Opinion
Case No. PM-2014-2770
08-12-2020
DOMENIC DIMUCCIO v. STATE OF RHODE ISLAND
ATTORNEYS: For Plaintiff: Kara Hoopis Manosh, Esq. For Defendant: Judy Davis, Esq.
DECISION MCGUIRL , J. Before the Court is Domenic DiMuccio's (Petitioner) application for postconviction relief (Application). Petitioner supports his Application by asserting two grounds for relief: (1) ineffective assistance of counsel; and (2) violation of his due process rights because of an involuntary and unknowing plea. Jurisdiction is pursuant to G.L. 1956 § 10-9.1-1.
I
Facts and Travel
During the final months marking the end of 2007 and the beginning of 2008, Mr. John Audet moved into Petitioner's residence and began living with him. Over the course of those months, Petitioner sexually assaulted Mr. Audet numerous times; Petitioner also confined Mr. Audet to the premises and would not let him leave. Eventually, law enforcement was made aware of these incidents and in November of 2018, Petitioner was served with an indictment charging him with eleven counts of felony assault, five counts of simple assault, five counts of first-degree sexual assault and one count of kidnapping. Petitioner eventually entered a plea of nolo contendere before Justice Francis J. Darigan, Jr. on December 5, 2011. Petitioner plead to eight counts of the indictment, which were all charged as felony assault. Petitioner was sentenced to twenty years at the ACI with eighteen year to serve on six of the counts, all to run concurrently. On the final two counts, Petitioner was sentenced to ten years the ACI, all suspended, to run consecutively to his sentence on the first six counts. The remaining counts were dismissed in exchange for Petitioner's plea.
Petitioner filed his Application on May 24, 2014, alleging ineffective assistance of counsel and a violation of his due process rights; counsel was appointed to him. In June of 2014, the State filed a motion to dismiss; in June of 2015, Petitioner's counsel filed a "no merit" memorandum and a motion to withdraw. Petitioner's previous counsel withdrew, and his current counsel was appointed on March 8, 2019. A hearing on the Application was held on November 25, 2019. Petitioner did not testify but filed an affidavit in lieu of testimony.
II
Standard of Review
"'[T]he remedy of postconviction relief is available to any person who has been convicted of a crime and who thereafter alleges either that the conviction violated the applicant's constitutional rights or that the existence of newly discovered material facts requires vacation of the conviction in the interest of justice.'" DeCiantis v. State, 24 A.3d 557, 569 (R.I. 2011) (quoting Page v. State, 995 A.2d 934, 942 (R.I. 2010)). The action is civil in nature, with all rules and statutes applicable in civil proceedings governing. See § 10-9.1.-7; see also Ouimette v. Moran, 541 A.2d 855, 856 (R.I. 1988) ("In this jurisdiction an application for postconviction relief is civil in nature."). A petitioner for postconviction relief "bears 'the burden of proving, by a preponderance of the evidence, that such relief is warranted' in his or her case." Brown v. State, 32 A.3d 901, 907 (R.I. 2011) (quoting State v. Laurence, 18 A.3d 512, 521 (R.I. 2011)).
III
Analysis
As mentioned above, Petitioner filed his Application asserting (1) ineffective assistance of counsel, and (2) a violation of his due process rights due to an involuntary and unknowing plea.
A
Ineffective Assistance of Counsel
Petitioner asserts that his plea counsel, Attorney Judith Crowell, rendered him ineffective assistance of counsel by failing to explain the specific terms of the State's offer and making sure Petitioner understood those terms.
In order for this Court to find that Attorney Crowell's representation was constitutionally deficient, Petitioner must show that his "representation fell below an objective standard of reasonableness" and "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 694 (1984). In the plea context, a petitioner 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. State v. Figueroa, 639 A.2d 495, 500 (R.I. 1994) (citing Hill v. Lockhart, 474 U.S. 52, 59 (1985)). Furthermore, a petitioner must also show the results of the proceeding would have been different. Id. at 500 (citing Hill, 474 U.S. at 57). A petitioner claiming ineffective assistance of counsel bears a "heavy burden" in proving his or her claim. Rice v. State, 38 A.3d 9, 17 (R.I. 2012).
Petitioner essentially asserts that Attorney Crowell forced him to plead nolo contendere to the charges on December 5, 2011. Petitioner points to a number of factors to support this claim, (1) Attorney Crowell was aware that he suffered from emotional and intellectual disabilities, as such, Attorney Crowell should have requested more time to review the terms of the State's offer; (2) Petitioner was not made aware that the suspended sentence was to run consecutively to the term of imprisonment; and (3) the plea was presented to Petitioner unexpectedly, quickly, without time to reflect, and without privacy or an opportunity to speak up and ask questions. Petitioner asserts that these factors prejudiced him because he "had always wanted a trial before that point." Pet'r's Aff. 4:25.
This Court finds that Attorney Crowell's actions rendered Petitioner effective assistance of counsel and her actions were well above the objective standard of reasonableness. Strickland, 466 U.S. at 669. Attorney Crowell, who testified at Petitioner's postconviction relief hearing, clearly and unequivocally explained that she did not force Petitioner to accept the State's offer. Attorney Crowell testified that she was aware that Petitioner has mental, emotional, and/or behavioral challenges. PCR Hr'g Tr. 24:17-18, Nov. 25, 2019. However, despite this, Attorney Crowell testified that Petitioner was "quite clear that he understood what he was charged with," that Attorney Crowell explained to him the rights he was giving up, and that Petitioner acknowledged that he understood what was going on. Id. at 7:23-24; 17:13-17; 18:14-16.
Attorney Crowell also ensured that Petitioner made the decision by his own free will which is corroborated by the transcript of Petitioner's December 5, 2011 plea colloquy. Attorney Crowell's testimony, as well as the transcript of Petitioner's nolo contendere plea, demonstrates that Petitioner clearly understood what was happening in court the day of his plea, as well as the rights he was giving up. See Plea Hr'g Tr., Dec. 5, 2011. The plea justice reviewed with Petitioner all of the rights he was giving up, and all of the consequences he was facing. See id. Consequently, the plea justice insured that Petitioner was fully satisfied with Attorney Crowell:
"THE COURT: Are you satisfied with the services of your attorney, Ms. Crowell?
"THE DEFENDANT: Yes, Your Honor." Id. at 7:9-11.
The plea colloquy further demonstrates that the trial justice explained to Petitioner that his suspended sentences would be running consecutively to his sentences of incarceration. Id. at 10: 18-22. Petitioner's contention that he did not have time to review his options and ask Attorney Crowell questions is also without merit—Petitioner, by his own admission, stated that he spoke with Attorney Crowell in the Licht Courthouse cellblock the morning of the plea. See Pet'r's Aff. 3-4. Concurrently, the plea justice also ensured that Petitioner weighed his options as Petitioner responded in the affirmative when asked "[y]ou have considered all of the ramifications in this"? Plea Hr'g Tr. 7:6-8. Petitioner was clearly given, and took advantage of, the opportunity to review his options.
Lastly, Attorney Crowell was permitted to encourage Petitioner to take the State's deal—given the fact that Petitioner faced a lengthy prison sentence. This Court finds no fault in Attorney Crowell's advice to take the favorable deal. See Jolly v. Wall, 59 A.3d 133, 139 (R.I. 2013) (holding that petitioner's attorney did not render ineffective assistance of counsel by pressuring petitioner to accept a favorable plea offer). As such, this Court finds that Attorney Crowell provided Petitioner with effective assistance of counsel. Strickland, 466 U.S. at 693.
Even if this Court found that Attorney Crowell's representation was ineffective, Petitioner could not establish prejudice. Id. Our Supreme Court had 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." Neufville v. State, 13 A.3d 607, 614 (R.I. 2011) (citing Rodriguez v. State, 985 A.2d 311, 317 (R.I. 2009)). Petitioner, who was facing the real threat of receiving a life sentence had he been convicted after trial, clearly benefited when Attorney Crowell secured him a sentence of eighteen years to serve with two years suspended.
Attorney Crowell also obtained Petitioner a favorable sentence because the State agreed to dismiss all sex offenses. This saved Petitioner from the unfavorable consequences of a sex offense conviction, such as sex offender registration. See State v. Gibson, 182 A.3d 540, 547 (R.I. 2018) (holding that the Registration and Community Notification Act provides a duty to register as a sex offender). Additionally, Petitioner was spared from the unpleasant societal stigma of being labeled a sex offender. See McKune v. Lile, 536 U.S. 24, 32 (2002) (discussing the threats and dangers of sex offenders in the United States).
In sum, Petitioner has not shown by a preponderance of the evidence that Attorney Crowell's assistance was ineffective. Strickland, 466 U.S. at 694. Even if Petitioner had demonstrated ineffectiveness, the far more lenient sentence that Attorney Crowell secured for him, as opposed to his potential exposure had he been convicted after trial, forecloses any question of prejudice. Neufville, 13 A.3d at 614.
B
Violation of Petitioner's Due Process Rights
Petitioner also asserts this his nolo contendere plea was not knowing and voluntary, as required by the United States Constitution.
Pursuant to Rule 11 of the Superior Court Rules of Criminal Procedure, the Court must conduct "an on-the-record examination of the defendant before accepting [the] plea [in order] to determine if the plea is being made voluntarily with an understanding of the nature of the charge and the consequences of the plea." State v. Frazar, 822 A.2d 931, 935 (R.I. 2003) (per curiam). Although Rule 11 "does not specify the extent or content of the colloquy, the record as a whole and the circumstances in their totality" must demonstrate to a reviewing court that the defendant's plea was voluntary and intelligent. State v. Feng, 421 A.2d 1258, 1267 (R.I. 1980). As interpreted by the United States Supreme Court, the Constitution mandates that a plea colloquy specifically address (1) the nature of the offense defendant is admitting; (2) the constitutional rights he is surrendering by not going to trial; and (3) the direct consequences of his plea. See Henderson v. Morgan, 426 U.S. 637, 645 (1976); North Carolina v. Alford, 400 U.S. 25, 29 n.3 (1970); Boykin v. Alabama, 395 U.S. 238, 243-44 (1969).
Upon an application for postconviction relief based on a claim that Rule 11 was not satisfied, a petitioner "bears the burden of proving by a preponderance of the evidence that [he] did not intelligently and understandingly waive [his] rights." Figueroa, 639 A.2d at 498. Although Rule 11 was adopted '"to safeguard the rights of criminal defendants who plead guilty or nolo contendere; it did not intend that the rule serve as a trap for those justices who fail to enumerate each fact relied on to accept such a plea."' Frazar, 822 A.2d at 936 (quoting Feng, 421 A.2d at 1269).
Petitioner asserts that he did not understand the terms of the deal, rendering his plea unintelligent and involuntary. However, as already illustrated, the plea justice ensured that Petitioner did in fact understand what he was doing by asking Petitioner whether he understood the ramifications of his plea. Plea Hr'g Tr. 7:6-8. In response, Petitioner said "Yes." See id.
In turn, Petitioner asserts that he was in a "zombie-like state" and that he could "not understand the judge" nor could he "hear the words he was saying." Pet'r's Aff. 3:46. Contra, the transcript of Petitioner's plea colloquy sharply contrasts Petitioner's assertions—the transcript demonstrates that Petitioner and the plea justice engaged in a substantive discussion. See Plea Hr'g Tr. At no point did Petitioner state that he could not hear, or that he was otherwise confused or unable to engage in a discussion. See id.
During this discussion, the plea justice reviewed the offenses Petitioner would be pleading nolo contendere to and which offenses were being dismissed. See Plea Hr'g Tr.; Henderson, 426 U.S. at 645. The plea justice also thoroughly reviewed the constitutional rights that Petitioner was giving up and the consequences of his plea. See Plea Hr'g Tr.; Alford, 400 U.S. at 29 n.3. Petitioner's responses show that he was clearly alert and attentive during these proceedings. See id.; Boykin, 395 U.S. at 243-44. The record also is clear that the plea justice ensured that Petitioner was entering a willing and voluntary plea:
"THE COURT: Now, are you entering this plea knowingly, willingly and voluntarily?
"THE DEFENDANT: Yes.
"THE COURT: No one is forcing you to do this?
"THE DEFENDANT: No, Your Honor." Plea Hr'g Tr. 7:1-5; Frazar, 822 A.2d at 935.
Petitioner's response to the plea justice is dispositive of the question of whether his plea was knowing and voluntary. Further, Attorney Crowell testified that she had no recollection of Petitioner having any health problems that day. PCR Hr'g Tr. 18:9-16. Attorney Crowell testified that she conversed with Petitioner without a problem and that he acknowledged that he understood what was going on. Id.
Moreover, this Court rejects any contention from Petitioner that his plea was not knowing and voluntary due to the actions of Attorney Crowell. This Court does not believe that Attorney Crowell, who is a seasoned and respected member of the criminal defense bar, pulled on Petitioner's shirt, forcing him to say "yes" to the plea justice's questions during a plea colloquy. See Pet'r's Aff. 4:47. Nor does this Court believe that Attorney Crowell otherwise threatened Petitioner into entering a nolo contendere plea. See Jolly, 59 A.3d at 139 (citing Moniz v. State, 933 A.2d 691, 696 (R.I. 2007)) (rejecting petitioner's claim that his plea counsel encouraged him to lie). Attorney Crowell simply believed the State's offer was in the best interest of Petitioner and encouraged him to accept such—counsel is free to vigorously encourage a client to accept a favorable plea offer. See id.
Petitioner has not proven by a preponderance of the evidence that he "did not intelligently and understandingly waive [his] rights." Figueroa, 639 A.2d at 498.
IV
Conclusion
Petitioner has failed to meet his burden of establishing by a preponderance of the evidence that postconviction relief is warranted. Accordingly, for the reasons cited above, the State's Motion to Dismiss is granted and Petitioner's Application is denied.
ATTORNEYS:
For Plaintiff: Kara Hoopis Manosh, Esq. For Defendant: Judy Davis, Esq.