Opinion
Case No. PM-2020-06775 c/w Case No. PM-2018-8812
04-02-2021
VICTOR CRUZ v. STATE OF RHODE ISLAND
ATTORNEYS: For Plaintiff: Pamela E. Chin, Esq. For Defendant: Judy Davis, Esq.
DECISION
I
Facts and Travel
CARNES , J. In the matters before the Court, Victor Cruz (hereinafter Petitioner or Mr. Cruz) seeks post-conviction relief as to two (2) separate pleas he entered before the Court. One of the cases involved a charge of second-degree murder in case number P1-2016-1705A. In that case, the second-degree murder charge was amended to manslaughter on Monday, March 26, 2018 and Petitioner entered a plea of nolo contendere to that charge. After the Court accepted the plea, the case was continued for sentencing on April 2, 2018 in order to allow the victim's family to give input at sentencing. Petitioner was to be sentenced to a term of twenty (20) years, with fifteen (15) years to serve, and the balance suspended with probation at a sentence hearing the following week on April 2, 2018.
It is beyond dispute that March 26, 2018 was a Monday. The Court takes judicial notice of that fact. See www.timeanddate.com last visited March 24, 2021.
The other case, P2-2016-3211B, involved a charge of assault on a person sixty (60) years of age or older causing bodily injury under G.L. 1956 § 11-5-10. On that same date of March 26, 2018, Petitioner entered a nolo contendere plea and the case was continued for sentencing on April 2, 2018. He was to receive a sentence of five (5) years suspended with probation, and said term was to run concurrent to the sentence in the manslaughter plea.
For ease of reference throughout the instant Decision, the plea in case P1-2016-1705A will be referred to as the manslaughter plea and the plea in case P2-2016-3211B will be referred to as the felony assault plea.
On December 6, 2018, Petitioner filed a handwritten application for post-conviction relief alleging his plea to manslaughter and resulting sentence were in "violation of the United States and the Rhode Island constitution, ineffectiveness of counsel, plea agreement was not made willingly, knowingly, or intelligently but by coercion, and threats, and subjecting him to entering into plea of nolo for the crime of: manslaughter instead of it being involuntary manslaughter or that intent to kill was intended." (See initial filing). This filing turned into case PM-2018-8812 as it related to the criminal case of P1-2016-1705A.
On September 25, 2020, Petitioner, through counsel, filed a verified application for post-conviction relief requesting that his felony assault plea and resulting sentence be vacated. In his filing, Petitioner alleged that this resulting conviction "violated his right to effective assistance of counsel as guaranteed by the Sixth Amendment of the United States Constitution and Article I, section 10 of the Rhode Island Constitution." This filing turned into case PM-2020-06775 as it related to criminal case P2-2016-3211B. Due to the extent that both matters are intertwined, they were consolidated for evidentiary hearing and eventual resolution together.
Counsel was appointed to represent Petitioner, and the Court held an evidentiary hearing on March 12, 2021. Petitioner, Petitioner's mother, and defense counsel all testified at the evidentiary hearing. Several Exhibits were entered as full at said evidentiary hearing, including the plea form for case P1-2016-1705A (Exhibit 3), the plea form for case P2-2016-3211B (Exhibit 4), the Transcript for the plea colloquy on both cases on March 26, 2018 (Exhibit 5), and the Transcript for the sentencing relative to both cases occurring one week later on April 2, 2018 (Exhibit 6). Final arguments were held on March 24, 2021, and Petitioner suggested to this Court that based on the evidence presented, the Petitioner did not knowingly and intelligently waive his rights and voluntarily enter into the plea agreements before the Court. Thereafter, the Court took the matter under advisement. Further facts are set forth later herein from the record and testimony.
The Transcript marked Exhibit 5 appears to have mistaken case numbers entered in its heading. The number of P2/1992-2073A is not related to the Petitioner at all. The number P2-2016-1705A appears to be a slight typographical error as the correct number is P1-2016-1705A, reflecting an indictment and not an information charging document.
II
Standard of Review
'"[P]ost[ ]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."' Lipscomb v. State, 144 A.3d 299, 306-07 (R.I. 2016) (quoting Bell v. State, 71 A.3d 458, 460 (R.I. 2013)). Rhode Island General Laws §§ 10-9.1-1 to 10-9.1-9 govern the statutory remedy of post-conviction relief, which is available to any person who has been convicted of a crime in this state and who thereafter alleges either that the conviction was in violation of the constitution of the United States or the constitution or laws of this state. "[A]n application for post-conviction relief is civil in nature," and the applicant has the burden of proving that "relief is warranted" by a preponderance of the evidence. Ouimette v. Moran, 541 A.2d 855, 856 (R.I. 1988); Mattatall v. State, 947 A.2d 896, 901 n.7 (R.I. 2008).
Rule 11 Superior Court Rules of Criminal Procedure
While Petitioner has not mentioned or discussed Rule 11 of the Superior Court Rules of Criminal Procedure, in light of the evidence, testimony, and arguments set forth, said Rule is worth a mention here.
In pertinent part Rule 11 states:
"The court . . . shall not accept . . . 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."
While Rule 11 serves as a safety net "to ensure that there is compliance with constitutional requirements," it is not intended to "serve as a trap for those justices who fail to enumerate each fact relied on to accept such a plea." See Camacho v. State, 58 A.3d 182, 186 (R.I. 2013); State v. Frazar, 822 A.2d 931, 936 (R.I. 2003). In addition, if a petitioner claims that Rule 11 was not satisfied, he must "bear the burden of proving by a preponderance of the evidence that [he] did not intelligently and understandingly waive [his] rights." State v. Figueroa, 639 A.2d 495, 498 (R.I. 1994).
III
Analysis
A
The Evidentiary Hearing on March 12, 2021
1
Petitioner's Mother
Petitioner's mother testified at the evidentiary hearing. The Court, in considering the evidence and testimony, had the benefit of its own notes of her testimony as well as a "rough transcript" of the evidentiary hearing. References to the pages and lines of the "rough transcript" may differ slightly from any later final version of said "rough transcript."
Petitioner's mother testified credibly. She testified she had a good relationship with her son and spoke on several occasions with defense counsel, who explained the case to her. She actually corroborates much of the testimony of Petitioner and defense counsel. She testified that she spoke to Petitioner on the phone prior to the plea while Petitioner was in prison. (Rough Tr. 52:8, 20-22, Mar. 12, 2021.) She testified that Petitioner had told her he did not want to take the "plea" "at that time." Id. at 52:15. She testified she also visited Petitioner on Sunday. Id. at 52:25. Petitioner's mother testified that she spoke to defense counsel about the manslaughter plea offer. Id. at 53:1-25. She testified she spoke to her son on Sunday and told him "it was a good deal and that he should take the deal and that he should not let it go by because I was worried and then I don't want him to do life." Id. at 54:6-10. When asked what Petitioner's response was to that statement, she testified "he was worried, that he did not want to take the deal, but he would do it for me." Id. at 54:12-14. She further testified that Petitioner said to her "if I'm worried and he's worried about me, then he would do it because the lawyer knows best. You know, every lawyer knows best." Id. at 54:21-24. Petitioner's mother testified that she spoke to Petitioner again after the initial plea on March 26, 2018 and the sentencing on April 2, 2018. When asked how Petitioner was acting, she testified "He was worried. He didn't want to take the deal, but he said he's going to take it because he didn't want to do life." Id. at 55:14-16 (emphasis added). Finally, when asked how the Petitioner was feeling after Petitioner "took the deal," she testified "He was not feeling okay. He - he think that it was not right, you know, because he didn't have time to think about his situation. They gave him one day to think about it, and he had to make his mind that day. If he didn't the deal, it was done." Id. 56:13-18.
While the record is not clear on this, the context of all evidence, exhibits, and testimony before the Court leads to the inference that the "plea" was the manslaughter plea.
Given the timeline in context of this case, the Court infers this would be Sunday, March 25, 2018.
The reference to "one day" is belied by other evidence in this case and Petitioner's mother's own testimony, which references Petitioner speaking to his mother by phone at an earlier time and on Sunday before the actual plea on Monday.
2
Petitioner's Testimony at Evidentiary Hearing
Petitioner was the first witness called at the evidentiary hearing. After being duly sworn, he described his relationship with defense counsel as follows: "Our relationship was pretty good. I didn't have no issues with him. I felt like he was a great attorney. We communicated, I guess, fairly well." (Rough Tr. 5:18-21.) As time progressed, Petitioner maintained his relationship with defense counsel continued to be good as he discussed the issues relative to the murder charge, later amended to manslaughter (hereinafter simply the "second-degree murder" case or the "murder" as referred to in said Rough Transcript). Id. at 6:1-25. When asked about the biggest issue Petitioner had on the murder case, he testified, "Well, the biggest issue on the case I guess would be I didn't have - I really didn't quite understand. I felt like I didn't have all of the information I needed like about the case and about the situation that happened and how - like how he passed away." Id. at 7:5-10. Petitioner acknowledged he got the discovery on the case when it was still a felony assault but he did not get discovery after decedent Arthur Porter passed away. Id. at 7:16-18. When asked if he received the autopsy report, Petitioner testified, "I got the copy three days before I signed the deal." Id. at 7:2-22; 15:3-8. Petitioner testified in August of 2016, he was presented as a bail violator on a felony assault charge with a different victim. Rough Tr. 8:13-18. Petitioner continued that at that point, going forward, he and defense counsel "focused on [the felony assault] case" and "we didn't really talk about the murder case." Id. at 9:10-13. Petitioner acknowledged that there was a hearing with witnesses he attended in December 2016. The electronic file indicates a bail hearing occurred on December 15, and December 16, of 2016 in Providence County Courtroom 9. Petitioner testified that the medical examiner and another civilian witness testified at the bail hearing. Id. at 12:2-15. Petitioner also testified that he "communicated" with defense counsel during that hearing and thereafter he continued to be represented by defense counsel and described that relationship as "good." Id. at 12:14-13:19. Petitioner acknowledged that he and defense counsel "talked a little about both cases" but Petitioner wanted to "focus more on the felony assault case . . ." Id. at 13:22-24.
Petitioner was charged with felony assault on Arthur Porter on or about March 7, 2015. Mr. Porter received injuries and was hospitalized and ultimately passed away on December 19, 2015. Thereafter, the State upgraded the charge to murder from the then-present felony assault charge. The medical examiner linked the decedent's death to complications from the injuries received from Petitioner back on March 7, 2015. (Ex. 5, at 12:1-12; plea colloquy on March 26, 2018.)
This would have resulted in case No. P2-202016-3211B. Petitioner had already been out on bail in case P1-2016-1705A at the time.
Petitioner described the level of communication he had with defense counsel from the end of 2016 until March of 2018. He testified, "like I said, a week before I signed that deal, [defense counsel] me and [defense counsel], we spoke. And he had told me that - - because at first, in my murder case, it was - - it was second-degree murder and it was - - I ended up getting a new prosecutor. That's when my lawyer came to - - he spoke to me. He told me the new prosecutor that was on my case right now was going to amend the murder case to a manslaughter case, but he said we didn't have to worry about - - we didn't have to worry about that until a few months, that we were going to focus on the felony assault case." Id. at 15:25-16:1. Petitioner acknowledged that he knew that the potential sentence for a second-degree murder charge was 20 to life. Id. at 16:12-13. and had an offer on the felony assault case of 18 months to serve. Id. at 16:20-23. When the felony assault case was reached for trial, defense counsel brought a new offer of a 20-year sentence, with 15 to serve on an amended charge of manslaughter, and 5 years' probation on the felony assault case. Id. AT 20:1-12. Petitioner testified he thereafter discussed the merits of whether to take that disposition with defense counsel. Id. at 20:13-15. Petitioner testified that the discussion occurred "three days before [he] signed the deal." Id. at 16:1-20:18. He testified he was "not prepared for that" and he "needed more time" to think about it. Id. at 21:11-16.
Petitioner testified about his discussions with defense counsel on Monday, March 26, 2018. He said, "Yes. Well I don't remember the whole conversation, but I do remember [defense counsel] came and he told me that to make a decision, he told me that it would be in my best interest to sign for this deal. And I still told him I really didn't want to take the deal. I wasn't prepared for it. I needed more time. But then he did convince me to - - that this was basically my own choice, and this would be - - it would have been the best -- for me." Id. at 22:17-23:1. Petitioner testified that he explained his reasons for not wanting the deal were because he did not have time to go through the autopsy report, there was not much discussion of the murder case while he was in prison and Petitioner felt he didn't have all the information he needed to make a decision like that. Id. at 23:2-14.
Petitioner confirmed he spoke to his mother in person for an hour and a half the day before court and told her he "wasn't ready." Id. at 24:2-25. Petitioner further testified that he asked defense counsel for more time on March 26, 2018. He testified he told defense counsel "can I get more time? I'm not sure if I want to sign this. I'm not ready." Id. at 25:17-25. Petitioner testified that defense counsel "seemed a little upset, but he left and for - - a couple of minutes later, he came back and he told me that they said that I was not allowed any more time. It was either just sign the deal or just go to trial on the felony assault and the following month go to trial on the murder case." Id. at 25:22-26:2.
Petitioner identified the plea forms he signed in court on March 26, 2018. Exhibit 3 is the manslaughter plea and Exhibit 4 is the felony assault plea. He identified his signatures and initials on the documents. Id. at 27:17-29:9. Petitioner testified defense counsel went over the rights he was waiving with him and further testified that he did not ask defense counsel any questions. Id. at 29:10-16. When asked if Petitioner told defense counsel of any concerns Petitioner had at that point, Petitioner testified "I just kept saying I just needed more time. But other than that, no." Id. at 29:17-20. When asked about defense counsel's "demeanor" as he was explaining the rights to him, Petitioner testified, "He was pretty straightforward about everything." Petitioner also testified when asked if defense counsel was yelling at him responding "He wasn't yelling at me." Id. at 29:23-30:2. Petitioner testified that defense counsel went over the forms with him separately and defense counsel answered his questions about what the ultimate sentences would be. He testified that his big concern was that he really wanted more time. Id. at 30:14-18. Petitioner also was asked about his allegation in his application for post-conviction relief where he stated he was "forced" to plead on March 26, 2018. He testified that "I just felt like I was pressured. You know, I was--I was pushed against this wall, and there was like - there was nowhere else I can go, no help I can get. And I just - I felt like that was like the only way out was to sign that paper. . . ." Id. at 33:10-20.
On cross-examination, Petitioner acknowledged that during the bail hearing defense counsel cross-examined the State medical examiner thoroughly. Id. at 36:11-13. Petitioner also acknowledged that defense counsel had spoken to an independent doctor probably in August of 2016. Id. at 36:11-20. Petitioner acknowledged the potential for a sentence of life on the murder charge. Id. at 39:5-8. When asked if he knew he didn't have to take the deal, Petitioner responded, "Yeah. I knew I didn't have to take it. But at the same time, I didn't have all the information I needed for the murder case, so . . ." Id. at 39:25-40:4. When asked what information would have changed Petitioner's mind about the plea, he testified, "Well, knowing more of all the health conditions that Mr. Porter was - - that he had and knowing that he wasn't - - that he didn't - - that he did wake up from his coma and then passed away about seven months later." Id. at 40:7-12. Petitioner acknowledged that Mr. Porter never left the hospital after the assault and he testified, "No [Porter never left the hospital] [b]ut he was suffering from a lot of health issues." Id. at 40:13-15. Petitioner acknowledged that defense counsel conferred with a doctor about the autopsy report back in December of 2016 at the bail hearing. Id. at 41:7-14. Petitioner was asked, "Yet the doctor that your attorney spoke to also suggested that [the case] was a homicide because that assault triggered his death, even though [Mr. Porter] had all those complications, right?" Petitioner responded "yes." Id. at 41:20-24. When further pressed for what else he could have discovered, Petitioner responded, "I needed to understand it for myself. I still didn't quite understand what was going on." Id. at 42:3-4.
It is beyond dispute that Mr. Porter never left the hospital after the initial assault.
a
A reference to the Plea Colloquy and Sentence Proceeding Transcripts
Both the Plea colloquy and Sentencing transcripts were admitted as full exhibits during the evidentiary hearing. The Plea colloquy occurred on March 26, 2018 (Exhibit 5 full) and the Sentencing occurred one week later on April 2, 2018 (Exhibit 6 full). The Plea colloquy opens on March 26, 2018 with the Petitioner being duly sworn. (Ex. 5, at 1:2.) Petitioner, through defense counsel, entered a plea of nolo contendere to the felony assault in P2-2016-3211B. Thereafter, the State amended the murder charge in P1-2016-1705A to a charge of manslaughter and again, through defense counsel, Petitioner indicated that there was no objection to the amendment and sought to enter a plea of nolo contendere to the amended charge. Id. at 1:9-2:3. After a ruling allowing the amendment, the Court addressed the Petitioner.
It is at this point that Petitioner tends to somewhat impeach his own testimony described hereinabove. The Court asked Petitioner if he "would like to resolve both cases today?" Petitioner responded "Yes." Id. at 2:15-16. The Court next asked, "Has anybody told you that it has to be both of these cases or it is no deal?" Petitioner responded, "Yes." Id. at 2:18-20. Defense counsel addressed the Court at that point. He indicated that the assignment judge in Courtroom 4 had indicated he would not "force" the state to amend the charge of murder to manslaughter. Defense counsel went on to indicate that the charge was amended as a result of a "plea to the first case, the assault on an individual over 60. We were told if we didn't enter a plea to that that we would go forward not only on the felony assault but also on the murder charge. I did explain that to my client. What I also said is if you're willing to resolve both of these cases, then it would be the assault on an individual over 60, and [the prosecutor] would amend that (sic) to manslaughter." Id. at 2:21-3:7. The Court then asked Petitioner, "Would you like to resolve both of these today?" The Petitioner replied "Yes, your Honor." The Court next asked "In lieu of a trial?" Petitioner again replied, "Yes, your Honor." Id. at 3:8-12. The Court notes Petitioner's response to not one, but two specific questions by the Court indicating a willingness to resolve both cases. (Emphasis added.) Furthermore, there is no suggestion at all on the record that the proceeding before this Court on March 26, 2018 or April 2, 2018 left Petitioner with the impression that he was forced, intimidated, or coerced into resolving both cases. As a matter of fact, the Court told Petitioner, "We're going to have to have a " conversation ." Id. at 2:14 (emphasis added).
A court cannot "force" the State to amend any charge. The exact words used that day by the assignment judge were not fully developed at the evidentiary hearing.
It is beyond dispute that the assault on a person over 60 charge was reached for trial on March 26, 2018. This is case P2-2016-3211B, herein referred to as a "felony assault." The murder/manslaughter was NOT reached for trial on that date. This concept is described in defense counsel's testimony at the evidentiary hearing discussed infra.
From this point on, as described herein, Petitioner misses a number of opportunities to convey to the Court in any way that he did not fully understand any portion of the proceedings.
The Petitioner told the Court he "graduated and did a little bit of college." Id. at 4:2-3. He identified his signature on both plea forms and indicated he had discussed same with his attorney. Id. at 4:10-25. Petitioner acknowledged that his attorney explained all of the provisions on the forms to his "satisfaction." Id. at 5:1-3. He also acknowledged that his attorney explained the elements of the charge on assault on a person of 60 years of age as well as the manslaughter charge and the sentence recommendations on each charge to him." Petitioner indicated at that time, he had no questions about how the elements of the charges applied to him or the sentence recommendations. Id. at 5:4-21. The Court next inquired if he had discussed all the rights he was giving up in return for Petitioner's pleas. He acknowledged he had no question about any of those rights and that he had placed his initials "VC" on the plea forms as he read the material to the right of said initials. Id. at 5:25-6:9. The Court next explained to Petitioner, "Sir, I'm required to go over those same rights with you at this point in time. The purpose of this exercise is so I might satisfy myself that you have an understanding of everything it is that you are giving up in return for your plea . If I feel you have that understanding at that point I will make a decision on whether to accept the plea. Before I do that I am going to ask you a series of questions, all right?" Id. at 6:10-17 (emphasis added). Petitioner next told the Court he was satisfied with his attorney's representation, id. at 6:19-21, and that he understood "by entering a plea of nolo contendere to the charges in both of these cases" he was giving up his right to a trial by a jury or a judge sitting without a jury, along with his right to appeal to the Rhode Island Supreme Court regarding any verdict or other finding of guilt and he was further giving up his right to make the State prove all of the elements of " each of these charges " by proof beyond a reasonable doubt. Id. at 6:22-7:7 (emphasis added). In succession thereafter, Petitioner acknowledged he would be giving up the presumption of innocence "on each of the charges" and would be giving up his privilege against self-incrimination, as well as his right to confront and cross-examine the State's witnesses against him. Petitioner further acknowledged he was giving up his right to present witnesses and evidence on his own behalf, as well as the right to testify in his own behalf in defending himself. Id. at 7:8-21.
After asking other questions, the Court heard the sentence recommendations from the State and then inquired of the Petitioner, "Other than the sentence recommendations, Mr. Cruz, I would like to ask you if anyone in the entire world, this includes your attorney, or the State's attorney, or anyone else, has anyone made any threats to you or any other promises in return for your pleas?" Petitioner replied "No" and thereafter acknowledged that he was entering both pleas "freely and voluntarily" and also that he had signed both plea forms "freely and voluntarily." Id. at 10:10-21.
The State next placed the facts they intended to prove in the respective cases on the record. Such facts were addressed one case at a time. In relation to the manslaughter plea, in pertinent part, the state proffered, "That on or about March 7, 2015 this defendant did cause several blows to be landed about the head of an individual named Arthur Porter, that these blows were delivered without the intent to kill, however, these blows did cause Mr. Porter to be hospitalized from that date until the point where he passed away on December 19, 2015. . . ." Id. at 12:1-7. The Petitioner acknowledged that he admitted and accepted that the facts as they related to each plea were true as to the felony assault plea, id. at 11:13-19, and as to the manslaughter plea. Id. at 12:13-18.
It is important to note here that in his initial filing for post-conviction relief, Petitioner asserted that his "plea agreement was not made willingly, knowingly, or intelligently but by coercion, and threats, and subjecting him to entering into plea of nolo for the crime of: manslaughter instead of it being involuntary manslaughter or that intent to kill was intended ." (Emphasis added.) See Part I, supra, hereof. Here the State prosecutor clearly indicated that the blows delivered by Petitioner were "delivered without the intent to kill." It appears that this factual recitation is something the Petitioner is actively seeking and actually received on March 26, 2018.
Thereafter, the Court made certain findings on the record in Petitioner's presence "Based upon the answers of Victor Cruz here in open court, as well as the statement of the prosecutor," the Court found that "there is a factual basis for Mr. Cruz's pleas" and also that "Mr. Cruz understands the nature and the consequences of each plea of nolo contendere, each plea [was] made voluntarily, intelligently, and with full knowledge and understanding." Id. at 12:19-25. After expressly accepting the Petitioner's pleas, the Court and counsel engaged in a discussion of the sentencing proceeding scheduled one week later on April 2, 2018.
The transcript of the April 2, 2018 proceeding, Exhibit 6, is a full exhibit. The proceeding on April 2, 2018 commenced with the court clerk calling both cases and the Court, in pertinent part, noting that the outset that on March 26, 2018 Petitioner entered a plea of nolo contendere to an amended charge of manslaughter (amended from second-degree murder) and that the Court previously made a finding at the time that said plea was made "knowingly and voluntarily given, and it was intelligent and with full knowledge of its consequences." (Ex. 6, at 1:17-24.) Notwithstanding the Court's opening remarks, Petitioner had an opportunity to speak at the sentencing. He made no claim of incomplete understanding or other fault at the time despite having one week to think about what he was about to say. Id. at 10:11-12:4.
The proceeding was memorable in that some of the victim's family members indicated they would "forgive" Petitioner notwithstanding their loss. Id. at 4:21-23; 7:10-19 (emphasis added).
b
A Reference to the Plea Forms in Each Case
The Plea Form Affidavit and Certificate of the Judicial Officer were entered as full exhibits during the evidentiary hearing. Exhibit 3 full relates to the manslaughter plea and Exhibit 4 full relates to the felony assault plea. The printed portion of each form is standardized. The exhibits differ in the portions that are handwritten and relate to each individual plea. The forms contain Petitioner's signature and the date of March 26, 2018. Petitioner previously acknowledged his signatures on each form on March 26, 2018 in response to the Court's questions. Petitioner also acknowledged that he had "read each form carefully before [he] signed it," and had discussed the forms with his attorney. (Ex. 5, at 4:10-25.) In pertinent part, each form states, "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. I swear to the truth of the above." (Exs. 3 and 4) (emphasis added). As set forth earlier, Petitioner acknowledged that he signed the forms, as well as entered his pleas both "freely and voluntarily." (Ex. 5, at 10:16-21.)
3
Defense Counsel's Testimony at the Evidentiary Hearing
Defense counsel testified at the evidentiary hearing. The Court again refers to a "rough transcript" with the caveat that references to specific pages and lines could differ slightly from any future reference to a final transcript. Defense counsel testified that during the times he represented Petitioner on the second degree murder case (later amended to manslaughter) and the felony assault case, "[Petitioner] as well as his mother talked to me all the time. There was never an issue with that." (Rough Tr. 62:20-22.)
a
The Autopsy Report
Regarding the autopsy report relative to the second-degree murder case, defense counsel testified, "I'm not sure when I received it. I know that the autopsy was probably three or four months after the death before it was signed off by the medical examiner. Once I received that autopsy report, that's when I gave Mr. Cruz a copy of that." Id. at 64:1-6 (emphasis added). Defense counsel described his consulting with an expert, a medical examiner, Dr. Andrews out of Maine, relative to the cause of death of the decedent in the second-degree murder case. Id. at 66:15-24. Defense counsel testified that he used information gained from Dr, Andrews to assist in his cross-examination of the State medical examiner during the bail hearing on the second-degree murder indictment and further, that he had discussions about this with the Petitioner at that time. Id. at 68;1-18. Defense counsel testified that he "believed" he had the autopsy report before the bail hearing. Id. at 68:19-22. Defense counsel was next asked if he would have given a copy of the autopsy report to Petitioner. He responded, "My practice has always been when I get something in, I send it over to the defendant. So I don't have a recollection of when I handed it to him, but I know I would have done that." Id. at 68:23-69:4. Defense counsel described how both the second-degree murder case and the separate felony assault case "tracked together" during their scheduled pretrial conferences. He testified that, as to the sentence on the second degree murder charge, "[T]he State wanted life. From day one they wanted life." Id. at 70:6-10. He continued that there was no discussion initially with the State about amending the charge to manslaughter but in his opinion, as a criminal defense attorney, he felt that "amending [the charge] to a manslaughter would be appropriate under the facts of this particular case." Id. at 70:11-20. Regarding the felony assault case, defense counsel testified that the State's offer was five years, eighteen months to serve, the balance suspended with probation. He testified he communicated the offers to Petitioner. Id. at 70:21-71:5. Defense counsel testified that there came a time when the felony assault case was assigned for trial first but the second-degree murder case did not pass for trial at that time. Id. at 71:6-22.
The bail hearing occurred on December 15 and 16 of 2016, supra.
b
Defense Counsel's Strategy
Defense counsel testified about his "strategy" to keep the cases separate at trial. He testified, "I did not want to try the felony assault before the murder case. And my concern was if convicted on that, (felony assault), that would be introduced into evidence against [Mr. Cruz] at the murder. I was concerned about that. So I had no problem continuing the case. I'd rather do the murder case first." Id. at 71:23-72:6.
c
Change in Prosecutors Resulting in New Offer
The defense counsel described a time where the original prosecutor went on maternity leave and he had discussions with the new prosecutor about amending the second-degree murder charge to a manslaughter charge. Id. at 72:7-73:3. Defense counsel next testified that the felony assault case was still set for trial and the new prosecutor had agreed to amend the second-degree murder charge to manslaughter and defense counsel communicated this to Mr. Cruz. The offer on the manslaughter case was a twenty-year sentence, fifteen to serve, the balance suspended with probation. Id. at 73:4-25. Defense counsel testified he was unsure of exactly when he conveyed this offer to Petitioner "prior to his plea" (on March 26, 2018). Id. at 74:10-17. When pressed further, defense counsel testified, "When I got the offer is when I relayed it to [Mr. Cruz]." Id. at 74:18-19. Defense counsel also testified that he visited Petitioner at prison before the plea on March 25, 2018 and "going over the case and what the offer was and what [Mr. Cruz] wanted to do with it. It was up to him." When asked what Mr. Cruz's response was, defense counsel testified, "At that point he indicated to me that he wanted to go forward with the plea." Id. at 76:9-21. When asked if Mr. Cruz inquired whether it was in his best interest to take the manslaughter plea, defense counsel testified, "I relay the offers to my clients. I don't tell them what to do. It's up to them. If they want to go to a trial, they have every right to do so. I tell them what could happen. And as [Mr. Cruz] even said, I'm matter of fact in that regard. I would tell [Mr. Cruz] what he was looking at, what the guaranteed disposition would be if he chose to take it or he had the option to go to trial. That's how I convey it to all my clients." Id. at 77:1-11. Defense counsel stated that while he was with Mr. Cruz on March 25, Mr. Cruz made no indication that he was reluctant to take the disposition. Id. at 77:17-20.
The Rhode Island Supreme Court Rules of Professional Conduct, Article V, Rule 1.2 (a) states in pertinent part: "In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered . . ." (emphasis added).
d
Felony Assault Reached for Trial - Pleas to Both Cases
Defense counsel testified that the felony assault case was reached for trial on March 26, 2018 and defense counsel "ask[ed] for more time." Id. at 78:14. Defense counsel went on to explain that the prosecutor objected wanting to go forward on the felony assault trial. Defense counsel testified, "I believe that we were told we either start the trial or not. We had been on the trial calendar for a bit, and we were actually sent out to [the trial justice] for that purpose. So I do recall telling [Mr. Cruz] that we can wrap it up or we'd go forward on the felony assault." Id. at 78:16-22. When asked about his own tone or behavior when dealing with Petitioner on March 26, 2018, defense counsel reiterated, "My tone is always the same. My problem is I'm matter of fact. Clients either like me or they don't. I don't sugarcoat. I tell it straight up, but I never force them into anything." Id. at 79:6-10. Defense counsel then testified that the sentencing took place one week later on April 2, 2018. Between the pleas and the sentencing, defense counsel testified that Petitioner made no indication to him that he didn't want to plead or to take his pleas back. Id. at 80:1-3.
This is alleged to have occurred before the assignment justice on the trial calendar.
See Footnote 14, supra. Defense counsel, later in his testimony, as he discussed his own assessment of the State's offer, testified, "I I have never forced a client to sign his name on the dotted line. I always say the same thing, the choice to go to trial is up to you. I can only get you there, and then that's the decision you have to tell me what you want to do." (sic) (Rough Tr. 90:23-91:3).
Cross-examination clearly established that defense counsel had been engaged in the practice of law for over thirty years and had done a significant number of criminal jury trials. Defense counsel, at one point, testified about his observations as far as presenting a defense to the second-degree murder case. Defense counsel stated, "I do remember telling [Mr. Cruz] the [decedent] never left the hospital, which was a concern." Id. at 86:15-17. Defense counsel continued stating, "I'll add that we also had the bail hearing where we had an independent witness describe what happened. And she testified . . . that she could feel the punches in her vehicle, which I also thought was compelling. Taking in (sic) consideration the fact that [the decedent] never left the hospital or he was transferred to hospice and that he never regained his own ability to function, the testimony of that woman who was compelling at the bail hearing and my conversations with Dr. Andrew, I was concerned that could a jury find him guilty of second degree, [?] (sic) absolutely." Id. at 86:18-87:5. Defense counsel testified that at the bail hearing, he raised a number of potential defenses during his cross-examination of the State medical examiner after his review of the autopsy report and consulting with Dr. Andrews. Defense counsel reiterated that Petitioner at no time suggested that he did not want to take the plea when they were at the courthouse for trial on the felony assault case. He testified that the offer to the manslaughter amendment was "the first time we had gotten something off of life in prison." Id. at 93:18-94:2. Defense counsel did acknowledge that Mr. Cruz did ask for more time but wasn't allowed to have any more. Defense counsel stated, "The case was ready for trial, and that's why we were there." Id. at 95:20-25. Defense counsel also testified that he was comfortable that Mr. Cruz understood all his options. When asked if Mr. Cruz voiced any discomfort, defense counsel testified, "If he had told me he was reluctant to take the plea and did not want to do it, he (Mr. Cruz) never would have signed it. I (defense counsel) wouldn't put my name on it." Id. at 94:12-18
Defense counsel also said later in his testimony, "I thought she was - - in my - - my assessments of witnesses - - and I've had enough of them on the stand - - she was scary for the defense." (Rough Tr. 88:17-20.)
Specifically, the cause of death was the focus of some parts of the bail hearing. Defense counsel testified he raised "six or seven medical illnesses [the decedent] suffered from that I placed on the record." Defense counsel testified that after each acknowledgment [of the illness] from the medical examiner, defense counsel asked, "[T]hat could have led to death?" Defense counsel testified that the medical examiner answered "Yes." (Rough Tr. 87:6-22.)
B
Assessment of Evidence, Findings of Fact, and Conclusions of Law
The Court finds the facts and assesses the evidence in accordance with and as set forth below.
Petitioner's claim seeking to vacate his manslaughter plea and felony assault plea, reduced to its essence, in Petitioner's testimony and final argument, is that he did not enter knowing, voluntary and intelligent pleas to manslaughter and felony assault on March 26, 2018. He claims the pleas were so intertwined that the Court should vacate both pleas.
Petitioner does not allege that his defense counsel did anything wrong. In fact, a complete reading of Petitioner's and defense counsel's respective testimonies demonstrates they were in agreement on a number of points. They both indicated they had a good relationship, and Petitioner and defense counsel spoke often and especially after a bail hearing on the second-degree murder charge held in December of 2016. Petitioner described defense counsel as "straight forward" during such discussions while defense counsel referred to himself as "matter of fact" when describing his own behavior and demeanor when engaged in discussions with Petitioner. Both witnesses testified that the primary focus was on the felony assault case, even though that incident occurred after the second-degree murder case.
Petitioner testified that he only received the autopsy report in the second degree murder case on the Friday before his plea to manslaughter, and this was only three days before said plea. As such, Petitioner testified and argued that he did not have adequate time to read and digest the contents of the autopsy report prior to the entry of his plea. He vaguely suggests to the Court that he was brought into Court for trial on March 26, 2018 and the manslaughter plea was somehow imposed upon him in conjunction with the felony assault plea.
Petitioner is somewhat impeached during his own cross-examination when he admitted to being present at a bail hearing on the second-degree murder case in December of 2016 - some fifteen months earlier - and his defense counsel was able to cross-examine the State medical examiner at that hearing. Petitioner is further impeached by his answers, under oath, at the plea colloquy with the Court on March 26, 2018 as described above and also by his failure to mention anything at all during sentencing one week later, on April 2, 2018, or to his defense counsel in the interim or thereafter. This Court places considerable weight on the plea colloquy and sentence hearing transcripts, Exhibits 5 and 6, as well as Petitioner's answers to questions about the actual plea forms, Exhibits 3 and 4, which were brought out during the evidentiary hearing and discussed above.
Defense counsel, on the other hand, testified credibly. While he had no exact recollection of exactly when he gave the autopsy report to the Petitioner, he did testify about his practice of giving discovery and other documents to his clients as soon as he obtained possession of them. Even though the felony assault case was second in time but scheduled for trial first, he credibly explained the strategic pitfalls of having to go to trial on that case before the second-degree murder case despite his opinion that the felony assault case was defensible. Defense counsel further credibly explained that the initial State prosecutor wanted a life sentence to the second-degree murder charge but after a new prosecutor was assigned, the replacement prosecutor agreed to consider a manslaughter amendment and spoke to defense counsel about it. At some point, defense counsel spoke to Petitioner about entering a plea to an amended manslaughter charge in the second-degree murder case. Defense counsel spoke to Petitioner about the merits of the offer and recommended it as a "good deal" given that Petitioner, who was relatively young at the time, risked a sentence of life imprisonment if convicted on the murder charge. In contrast, the manslaughter sentence recommendation was a twenty-year term, with fifteen years to serve, credit for time already served, and the balance suspended with probation. Furthermore, the State would recommend a sentence of five years suspended with probation on the felony assault to be served concurrently. Defense counsel also explained his concerns about the "compelling" and "scary" prosecution witness he expected to testify if the second-degree murder case were to go to trial. That witness would testify about the force and impact of the punch landed on the decedent as described earlier. Defense counsel also opined that the prospect was good for parole release, given the willingness of the decedent's family to "forgive" Petitioner as described above. Petitioner was brought to the courthouse on March 26, 2018 for trial on the felony assault charge. Defense counsel testified he asked for more time, acknowledging Petitioner asked for more time. Defense counsel testified the request for more time before the assignment justice was refused and he was sent to this Court for trial on the felony assault case. After discussions with the prosecutor and Petitioner at the courthouse on March 26, 2018, Petitioner entered pleas on both cases. There is no claim that Petitioner's defense counsel was ineffective at all during any time in their relationship, beginning with the inception of his appointment to the cases and continuing up through Petitioner's pleas on March 26, 2018. There is no allegation that anyone forced, browbeat, or otherwise threatened Petitioner into entering either or both of his pleas on March 26, 2018. Petitioner's silence in the context of all this Court has considered seriously undercuts his application for post-conviction relief in both cases before the Court. Thus, the Court finds that Petitioner has not carried his burden of proof with regard to either claim.
The initial prosecutor was out of work on maternity leave as described, supra.
This particular sentence was actually lower than the initial offer on the felony assault case. The initial State's offer was five years, with eighteen months to serve, and the balance suspended with probation as described, supra.
The Court also finds, based on all evidence and testimony presented, that defense counsel was not ineffective, and that Petitioner knowingly, voluntarily and intelligently entered each plea. Given this particular finding, there is no need to discuss the implications of vacating a plea based on ineffective assistance of counsel as discussed in Hill v. Lockhart, 474 U.S. 52 (1985) and Lispcomb v. State, 144 A.3d 299 (R.I. 2016). However, even if by some stretch defense counsel could be construed as ineffective, the result would be the same and the Court would deny Petitioner's relative applications after application of that case law.
IV
Conclusion
For the reasons set forth herein, Petitioner's application for post-conviction relief in case P1-2016-1705A resulting in a plea of nolo contendere to an amended charge of manslaughter is denied. Furthermore, Petitioner's application for post-conviction relief in case P2-2016-3211B resulting in a plea of nolo contendere to a charge of felony assault on a person over sixty years in age causing bodily injury is denied. Counsel shall submit both an Order and a Judgment for each case.
ATTORNEYS:
For Plaintiff: Pamela E. Chin, Esq. For Defendant: Judy Davis, Esq.