Opinion
P1,21-3354 BG
01-06-2023
STATE OF RHODE ISLAND v. RICARDO COSME
For Plaintiff: Joseph J. McBurney, Esq. For Defendant: Ricardo Cosme, pro se
For Plaintiff: Joseph J. McBurney, Esq.
For Defendant: Ricardo Cosme, pro se
KRAUSE, J.
On May 20, 2021, Ricardo Cosme and some of his gang members opened fire on a rival group in a populous area of Providence. The encounter was one of the largest gunfire confrontations to have occurred on the streets of the city. Scores of spent cartridge casings of various calibers were retrieved by the police from the roadway as well as from the porch of the targeted gang's residential gathering place. That violent engagement resulted in gunshot wounds to members of both factions as well as to onlookers. No one was killed.
The state ultimately narrowed the list of principal participants to six, and a grand jury charged some from each group in a twenty-one-count indictment which included various firearm, assault, and conspiracy offenses, as well as allegations of unlawful gang-affiliated conduct.
Over the years, other than capital offenses, no criminal conduct has been more severely punished by the General Assembly than violent firearm offenses. This is particularly so with street crimes perpetrated by unrestrained gangs who, with alarming regularity, patrol sections of the city with weapons and venom, putting civilized society at significant risk of harm.
In 1994, in an initial response to such unlawful conduct, the Legislature established within the Superior Court a Gun Court Calendar to expeditiously address that kind of violence in Providence County. G.L. 1956 § 8-2-15.1. In doing so, the General Assembly declared that "there must be the certain prospect of prison terms for those who are convicted of such crimes . . . that must be served." Id. § 8-2-15.1(a) and (b).
In 2000, the Legislature mandated that when someone discharges a firearm while committing or attempting to commit a crime of violence (in Cosme's case a felony assault) resulting in injury to another person, the court must sentence the shooter to a consecutive twentyyear term of incarceration without parole. G.L. 1956 §§ 11-47-3.2(a) and (b). In 2014, the General Assembly added the Criminal Street Gang Enhancement statute, G.L. 1956 § 12-19-39, which subjects a member of a criminal street gang to a ten-year term to be served consecutively to the sentence imposed for the underlying offense if it was deliberately committed in furtherance of or in connection with the gang's motives or objectives.
Cosme was charged in twelve of the indictment's twenty-one counts: four counts of discharging a firearm, each one causing injury, four felony assaults, three conspiracies, and unlawfully carrying a pistol. Several of those offenses were within the scope of the Criminal Street Gang Enhancement statute. If convicted after trial (the state proffered overwhelming evidence of guilt), Cosme's maximum exposure of incarceration approached 200 years, almost half of them without parole.
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On July 27, 2022, Cosme pled guilty before this Court to one charge of assault with a dangerous weapon (Count 1), discharging a firearm resulting in injury (Count 5), and four additional firearm possession/conspiracy charges (Counts 9, 10, 11, 12). He also acknowledged that the offenses in Counts 1 and 9 were covered by the gang enhancement statute. Cosme agreed to serve an aggregate sentence of fourteen parolable years in prison, and he also accepted a consecutive twenty-year nonparolable suspended/probationary term. The state dismissed the remaining six offenses. Judgment was entered the following day, July 28, 2022.
Cosme has filed a pro se motion to reduce that sentence pursuant to Rule 35(a) of the Superior Court Rules of Criminal Procedure. The Court finds that his motion fails for any and all of the reasons set forth below and that no circumstances exist which invite a hearing, nor would one aid the decisional process. The Court also finds that Cosme is not entitled to appointment of counsel.
The Motion to Reduce Sentence 1. This Court has no jurisdiction to consider Cosme's untimely motion.
Cosme mailed his motion directly to the Presiding Justice, who received it on December 19, 2022 and forwarded it to this Court, which had handled the case from its inception through disposition on the Gun Court Calendar. The Court will deem the motion as having been "filed" on that December date.
In the context of this case, Rule 35(a) allows a Superior Court justice to reduce a defendant's sentence if the motion is filed within 120 days of final judgment. Since the Judgment of Conviction was entered on July 28, 2022, Cosme's requisite filing date was no later than November 25, 2022. However, because his motion arrived on December 19, 2022, twenty-four days late, this Court is entirely without jurisdiction to consider it.
Rule 35(a) provides in pertinent part:
"(a) Correction or reduction of sentence. The court may correct an illegal sentence at any time. The court may correct a sentence imposed in an illegal manner and it may reduce any sentence when a motion is filed within one hundred and twenty (120) days after the sentence is imposed. . . ."Although Rule 35(a) recites that the 120-day filing period concludes "after the sentence is imposed," the Supreme Court has said that "in cases when [as here] no appeal is filed, the 120-day clock begins to run upon entry of the final judgment of conviction [.]" Jones, 942 A.2d at 985 (emphasis added). Here, judgment was entered on July 28, 2022, the day after Cosme pled guilty. That one-day difference, at least in this instance, is of no moment.
The Supreme Court has expressly held that the 120-day filing window may not be opened wider. "[T]his Court long has adhered to the view that Rule 35's 120-day time limitation is 'jurisdictional and may not be enlarged.'" State v. Jones, 942 A.2d 982, 985 (R.I. 2008) (quoting State v. Letourneau, 446 A.2d 746, 748 (R.I. 1982)); accord, State v. Quaweay, 799 A.2d 1016, 1018 (R.I. 2002).
That Cosme pursued his request pro se does not entitle him to any relaxation of that time constraint. State v. Ballard, 890 A.2d 1238, 1239 (R.I. 2005).
Put plainly, Cosme's motion is time-barred.
2. Cosme has irrevocably waived the right to make the motion.
In sworn testimony before this Court and in an affidavit confirming his intention to plead guilty, Cosme unreservedly acknowledged that he was surrendering certain rights. He explicitly avowed that by pleading guilty he understood that, "I will be giving up and waiving...[m]y right to file a motion for a reduction in sentence." See Request to Enter Plea of Nolo Contendere or Guilty, ¶ 9.
Those sworn renunciations are conclusively fatal to Cosme's sentence reduction petition.
3. Cosme unequivocally agreed to the sentence.
Under oath and with the assistance of counsel, Cosme willingly accepted the disposition. Nowhere has he claimed that his guilty pleas were not made knowingly and voluntarily, or that he received substandard assistance from his experienced court-appointed attorney. See State v. Chase, 9 A.3d 1248, 1255 (R.I. 2010) (Chase II) ("The record is clear, and defendant does not challenge, that he knowingly, intelligently, and upon advice of counsel, entered into the plea agreement. Certainly the trial justice was acting well within his discretionary authority to take this factor into account in denying defendant's Rule 35 motion.").
Most assuredly, if Cosme had not followed his attorney's recommendation to accept the plea bargain, upon conviction after trial (an inevitability), Cosme would have been exposed to an unimaginable period of incarceration, much of which without parole. In the context of effective assistance of counsel, our Supreme Court has held that "when 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 v. State, l3 A.3d 607, 614 (R.I. 2011); Perkins v. State, 78 A.3d 764, 768 (R.I. 2013).
Obiter Dictum
Although the Court is jurisdictionally precluded from considering Cosme's Rule 35 motion, the Court notes that he has offered absolutely no reason or basis for his motion, which is simply a fill-in-the-blanks template. Further, he does not suggest that his sentence was imposed in an illegal manner, or that any portion of his composite fourteen-year prison term is illegal.Moreover, he does not and, manifestly, cannot complain that his term of imprisonment is draconian or disproportionately harsher than those imposed upon his accomplices, who also pled guilty to like charges and accepted generally similar dispositions. Frankly, given the defendant's criminal proclivity and the violent nature of his offenses here, this Court simply cannot conceive of any reason to reduce his agreed-upon sentence.
Rule 35(a) distinguishes between an "illegal sentence" and a sentence which has been "imposed in an illegal manner" (e.g., a failure, say, to have accorded a defendant his right of allocution). The latter is subject to the 120-day time limitation, Jones, 942 A.2d at 985; State v. DeCiantis, 813 A.2d 986, 990, 993 (R.I. 2003); whereas, the court can correct an "illegal sentence" at any time. An illegal sentence is one which is not statutorily authorized or does not conform to the sentence orally pronounced by the court. See State v. Linde, 965 A.2d 415, 416-17 (R.I. 2009); DeCiantis, 813 A.2d at 991. Cosme's sentences, as to each count to which he pled guilty, are all within the statutory framework and are in no way legally infirm.
When Cosme pled guilty to offenses in this case, he also pled guilty to unlawfully possessing a loaded "ghost gun" and accepted an additional five-year sentence with two years to serve, the balance suspended with probation (P2/21-2178AG). Cosme committed that offense on April 24, 2021, and was released on personal recognizance on May 15, 2021. Six days later, while on bail in that firearm case, Cosme committed the crimes in this case.
No Hearing Is Necessary
Although a Rule 35 petitioner is commonly ceded a hearing, such a proceeding may be dispensed with whenever "truly exceptional considerations" invite its omission. State v. Alston, 86 A.3d 379, 380 (R.I. 2014) (citing State v. Chase, 958 A.2d 147, 148 (R.I. 2008) (Chase I) and State v. Brown, 865 A.2d 334, 334 n.2) (R.I. 2005)). "The motion justice has discretion in determining whether there are truly exceptional considerations that excuse him or her from providing the movant with a hearing. He or she must, however, articulate those considerations." Chase 1, 958 A.2d at 149. Such circumstances are decidedly present here because convening a hearing on Cosme's motion, given the reasons earlier outlined, would be entirely useless.
Additionally, the defendant in Chase I, unlike Cosme, was not confronted with a responsive motion by the state to increase his sentence, as permitted by Rule 35(b), and Chase was therefore "not confronted with the prospect of any additional loss of liberty," which the Court cited as a reason to invite a hearing. Chase II, 9 A.3d at 1254. Cosme, on the other hand, would be faced with the state's sentence enlargement motion if the Court were to convene a hearing. In its December 28, 2022 Objection to Cosme's motion, the state expressly included a Rule 35(b) request that this Court increase his sentence:
Rule 35(b) provides:
"(b) Increase in sentence. Within twenty (20) days after the filing of a motion to reduce a sentence, the attorney general may file a motion for an increase in said sentence. The court on its own motion, after the filing of a motion to reduce a sentence, may increase said sentence. Whenever a judge increases a sentence, the reasons for so doing must be made part of the record and must be based on objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding."
"If this Honorable Court considers this Motion to Reduce Sentence despite being filed out of time, then the State respectfully requests that the sentence be increased based on 'objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding.' Super. R. Crim. P. 35(b). This conduct includes Defendant's Discipline History at the Adult Correctional Institutions since the date of sentencing." State's Objection, at 2.
The state's Rule 35(b) motion must not, of course, be vindictive or filed simply in retaliation for a defendant's request for a sentence reduction. State v. Brown, 755 A.2d 124, 126 (R.I. 2000). Here, the state's motion to increase Cosme's sentence does not facially appear born of retribution; rather, it expressly refers to misconduct subsequent to Cosme's sentencing. If the state were to present compelling evidence in that regard at a hearing to rebut the defendant's motion, Cosme, already faced with insurmountable impediments to his motion, would also be "confronted with the prospect of . . . additional loss of liberty." Chase II, 9 A.3d at 1254.
Accordingly, this Court readily finds that the utter futility of Cosme's Rule 35 motion comes within the Supreme Court's prescribed "truly exceptional considerations" to forego a hearing. Chase 1, 958 A.3d at 149.
Cosme Is Not Entitled to Appointment of Counsel
Cosme has also included in his pro se filing an additional and inapposite preprinted template which recites that "his present counsel is not acting in [his] best interests." Cosme's case was closed upon entry of judgment on July 28, 2022, whereupon his attorney's court-appointed assignment to represent Cosme was concluded. Apparently, Cosme now seeks a lawyer to represent him in his ill-fated motion. That request is denied.
In the context of a Rule 35 motion to reduce a sentence, the right to counsel is neither procedurally nor constitutionally endorsed. State v. Merida, 206 A.3d 687, 694 (R.I. 2019) (holding that "a Rule 35 motion is not a 'critical stage of a prosecution' where the Sixth Amendment right to counsel attaches, because the proceeding occurs after a prosecution has been completed"); Chase II, 9 A.3d at 1254 (observing that a Rule 35 application "is by its very terms a posttrial proceeding; a judgment of conviction has been entered, and a sentence has been imposed. Such a proceeding is not a criminal prosecution, and thus it is our opinion that it is not a 'stage of the proceeding' to which the procedural right to counsel under Rule 44 attaches").
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Withal, this Court concludes that Cosme's motion to reduce his sentence must be and hereby is denied.