Opinion
Case. No. KM-2018-0160
02-05-2020
ERIC G. NEUFVILLE v. STATE OF RHODE ISLAND
ATTORNEYS: For Plaintiff: Eric G. Neufville; Glenn S. Sparr, Esq. For Defendant: Judy Davis, Esq.
DECISION PROCACCINI , J. Before this Court is Petitioner Eric G. Neufville's (hereinafter Petitioner) application for postconviction relief (hereinafter Application). In support of his Application, Petitioner asserts that his probation violation counsel and his appellate counsel rendered him constitutionally ineffective assistance of counsel. Petitioner also asserts that G.L. 1956 § 12-19-9 is unconstitutional, that he was convicted of both a greater offense and a lesser-included offense, and that his due process rights were violated. Jurisdiction is pursuant to G.L. 1956 § 10-9.1-1.
I
Facts and Travel
On May 3, 2004, Petitioner entered a plea of nolo contendere to one count of assault with intent to commit specified felonies, two counts of felony assault, and one count of carrying a pistol without a license. Petitioner was sentenced to the following: twenty years at the A.C.I. on the count of assault with intent to commit specified felonies, with three and one-half years to serve and the remaining sixteen and one-half years suspended with probation; twenty years for each count of felony assault, again with three and one-half years to serve and the remaining sixteen and one-half years suspended with probation per count; and lastly, ten years for the firearm possession count, all suspended with probation. All counts ran concurrently. See State of Rhode Island v. Eric Neufville, P2/2003-3234AG.
On January 23, 2014, Petitioner was presented to the Court as a probation violator following an allegation of robbery by the Providence Police Department. At the time, Petitioner had sixteen years of probation remaining from his aforementioned plea. Petitioner was referred to the Office of the Public Defender; however, the Public Defender had a conflict of interest and could not represent him. In turn, the Court appointed Attorney Steven Crawford, who filed an entry of appearance on February 7, 2014. On April 8, 2014, following one continuance at the request of the State, and one conference between the parties, Attorney Crawford withdrew due to a conflict of interest. The Court then appointed Attorney Jason Knight to represent Petitioner.
Attorney Crawford was good friends with one of the investigating officers.
Petitioner proceeded to a violation hearing, which was held before this Court on August 13 and 14, 2014. The Court found that Petitioner had not kept the peace and been of good behavior and, as such, found him to have violated his probation. The Court revoked Petitioner's probation and ordered him committed to the A.C.I. to serve the balance of his sentence—sixteen years. This Court's finding and the sentence it imposed was upheld by the Rhode Island Supreme Court in Neufville v. State, 172 A.3d 161 (R.I. 2017). On appeal, Petitioner was represented by Attorney Paula Lynch. Petitioner eventually pled to the robbery charges on June 6, 2017; he received a twenty-five-year sentence at the A.C.I. with eight years to serve, consecutive to his violation sentence.
Petitioner was indicted on the robbery charge on May 23, 2014. The indictment alleged the robbery to have occurred on January 2, 2014. On October 24, 2014, Petitioner was served with a superseding indictment alleging the January 2, 2014 robbery, as well as an additional robbery on December 27, 2013. This Court only heard evidence of the January 2, 2014 robbery at Petitioner's violation hearing.
Petitioner pled to the January 2, 2014 robbery in exchange for the State dismissing the December 27, 2013 robbery.
Petitioner filed the instant application for postconviction relief on February 9, 2018, alleging that his probation violation counsel, Attorney Crawford, and his appellate counsel, Attorney Lynch, provided him with ineffective assistance of counsel. An evidentiary hearing was held on March 27, May 16 and September 25, 2019.
II
Standard of Review
"'[T]he remedy of postconviction relief is available to any person who has been convicted of a crime and who thereafter alleges either that the conviction violated the applicant's constitutional rights or that the existence of newly discovered material facts requires vacation of the conviction in the interest of justice.'" DeCiantis v. State, 24 A.3d 557, 569 (R.I. 2011) (quoting Page v. State, 995 A.2d 934, 942 (R.I. 2010)). The action is civil in nature, with all rules and statutes applicable in civil proceedings governing. See § 10-9.1.-7; see also Ouimette v. Moran, 541 A.2d 855, 856 (R.I. 1988) ("In this jurisdiction an application for postconviction relief is civil in nature."). A petitioner for postconviction relief "bears '[t]he burden of proving, by a preponderance of the evidence, that such relief is warranted' in his or her case." Brown v. State, 32 A.3d 901, 907 (R.I. 2011) (quoting State v. Laurence, 18 A.3d 512, 521 (R.I. 2011)).
III
Analysis
As mentioned above, Petitioner filed his Application asserting: (1) ineffective assistance of probation violation counsel, and (2) ineffective assistance of appellate counsel. Petitioner also asserts that: (1) his probation violation counsel was ineffective for failing to protect him from law enforcement interrogation and from a federal informant being placed in his holding cell; (2) that §12-19-9 is unconstitutional; (3) that he was convicted of both a greater offense and a lesser-included offense; and (4) that his due process rights were violated.
A
Probation Violation Counsel
Petitioner alleges that Attorney Crawford rendered ineffective assistance of counsel in violation of Petitioner's constitutional rights. Specifically, Petitioner accuses Attorney Crawford of (1) failing to communicate with Petitioner and meet with him while he was incarcerated pending the violation hearing; (2) failing to inform Petitioner that he had the right to a bail/violation hearing within ten days of arrest; (3) and failing to interview witnesses and investigate time sensitive alibi evidence. See Pet'r's Mem. Petitioner also alleges that he was not aware that a plea of guilty or nolo contendere to the new charges would bar him from challenging his violation sentence. As such, he argues that his plea of guilty before Justice Krause was not "knowing, intelligent and voluntary." Pet'r's Resp. Mem. 3.
In order for this Court to find that Attorney Crawford's representation was constitutionally deficient, Petitioner must show that his "representation fell below an objective standard of reasonableness" and "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 669, 694 (1984). In the plea context, a Petitioner must "demonstrate a reasonable probability that but for counsel's errors, he or she would not have pleaded guilty and would have insisted on going to trial." State v. Figueroa, 639 A.2d 495, 500 (R.I. 1994) (citing Hill v. Lockhart, 474 U.S. 52, 59 (1985)). Furthermore, a petitioner must also show the results of the proceeding would have been different. Id. at 500 (citing Hill, 474 U.S. at 57).
Petitioner has urged this Court to apply United States v. Cronic, 466 U.S. 648, 659 (1984) which held that counsel's failure to subject the government's case to adversarial testing is a violation of the Sixth Amendment. This Court will not apply Cronic as the Strickland analysis applies.
Petitioner cannot attribute to Attorney Crawford any harm that he allegedly suffered at his violation hearing. This is because the facts show that Attorney Crawford withdrew from Petitioner's case on April 8, 2014, and Attorney Knight was Petitioner's counsel at his violation hearing. Consequently, because Attorney Crawford never represented Petitioner at a hearing, trial, or other proceeding, it was not his duty to subject the State's case to "meaningful adversarial testing" and Cronic does not apply. See Cronic, 466 U.S. at 659.
1
Failure of Communication and Failure to Meet with Petitioner at the A.C.I. Effecting
Petitioner's Violation Hearing and Eventual Nolo Contendere Plea
Petitioner alleges that Attorney Crawford failed to communicate with him and that he never came to the A.C.I. to discuss Petitioner's matter(s) before the violation hearing. Therefore, according to Petitioner, an attorney-client relationship was never established. However, the Court rejects this claim and finds that: (1) Attorney Crawford's communication and actions provided Petitioner with effective counsel; and (2) even if this Court found Attorney Crawford to be ineffective, Petitioner is unable to establish prejudice.
This Court finds that Attorney Crawford did not fail to create an attorney-client relationship with Petitioner. While Attorney Crawford admitted that he did not go to the A.C.I., he testified to visiting the Licht Courthouse cellblock every day Petitioner was scheduled to come to court; however, every time Attorney Crawford arrived, he found that Petitioner was either not on the habeas or that the Sheriff's Department had already sent him back to the A.C.I.—both circumstances that are beyond his control. In lieu of direct contact, Attorney Crawford sent Petitioner a letter on March 3, 2014 and spoke with his family members via phone. Attorney Crawford also testified to attending Court multiple times for conferences, as well as reviewing the files of the case and the evidence against Petitioner.
In this matter, the Court notes that Attorney Crawford's representation of Petitioner was relatively brief and limited, as he never conducted any matters on the record. This Court is therefore satisfied with Attorney Crawford's efforts to communicate with Petitioner and finds that he did, in fact, create an attorney-client relationship. See Reyes v. State, 141 A.3d 644, 658-59 (R.I. 2016). Moreover, even if this Court was to make a finding to the contrary, Petitioner has not shown any prejudice because it is undisputed that Attorney Crawford was not Petitioner's counsel at his probation violation hearing. See Strickland, 466 U.S. at 694. Therefore, any failure of Attorney Crawford to communicate and meet with him in person had no practical effect on the outcome of his violation hearing.
As to Petitioner's plea in front of Justice Krause, the transcript of the plea colloquy shows that Petitioner's guilty plea was knowing and voluntary. See Brady v. United States, 397 U.S. 742, 745 (1970) (holding that guilty pleas must be made knowingly and voluntarily). The transcript of Petitioner's guilty plea shows that Petitioner had counsel, Attorney Matthew Dawson; it was, therefore, Attorney Dawson's duty to counsel Petitioner on the consequences of his plea. See Pet'r's Plea Tr. Consequentially, the record shows that Attorney Dawson fulfilled his duty as Petitioner stated in open court that he was completely satisfied with Attorney Dawson's representation and had no questions regarding it whatsoever. See Reyes, 141 A.3d at 654.
The Court finds Attorney Crawford's failure to communicate with Petitioner and meet with him at the A.C.I. did not render his assistance ineffective. In tandem, even if this Court were to find otherwise, which it does not, Petitioner has not proven any prejudice under Strickland.
2
Failure to Bring Petitioner's Case to a Bail/Violation Hearing
Petitioner charges that Attorney Crawford's failure to bring Petitioner before the Court for a bail hearing and/or a violation hearing was ineffective assistance of counsel. The Court finds otherwise.
With regard to the failure to bring Petitioner's case to a violation hearing, the Court finds this to be a strategic move by Attorney Crawford, which enjoys great latitude under the Sixth Amendment. See Rivera v. State, 58 A.3d 171, 180 (R.I. 2013) (holding that there is a strong presumption that an attorney's performance falls within the range of reasonable professional assistance and sound strategy); see also United States v. Theodore, 468 F.3d 52, 57 (1st Cir. 2006) (holding the Sixth Amendment to be '"very forgiving"' to the errors of counsel) (quoting Delgado v. Lewis, 223 F.3d 976, 981 (9th Cir. 2000)). Attorney Crawford made it quite clear that proceeding to an immediate hearing would have been detrimental to Petitioner's case:
As to the issue of bail, this Court finds this issue to be moot as Petitioner is under sentence and committed to the A.C.I. See Witt v. Moran, 572 A.2d 261, 263 (R.I. 1990) (reviewing the constitutionality of the Rhode Island bail statute but noting that bail can no longer be granted to sentenced defendants); see also Neufville, 172 A.3d at 163 n.2 (holding that dismissal of a charge renders the issue of bail regarding that charge moot).
"If I went to a hearing on the day I was appointed I would consider that malpractice on my part. If I went to a hearing on a day that I had no information at all, that the Court, maybe the Court did have it down for a bail hearing or a five day petition; however, I would
consider that malpractice on my part going for a hearing not knowing any of the facts." Hr'g Tr. 68:9-15.
Concurrently, Attorney Crawford testified that he was aware that Petitioner had a sixteen-year sentence at the A.C.I. "hanging over his head" if found to be a violator. Hr'g Tr. 58:19. This means that Attorney Crawford was sensitive to the serious consequences Petitioner would face if found to be a violator. This Court finds Attorney Crawford's decision to delay a hearing, so he could prepare more thoroughly, was prudent and well within the parameters set by the Sixth Amendment. See Rivera, 58 A.3d at 180. Consequently, Attorney Crawford clearly believed his decision was in the best interest of Petitioner not to bring his case to a violation hearing on that day, even if Petitioner now disagrees. See Bustamante v. Wall, 866 A.2d 516, 524 (R.I. 2005) (quoting United States v. Moore, 706 F.2d 538, 540 (5th Cir. 1983)) (holding that '"[a] defendant is not entitled to an attorney who agrees with the defendant's personal view of the prevailing law or the equities of the prosecutor's case"').
It was also established that multiple delays in holding the hearing were not the fault of counsel. Attorney Crawford testified that he did not get the notice of violation package containing discovery until February 25, 2014. On March 13, 2014, the prosecutor was court-excused. For obvious reasons, February 25, 2014 would not have been a proper day for a hearing. In turn, March 13, 2014 would have been impossible due to the lack of a prosecutor. Attorney Crawford then withdrew his appearance on April 8, 2014 after learning of his conflict of interest. Therefore, this Court finds the bail issue is moot and Attorney Crawford's actions were strategic decisions which did not violate Petitioner's constitutional rights.
3
Failure to Interview Witnesses and Prepare an Alibi Defense
Petitioner alleges that Attorney Crawford failed to interview witnesses and prepare an alibi defense for his probation violation hearing. As stated previously, Attorney Crawford did not represent Petitioner at his violation hearing. As such, Attorney Crawford cannot be faulted for not presenting a proper defense because he never had the opportunity to present a defense. Secondly, Petitioner's counsel at his plea was Attorney Dawson (with whom Petitioner admitted in open court he was satisfied with), not Attorney Crawford.
Any alleged failure of Attorney Crawford is only relevant to Petitioner's probation violation hearing. Petitioner wishes to revisit the facts of his probation violation hearing, which this Court will not entertain as Petitioner pled to the charges which formed the violation. See State v. Singleton, 876 A.2d 1, 7 (Conn. 2005) (holding that a guilty plea to the charges underlying a probation violation renders the issue of probation violation moot because there is no live controversy regarding whether the conduct occurred).
Further, as previously stated, Petitioner alleges that he was not made aware a plea to the charges underlying the probation violation would render his violation moot. He therefore believes that his plea in front of Justice Krause was not knowing and voluntary. However, the transcript of the thorough plea colloquy—which demonstrates that Justice Krause informed Petitioner of his rights—leads this Court to find otherwise. Accordingly, any alleged failure by Attorney Crawford is rendered moot.
B
Appellate Counsel
Petitioner alleges that his appellate counsel Paula Lynch's decision to waive the issue of a violation of the "10-day rule," as codified in § 12-19-9, during oral argument before the Supreme Court constituted ineffective assistance of counsel.
Petitioner also states his probation violation hearing transcripts went missing, and therefore, Attorney Lynch could not have submitted them to the Supreme Court for a review of his sentence. However, the Supreme Court clearly reviewed his sentence. See Neufville, 172 A.3d at 167-68 (holding that the hearing justice was within his discretion by imposing the full sixteen-year sentence upon Petitioner).
In order to provide effective assistance under the Strickland test, an "appellate counsel . . . need not (and should not) raise every nonfrivolous claim, but rather may select from among them in order to maximize the likelihood of success on appeal." Smith v. Robbins, 528 U.S. 259, 288 (2000). Therefore, to meet both Strickland prongs, an applicant must demonstrate that the omitted issue was not only meritorious, but "clearly stronger" than those issues that actually were raised on appeal. Chalk v. State, 949 A.2d 395, 399-400 (R.I. 2008).
The "10-day rule," as codified in § 12-19-9, allows a court to hold an alleged probation violator without bail for ten days, excluding weekends and holidays. See State v. Lawrence, 658 A.2d 890, 892 (R.I. 1995) (interpreting § 12-19-9 and holding that a defendant who requests continuances beyond ten days cannot cry foul when he or she is held without bail for more than ten days). Petitioner argues that Attorney Lynch rendered him ineffective assistance of counsel because she waived that argument in front of the Rhode Island Supreme Court.
Attorney Lynch testified that her pre-briefing statement asserted three grounds for appeal: (1) a violation of Brady v. Maryland; (2) the violation justice's use of sentencing discretion; and (3) a violation of the 10-day rule as discussed in Lawrence. As such, she believed the strongest issue was the Brady issue and that the Lawrence issue had little chance of success. Attorney Lynch stated that she has never seen the Supreme Court rule favorably on a Lawrence claim and that "they've always found a way not to grant it." Hr'g Tr. 19:20-21, July 24, 2019. However, Attorney Lynch still decided to argue it. It was only when she went before our Supreme Court did an issue of waiver arise. At oral argument, Justice Indeglia asked Attorney Lynch whether she was waiving the Lawrence issue in light of this Court's finding that Petitioner violated his probation. Justice Goldberg joined the conversation and urged Attorney Lynch to answer this in the affirmative. Therefore, Attorney Lynch felt compelled to concur with the Justices and admitted that Petitioner violated his probation by failing to keep the peace and be of good behavior.
Brady v. Maryland, 373 U.S. 83, 91 (1963) held that prosecutors must turn over all exculpatory evidence to a defendant before trial.
This Court finds that Attorney Lynch's representation of Petitioner was effective. Attorney Lynch is a seasoned appellate attorney who has argued hundreds of cases before our Supreme Court. In all her years of experience, she has never seen a litigant successful on the issue of a Lawrence violation. Still, Attorney Lynch attempted to argue the issue in good faith on behalf of Petitioner until the Supreme Court demonstrated that it was uninterested in the argument. The evidence demonstrates that Attorney Lynch did not waive the issue until it appeared that such a path would be futile. The facts make it abundantly clear that Petitioner is far from showing the Lawrence issue was "clearly stronger" than the other issues raised on appeal. See Chalk, 949 A.2d at 399-400.
Attorney Lynch's decision not to press the Lawrence issue was a sound, strategic, and tactical decision. Attorney Lynch's representation of Petitioner was well within the bounds of the Sixth Amendment.
C
Other Claims
Petitioner also argues that: (1) Attorney Crawford failed to protect him from law enforcement interrogation and from a federal informant being placed in his holding cell; (2) that § 12-19-9 is unconstitutional; (3) that G.L. 1956 § 11-5-2 is a lesser-included offense of § 11-5-1, and therefore, his conviction for both violates his constitutional rights; and (4) that his due process rights were violated.
1
Failure to Protect Petitioner from Interrogation
Petitioner alleges that in early 2014, there was an ongoing law enforcement investigation against him. In relation to this investigation, Petitioner alleges that police officers visited him at the A.C.I. to question him and that a federal informant was placed in the Licht Courthouse cell-block to extract information from him. Petitioner alleges that Attorney Crawford failed to protect him from such. Petitioner is mistaken.
Petitioner alleges that these law enforcement actions violated Massiah v. United States, 377 U.S. 201, 204 (1964) (holding that the government may not elicit incriminating statements from a defendant without counsel present after the Sixth Amendment right to counsel attaches).
It was alleged that police officers visited Petitioner at the A.C.I. on January 17, 2014, and that the informant was placed in Petitioner's cell on February 4, 2014. However, Attorney Crawford was not appointed until February 6, 2014. Therefore, he cannot be faulted for any potential wrongdoing because he was not Petitioner's counsel.
2
The Constitutionality of § 12-19-9
Petitioner argues that our probation revocation statute, § 12-19-9, is unconstitutional due to a typographical error.
Petitioner argues that § 12-19-9, which states: "Whenever any person who has been placed on probation pursuant to § 12-9-8 . . ." should actually state: "Whenever any person who has been placed on probation pursuant to § 12-19-8 . . . ." Petitioner asserts that § 12-9-8 references extradition by offenders, not the imposition of probation as § 12-19-8 does. Petitioner asserts that our Legislature forgot to add the number 1 in front of the number 9, but nevertheless argues that the statute is unconstitutional. Petitioner offers no authority for the proposition that this type of drafting error renders a statute unconstitutional.
This Court finds § 12-19-9 constitutional. The Court finds that the Legislature inadvertently omitted the number 1 in § 12-9-8. However, this typographical error does not render the statute unconstitutional because its purpose is evident. See United States v. Hurt, 795 F.2d 765, 770 (9th Cir. 1986) (holding that "Although we are aware of the rule of strict construction for criminal statutes, that rule does not allow us to ignore a statute's evident purpose") (citing United States v. Hogue, 752 F.2d 1503, 1504 (9th Cir. 1985)). This Court understands that it lacks the power to supplement or amend a statute. State v. Maxie, 187 A.3d 330, 341 (R.I. 2018). Yet, the Court is wary of ignoring the purpose of the statute, which by its plain language, is to allow a court to revoke or continue a probation sentence upon a finding of violation; the Court can achieve this purpose despite the typographical error. See State v. Taylor, 473 A.2d 290, 291 (R.I. 1984) (per curiam) (holding that § 12-19-9 grants violation justices wide latitude in deciding whether a probation violator's suspended sentence should be removed in whole, in part, or not at all); see also United States v. Duron, No. 93-50460, 1994 WL 123873, at *3 (9th Cir. 1994) (unpublished decision) (holding that sentencing a defendant under a statute that erroneously referenced paragraph (c)(1)(B) instead of paragraph (d)(1)(B) was not reversible error because the error was merely topographic in nature and the intent of the statute was clear).
This Court finds the omission of the number one in § 12-9-8 was simply a typographical error that does not render the statute unconstitutional.
3
Due Process
Petitioner alleges that his Due Process rights were violated. However, Petitioner put forth no evidence or proper argument at his hearing before this Court. As such, the issue will not be considered by the Court. See Perez v. State, 57 A.3d 677, 682 (R.I. 2013) (holding that the trial justice was proper in denying petitioner's application for postconviction relief when he failed to present evidence that would prove or lend substance to the viability of his claim that he received ineffective assistance from his trial counsel); see also Wilkinson v. State Crime Laboratory Commission, 788 A.2d 1129, 1131 n.1 (R.I. 2002) (holding that a number of arguments asserted by petitioner were waived due to a lack of proper discussion or briefing).
4
Lesser-Included Offenses
Petitioner argues that § 11-5-2 is a lesser-included offense of § 11-5-1; therefore, he contends, his conviction for both violates his constitutional rights. However, Petitioner put forth no evidence or proper argument at his hearing before this Court. As such, the issue will not be considered by the Court. See Perez, 57 A.3d at 682.
IV
Conclusion
Petitioner has failed to meet his burden of establishing by a preponderance of the evidence that postconviction relief is warranted. Accordingly, for the reasons cited above, Petitioner's Application for postconviction relief is denied.
ATTORNEYS:
For Plaintiff: Eric G. Neufville; Glenn S. Sparr, Esq. For Defendant: Judy Davis, Esq.