconviction-relief application).
Moreover, just as Petitioner has failed to identify why he could not and did not raise these issues in his previous applications for postconviction relief, Petitioner also failed to set forth why these claims should be permitted at this time under the interest of justice exception. See Mattatall, 947 A.2d at 905 (citing Ramirez, 933 A.2d at 1112).
Consequently, this Court finds the res judicata doctrine applicable to Petitioner's four claims for relief and dismisses his Application. Notwithstanding this Court's determination that Petitioner's third Application is barred by the res judicata doctrine, this Court alternatively finds that in the interests of judicial economy and finality, it will proceed to address the substantive claims in Petitioner's Application under the interest of justice exception.
B
The Constitutionality of § 11-37-8.3
1
The Statutory Scheme
In his first substantive claim, Petitioner argued that § 11-37-8.3 is unconstitutional because the statute omits any reference to §§ 13-8-30 and 13-8-32 (collectively, the Community Supervision Statutes), as well as the separate felony crime of failing to register as a sex offender, and thus § 11-37-8.3 failed to provide this defendant, or any defendant or citizen, with fair, adequate, and reasonable notice of the law's meaning. (Pet'r's Appl. 3, 11.) Petitioner further argued that in order for § 11-37-8.3 to have legal effect, the statute should contain words referring a defendant to the Community Supervision Statutes such as, "a conviction under this [statute] will make one subject to the terms and conditions of Community Supervision, which can be found at § 13-8-30 and [§] 13-8-32." Id. at 19.
The State argued that Petitioner's argument fails because In re Petitions makes clear that a statute is not constitutionally flawed because the penalty is located in separate statutes or separate statutory sections. (State's Mem. 8 (citing In re Petitions, 219 A.3d at 321)). To further support this argument, the State cited Rhode Island caselaw regarding the construction of statutes. Id. at 10 (referencing State v. Ahmadjian, 438 A.2d 1070, 1080 (R.I. 1981)). Specifically, the State argued that,
"pursuant to well-settled principles of statutory construction, 'statutes which relate to the same subject matter should be considered together so that they will harmonize with each other and be consistent with their general objective scope[;] [t]his rule of construction applies even though the statutes in question contain no reference to each other and are passed at different times.'" Id. (citing Ahmadjian, 438 A.2d at 1081) (internal citations omitted).
Section 11-37-8.3 states that "[a] person is guilty of a second degree child molestation sexual assault if he or she engages in sexual contact with another person fourteen (14) years of age or under." The penalty for second-degree child molestation is located in § 11-37-8.4 and states "[e]very person who shall commit second degree child molestation sexual assault shall be imprisoned for not less than six (6) years nor more than thirty (30) years."
The Sexual Offender Registration and Community Notification Act (Sex Offender Registration Statute), codified in G.L. 1956 § 11-37.1-3(a) provides in pertinent part as follows:
"[a]ny person who, in this or any other jurisdiction: (1) has been convicted of a criminal offense against a victim who is a minor . . . shall be required to register his or her current address with the local law enforcement agency having jurisdiction over the city or town in which the person having the duty to register resides for the time period specified in § 11-37.1-4."
The Legislature has defined a "[c]riminal offense against a victim who is a minor" to include a violation of § 11-37-8.3. Section 11-37.1-2(f)(3). Accordingly, a defendant, like Petitioner, who was convicted of second-degree child molestation sexual assault in violation of § 11-37-8.3 is required to register as a sex offender, pursuant to § 11-37.1-3.
In addition to registering as a sex offender under the Sex Offender Registration Statute, a person convicted of second-degree child molestation sexual assault "shall, in addition to any other penalty imposed, be subject to community supervision upon that person's completion of any prison sentence, suspended sentence, and/or probationary term imposed as a result of that conviction." See § 13-8-30 (Community Supervision Statute). Further, a person convicted of second-degree child molestation and sexual assault is subject to community supervision so long as "the term of the original sentence imposed and the term of community supervision shall not exceed thirty (30) years." Id. Consequently, a defendant, like Petitioner, who is sentenced to twenty years is required to register as a sex offender and is subject to community supervision upon the completion of his suspended sentence/probationary period for a maximum of ten years. Section 13-8-32 (Community Supervision Terms Statute) subjects those placed on community supervision to provisions of law governing parole as if the person was a parolee and places certain terms and conditions on their parole-like community supervision. See § 13-8-32.
To address Petitioner's first claim, the fact that § 11-37-8.3 does not reference either the Sex Offender Registration Statute or the Community Supervision Statutes, does not render § 11-37-8.3 unconstitutional. In In re Petitions, our Supreme Court made clear that a statute is not constitutionally flawed or without legal force and effect just because the prohibited conduct and penalty is set forth in a subsequent section. See In re Petitions, 219 A.3d at 321. The Supreme Court reasoned that statutes drafted like § 11-37-8.3 are constitutional because "each is part of a clear statutory scheme in which the prohibited conduct is plainly laid out in one section of a chapter in our general laws, and the penalty is set forth in the subsequent section." Id.
In In re Petitions, the Supreme Court analyzed § 11-37-8.3 and the related penalty statute, § 11-37-8.4 but did not discuss the related Sex Offender Registration Statute or the Community Supervision Statutes specifically. Id. at 320. However, based on the Supreme Court's rationale regarding the penalty statute, it is clear to this Court that this rationale would nevertheless carry over to both the Sex Offender Registration Statute and the Community Supervision Statutes. Id. The Sex Offender Registration Statute and the Community Supervision Statutes are "part of a clear statutory scheme in which the prohibited conduct is plainly laid out in one section of a chapter in our general laws, and the penalty is set forth in the subsequent section." Id. at 321. In the case of the above-mentioned statutes, § 11-37-8.3 is the "prohibited conduct" and the Sex Offender Registration Statute and the Community Supervision Statutes are the "penalt[ies]. . . set forth in the subsequent section," all of which are a "part of a clear statutory scheme." Id.
Additionally, in Curtis v. State, 996 A.2d 601 (R.I. 2010), our Supreme Court stated that "when construing the meaning of statutes, [the courts] must consider individual sections of a statute in the context of the entire statutory scheme, not as if each section were independent of all other sections." Curtis, 996 A.2d at 604 (internal quotation omitted). Furthermore, in Ahmadjian, cited supra, the Supreme Court articulated
"that statutes which relate to the same subject matter should be considered together so that they will harmonize with each other and be consistent with their general objective scope. This rule of construction applies even though the statutes in question contain no reference to each other and are passed at different times." Ahmadjian, 438 A.2d at 1081.
This longstanding rule of statutory construction also supports this Court's finding that the statutes Petitioner challenges are part of a unified statutory scheme.
The Sex Offender Registration Statute and Community Supervision Statutes are part of a clear statutory scheme that relates to sex crimes because they were meant to be read alongside certain sex offense statutes, such as § 11-37-8.3. This is further evidenced by the fact that the Community Supervision Statute, § 13-8-30, is titled "Community supervision for child molestation offenses" and specifically references § 11-37-8.3. Furthermore, the Community Supervision Terms Statute, § 13-8-32, directly references other sections of the same chapter when it notes that those under community supervision must comply "with the requirements of chapter 37 of title 11." Section 13-8-32(b). Consequently, these statutes have legal force and effect even though they are placed in different statutory sections.
2
Double Jeopardy
Petitioner also alleged that § 11-37-8.3 was unconstitutional on double jeopardy grounds. He specifically contended that imposing the Sex Offender Registration Statute, the penalty for failing to register as a sex offender, §11-37.1-10 (Failure to Register Penalty), and Community Supervision Statutes violated the double jeopardy clauses of both the Rhode Island and United States Constitutions "because [the statute] call[s] for and contain[s] penalties for committing a breach of [its] terms." (Pet'r's Appl. 3-4.) Essentially, Petitioner argued this is an imposition of an "additional sentence." Id. at 27.
In Rhode Island, our Supreme Court has "interpreted our state constitutional prohibition against double jeopardy in a manner consistent with the Federal Constitution . . . so that our inquiry is ultimately the same under either clause." State v. Forlasto, 217 A.3d 489, 492-93 (R.I. 2019) (internal quotation omitted). The Rhode Island Supreme Court has "recognized that 'the double jeopardy clause protects against three distinct abuses: a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense.'" Id. at 493 (quoting State v. Ciolli, 725 A.2d 268, 270 (R.I. 1999)).
There are two tests applied by Rhode Island courts to determine if there has been a double jeopardy violation. The first method is the "same evidence" test set forth in Blockburger v. United States, 284 U.S. 299 (1932), which was adopted by the Rhode Island Supreme Court over forty years ago. See State v. Marsich, 10 A.3d 435, 442 (R.I. 2010) (citing State v. Davis, 120 R.I. 82, 86, 384 A.2d 1061, 1064 (1978) (adopting the Blockburger test)). Under the Blockburger "same evidence" test, "'where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.'" Id. (quoting Davis, 120 R.I. at 86, 384 A.2d at 1064) (emphasis added). The second test was established by Missouri v. Hunter, 459 U.S. 359 (1983), and was adopted by the Rhode Island Supreme Court in State v. Rodriguez, 822 A.2d 894 (R.I. 2003). See Marsich, 10 A.3d at 442. Under this second test, the Court '"examine[s] the challenged statutes to ascertain whether the Legislature intended to authorize cumulative sentencing' for the offenses contained in the indictment." Id. (quoting Rodriguez, 822 A.2d at 907 n.15.) "If the legislative intent underlying the enactment is clear, consecutive sentences upon conviction under both statutes does not offend principles of double jeopardy, 'regardless of whether both statutes proscribe the same conduct under Blockburger.'" Id. (quoting Rodriguez, 822 A.2d at 907-08 n.15).
Here, Petitioner does not adequately allege a violation of any of the three distinct abuses that Rhode Island courts recognize when analyzing double jeopardy claims. He does not allege that he is being prosecuted a second time for the same offense after acquittal or that he is being prosecuted a second time for the same offense after conviction, nor does he make out a viable claim that he is receiving "multiple punishments for the same offense," or as he puts it, being imposed with an additional sentence for violating the Sex Offender Registration Statute and Community Supervision Statutes. (Pet'r's Appl. 26.)
Petitioner first argued that the Blockburger test, rather than the test prescribed under Hunter, applies. See id. at 29. He contended that, applying this test, the Sex Offender Registration Statute, Failure to Register Penalty, and Community Supervision Statutes violated his rights to be protected from double jeopardy because the statutes do not require proof of an additional criminal element beyond second-degree child molestation, yet imposes a mandatory penalty upon one convicted of that offense. Id.
However, the Court need not address Petitioner's argument that the terms and conditions of the Sex Offender Registration Statute, Failure to Register Penalty, and Community Supervision Statutes violate the double jeopardy clause because it is clear, based on the above analysis, that these statutes are valid "penalties" for criminal conduct proscribed by § 11-37-8.3, despite the lack of reference to the above mentioned statutes in § 11-37-8.3. Therefore, the Court finds that Petitioner's double jeopardy argument is without merit and that § 11-37-8.3 is constitutional. The Sex Offender Registration Statute, Failure to Register Penalty, and Community Supervision Statutes are not additional sentences but are a part of Petitioner's original sentence.
Accordingly, this Court finds that, even when reviewing his first claim "in the interest of justice," Petitioner's claim is without merit and § 11-37-8.3 is constitutional.
C Due Process and the Parole Board's Authority Under the Community Supervision Statutes
In his second claim, Petitioner argued that the Community Supervision Statutes unlawfully empower the parole board to impose the conditions set forth under the statute to sentence him to additional penalties, including those not set forth under the second-degree child molestation statute, violating his due process rights. (Pet'r's Appl. 30.) Petitioner asserted that the Community Supervision Terms Statute, which defines the terms and conditions of community supervision, gave the parole board the discretion on an individual basis to impose any conditions the parole board sees fit to ensure the safety of the public from one convicted of child molestation. Id. Petitioner also asserted that there is no statutory language that grants the parole board with the authority to impose the conditions and requirements which are set forth in the Community Supervision Statutes. Id. Petitioner then contended that the Community Supervision Terms Statute was without limitations, parameters, or safeguards, and questions how defendants, like himself, can be aware of what conditions may be imposed. Id.
Petitioner did not refer to a particular "statute." Based on the statute referenced in his entire argument, this Court presumes he means § 13-8-32, the Community Supervision Terms Statute.
Conversely, the State argued that there is a clear legislative grant of authority to the parole board in the Community Supervision Statutes to impose the conditions of community supervision. (State's Mem. 11.) The State further set forth that Rhode Island law is clear that the parole board has legislative authority to take discretionary actions, which means that the parole board, acting in a community supervision role, is authorized to impose any conditions it sees fit. Id.
General Laws 1956 chapter 8 of title 13 governs parole in the Rhode Island penal system. "The Legislature has provided a statutory scheme that creates a parole board and generally empowers the parole board to grant parole to any prisoner within its control upon completion of a specified portion of the sentence imposed." Skawinski v. State, 538 A.2d 1006, 1007 (R.I. 1988). Section 13-8-31 establishes the community supervision board and states that there "shall be established a community supervision board which shall be comprised of the parole board." Additionally, the Community Supervision Terms Statute states "a person who has been placed on community supervision shall be subject to the provisions of law governing parole as if the person were a parolee. The parole board shall impose terms and conditions for the sentence. . ." Section 13-8-32(a).
Here, a clear reading of §§ 13-8-31 and 13-8-32 indicate that the Rhode Island Legislature expanded the parole board's authority to include the community supervision program. The statutory language in the Community Supervision Terms Statute makes clear that persons placed on community supervision are to be subject to the same law that governs persons on parole. See § 13-8-32(a). Moreover, the language of both statutes indicates that the parole board takes on the additional role of imposing terms and conditions for persons who are subject to community supervision. Id. Consequently, Petitioner's argument that there is no statutory language that grants the parole board the authority to impose the conditions and requirements which are set forth in the Community Supervision Statutes fails.
Furthermore, Petitioner's argument that the parole board's authority, without any limitations, parameters, or safeguards, leaves criminal defendants, such as himself, unaware of what conditions may be imposed also fails. The Community Supervision Terms Statute states "[t]he board is authorized on an individual basis to establish any conditions of community supervision that may be necessary to ensure public safety[.]" Section 13-8-32(b). The plain meaning of this statutory language is that the parole board has discretionary authority to impose "any conditions" it deems "necessary[.]" Section 13-8-32(b). This discretionary authority, and its legislative grant to the parole board, has been confirmed by our Supreme Court in numerous cases. See Curtis, 996 A.2d at 605 ("[I]t is clear that a permit 'to be at liberty on parole' is subject to whatever reasonable conditions the parole board may prescribe."); Skawinski, 538 A.2d at 1010 ("It is evident that the Legislature intended the parole board to exercise its broad discretion and to deviate from the guidelines when individual circumstances so warrant."). As such, Petitioner's argument concerning the parole board's discretionary authority fails.
D Petitioner's Rejection of the Plea Offer and the Trial Court's Duty
Petitioner's third claim of entitlement to postconviction relief was based on the assertion that his decision to reject the State's plea offer and to proceed to trial was not knowing and voluntary. (Pet'r's Appl. 35.) Specifically, Petitioner argued that his plea was not knowingly and voluntarily made because neither his trial attorney nor the trial justice informed him that, if he was convicted, he would be required to comply with the terms and conditions of community supervision. Id. To support this contention, Petitioner asks this Court to refer to a conversation between Petitioner and the court regarding his pretrial offer, which took place before jury selection. See id. at 36 (referencing App. D., Dec. 5, 2013 Hr'g Tr. 1:21-6:23). Briefly, Petitioner contends that this colloquy establishes three points:
(1)The State advised Petitioner that they were willing to amend the two counts of second-degree child molestation to felony assault charges;
(2)The trial justice had previously conducted a plea hearing at which time Petitioner was advised that the offer being extended to him by the trial justice, which was a lesser offer than the State was making, was a full sentence of twelve years, with five years to serve; and
(3)Petitioner was not advised during this colloquy that if convicted of the sex offense, he would be required to comply with the terms and conditions of community supervision. Id. at 38.
The basis of Petitioner's argument here is that the consequences, or in his case the benefits, of amending his second-degree child molestation charges to felony assault charges were not fully explained to him. See id. at 38-41. Specifically, Petitioner argued that he did not knowingly and voluntarily reject the plea since he did not know of all the consequences a sex offense conviction carried, particularly the consequences of community supervision. Id. Petitioner contended that, if he had known about the community supervision consequences, "perhaps he would have accepted the plea offer." Id. at 40.
The State argued that Petitioner's argument fails because the Court had no duty to ensure that Petitioner's rejection of the plea offer was knowing and voluntary. (State's Mem. 15.) The State further argued that the Court's responsibility was completed when the trial justice asked Petitioner, on the record, what offers had been made, the specifics of those offers, and whether the offers had been communicated to Petitioner. Id. at 15-16.
Rule 11 of the Superior Court Rules of Criminal Procedure states:
"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. If a defendant refuses to plead or if the court refuses to accept a plea of guilty or if a defendant corporation fails to appear, the court shall enter a plea of not guilty. 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." Super. R. Crim. P. 11.
In State v. Price, 68 A.3d 440 (R.I. 2013), the Rhode Island Supreme Court acknowledged that while Rule 11 requires
"that the court make inquiry of the defendant personally to determine that a plea of guilty or nolo contendere is made voluntarily and with knowledge, . . . this rule cannot be read to require a trial justice to make this same inquiry of a defendant who is rejecting a plea offer." Price, 68 A.3d at 450 (internal quotation omitted).
The Court went on to state that "[a]lthough a defendant's right to proceed to trial is constitutionally protected, this does not concomitantly confer upon a defendant the right to enter into a plea agreement or require that a trial justice ensure that a defendant voluntarily and with knowledge rejected a plea offer when he instead decides to proceed to trial." Id.
In light of the Rhode Island Supreme Court's holding in Price, it is clear that this Court did not have the responsibility to ensure that Petitioner voluntarily and knowingly rejected his plea offer of felony assault. As stated in Price, the rejection of a plea offer does not give rise to the same constitutional concerns as accepting a plea offer, which would be a waiver of a right to a trial by a jury. Id.
Furthermore, as evidenced by the transcript from December 5, 2013, this Court went beyond the boundaries of its responsibility here to inquire what offers had been made, the specifics of those offers, whether those offers had been communicated to Petitioner, and whether he fully understood his decision to go to trial. (Pet'r's Appl. App. D (Dec. 5, 2013 Hr'g Tr.), at 3:25-6:23.) This Court clearly found Petitioner to be an intelligent and thoughtful person based upon the responses he provided to its questions. Id. at 6:16-23.
Therefore, Petitioner's argument that the Court had a duty to inform him about the community supervision conditions prior to him rejecting his plea offer is meritless.
E The Ineffective Assistance of Counsel Claim
In his final claim, Petitioner asserted that his trial attorney failed to properly instruct him that, as a result of his conviction of second-degree child molestation, he would be required to abide by the Community Supervision Statutes' requirements, and that this failure to do so amounted to ineffective assistance of counsel which prejudiced him, entitling him to relief. (Pet'r's Appl. 52.) Petitioner conceded that his trial attorney did have a brief discussion with him regarding registration and leveling. Id. at 59. However, he claimed that his trial attorney never advised him that, if convicted, he would be subject to the terms and conditions of community supervision for a period of almost two decades beyond the expiration of his probationary term, a fact he claims is highly significant and should have been explained to him prior to trial. Id. Petitioner contended that his trial attorney's failure to instruct him as such "rendered his decision invalid as not being knowing and voluntary." Id. To make this argument, Petitioner pointed to the recognized United States and Rhode Island Supreme Court caselaw and to Rule 1.4 of the Rhode Island Rules of Professional Conduct. Id. at 54-55.
Rule 1.4., Communication, provides as follows:
"(a) A lawyer shall:
"(1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in Rule 1.0(e), is required by these Rules;
"(2) reasonably consult with the client about the means by which the client's objectives are to be accomplished;
"(3) keep the client reasonably informed about the status of the matter;
"(4) promptly comply with reasonable requests for information; and
"(5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.
"(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation." Rules of Professional Conduct 1.4(a)-(b).
The State disagreed, arguing that Petitioner's ineffective assistance of counsel claim fails because he misconstrued the applicable standard for ineffective assistance of counsel claims and, in doing so, fails to demonstrate how the proceeding would have been different but for his counsel's alleged unprofessional errors. (State's Mem. 16.) The seminal decision when faced with a claim of ineffective assistance of counsel is the United States Supreme Court case Strickland v. Washington, 466 U.S. 668 (1984), which our Supreme Court has adopted and applied in numerous decisions.
The Strickland test is two-pronged and "provides certain criteria that a [petitioner] must establish in order to show ineffective assistance of counsel." Brennan v. Vose, 764 A.2d 168, 171 (R.I. 2001). Pursuant to the first prong of the Strickland test, a petitioner must "demonstrate that counsel's performance was deficient, to the point that the errors were so serious that trial counsel did not function at the level guaranteed by the Sixth Amendment." Guerrero v. State, 47 A.3d 289, 300 (R.I. 2012) (citing Strickland, 466 U.S. at 687). According to our Supreme Court in Guerrero, cited supra, "[a] trial attorney's representation of his or her client will be deemed to have been ineffective under that criterion only when the court determines that it fell 'below an objective standard of reasonableness.'" Guerrero, 47 A.3d at 300 (quoting Brennan, 764 A.2d at 171). The Sixth Amendment standard, however, is very forgiving and the presumption is that counsel performed competently. In Neufville v. State, 13 A.3d 607 (R.I. 2011), our Supreme Court held that the first prong of Strickland "'must be assessed in view of the totality of the circumstances' with a strong presumption that counsel's conduct falls within the permissible range of assistance." Neufville, 13 A.3d at 610 (quoting Hazard v. State, 968 A.2d 886, 892 (R.I. 2009)).
Under the second prong, a petitioner "must show 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." Brennan, 764 A.2d at 171.
"'When evaluating a claim for ineffective assistance of counsel in a plea situation, the defendant must demonstrate a reasonable probability that but for counsel's errors, he or she would not have pleaded guilty and would have insisted on going to trial' and, importantly, that the outcome of the trial would have been different." Neufville, 13 A.3d at 610-11 (quoting State v. Figueroa, 639 A.2d 495, 500 (R.I.1994)).
However, the Court need not proceed to the second prong of the Strickland test unless it is determined that the deficient performance standard in the first prong has been met. See Guerrero, 47 A.3d at 300-01.
In light of the relevant caselaw and the December 5, 2013 plea hearing transcripts, this Court does not find Petitioner received ineffective assistance of counsel. Instead, this Court finds that Petitioner rejected a plea offer seldomly seen in child molestation and sex offense cases, and now, in hindsight, regrets his decision to proceed to trial. Ultimately, Petitioner's decision to proceed to trial led to his sentence and the consequences of that sentence; namely, the sex offender registration and community supervision which Petitioner uses in this argument.
To address Petitioner's first contention, that his trial attorney's alleged failure to properly instruct him on the Community Supervision Statutes' statutory obligations rendered his decision unknowing and involuntary, this Court notes that Petitioner conflates the standard that is applied to the Court when a defendant accepts a plea offer with the standard clearly stated in Strickland for ineffective assistance of counsel. See Price, 68 A.3d at 450. Additionally, the evidence before the Court shows that, during his December 5, 2013 plea hearing, this Court asked Petitioner four separate times whether Petitioner understood the plea offer before him, if he had an opportunity to discuss the offer with his attorney, and if he wanted to reject that offer and proceed to a trial before a jury on the original charges. See Dec. 5, 2013 Hr'g Tr. at 3:25-4-2, 4:3-5, 4:6-9, 4:10-13. This eliminates any question for this Court as to whether his decision to reject the plea was "unknowing and involuntary." During this hearing, Petitioner was also informed that this plea offer meant there would be no sex offender registration. Id. at 4:17-22. Petitioner knew of the potential for sex offender registration, which leads this Court to believe that there would have been no difference in Petitioner's decision to reject the plea and proceed to trial had the words "community supervision" been used. Petitioner clearly rejected the plea offer knowing he would be subject to the Sex Offender Registration Statute. After reviewing the record, this Court finds that Petitioner's decision was knowingly and voluntarily made.
Based on the December 5, 2013 plea hearing, this Court is entirely satisfied that Petitioner's trial attorney's performance was not deficient. In fact, Petitioner's trial attorney had secured his client a favorable plea offer-the State agreed to amend the second-degree child molestation charges to felony assault charges, which would mean the Petitioner would not be required to register as a sex offender, would not need to enroll in sex offender counseling, and that none of the other statutory requirements of the Community Supervision Statutes would apply. Dec. 5, 2013 Hr'g Tr. at 3:13-24. Ultimately, the decision to accept or reject the plea was for Petitioner to make. See Rule 1.2(a) of the Rhode Island Rules of Professional Conduct.
Rhode Island Rule of Professional Conduct 1.2(a) states, in pertinent part, that, "[i]n a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered . . ." Rule 1.2(a) protects the client's right to have the final say in deciding whether to enter a guilty or nolo contendere plea in a criminal case. See Rule 1.8 of the Rhode Island Rules of Professional Conduct (Commentary - Aggregate Settlements).
During the December 5, 2013 plea hearing, this Court further asked Petitioner's trial attorney if he had discussed Petitioner's decision to reject this plea offer along with the "various possibilities and options." Dec. 5, 2013 Hr'g Tr. at 4:14-16. In response, Petitioner's trial attorney stated that he not only discussed the plea offer, but that he had achieved two out of three of Petitioner's goals-first, he had avoided any jail time, as Petitioner would only be serving a suspended sentence and probation and need only comply with a no-contact order, and second, he had avoided any Sex Offender Registration requirements with the plea offer. Id. at 4:17-22. Petitioner's third goal, to "walk out of here without anything," was not met and Petitioner's trial attorney said he could not force Petitioner to accept the plea, leading to Petitioner's ultimate decision to take his chances at trial. Id. at 4:21-5:1.
Nothing in the record leads this Court to find that Petitioner's trial attorney's performance was deficient, especially not so deficient as to fall below an objective standard of reasonableness. See Guerrero, 47 A.3d at 300. Petitioner's trial attorney secured him a favorable plea offer, and both Petitioner and his trial attorney stated on the record that Petitioner's trial attorney had informed Petitioner of the possibilities of conviction, including sex offender registration, and that Petitioner understood those possibilities. See Dec. 5, 2013 Hr'g Tr. at 3:25-4:2, 4:3-5; 4:6-9; 4:14-25.
Despite the advantageous plea offer, the decision to proceed to trial remained with Petitioner, which he did presumably in an ill-fated attempt to "walk out of [there] without anything." Id. at 4:21-22. In his argument, Petitioner provides no evidence suggesting that his decision to reject the plea would have been different if he had been explicitly told at the December 5, 2013 plea hearing that, were he convicted, he would need to comply with the Community Supervision Statutes, in addition to the Sex Offender Registration requirements. Thus, this Court finds that, even if Petitioner's trial attorney did not inform Petitioner of the particulars of the Community Supervision Statutes, it would have made no difference in his decision to proceed to trial since Petitioner wanted to "walk out of [there] without anything." Id. at 4:21-22. It is evident from this statement that anything less than the charges being dropped would not have changed Petitioner's decision to proceed to trial.
Since this Court finds that the first prong of Strickland is not met, it is not necessary to address prong two. Brennan, 764 A.2d at 171.
Accordingly, this Court rejects Petitioner's argument that he received ineffective assistance of counsel which resulted in his rejection of the plea offer. The record is clear from the questions the Court asked both Petitioner and his trial attorney that he understood the risk and the potential consequences associated with rejecting the plea offer. Additionally, this Court confirmed that Petitioner's trial attorney counseled his client on the possibilities before him, whether it be accepting or rejecting the plea offer. Id. at 4:14-16. Based upon his responses, this Court finds that Petitioner's trial attorney acted more than reasonably and in accordance with our Rhode Island Rules of Professional Conduct in allowing his client to make his own decision to reject the plea offer that was before him. Id.; see Rule 1.2(a) of the Rhode Island Rules of Professional Conduct. Although, in retrospect, Petitioner may regret his choice regarding the possible plea agreement, this Application does not give him the ability to change the choice he made.
IV Conclusion
Accordingly, this Court finds that res judicata bars Petitioner's third Verified Application for Post-Conviction Relief. Alternatively, under the interest of justice exception, the four claims he set forth fail to meet his burden of establishing by a preponderance of the evidence that postconviction relief is warranted. Thus, for the reasons cited above, Petitioner's Application is denied.