Opinion
C.A. No. PM-2016-1370
08-21-2020
KYLE ROOTS v. STATE OF RHODE ISLAND
ATTORNEYS: For Plaintiff: James T. McCormick, Esq. For Defendant: Judy Davis, Esq.
DECISION MCGUIRL , J. Before the Court for decision is Petitioner Kyle Roots' request for post-conviction relief following his nolo contendere plea to three counts of first-degree sexual assault. Petitioner asserts that he is entitled to post-conviction relief for the following reasons: (1) his plea was not constitutionally valid because it was not made knowingly, voluntarily or intelligently; (2) the State withheld exculpatory evidence violating due process under the 14th Amendment of the United States Constitution and Brady v. Maryland, 373 U.S. 83 (1963); (3) there exists evidence of material facts not previously presented and heard that requires vacation of the conviction or sentence in the interest of justice; and (4) that his trial counsel was ineffective based on the allegation that trial counsel failed to provide Petitioner with a copy of a R.I. Department of Health lab report involving Petitioner's DNA. Jurisdiction is pursuant to G.L. 1956 § 10-9.1-1.
I
Facts and Travel
On December 8, 2005, Petitioner was arrested by the Pawtucket Police Department and charged with first-degree sexual assault as a result of an incident which occurred on November 27, 2005 in Pawtucket. After a full bail hearing in the Sixth District Court, Petitioner was held without bail pending indictment. Petitioner was indicted in April of 2006 and charged with three counts of first-degree sexual assault. From December 8, 2005 to March 15, 2007, Petitioner was represented by Assistant Public Defender John Lovoy until the attorney-client relationship broke down.
The case number for the indictment is P1-2006-1261A.
On March 15, 2007, Attorney Glenn Sparr entered his appearance on behalf of Petitioner. The case was passed for trial. In consideration of Petitioner's plea, the State amended the charges to the lesser offense of three counts of second-degree sexual assault. Petitioner was credited with the time he had served while awaiting trial and was released from the ACI the very day that he pled to the charges.
On May 6, 2008, this Court convicted the Petitioner of three counts of second-degree sexual assault. (Application for Post-Conviction Relief at 1.) This Court imposed a twelve-year sentence with thirty months to serve at the ACI, and 9.5 years suspended with probation. Id. In March of 2016, Petitioner filed the instant application.
II
Standard of Review
In Rhode Island, § 10-9.1-1 governs Post-Conviction Relief. A defendant may petition for post-conviction relief by asserting:
"(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"An applicant for postconviction relief bears the burden of proving, by a preponderance of the evidence, that such relief is warranted in his or her case." DeCiantis v. State, 24 A.3d 557, 569 (R.I. 2011).
"(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 (a).
III
Discussion
1
Plea
Petitioner argues that the May 6, 2008 plea was not rendered intelligently because he pleaded without the adequate knowledge or warning of the constitutional rights he was giving up. (Post-Conviction Tr. (Tr.) at 117, Apr. 17, 2019.) Petitioner also argues that he did not have the March 7, 2007 DNA Supplemental Report. The State argues that Petitioner knew that he was waiving his rights and is denying that his plea was unknowing, voluntary, and intelligent because he faces sex offender registration.
Rule 11 of the Superior Court Rules of Criminal Procedure provides that a trial justice "shall not accept . . . 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." Azevedo v. State, 945 A.2d 335, 337 (R.I. 2008) To comply with these requirements, the court must examine the defendant to ascertain that the accused knowingly and voluntarily relinquishes his rights by entering the plea. State v. Frazar, 822 A.2d 931, 935 (R.I. 2003). "The record must affirmatively disclose the voluntary and intelligent character of the plea because a valid waiver of constitutional rights cannot be presumed from a silent record." State v. Feng, 421 A.2d 1258, 1267 (R.I. 1980).
At the post-conviction hearing, the State questioned the Petitioner regarding his plea, a review of his sex offender classification, and evidence of the March 2007 DNA Supplemental Report.
"MS. DAVIS: And then, fast forward another three years, you filed the post-conviction relief in 2016?
"PETITIONER: Yes.
"MS.DAVIS: But you found out this evidence in 2010 or 2011?
"PETITIONER: Yes, end of 2010, very beginning of 2011.
"MS. DAVIS: Yet, you went forward trying to reduce your classification at that time and not get your plea vacated, right?
"PETITIONER: That is correct.
"MS. DAVIS: But you knew you were innocent, right?
"PETITIONER: Yes.
"MS. DAVIS: But you didn't see fit to tell the judge in that hearing that you had evidence that you were innocent, did you?
"MR.MCCORMICK: Objection.
"THE COURT: Overruled.
"PETITIONER: Well, during that hearing, which was my level, I think—yes, I did bring up the DNA test, that was actually one of my main things. And I believe it was Mr. Morrissey who was representing me on that, that was one of the main things and arguments that I made to him is: 'Why am I going to receive such a high level when there's paper work and documentation that shows otherwise in regards to this particular charge'?
"MS. DAVIS: So, but you didn't do that in 2008 because you didn't know that right?
"PETITIONER: No, in 2008 I didn't know.
"MS.DAVIS: And you told Mr. Morrissey you were innocent and yet you didn't file the post-conviction action for another three years?
"PETITIONER: Yes." (Tr. at 73-74, Apr. 17, 2019.)
Here, the May 6, 2008 plea hearing transcript demonstrates that Petitioner understood the plea agreement. Below are excerpts from the May 6, 2008 plea hearing with Judge Pfeiffer.
"THE COURT: With that, you give up the rights in the plea form; understand that?
"THE DEFENDANT: Yes, I do.
"THE COURT: Did you review the form with your attorney?
"THE DEFENDANT: Yes, I did." (Plea Tr. at 1, May 6, 2008.)
The bail hearing transcript that involved the plea is marked as Exhibit B.
The plea form that Petitioner reviewed with the attorney included the requirement of having to register as a sex offender. During cross-examination at the post-conviction hearing, the State and the Petitioner discussed this requirement:
"Q. And you knew at that time that you had to register?
"A. Yes, I did.
"Q. It's right on the plea form?
"A. Yes, it is." (Tr. at 91, Apr. 17, 2019.)
Petitioner's testimony indicates that he was aware of registration. At the plea hearing with Judge Pfeiffer, the Court listed what rights Petitioner would have if he was convicted and asked Petitioner if he had any questions to which he replied "No, I don't." (Plea Tr. at 3.) The Court later heard from the State, which maintained that had this matter proceeded to trial, the State was prepared to prove that the Petitioner had engaged in sexual contact with a victim by force or coercion in violation of the Rhode Island General Laws. Afterward, the Court asked if Petitioner accepted the State's argument as a true statement to which Petitioner responded, "yes, I do." (Plea Tr. at 2.) The Court queried:
"THE COURT: If I accept your plea and impose that sentence, you cannot later change your mind. You understand that?
"THE DEFENDANT: Yes. Yes, I go [sic]." (Plea Tr. at 3.)
The Court then read the Petitioner the time served and what could happen if the Petitioner were to violate his plea. At no time during the plea hearing did Petitioner ever inform Judge Pfeiffer that he did not understand the plea agreement. "Waivers of constitutional right not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences." Flint v. Sharkey, 107 R.I. 530, 536, 268 A.2d 714, 718 (1970). Here, the following colloquy occurred:
"MR.MCCORMICK: Do you recall how many discussions you had with Attorney Sparr about whether or not you would plead nolo?
"PETITIONER: An exact number, not off the top of my head. I would say, we met two to three times I want to say in regards to that. In person at one time, he brought me into Providence Superior Court to actually accept the plea deal, which at the point I declined it and told him to put it down for trial.
. . .
"MR. MCCORMICK: And you had further conversations with Attorney Sparr about whether you would plead or not?
"Petitioner: Yes." (Tr. at 55-56, Apr. 17, 2019.)
Petitioner does not dispute discussing the plea with Sparr. Sparr testified that his notes say that he met with Petitioner on April 25th and that Petitioner would like to accept the State's offer was indicative that Petitioner was looking to possibly resolve the case. (Tr. at 20, Mar. 13, 2019.) There were also several pre-trial conferences pertaining to the plea. (Id. at 21.) There are several events that show that Petitioner knew what was occurring with his plea. For example, at the post-conviction hearing, Petitioner testified that he rejected the State's first offer of 20 years with three to serve. (Tr. at 57, Apr. 17, 2019.) The 20 years was later amended to 12 years with two and one-half months to serve. Another instance of Petitioner's awareness of his plea is when Petitioner asked Sparr to remove any registration requirement from the State's plea deal. Sparr testified that his notes indicated that Petitioner was willing to take four years to serve and unwilling to take anything involving sex registration. (Tr. at 31, Mar. 13, 2019.) Sparr testified to extensively discussing the registration issue with Petitioner. (Id. at 34.) Sparr even sent Petitioner a copy of the registration statute. Id. "I sent it to him at his request because I wanted to make sure that he was fully aware of what the registration requirements were if he did elect to plea." (Id. at 34.) Petitioner does not dispute that Sparr discussed and provided him with the registration case law. (Tr. at 90, Apr. 17, 2019.) Further, when Petitioner entered his plea, he agreed to the facts stated by the prosecutor that he committed the sexual assault against the victim. (Id. at 58). The record shows that Petitioner knew what he was agreeing to during his plea. See Johnson v. Mullen, 120 R.I. 701, 707, 390 A.2d 909, 912 (1978) (finding that in order for a plea to a criminal charge to be a voluntary and knowing act, a defendant must be aware of the consequences of his plea).
Regretting a plea deal does not invalidate the plea. See § 10-9.1-1(a) ( not listing regret as a condition to vacate the plea). See also Armenakes v. State, 821 A.2d 239, 244 (R.I. 2003) (where the Court found that the applicant simply elected an alternate and more comfortable means to dispose of a felony charge in the hope of preserving his liquor licenses, the Court ruled that the applicant was bound by the terms of the plea). Petitioner walked out of prison the same day he plead guilty. (Tr. at 92, Apr. 17, 2019.) The fact that Petitioner was able to reject a plea deal involving a higher sentence and accept a deal with a lesser sentence allowing him to walk out of prison the same day shows that Petitioner was aware of his charges. See Navarro v. State, 187 A.3d 317, 327 (R.I. 2018) (where the Court found that Navarro had entered his plea "with knowledge, consent, voluntarily, understanding what was happening, the nature of the plea, [and] the consequences of it").
In the instant case, Petitioner was involved in the plea process, and Judge Pfeiffer asked Petitioner multiple times if he understood the plea to which he was agreeing. At no time did Petitioner express to Judge Pfeiffer that he did not know the charges he was facing. Petitioner's plea was properly accepted. Therefore, this Court finds that Petitioner's plea was knowing, voluntary, and intelligent.
2
Exculpatory Evidence
Petitioner also argues that the State withheld exculpatory evidence violating his due process rights under the 14th Amendment of the United States Constitution and Brady v. Maryland, 373 U.S. 83 (1963). The evidence that Petitioner is referring to is the March 7, 2007 Supplemental Report stating that Petitioner's rectal swab DNA was not found in the victim. The State argues that this report was provided to Petitioner's attorney at the time.
The Rhode Island Constitution, like the United States Constitution, provides for due process. The Due Process Clause of the Fourteenth Amendment states that no "state shall deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." U.S. CONST. amend. XIV. The United States Supreme Court in Brady, 373 U.S. at 86 held that the suppression of evidence is a violation of the Due Process Clause of the Fourteenth Amendment. A Brady prosecutorial misconduct claim has three essential elements. Strickler v. Greene, 527 U.S. 263, 281-282 (1999). The first element is that the evidence at issue be favorable to the accused as exculpatory or impeaching. Banks v. Dretke, 540 U.S. 668, 671 (2004).
The second Brady element requires the State suppressing the evidence at issue. Id. A Petitioner satisfies the second element "when the reason for the failure to develop facts in state-court proceedings was the State's suppression of the relevant evidence." Id. The third Brady component is that prejudice ensued. Id. Prejudice exists when "suppressed evidence is material." Banks, 540 U.S. at 671.
With respect to the first element, of favorable evidence, the DNA Supplemental Report only addresses the victim's anal cavity. "Exculpatory evidence includes evidence that is favorable to an accused and is material to guilt or punishment." State v. Werner, 851 A.2d 1093, 1105 (R.I. 2004). The DNA Supplemental Report stated that Petitioner's DNA is excluded as a possible contributor. This evidence can be viewed as favorable to the Petitioner for impeachment purpose; however, Petitioner's charges did not include any anal penetration. The DNA Supplemental Report did not have a material bearing on the Petitioner's guilt or punishment. Id. Therefore, because Petitioner's charges did not involve any anal penetration to the victim, the DNA Supplemental Report showing that Petitioner did not anally penetrate the victim is not exculpatory. See State v. Lopez, 45 A.3d 1, 14 (R.I. 2012) (finding that evidence of a DNA "match based on currently used testing processes is meaningless without evidence indicating the significance of the match"). The DNA Supplemental Report is not significant because it did not address Petitioner's charges.
See page 4 of 4 of the DNA Supplemental Report, Mar. 7, 2007.
The second Brady element requires the State to suppress evidence. Here, Glenn Sparr, Petitioner's attorney at the time, received discovery responses from the State. The documents sent to Sparr included the March 7, 2007 Supplemental Report that Petitioner is claiming the State withheld from him. (Ex. A at 4.) During direct examination at the post-conviction hearing, Sparr was asked if he had a present recollection of receiving the March 7, 2007 Supplemental Report. (Tr. at 8, Mar. 13, 2019.) Sparr testified that he did. Id. The fact that the State included the DNA Supplemental Report during discovery and Sparr's receiving the report show that there was no suppression on the State's part. See Tempest v. State, 141 A.3d 677, 683 (R.I. 2016) (finding that "[t]he prosecution acts deliberately when it makes 'a considered decision to suppress . . . for the purpose of obstructing' or where it fails 'to disclose evidence whose high value to the defense could not have escaped . . . [its] attention.'").
See State's Answer to Request for Discovery.
The third Brady element requires that prejudice ensued. Prejudice ensues when the suppressed evidence is material. Banks, 540 U.S. at 671. Here, Sparr was provided a supplemental answer from the State with a March 2007 date. (Tr. at 7-8, Mar. 13, 2019.) On April 16, 2007, Sparr sent documents to Petitioner while he was at the ACI. (Id. at 10.) Sparr testified: "I can tell you that I provided it to Mr. Roots." (Id. at 8.) Sparr further stated:
"[m]y normal practice is when I take over a case or get appointed to a case and not the attorney from the very start, I make a copy of the complete file and give it to the client, quite frankly, to avoid a situation like this." (Id. at 8.)
Sparr further maintained that when the State comes up with supplemental discovery requests, it is his practice to send that to the client. (Id. at 9.) Sparr recalls the original laboratory report and a supplemental laboratory report dealing with the DNA. (Id. at 10.) Sparr maintains that all files were given to the Petitioner. (Id. at 11.) The documents, including the DNA Supplemental Report being sent to Petitioner, show that Petitioner was not prejudiced. Sparr and Petitioner even engaged in extensive conversation regarding the DNA Supplemental Report. (Tr. at 80, Apr. 17, 2019.), to be further discussed infra. Prejudice did not ensue because there is evidence showing that the DNA Supplemental Report was provided and made available to the Petitioner. The State's fourth supplemental response contained the March 2007 DNA Supplemental Report. (Tr. at 48, Mar. 13, 2019). This same report was discussed with Petitioner. Id. Petitioner's due process rights were not violated because documents including the DNA Supplemental Report were sent to Petitioner and he was involved throughout the court proceedings. At the post-conviction hearing, Petitioner contends that he did not have the final testing result. (Tr. at 60, Apr. 17, 2019.)
"MS. DAVIS: And so you had an opportunity to fully examine all the paperwork that he sent you, right?
"PETITIONER: Yes, I did.
"MS. DAVIS: And so you're alleging today that you only received the first part of that DNA test, is that right?
"PETITIONER: That is correct.
"MS. DAVIS: I'm going to show you again what's been the same exhibit and direct you to page five, and if you look at 4(B), what does that say?
"PETITIONER: Four B reads: 'Summary of Analytical Findings Supplemental Report FB No. 955-455, dated March 7th, 2007.'
"MS. DAVIS: Okay. So you had this?
"PETITIONER: Yes.
"MS. DAVIS: And it shows that the State sent that document that you said you didn't see until 2010, right?
"PETITIONER: Yes." (Tr. at 77, Apr. 17, 2019.)
Petitioner's testimony above shows that the Petitioner received and examined the March 7, 2007 Supplemental Report before 2010. There is no evidence that shows or suggests that the State and Sparr withheld the DNA Supplemental Report from the Petitioner. Therefore, this Court finds that there was no exculpatory evidence withheld. The State did not engage in any misconduct. See DeCiantis, 24 A.3d at 572 (finding that there was no prosecutorial misconduct and that much of the prosecutor's testimony had the effect that he did not withhold exculpatory evidence from the Plaintiff and his attorney).
3
Material Facts Not Presented or Heard
Petitioner argues that he was not aware of the DNA Supplemental Report. At the post-conviction hearing, Petitioner testified that during the period of December 2010 and January 2011, he first saw the March 7, 2007 Supplemental Report after writing to the forensic lab. (Tr. at 61, Apr. 17, 2019.) Petitioner is adamant that had he seen the March 7, 2007 report before he signed the plea agreement, that he would have pushed for trial. ( Id. at 66.) Sparr testified that Petitioner was given the DNA Supplemental Report.
In a nolo contendere case, "[t]he sole focus of an application for post-conviction relief . . . is the nature of counsel's advice concerning the plea and the voluntariness of the plea." Guerrero v. State, 47 A.3d 289, 300 (R.I. 2012). The Petitioner has the burden to show that counsel's "advice was not within the range of competence demanded of attorneys in criminal cases." Id.
Here, Sparr received from the State multiple discovery responses. (Tr. at 3, Mar. 13, 2019.) Sparr remembers physically picking up Petitioner's file from the public defender's office. (Id. at 4.) Sparr sent a letter and a package of materials to Petitioner containing a fairly significant amount of paperwork. (Id. at 5.) The package contained police reports, discovery, and photographs. (Id. at 6.) The response from the State includes the DNA Supplemental Report. See Ex. A at 4. The second lab test results contain the DNA Supplemental Report. Sparr testified that he discussed the second lab test results with Petitioner. (Tr. at 44-46, Mar. 13, 2019.) Regarding the DNA document, Sparr stated " I have a present memory of actually discussing the contents of that with him" (Id. at 8.) Sparr contends:
"I can tell you I remember meeting with him multiple times and discussing the possibility of trial because we had discussed this was a very, as we call it, a very triable case, and we discussed all the trial issues and strengths, weaknesses, and I remember discussing that report." (Id. at 12-13.)
Petitioner was asked whether Sparr had a conversation with him. The following colloquy took place:
"Q. So, you're saying that conversation never happened?
"A. No, I'm not saying it never happened. What I'm stating is, as Mr. Sparr testified, we was all here, we had this conversation and our opinions differ, to me that DNA test was like winning the lottery." (Tr. at 80, Apr. 17, 2019.)
Petitioner admitted to discussing the DNA Supplemental Report with Sparr. The case was passed for trial. (Tr. at 34, Apr. 17, 2019.) Sparr made it clear to Petitioner that it was his decision alone to either accept or reject the plea. (Id. at 35:18-19.) Sparr's advice concerning the plea and the voluntariness of the plea was left up to the Petitioner to decide. Petitioner decided not to pursue trial and instead accepted the State's offer of twelve years at the ACI with thirty months to serve. Subsequently, the Petitioner was released that same day. Petitioner relies on Banks, 540 U.S. at 671 as support for withholding exculpatory evidence. Banks was a habeas corpus case that involved capital murder. The Banks Court found that petitioner was entitled to present evidence in support of one Brady claim that had not been presented to the state post-conviction court, and petitioner was entitled to a certificate of appealability on the question of whether he adequately raised second Brady claim. Id. In their reasoning, the Court found that Banks satisfied the habeas law requirement by alleging that the prosecution knowingly failed to turn over exculpatory evidence about a paid informant. Banks, 540 U.S. at 671. The Banks Court later found that evidence was withheld. The facts in Banks are not applicable to this case because the State produced the DNA Supplemental Report to Sparr, who then discussed that report with Petitioner. It appears that no evidence was withheld from the Petitioner. Petitioner admits to knowing that his DNA existed.
"MS. DAVIS: So you knew your DNA existed?
"PETITIONER: Yes, I did.
"MS. DAVIS: And you had that document which showed that the report existed at that time, right?
"PETITIONER: Yes, I did." (Tr. at 78, Apr. 17, 2019.)
In an application for postconviction relief based on newly discovered evidence, a two-pronged test is applied. Brennan v. Vose, 764 A.2d 168, 173 (R.I. 2001) (citing McMaugh v. State, 612 A.2d 725, 731-32 (R.I. 1992)). The evidence must be (1) newly discovered or was available at the time of trial; (2) it must not have been discoverable by due diligence; (3) it must be material, not simply cumulative or impeaching; and (4) it must be of the type that would likely change the verdict at trial. Id. If the evidence meets the four-part threshold prong, the evidence then must meet the second prong, which is an assessment of whether it is "credible enough to warrant relief." D'Alessio v. State, 101 A.3d 1270, 1275 (R.I. 2014).
Here, no newly discovered evidence has been found. This Court asked Petitioner if he received the March 7, 2007 Supplemental Report.
"THE COURT: So, now you testified, you said you received this discovery package and in the 'cover letter,' so to speak, in that package, it appears to list the actual, paragraph four, it actually lists that test in March of 2007. There's no question the letter says that, right?
"THE WITNESS: Yes.
"THE COURT: And there's no question you received a package of discovery?
"THE WITNESS: No, there's no question, I did receive it.
"THE COURT: And your testimony is that that test result was not within that package?
"THE WITNESS: That is correct.
"THE COURT: That somehow, either by the State or by Mr. Sparr, somehow it disappeared from that package when you got it?
"THE PETITIONER: Yes.
"THE COURT: But then you testified that you discussed the case with him and that you talked about DNA in general, and he explained why he didn't think, again, the DNA of you and her would be that significant?
"THE WITNESS: Yes, correct." (Tr. at 95, Apr. 17, 2019.)
Evidence exists that the State submitted the DNA Supplemental Report to Sparr during discovery. Further, Mr. McCormack, along with Judy Davis, inspected Sparr's file and retrieved documents from that file. (Tr. at 51, Mar. 13, 2019.) McCormack testified:
"MR. McCORMICK: And for the record, Your Honor, these Rhode Island Department of Health forensic laboratory reports, those are the reports of November 21, 2006, and then there is a supplemental report, March 7th, 2007. These are the documents that Attorney
Sparr had in his file. These are the originals." (Tr. at 52, Mar. 13, 2019.)
Also marked as Exhibit 10.
The DNA Supplemental Report was discoverable by due diligence because Sparr received it from the State, submitted the case file including the DNA Supplemental Report to Sparr and then had several discussions relating to trial strategies involving the DNA Supplemental Report. Sparr testified that the DNA Supplemental Report could be used for impeachment purposes. Nothing suggests that the DNA Supplemental Report which did not address Petitioner's charges was likely to change the verdict at trial. Because the evidence does not meet the four-part threshold prong enunciated in Brennan, this Court need not engage in the second prong. D'Alessio, 101 A.3d at 1275. Therefore, this Court finds that there is no evidence of material facts not previously presented and heard, nor is there any newly discovered evidence that requires vacation of the conviction or sentence in the interest of justice.
4
Ineffective Assistance of Counsel
Petitioner argues that there was ineffective assistance of counsel because counsel failed to investigate the case properly in violation of Strickland. During testimony, Sparr testified to discussing the case and background. (Tr. at 27, Mar. 13, 2019.)
The Sixth Amendment provides a right to effective assistance of counsel to a criminal defendant. In considering a claim of ineffective assistance of counsel, Rhode Island utilizes a two-pronged standard enunciated in Strickland v. Washington, 466 U.S. 668 (1984). The first component requires the defendant to show "that counsel's performance was deficient." Id. at 687. This prong requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Id. Second, the defendant must show that the deficient performance prejudiced the defense. Id. This prejudice element requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial result of which is reliable. Id. "Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable." Id. Under the first Strickland prong, "[a] trial attorney's representation of his or her client will be deemed to have been ineffective under that criterion only when the court determines that it fell 'below an objective standard of reasonableness."' Guerrero, 47 A.3d at 300. This Court will only proceed to the second prong under Strickland, "[i]f it is determined that there was deficient performance . . . pursuant to which the applicant must show 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."' Id. at 300-01. "An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Strickland, 466 U.S. at 691. "[I]n the context of a negotiated plea, to prevail on an allegation of ineffective assistance of counsel, the defendant must show that he would have insisted on going to trial and that the outcome of that trial would have been different." Neufville v. State, 13 A.3d 607, 614 (R.I. 2011).
Here, during the post-conviction hearing, Sparr was aware that the issue in this matter pertained to whether there was a disclosure and discussion with Petitioner indicating that someone other than Petitioner was a contributor to the DNA found. (Tr. at 3, Mar. 13, 2019.) Regarding the DNA Supplemental Report, Sparr testified:
"I remember discussing it with him and him raising it to me and me saying I didn't believe it was very relevant because there was no allegation of penile/anal penetration. I believe in the indictment, among other things he was charged with, was digital anal. So I
believe he brought it to my attention and I dismissed it, but I said that really is not all that relevant because you're not charged with penile/vaginal penetration, you're charged with digital. So I do remember having that conversation with him." (Tr. at 13-14, Mar. 13, 2019.)
Sparr does not specifically remember when he had this conversation with Petitioner because Sparr met with Petitioner a "half dozen times". (Tr. at 14, Mar. 13, 2019.) Petitioner agreed that he was not being charged with penile/rectal penetration. (Tr. at 80-81, Apr. 17, 2019.) There was testimony, both in the grand jury and the bail hearing, that the victim testified that Petitioner had worn a condom during the assault. (Tr. at 33, Mar. 13, 2019.) The condom impacted Sparr's analysis of the DNA results; however, Sparr's primary goal was to impeach the victim on credibility. (Tr. at 33-34, Mar. 13, 2019.) Below is the following colloquy as it pertains to the charge and DNA evidence:
"THE PETITIONER: My understanding is, in my opinion, this DNA test is what cleared my name. In my opinion, had we gone to to a full trial and applied this DNA test with the other evidence that's in this case, the doctor's examination of her from the day where she alleges to be assaulted, and it says, 'zero signs of any anal and/ or vaginal trauma,' and she claims or says that I assaulted her in both areas, one in one area with my penis—
"THE COURT: Yeah, but that wasn't the charge that you assaulted her in that area with your penis.
"THE WITNESS: Yes, yes.
"THE COURT: No, it wasn't, sir.
"THE PETITIONER: Vaginally yes. And anally, that I used my fingers.
"THE COURT: There would be DNA for that, wouldn't there? But there was no reason there would have been sperm in the anal area.
"THE PETITIONER: That, I can't —
"THE COURT: It impacted her credibility, I'm not arguing about
that. I mean, and the weight of that is what you and Mr. Sparr talked about. It doesn't address the charges that you had against you." (Tr. at 115-16, Apr. 17, 2019.)
There is without question that the DNA Supplemental Report does not address Petitioner's charges. Petitioner argues that if he had the supplemental report, he would have gone to trial and he probably would have won. (Pet'r's Mem. at 4.) The State disagrees. The State contends that because Petitioner was not being charged with penile/rectal penetration, evidence showing that Petitioner's sperm was not in the victim's rectum does not prove that he did not assault the victim. Petitioner strongly believes that the DNA testing is not irrelevant when the victim made a statement within the last 72 hours of the assault that she had no consensual sex. (Tr. at 81, Apr. 17, 2019.)
See memo of Petitioner's attorney, James McCormack, at the post-conviction stage.
However, regarding Petitioner's strong belief that another man's semen was present in an area that Petitioner did not come in contact with led to Sparr's explaining:
"SPARR: But I did tell him, when discussing the issues of potential trial, that that would be an incredibly huge factor if he was charged with penile/anal penetration, but he wasn't. So while I didn't dismiss it outright, and as I now talk about it, I do remember a little more of the conversation. We seemed to have differing opinions as to the strength of that, so to speak—or . . . he seemed to place a great more weight on that than I did.
"MCCORMACK: The 'grabber man,' maybe he thought it was a big deal and you didn't, is that a fair statement?
"SPARR: Not that I didn't, I just didn't think it was as big a deal as him, based on the charges.
"MCCORMACK: Okay. All right.
"SPARR: But it was something that we discussed, and I would have told him that if the case does go to trial, this is something that will be raised." (Tr. at 14-15, Mar. 13, 2019.)
Sparr testified that this was a triable case because "[t]here was a lot of inconsistencies." Sparr described it as "[t]here was just a lot of what I considered 'cross-examination fodder; there was a lot of good material to ask on cross."' (Tr. at 30, Mar. 13, 2019.) Sparr explained:
"[M]y conversation with him and my thought process was based on the allegations, because of the --- I believe that the DNA was found in her anal cavity, and there was no allegation of penile/anal, so I think my focus was on the inconsistencies and other witnesses and not as much on that I think as Mr. Roots gave it." (Tr. at 18, Mar. 13, 2019.)
The Petitioner remembers Sparr discussing how the statements would be used to impeach her . (Tr. at 95-96, Apr. 17, 2019.) See also Tr. at 33-34, Mar. 13, 2019. Sparr was prepared to go to trial and if so, he would have used the DNA evidence to impeach the victim's inconsistencies. The State questioned Petitioner about discussing getting the case ready for trial.
"MS. DAVIS: And you discussed getting the case ready for trial?
"PETITIONER: That was my mindset, yes.
"MS. DAVIS: And you obviously had a discussion about DNA, whether it -- however you recall it, you had a conversation about DNA?
"PETITIONER: Yes.
"MS. DAVIS: And he informed you that it didn't matter because she was going to get up there and tell her story?
"PETITIONER: Yes.
"MS. DAVIS: Okay. Now, so, he was working with you to go forward to trial, right?
"PETITIONER: Yes, he was." (Tr. at 87, Apr. 17, 2019.)
The testimony shows that Sparr considered the DNA evidence in his trial preparation. The difference is that Sparr did not believe the DNA had as much weight as Petitioner thought. This Court questioned Petitioner about the DNA report:
"THE COURT: Okay. So he indicated that it could be used for purposes of trial but that, in his opinion, if she came and testified, the jury would believe her?
"THE WITNESS: Yes.
"THE COURT: So, it wasn't that it didn't matter, it was that he didn't think it was going to sway the jury?
"THE WITNESS: Yeah, I can agree with that one, yeah." (Tr. at 99-100, Apr. 17, 2019.)
Sparr explained to Petitioner that if the victim were to testify to the jury, it would be difficult for the jury to believe Petitioner. Rhode Island Courts "will reject an allegation of ineffective assistance of counsel 'unless a defendant can demonstrate that counsel's advice was not within the range of competence demanded of attorneys in criminal cases."' Rodrigues v. State, 985 A.2d 311, 315 (R.I. 2009). The Petitioner claims that Sparr did not discuss the DNA Supplemental Report with him. Ample testimony contradicts the Petitioner's argument. Sparr's advice of the DNA evidence not being relevant in this case does not fall outside the range of competence required of attorneys in criminal cases. Rodrigues, 985 A.2d at 315. Because Petitioner was not charged with anal penetration, a DNA Supplemental Report showing that Petitioner's DNA was not found in the anal cavity does not address the charges. Sparr acknowledged that the DNA Supplemental Report could be used for impeachment at trial; however, the report did not address Petitioner's charges.
In Rodrigues, the Petitioner argued that her attorney failed to investigate the case and failed to review discovery, including a videotape of the alleged crime, evidence that applicant asserts would highlight potentially exculpatory facts. Rodrigues, 985 A.2d at 316. The Court found that Rodrigues was provided with effective counsel because defense counsel was familiar with the facts surrounding the case, and defense counsel was clearly aware of the strength of the state's evidence and the undercover police officer's reputation for integrity and the likelihood that he would make an effective witness for the state. Id. at 316. In the instant case, Sparr was familiar with the facts surrounding the case. Upon receiving discovery from the State, Sparr gave Petitioner all the documents he had, including the Supplemental Report. Sparr engaged in multiple conversations with Petitioner. Sparr considered the strength and weakness of the DNA Supplemental Report. This Court questioned the Petitioner about the specifics of the Supplemental Report.
"THE COURT: So, now you testified, you said you received this discovery package and in the 'cover letter,' so to speak, in that package, it appears to list the actual, paragraph four, it actually lists that test in March of 2007. There's no question the letter says that, right?
"THE PETITIONER: Yes.
"THE COURT: And there's no question you received a package of discovery?
"THE PETITIONER: No, there's no question, I did receive it.
"THE COURT: And your testimony is that that test result was not within that package?
"THE PETITIONER: That is correct.
"THE COURT: That somehow, either by the State or by Mr. Sparr, somehow it disappeared from that package when you got it?
"THE PETITIONER: Yes.
"THE COURT: But then you testified that you discussed the cased with him and that you talked about DNA in general, and he explained why he didn't think, again, the DNA of you and her would be that significant?
"THE PETITIONER: Yes, correct.
"THE COURT: Did he say the same thing that, because of the nature of the charge and because of the fact it would be used to impeach
her inconsistencies, do you remember him talking about that?
"THE PETITIONER: Yes.
"THE COURT: So, really, the only thing you're differing on is the March 2007 test?
"THE PETITIONER: Yes, specifically, what it stated and the level of importance of it, in his eyes, the level of importance of it was at one level, and in my eyes, the level of it is importance was at another level." (Tr. at 94-96, Apr. 17, 2019.)
Here, Petitioner's testimony contradicts his previous testimony about not having the DNA test result. Petitioner has not provided any evidence explaining how he was able to have lengthy discussions regarding the DNA without knowing the results. (Tr. at 114, Apr. 17, 2019.) Petitioner maintains that according to the discovery package, he should have had the DNA Supplemental Report, but he didn't. (Tr. at 97, Apr. 17, 2019.) It is evident that both Sparr and the Petitioner had differing opinions about the DNA Supplemental Report. "[W]hen counsel has secured a shorter sentence than what the defendant could have received had he gone to trial, the defendant has an almost insurmountable burden to establish prejudice." Neufville, 13 A.3d at 614 (citing Rodrigues, 985 A.2d at 317). In the instant case, for the charge of first-degree sexual assault, Petitioner would be facing life in prison. (Tr. at 32, Mar. 13, 2019.) However, Sparr was able to secure a reduced sentence for Petitioner. (Tr. at 91-92, Apr. 17, 2019.) If Petitioner went to trial, it is likely that he would not have received a shorter sentence. Petitioner's plea deal included three to four years to serve, registration, and probation. Petitioner received a shorter sentence than what he would have received had he gone to trial. Accordingly, there is no evidence that supports the contention that Petitioner would have won at trial with the DNA Supplemental Report. Petitioner has failed to demonstrate by a preponderance of the evidence that Sparr's representation was ineffective under Strickland. This Court finds that Sparr's representation did not fall below an objective standard of reasonableness. Guerrero, 47 A.3d at 300. Because this Court does not find that counsel's performance was deficient, this Court need not engage in the second prong of Strickland, whether counsel's deficient performance prejudiced the defense in this case. Strickland, 466 U.S. at 687.
IV
Conclusion
For the foregoing reasons, this Court finds that (1) Petitioner's plea was knowing, voluntary, and intelligent; (2) the State did not withhold exculpatory evidence; 3) there is no evidence of material facts not previously presented and heard that requires vacation of the conviction or sentence in the interest of justice; and (4) there was no ineffective assistance of counsel. Petitioner's application for postconviction relief is denied.
Judgment shall enter in favor of the State of Rhode Island.
ATTORNEYS:
For Plaintiff: James T. McCormick, Esq. For Defendant: Judy Davis, Esq.