Opinion
Case No. PM-2018-7851
07-20-2020
CHRISTOPHER BLIDI v. STATE OF RHODE ISLAND
ATTORNEYS: For Plaintiff: Andrew H. Berg, Esq. For Defendant: Shannon Signore, Esq.
DECISION ON MOTION FOR SUMMARY JUDGMENT VOGEL , J. Petitioner, Christopher Blidi (Blidi or Applicant) brings this motion for summary judgment asking the Court to vacate his guilty plea and conviction for first degree child molestation sexual assault. Blidi filed his Application for Post-Conviction Relief under G.L. 1956 § 10-9.1-1(a)(1). He claims that his plea was neither knowing, voluntary nor intelligent because he was not informed of the mandatory community supervision requirements set forth in G.L. 1956 § 13-8-30. The State opposes Blidi's motion solely on the argument that the consequences of § 13-8-30 are collateral rather than direct, and as such, failure to advise him of those consequences does not render his plea deficient. Of significance, Blidi does not reference G.L. 1956 § 11-37-8.2.1, the statute that requires him to be electronically monitored for life through an active global positioning system upon release from prison.
In his pro se Application, Blidi complains that there was a "1) Failure to advise of mandatory Comm. Supervision 13-8-30." (Application for Post-Conviction Relief filed October 29, 2018); His memorandum in support of this motion filed by counsel references only § 13-8-30. Pet'r's Mem. Supp. Mot. Summ. J., May 7, 2020.
Facts
A grand jury indicted Christopher Blidi in 2012, charging him with two counts of criminal conduct, one count of first degree child molestation, to wit, penile/vaginal penetration and a second count of assault with intent to commit child molestation. The charges in count one stem from allegations against Blidi that in 2010, he molested Amy, the nine-year old niece of his live-in girlfriend by penetrating her vagina with his penis from behind. The charges in count two refer to another occasion when he purportedly attempted to molest her by removing her underwear, but then stopped when she resisted the assault.
To protect the anonymity of the complaining witness, the Court uses a pseudonym in place of her name.
On March 26, 2014, the case was reached for trial before this trial justice. The Court issued a pretrial order and prepared a written jury questionnaire. The State was prepared to proceed and to present testimony from Amy. However, at the so-called "eleventh hour," Blidi requested permission to change his plea to guilty to the charges in count one, first degree child molestation in violation of § 11-37-8.1. In exchange for his willingness to plead guilty to count one, the State agreed to dismiss the charges in count two. At the plea hearing, the Court reviewed the affidavit signed by Blidi and addressed a variety of issues with him in detail, such as the fact that a guilty plea carried with it the waiver of specific constitutional rights, the immigration consequences for a non-citizen, whether he wished to consult with an immigration specialist, the impact on a citizen's voting rights if incarcerated, and the ramifications of failing to comply with the terms and conditions of probation when he is released. (Tr. 5-8, Mar. 26, 2014.) Blidi also acknowledged knowing that statutory requirements flowed from plea of guilty to first degree child molestation, "including registration as a sex offender . . ." Id. at 10. On an earlier occasion, August 6, 2013, this trial judge conducted a hearing to ensure that Blidi understood the then pending offer of 45 years with 12 years to serve before he rejected it. At that hearing, the Court reviewed with Blidi the maximum penalties for both counts for which he was charged "and the fact that you would have to be registered as a sex offender, there would be statutory requirements of counseling and so forth, and you said you understood." Blidi responded in the affirmative. Id. at 2-3. However, the Court did not address the provisions of § 13-8-30 or § 11-37-8.2.1 at either hearing.
The transcript was inaccurately transcribed as "including registrations, sex offender . . ."
In recent months, multiple postconviction relief applicants have asserted that their pleas should be vacated for failure to inform them of the provisions of § 13-8-30 at the plea stage, and members of the judiciary, myself included, have incorporated the provisions into the plea colloquy, where applicable.
Counsel for the State provided the Court with a narration of facts. She represented that the State was prepared to prove beyond a reasonable doubt that in 2010, Blidi engaged in sexual penetration with Amy, a child under the age of fourteen. The Court asked Blidi if he was guilty of committing the conduct described by counsel, and he responded "Yes." Id. at 8-9. The Court then received a compelling victim impact statement authored by Amy followed by an in-court statement offered by her mother who noted that "[w]hat happened in dark comes to light by one courageous little girl who shows the strength within." Id. at 11. The Court determined that Blidi's decision to change his plea was knowing, voluntary and intelligent and accepted his decision to plead guilty to the charges in count one, first degree child molestation sexual assault. Blidi declined to make an allocution statement, and the Court imposed the agreed upon sentence of fifty years at the Adult Correctional Institutions, fourteen years to serve with the balance suspended with probation and a no contact order with Amy.
On October 29, 2018, Blidi filed this Application for Post-Conviction Relief. The Court conducted a hearing on the Application on December 17, 2019. Both Scott Lutes, Blidi's attorney at the plea stage, and Blidi offered testimony on the issue of whether attorney Lutes had reviewed the provisions of § 13-8-30 with Blidi. Lutes testified that he had no recollection of discussing the community monitoring requirement with the Applicant and was unable to testify as to whether he then had a regular practice of informing clients of the provisions of that statute. (Tr. 7-8, Dec. 17, 2019.) For his part, Blidi testified that when he decided to plead guilty, he then understood that he "... would receive a sentence of 50 years with 14 to serve, the balance suspended, and a total of 50 years ... would be under supervision and probation ..." Id. at 14. He acknowledged knowing that he "would be required to register as a sex offender ..." Id. at 14-15.
Blidi testified that attorney Lutes never informed him of the provisions of the statute and that he first learned of the community supervision requirement after the plea when a fellow prisoner told him about it while he was serving his sentence. Id. at 16, 22-23. Blidi testified that if he had known about the community supervision law, he would not have pled guilty "[b]ecause I would rather go to trial . . . If I knew about that, I would not plead guilty . . . If he told me about that, I'd rather go to trial than to plead guilty." Id. at 17. He explained that he would have gone to trial rather than "wear the GPS the rest of my life." Id. at 18. He added that "It's not about not pleading guilty, because I didn't understand, because he never said anything about GPS the rest of my life." Id. at 18. Reviewing the entirety of the testimony offered at the December 17, 2019 hearing, it is clear that the questioning attorneys and the witnesses confused the community supervision provisions under § 13-8-30 with the electronic monitoring requirement under § 11-37-8.2.1. Pet'r's Mem. Law Supp. of Mot. Summ. J., Ex. 3, May 7, 2020.
Applicable Law
As a person convicted of first degree child molestation, Blidi is subject to the provisions of § 13-8-30 and of § 11-37-8.2.1. Those provisions subject Blidi upon his release from prison both to community supervision and electronic monitoring via an active global positioning system for life. In pertinent part, § 13-8-30 provides:
" § 13-8-30. Community supervision for child molestation offenses.
Notwithstanding any other provision of the general laws to the contrary, any person convicted of first degree child molestation pursuant to § 11-37-8.1 . . . shall, in addition to any other penalty imposed, be subject to community supervision upon that person's completion of any prison sentence, suspended sentence, and/or probationary term imposed as a result of that conviction.
In the case of a person convicted of first degree child molestation pursuant to § 11-37-8.1, community supervision shall be for life and pursuant to the provisions of § 11-37-8.2.1, community supervision shall include electronic monitoring via an active global positioning system for life . . ." Section 13-8-30.
While a person is under community supervision, he or she is "under the jurisdiction, supervision and control of the parole board in the same manner as a person under parole supervision." Section 13-8-32(b). Under § 13-8-32(e) - (j), a person "sentenced" to community supervision can under certain circumstances petition the parole board for termination of community supervision. Section 13-8-32.
"§ 13-8-33. Violations of community supervision—penalties.
Any person who violates a condition of community supervision shall be guilty of a separate offense and, upon conviction, shall be sentenced to no more than one year in prison; provided, if the violation also constitutes a criminal offense the term of imprisonment shall be consecutive to any sentence received for the commission of the new offense." Section 13-8-33.
The provisions that permit early termination of community supervision would not appear to greatly benefit Blidi because he was convicted of first degree child molestation which subjects him to an additional "penalty" under § 11-37-8.2.1, the so-called Penalty for First Degree Child Molestation Sexual Assault--Jessica Lunsford Child Predator Act of 2006. That Act does not give the parole board or the Court discretion to reduce the "penalty" to less than lifetime.
In accordance with the pertinent provisions of § 11-37-8.2.1:
"Every person who shall violate the provisions of subdivisions 11-37-8.2.1(b)(1) . . . shall be electronically monitored via an active global positioning system for life and, as a condition of parole and probation, and for the duration of any period of his or her probation following his or her parole shall attend a sex offender treatment program to address his or her criminally offensive behavior, as determined by the department of probation and parole. The persons subject to this condition of parole shall include:
(1) Persons who commit first degree child molestation sexual assault on or after January 1, 2007 and the victim of the sexual assault is twelve (12) years of age or younger;
. . .
(3) Any person who violates the terms of the global position monitoring conditions shall be guilty of a misdemeanor." Section 11-37-8.2.1.
Blidi brings this petition for postconviction relief pursuant to § 10-9.1-1(a)(1), which provides that:
"(a) Any person who has been convicted of, or sentenced for, a crime, a violation of law, or a violation of probationary or deferred sentence status and who claims:
(1) That the conviction or the sentence was in violation of the constitution of the United States or the constitution or laws of this state . . ." Section 10-9.1-1(a)(1).
"Generally, 'in the case of someone who has entered a plea of nolo contendere (or guilty), [t]he sole focus of an application for postconviction relief . . . is the nature of counsel's advice concerning the plea and the voluntariness of the plea.'" State v. Gibson, 182 A.3d 540, 552 (R.I. 2018) (quoting Guerrero v. State, 47 A.3d 289, 300 (R.I. 2012)). Although a nolo contendere (or guilty) plea "'waives all nonjurisdictional defects,'" it does not prevent the petitioner from asserting that an applicable statute is unconstitutional. Id. at 553 (quoting Torres v. State, 19 A.3d 71, 79 (R.I. 2011)).
To prevail on a claim brought under § 10-9.1-1, the applicant must demonstrate by a preponderance of the evidence "[t]hat the conviction or the sentence was in violation of the constitution of the United States or the constitution or laws of this state [.]" Section 10-9.1-1(a)(1). See also Hazard v. State, 64 A.3d 749, 756 (R.I.2013), Perkins v. State, 78 A.3d 764, 767 (R.I. 2013). '"[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."' Gordon v. State, 18 A.3d 467, 473 (R.I. 2011) (quoting Young v. State, 877 A.2d 625, 628 (R.I.2005)).
Blidi claims that his guilty plea should be vacated because it was not knowing, voluntary and intelligent because he was not first advised that the consequences of his plea included lifetime community supervision under § 13-8-30. As such, he claims that his plea and conviction violate the Due Process Clause of the Fourteenth Amendment which guarantees that defendants receive "the fundamental elements of fairness in a criminal [proceeding]." Spencer v. State of Texas, 385 U.S. 554, 563-64 (1967). Those elements of fairness mean that no person shall plead guilty or nolo contendere to criminal charges unless the decision to enter the plea is knowing, voluntary and intelligent. The decision to plead guilty or nolo contendere must be made with sufficient awareness of the relevant circumstances and the direct consequences of the plea. See Brady v. United States, 397 U.S. 742, 748 (1970). Rule 11 of the Superior Court Rules of Criminal Procedure provides, in pertinent part:
"The court may refuse to accept a plea of guilty and shall not accept such plea . . . 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. . . ." Super. R. Crim. P. 11.
Blidi brings this motion under Rule 56 of the Superior Court Rules of Civil Procedure which provides, in pertinent part:
"(a) A party seeking to recover upon a claim . . . may . . . move with or without supporting affidavits for a summary judgment in the party's favor upon all or any part thereof
. . .
"(c) The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as matter of law . . ." Super. R. Civ. P. 56.
Although Blidi entitles his filing as a motion for summary judgment, it is unclear to this Court why he has done so. Summary judgment "is designed to decide in an expeditious fashion cases presenting groundless claims." Bruce Pollak v. 217 Indian Avenue, LLC, 222 A.3d 478, 481 (R.I. 2019); Hexagon Holdings, Inc. v. Carlisle Syntec Inc., 199 A.3d 1034, 1038 (R.I. 2019). By a grant of summary judgment, the Court determines that all or some of the issues presented should not proceed to a full hearing or trial. The trial justice should " deny summary judgment in a case where there is reason to believe that the better course would be to proceed to a full trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In this case, the parties have been fully heard. The Court conducted a hearing, and the parties have presented their respective arguments in the legal memoranda they have submitted. If the Court were to deny the motion, there would be nothing left to determine. Accordingly, the Court construes this so-called motion for summary judgment as a decision on the merits of Blidi's Application and will determine whether he has proven by a preponderance of the evidence that he is entitled to the relief sought.
Whether Blidi Has Waived His Claim under § 11-37-8.2.1
Based upon the memorandum submitted in support of Blidi's motion, it is clear that Blidi urges this Court merely to adopt the reasoning and findings set forth in a decision issued by another justice of the Superior Court in Furlong vs. State of Rhode Island, KM-2018-0320 (July 3, 2019). Clearly, the hearing justice in Furlong issued a well-reasoned and thorough decision based on her examination of § 13-8-30 as it related to the case before her, one involving an applicant who pled and was convicted of second degree child molestation. The conviction did not carry obligations under § 11-37-8.2.1. Arguably, lifetime electronic monitoring constitutes a far more restrictive sanction than lifetime community supervision.
In her decision granting Furlong's application for postconviction relief, the hearing justice focused in significant part on the fact that "[w]hen Furlong pled nolo contendere to second degree child molestation, he was not aware that as a result of his plea, he would be required to comply with the extensive requirements imposed by the Parole Board beyond the twenty-year sentence to which he agreed." Furlong, KM-2018-0320 at 22. Furlong, who was born on March 28, 1978, was sentenced to a 20-year full sentence on February 12, 2014. He would have been 56 when he completed his probation. State vs. Furlong, K2-2012-0161A, Furlong, KM-2018-0320 at 2. In contrast, Blidi, whose sentence includes at least an additional 36 years following his release from prison, will be 94 years old when his probation ends. When Blidi expressed concerns that he would be required to "wear the GPS the rest of my life," he did not distinguish between the obligation to be electronically monitored before his probation ended and after it was completed. (Tr. 18, Dec. 17, 2019.)
The posture of the two cases differ. Furlong was nearing his eligibility for parole. Blidi does not allege that he is scheduled for release from prison. In Furlong, KM-2018-0320, the Parole Administrator presented the applicant with a document entitled "Notice and Terms of Community Supervision," which describes nine terms and conditions of his sentence and requested that he sign it. Id. at 3-4. He refused to do so.
TERMS AND CONDITIONS "1. Observe the laws of the State of Rhode Island and of the United States and of every jurisdiction . . . "2. Do not leave the State or Rhode Island without the written permission of your parole officer. "3. Reply promptly to any communication from the Probation & Parole division . . . . "4. Carry out all instructions of your parole officer, report as directed and permit him/her to visit your residence and place of employment whenever he/she deems such visits necessary. "5. Immediately inform your parole officer if you are arrested or charged with any criminal offense. "6. No ownership or possession of firearms or weapons of any description. "7. No contact with minors unless expressly approved by your parole officer. "8. Comply with all sex offender registration requirements as provided by law. "9. Sex offender specific counseling with a recognized treatment provider in the field and compliance with all conditions thereof. "Pursuant to Rhode Island Law, these terms and conditions may be revised, altered, and amended by the Parole Board at any time. Any violation of the conditions of community supervision will result in a separate offense and, upon conviction, shall result in a sentence of no more than one (1) year in prison." Id. at 3-4, n.3.
Of note, at the time of his guilty plea, Blidi was informed that he would have to comply with sex offender registration and counseling requirements, conditions #8 and #9 on the list of "terms and conditions" presented to Furlong for signature. (Tr. 2-3, 10, Mar. 26, 2014; Tr. 14-15, Dec. 17, 2019).
Frankly, it does not reasonably follow that Blidi would ignore the provisions of § 11-37-8.2.1 and pursue this Application on the argument that at the age of 94, he would continue to face community supervision under § 13-8-30 for the remaining years of his life.
Section 13-8-30 clearly states that in addition to community supervision, persons convicted of first degree child molestation also are subject to electronic monitoring under another section of the law, § 11-37-8.2.1. "[P]ursuant to the provisions of § 11-37-8.2.1, community supervision shall include electronic monitoring via an active global positioning system for life." Section § 13-8-30. Although the legislature may have referred to electronic monitoring as an additional form of community supervision, it is clear that electronic monitoring does not fall within the purview of § 13-8-30. There is only one statute governing electronic monitoring of a person convicted of first degree child molestation, § 11-37-8.2.1.
The two statutes, § 13-8-30 and § 11-37-8.2.1, are different by sanction and by placement. The provision regarding lifetime community supervision is situated in Title 13, Criminals—Correctional Institutions, Chapter 8, Parole. Lifetime electronic monitoring is included in Title 11, Criminal Offenses, Chapter 37, Sexual Assault. In placement, the provision immediately follows § 11-37-8.2, which sets forth the maximum and minimum sentences for those convicted of first degree child molestation sexual assault. This distinction may be significant in determining whether the consequences of the provisions are part of a person's punishment and thereby a direct consequence of his or her plea.
For example, in rejecting an applicant's contention that the Wisconsin electronic monitoring requirement was punitive and a direct consequence of his plea, the Court in that state considered several factors including the "statutory text, context, and structure" of the applicable statute. The Court noted:
"Lifetime GPS monitoring is found in Wis. Stat. ch. 301 governing corrections, not in the criminal penalties chapters of the statutes. State v. Dugan, 534 N.W.2d 897 (Wis. Ct. App. 1995) (looking to the statutory placement of the consequence). It also follows several other provisions dealing with sex offenders that appear to have similar goals." State v. Muldrow, 900 N.W.2d 859, 866 (Wis. Ct.
App. 2017), aff'd, 912 N.W.2d 74 (Wis. 2018). See also Belleau v. Wall, 132 F. Supp. 3d 1085 (E.D. Wis. 2015).
In urging the Court to follow Furlong, counsel for Blidi focuses solely on the failure to inform him of the provisions of § 13-8-30, community supervision. Blidi specifies in his pro se Application that there was "1) failure to advise of mandatory Comm. Supervision 13-8-30." (Application for Post-Conviction Relief filed October 29, 2018), but makes no mention therein of the failure to advise him of the provisions of § 11-37-8.2.1. Counsel entered his appearance less than three months later, but never amended the Application.
In accordance with § 10-9.1-4, "the application shall . . . specifically set forth the grounds upon which the application is based . . ." Section 10-9.1-4. Not only does Blidi fail to identify the electronic monitoring statute in his Application, he also fails to mention § 11-37-8.2.1 in his memorandum filed in support of the within motion. (Pet'r's Mem. Law Supp. of Mot. Summ. J., May 7, 2020). For her part, in filing a memorandum in opposition to the within motion, counsel for the State likewise limited her argument to community supervision under § 13-8-30 and never mentions § 11-37-8.2.1. (Resp't's Mem. Law Objecting to Pet'r's Mot. Summ. J., July 2, 2020.) Blidi raised arguments under § 13-8-30 and the State responded to those arguments.
This hearing justice is cognizant of the prohibition against acting as an advocate for either the Applicant or the State. State v. Fenner, 503 A.2d 518, 525 (R.I. 1986). Given that prohibition and the fact that this is an adversarial process, the Court is reluctant to rewrite Blidi's Application and the arguments advanced on his behalf. However, Blidi submitted certain exhibits with his memorandum in support of the within motion. One of those exhibits is the transcript from the hearing held on December 17, 2019 which contains Blidi's testimony. Although he confused the community supervision statute with the electronic monitoring statute, his concern clearly was that he would be subjected to electronic monitoring from the time he was released from prison until he died. Blidi testified that he would have gone to trial rather than "wear the GPS the rest of my life." He added "It's not about not pleading guilty, because I didn't understand, because he never said anything about GPS the rest of my life." (Tr. 18, Dec. 17, 2019.) It is clear to this Court that Blidi's concern did not relate to that period of time he would be required to "wear the GPS" between the expiration of his probation at age 94 and his death. His focus was that he was not informed that his plea would subject him to electronic monitoring at all, from his release from prison until he died.
The Court notes that Blidi articulated a claim under § 11-37-8.2.1 when he testified, and a transcript of his testimony was submitted as an exhibit with his memorandum in support of this motion. Pet'r's Mem. Law Supp. of Mot. Summ. J., Ex. 3, May 7, 2020. His pro se Application includes the broad statement "[t]hat the applicant's sentence and conviction are in violation of the United States Constitution and the Rhode Island State Constitution." (Application for Post-Conviction Relief filed October 29, 2018.) For these reasons, this Court will consider his motion as if he had based it on § 11-37-8.2.1 because that was his intent. Although the issue was not properly pled or briefed, it was raised indirectly by Blidi himself and appears on the transcript of his testimony which was submitted in support of his motion. Counsel for the State appeared at the December 17, 2019 hearing and thereby was on notice of the claim by Blidi himself that he was basing his Application on the failure to advise him of the statutory mandate that he "wear the GPS the rest of (his) life." For these reasons, the Court will view Blidi's Application for Post-Conviction Relief as though he had based it on the failure to inform him of the provisions of § 11-37-8.2.1.
The Court must express disappointment that counsel for neither party even cited § 11-37-8.2.1. This is particularly puzzling because the citation to this statute is clearly provided in § 13-8-30 itself. It appears that counsel for both parties merely piggy-backed onto the issues raised and decided in Furlong without delving into the issues pertinent to this case. This Court does not merely cut and paste a decision from another judge as a means of submitting an issue to the Supreme Court for review. Every litigant is entitled to individual consideration of his or her case.
Ineffective Assistance of Counsel Claim Waived
The Court notes that Blidi has waived any claim for ineffective assistance of counsel, opting instead to "solely rely on the involuntary/unintelligent plea argument." Counsel for Blidi specifically states that "the Strickland analysis is not necessary." Counsel instead asks this trial justice to find that Blidi's plea was neither knowing, voluntary nor intelligent and should be vacated because Blidi was not informed of a direct consequence of pleading guilty.
Strickland v. Washington, 466 U.S. 668 (1984).
In an email to the Court dated July 7, 2020, attorney Berg explained:
"I made a deliberate decision to waive the ineffective assistance of counsel argument, and solely rely on the involuntary/unintelligent plea argument. Consequently, the Strickland analysis is not necessary. Mr. Blidi suggests that if this Court finds that he was not fully informed of the direct consequences of his plea, including community monitoring, then his plea must be vacated."
Blidi's decision to waive the ineffective assistance of counsel claim reflects a concession on his part that, even if he was able to demonstrate that his attorney's performance was constitutionally deficient, his claim likely would nonetheless fail because he could not prove such deficiency prejudiced him, and would be unable to prove that he was prejudiced by such deficiency. See Strickland v. Washington, 466 U.S. 668 (1984); Chapdelaine v. State, 32 A.3d 937, 941 (R.I. 2011); Rodriguez v. State, 941 A.2d 158, 162 (R.I. 2008). By waiving the claim of ineffective assistance of counsel, Blidi avoids addressing the potential strength of the evidence against him and the likelihood that he might be sentenced to a higher term of years to serve if convicted after trial. Of course, if convicted at trial, he would be subjected to the statutory requirements under § 13-8-30 and § 11-37-8.2.1. Absent evidence that the outcome would have been different he opted to go to trial rather than enter a plea, Blidi would have been unable to meet Strickland's second prong, prejudice.
§ 11-37-8.2.1 - A Direct or Collateral Consequence of His Plea
The pertinent facts in this case are undisputed. The State does not contest Blidi's three pertinent factual contentions: (1) attorney Lutes failed to advise Blidi of the community and electronic monitoring provisions of the statutes; (2) Blidi had no prior knowledge of the statutes; and (3) had he been informed that he was subject to lifetime electronic monitoring, he would have opted to try the case rather than to plead guilty.
Instead, the State argues that § 13-8-30 is a collateral consequence of Blidi's plea, and as such, his plea was valid even if he was unaware that he would be subjected to community supervision under that statute. "A defendant need only be made aware of the direct consequences of his plea for it to be valid." State v. Figueroa, 639 A.2d 495, 499 (R.I. 1994); Beagen v. State, 705 A.2d 173, 175 (R.I. 1998).
As stated previously, the State does not address the provisions of § 11-37-8.2.1 and never indicates whether or not electronic monitoring also is a collateral consequence of Blidi's plea.
The consequences facing the applicant in Beagen, were based upon sentencing provisions in a federal statute. In that case, the applicant pled nolo contendere to drug charges in the Superior Court and received a suspended sentence with probation. Thereafter, while still on probation, the applicant committed a federal offense which subjected him to an enhanced sentence because he was on probation when he committed it. He sought postconviction relief to vacate his state conviction before being sentenced in federal court. The applicant argued that his attorney's representation was constitutionally deficient because he had not been advised of the risk of an enhanced sentence mandated by federal statute should he commit a federal offense while on state court probation. The possibility that he could face a stiffer sentence in federal court in the future was a collateral rather than direct consequence of his plea. As the Court noted "the federal criminal justice system is outside the authority or control of a Superior Court justice, or any other agent of the State of Rhode Island." Beagen, 705 A.2d at 175.
In Cote v. State, 994 A.2d 59, 63 (R.I. 2010), the applicant argued that the Department of Corrections (DOC) incorrectly calculated good time credits which amounted to "a misrepresentation [of] the minimum time he would be required to serve." He claimed that he had pled nolo contendere and accepted a term of years to serve because he relied upon the DOC's representations regarding the calculation of good time credits which would thereby qualify him for early release. Because those representations later were deemed unlawful and thus inapplicable to his sentence, he claimed that "his plea was not knowing, intelligent and voluntary, and thus should be vacated." Id. at 63. The Court rejected his argument because "[t]he Superior Court has no authority over the DOC's decision-making in this area with respect to individual inmates. Thus, such considerations do not implicate the court's determination of the voluntariness of a plea." Id.
The subject consequences facing Blidi under § 11-37-8.2.1 are based upon a Rhode Island state statute, not the determinations of an outside agency or a different jurisdiction. Although this judge had no decision-making authority to modify the requirements of § 11-37-8.2.1 when Blidi pled guilty to first degree child molestation, that fact in and of itself does not render the provisions of that statute collateral consequences to his plea.
In passing both the community supervision and the electronic monitoring statutes, the legislature responded to a genuine concern that sex offenders of children, even after serving lengthy terms of incarceration and engaging in counseling, constitute a significant threat to children in our community. Statistics demonstrate that they have higher rates of recidivism than other offenders, and when they reoffend, the damage they cause is immeasurable.
"Sex offenders are a serious threat in this Nation. In 1995, an estimated 355,000 rapes and sexual assaults occurred nationwide. U.S. Dept. of Justice, Bureau of Justice Statistics, Sex Offenses and Offenders 1 (1997) (hereinafter Sex Offenses); U.S. Dept. of Justice, Federal Bureau of Investigation, Crime in the United States, 1999, Uniform Crime Reports 24 (2000). Between 1980 and 1994, the population of imprisoned sex offenders increased at a faster rate than for any other category of violent crime. See Sex Offenses 18. As in the present case, the victims of sexual assault are most often juveniles. In 1995, for instance, a majority of reported forcible sexual offenses were committed against persons under 18 years of age. University of New Hampshire, Crimes Against Children Research Center, Fact Sheet 5; Sex Offenses 24. Nearly 4 in 10 imprisoned violent sex offenders said their victims were 12 or younger. Id., at iii. When convicted sex offenders reenter society, they are much more likely than any other type of offender to be rearrested for a new rape or sexual assault. See id. at 27; U.S. Dept. of Justice, Bureau of Justice Statistics, Recidivism of Prisoners Released in 1983, p. 6 (1997). 'States thus have a vital interest in rehabilitating convicted sex offenders."' McKune v. Lile, 536 U.S. 24, 33 (2002).
Even though §§ 13-8-30, et seq. and § 11-37-8.2.1 were enacted to protect our most vulnerable members of the community, that purpose alone does not render the statutes solely remedial rather than punitive. Pursuant to the Due Process Clause of the Fourteenth Amendment to the United States Constitution, a plea must be voluntary and knowing to constitute an effective waiver of a defendant's constitutional rights. McCarthy v. United States, 394 U.S. 459, 466 (1969); The decision to plead guilty or nolo contendere must be intelligent and made with sufficient awareness of the relevant circumstances and the likely consequences. Brady, 397 U.S. at 748. A plea of guilty or nolo contendere is voluntary only if the defendant is fully aware of all direct consequences of waiving his or her constitutional rights. Id.
There are numerous consequences attached to pleading guilty or nolo contendere to a criminal charge. When considering an application for postconviction relief on the claim that defendant was not sufficiently aware of the likely consequences of the plea, the court must determine whether the consequences complained of are "direct" consequences. See, e.g., People v. Cole, 817 N.W.2d 497, 502 (Mich. 2012).
In Smith v. Doe, 538 U.S. 84, 92 (2003), the United States Supreme Court considered whether Alaska's sex offender registration law was a direct or collateral consequence of a sexual assault conviction. The Court determined that if the legislative intent of the statute were to impose punishment, the analysis ends; it would be a direct consequence. "If, however, the intention was to enact a regulatory scheme that is civil and nonpunitive, [the Court] must further examine whether the statutory scheme is 'so punitive either in purpose or effect as to negate the State's intention to deem it civil."' Id. at 92. In determining that the sex offender registration requirement was not so punitive in purpose or effect to negate its civil intent, the Court noted that the statute did not constitute "an affirmative disability or restraint. It imposes no physical restraint, and so does not resemble imprisonment, the paradigmatic affirmative disability or restraint." Id. at 86. The same cannot be said of the electronic monitoring requirement which more closely resembles a restraint and a punishment than does sex offender registration.
If the primary purpose of lifetime community supervision and electronic monitoring is to protect the public from recidivism by those convicted of child molestation, that same concern is also a purpose of incarceration. See State v. Schubert, 53 A.3d 1210, 1217 (N.J. 2012). "[R]ecidivism 'is as typical a sentencing factor as one might imagine."' Almendarez-Torres v. United States, 523 U.S. 224, 230 (1998); State v. Hall, 940 A.2d 645, 659 (R.I. 2008). Regardless of the legislative intent behind § 11-37-8.2.1, its punitive effect would negate the State's claim that supervision and monitoring constitute collateral consequences of Blidi's plea.
In determining whether the requirements of § 11-37-2.1 were direct rather than collateral, the consequences of Blidi's plea, the Court first examines the impact lifetime electronic tracking. A Wisconsin court described how electronic monitoring of convicted sex offenders in that state impacts the life of a person subjected to the system:
"[A] person subject to lifetime GPS tracking must wear a 2.5 x 3.5 x 1.5 inch battery-powered tracking device around his or her ankle at all times for the rest of his or her life. . . . The device can never be removed—even while showering, bathing, and sleeping—sometimes causing discomfort and blistering. Every twenty-four hours, the wearer must plug the device into an electrical outlet to charge for approximately one hour (while, of course, continuing to wear the device). The device 'creates a noticeable bulge under the wearer's pants leg and can become visible if his pants leg raises up, such as when the wearer sits or bends down.' This may allow others to infer that the wearer is a sex offender, subjecting him or her to embarrassment, harassment, or even violence." Muldrow, 900 N.W.2d at 862.
Blidi's conviction subjects him to the obligation as he describes it to "wear the GPS the rest of my life." (Tr. 18, Dec. 17, 2019.) Clearly, the provisions of § 11-37-8.2.1 will significantly impact his daily life. Certainly, Blidi himself believes that to be true. It was the only concern Blidi raised in Court when testifying in support of his Application. He raised it multiple times.
The Court finds guidance in the Michigan Supreme Court's decision in Cole. The Michigan court held that mandatory lifetime electronic monitoring was part of the sentence itself. As such, it was a direct consequence of a guilty or no-contest plea to a charge of child molestation when the defendant was sentenced. The Court noted that the Michigan legislature "chose to include the mandatory lifetime electronic monitoring requirement in the penalty sections of the (two applicable) statutes, and that both statutes can be found in the Michigan Penal Code, which describes criminal offenses and prescribes penalties." 817 N.W.2d at 502. The Michigan court further examined the statutory language and determined that it was punitive in nature. In particular, the applicable statute included words such as "shall sentence" and that which referred to the requirement as being "in addition to" the term of imprisonment imposed by the court. Id. at 502-03.
Comparably, the Rhode Island legislature chose to include mandatory lifetime electronic monitoring in the penalty section of the statutory scheme defining first degree child molestation and the maximum and minimum sentences to be imposed if convicted of the crime.
"§ 11-37-8.1. First degree child molestation sexual assault.
A person is guilty of first degree child molestation sexual assault if he or she engages in sexual penetration with a person fourteen (14) years of age or under." Section 11-37-8.1.
The next statute following § 11-37-8.1 is the penalty section for those convicted of first degree child molestation. It provides:
"§ 11-37-8.2. Penalty for first degree child molestation sexual assault.The section of the law mandating electronic monitoring follows immediately after § 11-37-8.2.
Every person who shall commit first degree child molestation sexual assault shall be imprisoned for a period of not less than twenty-five (25) years and may be imprisoned for life." Section 11-37-8.2.
" § 11-37-8.2.1. Penalty for first degree child molestation sexual assault--Jessica Lunsford Child Predator Act of 2006.
. . .
"(b) Every person who shall violate the provisions of subdivisions 11-37-8.2.1(b)(1)—11-37-8.2.1(b)(2) listed herein shall be electronically monitored via an active global positioning system for life and, as a condition of parole and probation, and for the duration of any period of his or her probation following his or her parole shall attend a sex offender treatment program to address his or her criminally offensive behavior, as determined by the department of probation and parole. The persons subject to this condition of parole shall include:
"(1) Persons who commit first degree child molestation sexual assault on or after January 1, 2007 and the victim of the sexual assault is twelve (12) years of age or younger;
. . .
"(3) Any person who violates the terms of the global position monitoring conditions shall be guilty of a misdemeanor." Section 11-37-8.2.1.
The proximity of § 11-37-8.2.1 to § 11-37-8.2 strongly suggests that electronic monitoring is part of the sentence to be imposed on a person convicted of first degree child molestation. The very title of the statute reveals that it is punitive in nature, Penalty for first degree child molestation sexual assault—Jessica Lunsford Child Predator Act of 2006. Additionally, persons who violate the terms of the electronic monitoring conditions will be guilty of a separate crime. The statutory requirement that subjects Blidi to lifetime electronic monitoring is punitive in nature and will severely restrict his liberty. Consequently, the provisions of 11-37-8.2.1 are direct rather than collateral consequences of a plea. Without information as to those consequences, Blidi's guilty plea was not knowing, voluntary nor intelligent.
§ 13-8-30 and Furlong vs State of Rhode Island
Although this case clearly is distinguishable from Furlong vs. State of Rhode Island, KM-2018-0320 (July 3, 2019), the issues are comparable in that they relate to the requirements under § 13-8-30. In determining the issue of direct rather than collateral consequence in Furlong, the hearing justice examined § 13-8-30 and determined that the community supervision provision of that statute was a direct consequence of Furlong's plea. She noted that § 13-8-32(b) authorizes the Parole Board "to establish any conditions of community supervision that may be necessary to ensure public safety." Id. at 21. She further found that that "unlike the terms and conditions of parole that last only as long as the original sentence imposed by the trial justice, community supervision can extend well beyond the original sentence imposed." Id. at 21-22. Under § 13-8-30, a person convicted of second degree child molestation is subject to community supervision for up to the statutory maximum sentence for the crime, 30 years. Furlong had been sentenced to 20 years but faced an additional 10 years of community supervision under the statute. In this case, Blidi was sentenced to 50 years, but will be subject to the community supervision requirement after he completes his probation at age 94 until he dies.
Section 13-8-30 refers to community supervision as a requirement "in addition to any other penalty imposed." Another section describes a community supervision as a sentence. "After a person sentenced to community supervision has been under supervision for a period of (fifteen (15) years . . ." Section 13-8-32(e). The words "penalty" and "sentenced" suggest a punitive rather than remedial statutory scheme. Additionally, under § 13-8-33, any person who violates community supervision provisions shall be guilty of a separate crime punishable up to one year in prison. Basing her decision on §§ 13-8-30, et seq., the hearing justice in Furlong found that the community supervision requirement was a direct and punitive consequence of Furlong's conviction. She concluded that Furlong's plea was neither knowing, voluntary nor intelligent because he was not informed that his plea would subject him to the provisions of § 13-8-30 and § 13-8-32.
This Court finds the reasoning and conclusions reached by the hearing justice in Furlong regarding § 13-8-30 are sound. However, it is not necessary for this Court to address those issues to decide this case. Regardless of repeatedly citing that statute by section number in papers filed with the Court and in questions and answers provided at the hearing conducted on December 17, 2019, this Court cannot conclude that Blidi even intended to pursue his claim for postconviction relief based upon the failure to inform him of the provisions of § 13-8-30. Unlike Furlong, Blidi did not resist complying with a list of terms and conditions presented to him under § 13-8-30. The only factual basis provided to the Court for his Application was based upon the lifetime obligation that subjects him to electronic monitoring. To view his Application as being brought under § 13-8-30 would elevate form over substance which our Supreme Court has "consistently refused to do, choosing rather to treat a proceeding according to its true nature rather than be limited to the form in which the action is brought." Granger v. Johnson, 117 R.I. 440, 450, 367 A.2d 1062, 1067-68 (1977).
Additionally, having already determined that Blidi did not make a knowing, voluntary, nor intelligent plea because he was not informed that his conviction would subject him to the provisions of § 11-37-8.2.1, this Court need not reach the issue of whether his plea also was deficient for failure to advise him that he would be subject to community supervision under § 13-8-30. See Bucci v. Hurd Buick Pontiac GMC Truck, LLC, 85 A.3d 1160, 1171 (R.I. 2014).
Blidi Did Not Make a Knowing, Voluntary, Intelligent Plea
The Due Process Clause of the Fourteenth Amendment provides that no state shall "deprive any person of life, liberty, or property, without due process of law." U.S. CONST. amend. XIV. It is well established that the Due Process Clause guarantees the fundamental elements of fairness in a criminal [proceeding]." Spencer, 385 U.S. at 563-64. The guarantee of fundamental fairness means that no person shall plead guilty or nolo contendere to criminal charges unless the decision to enter the plea is knowing, voluntary and intelligent. Brady, 397 U.S. at 748.
Under Rule 11 of the Superior Court Rules of Criminal Procedure, the Court shall not accept a guilty plea "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." Super. R. Crim. P. 11.
Because Blidi was not adequately advised of the direct consequences of his guilty plea, his plea does not meet the constitutional guarantee of fundamental fairness, and as a matter of law is constitutionally deficient.
Conclusion
The lifetime mandate of electronic monitoring set forth in § 11-37-8.2.1 is a direct consequence of Blidi's plea. The failure to inform him of this consequence violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution and Rule 11 of the Superior Court Rules of Criminal Procedure. Absent information about electronic monitoring, Blidi did not make a knowing, voluntary and intelligent plea to the charges against him. Blidi's Application for Post-Conviction Relief is granted, and his guilty plea and conviction are vacated. This matter shall be placed on the calendar for trial on both counts, the dismissal of count 2 having been part of the plea agreement. Counsel shall submit an appropriate order for entry.
ATTORNEYS:
For Plaintiff: Andrew H. Berg, Esq. For Defendant: Shannon Signore, Esq.