Opinion
C. A. PM-2010-4824
05-18-2020
JOSHUA DAVIS v. STATE OF RHODE ISLAND
For Plaintiff: Judith Crowell, Esq. For Defendant: Jeanine P. McConaghy, Esq.
For Plaintiff: Judith Crowell, Esq.
For Defendant: Jeanine P. McConaghy, Esq.
DECISION
MCGUIRL, J.
Before this Court is the State's Motion to Reconsider that portion of a Decision entered by the Court on October 16, 2019, in which it granted postconviction relief to Joshua Davis (Davis) on Count II (first-degree child molestation) of his indictment. Jurisdiction is pursuant to Super. R. Civ. P. 60(b).
The October 16, 2019 Decision denied Davis's Application for Postconviction Relief with respect to Count I (first-degree murder) and Count III (kidnapping of a minor) of his indictment. That portion of the Decision is not being challenged here.
I
Facts and Travel
On August 25, 2006, a grand jury returned an indictment against Davis for first-degree murder (Count I); first-degree child molestation (Count II); and kidnapping of a minor (Count III). On April 17, 2008, Davis changed his plea from not guilty to guilty on all charges. The Court accepted his plea and on June 25, 2008, sentenced Davis to life imprisonment without the possibility of parole on Count I, and consecutive terms of life imprisonment on the other two counts.
Davis later filed an Application for Postconviction Relief. This Court held an evidentiary hearing regarding the application on November 15 and November 27, 2018. Prior to issuing a written Decision, the Court became aware of a statute entitled "Community supervision for child molestation offenses[, ]" as set forth in G.L. 1956 § 13-8-30. The Court invited the parties back to address the effect, if any, said statute might have on the postconviction relief proceedings. Accordingly, on July 10, 2019, the Court reconvened the hearing. At the hearing, the Petitioner, his counsel, and the State proceeded under the belief that the current statute was the operative version.
On October 16, 2019, the Court denied postconviction relief on Counts I and III; however, it granted postconviction relief on Count II. The Court held that Davis should have been informed of the direct consequences of his plea under § 13-8-30, and that failure to do so rendered the plea to be not knowing and voluntary as it related to Count II. In particular, the Court was concerned about the lack of notice of the consequence of "electronic monitoring via an active global positioning system [GPS] for life." Section 13-8-30.
After it issued the Decision, the Court discovered, when reviewing the statute for a different case, that the statute had been amended in 2006. It was in 2006 that the provision regarding wearing a GPS for life was added. The Court notified the parties, whereupon the State filed a motion for reconsideration of Count II. A hearing was conducted on December 11, 2019, with counsel and the Petitioner present.
The State contends that the current version of the community supervision statue applies only to offenses by "[p]ersons who commit first degree child molestation sexual assault on or after January 1, 2007[, ]" (G.L. 1956 § 11-37-8.2.1(b)(1)), and that because the offense date was May 7, 2006, the current version of the statute, which contains the GPS requirement, was misapplied. The State's position is that the older statute, which was applicable, was not onerous and therefore was not a significant burden. It further contended that considering Davis received a sentence of life imprisonment for Count II, he never would be subject to community supervision; accordingly, community supervision would not constitute either a direct or collateral consequence. Petitioner's counsel acknowledged that the onerous statute was not in effect on the date of the offense.
Section 11-37-8.2.1, entitled the "Jessica Lunsford Child Predator Act of 2006," was enacted on June 28, 2006. See P.L. 2006, ch. 206, § 1; P.L. 2006, ch. 207, § 1. Section 13-8-30 was amended under the same public laws. See P.L. 2006, ch. 206, § 5; P.L. 2006, ch. 207, § 5. These public laws specifically state that "[t]his act shall take effect upon passage." P.L. 2006, ch. 206, § 7; P.L. 2006, ch. 207, § 7. Accordingly, it became effective on June 28, 2006, which date also is after the date of the offenses.
II
Standard of Review
While "no authority exists for the filing of a motion to reconsider," a motion to reconsider is treated as a motion to vacate under Rule 60(b) of the Rhode Island Superior Court Rules of Civil Procedure (Rule 60(b)). Neufville v. State, 172 A.3d 161, 167 (R.I. 2017); School Committee of City of Cranston v. Bergin-Andrews, 984 A.2d 629, 649 (R.I. 2009). A motion for relief from a judgment or order under Rule 60(b) '"is addressed to the trial justice's sound judicial discretion and his [or her] ruling will not be disturbed on appeal absent a showing of an abuse of discretion or an error of law."' Casa DiMario, Inc. v. Richardson, 763 A.2d 607, 612 (R.I. 2000) (quoting Brown v. Amaral, 460 A.2d 7, 11 (R.I. 1983)). Rule 60(b) gives a Superior Court justice the authority to grant relief from a judgment or order for the following reasons:
"(1) Mistake, inadvertence, surprise, or excusable neglect; (2) Newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) Fraud, misrepresentation, or other misconduct of an adverse party; (4) The judgment is void; (5) The judgment has been satisfied, released, or discharged, or a prior judgment upon which the judgment is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) Any other reason justifying relief from the operation of the judgment." Super. R. Civ. P. 60(b).
The Superior Court has "broad power to vacate judgments whenever that action is appropriate to accomplish justice" in accordance with Rule 60(b)(6). Bendix Corp. v. Norberg, 122 R.I. 155, 158, 404 A.2d 505, 506 (1979). However, the Rhode Island Supreme Court has recognized that Rule 60(b)(6) is '"not intended to constitute a catchall and . . . that circumstances must be extraordinary to justify relief."' Archetto v. Smith, 179 A.3d 144, 146 (Mem.) (R.I. 2018) (quoting Santos v. D. Laikos, Inc., 139 A.3d 394, 399 (R.I. 2016)). The moving party bears the burden of convincing the Court that there are legally sufficient grounds to vacate the judgment. McBurney v. Roszkowski, 875 A.2d 428, 439 (R.I. 2005) (citing DeFusco v. Giorgio, 440 A.2d 727, 730 (R.I. 1982)).
In the instant matter, the Court did not apply the statute that was in effect at the time of the offense when ruling on the Application for Postconviction Relief with respect to Count II. Such error amounts to extraordinary circumstances justifying consideration of relief from the judgment under Rule 60(b)(6).
III
Analysis
The issue before the Court is whether the operative statute would change the outcome of the Court's ruling as it relates to Count II of the indictment. After reviewing that statute, and after applying it to the specific facts in this case, the Court concludes that granting postconviction relief for Count II was not warranted.
It is well-settled that "[p]ostconviction relief is a remedy provided by statute-G.L. 1956 § 10-9.1-1-and is 'available to a convicted defendant who contends that his [or her] original conviction or sentence violated rights afforded to him [or her] under the state or federal constitution.'" Desamours v. State, 210 A.3d 1177, 1182 (R.I. 2019) (quoting Hazard v. State, 968 A.2d 886, 891 (R.I. 2009)). "An applicant for postconviction relief 'bears the burden of proving, by a preponderance of the evidence, that such relief is warranted . . . .'" Desamours, 210 A.3d at 1182 (quoting Rice v. State, 38 A.3d 9, 16 (R.I. 2012)).
"Generally, 'in the case of someone who has entered a plea of nolo contendere [or guilty], [t]he sole focus of an application for post-conviction 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)). Thus,
"Before accepting a plea in a criminal case, a trial justice is obliged to conduct a thorough review of the plea agreement with the defendant, as set forth in Rule 11, which provides, in pertinent part:
"The court . . . shall not accept [a plea of guilty] or a plea of nolo contendere without first addressing the defendant personally and determining that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea. . . . The court shall not enter a judgment upon a plea of guilty or nolo contendere unless it is satisfied that there is a factual basis for the plea.
"Therefore, under Rule 11, there are two prerequisites that must be satisfied at the plea colloquy before a plea of nolo contendere can be accepted: (1) a determination 'that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea'; and (2) a finding 'that there is a factual basis for the plea."' Desamours, 210 A.3d at 1182-83.
Furthermore, it is well-settled in Rhode Island that '"[a] defendant need only be made aware of the direct consequences of his plea for it to be valid."' Beagen v. State, 705 A.2d 173, 175 (R.I. 1998).
The statute on community supervision in effect at the time of the offenses, § 13-8-30 (1998), provided in pertinent part:
"[A]ny person convicted of first degree child molestation pursuant to § 11-37-8.1 or second degree molestation pursuant to § 11-37-8.3 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 molestation pursuant to § 11-37-8.1, community supervision shall be for life." Section 13-8-30 (1998).
In 2006, the General Assembly amended this provision, effective June 28, 2006. See P.L. 2006, ch. 206, § 5; P.L. 2006, ch. 207, § 5. In doing so, it added the following language:
"In the case of a person convicted of first degree molestation pursuant to § 11-37-8.1, community supervision shall be for life and pursuant to the provisions of section 11-37-8.2.1, community supervision shall include electronic monitoring via an active global positioning system for life." Section 13-8-30 (emphasis added).
Section 11-37-8.2.1 provides that "[a]ny person who violates the terms of the global position monitoring conditions shall be guilty of a misdemeanor." Section 11-37-8.2.1(b)(3). It also places the costs associated with global positioning monitoring upon the offender. Section 11-37-8.2.1(c). In addition, it provides:
"Any person who intentionally tampers with damages or destroys any electronic monitoring equipment required by this section pursuant to a court order or parole board order unless such person is the owner of the equipment or an agent of the owner performing ordinary maintenance and repairs commits a felony and shall be imprisoned for not less than one nor more than five (5) years." Section 11-37-8.2.1(e).
Clearly the amendment to § 13-8-30, as well as the associated enactment of § 11-37-8.2.1, places a lifetime burden on the subject offenders that is both extremely onerous and highly intrusive. In granting postconviction relief for Count II of the indictment, the Court was operating under the belief that Davis would be subject to the intrusiveness of the lifetime GPS monitoring, as stated in the revised statute, and of which Davis was not apprised. However, the associated enactment is applicable only to offenses "on or after January 1, 2007[, ]" and Davis's offenses occurred on or about May 7, 2006. See § 11-37-8.2.1(b)(1).
This Court's Decision, filed on October 16, 2019, found that Petitioner's plea in relation to Count II was not made knowingly and voluntary. The Court made this finding under the belief that the later amended statute requiring GPS monitoring for life applied to Count II. Now, in reconsideration of its previous Decision, the Court finds that the statute in effect at the time of the offenses that just required community supervision was not so onerous as to require notification of its provisions at a plea hearing. Rather, in light of the particular facts of this case, and the possible sentences on the other counts, the applicable statute simply was a collateral consequence of Davis's knowing and voluntary plea.
The Court observes that in granting postconviction relief as to Count II, it adopted the reasoning set forth in Furlong v. State, No. KM-2018-0320, 2019 WL 3035444 (R.I. Super. July 3, 2019). However, that case now is readily distinguishable from the instant matter. To begin with, the Court in that case reviewed the impact of the onerous version of § 13-8-30 rather than the applicable statute in this case. Furthermore, the defendant in Furlong negotiated a sentence of twenty years imprisonment, with fifteen years to serve. He later was informed that he would be subject to community supervision for ten years subsequent to the expiration of his twenty-year sentence. Here, Davis was facing life imprisonment on all three counts, with the possibility of no parole on Count I. Davis repeatedly was informed of this possibility, and he nevertheless offered his guilty plea.
IV
Conclusion
In light of the foregoing, this Court vacates its grant of postconviction relief with respect to Count II and reinstates the sentence imposed by the sentencing justice.
Counsel shall submit an order for entry.