Opinion
C. A. PM-2015-2276
01-03-2023
RAYMOND GRUNDY v. STATE OF RHODE ISLAND
For Plaintiff: Pamela E. Chin, Esq. For Defendant: Judy Davis, Esq.
ATTORNEYS:
For Plaintiff: Pamela E. Chin, Esq.
For Defendant: Judy Davis, Esq.
DECISION
MCGUIRL, J. (Ret.)
Before this Court is Petitioner Raymond Grundy's (Petitioner) Application for Post-Conviction Relief (Application), challenging his guilty plea conviction for murder in the second degree. Petitioner initially filed this matter pro se and is currently represented by court-appointed attorney Pamela E. Chin. Jurisdiction is pursuant to G.L. 1956 § 10-9.1-1.
I
Facts and Travel
A
Facts Underlying Petitioner's Murder Charge
Petitioner's Application arises from Petitioner's guilty plea conviction of the murder of Staria Silva (Ms. Silva), his ex-girlfriend and the mother of two of his children. See generally Criminal Docket, P1-2012-3089A. On December 25, 2010, Ms. Silva was found murdered in her East Providence, Rhode Island apartment. (Ex. 1, (Plea Tr.) at 12:2-16.) Petitioner's conviction for Ms. Silva's murder and his corresponding sentence resulted from his subsequent guilty plea, entered pursuant to a plea colloquy before this Court on February 12, 2014.
The Record in P1-2012-3089A is contained in two volumes with numbered pages.
During Petitioner's plea colloquy, this Court asked the State to summarize the facts that would be the basis of the charges presented at trial and the evidence that would be presented to the jury if the matter went to trial. In the following exchange, the Court explained to Petitioner that the prosecutor was going to offer a brief summary of the facts that the State was prepared to prove beyond a reasonable doubt in the event of a trial. The Court asked Petitioner to listen to the summary of facts presented by the prosecutor. The Court then asked Petitioner whether he admitted to the truth of the facts presented, and whether he admitted his guilt as to those facts:
"THE COURT: Mr. Grundy, I'm going to ask the prosecutor at this time to give me a brief summary of the facts that would be the basis of the charges and the evidence that would be presented to the jury. Would you listen to him? Mr. Trovato, please.
"MR. TROVATO: Thank you, Judge.
Had this matter proceeded to trial, the State was prepared to prove beyond a reasonable doubt that as to Count I as amended, on or about December 25th, 2010, in East Providence, the defendant, Raymond Grundy, did murder Staria Silva, said murder being in the second degree, by inflicting physical injury to her after acting with malice aforethought that was existing momentarily when he willfully caused her death in violation of Rhode Island General Laws.
"THE COURT: Would you put a little more factual basis?
"MR. TROVATO: On December 25th, this defendant went to Ms. Silva's apartment where he inflicted physical injury the Medical Examiner determined to be asphyxia and sharp blunt force which caused her death.
"THE COURT: Did you hear what the prosecutor just said?
"THE DEFENDANT: Yes.
"THE COURT: Do you agree the facts he's just presented, if presented to a jury, would be sufficient to meet the elements of the crime to convict you?
"THE DEFENDANT: Yes.
"THE COURT: Do you agree those facts as just related are true?
"THE DEFENDANT: Yup.
"THE COURT: Do you admit your guilt to those facts?
"THE DEFENDANT: Yeah.
"THE COURT: Any question about that?
"THE DEFENDANT: Nope. "THE COURT: Do you understand the maximum penalty of the charge is life in the ACI?
"THE DEFENDANT: Yup."(Plea Tr. 11:20-13:8.)
Prior to the murder of Staria Silva, Petitioner was a defendant in several other criminal matters. In addition, on November 8, 2010, not long before the murder of Ms. Silva, Petitioner was subject to a no-contact order between Petitioner and Ms. Silva, which was put in place by the Sixth Division District Court.
On September 29, 2009, Petitioner appeared in Superior Court on a second-degree robbery charge. See Criminal Docket, P2-2011-0920A. Petitioner was also facing a probation violation charge for this same conduct. See Criminal Docket, P2-2003-3052A. Attorney Susan Perkins represented Petitioner on the robbery charge but later withdrew from representation. Attorney Priscilla DiMaio represented Petitioner on the probation violation charge, Criminal Docket, P2-2003-3052A, and also represented Petitioner on a no-contact order violation charge. (Criminal Docket, 62-2010-18262.)
Prior to Ms. Silva's murder, Ms. Silva and Petitioner shared an apartment as boyfriend and girlfriend, and they had two young twin daughters together. See P1-2012-3089A, Criminal Record (R.) at vol. 2, 642-44. At the time of Ms. Silva's murder, Ms. Silva and Petitioner were no longer living together. Id. Following an alleged domestic incident in November 2010, a no-contact order was put in place between Petitioner and Ms. Silva by the Sixth Division District Court on November 8, 2010. See Criminal Docket, P2-2011-1094A. Petitioner appeared in Superior Court on a simple assault/third domestic charge against Ms. Silva, and five counts of violating his no-contact order with her. See Criminal Docket, P2-2011-1094A. Some of these charges were originally filed in in the Sixth Division District Court. See Criminal Docket, 62-2010-15903; Criminal Docket 62-2010-18262. Petitioner was held at $10,000 surety or ten percent cash bond. Id. Petitioner was released from custody on this charge in November 2010. Id. Priscilla DiMaio represented Petitioner on the robbery charges but later withdrew from representing Petitioner in all of his cases. (PCR Hr'g, Oct. 6, 2022.)
Three days after Ms. Silva's murder, this Court held that Petitioner had violated Ms. Silva's no-contact order against him and subsequently ordered Petitioner held without bail at the ACI. See Criminal Docket, P2-2011-1094A. Also, on December 29, 2010, Petitioner was presented as a probation violator. See Criminal Docket, P2-2003-3052A. Petitioner admitted to being a probation violator and the Court sentenced him to six years of his suspended sentence. Id. While Petitioner was held at the ACI on the pending domestic assault charges, the no-contact order violation charge, and the probation violation, the State continued its investigation into Ms. Silva's murder and gathered evidence against Petitioner. See Criminal Docket, P1-2012-3089A.
B
Indictment for First-Degree Murder and Criminal Solicitation
On November 7, 2012, the State indicted Petitioner for murder in the first degree and criminal solicitation associated with Ms. Silva's death. See Criminal Docket, P1-2012-3089A. At his arraignment on November 21, 2012, Petitioner pleaded not guilty and was held without bail. Id. Also, on November 21, 2012, the State filed a notice of Petitioner's status as a habitual offender. See Criminal Docket, P1-2012-3089A.
C
Investigation and Discovery by Petitioner's Counsel
On August 14, 2012, before Petitioner's indictment, Attorney Molly Kapstein Cote was appointed as Petitioner's new counsel and entered her appearance on behalf of Petitioner in the various cases pending against him. See Criminal Dockets, P2-2011-1094A, P2-2011-0920A. Early in the pendency of Petitioner's murder case, at Kapstein Cote's request, and with Petitioner's consent, Attorney John Lynch and then-law-student-intern Samantha Polesina (née Slack) also joined Petitioner's defense team. (PCR Tr. at 26-28, July 14, 2021.)
Attorney Priscilla DiMaio represented Petitioner in both of these cases until the attorney/client relationship broke down, whereupon Petitioner fired her, and she withdrew from his cases.
Attorney Kapstein Cote also represented Petitioner in his robbery case and in his domestic assault and no-contact order violation case. See Criminal Docket, P2-2011-0920A; Criminal Docket, P2-2011-1094A.
On December 5, 2012, after Petitioner's indictment, Kapstein Cote filed three motions: one for a bill of particulars, one for exculpatory evidence, and one for discovery and inspection. (Criminal Docket, P1-2012-3089A.) Petitioner's defense team worked on discovery motions for most of 2013. See Criminal Docket, P1-2012-3089A.
Kapstein Cote later testified that the discovery in this case was "voluminous" and included: photographs, video, witness statements, grand jury audio recordings, and cell phone records. (PCR Tr. 18-22, July 14, 2021.) Kapstein Cote provided all discovery to Petitioner except for the photographs and the grand jury recordings on CD. Id.
Details about the investigation and discovery by Petitioner's counsel are drawn from the record as well as from testimony from the subsequent evidentiary hearings conducted on Petitioner's Application.
With respect to the photographs, Kapstein Cote was able to reproduce the photographs only in an unreadable quality, and pursuant to ACI policy, ACI inmates are prohibited from possessing CDs. Id. Kapstein Cote later testified that she viewed all the photographs and provided Petitioner with many of the photos; however, the print quality rendered the images almost useless. Id. In Kapstein Cote's judgment, "there was nothing exculpatory . . . in the photographs he did not receive," and therefore reproducing them and providing them to Petitioner was not worth expending the "limited financial resources" of a "court-appointed lawyer." (Curtin Letter at 2.)
With respect to the grand jury transcripts, Kapstein Cote later testified that she would have ordered transcripts of the grand jury testimony to be produced if the case had proceeded to trial. Id. Instead, Kapstein Cote listened to the grand jury recordings along with Attorney Lynch, and together they reviewed the contents of the recordings with Petitioner. Id. Kapstein Cote later testified that ultimately, she did not order transcripts of the grand jury testimony because she did not need to question witnesses, as the case would not be going to trial. (Curtin Letter at 2-3.)
On October 23, 2013, Petitioner filed a Motion in Limine to Exclude Evidence, namely the cell site location data obtained from Petitioner's cell phone, which placed him at or near the crime scene around the time of Ms. Silva's death. (Motion in Limine to Exclude Evidence, P1-2012-3089A.) A prior investigation into Petitioner's cell phone location data by Federal Bureau of Investigation Special Agent David Magnuson and East Providence Detective Corporal Michael Petow led them to conclude that Petitioner's cell phone had been in the area of 9 Fifth Street between 4:10 and 4:15 a.m. on December 25, 2010. (Pet'r's Mem. in Supp. of Application for Post-Conviction Relief (Pet'r's Mem.) 3, 5.)
A hearing on Petitioner's Motion in Limine to Exclude Evidence occurred in November 2013. Federal Bureau of Investigation Special Agent David Magnuson appeared as an expert witness for the State, and testified to the validity and reliability of the technology and science behind the use of cell site location data as legal evidence. Compare Pet'r's Mem. at 3, 5 with Post-Hr'g Mem. Obj. to Pet'r's Application for Post-Conviction Relief at 2. Petitioner's defense team hired its own expert to challenge the scientific validity of the cell site location evidence, but Petitioner's expert declined to testify after Magnuson's testimony because Magnuson was "basically correct" and the defense expert "couldn't testify in opposition to that." (PCR Tr., July 14, 2021 at 47-49.) The hearing was stopped after Magnuson's testimony. See id.
The date of this hearing is not reflected on the docket, so the Court is relying on the recollections of the parties and witnesses in the case. Compare Pet'r's Mem. at 5 with Post-Hr'g Mem. Obj. to Pet'r's Application for Post-Conviction Relief at 2 n.1; see also PCR Tr., Oct. 21, 2021 (Testimony of Samantha Polesina) at 35 (corroborating that Petitioner's motion in limine was heard in November 2013).
It became clear to Petitioner's defense team-even before the hearing on Petitioner's motion in limine had concluded-that Petitioner's legal defense position had been significantly changed by the strength of the State's cell site location evidence. See PCR Tr. at 51-52, July 14, 2021. According to Kapstein Cote, the outcome of the motion in limine hearing was that "strong, compelling" cell site location evidence against Petitioner would likely be admissible at trial, and plea negotiations with the State subsequently began "in earnest." (Curtin Letter at 2-3.). At this time, the State's plea offer changed from a sentence of life imprisonment to a forty-year term to serve. See PCR Tr. at 51-52, July 14, 2021. Furthermore, according to Kapstein Cote, Petitioner's motivation to enter a plea agreement was to obtain a sentence for a term of years rather than a life sentence, and plea negotiations began after the State changed its offer from a life sentence to a term of years following the hearing on Petitioner's Motion in Limine to Exclude Evidence. Id. "Unsolicited" by his attorneys, Petitioner offered to his attorneys an acceptable term of years, and subsequently accepted an offer by the State that was close to his "pre-approved" term of years. Id. at 3.
D
Entry of Guilty Plea to Amended Charge of Second-Degree Murder
On February 12, 2014, Petitioner entered a plea of guilty to the amended charge of murder in the second degree in exchange for (1) dismissal of the criminal solicitation and habitual offender charges and (2) dismissal of two other criminal matters against Petitioner: P2-2011-0920A (second-degree robbery) and P2-2011-1094A (simple assault in the third degree, domestic, and five counts of violating no-contact order). (Plea Tr. 22:9-23:3.) As part of the plea agreement, the Court imposed a sixty-year sentence with forty years to serve. (Plea Tr. 2:8-13:12.)
During the plea colloquy, this Court found sufficient facts to establish the elements of the second-degree murder charge and found that Petitioner "knowingly, voluntarily, intelligently changed [his] plea from not guilty to guilty, understanding the nature and consequences thereof." Id. at 23:7-10. As described in further detail below, this Court questioned Petitioner extensively during the plea colloquy, inquiring into such matters as: (1) the circumstances surrounding Petitioner's request to enter a guilty plea on the amended charge of second-degree murder, including his opportunity to discuss with his attorney the State's evidence against him and any possible defenses, Petitioner's understanding of the consequences of entering the plea, and whether Petitioner was entering the plea of his own free will; (2) whether Petitioner understood the consequences of waiving his numerous constitutional rights, including his opportunity to discuss with his attorney the waiver of those rights, and whether Petitioner understood that he was accepting the sentence proposed; (3) whether Petitioner was entering the guilty plea voluntarily, without coercion by anyone and with an understanding of the consequences of the plea; (4) inquiring whether Petitioner was "under the influence of anything, whether it be medicine, alcohol, drugs or substance that would affect [his] ability to understand, communicate or take part in" entering his guilty plea; and (5) whether Petitioner agreed to the facts presented by the State, whether Petitioner admitted to the truth of those facts, and whether Petitioner admitted guilt as to those facts. See generally Plea Tr. Consequently, the Court executed the sentence to which Petitioner agreed pursuant to his guilty plea. Id.
E
Application for Post-Conviction Relief
On May 29, 2015, Petitioner filed his Application, a Petition for a Writ of Habeas Corpus, and a Memorandum in Support of the Application. See Docket, PM-2015-2276. Petitioner initially filed this matter as a pro se litigant, and is currently represented by Attorney Pamela E. Chin. See generally Pet'r's Mem.
On March 2, 2015, one year after his murder conviction, Petitioner sent a letter to the Rhode Island Bar Association and then filed a complaint, alleging that Kapstein Cote had withheld certain discovery materials during the litigation of the murder charge, was continuing to withhold these materials, and was hindering his ability to proceed with his claim for post-conviction relief. See Miscellaneous Document Filed with Application, May 29, 2015 (Curtin Letter) at 2-4.
During the pendency of this litigation, Petitioner's first court-appointed attorney for this matter, Attorney William W. Devine, Jr., withdrew from his representation of Petitioner. (Order, Feb. 17, 2016.) Petitioner's second court-appointed attorney, Attorney Kenneth C. Vale, also withdrew from the case. (Order, Jan. 26, 2017.) After some difficulty procuring court-appointed representation, Attorney Pamela E. Chin took on Petitioner's representation on April 10, 2018. (Entry of Appearance, April 10, 2018.)
Petitioner asserts two claims under § 10-9.1-1(a)(6): (1) Petitioner's plea was not voluntary, both because he was on powerful prescription medication at the time of the plea colloquy during which he pleaded guilty to second-degree murder, and because the plea was the result of "coercion" by his attorneys, and (2) Petitioner's Sixth Amendment right to effective assistance of counsel was denied, both because his counsel failed to investigate adequately whether Petitioner was innocent and because his counsel failed to provide Petitioner with "full" access to discovery materials from the State, see Pet'r's Mem. ¶¶ 4-5, 9-10, and because Petitioner's access to "full" discovery constitutes "newly discovered evidence." Id. ¶ 10. Petitioner requests that this Court vacate his sentence and order a trial.
On June 10, 2015, the State filed an Answer and Objection to [Petitioner's] Application for Post-Conviction Relief. The State argues: (1) Petitioner's plea was knowing and voluntary, both because there is no indication that Petitioner's medication rendered him unable to comprehend the circumstances of his plea and because the record is devoid of any evidence that Petitioner was coerced to enter a plea, and (2) Petitioner's claim of ineffective assistance fails because he has not met his burden of demonstrating that his counsel's performance was constitutionally deficient or that he was prejudiced by his counsel's allegedly deficient performance.
Evidentiary hearings on Petitioner's Application were held on July 14, July 22, and October 21, 2021, and on October 6 and October 19, 2022. See generally Docket, PM-2015-2276. Both parties timely filed post-hearing memoranda by November 21, 2022. Id. The Court heard the following testimony: On July 14 and 22, 2021, Attorneys Kapstein Cote and Lynch testified (PCR Tr., July 14 and July 22, 2021); on October 21, 2021, Petitioner and Attorney Samantha Polesinatestified (PCR Tr., Oct. 21, 2021); on October 6, 2022, Petitioner testified further (PCR Tr., Oct. 6, 2022); and on October 19, 2022, Attorney Kapstein Cote testified further. (PCR Tr., Oct. 19, 2022.)
Kapstein Cote also had the assistance of Samantha Polesina, who began working as a legal intern on Petitioner's case with Kapstein Cote in 2013, before she graduated from Roger Williams University School of Law, and she continued working on the case with Kapstein Cote after she graduated and was awaiting her bar results. (PCR Tr. 20:1-21:10, Oct. 21, 2021.) She is now a member of the Rhode Island Bar in good standing with nearly a decade of experience working in the public defender's office. See id. at 21:16-23.
Attorney Kapstein Cote and Attorney Lynch each testified about their professional background and about their work on Petitioner's murder defense. Petitioner testified about his medical history and medications and about the claims he is asserting in his Application to challenge his guilty plea conviction. Petitioner also testified about the circumstances of his prior criminal cases and about his version of the events leading up to his plea. Additional facts from the hearings on Petitioner's Application will be supplied below in the Analysis as necessary to decide the issues before this Court.
Kapstein Cote has been an attorney since 2002, has worked as a law clerk for the Superior Court, has worked in the Attorney General's Office handling criminal matters (trying several murder cases during that time), has worked in private practice for over a decade with a focus on criminal defense and domestic relations, and has taught trial advocacy classes at Roger Williams University School of Law. (PCR Tr. 10:12-13:12, July 14, 2021.)
Lynch has been an attorney since 1995, has worked throughout the Rhode Island court system, mostly handling criminal and Family Court matters, but he had not handled any murder defenses prior to working on Petitioner's case. Id. at 106:17-108:17, July 22, 2021.
II
Standard of Review
Post-conviction relief is a statutory remedy available to "[a]ny person who has been convicted of, or sentenced for, a crime . . . who claims . . . [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" or who claims "[t]hat there exists evidence of material facts, not previously presented and heard, that requires vacation of the conviction or sentence in the interest of justice[.]" Section 10-9.1-1(a)(1), (4).
Title 10, chapter 9.1, section 1 of the Rhode Island General Laws provides:
"[a]ny 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 [various enumerated defects in a conviction or sentence] may institute, without paying a filing fee, a proceeding under this chapter to secure relief." Section 10-9.1-1.
The enumerated criteria are: "(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; (2) That the court was without jurisdiction to impose sentence; (3) That the sentence exceeds the maximum authorized by law, or is otherwise not in accordance with the sentence authorized by law; (4) That there exists evidence of material facts, not previously presented and heard, that requires vacation of the conviction or sentence in the interest of justice; (5) That his or her sentence has expired, his or her probation, parole, or conditional release unlawfully revoked, or he or she is otherwise unlawfully held in custody or other restraint; or (6) That the conviction or sentence is otherwise subject to collateral attack upon any ground of alleged error heretofore available under any common law, statutory or other writ, motion, petition, proceeding, or remedy[.]" Section 10-9.1-1.
An applicant for post-conviction relief "'bears the burden of proving, by a preponderance of the evidence, that such relief is warranted in his or her case.'" Barros v. State, 180 A.3d 823, 828 (R.I. 2018) (quoting DeCiantis v. State, 24 A.3d 557, 569 (R.I. 2011)). As required by the statute, "[t]he court shall make specific findings of fact, and state expressly its conclusions of law, relating to each issue presented." Section 10-9.1-7.
III
Analysis
In addressing Petitioner's Application, it is important to note that there is some analytical overlap in the claims asserted: Petitioner's claims under § 10-9.1-1(a)(6) are: (1) Petitioner's guilty plea was not voluntary, both because he was on prescription medication at the time of the plea colloquy during which he pleaded guilty to second-degree murder, and because the plea was the result of "coercion" by his attorneys, and (2) Petitioner's Sixth Amendment right to effective assistance of counsel was denied, both because his counsel failed to investigate adequately whether Petitioner was innocent and because his counsel failed to provide Petitioner with "full" access to discovery materials from the State and because Petitioner's access to "full" discovery constitutes "newly discovered evidence." Because Petitioner contends that his guilty plea was due to "coercion" by his attorneys, analysis of that claim requires scrutiny under both the law relevant to "voluntariness" as well as the law relevant to "ineffective assistance of counsel."
A
Petitioner's Claim I: Voluntariness of Plea
The Court first addresses Petitioner's claim that his guilty plea was not voluntary. To warrant that a plea be vacated, a petitioner must prove by a preponderance of the evidence that the plea was not voluntary and intelligent. State v. Welch, 112 R.I. 321, 328, 309 A.2d 128, 132 (1973). Before accepting a nolo contendere or guilty plea, our Constitution requires that a court must determine whether the defendant has made the plea "voluntarily" and "intelligently," and Rule 11 of the Superior Court Rules of Criminal Procedure governs the procedure a court must follow in making this determination, providing in pertinent part:
"The court may refuse to accept a plea of guilty and shall not accept such plea 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." Super. R. Crim. P. 11. See State v. Feng, 421 A.2d 1258, 1266-67 n.9 (1980) (applying Rule 11).
The Feng court reviewed defendant's plea colloquy and determined that it was voluntary and intelligent, even though the trial justice had used an affidavit form during the colloquy and had asked few questions, because defendant's affirmative answers to the court's questions about his understanding of his rights and of the consequences of his plea were sufficient to render the plea voluntary and intelligent. Id. at 1267-69. Cf. Flint v. Sharkey, 107 R.I. 530, 537, 268 A.2d 714, 718-19 (1970) (trial justice's failure to obtain "knowing[]" and "willing[]" guilty plea was a reversible error requiring that the plea be vacated).
Our Supreme Court has determined that a thorough review of the record of a plea colloquy is sufficient to determine whether a defendant's plea was knowing and voluntary. See Tavarez v. State, 826 A.2d 941, 943 (R.I. 2003) (affirming validity of plea colloquy where trial justice had explained defendant's rights and had inquired about defendant's education, his discussions with his attorney, and whether defendant was under the influence of drugs or alcohol at the time of the plea colloquy); see also State v. Frazar, 822 A.2d 931, 936 (R.I. 2003) (affirming validity of plea colloquy despite its "somewhat unorthodox" nature because it demonstrated that defendant understood his rights and gave up those rights voluntarily and without coercion).
Here, a thorough review of Petitioner's plea colloquy reveals that Petitioner's guilty plea was knowing and voluntary. During the plea colloquy, this Court specifically found sufficient facts to establish the elements of the murder charge and found that Petitioner "knowingly, voluntarily, intelligently changed [his] plea from not guilty to guilty, understanding the nature and consequences thereof." Plea Tr. at 23:7-10.
Further, this Court questioned Petitioner extensively during the plea colloquy, excerpted below, conducting a detailed inquiry into the circumstances surrounding his guilty plea, and the plea colloquy fully satisfied the requirement-set forth in Rule 11 and Rhode Island case law- that a court accept a guilty plea only upon a determination that the plea has been made "voluntarily" and "intelligently." This Court's questioning of Petitioner included a thorough questioning as to the issues he now raises in seeking post-conviction relief: whether he was under the influence of any substances that would preclude him from knowingly and voluntarily waiving his rights and entering his guilty plea, and whether anyone forced or coerced him into entering his guilty plea.
In reviewing Petitioner's plea colloquy to determine whether his guilty plea was made voluntarily and intelligently, this Court will review the record of the plea colloquy in the same order in which the Court questioned Petitioner during that colloquy, paying particular attention to the specific issues raised in Petitioner's Application.
First, during the plea colloquy, this Court questioned Petitioner about the circumstances surrounding Petitioner's request to enter a guilty plea on the amended charge of second-degree murder, including his opportunity to discuss with his attorney the State's evidence against him and any possible defenses, and this Court confirmed Petitioner's understanding of the consequences of entering the guilty plea and confirmed that Petitioner was entering the plea of his own free will:
"MS. COTE: Your Honor, my client would like to enter a guilty plea this afternoon.
"THE COURT: Is that correct, you are entering a plea of guilty on the charge of murder in the second degree?
"THE DEFENDANT: Yes.
"THE COURT: I have piece of paper that's just been handed to me that appears to have your signature. Is that your signature?
"THE DEFENDANT: Yes.
"THE COURT: Before you signed it that day and many days in the past, have you had an opportunity to talk to her about this case?
THE DEFENDANT: Yes, I did.
THE COURT: And you talked about the evidence that the State has to present against you?
"THE DEFENDANT: Yes.
"THE COURT: Did you talk with her about what evidence the State would need to present to a jury in order to convict you of this charge?
"THE DEFENDANT: Yes.
"THE COURT: Did you have conversations with her about any possible defenses you may have to the case, whether they be legal or factual defenses?
"THE DEFENDANT: Yes.
"THE COURT: You talked to her specifically about some of the issues involving the technology in the case and the circumstantial nature of the evidence?
"THE DEFENDANT: Yes.
"THE COURT: And have you had ample opportunity to discuss all issues with Ms. Cote and your other attorneys?
"THE DEFENDANT: Yes.
"THE COURT: Did you have an opportunity to talk to her about what your options in this case are with regard to entering a plea or going forward to trial?
"THE DEFENDANT: Yes.
"THE COURT: It is my understanding from those conversations and from the form I have just received that you do, in fact, wish to change your plea today from not guilty to guilty on this amended charge of murder in the second degree; is that correct?
"THE DEFENDANT: Yes.
"THE COURT: That's what you want to do today?
"THE DEFENDANT: Yes.
"THE COURT: Is anyone forcing you to do this?
"THE DEFENDANT: No.
"THE COURT: You are doing this of your own free will?
"THE DEFENDANT: Yup.
"THE COURT: You believe you understand the nature of the charges and all the consequences of this plea?
"THE DEFENDANT: Yup.
"THE COURT: Have you had ample opportunity to discuss it with your attorney?
"THE DEFENDANT: Yup.
"THE COURT: And they've answered all your questions for you?
"THE DEFENDANT: Yes.
"THE COURT: Now, before you signed this actual form I'm holding, did you go through it with your attorney?
"THE DEFENDANT: Yes.
"THE COURT: And did your attorney, Ms. Cote, go through everything that is covered on this piece of paper?
"THE DEFENDANT: Yes.
"THE COURT: And she went through all of these rights contained on the form?
"THE DEFENDANT: Yes.(Plea Tr. 2:9-5:5.)
Second, satisfied that Petitioner was changing his plea of his own free will and that he had an opportunity to discuss the consequences of the guilty plea with his attorneys, this Court questioned Petitioner about whether he understood the consequences of waiving his numerous constitutional rights, including whether he had an opportunity to discuss with his attorney the waiver of those rights, and this Court confirmed that Petitioner understood the rights he was waiving and that he was accepting the sentence proposed:
"THE COURT: Do you understand that in order for me to accept your plea here today that you have to give up these constitutional rights as they pertain to going forward to trial; do you understand that?
"THE DEFENDANT: Yes.
"THE COURT: Now, as she went through these rights with you, did you follow along with her?
"THE DEFENDANT: Yes.
"THE COURT: Are you able to read and understand English?
"THE DEFENDANT: Yes.
"THE COURT: And did you go through every one of these lines as she explained them to you?
"THE DEFENDANT: Yes.
"THE COURT: Did you have any trouble understanding the rights as she went through them?
"THE DEFENDANT: No.
"THE COURT: You understand they are rights guaranteed under our Constitution. In order for me to accept your plea here today you have to waive and give up each one of these rights; do you understand that?
"THE DEFENDANT: Yes.
"THE COURT: Now, do you believe Ms. Cote answered and explained them to you?
"THE DEFENDANT: Yes.
"THE COURT: And do you believe she's answered all your questions for you?
"THE DEFENDANT: Yes.
"THE COURT: Are you satisfied with her representation of you?
"THE DEFENDANT: Yes.
"THE COURT: Mr. Grundy, I need to go through these rights for the record. If you have any questions, I want you to ask me, all right?
"THE DEFENDANT: Yes.
"THE COURT: Sir, by entering into this courtroom today and changing your plea from not guilty to guilty, you are giving up the right to the presumption of innocence you had as you came into court today. You are admitting your guilt to the charge of murder in the second degree; do you understand that?
"THE DEFENDANT: Yes.
"THE COURT: By doing that you are giving up certain rights guaranteed by the Constitution. Among them is a right to a trial by a jury or a judge and the right to appeal the verdict to the Supreme Court; do you understand that?
"THE DEFENDANT: Yes.
"THE COURT: Are you giving up that right?
"THE DEFENDANT: Yes.
"THE COURT: During the course of the trial the State would be required to prove each and every element of the charge against you beyond a reasonable doubt. You would have had the right to confront and cross-examine any
evidence or witnesses the State brought in against you; do you understand that?
"THE DEFENDANT: Yes.
"THE COURT: Are you giving up that right?
"THE DEFENDANT: Yes.
"THE COURT: You also had a privilege against self-incrimination, Mr. Grundy. That means you didn't have to testify or say anything at all against your interest during any trial or proceedings. You could have sat quietly and not said a word. The fact you did not testify could not be held against you by anyone; do you understand that?
"THE DEFENDANT: Yes.
"THE COURT: Are you giving up that right?
"THE DEFENDANT: Yes.
"THE COURT: If you wished to, you could have testified or presented evidence on your own behalf. I would have issued subpoenas to compel the appearance of any witnesses you wanted to bring in; do you understand that?
"THE DEFENDANT: Yes.
"THE COURT: Are you giving up that right?
"THE DEFENDANT: Yes.
"THE COURT: Mr. Grundy, do you understand you had absolutely nothing to prove in these matters. It was up to the State to prove your guilt beyond a reasonable doubt. You had nothing to prove at all; do you understand that?
"THE DEFENDANT: Yeah.
"THE COURT: Are you giving up that right?
"THE DEFENDANT: Yup.
"THE COURT: After a trial if you had been convicted, I would have ordered a presentence report. That is a background done by our Probation Office. After I reviewed it, I would have sentenced you. You then could have appealed the sentence to the Supreme Court; do you understand that?
"THE DEFENDANT: Yes.
"THE COURT: Are you giving up that right?
"THE DEFENDANT: Yes.
"THE COURT: Now, under certain circumstances, after you were sentenced you would have also the right to file motions to modify or reduce your sentence. By entering this plea, you are
giving up that right and essentially accepting the sentence I am giving you; do you understand that?
"THE DEFENDANT: Yes.
"THE COURT: Are you giving up that right?
"THE DEFENDANT: Yes.
"THE COURT: Mr. Grundy, do you have any questions about any of the rights I've gone through?
"THE DEFENDANT: No.
"THE COURT: Is there anything you want me to go through again or explain in greater detail?
"THE DEFENDANT: No.
"THE COURT: You understand the rights you have and the rights you are giving up?
"THE DEFENDANT: Yes.
"THE COURT: Any questions you want to ask me about them?
"THE DEFENDANT: No."(Plea Tr. 5:6-9:20.)
Third, satisfied that Petitioner understood the consequences of waiving his rights, this Court specifically questioned Petitioner again about whether he was entering the guilty plea voluntarily, without coercion by anyone and with an understanding of the consequences of the plea, and this Court confirmed that he was entering the guilty plea freely and voluntarily:
Petitioner had previously entered pleas to other felony charges. According to Kapstein Cote, "[h]e understood the process much better than, you know, a lot of other clients I had. There was just no concern that he didn't understand what was happening." (PCR Tr. 72:4-7, July 14, 2021.)
"THE COURT: Are you entering into this plea voluntarily?
"THE DEFENDANT: Yes.
"THE COURT: You understand what you are doing?
"THE DEFENDANT: Yes.
"THE COURT: Is anyone forcing you to do it?
"THE DEFENDANT: No.
"THE COURT: This is what you want to do in your best interest?
"THE DEFENDANT: Yup.
"THE COURT: Do you understand once I accept your plea here today, you can't change your mind and withdraw the plea without permission of the
Court? "THE DEFENDANT: Yes.(Plea Tr. 10:17-11:5.)
Following its detailed questioning of Petitioner as to whether he was entering the guilty plea "voluntarily[,]" without "anyone forcing" him to enter his plea, and that he "underst[ood] what [he] [was] doing" in entering the plea, this Court was satisfied that Petitioner's guilty plea was knowing and voluntary, and not the result of coercion by anyone, including his attorneys.
It should be noted that the detailed questioning this Court used to determine whether Petitioner was entering his guilty plea voluntarily conforms closely to the standard our Supreme Court has used to determine whether a criminal defendant's guilty plea was involuntary owing to coercion or undue pressure by defense counsel. See Jolly v. Wall, 59 A.3d 133, 139 (R.I. 2013).
In Jolly, a defendant in a criminal case entered a plea of nolo contendere to charges of second-degree child molestation, but a few months thereafter filed an application for post-conviction relief, alleging his plea was not voluntary due to (1) undue pressure by plea counsel and (2) defendant having been under the influence, during his plea colloquy, of medication prescribed to treat anxiety. Jolly, 59 A.3d at 139.
Addressing whether defendant "entered his plea voluntarily and without undue force or coercion from his attorney or any other source[,]" our Supreme Court reviewed the plea colloquy and affirmed the hearing justice's conclusion that the plea was voluntary. Jolly, 59 A.3d at 139. The Supreme Court looked to the following indicia of voluntariness during defendant's plea colloquy: It noted that defendant "confirmed that he had reviewed the plea agreement with his attorney and averred that there was nothing he did not understand about it," noted that "[t]he record reflects no uncertainty, apprehension, or wavering on [defendant's] part" during the plea colloquy, and concluded that while defendant "now apparently regrets his decision to plead to the charges," nevertheless "on the critical day [of his plea colloquy][,]" defendant entered his plea "voluntarily." Id.
In this case, the plea colloquy contains the same indicia of voluntariness on which our Supreme Court relied in affirming that the defendant in Jolly had "entered his plea voluntarily and without undue force or coercion from his attorney or any other source[.]" Jolly, 59 A.3d at 139. Here, this Court conducted a detailed plea colloquy with Petitioner and specifically asked him whether he had reviewed the plea agreement with his attorney, confirmed with Petitioner that there was nothing he did not understand about the plea agreement, and confirmed-through detailed questioning as to the circumstances of Petitioner's guilty plea-that Petitioner entered his guilty plea knowingly, intelligently, and voluntarily. Moreover, the record here, like that in Jolly, "reflects no uncertainty, apprehension, or wavering on [defendant's] part" during the plea colloquy. Accord Jolly, 59 A.3d at 139.
Fourth, this Court asked Petitioner whether he was under the influence of any substances that would preclude him from knowingly and voluntarily waiving his rights and entering his guilty plea. Specifically, this Court asked Petitioner whether he was "under the influence of anything, whether it be medicine, alcohol, drugs or substance that would affect [his] ability to understand, communicate or take part in" entering a plea, and this Court confirmed that Petitioner was not:
"THE COURT: Are you under the influence of anything, whether it be medicine, alcohol, drugs or substance that would affect your ability to understand, communicate or take part in this plea?
"THE DEFENDANT: No.
"THE COURT: Have you taken any medication in the last 24 hours?
"THE DEFENDANT: No.
"THE COURT: I would ask Ms. Cote, do you believe your client understands the nature and consequences of the charges against him, the
evidence against him and the consequences of the plea he is about to enter and the sentence he is about to receive at this point?
"MS. COTE: I do, your Honor.(Plea Tr. 11:6-19.)
Following its detailed questioning of Petitioner, this Court was satisfied that Petitioner was not "under the influence of anything, whether it be medicine, alcohol, drugs or substance that would affect [his] ability to understand, communicate or take part in" entering his guilty plea.
It should be noted that the specific language this Court used in questioning Petitioner during his plea colloquy comports with our Supreme Court's guidance as to the questions Rhode Island courts should ask to determine whether a criminal defendant is under the influence of any substance that would impair voluntary and knowing participation in a plea colloquy. See Jolly, 59 A.3d at 139.
In Jolly, addressing whether defendant's plea was rendered involuntary owing to his use of medication, our Supreme Court reviewed the plea colloquy and affirmed the hearing justice's conclusion that the plea was voluntary, noting that defendant "denied that he was under the influence of any substance," and that "[t]he record reflect[ed] no uncertainty, apprehension, or wavering on [defendant's] part during the plea hearing." Id. at 139.
Notably, the Supreme Court in Jolly offered further guidance, in a footnote, as to the specific questions Rhode Island courts should use to determine whether a criminal defendant is under the influence of any substance that would impair voluntary and knowing participation in a plea colloquy:
"The better practice may be for the court to specifically inquire whether a defendant has taken 'any drugs, alcohol or medication' before the plea hearing, as did the hearing justice in Gonder v. State, 935 A.2d 82, 86 (R.I. 2007). Phrasing the question that way would not only limit a defendant's ability to collaterally attack his or her conviction, but would also serve to ensure that a hearing justice is
made aware of any substance that could conceivably affect a defendant's ability to enter a plea voluntarily. We emphasize, however, that we discern no error in the hearing justice's conclusions regarding [defendant's] plea in this matter." Id. at 139 n.8.
Here, this Court, in questioning Petitioner, specifically asked him whether he was "under the influence of anything, whether it be medicine, alcohol, drugs or substance that would affect [his] ability to understand, communicate or take part in" entering a plea, and Petitioner responded that he was not. (Plea Tr. 11:6-10) (emphasis added). This Court's questioning precisely followed our Supreme Court's guidance as to the questions Rhode Island courts should ask to determine whether a criminal defendant is under the influence of any substance that would impair voluntary and knowing participation in a plea colloquy. Jolly, 59 A.3d at 139. This Court's colloquy with Petitioner, and Petitioner's response, confirmed the knowing and voluntary nature of his guilty plea. Id.
Despite Petitioner's denial, during his plea colloquy, that he was under "the influence of anything, whether it be medicine, alcohol, drugs or substance that would affect [his] ability to understand, communicate or take part in" entering a plea, Petitioner now contends that he entered his guilty plea "under the influence of power [sic] psyche-meds." During the evidentiary hearings on his Application, Petitioner testified that at the time of his plea colloquy, he was taking medication to treat anxiety, depression, and bipolar disorder, (PCR Hr'g, Oct. 19, 2022), including the following medications daily: citalopram (20 milligrams); gabapentin (600 milligrams); mirtazapine (15 milligrams); buspirone HCL (10 milligrams); and atenolol (50 milligrams).(Pet'r's Ex. 19.)
Petitioner testified that he continues to take Prozac and clonidine to manage anxiety and depression. (PCR Hr'g, Oct. 19, 2022.)
The testimony Petitioner gave during the evidentiary hearings on his Application is directly contradicted by the testimony he gave during his plea colloquy.
Moreover, Petitioner's counsel underscored that Petitioner was not under the influence of any substance-either during his plea colloquy or during the time she was representing him-that would affect his ability to understand and participate in entering his guilty plea. Kapstein Cote stated that at the time of Petitioner's plea colloquy, she had no reason to think that the medication Petitioner was taking would hinder his ability to participate in the plea colloquy because he had not indicated to her otherwise, he had not had any difficulty participating in his defense up to that point, and she had not noticed any signs that he was unable to comprehend or meaningfully participate in his defense. According to Kapstein Cote, "[t]here was just no concern . . . that he was being impacted by any medication he was taking." (PCR Tr. 72:2-10, July 14, 2021.) Kapstein Cote was aware of Petitioner's mental health status, and that he was taking prescribed medications, but she had no reason to believe that it was affecting his cognitive function. Kapstein Cote testified, "I never had any concern about his competency. I never had any concern about his mental health." (PCR Tr. 93:20-21, July 14, 2021.)
Further, Petitioner has not provided the Court with documentation regarding specific mental health diagnoses. Petitioner maintains that he has continued to take several medications during the pendency of his Application, and yet he has always appeared articulate and coherent during these proceedings, which span two years.
Although Petitioner testified during his plea colloquy that he was not under "the influence of anything, whether it be medicine, alcohol, drugs or substance that would affect [his] ability to understand, communicate or take part in" entering a plea, and his attorney agreed during the plea colloquy that Petitioner was not under the influence of any such substance, it is clear that if Petitioner had been under the influence of medication that affected his understanding, Petitioner should have informed the Court during the plea. Had Petitioner or Kapstein Cote informed the Court during his plea colloquy that Petitioner's medication affected his understanding, the Court would have inquired further to determine the effects, if any, of the medication and would not have accepted the plea if the medications were determined to be affecting Petitioner's ability to knowingly and voluntarily enter his guilty plea. Petitioner has not put forward a reasonable argument for why he could not have informed Kapstein Cote or the Court during the plea colloquy, and therefore he is estopped from making that argument now.
Based on the foregoing analysis, this Court determines that Petitioner's claim-that his plea was somehow rendered involuntary owing to his use of medication during his plea colloquy- is without merit. Like the petitioner in Jolly, whose plea conviction was affirmed by our Supreme Court, Petitioner's plea was voluntary: Like the petitioner in Jolly, Petitioner, during his plea colloquy, "denied that he was under the influence of any substance," and like the plea colloquy record in Jolly, Petitioner's plea colloquy record "reflect[ed] no uncertainty, apprehension, or wavering on [Petitioner's] part during the plea hearing." See Jolly, 59 A.3d at 139.
Fifth, and finally, this Court questioned Petitioner during his plea colloquy about whether he agreed to the facts presented by the State, and this Court confirmed that Petitioner admitted to the truth of those facts and also admitted his guilt as to those facts.
Petitioner now claims that during his plea colloquy, he stated in open court that he did not do the crime. However, according to Kapstein Cote, "I totally don't remember him saying that. I would have immediately approached the Court. I don't remember him saying that." (PCR Tr. 77:14-18, July 14, 2021.) Kapstein Cote further testified, "I have an ethical obligation. If he's telling me that he didn't do it or if he's not sure of what he's doing by entering the plea, I have an obligation to him not to allow him to enter that plea." (PCR Tr. 92:24-93:2, July 14, 2021.)
Petitioner's claim is directly contradicted by his responses to this Court's specific questions during his plea colloquy, during which this Court questioned Petitioner about the facts of Ms. Silva's murder, and he admitted to the truth of the facts presented and also admitted his guilt:
"THE COURT: Mr. Grundy, I'm going to ask the prosecutor at this time to give me a brief summary of the facts that would be the basis of the charges and the evidence that would be presented to the jury. Would you listen to him? Mr. Trovato, please.
"MR. TROVATO: Thank you, Judge.
Had this matter proceeded to trial, the State was prepared to prove beyond a reasonable doubt that as to Count 1 as amended, on or about December 25th, 2010, in East Providence, the defendant, Raymond Grundy, did murder Staria Silva, said murder being in the second degree, by inflicting physical injury to her after acting with malice aforethought that was existing momentarily when he willfully caused her death in violation of Rhode Island General Laws.
"THE COURT: Would you put a little more factual basis?
"MR. TROVATO: On December 25th, this defendant went to Ms. Silva's apartment where he inflicted physical injury the Medical Examiner determined to be asphyxia and sharp blunt force which caused her death.
"THE COURT: Did you hear what the prosecutor just said?
"THE DEFENDANT: Yes.
"THE COURT: Do you agree the facts he's just presented, if presented.to a jury, would be sufficient to meet the elements of the crime to convict you?
"THE DEFENDANT: Yes.
"THE COURT: Do you agree those facts as just related are true?
"THE DEFENDANT: Yup.
"THE COURT: Do you admit your guilt to those facts?
"THE DEFENDANT: Yeah.
"THE: COURT: Any question about that?
"THE DEFENDANT: Nope.
"THE COURT: Do you understand the maximum penalty of the charge is life in the ACI?
"THE DEFENDANT: Yup."(Plea Tr. 11:20-13:8.)
Petitioner now offers the additional argument that his repeated use of the word "yup" during the colloquy indicated his frustration and lack of voluntariness. (PCR Hr'g, October 9, 2022.) However, "yup" is defined as an informal variant of "yes." See yup, Merriam-Webster (last visited Nov. 2, 2022) https://www.merriam-webster.com/dictionary/yup. The only reasonable conclusion for this Court to reach is that Petitioner's use of the word "yup" indicated an answer in the affirmative. Petitioner's argument therefore lacks merit.
Having conducted a thorough review of Petitioner's plea colloquy, this Court is satisfied that Petitioner's guilty plea was both knowing and voluntary.
B
Petitioner's Claim II: Ineffective Assistance of Counsel
The Court next addresses Petitioner's claim of ineffective assistance of counsel. The Sixth Amendment provides in pertinent part that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense." U.S. Const. amend. VI. Because the right to counsel "is needed, in order to protect the fundamental right to a fair trial[,]" Strickland v. Washington, 466 U.S. 668, 684 (1984), the Court in Strickland recognized that '"the right to counsel is the right to the effective assistance of counsel."' Id. at 686 (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)).
This language has been interpreted to secure for all felony criminal defendants the right to an attorney regardless of their ability to pay. Gideon v. Wainwright, 372 U.S. 335, 344 (1963) ("in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him."); see also Scott v. Illinois, 440 U.S. 367, 369-73 (1979) (holding that the right only attaches in cases in which actual imprisonment is imposed) (reaffirming Argersinger v. Hamlin, 407 U.S. 25 (1972)). The requirement is applicable against the states and applies with full force in state criminal proceedings. See Argersinger, 407 U.S. at 30.
Because a denial of the right to counsel is a "structural error" without which a fair trial cannot exist, see United States v. Gonzalez-Lopez, 548 U.S. 140, 150 (2006), if a criminal defendant is denied the effective assistance of counsel, the conviction is not valid and must be overturned. See Strickland, 466 U.S. at 687.
"The law in Rhode Island is well settled that this Court will pattern its evaluations of the ineffective assistance of counsel claims under the requirements of Strickland." Brennan v. Vose, 764 A.2d 168, 171 (R.I. 2001). The Strickland standard consists of two prongs:
"First, an applicant must demonstrate that counsel's performance was deficient, to the point that the errors were so serious that trial counsel did not function at the level guaranteed by the Sixth Amendment. In order to be considered ineffective under the first prong of Strickland, trial counsel's performance must have fallen below an objective standard of reasonableness considering all the circumstances . . . a strong (albeit rebuttable) presumption exists that counsel's performance was competent, and that counsel's strategy and tactics fall within the range of reasonable professional assistance.
"The second prong of Strickland requires the applicant to demonstrate that the deficient performance was so prejudicial to the defense and the errors were so serious as to amount to a deprivation of the applicant's right to a fair trial. Satisfying this second prong of Strickland requires a showing that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. That is a highly demanding and heavy burden." Barros, 180 A.3d at 829 (internal citations and quotations omitted).
In the context of a guilty plea conviction, the Strickland analysis is modified somewhat, as clarified in Hill v. Lockhart, 474 U.S. 52, 59 (1985), which provided guidance as to the modified analysis of the prejudice prong in the plea context: "[T]he defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Furthermore, Rhode Island courts have interpreted the "different" "result" language of Strickland and Hill to mean that a petitioner must not only show that he would have gone to trial, but also that the outcome would have been different, i.e., acquittal or conviction of a lesser charge. Neufville v. State, 13 A.3d 607, 610-11 (R.I. 2011) ("'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, importantly, that the outcome of the trial would have been different.") (quoting State v. Figueroa, 639 A.2d 495, 500 (R.I. 1994)).
In challenging his guilty plea conviction, Petitioner contends that his counsel provided ineffective assistance in several respects: (1) his attorney pressured him into accepting a guilty plea; (2) his attorney failed to adequately investigate Petitioner's innocence; and (3) Petitioner's attorney failed to provide Petitioner with copies of discovery materials.
As discussed below in turn, not one of Petitioner's ineffective assistance of counsel challenges to his conviction satisfies the Strickland two-prong standard.
First, Petitioner fails to demonstrate that counsel's performance was so deficient that "counsel did not function at the level guaranteed by the Sixth Amendment." Petitioner fails to establish that his lawyer made poor strategic choices that negatively affected his outcome. On the contrary, based on the Court's review of the record, (1) Petitioner's attorney provided reasonable advice in counselling him to enter a guilty plea; (2) Petitioner's attorney did not fail to adequately investigate Petitioner's innocence; and (3) Petitioner's attorney did not render ineffective assistance with regard to the handling of copies of discovery materials. The record reflects that Petitioner's attorney performed beyond the minimally required level of skill and judgment required by the Sixth Amendment right to the effective assistance of counsel.
Second, Petitioner fails to demonstrate that counsel's allegedly deficient performance "was so prejudicial to the defense and the errors were so serious as to amount to a deprivation of the applicant's right to a fair trial[,]" a standard that "requires a showing that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Petitioner fails to identify and substantiate any difference in outcome had his attorney taken the steps Petitioner suggests with regard to (1) Petitioner's guilty plea; (2) the investigation of Petitioner's innocence; or (3) the handling of copies of discovery materials relating to Petitioner's case.
1
Ineffective Assistance Claim: Coercion of Guilty Plea
When a court is faced with deciding a petition for post-conviction relief involving a claim of ineffective assistance of counsel regarding a guilty plea, the post-conviction inquiry focuses on the nature of counsel's advice regarding the plea and the voluntariness of the plea. State v. Dufresne, 436 A.2d 720, 722 (R.I. 1981). Moreover, in the plea context, a defendant's "solemn[] admission[]" of guilt in open court is a "break in the chain" of the criminal process, and therefore the defendant may not thereafter raise independent claims of constitutional infirmity prior to entry of the plea and is limited to collateral attacks on the "voluntary and intelligent character of the guilty plea." (citing McMann, 397 U.S. at 770) (internal quotation marks omitted). In Dufresne, counsel advised the defendant to plead guilty to a reduced charge of second-degree murder after incriminating statements had been admitted against him, and our Supreme Court concluded that such advice was "within the range of competence demanded of criminal attorneys." Id. at 724.
This Court nevertheless will resolve not only Petitioner's attack on the voluntariness of his plea but also his challenges to his conviction based on ineffective assistance of counsel.
Our Supreme Court, moreover, recognizing the "interwoven" character of challenges addressing a plea's voluntariness and challenges addressing an attorney's performance in the plea context, permits a "tandem" analysis of such issues. Jolly, 59 A.3d at 138-39. Ultimately, a petitioner for post-conviction relief who is challenging a plea must specifically prove '"that, but for his attorney's errors, he would not have entered a [nolo contendere] plea, but rather would have proceeded to trial[,]"' id. at 139 (quoting Gonder, 935 A.2d at 87) (internal quotation marks omitted) (alteration in original), and that the outcome would have been different.
The defendant in Jolly claimed he had been "pressured" by his attorney to plead guilty to his charges, and he alleged that he had ingested medication prior to his plea hearing. Id. at 139-40. Our Supreme Court held that (1) mere pressure by an attorney on a defendant to plead to charges and (2) the attorney's alleged failure to notify the court that his client had ingested medication before the plea hearing did not render the plea involuntary nor the counsel ineffective: The Supreme Court concluded that the attorney's advice to enter a plea was reasonable because defendant was facing the possibility of a life sentence if convicted at trial on his charges, and his attorney was aware of the medications but had not noticed anything unusual about defendant's condition on the day of the plea hearing. Id.
Here, Petitioner is challenging his guilty plea, and therefore this Court's inquiry is limited to the facts and circumstances surrounding (1) his counsel's advice regarding the plea, and (2) the voluntariness of the plea. Dufresne, 436 A.2d at 722; Jolly, 59 A.3d at 138-39. Although Petitioner may have subjectively experienced "pressure" to plead guilty to the amended charge, objectively, his attorneys were giving him reasonable legal advice: Petitioner entered a guilty plea to the amended charge of murder in the second degree in exchange for (1) dismissal of the criminal solicitation and habitual offender charges, (2) dismissal of two other criminal matters against Petitioner: P2-2011-0920A (second degree robbery) and P2-2011-1094A (simple assault in the third degree, domestic, and five counts of violating no-contact order), and (3) a sentence for a term of years rather than a sentence of life without parole. (Plea Tr. 22:9-23:3.)
One of a defense attorney's legitimate functions is to advise a client to pursue what he or she determines to be the client's best legal strategy. This Court will not vacate a plea where, as here, Petitioner's attorney's advice to plead guilty was reasonable. See Jolly, 59 A.3d at 139 (holding that attorney's "pressure" on defendant to plead guilty did not render plea invalid, where defendant was facing the possibility of a life sentence if he were convicted at trial). In light of the circumstances of Petitioner's case, and the possibility of life without parole and consecutive sentence he faced had he chosen to go to trial, the Court cannot conclude that Kapstein Cote's advice to enter a plea was not objectively reasonable. The result of Petitioner's decision to enter a guilty plea was that Petitioner was able to obtain a forty-year sentence rather than a life sentence. Attorney Kapstein Cote testified that she was ready and willing to try the case. The decision to enter a plea or go to trial was always Petitioner's decision. See Jolly, 59 A.3d at 139 (holding that "pressure" to plead when client faced life sentence was not ineffective assistance of counsel). In this case, the record is devoid of any evidence of coercion or ineffective assistance of counsel in connection with Petitioner's plea. This conclusion is reinforced, moreover, by the Court's detailed analysis of Petitioner's plea colloquy above, which demonstrates that Petitioner entered his plea knowingly, intelligently, and voluntarily, and with the effective assistance of his counsel.
For the reasons above, this Court determines that Petitioner knowingly, intelligently, and voluntarily entered his guilty plea, and that Petitioner's counsel's recommendation that he plead guilty was objectively reasonable. This Court therefore declines to vacate Petitioner's plea on the ground that it was either involuntary or based on ineffective assistance of counsel.
2
Ineffective Assistance Claim: Failure to Investigate
Rhode Island courts afford deference to a defense attorney's "strategic" and "tactical" decisions that fall within the bounds of constitutionally effective assistance and will not "second-guess" such decisions unless they are "objectively unreasonable." Rodriguez v. State, 941 A.2d 158, 162-63 (R.I. 2008). The inquiry into counsel's performance centers on whether it was "reasonable considering all of the circumstances." Strickland, 466 U.S. at 688. A criminal defendant must overcome the "strong presumption" that the defense strategy is within the bounds of the permissible range of assistance. Neufville, 13 A.3d at 610. More specifically, to satisfy this prong, the defendant "must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Jaiman v. State, 55 A.3d 224, 238 (R.I. 2012) (quoting Strickland, 466 U.S. at 689).
In Neufville, petitioner alleged that his attorney failed to properly investigate his alleged innocence. 13 A.3d at 611. His attorney testified that petitioner failed to provide the identities of other witnesses and individuals involved in the alleged crime. Id. Finding petitioner's attorney more credible, the court reasoned that although an attorney has a duty to investigate, in view of all the circumstances, petitioner had not given his attorney enough details to trigger a duty on the part of his attorney to investigate the issue of his innocence. Id. at 611-12.
In this case, Petitioner fails to demonstrate that counsel's performance was so deficient that "counsel did not function at the level guaranteed by the Sixth Amendment." On the contrary, based on the Court's review of the record, in light of his attorney's reasonable advice in counselling him to enter a guilty plea, Petitioner's attorney did not fail to adequately investigate Petitioner's innocence.
Here, the Court has considered the following pertinent circumstances: (1) Petitioner lost his expert witness following the motion in limine hearing on the cell site location evidence; (2) the amount of admissible inculpatory evidence against Petitioner; (3) Petitioner lacked a credible alibi and did not offer any specific details to support his alleged innocence; and (4) Kapstein Cote reasonably ceased further investigations because Petitioner intended to accept the plea agreement but could have and would have pursued further investigation had the matter gone to trial, which it did not.
First, in light of the circumstantial evidence in the case, Kapstein Cote's strategy to pursue a plea deal to obtain a term of years and to avoid a life sentence was reasonable. In Kapstein Cote's assessment, the cell site location evidence placing Petitioner at the crime scene around the time of Ms. Silva's death outweighed other exculpatory evidence. During the motion in limine hearing, when Petitioner's expert witness declined to testify following the testimony of the State's expert, it became clear to his counsel how damaging this cell site location evidence would be to Petitioner's defense.
Second, the Court disagrees with Petitioner's contention that the lack of physical evidence in the case casts doubt on the assuredness of the plea conviction. Rather, the amount and nature of the circumstantial evidence in the case, which the Court weighs equally in comparison to any physical evidence, more than compensates for the lack of physical evidence in the case.
Third, the Court disagrees with Petitioner's contention that Kapstein Cote's failure to investigate witnesses and forensic evidence fell outside the bounds of permissible assistance. An attorney is not required to do everything that a client requests. The Court agrees with Kapstein Cote's assessment that Petitioner's requests were non-specific, repetitive, and would have likely led to a wild goose chase that would have had little impact on the outcome of Petitioner's case. In this connection, the Court disagrees that the limited amount of discovery provided to Petitioner fell below an objectively reasonable standard of effective assistance of counsel. Whether Kapstein Cote was prohibited from bringing CDs to the ACI is immaterial to the Court's conclusion that the discovery material provided to Petitioner was within the bounds of objectively reasonable assistance of counsel, and that reviewing the content of the grand jury testimony with Petitioner was also within the bounds of objectively reasonable assistance. In Kapstein Cote's assessment, the better strategy was to focus on the effort to exclude the cell site location evidence, because winning on the motion in limine to exclude that evidence would have had a larger impact on the case.
Petitioner cites to an ACI policy that allows visitors to bring laptops. (Pet'r's Suppl. Mem. Supp. of Appl. for Post-Conviction Relief 8, Nov. 21, 2022). However, these policies are subject to change and Petitioner's citation does not conclusively establish the ACI's policy at the relevant time before his plea was entered.
Finally, had the case gone to trial, Petitioner's attorney would have had the opportunity to pursue additional avenues of investigation. Kapstein Cote's choice not to pursue these avenues was reasonable, especially in light of her reasonable recommendation that Petitioner pursue a plea agreement and her reasonable belief that Petitioner wished to change his plea to avoid a life sentence. Had the case gone to trial, Kapstein Cote could have pursued avenues that she determined would have the most impact on the case at trial. Furthermore, Petitioner had experience terminating attorney-client relationships at least three other times before he was represented by Kapstein Cote. If Petitioner was not satisfied with Kapstein Cote's performance, or her advice to enter a guilty plea, he could have fired her and obtained other representation. The fact that he did not fire her creates an inference that he was satisfied with Kapstein Cote's performance as his counsel, at least prior to initiating this Application.
Given these circumstances and acknowledging the difficult tactical decisions that attorneys must make, this Court concludes that Petitioner has not met his burden to overcome the presumption that his attorneys were acting within the bounds of permissible assistance. Petitioner has not proven that Kapstein Cote and Lynch's strategic decisions regarding his defense fell below an objectively reasonable standard. This Court will not second-guess a defense attorney's tactical decisions in hindsight unless they are objectively unreasonable, and Petitioner has failed to show how the conduct and decisions of his defense team were objectively unreasonable. Therefore, Petitioner's representation was not constitutionally ineffective.
It should be noted that during the evidentiary hearings on Petitioner's Application, Kapstein Cote did not possess detailed records memorializing her representation of Petitioner and did not possess a detailed recollection of her representation. Most of the details that Kapstein Cote could not recall or could recall only partially were corroborated, however, by the testimony of Attorneys Lynch and Polesina. More importantly, an attorney's lack of total recall-during a hearing on an application for post-conviction relief years after a petitioner's guilty plea conviction-does not reflect an unreasonable defense strategy, nor does it cast doubt on the validity of that petitioner's guilty plea.
Although Petitioner's argument as to his counsel's performance is without merit, the Court will go on to analyze prong two of Strickland for the sake of completeness and judicial efficiency. The prejudice prong of the test "is satisfied only when an applicant demonstrates that 'there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Rodriguez, 941 A.2d at 162 (quoting Strickland, 466 U.S. at 694). Even if Kapstein Cote's and Lynch's performances had been constitutionally ineffective, these allegedly deficient performances did not prejudice Petitioner because there is no reasonable probability that Petitioner's outcome at trial would have been different had they investigated Petitioner's innocence more fully. Had Petitioner's case gone to trial, the overwhelming likelihood is that he would have been convicted at trial because of the amount of inculpatory evidence possessed by the State. There was little to no exculpatory evidence, and while investigating Petitioner's innocence may, in theory, have yielded more, it is unlikely that enough would have been found to create enough of a reasonable doubt to cast uncertainty on the assuredness of the plea so as to warrant vacating it. Petitioner has failed to show specifically what would have been revealed if his attorney had conducted further investigation into witnesses and forensic evidence, or if Petitioner had greater access to discovery materials, and has failed to show how any such revelations would have changed his outcome at trial.
Petitioner has not met his burden to show a reasonable probability that but for his counsel's alleged unprofessional errors, there would have been a different result had his case gone to trial. Petitioner's counsel therefore was not constitutionally ineffective because their allegedly deficient performance did not prejudice his case.
3
Ineffective Assistance Claim: Failure to Provide Petitioner with Discovery
Generally, there is no constitutional right to discovery in a criminal case and "'the Due Process Clause has little to say regarding the amount of discovery which the parties must be afforded. . . .'" Weatherford v. Bursey, 429 U.S. 545, 559 (1977) (quoting Wardius v. Oregon, 412 U.S. 470, 474 (1973)); see also State v. Garcia, 643 A.2d 180, 187 (R.I. 1994) (ruling that only the "deliberate nondisclosure of discoverable evidence" contrary to Rule 16 could comprise a due process violation) (emphasis in original). Failure to comply with statutory or court-mandated discovery rules constitutes a due process violation against a criminal defendant only if the violation is on the part of the State. State v. Coelho, 454 A.2d 241, 244 (R.I. 1982) (citing State v. Darcy, 442 A.2d 900, 902 (R.I. 1982) and State v. Patriarca, 112 R.I. 14, 37-38, 308 A.2d 300, 315 (1973)). The law is unequivocally clear that a criminal defendant's due process rights are violated only if the prosecutor fails to disclose to the defendant all the evidence "'favorable'" or "exculpatory" to the defendant, a so-called Brady violation. Garcia, 643 A.2d at 184(quoting Brady v. Maryland, 373 U.S. 83, 87 (1963)).
a
Due Process Claim
Here, Petitioner makes no Brady claim that the State failed to disclose exculpatory evidence prior to his guilty plea. Rather, Petitioner argues that his due process rights were violated by his own counsel's decisions during discovery, and specifically that his counsel failed to provide him with copies of various discovery materials, even though his counsel discussed with him the substance of such discovery materials. Petitioner's argument is without merit because there was no actionable omission on the part of the State regarding discovery obligations prior to the guilty plea. The Court therefore declines to determine that Petitioner's due process rights were violated during discovery.
b
"Newly Discovered" Evidence Claim
Our Supreme Court has stated that:
"to qualify for postconviction relief in respect to this issue, it will be necessary for defendant to establish that evidence to be presented is newly discovered and was not known, or, in the exercise of reasonable diligence, would not have been known in time to raise the issue fully at trial or in a motion for new trial to have been filed within the time limitation after the rendition of the verdict." State v. Clark, 754 A.2d 73, 78 n.1 (R.I. 2000) (citing § 10-9.1-1(a)(4); Danahey v. State, 118 R.I. 268, 373 A.2d 489 (1977); State v. Lanoue, 117 R.I. 342, 366 A.2d 1158 (1976)).
To analyze an application for post-conviction relief based on newly discovered evidence, Rhode Island courts apply the same standard used to evaluate a motion for new trial based on newly discovered evidence pursuant to Rule 60(b). Bleau v. Wall, 808 A.2d 637, 642 (R.I. 2002) (citing Brennan, 764 A.2d at 173). To warrant vacating a judgment of conviction, the evidence must satisfy the following analysis:
"If the newly discovered evidence is to serve as the foundation for a new trial, (1) it must be newly discovered since trial, (2) the defendant must have been diligent in his or her attempts to discover the evidence for use at the original trial, (3) the evidence must not be merely cumulative or impeaching, but rather it must be material to the issue, and (4) the newly discovered evidence must be the type that would probably change the verdict at the new trial. If this four-pronged threshold analysis is satisfied, the trial justice must then determine whether the newly discovered evidence is 'credible enough to warrant a new trial.'" State v. Hernandez, 641 A.2d 62, 72 (R.I. 1994) (quoting State v. Brown, 528 A.2d 1098, 1104 (R.I. 1987)) (internal citations omitted).
The first two prongs of the test analyze the obtainability of the newly discovered evidence and whether the defendant should have discovered it during the pre-trial or trial phase. Powers v. State, 734 A.2d 508, 517 (R.I. 1999) (holding that exculpatory ballistic evidence provided to defendant's attorneys before trial did not comprise a colorable claim of newly discovered evidence); see also State v. Fontaine, 559 A.2d 622, 624 (R.I. 1989) ("[N]ewly discovered evidence must actually be newly discovered since trial.") (emphasis added). To satisfy the second prong, the evidence must not have been obtainable by the defendant during the pre-trial or trial phase through the exercise of "ordinary diligence." Danahey, 118 R.I. at 274, 373 A.2d at 491. Furthermore, a defendant may assert a claim of newly discovered evidence based on a nondisclosure of such evidence only when there was a legal obligation to provide disclosure of that evidence to defendant before or at the time of the trial. Powers, 734 A.2d at 519. In State v. Thornton, the fact that defendant "had not seen" the witness impact statements until after trial was insufficient to constitute newly discovered evidence, not only because there was no disclosure obligation but also because the evidence could have been discovered by defendant's attorney at trial. State v. Thornton, 68 A.3d 533, 543 (R.I. 2013).
McMaugh v. State is instructive regarding the newly discovered evidence analysis. McMaugh v. State, 612 A.2d 725 (R.I. 1992). In that case, new facts came to light that defendant had suffered abuse at the hands of her husband, and that battered woman syndrome had prevented her from assisting her trial attorney because her husband had compelled her to testify about a "fabricated" "accident" story to protect him from a murder conviction. Id. at 732. In that case, defendant was unable to come forward with this evidence until after she was separated from her husband and after she began to serve her sentence. Id. The Rhode Island Supreme Court found that requiring diligence from defendant was inappropriate because she could not freely express herself while still within her husband's presence. Id. Further, the evidence was neither cumulative nor impeaching, but rather showed that defendant was not acting in her best interest at trial. Id. Finally, the newly discovered evidence was material because if it had been believed by the jury, it would have cast reasonable doubt, could have rebutted the premeditation element, and could have exonerated defendant. Id. at 733. The Supreme Court found the newly discovered evidence credible because the testimony of defendant's attorneys corroborated the uncontroverted testimony of expert medical witnesses, and the Supreme Court therefore reversed the trial court's denial of post-conviction relief, vacated defendant's conviction, and remanded the case to the Superior Court for a new trial. Id. at 733-34.
To explain the materiality analysis in the third prong, our Supreme Court has stated that the "'touchstone'" of this prong is whether there is a "'reasonable probability'" that the newly discovered evidence would have provided a different outcome for defendant at trial. Bleau, 808 A.2d at 643 (quoting Powers, 734 A.2d at 514). The key inquiry in the materiality prong is "not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence." Broccoli v. Moran, 698 A.2d 720, 726 (R.I. 1997). A mere "possibility of acquittal" based on the newly discovered evidence does not sufficiently weaken the "confidence" in a conviction to warrant vacating it. Id. Rather, a defendant must show that the new evidence "put[s] the case in such a different light" as to "undermine" the assuredness of the verdict. Id. In Broccoli, defendant's newly discovered evidence consisted of new evidence that could have been used to impeach a trial witness, but because the witness had already been fully impeached by defense counsel at trial, and because the jury was unlikely to reach a different verdict based on evidence that the witness had been treated well in police custody, the newly discovered evidence neither created a reasonable probability of a different outcome, nor sufficiently weakened confidence in defendant's conviction. Id. at 729 (affirming trial justice's denial of application for post-conviction relief.). Moreover, a defendant must come forward with newly discovered evidence of more than a "vague and indefinite nature" to demonstrate a sufficient "nexus" between the newly discovered evidence and the likelihood of a different outcome at trial. D'Alessio v. State, 101 A.3d 1270, 1277 (R.I. 2014).
Here, Petitioner's "newly discovered evidence" claim consists of evidence that was disclosed before trial by the State, was received and reviewed by his defense attorneys, and was discussed in substance with Petitioner. Such evidence does not qualify as "newly discovered evidence" because it was available to Petitioner's counsel prior to Petitioner's guilty plea. The mere fact that copies of this evidence were not provided to Petitioner until after his guilty plea is irrelevant and this fact does not render any of the evidence "newly discovered." Therefore, Petitioner's newly discovered evidence argument is entirely without merit.
Although the Court need not credit this argument any further, for the sake of completeness and judicial efficiency, the Court will consider the remainder of this argument. The argument fails on the diligence element as well. Although Petitioner could not view the forensic photographs in high quality, had the case gone to trial, he would have been able to see them. And although Petitioner could not review the grand jury transcripts himself, his attorneys discussed the contents of the grand jury testimony with him, and he would have had an opportunity to review grand jury transcripts himself had the case gone to trial. Finally, Petitioner has failed to articulate why the evidence is "material" or why it would have been likely to change the outcome at trial. Although Petitioner identified pieces of evidence (grand jury testimony, photographs, etc.), he failed to articulate what exonerating aspects of the content he expected to find, and he failed to articulate how that content would challenge confidence in the assuredness of his plea. For these reasons, Petitioner's guilty plea conviction should not be vacated based on his claim of "newly discovered evidence."
IV
Conclusion
Petitioner has failed to meet his burden of establishing by a preponderance of the evidence that post-conviction relief is warranted. Accordingly, Petitioner's Application for Post-Conviction Relief is DENIED.