Opinion
PM-17-1825 P1/15-1144BG P2/15-1275AG
03-10-2020
TEVIN BRIGGS v. STATE OF RHODE ISLAND
For Plaintiff: William V. Devine, Jr., Esq. For Defendant: John M. Moreira, Esq. Jeffrey Q. Morin, Esq.
For Plaintiff: William V. Devine, Jr., Esq.
For Defendant: John M. Moreira, Esq. Jeffrey Q. Morin, Esq.
DECISION
KRAUSE, J.
In this application for postconviction relief Tevin Briggs contends that his attorneys, Robert B. Mann and Matthew S. Dawson, provided him with substandard representation. The Court disagrees.
On April 22, 2015, Briggs pled guilty to first degree murder and ancillary offenses and agreed to accept a life sentence in exchange for his promised cooperation in the prosecution of a 2014 gangland shooting where one person was killed and another wounded. Mr. Mann represented Briggs in those negotiated proceedings. Almost a year later, on March 10, 2016, Briggs filed a pro se motion to withdraw his guilty pleas, abrogating his cooperation agreement. In that motion, he accused Mr. Mann of coercing him to plead guilty and to undertake unwanted responsibilities under the cooperation agreement. He further alleged that Mr. Mann had ignored his frequent protests that he did not want to cooperate, and he also criticized him for settling on a life term instead of a lesser sentence.
As a result of those complaints, Mr. Mann was obliged to withdraw from the case, and Mr. Dawson was appointed in his place. Rather than pursue Briggs' ill-advised motion to withdraw his pleas, Mr. Dawson concentrated instead, with Briggs' assent, on trying to restore, as much as possible, the original sentence which Mr. Mann had negotiated. Because Briggs was no longer a cooperative witness, Mr. Dawson was unable to reestablish the full measure of leniency which the state had provided to Briggs. He did, however, persuade the state to eliminate a consecutive life sentence and accord Briggs several years of concurrent time for three firearm offenses which were unrelated to the murder case.
On March 16, 2017, after a sentencing hearing, this Court ordered Briggs to serve a life sentence for first degree murder and fifty consecutive years for offenses ancillary to the shooting. Pursuant to the Criminal Street Gang Sentence Enhancement statute, G.L. 1956 § 12-19-39 (the gang enhancement statute), the Court increased Briggs' sentence with an additional ten-year consecutive jail term. Invoking Rule 35, R.Cr.P, Briggs claims that ten-year sentence is illegal.
In his postconviction relief (PCR) application Briggs complains that Mr. Mann acted too hastily and without having conducted an adequate investigation before negotiating the April 22, 2015 disposition which, he says, he was forced to accept. He also contends that his guilty pleas were flawed because he was not informed of the privations associated with this state's "civil death" statute, G.L. 1956 § 13-6-1. Subjection to that statute, he argues, is a direct, not a collateral, consequence of his plea, and that counsel's failure to apprise him of that statute renders his pleas constitutionally infirm.
An evidentiary hearing on those and other claims raised by Briggs in his PCR petition was convened beginning on January 14, 2020, during which Attorneys Mann and Dawson, as well as Assistant Attorney General John Moreira, testified, along with Briggs himself.
For the reasons set forth herein, the Court denies Briggs' PCR application and rejects his Rule 35 claim that the gang enhancement sentence is illegal.
Postconviction Relief
G.L. 1956 § 10-9.1-1 creates a postconviction remedy "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). "An applicant for such relief bears '[t]he 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)); Barros v. State, 180 A.3d 823, 828 (R.I. 2018).
The proceedings for postconviction relief are considered civil in nature. Ouimette v. Moran, 541 A.2d 855, 856 (R.I. 1988) (citing State v. Tassone, 417 A.2d 323 (R.I. 1980)); DePina v. State, 79 A.3d 1284, 1288-89 (R.I. 2013) (citing §§ 10-9.1-1; 10-9.1-7).
Ineffective Assistance of Counsel
The benchmark for a claim of ineffective assistance of counsel is Strickland v. Washington, 466 U.S. 668 (1984), which has been adopted by the Rhode Island Supreme Court. Brennan v. Vose, 764 A.2d 168, 171 (R.I. 2001); LaChappelle v. State, 686 A.2d 924, 926 (R.I. 1996). Whether an attorney has failed to provide effective assistance is a factual question which a petitioner bears the "heavy burden" of proving. Rice v. State, 38 A.3d 9, 17 (R.I. 2012); Padilla v. Kentucky, 559 U.S. 356, 371 (2010) (noting that Strickland presents a "high bar" to surmount).
When reviewing a claim of ineffective assistance of counsel, the question is whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Heath v. Vose, 747 A.2d 475, 478 (R.I. 2000). A Strickland claim presents a two-part analysis. First, the petitioner must demonstrate that counsel's performance was deficient. That test requires a showing that counsel made errors that were so serious that the attorney was "not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687; Powers v. State, 734 A.2d 508, 522 (R.I. 1999).
The Sixth Amendment standard for effective assistance of counsel, however, is '"very forgiving, "' United States v. Theodore, 468 F.3d 52, 57 (1st Cir. 2006) (quoting Delgado v. Lewis, 223 F.3d 976, 981 (9th Cir. 2000)), and "a defendant must overcome a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance and sound trial strategy." Hughes v. State, 656 A.2d 971, 972 (R.I. 1995); Gonder v. State, 935 A.2d 82, 86 (R.I. 2007) (holding that a "strong (albeit rebuttable) presumption exists that counsel's performance was competent").
Even if the petitioner can satisfy the first part of the test, he must also demonstrate that his attorney's deficient performance was prejudicial. Thus, he is required to show that a reasonable probability exists that but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694; Hazard v. State, 968 A.2d 886, 892 (R.I. 2009).
Ordinarily, tactical decisions by trial attorneys do not, even if hindsight proves the strategy unwise, amount to defective representation. "As the Strickland Court cautioned, a reviewing court should strive 'to eliminate the distorting effects of hindsight.'" Clark v. Ellerthorpe, 552 A.2d 1186, 1189 (R.I. 1989) (quoting Strickland, 466 U.S. at 689); see Knight v. Spencer, 447 F.3d 6, 15 (1st Cir. 2006) ("[C]ourts should avoid second-guessing counsel's performance with the use of hindsight."). "Thus, a choice between trial tactics, which appears unwise only in hindsight, does not constitute constitutionally-deficient representation under the reasonably competent assistance standard." United States v. Bosch, 584 F.2d 1113, 1121 (1st Cir. 1978); Linde v. State, 78 A.3d 738, 747 (R.I. 2013) ("'[T]actical decisions by trial counsel, even if ill-advised, do not by themselves constitute ineffective assistance of counsel.'") (quoting Rivera v. State, 58 A.3d 171, 180-81 (R.I. 2013) and Rice, 38 A.3d at 18).
Pertinent Facts
The circumstances surrounding the shooting and Briggs' involvement are fully set forth in the Supreme Court's decision affirming codefendant Bruce Moten's conviction after his jury trial (in which Briggs was, until his aborted cooperation agreement, supposed to have been a significant witness for the state). State v. Moten, 187 A.3d 1080, 1081-85 (R.I. 2018). In short summary, Briggs, Moten, Henry Lopez and Antonio Fortes were part of a Providence street gang denominated the "Young Niggas in Charge" (YNIC) and its affiliate the "Triple Y," which had a longstanding feud with "Triple C," a rival gang from the Chad Brown area in Providence. In the summer of 2014, the feud intensified, and Briggs fired a few wayward shots at some Triple C members at a car wash. On October 22, 2014, Triple C members Terry Robinson, Delacey Andrade and Kendrick Johnson were ambushed in a parking lot at the Chad Brown housing complex. Robinson was killed, and Andrade was wounded. Johnson escaped unharmed.
Although Briggs, Moten, Lopez and Fortes were the main suspects of the shootings, no one was apprehended or charged until January 10, 2015, when Briggs was arrested on several unrelated gun and drug offenses. After that arrest, Briggs confessed to his role in the Chad Brown shootings, identifying his confederates in a four-hour audio/video recorded statement. Moten allegedly shot and killed Robinson; Briggs shot Andrade; and Lopez and Fortes allegedly assisted by locating the targets. Briggs was thereafter charged with the following nine counts arising out of those shootings, the maximum and/or mandatory penalty for each count is set forth in parentheses:
(1) first degree murder of Terry Robinson (mandatory, parolable, life sentence);
(2) discharging a firearm while committing a crime of violence resulting in Robinson's death (mandatory consecutive, parolable, life sentence);
(3) assaulting Delacey Andrade with a dangerous weapon (twenty years);
(4) discharging a firearm while committing that felony assault resulting in injury to Andrade (twenty mandatory consecutive, nonparolable years);
(5) assaulting Kendrick Johnson with a dangerous weapon (twenty years);
(6) discharging a firearm during a crime of violence (assaulting Kendrick Johnson with a dangerous weapon) not resulting in injury, (ten mandatory consecutive, nonparolable years);
(7) conspiracy to commit assault with a dangerous weapon (ten years);
(8) carrying a pistol without a license (ten years);
(9) carrying a second pistol without a license (ten years).
Upon conviction, which was a certainty in view of Briggs' confession, along with other incriminating evidence, the maximum prison exposure for all of those offenses totaled two mandatory consecutive life sentences, plus 100 years of incarceration, of which thirty consecutive nonparolable years (Counts 4 and 6) were statutorily mandated. G.L. 1956 § 11-47-3.2(a) and (b) et seq. Further, the ten new January 2015 gun/drug crimes, the incriminating evidence of which was impossibly overwhelming, exposed Briggs to an additional 100 years of incarceration upon conviction.
Manifestly, absent significant cooperation from Briggs, who was just shy of his twenty-first birthday, he was potentially facing his entire life in a penitentiary.
Attorney Robert B. Mann
Shortly after his arrest on the gun/drug charges, and having been charged with the Chad Brown shootings, Briggs retained Mr. Mann. The prosecutors immediately provided him with Briggs' recorded confession, along with its 300-page transcript. After reviewing that lengthy recording, which was preceded by proper Miranda warnings, Mr. Mann, an experienced and highly respected criminal defense practitioner, recognized the futility of trying to suppress Briggs' confession. During a number of visits to the Adult Correctional Institutions (ACI), he reviewed the recording with Briggs and advised him that he expected that the confession would be admitted at trial.
Mr. Mann, along with his partner Dana Harrell, herself an accomplished criminal defense attorney, pressed the prosecutors for any other evidence incriminating Briggs in the Chad Brown event. They were provided with the incident report, narratives and statements of detectives and police officers, materials and photographs from the BCI file, as well as a summary of a historical cell-site analysis, which placed Briggs' cell phone in the vicinity of the murder scene and the Tappan Street residence where the culprits had gathered after the shooting.
After amassing what ultimately became the core of the discovery materials in the case, Mr. Mann engaged the prosecutors in plea discussions, with the principal goal of eliminating the mandatory consecutive life sentence. At the PCR hearing, Briggs testified that Mr. Mann warned him that in exchange for Briggs' cooperation, the disposition might be one life sentence followed by twenty consecutive years to serve. Mr. Mann ultimately accomplished more.
At the time the within Decision was published, a formal stenographic transcription of the PCR hearing had not yet been prepared. All references to the PCR testimony are gleaned from this Court's notes which were made contemporaneously with testimony at the hearing.
By early April of 2015, the state, still without any other cooperating suspect and concerned that the grand jury's term would soon expire, acceded to Mr. Mann's request to limit Briggs' exposure to the single life sentence on Count 1, dismissing Count 2, which carried the consecutive life term, and dismissing Count 6 and its consecutive nonparolable ten-year term. The consecutive nonparolable twenty-year term (Count 4) was restyled to suspended time instead. The prosecutors also agreed to accord Briggs ten years of concurrent time on each of the remaining charges in the homicide case (Counts 3, 5, 7, 8, 9) and on three of the firearms offenses in the separate January 2015 case, dismissing the remaining seven charges.
In the end, Mr. Mann had constructed a plea bargain which, in exchange for his cooperation, assured Briggs that, although he would be obligated to serve a requisite twenty years of the single life term, he could potentially be paroled as early as age forty-one. Even though there was no assurance that the Parole Board, which would be aware of Briggs' cooperation, would release him at that early stage, at least, as a result of Mr. Mann's efforts, Briggs would be spared a lifetime of incarceration.
Alleged Pressure to Plead and Cooperate
Briggs' imprecation that Mr. Mann allegedly forced him to plead guilty and cooperate is entirely baseless. Any notion that Briggs harbors that his guilty pleas were somehow a product of coercion or, as he styled it during the PCR hearing, a "coercive atmosphere" created by Mr. Mann, the prosecutors and, indeed, by his own mother, is specious.
Mr. Mann testified that he assiduously took into account Briggs' youthful age, as well as his understandable reluctance to testify against his friends and be labeled a "snitch," a commonplace concern whenever any suspect, regardless of age, considers a decision to cooperate with the state. He further testified that in his decades as a criminal defense attorney he had never allowed a client to plead guilty unless he was entirely confident that his client fully understood and comprehended the process, its implications and its import. He was steadfast in his belief that Briggs had accepted the cooperation agreement and that he was offering his pleas knowingly and voluntarily on April 22, 2015, with full awareness not only of all of the consequences, but, indeed, also of the sentencing benefits which would accrue from doing so. This Court credits that testimony in its entirety.
Also relevant is this Court's own determination, from the record and from its vantage point as a front row observer who had ample opportunities to question and converse with Briggs during court proceedings, that his pleas and acceptance of his obligations under the cooperation agreement were knowingly and voluntarily offered, free from coercion, misunderstanding or overreaching by anyone.
This Court has been afforded thousands of opportunities to determine whether a defendant presents himself as an aware, cognizant and willing participant when making important decisions which require his knowing and voluntary acquiesce, whether pleading guilty, deciding not to testify at his own trial, waiving his right to counsel, admitting violation of probation and waiving a hearing thereon, and myriad other significant decisions a defendant makes. See United States. v. Nicholson, 676 F.3d 376, 380 (4th Cir. 2012) (affirming the denial of the defendant's motion to withdraw his guilty plea based on the plea transcript and the trial judge's own recollection of the defendant's demeanor and appearance, as well as the trial judge's "longstanding experience in similar situations").
A court's own observations are particularly relevant in assessing whether a defendant is competent and aware of his circumstances. See State v. Owen, 693 A.2d 670, 672 (R.I. 1997) (noting the trial justice's reliance upon conversations between the defendant and the judge which reflected the defendant's intelligent and appropriate comments); United States v. Simpson, 645 F.3d 300, 306 (5th Cir. 2011) (the trial court properly considered its own observations of the defendant's demeanor and behavior and the observations of other individuals who had interacted with him); accord, State v. Amaya-Ruiz, 800 P.2d 1260, 1271 (Ariz. 1990) (en banc); see Clanton v. United States, 488 F.2d 1069, 1071 (5th Cir. 1974) (noting that the judge in postconviction proceedings had also presided over prior proceedings with the defendant, including his guilty plea).
During the April 22, 2015 proceedings, this Court neither saw nor heard anything whatsoever which cast any doubt upon Briggs' knowing and voluntary entry of his guilty pleas. He was well spoken, fully engaged and attentive, already with a year of college credits earned. Throughout those proceedings Briggs displayed unfailing attention and answered questions responsively and appropriately. He exhibited no signs of reticence, hesitancy or reluctance when he pled guilty, and he freely acknowledged his willingness to cooperate as a state's witness. He readily acknowledged the penalty he would suffer if he failed to comply with the cooperation agreement:
"THE COURT: Now, Mr. Briggs, without setting the cooperation agreement upon the record, which I don't think is necessary, and I'm not going to expand the pages of this record unnecessarily to do that, I want to be sure that you understand that you are facing a life sentence at least in this case. Do you understand that?
"THE DEFENDANT: Yes, Your Honor.
"THE COURT: As presently set forth, the cooperation agreement expects you to fulfill certain responsibilities and if you don't, you understand that you could be subject to as many as two life sentences.
"THE DEFENDANT: Yes, Your Honor.
"THE COURT: Consecutively to be served.
"THE DEFENDANT: Yes, Your Honor."
* * *
"THE COURT: Has anybody forced you or coerced you to plead guilty to these charges?
"THE DEFENDANT: No, Your Honor.
"THE COURT: At this time then, Mr. Briggs, do you plead guilty or not guilty to these nine counts?
"THE DEFENDANT: Guilty, Your Honor." (Tr. at 6, 14, Apr. 22, 2015.)
Briggs' behavior, demeanor and statements throughout all of those proceedings, during which he expressed under oath his complete satisfaction with the assistance Mr. Mann and Ms. Harrell had provided to him, contradict any intellection that his pleas were coerced or that he had been manipulated by anyone to enter them and accept his responsibilities of the cooperation agreement. See Commonwealth v. Banks, 521 A.2d 1, 13 (Pa. 1987), cert. denied, 484 U.S. 873 (1987). If this Court had discerned a scintilla of indecision or resistance by Briggs, it would have immediately terminated the proceedings and refused to proceed, unless and until there was absolute clarity that Briggs' offer to plead reflected his unequivocal willingness and intention to admit his guilt, as well as his clear understanding and acceptance of his obligation to cooperate fully with the state.
The Court is cognizant that there was, as both Mr. Moreira and Mr. Mann testified, a need to resolve Briggs' situation with a modicum of alacrity. From the state's point of view, the grand jury's term would expire in the upcoming weeks. Moreover, at this juncture the state still had no other key witness except Briggs to present all of the particulars of the case. Put plainly, the state needed Briggs.
From his vantage point, Mr. Mann testified that he knew full well that a client who was the first to offer significant and material cooperation to the state would typically garner the best sentencing benefits. Unquestionably, if Briggs had waited until after the grand jury process had concluded and an indictment had issued without his cooperation, much of his leverage would have been lost. Mr. Mann also worried that if Briggs had delayed, another cooperating suspect might emerge and offer similar or better assistance, whereupon Briggs' advantage would lose virtually all traction. Indeed, Mr. Moreira testified that if Briggs had ignored the opportunity to testify before the grand jury, the state would have withdrawn the offer Mr. Mann had worked so diligently to generate.
Notably, codefendant Henry Lopez, who did become one of the state's important trial witnesses, was rewarded with significant reduction of the charges.
This Court rejects, as fictitious, Briggs' assertions that Mr. Mann or anyone associated with him railroaded Briggs to plead guilty and enter into a cooperation agreement. To the extent that there needs to be a paired credibility appraisal at all, this Court easily finds that Briggs fares very badly and is acutely deficient on a scale with Mr. Mann. The Court also finds entirely without credibility Briggs' testimony that he consistently broadcast to counsel his unwillingness to cooperate and plead guilty.
If there was any overreaching, untoward pressure or threats aimed at Briggs, they did not emanate from his attorneys or the prosecutors. Briggs says they "came from a lot of the guys in the [ACI] facility…I was basically bullied and pressured to not testify against my codefendants." (Tr. 2-3, June 8, 2016.) Query whether Briggs was as bullied as he asserts. At the PCR hearing he said he was relieved to be relocated from the ACI intake area (by far the most likely area where inmates prey upon and pressure others, especially those bent on cooperating) not because he was being pressured to withhold testimony, but solely because, he said, he simply could not stand the twenty-three-hour lockdown with only one hour of recreation.
Briggs' mother attended the PCR hearing and heard Mr. Mann testify that she was supportive of the agreed-upon resolution of the case. Briggs never presented her to rebut that testimony. Indeed, because of her familiarity with the criminal justice system, as a state employee connected to the juvenile justice system, she unquestionably understood that the disposition arranged by Mr. Mann was a favorable one. Indeed, Mr. Mann testified that she was "receptive" to it because she feared losing her son for the rest of his life, regardless of her disapproval of his gang-affiliated lifestyle.
Mr. Mann's Alleged Failure to Investigate
Briggs' criticism that Mr. Mann's investigation of the case was deficient is manifestly unfounded. Mr. Mann was (and is) fully cognizant of counsel's obligation sufficiently to investigate a case and to familiarize himself adequately with the circumstances in order to offer competent and sensible advice to a client. As noted earlier, it is unquestionably clear to this Court that he and Ms. Harrell resolutely undertook that responsibility with utmost diligence. It is noteworthy that Briggs has failed to point to any portion of the discovery materials (which were furnished to Briggs when he demanded them long after he had pled guilty) which in any way exculpates him. See State v. Figueroa, 639 A.2d 495, 500-01 (R.I. 1994) (noting the absence of anything that might show an applicant's innocence and concluding that a trial "most probabl[y]" would have led to a conviction).
Moreover, the American Bar Association standards which limn defense counsel's pretrial discovery and investigatory obligations recognize with approbation instances where, as here, there is significant benefit to be obtained by taking advantage of a favorable disposition when great exposure is certain to follow if that early plea opportunity is neglected:
"While defense counsel generally has a duty to seek crucial items of discovery before plea negotiations are completed, there may be some cases in which defense counsel legitimately determines that a better plea agreement may be available if the defendant enters a plea at a point in time before all of his or her discovery rights may apply. Thus, an 'appropriate' investigation may be quite limited in certain cases - for example, where a highly favorable pre-indictment plea is offered, and the pleas offered after indictment are likely to carry significantly more severe sentences." ABA, Criminal Justice Pleas of Guilty Standards, Commentary, §14-3.2(b), p. 123.
Courts, too, have recognized that a defendant's failure to take early advantage of a beneficial disposition creates a significant risk of conviction on all counts, including some that carry mandatory terms of incarceration which are frequently bargained away in a negotiated plea, as Mr. Mann was able to accomplish here. See United States v. Gaines, 200 Fed.Appx. 707 (9th Cir. 2006), cert. denied, 540 U.S. 1150 (2007) (upholding consecutive sentences totaling statutorily mandated 182 years where the defendant had declined a twenty-five year pretrial offer); People v. Carpenter, 88 A.D.3d 1160 (N.Y.App.Div. 2011) (affirming imposition of a mandated sentence of fifteen years to life where defendant turned down a pretrial disposition which substituted lesser charges and would have resulted in a considerably lighter sentence).
The fact that attorneys Mann and Harrell may not have collected every item of discovery matters not at all here. Indeed, as Mr. Mann testified (and entirely unrebutted by Briggs), the formal discovery materials which were later obtained firmly corroborated what he and Ms. Harrell had gathered in their own in-depth investigation. In cases where a defense attorney's investigative efforts fall far short of the labors expended here, the Supreme Court has rejected claims of ineffectiveness. In Rodrigues v. State, 985 A.2d 311, 316-17 (R.I. 2009), an "experienced and respected" defense attorney had never received any discovery and had not reviewed a video recording which the defendant asserted would highlight potentially exculpatory facts. Counsel was nonetheless aware of the strength of the state's evidence and the circumstances surrounding the case, and the defendant admitted in open court that she knew full well that she had been distributing contraband. There, as here, counsel was able to secure a favorable disposition and a much shorter sentence than the defendant might have otherwise received. Accord, LaChappelle, 686 A.2d at 927 (denying claim of ineffectiveness where counsel's failure to interview witnesses was not inappropriate, particularly "in light of the [defendant's] own [statements] to the police").
Furthermore, it is clear, as Briggs conceded at the PCR hearing, that the only reason he wanted the discovery package was to ascertain, if he could, why the police had focused their attention on him for the shooting. He had absolutely no interest in reading about the events or who was involved. He was, obviously, clearly cognizant of those details. What Briggs really wanted to discover was who may have informed on him. Indeed, Briggs conceded at the hearing that ascertaining who had told the police "to look at [Briggs] for the murder" was the "driving force behind all the inquiries" he made of Mr. Mann to obtain the discovery.
This Court finds, unreservedly, that under no circumstances has Briggs demonstrated that Mr. Mann shirked his investigative responsibilities in this case. Indeed, had he not secured the early plea bargain which shielded Briggs from a certain lifetime of incarceration, he would have done a significant disservice to Briggs.
"Civil Death" Statute
Briggs also faults counsel for not alerting him to the potential privations under this state's so-called civil death statute, § 13-6-1, which apply to a Rhode Island inmate who is serving a life sentence. That type of statute, which has been repealed in all but a few other jurisdictions (New York and the Virgin Islands), still maintains vitality in Rhode Island. The Rhode Island statute "unambiguously declares that a person [] who is serving a life sentence, is deemed civilly dead and thus does not possess most commonly recognized civil rights." Gallop v. Adult Correctional Institutions, 182 A.3d 1137, 1141 (R.I. 2018); Zab v. Zab, 203 A.3d 1175, 1175 (R.I. 2019). Section 13-6-1 provides:
"§ 13-6-1. Life prisoners deemed civilly dead. - Every person imprisoned in the adult correctional institutions for life shall, with respect to all rights of property, to the bond of matrimony and to all civil rights and relations of any nature whatsoever, be deemed to be dead in all respects, as if his or her natural death had taken place at the time of conviction. However, the bond of matrimony shall not be dissolved, nor shall the rights to property or other rights of the husband or wife of the imprisoned person be terminated or impaired, except on the entry of a lawfully obtained decree for divorce."
Tracing the origins of such a statute, the Gallop Court explained: "The loss of civil status as a form of punishment is a principle that dates back to ancient societies. Gabriel J. Chin, The New Civil Death: Rethinking Punishment in the Era of Mass. Conviction, 160 U. Pa. L. Rev. 1789, 1795 (2012). The ancient Greeks were among the first to divest criminals of their civil rights, 'including the right to appear in court, vote, make speeches, attend assemblies, and serve in the army.' Bogosian v. Vaccaro, 422 A.2d 1253, 1255 n.1 (R.I. 1980). The rationale behind the enactment of civil death legislation was originally based on the principle that a person convicted of a crime was dead in the eyes of the law. See Chin, 160 U. Pa. L. Rev. at 1795. Rhode Island adopted its civil death statute in 1909. See G.L. 1909, ch. 354, § 59. By 1939, eighteen states still had civil death statutes in effect. Chin, 160 U. Pa. L. Rev. at 1796; see also Civil Death Statutes-Medieval Fiction in a Modern World, 50 Harv. L. Rev. 968, 968 n.1 (1937). While statutes imposing collateral consequences for convicted persons have almost all but vanished, New York, the Virgin Islands, and Rhode Island still retain civil death statutes for persons sentenced to life imprisonment. Chin, 160 U. Pa. L. Rev. at 1798; See § 13-6-1; N.Y. Civ. Rights Law § 79-a(1); V.I. Code Ann. tit. 14, § 92. Repeal is the province of the Legislature." Gallop, 132 A.3d at 1140- 41.
Briggs contends that application of the statute is a direct, not a collateral, consequence of his conviction and that counsel's failure to notify him of its operation renders his plea a nullity. Briggs is mistaken.
At the outset, this Court finds that Briggs has entirely failed to establish standing to make this claim. He cannot identify a single privation he has allegedly suffered as a result of the statute's operation. That deficiency, by itself, foredooms his argument, as he has failed to demonstrate a "concrete adverseness" or a real and immediate threat of injury, not one which is "conjectural or hypothetical." Baker v. Carr, 369 U.S. 186, 204 (1962), O'Shea v. Littleton, 414 U.S. 488, 494 (1974). Accord, Spencer v. Kemna, 523 U.S. 1, 7 (1998); Morse v. Minardi, 208 A.3d 1151, 1156 (R.I. 2019) ("The party asserting standing must have an injury in fact that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical.") Id. (quoting Warfel v. Town of New Shoreham, 178 A.3d 988, 991 (R.I. 2018)).
Secondly, Briggs asserts that he "would not have entered his guilty pleas if he had known of the consequences of the civil death statute." (Mem. at 19, Feb. 21, 2020.) He seriously misreads the record.
Although at the conclusion of his direct testimony Briggs stated that he was not apprised of the statute or its consequences, he never said that if he had known of the statute's privations, he would not have entered his guilty plea. Such a clear disavowal is an indispensable prerequisite to vacating his conviction, as he "must show a reasonable probability that, but for [counsel's] error, he would not have entered the plea." United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004) (emphasis added); Carpenter v. State, 796 A.2d 1071, 1074 (R.I. 2002) ("Even assuming that the applicant was not advised of the [federal] sentencing-enhancement consequences if he committed future crimes, the applicant did not assert or provide any evidence that this information would have dissuaded him from pleading nolo contendere. In addition, the federal sentencing enhancements in this case are collateral consequences to the nolo plea.").
'"When evaluating a claim for ineffective assistance of counsel in a plea situation, the defendant must demonstrate a reasonable probability that but for counsel's errors, he or she would not have pleaded guilty and would have insisted on going to trial' and, [more] importantly, that the outcome of the trial would have been different." Neufville v. State, 13 A.3d 607, 610-11 (R.I. 2011) (quoting Figueroa, 639 A.2d at 500) (citing Hill v. Lockhart, 474 U.S. 52, 59 (1985)) (emphasis added). See also Johnson v. Fogg, 653 F.2d 750, 753 (2d Cir. 1981) (pointing out that petitioner "does not even allege that his decision to plead guilty would have been altered by fuller knowledge of the consequences of his plea, even though he would have had to establish this as a prerequisite" to his petition) (emphasis added); Rodrigues, 985 A.2d at 317 (observing that the petitioner had failed to point to any material, save for a claimed lost videotape, that was not provided and that she had wholly failed to demonstrate that such "phantom proof" would have influenced her decision to plead guilty). Drawing from the United States Supreme Court's Hill decision, which was embraced by our Court in Neufville, supra, the Fourth Circuit said:
"The Strickland approach applies in the context of a guilty plea, and the Supreme Court has clarified the contours of the 'prejudice' standard for situations when there is no trial. In Hill v. Lockhart, 474 U.S. 52 (1985), the Court held that, in the plea context, counsel's deficient performance is prejudicial only if 'there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial.' Hill, 474 U.S. at 59, 106 S.Ct. 366. This is an objective inquiry, see Hooper v. Garraghty, 845 F.2d 471, 475 (4th Cir. 1988), and dependent on the likely outcome of a trial had the defendant not pleaded guilty. Hill, 474 U.S. at 59-60." Meyer v. Branker, 506 F.3d 358, 369 (4th Cir. 2007).
With virtually no chance of establishing his actual innocence or successfully contesting the merits of the case at trial, and a record barren of any assertion that he would not have pled guilty if he had been aware of § 13-6-1, Briggs' claim is entirely without legs.
In any event, even on its merits, Briggs' claim is meritless because application of the civil death statute is a collateral, not a direct, consequence of Briggs' status at the ACI.
A defendant need only be made aware of the direct, not collateral, consequences of his plea to ensure its validity. Chaidez v. United States, 568 U.S. 342, 350 (2013). Beagen v. State, 705 A.2d 173 (R.I. 1998). "Counsel's failure to inform a defendant of the collateral consequences of a guilty plea is never a violation of the Sixth Amendment." Chaidez (endorsing that maxim and noting that every federal circuit court which has considered the issue has reached the same conclusion).
"A consequence is deemed collateral, rather than direct, if its imposition 'is controlled by an agency which operates beyond the direct authority of the trial judge.'" Beagen, 705 A.2d at 175 (emphasis added) (quoting Figueroa, 639 A.2d at 499). As further explained by the New Hampshire Supreme Court in State v. Ortiz, 44 A.3d 425, 429 (N.H. 2012):
'"Direct consequences may be described as those within the sentencing authority of the trial court, as opposed to the many other consequences to a defendant that may result from a criminal conviction.' Smith, 697 S.E.2d at 181-82; see United States v. Amador-Leal, 276 F.3d 511, 514 (9th Cir. 2002) ("The distinction between a direct and collateral consequence of a plea turns on whether the result represents a definite, immediate and largely automatic effect on the range of the defendant's punishment." (quotations omitted)). In contrast, collateral consequences 'require[] application of a legal provision extraneous to the definition of the criminal offense and the provisions for sentencing those convicted under it.' Diamontopoulas v. State, 140 N.H. 182, 186, 664 A.2d 81 (1995) (quotation omitted); see also Elliott, 133 N.H. at 192, 574 A.2d 1378 (noting 'habitual offender act is a classic example of a ... collateral [consequence], in the sense that the consequence requires application of a legal provision extraneous to the definition of the criminal offense and the provisions for sentencing those convicted under it' (citation omitted))." (Emphasis added.)
Manifestly, as explicated in Ortiz, the Rhode Island civil death statute is not part of Briggs' "range of punishment" and it is entirely "extraneous to the definition of the criminal offense" of murder. Where the consequences of a conviction are "controlled by an agency which operates beyond the direct authority of the trial judge," Sanchez v. United States, 572 F.2d 210, 211 (9th Cir. 1977), or "beyond the direct control of the court", Meyer v. Branker, 506 F.3d 358, 367-68 (4th Cir. 2007), those aftereffects, as Sanchez, Meyer and other authorities hold, are collateral not direct. "What renders a plea's effects collateral is not that they arise virtually by operation of law, but the fact that [the consequence] is not the sentence of the court which accepts the plea but of another agency over which the trial judge has no control and for which he has no responsibility." Nicholson, 676 F.3d at 381-82 (quoting United States v. Gonzalez, 202 F.3d 20, 27 (1st Cir. 2000), abrogated on other grounds by Padilla v. Kentucky, 559 U.S. 356 (2010)). If an entity other than the trial court is responsible for the termination of a defendant's benefits, and the trial court has no control or responsibility over that decision, then - even if the loss of government benefits is a consequence of his plea - "it was nevertheless collateral because it was beyond the district court's direct control." Nicholson, 676 F.3d at 381-82.
Briggs' jejune comparison of the potential application of the civil death statute to the dire certainty of Jose Padilla's deportation is distinctly misplaced. Even the United States Supreme Court has ceded to an immigrant who is about to be banished a game-ending "Hail Mary" pass. Lee v. United States, U.S., 137 S.Ct. 1958, 1966-67 (2017). Briggs, who has not even identified a single hardship or disadvantage sustained under § 13-6-1, has scarcely reached Jose Padilla or Jae Lee's level of desperation, and it is most unlikely that he will.
The Rhode Island Supreme Court has declared that state trial judges at no time - either at sentencing or, say, later, if an inmate files a negligence claim against the Department of Corrections for an injury allegedly sustained - have authority even to consider the operation of this state's civil death statute. Gallop, 182 A.3d at 1142 (referring to that statute as a "collateral" consequence) Id. at 1141 (emphasis added)); see People v. Smith, 227 A.D.2d 655, 657 (N.Y.S. 1996) ("Because civil death is a collateral consequence of a conviction carrying a life sentence, neither County Court nor defendant's attorney was required to advise defendant of its implications prior to accepting his guilty plea." (Emphasis added.)
For all of the foregoing reasons, Briggs' discontent with the application of the civil death statute is legally and factually baseless.
To the extent that Briggs harbors sentiments that Rhode Island's civil death statute should be adjudged unconstitutional, that question is not before this Court. The constitutionality of the statute is, however, presently under consideration by both the Rhode Island Supreme Court (SU-2019-0459-A and -0462-A) and the local United States District Court (C. A. No. 19-0364). This Court expresses no opinion as to the constitutional underpinnings of the statute.
Matthew S. Dawson Enters
On March 3, 2016, almost a year after pleading guilty, Briggs filed a pro se motion to withdraw his guilty pleas, reneged on his plea agreement, refused to cooperate and castigated Mr. Mann, alleging, inter alia, that he had coerced him to plead guilty, threatened him with the prospect of decades in a federal penitentiary on the new gun charges, and also threatened to walk out on him if he persisted in pursuing the motion.
Briggs testified that during one of Mr. Mann's ACI visits, Briggs showed Mr. Mann his motion and told Mr. Mann that if he didn't file it, Briggs would file it himself. Mr. Mann testified that no such conversation occurred and that he had no recollection of ever seeing Briggs' hand- written motion. This Court finds that Briggs fabricated that entire account. His credibility at the PCR hearing was remote from the truth and is beyond reclamation.
As a result of unwisely filing the motion to withdraw his guilty pleas, Mr. Mann and Ms. Harrell were obliged to withdraw from the case. On April 5, 2016, the Court appointed Mr. Dawson to represent Briggs.
The Public Defender advised the Court that although Briggs was now indigent, its office was conflicted out of the case.
Briggs criticizes Mr. Dawson for conceding that Briggs had violated the cooperation agreement. The Court finds that reproach mystifying. Briggs' motion to withdraw his guilty pleas and abandon the cooperation agreement rendered him an unavailable and useless witness for the state. At the June 8, 2016 proceedings, Mr. Dawson and the state's attorneys openly acknowledged that the cooperation agreement had been breached. (Tr. at 3-4, 13, June 8, 2016.) So did Briggs:
"THE COURT: You understand that as a result of your filing this motion to withdraw your guilty plea, you effectively have breached the cooperation agreement that you signed as well?
"THE DEFENDANT: I understand, Your Honor. I apologize."
Moreover, at the PCR hearing, Briggs twice admitted - on direct examination and again in response to the Court's inquiry - that because of his refusal to testify and his intention to withdraw his guilty pleas, Briggs knew full well that the cooperation agreement "was out the window."
Briggs says that Mr. Dawson should have nonetheless demanded a hearing akin to a quantum meruit proceeding so that Briggs could demonstrate that he had substantially complied with his obligations under the cooperation agreement. That suggestion is meritless. The extent of Briggs' cooperation, if any, could be presented at a sentencing hearing. No supplemental hearing on the issue needed to be convened on or after June 8, 2016, especially in view of Briggs' and everyone else's acknowledgements that the cooperation agreement was a nullity.
During the following month, Mr. Dawson, also a seasoned criminal defense practitioner, persuaded the state to provide to Briggs at least a modicum of what Mr. Mann had accomplished if Briggs agreed to vacate the motion to withdraw his guilty pleas. Like Mr. Mann, Mr. Dawson's principal goal was to avoid the mandatory consecutive life sentence. To Mr. Dawson's credit, he persuaded the state to forego that second life term, but the state, with good reason, refused to include many of the steep sentencing discounts which had been the consideration for Briggs' expected trial testimony and full cooperation.
Briggs himself admitted at the PCR hearing that he knew those premiums had been sacrificed when he filed his motion to withdraw his pleas. Indeed, as noted earlier, this Court had admonished him, when he pled guilty on April 22, 2015, that if he didn't accept his responsibilities under the cooperation agreement, he would not be protected from a second consecutive life sentence. (Tr. at 6, Apr. 22, 2015.)
By precipitously repudiating the cooperation agreement, Briggs had adversely affected the prosecution of the case. Mr. Moreira explained at the PCR hearing that absent Briggs' expected testimony, he had to quickly alter his trial strategy. He testified that even though codefendant Henry Lopez later became a cooperating witness, without Briggs' more expansive testimony, the state's case against Fortes was substantially weakened. (Fortes was ultimately acquitted of all the charges in the indictment.)
Eventually, Mr. Dawson and the state cobbled together a new sentencing accommodation for the Chad Brown shootings as well as a resolution of Briggs' separate January 15, 2015 gun/drug offenses. On June 8, 2016, Briggs agreed to dismiss his motion to withdraw his guilty plea, and he accepted the prospects of much stiffer sentences for the Chad Brown offenses. The state did, however, agree to forego the dreaded consecutive life term (Count 2) as well as the ten-year consecutive nonparolable firearm assault (Count 6). Mr. Dawson also persuaded the state, as had Mr. Mann, to dismiss seven of the ten counts of the January 2015 gun/drug case and accord Briggs the same concurrent sentences for the three remaining felony firearm counts in that case.
New to the picture, however, was the inclusion of a potential ten-year sentence under the gang enhancement statute. At the June 8, 2016 proceedings, Briggs accepted jurisdiction of that statute and agreed to subject himself to as much as a consecutive ten-year term. Whether or not all or part of those ten years were imposed was left to the discretion of this Court.
The statute provides in pertinent part:
"§ 12-19-39. Criminal street gang enhancement.
(a) 'Criminal street gang' means an ongoing organization, association, or group of three (3) or more persons, whether formal or informal, having as one of its primary activities the commission of criminal or delinquent acts; having an identifiable name or common identifiable signs, colors, or symbols; and whose members individually or collectively engage in, or have engaged in, a pattern of criminal gang activity.
"(b) Any person who is convicted of any felony that is knowingly committed for the benefit, at the direction of, or in association with any criminal street gang or criminal street gang member, with the intent to promote, further, or assist in the affairs of a criminal street gang or criminal conduct by criminal street gang members, in addition to the sentence provided for the commission of the underlying offense, shall be subject to imprisonment for an additional term of not more than ten (10) years.
"(c) Whenever it appears that a person may be subject to the enhanced sentence in this section, the attorney general, in no case later than the first pretrial conference, shall file with the court a notice specifying that the defendant, upon conviction, is subject to the imposition of sentencing in accordance with this section. . . . .
"(f) The enhanced sentence provided in this section shall run consecutively to the sentences provided for the underlying offenses."
At the March 17, 2017 sentencing hearing, this Court imposed the sentences which Briggs is presently serving, including the full ten-year consecutive term under the gang enhancement statute.
The Rule 35 Motion - The Gang Enhancement Sentence
Invoking Rule 35, R.Cr.P, Briggs claims that the consecutive ten-year gang enhancement sentence is illegal because it was not imposed in accordance with the notice provision contained in the statute, which provides that a defendant should receive, on or before the first pretrial conference, notice of the state's intention to pursue such an enhanced sentence. Section 12-19-39(c).
There has never been a dispute that Briggs came within the scope and legislative purpose of the statute, and he freely admitted so at the June 6, 2016 proceedings. Nor is it disputed that notice, as prescribed by the statute, was not provided. That does not mean, however, that the sentence is "illegal." It is not.
Rule 35(a) provides in pertinent part:
"(a) Correction or reduction of sentence. The court may correct an illegal sentence at any time. The court may correct a sentence imposed in an illegal manner and it may reduce any sentence when a motion is filed within one hundred and twenty (120) days after the sentence is imposed, or within one hundred and twenty (120) days after receipt by the court of a mandate of the Supreme Court of Rhode Island issued upon affirmance of the judgment or dismissal of the appeal, or within one hundred and twenty (120) days after receipt by the court of a mandate or order of the Supreme Court of the United States issued upon affirmance of the judgment, dismissal of the appeal, or denial of a writ of certiorari." (Emphasis added.)
An illegal sentence is "one that is not authorized by the statute establishing the punishment that may be imposed for the particular crime or crimes." State v. Texieira, 944 A.2d 132, 143 (R.I. 2008); State v. Murray, 788 A.2d 1154, 1155 (R.I. 2001) ("An illegal sentence is one that when imposed is at variance with the statute proscribing [sic] the punishment that may be imposed for the particular crime or crimes.").
The allowable limit which can be imposed under the gang enhancement statute is a consecutive ten-year term of imprisonment. That prison term is precisely what this Court imposed upon Briggs at the March 17, 2017 sentencing hearing. Because his sentence was thus not illegal, Briggs was required to have filed his Rule 35 motion within 120 days of the March 17, 2017 sentencing date. Briggs' Rule 35 motion was not filed with the Superior Court until May 20, 2019, long after the expiration of the statutory 120-day time limit. Accordingly, the motion is time barred. State v. Elliott, 899 A.2d 520, 521-22 (R.I. 2006).
Moreover, at its core, Briggs' quarrel is really not with the "legality" of the term of sentence; rather, it is the manner by which it was imposed that he laments. The manner and means by which it was imposed, however, are exactly what he agreed to. Although the imposition of the sentence was irregular because it did not track the notice itinerary prescribed in the statute, that was by design and not by accident, and Briggs expressly agreed to accept the procedure. The dialog and colloquy of the June 8, 2016 proceeding explicitly contemplates that the notice provision was to be obviated and waived:
"MR. MOREIRA: Specifically, today we're prepared to dismiss Counts 2 and 6. Count 2 of the indictment did carry that consecutive life sentence. We're also agreeing to have this second case, the gun case that's pending as a waiver of information, we would be recommending that whatever sentence the Court will give on that run concurrent to the murder case. That was essentially agreed upon in the agreement. Really, in exchange for that, defense counsel has indicated that Mr. Briggs would not object to the State's filing of the gang sentencing enhancement at this late juncture, and through notice as opposed to having it charged. So those are two aspects that I think we need Mr. Briggs' agreement on the record. And, then, secondly, we were also asking that Mr. Briggs agreed basically that we could prove the gang enhancement. And I would note that when he pled to all the counts in the indictment, he pled to facts that essentially make out the gang enhancement.
"THE COURT: All right. Mr. Dawson, have you had an opportunity to explain the gang enhancement portion of Mr. Moreira's comments to your client?
"MR. DAWSON: I have, your Honor. And, just to be clear, we've agreed to allow Mr. Moreira two things: Allow Mr. Moreira to file that really out of time; it would've had to be done by the first pretrial. Obviously, the circumstances have changed and we have no objection to that. And, secondly, we've agreed that certainly the elements which fit that certainly apply. However, there's no agreement that the Court is going to impose that enhancement; we're free to argue that at the time of sentencing and will do so.
"THE COURT: In other words, it's clear that I have the opportunity and discretion to impose it if I choose."
"MR. DAWSON: Correct.
"MR. MOREIRA: If I may, your Honor, the option would be for the Court to sentence him to zero years under the gang enhancement up to ten years.
"MR. DAWSON: In addition to all the other counts he's facing.
"MR. MOREIRA: Correct.
"THE COURT: Mr. Briggs, are you following what we're talking about?
"THE DEFENDANT: Yes, your Honor.
"THE COURT: That gang enhancement element that Mr. Moreira and Mr. Dawson are talking about includes the State's notice to you that they intend to argue it, if they choose to, if you agree to let it be filed at this time even though it's later than it should have been filed, you're in agreement that it can [be] filed now; do you agree to that?
"THE DEFENDANT: Yes, your Honor.
"THE COURT: And if the State desires, it can make a recommendation from anywhere from zero to an additional ten years in jail because of that enhancement statute; do you understand that?
"THE DEFENDANT: Yes, your Honor.
"THE COURT: And it's up to me as to whether or not to accept whatever the State recommends. I can do whatever I think is appropriate regardless of their recommendation and regardless of what the recommendation of your lawyer is; do you understand that as well?
"THE DEFENDANT: Yes, your Honor.
"THE COURT: Has anybody promised you that I wouldn't enhance your sentence with this?
"THE DEFENDANT: No, they did not, your Honor."
. . . .
"THE COURT: Let us return to the 1144 case. You understand that by withdrawing your request to have your plea vacated, you are subject to sentencing at my discretion?
"THE DEFENDANT: Yes, your Honor.
"THE COURT: The State is going to dismiss Counts 2 and 6 in that case but you're still looking, if I think it's appropriate, to a life sentence plus a lot more years on top of it; do you understand that?
"THE DEFENDANT: Yes, your Honor.
"THE COURT: Do you have any questions about it?
"THE DEFENDANT: No, I don't, your Honor.
"THE COURT: Is there anything else you wish to place on the record, Mr. Moreira?
"MR. MOREIRA: Yes, your Honor. As to the gang enhancement, just some brief facts about what the State would prove, and I would just like to see whether Mr. Briggs agrees to them on the record. So, the State was prepared to prove beyond a reasonable doubt that when he committed the offenses indicated in indictment number P1-15-1144BG, that he acted in association with YYY and/or the YNIC gang members, and he did so with the intent to assist in their criminal conduct against Chad Brown gang members.
"THE COURT: Do you agree with that statement that Mr. Moreira just offered to me, Mr. Briggs?
"THE DEFENDANT: Yes, your Honor."
. . . .
"THE COURT: So, in summary, the motion that you mentioned at the outset, Mr. Dawson, for your client to withdraw his motion to vacate his guilty plea will be granted. The State will dismiss Counts 2 and 6 in case 1144. The gang enhancement notice will be filed without objection and the sentencing will proceed as indicated. And the cooperation agreement, so-called, I declare has been breached and voided and is of no value for purposes of anything any more. The State will make recommendations as it has indicated by way of sentencing, but I'm not bound by any such recommendations. Any questions, Mr. Briggs?
"THE DEFENDANT: No, your Honor." (Emphasis added throughout.)
As reflected in that dialog, Briggs clearly agreed to waive and forego the notice requirement, as it was an integral part of the agreed-upon restructured sentence proceedings. To be sure, the statute would ordinarily accord to a defendant the right to interpose an objection to the untimely filing of the sentencing enhancement notice. However, if a defendant can, as every defendant does when he pleads guilty, waive fundamental constitutional rights - viz. his right to trial with all of its concomitant rights, as well as any appeal upon conviction - there is, in this Court's view, no reason why he cannot also waive a much lesser statutory right to object to the instant notice filing, especially under the particular circumstances of this case.
Notably, at the time Briggs entered his guilty pleas on April 22, 2015 relating to the Chad Brown shootings (guilty pleas which he ultimately never withdrew), he had, under oath, via testimony and by signing the plea form affidavit, already expressly waived his Rule 35 right to request a sentence reduction. The Plea Affidavit provides, inter alia:
"I understand by changing my plea I will be giving up and waiving each and all of my rights as follows:
. . . .
"9. My right to file a motion for a reduction in sentence."
Further, at those April 22, 2015 plea proceedings, the following relevant colloquy ensued:
"THE COURT: You have a right to trial on these charges, Mr. Briggs. You would have been presumed innocent. You would not have had to testify or present evidence. The State would have been required to prove your guilt beyond a reasonable doubt. You would've had the right to confront and cross-examine the State's witnesses. If you had been convicted, you could have appealed your conviction to the Supreme Court. If I accept your guilty pleas to these charges, all of your trial rights and your rights of appeal are waived and they disappear. Do you understand that?
"THE DEFENDANT: Yes, Your Honor.
"THE COURT: If I accept your pleas, you cannot withdraw them without permission of the Court. And, you give up any right in the future to ask the Court to reduce whatever sentence I finally decide is appropriate. Do you understand that too?
"THE DEFENDANT: Yes, Your Honor." (Emphasis added.)
That Briggs knowingly and voluntarily waived the notice parameters in the gang enhancement statute is simply not open to question. Indeed, that waiver is even more precise and more particularized than the Rule 35 sentence reduction waiver he executed under oath when he pled guilty on April 22, 2015.
Conclusion
This Court need not reach the second part of the Strickland test. Both Mr. Mann and Mr. Dawson pass the first test with flying colors and effected results which netted Briggs a period of incarceration which will ultimately invite parole if he behaves himself while incarcerated. Briggs' lifeline to liberty would have been considerably shorter if he had adhered to the disposition which Mr. Mann had arranged for him, but Mr. Dawson, as outlined above, was still able to secure some of the same important sentencing concessions from the state. That Briggs must now suffer incarceration beyond the life term which Mr. Mann had negotiated is entirely the product of Briggs' unwise but purposeful jettisoning of his known responsibilities under the cooperation agreement.
In any event, given his confession and his grand jury admissions, not to mention Henry Lopez' damning testimony and other evidence, Briggs would have faced certain conviction after trial and the certitude of untold years of incarceration thereafter, much of it statutorily mandated, including, at the very minimum, two consecutive life sentences and thirty nonparolable consecutive years for the Chad Brown shootings, as well as many more decades for the ten felony counts in the separate gun/narcotics case. In short, absent his attorneys' efforts, Briggs was potentially facing an eternity in prison. The Supreme Court's sentiments in Gonder, 935 A.2d at 88 bear renewal here:
"If [defendant] had not followed the advice of his attorney and had instead allowed the trial to continue, he ran the very real risk of receiving the much more severe sentence of life imprisonment without the possibility of parole . . . . In view of the evidence that the state had presented and in view of the real possibility that his client might receive the harshest possible penalty….[T]he attorney's advice to his client that he plead [guilty] to a negotiated sentence was well within the acceptable range of competence. We therefore hold that [defendant's] claim of ineffective assistance of counsel is without merit." Id. at 88.
Even if Briggs could somehow satisfy the first prong of the Strickland analysis, he has completely failed to demonstrate any prejudice resulting from allegedly deficient advice from counsel. He has not - and, indeed, from the record in this case, certainly cannot - assert that he would have even been acquitted at trial. He has entirely failed to provide any reason why the outcome of a trial would have been more favorable to him than was his disposition. Neufville, 13 A.3d at 610-11. When the sentence received after a negotiated plea is less than the sentence which the defendant would have received had he proceeded to trial, the burden of showing prejudice is "almost insurmountable." Lipscomb v. State, 144 A.3d 299, 309-10 (R.I. 2016), Perkins v. State, 78 A.3d 764, 769 (R.I. 2013), Neufville, 13 A.3d at 614.
In all, this Court is well satisfied that Briggs has failed utterly to carry his burden to demonstrate that his attorneys represented him ineffectively. Rather than criticizing them, Briggs should be grateful to them for essentially having saved him from what could have been lifetime in prison with no hope of ever being released.
Subsequent to his conviction for first degree murder and other offenses after trial, codefendant Bruce Moten was ordered to serve two consecutive life sentences followed by seventy consecutive years in jail, thirty of which were statutorily mandated without parole.
In the end, Briggs' dislocations are not at all the fault of either of his attorneys; rather, his incarceration is entirely a consequence of his own doing (1) because of his egregious criminal misconduct in the first place, and (2) because he unwisely decided, on his own, to abandon a favorable cooperation agreement.
Briggs' postconviction relief application is hereby denied, and judgment shall enter for the state. His Rule 35 motion is also denied.