Opinion
PM-20-04232
01-27-2021
SONGKOTH THAYORATH v. STATE OF RHODE ISLAND
For Plaintiff: Shannah Kurland, Esq. For Defendant: Judy Davis, Esq.
(P2/96-2165AG) (P2/96-2345A)
For Plaintiff: Shannah Kurland, Esq.
For Defendant: Judy Davis, Esq.
DECISION
KRAUSE, J.
A claim of ineffective assistance of counsel is not a judicial wild card to be played indiscriminately whenever and wherever a losing hand is cleanly dealt. Here, the petitioner in this postconviction relief application has taken such undocked liberties with the record and the factual history of this case that he has markedly disfigured the parameters which govern such claims.
Songkoth Thayorath is a Laotian national who is presently facing the very deportation proceedings which he himself predicted could befall him when he pled guilty to attempted murder and felony assault in 1996. Now, twenty-five years later, he entreats this Court to grant his postconviction relief (PCR) application in which he criticizes his attorney for allegedly providing him with substandard assistance, asserting that he was kept in the dark about being deported.
The petition is legally and factually meritless, as well as incurably flawed by laches.
In its September 8, 2020 Order, the Court alerted the parties that after reviewing the pleadings and the record, it would determine if a hearing was necessary. No request for a hearing has been made by either party, and having thoroughly considered those materials, including the parties' ample briefs and the exhibits thereto, the Court is well satisfied that there is no need for a hearing or oral argument. See Ryan v. Roman Catholic Bishop of Providence, 941 A.2d 174, 187-88 (R.I. 2008), and United States v. DeCologero, 821 F.2d 39, 44 (1st Cir. 1987) (Selya, J.).
Background
On September 30, 1995, Thayorath, then nineteen, shot a man twice with a shotgun, then pointed the weapon at his head and told him, "You're going to die." After one of Thayorath's cohorts pushed the gun aside, Thayorath fled. The victim survived. The following spring, on May 31, 1996, Thayorath and two confederates beat up a defenseless man in his driveway using clubs and their fists while he was cleaning his car. Both victims knew Thayorath. They and other witnesses, who also knew Thayorath, identified him as the culprit during the attacks. A separate Criminal Information was filed for each event, charging Thayorath with multiple offenses (the maximum penalty for each count is parenthetically noted):
• P2/96-2165-AG, the September 30, 1995 shooting: (1) assault with intent to murder (twenty years); (2) discharging a firearm during a crime of violence resulting in injury (mandatory twenty consecutive years without parole). • P2/96-2345-A, the May 31, 1996 attack: (1) assault with a dangerous weapon (twenty years); (2) conspiracy to commit that assault (ten years); (3) extortion (fifteen years); (4) conspiracy to commit extortion (ten years).
Thayorath's total incarceration exposure was ninety-five years, which included a mandatory, consecutive twenty-year term without parole for wounding his victim.
Pursuant to a very favorable plea agreement negotiated by his attorney, Assistant Public Defender David Levy, Thayorath was shielded from several decades of incarceration in exchange for his guilty pleas to two charges: assault with intent to murder for the September 30, 1995 shooting, and felony assault for the May 31, 1996 driveway beating. Defense counsel also convinced the state to agree to a "capped" plea, so that the aggregate period of incarceration for both offenses would not exceed ten years to serve, while still affording counsel an opportunity to argue for even less jail time at a sentencing hearing. The state also dismissed all of the other charges, thereby eliminating eighty-five years of incarceration exposure, including the requisite twenty-year consecutive, nonparolable term.
Thayorath entered his guilty pleas on September 30, 1996, and on December 10, 1996, this Court imposed an eight-year period of incarceration (the prosecutor had requested a nine-year term), followed by twelve years of suspended/probationary time.
In 1998, while he was serving that sentence, the federal immigration authorities ordered Thayorath deported to Laos. Although deportation proceedings would have commenced after Thayorath was paroled in October of 2001, he was spared immediate removal because the United States, at least for the time being, had stopped deporting people to Laos. According to Thayorath, that changed at the end of 2019 or the beginning of 2020, when the United States resumed deportations to Laos, and Thayorath's 1998 deportation order was reactivated.
Some twenty-five years after his 1996 convictions, when he knew that he was deportable, and twenty-two years after the Government formally ordered him deported, Thayorath finally filed the instant PCR application in June of 2020, professing that neither his attorney nor anyone else ever told him about the potential of deportation.
That delusive contention seriously misrepresents the case history, which includes, among other recorded evidence, Thayorath's own presentence admissions that he was painfully aware of his precarious immigration status and had voiced significant apprehension of deportation if convicted.
Thayorath's Claims
In his verified application, Thayorath avows in paragraphs 8-10:
"8. Age nineteen at the time of his plea and sentencing, petitioner was entirely unaware of his immigration status in the United States. Mr. Thayorath does not recall ever having heard the terms "citizen," "legal resident," "deportation," or any references to immigration status until after his conviction. Mr. Thayorath, at the time of his sentencing, did not know anyone who had been deported, and had never heard of any immigration consequences related to criminal convictions. He was only aware of the penalties administered through the criminal courts such as imprisonment, and did not contemplate nor imagine any immigration consequences as a result of his plea.
"9. During his representation of the petitioner, defense counsel incorrectly represented that because petitioner was from Southeast Asia, he may have been protected by some type of asylum.
"10. Despite defense counsel's assurances to the Court there is no indication anywhere on the record that Mr. Thayorath had any knowledge or understanding of the immigration consequences of his plea[.]"
Analysis
Pursuant to G.L. 1956 § 10-9.1-1 et seq., '"post-conviction relief is available to a defendant convicted of a crime who contends that his original conviction or sentence violated rights that the state or federal constitutions secured to him."' Torres v. State, 19 A.3d 71, 77 (R.I. 2011) (quoting Otero v. State, 996 A.2d 667, 670 (R.I. 2010) and Ballard v. State, 983 A.2d 264, 266 (R.I. 2009)). An applicant for postconviction relief bears the burden of proving, by a preponderance of the evidence, that postconviction relief is warranted. Rice v. State, 38 A.3d 9, 16 (R.I. 2012).
PCR petitions such as this one customarily invite application of the test delivered in Strickland v. Washington, 466 U.S. 668 (1984) and its prolific progeny by which to measure the adequacy of a lawyer's performance. The Court need not expand the pages of this Decision unnecessarily with an extensive recitation of what has essentially become hornbook law. A shortened explication will suffice. It is the factual arena (Part B, infra) which requires closer attention, and which, as is usual in these actions, impels resolution of the case.
A. Strickland, et al.
Strickland is the benchmark for a claim of ineffective assistance of counsel and is followed by our Supreme Court. E.g., Brown v. Moran, 534 A.2d 180, 182 (R.I. 1987); LaChappelle v. State, 686 A.2d 924, 926 (R.I. 1996). A Strickland claim presents a two-part analysis. First, the petitioner must demonstrate that counsel's performance was deficient. Strickland, 466 U.S. at 687; Powers v. State, 734 A.2d 508, 521 (R.I. 1999). A strong presumption exists that counsel fulfilled his responsibilities efficiently. Gonder v. State, 935 A.2d 82, 86 (R.I. 2007).
Secondly, even if counsel's performance was deficient, the petitioner must also establish that his attorney's shortcomings "prejudiced" his defense, such that a reasonable probability exists that but for counsel's 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). 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).
With respect to immigration claims, two cases principally bear on counsel's obligations: Padilla v. Kentucky, 559 U.S. 356 (2010) and Lee v. United States, U.S., 137 S.Ct. 1958 (2017). In Padilla, the Supreme Court held that when the immigration consequences of a guilty plea are clear, an attorney has a responsibility to advise a noncitizen defendant of those consequences. If, however, the effects of the plea are not clear or obvious, counsel must at least advise the defendant that his guilty plea may adversely impact immigration circumstances. Padilla, 559 U.S. at 371. In Lee, the Supreme Court agreed that regardless of the strength of the prosecution's case, and irrespective of the remote chance of exoneration at trial, a petitioner is entitled to opt for a trial rather than face certain deportation where his attorney failed to tell him that he would be deported. Lee, 137 S.Ct. at 1967.
Thayorath's reliance on these cases is misplaced. In the first instance, it is beyond peradventure that at the time he was convicted, he was fully aware and, indeed, readily conceded that his presence in the United States was in jeopardy. See Part (B), infra.
In any event, Padilla and Lee offer no safe harbor for Thayorath. Padilla has not been accorded retroactivity, Desamours v. State, 210 A.3d 1177, 1181 n.5 (R.I. 2019), Chaidez v. United States, 568 U.S. 342, 347-48, 358 (2013), and neither has Lee. State v. Ferreira, 302 So.3d 1096, 1097 (La. 2020) (holding that "defendants whose convictions became final prior to Lee cannot benefit from its holding"). See also Collins v. United States, No. 17-cv-3151, 2018 WL 283237, at *2 (C.D. Ill. 2018), Mitchell v. United States, No. 18-CV-4100 (JMF), 13-CR-0070 (JMF), 2018 WL 10076678, at *2 (S.D.N.Y. 2018), Angstadt v. DelBalso, No. 1:17-cv-147, 2018 WL 3865982, at *3 (M.D. Pa. 2018), United States v. Mathieu, No. 09-391, 2018 WL 1453197, at *1 (E.D. La., 2018), Ex parte Rodriguez, No. 09-19-00339-CR, 2020 WL 703350, at *4 (Tex. App. 2020), Stewart v. United States, No. 3:13-CR-50-1, 2020 WL 1164833 (N.D. W.Va. 2019) (Opinion adopting Magistrate's Report and Recommendation, 2019 U.S. Dist. LEXIS 228966).
The above-cited cases are published in Westlaw. The Rodriguez and Stewart cases have not been published. Such rulings generally have no precedential effect or value, and the Supreme Court has directed that they not be advanced for that purpose. See Article I, Rule 16(j) of the Supreme Court Rules of Appellate Procedure; Nunes v. Meadowbrook Development Co., Inc., 807 A.2d 943, 945 n.2 (R.I. 2002) (Mem.) (referencing an earlier version of Rule 16(h)); Whitaker v. State, 199 A.3d 1021, 1029 n.3 and 1030 n.5. (R.I. 2019); Estate of Chen v. Ye, 208 A.3d 1168, 1175 n.8 (R.I. 2019). The Supreme Court has, however, allowed reference to unpublished opinions, not for their precedential worth, but "by way of example," or if they are "instructive," Whitaker, 199 A.3d at 1029 n.3 and 1030 n.5; or, because they are "illustrative of the way in which courts have dealt with [the] issue." Estate of Chen, 208 A.3d at 1175 n.8. It is in that limited fashion that the nonpublished decisions are referenced here.
B. No Facts Support the PCR Application
None of Thayorath's allegations deserve tribute. Bluntly put, it is impossible to accept his fictive assertion that he did not know of his immigration predicament in 1996 when he met with Gloria Ladow, the probation officer who prepared the presentence report (PSR). He knew full well that deportation proceedings might well be in the offing, and he expressed his despair to her that those grim prospects had created significant consternation for his parents:
"Defendant states they are good parents and it is his own fault that he is in difficulty. *** He has a green card and is aware that he faces possible deportation because of these charges. It is a source of regret to him that he has caused his parents great sadness due to his situation." (PSR at 4, 5.)
At the December 10, 1996 sentencing hearing, this Court referenced Thayorath's ominous comments in the PSR and observed that because he was not an American citizen, "deportation problems" may portend. (Tr. 10-11, Dec. 10, 1996.) Thayorath's attorney acknowledged that Thayorath had, indeed, shared that concern with Ms. Ladow:
"MR. LEVY: That's correct. And I also believe that he indicates in the record that he's aware of the potential for deportation consequences." Id. at 11.
The Court then asked prosecutor Carl Levin if an immigration detainer had been placed on Thayorath. Mr. Levin replied that he had not inquired. The following dialog then ensued:
"THE COURT: But I don't know what will happen at the time of release, as to whether the immigration service will be looking to deport this man or not.
"MR. LEVY: Judge, if I may just address that briefly. I don't know the answer to that question. I would only note that because he is from southeast Asia, Indochina specifically, and his family is also from there, there may be some asylum that he was granted at an earlier time, for what it's worth." Id. (emphasis added).
All of that dialogue from the December 10, 1996 sentencing transcript, together with Thayorath's bleak statements to Ms. Ladow about deportation, are patently antithetical to the assertions in his PCR petition that he was "entirely unaware of his immigration status in the United States," that he has never heard the term "deportation" nor of "any immigration consequences related to criminal convictions," that he "did not contemplate nor imagine any immigration consequences as a result of his plea," or have "any knowledge or understanding of the immigration consequences of his plea" "until after his conviction." (PCR ¶¶ 8, 10.)
Thayorath's notion (Mem. of Oct. 5, 2020 at 2-3) that this Court should ignore his conspicuous deportation concessions in the PSR lacks even a patina of substance. There was no dispute at the time of sentencing by either Thayorath or his attorney about the accuracy of the PSR. At the very outset of the sentencing proceedings, the Court expressly inquired as to its accuracy:
"THE COURT: Presentence report has been prepared. Are there any corrections or additions that I need to know about in connection with the presentence report, Mr. Levy?
"MR. LEVY: No, your Honor.
"THE COURT: Mr. Levin?
"MR. LEVIN: No, your Honor." (Tr. 1, Dec. 10, 1996.)
Concessions and admissions of attorneys are binding upon their clients, especially where, as here, they are precise and unequivocal. Lima v. Holder, 758 F.3d 72, 79 (1st Cir. 2014) (reaffirming the rule that an admission of counsel in pleadings or openly in court is binding upon the client "if, in context, it is 'clear and unambiguous"') (citations omitted); McLyman v. Miller, 52 R.I. 374, 161 A. 111, 112 (1932) ("Admissions of attorneys bind their clients in all matters relating to the progress and control of the case.") (citation omitted); accord, Washington Trust Co. v. Bishop, 78 R.I. 157, 158, 80 A.2d 185, 186 (1951).
Furthermore, although Thayorath (who had obtained his GED) had opportunities during allocution to contradict or disclaim all or any portion of his prophetic deportation statement to Ms. Ladow, he never did. During this Court's direct dialogue with Thayorath and counsel, Thayorath never disputed Mr. Levy's acknowledgement that Thayorath was "aware of the potential for deportation consequences." (Tr. 9-11, Dec. 10, 1996.) Thayorath's 1996 concession to Ms. Ladow recognizing his deportation plight has lost none of its credibility or reliability today.
Even by evidentiary standards, Thayorath's silence in the face of counsel's statement that Thayorath is "aware of the potential for deportation consequences" constitutes an adoptive admission. See Rule 801(d)(2)(B), R.I. R. Evid., State v. Alston, 47 A.3d 234, 246-47 (R.I. 2012); see also Rule 804(b)(5) ("Other Exceptions" to the Hearsay Rule).
Thayorath's assertion that the PSR ought not to be considered because it is "confidential" is also groundless. It was, after all, prepared expressly for this Court and the parties, as mandated by Rule 32(c), R.I. R.Cr.P. See United States v. Watts, 519 U.S. 148, 151-52 (1997) ("Highly relevant-if not essential to [the judge's] selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant's life and characteristics.") (quotation omitted).
Moreover, the parties' December 10, 1996 explicit acknowledgement of the complete accuracy of the PSR is the transcribed history of the case. This Court is not in the business of eradicating history, particularly relevant material, the accuracy of which a party has not only fully endorsed in open court, but has also personally helped to create, knowing full well that the Court would rely on it.
In Thayorath's presence during the September 1996 proceedings, the Court stated several times that a presentence report would be prepared for use at the subsequent sentencing hearing. (Tr. 1, 4-5, Sept. 30, 1996.) When Thayorath admitted his deportation apprehensions to Ms. Ladow, he knew full well that she would report them to the Court. Notably, nowhere in his abundant pleadings does Thayorath ever dispute that she apprised him of the purpose of the presentence report. Ms. Ladow wrote:
"On 10-28-96 defendant was interviewed at the Intake Center of the A.C.I. The purpose of the presentence report was explained and defendant was asked what statement he would like to make about the two charges." (PSR at 3.)
Lastly, Thayorath's skewed perception that his attorney offered "assurances" (PCR ¶ 10) that he was safe from deportation is a serious misreading of the record. Counsel provided no such "assurance." He simply speculated that there might have been some removal protection at an earlier time because Thayorath and his family had immigrated from "southeast Asia, Indochina," adding "for what it's worth," at best signifying no more than conjecture. Tr. 11, Dec. 10, 1996.
This Court finds, without reserve, that legal and factual grounds completely preclude Thayorath's specious Strickland claim. Frankly, it hardly matters whether Thayorath knew of his perilous immigration status from his lawyer or from some other source. Neufville v. State, 13 A.3d 607, 614 (R.I. 2011) (affirming denial of petitioner's PCR application in view of, inter alia, "his acknowledgement that he knew he could be deported").
C. Laches
Laches is an equitable defense which debars an action by a party who has negligently sat on his or her rights to the detriment of the other party. School Committee of City of Cranston v. Bergin-Andrews, 984 A.2d 629, 644 (R.I. 2009). The defense has been extended to PCR actions, Raso v. Wall, 884 A.2d 391, 394 (R.I. 2005), and its application '"is generally committed to the discretion of the trial justice."' Bergin-Andrews, 984 A.2d at 644 (quoting O'Reilly v. Town of Glocester, 621 A.2d 697, 703 (R.I. 1993)); Tempest v. State, 141 A.3d 677, 691 (R.I. 2016) (Suttell, C.J., separate opinion).
Despite its underlying criminal case, a PCR application is essentially a civil action. D'Alessio v. State, 101 A.3d 1270, 1275 (R.I. 2014); DePina v. State, 79 A.3d 1284, 1288-89 (R.I. 2013).
To prevail on its claim of laches, the state must prove, by a preponderance of the evidence, that Thayorath failed to exercise due diligence in seeking relief and that the state was prejudiced by the delay. Raso, 884 A.2d at 395. Mere delay in filing for relief is usually, but not always, insufficient; it typically must be a '"delay that works a disadvantage to another."' Id. at 396 (quoting Gorham v. Sayles, 23 R.I. 449, 453, 50 A. 848, 850 (1901)); but see, infra, Desamours, 210 A.3d at 1184, and Mattatall v. State, 947 A.2d 896, 900 n.6 (R.I. 2008) (presuming prejudice from the same inordinate passage of time as in the case at bar).
The state easily surmounts the first tier of its laches defense. An unreasonable and unjustifiable passage of time elapsed before Thayorath filed his June 3, 2020 PCR application. He attempts to excuse his belated filing by relying on the same refrain which this Court has already found entirely without credibility, viz. that he never knew until the end of 2019 or January of 2020 that he was seriously at risk of deportation. The Court renews its unequivocal finding that Thayorath was sorely aware of his immigration predicament in 1996.
Also of notable consequence is the 1998 federal deportation order which was lodged while Thayorath was incarcerated. He proffers indigence as an excuse for failing to seek relief at that time because he "was not in a position to retain counsel until after his release in 2001." (Mem. of Oct. 5, 2020 at 16.) Thayorath may have been indigent, but he certainly knew he was entitled to court-appointed counsel. After all, he had been represented from the outset by an Assistant Public Defender. In addition to the option of merely contacting Mr. Levy or any attorney in that office, Thayorath was also keenly aware that he could simply file a pro se request seeking relief from perceived unfairness or inequities, which is precisely the route he had taken the previous year, when he filed a pro se motion in February of 1997 to reduce his sentence (indeed, with appropriate reference to Rule 35, R.Cr.P.).
Despite that unsettling 1998 deportation order, Thayorath filed no motion, request, or inquiry, pro se or otherwise, until June of 2020 concerning deportation or deficient representation. This Court finds wholly unpersuasive his proffered excuse for failing to act in 1998, when he was formally ordered deported. Indeed, his inaction was not simply negligent; it was purposeful, reflecting a conscious disregard to undertake responsive action in the face of the government's definitive order of deportation. See White v Priester, 78 A.D.3d 1169, 1171 (N.Y.A.D. 2010) (noting that plaintiff's "deliberate inaction, together with the detriment to the defendant caused by the delay, warrants application of the doctrine of laches"); Matter of Bryer, 72 A.D.3d 532, 533 (N.Y.A.D. 2010) (finding that the petitioner was not incapable of safeguarding his legal rights and had no valid excuse for the twelve-year delay; therefore, "petitioner was guilty of gross laches"); Fabrikker v. Charlton Co., Inc., No. 82-0486-MA, 1982 WL 52117, at *7 (D.Mass. 1982) (failing to protest or file action during a protracted interval of delay after clear notice of threat of enforcement of rights constituted "complete disregard of [the party's] responsibilities").
As to the second part of the laches test, there is little question that the state would be significantly disadvantaged if it were required to prosecute these cases at this late date. The likelihood of locating the victims and witnesses is more than impractical if not unrealistic. Even in 1996, Ms. Ladow could not locate Manual Andrade, the shooting victim, when she sought his statement. (PSR at 4.) See Kuhlmann v. Wilson, 477 U.S. 436, 453 (1986) (noting the "erosion of memory and dispersion of witnesses that occur with the passage of time that invariably attends collateral attack") (internal quotation omitted).
Thayorath's meager response to the prejudice prong is not at all productive. He simply reprises his disingenuous incantation that because he never expected to be deported, his protracted delay in filing his PCR petition should be excused, and that the state can cobble together a "respectable case if necessary." (Mem. of Oct. 5, 2020 at 18.) Despite that peculiar response, the state is obliged to prove its case beyond a reasonable doubt, not by a showing of respectability.
Putting an even sharper point on the prejudice element of laches, Thayorath's inexcusable delay has created more of a detrimental impact than he realizes, both for himself as well as for the state. He complains of "the lack of any opportunity" he had "to question this individual [Ms. Ladow] as to how she determined that Mr. Thayorath knew the immigration consequences of his plea." (Mem. of Dec. 15, 2020 at 3.) Due to his inexcusable inaction - and quite apart from his meritless contentions - that plaint shall forever be unanswered. Ms. Ladow died on January 1, 2020.
Ms. Ladow's obituary is reported by the Shalom Memorial Chapel, Cranston, Rhode Island at http://www.shalommemorialchapel.com/?s=ladow, as well as by the Providence Journal: https://www.legacy.com/obituaries/providence/obituary.aspx?n=gloria-ladow&pid=194906049&fhid=3953.
As a result of Thayorath's unjustifiable delay, the state has obviously lost Ms. Ladow's testimony. Given the transcribed record, the state would have good reason to anticipate that she would have unequivocally confirmed that Thayorath had reported his fear of deportation. In any case, as earlier noted, how Thayorath learned in 1996 that he was deportable is not the paramount question; what matters is that he knew it. Neufville, 13 A.3d at 614. The full record of this case demonstrates Thayorath's unmistakable awareness, indeed his dread, of deportation.
Although mere delay, without more, is usually not enough to support laches, it is not a strict rule. Our Supreme Court has, on at least two occasions, recognized the presence of laches in circumstances when the trial court had not addressed the defense, and when laches had not even been proffered by a party but was raised sua sponte by the hearing justice. Most recently, in Desamours, decided in 2019, the petitioner, a native of Haiti, claimed in his PCR application, filed twelve years after he had pled nolo contendere to unlawfully possessing a controlled substance, that his plea should be nullified because (1) the court had not ascertained whether he understood the nature of the criminal charge, (2) the court had failed to satisfy itself that there was a factual basis for the plea, and (3) he had been denied effective assistance of counsel because he "was not advised by anyone" of the immigration consequences of his plea. Desamours, 210 A.3d at 1180.
In addition to offering counterarguments to all of those contentions, the state also, as in the instant case, interposed a laches defense. The trial justice denied the petitioner's claims on their merits and declined to consider the laches defense. Id. at 1181-82. On appeal, the Supreme Court affirmed the trial justice's denial of the petitioner's claims, and even though the hearing justice had not addressed the state's proffer of laches, the Supreme Court held that the record supported the defense, noting that the petitioner could not credibly justify the twelve-year delay:
"Finally, although the postconviction hearing justice did not address the state's affirmative defense of laches, applicant argues on appeal that laches is not applicable in this case. We disagree. ***
"Twelve years passed from the time applicant entered his plea in November 1999 to the filing of his petition for postconviction relief in January 2012. Although it is well settled that 'time lapse alone does not constitute laches[, ]' Rodriques v. Santos, 466 A.2d 306, 311 (R.I. 1983), applicant has not offered a credible explanation for the twelve-year delay. He knew from the moment that he signed the plea form that his plea could result in deportation consequences.
"There is sufficient evidence in the record to support a finding by the postconviction hearing justice by a preponderance of the evidence that the state was prejudiced by the delay. The delay here is particularly worrisome because applicant's affidavit raises new factual disputes. Accordingly, we are of the opinion that applicant's petition for postconviction relief could also have been denied based on the doctrine of laches." Id. at 1184.
In Mattatall, the Supreme Court affirmed the trial court's favorable consideration of a laches defense to a PCR application where the state had not even invoked the defense. The Supreme Court stated in a margin note:
"In rejecting applicant's second postconviction relief application, the court also observed 'that the offense that [applicant] has targeted was committed some twenty-four years ago.' Citing and quoting from this Court's decision in Raso v. Wall, 884 A.2d 391, 394 (R.I. 2005), the hearing justice went on to state in dictum that the '"venerable defense of laches' may well be an appropriate vehicle that would, in any event, preclude the defendant's latest imprecation.'
"We agree with the hearing justice's assessment concerning the defense of laches. In our estimation, it would have been entirely appropriate for the state to have raised the affirmative defense of laches in an instance such as this where an applicant is challenging an event that took place so many years ago. There comes a time when the 'prejudice' precondition to a finding of laches can be presumed. Northern Trust Co. v. Zoning Board of Review of Westerly, 899 A.2d 517, 520 (R.I. 2006) (mem.) ('Given the egregious nature of the delay * * *, presuming prejudice to [the adverse party] gives us no pause.')." Mattatall, 947 A.2d at 900 n.6 (emphasis added).
Conclusion
For a quarter of a century Thayorath never disputed Ms. Ladow or Mr. Levy's reports that Thayorath had admitted in 1996 that he was acutely aware of and feared deportation. Even when confronted with a federal deportation order in 1998, he took no action, never moving to withdraw his guilty pleas, vacate his convictions, or complain about his attorney. Quite apart from finding that Thayorath's substantive claims are entirely meritless, both legally and factually, this Court is also persuaded beyond any doubt that the state's reliance on the defense of laches is well warranted.
Withal, Thayorath's PCR application simply cannot, by the most elastic stretch of the most fertile imagination, support a claim alleging his lawyer's substandard efforts. Instead, Thayorath has served up an assortment of misshapen allegations which are decidedly antithetical to the record and history of this case. Unfounded claims and unsupported, barren charges of deficient representation are not legally competent evidence to establish a denial of effective assistance of counsel. Young v. State, 877 A.2d 625, 630 (R.I. 2005) (citing State v. Turley, 113 R.I. 104, 109, 318 A.2d 455, 458 (1974)).
Unfortunately for Thayorath, the federal government has decided to reopen the deportation measures it had commenced in 1998. However, providing "effective assistance of counsel does not involve the ability to accurately predict the future," Bell v. State, 71 A.3d 458, 462 (R.I. 2013), and lawyers "are also not deemed ineffective for failing to predict changes in the law, or changes in the factual situation." Chin and Holmes, Effective Assistance of Counsel and the Consequences of Guilty Pleas, 87 Cornell L. Rev. 697, 738 (March 2002).
This Court is not insensitive to the privations that Thayorath's deportation will have upon his family. Indeed they may, in some part, exceed his own dislocation, but that does not justify the wholesale nullification of his convictions for having committed vicious criminal offenses. In the final analysis it is the wrongdoer, not society or the criminal justice system, who must bear the onus for such regrettable dislocations.
Thayorath's avenue for relief, if any there be at this point, is through an appeal to the federal immigration authorities, and not by an ill-conceived PCR application which targets, with baseless and wholly unsupported allegations, his defense attorney, whom he acknowledges has a "stellar track-record" (Mem. of Oct. 5, 2020 at 5), and whose efforts, rather than doing Thayorath a disservice, unquestionably resulted in sparing him decades of jail time, many of which would have been without parole. See Lipscomb v. State, 144 A.3d 299, 310 (R.I. 2016) ("We have held that when 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.") (quoting Neufville, 13 A.3d at 614); accord, Perkins v. State, 78 A.3d 764, 769 (R.I. 2013); Rodrigues v. State, 985 A.2d 311, 317 (R.I. 2009).
For all of the within reasons, Thayorath's PCR application is denied.