Cano v. State

1

JULIO CANO v. STATE OF RHODE ISLAND

No. PM,22-01086

Superior Court of Rhode Island, Providence

February 27, 2023

For Plaintiff: Stefanie A. Murphy, Esq.

For Defendant: Judy Davis, Esq.

DECISION

KRAUSE, J.

In this postconviction-relief application Julio Cano claims that because his attorney allegedly rendered deficient representation, he should be relieved of a life sentence which he agreed to accept when he pled guilty to first degree murder in June 2018.

He is mistaken.

A full explication of the circumstances surrounding Matthew Reverdes's murder is set forth in the Supreme Court's opinion affirming the conviction of Cano's codefendant Trearra Hudgen after her jury trial before this Court in 2019. State v. Hudgen, 272 A.3d 1069 (R.I. 2022). Facts relevant to this Decision follow. ^[1]

Reverdes's murder resulted from his October 31, 2016 confrontation with Cano and Hudgen in Reverdes's basement apartment of a multi-dwelling house in Pawtucket. Hudgen resided in one of the upstairs units, along with Juscelina DaSilva and the latter's three young children. Cano, who lived elsewhere was the father of two of them.

Rancor had been simmering between Reverdes and the two women for a while. Several days before the shooting, they reported that Reverdes had been rapping on their window late at night. The weekend before the murder, Hudgen and DaSilva were out of town, and Cano stayed with the children. At about 4:30 a.m Cano awoke to knocking on the window and saw Reverdes and a female companion run to a car and drive away. When the women returned to Pawtucket, DaSilva confronted Reverdes, who denied the incidents. Later that day, Hudgen, DaSilva, and Cano discussed DaSilva's encounter with Reverdes and his dismissive response. At this point the simmering pot boiled over.

Cano produced a semi-automatic pistol and a revolver. He gave the revolver to Hudgen and went downstairs to confront Reverdes in his basement apartment. There, he held Reverdes at gunpoint and argued angrily with him about the window incidents. Hudgen soon arrived and grabbed Reverdes's diamond earrings from a table and also stole some cash. She then guarded Reverdes with the revolver while Cano searched for other valuables. Reverdes tried to wrestle the gun from her, and an errant shot went off harming no one. Reverdes escaped and ran down the street, with Hudgen and Cano in pursuit, firing several shots at him. Hudgen's aim was better, and Reverdes ultimately died from one of her shots.

After Cano was arrested on November 3, 2016 in Pawtucket, he told the police that he had hidden the guns in the garage after the shooting. When Hudgen was apprehended the same day, the police found Reverdes's diamond earrings in her car.

On February 24, 2017, a grand jury returned an indictment variously charging Cano and Hudgen with several offenses: first degree murder of Reverdes (Count 1); discharging a firearm during a crime of violence resulting in Reverdes's death (Count 2); conspiracy to assault Reverdes with a dangerous weapon (Count 3); assaulting him with a firearm (Count 4); as to Hudgen only, first degree robbery (Count 5); conspiracy to commit murder (Count 6); unlawfully possessing the two pistols without a license (Count 7); and, as to Cano only, possession with intent to deliver cocaine (Count 9).^[2]

Cano's relationship with his first attorney became contentious, and new counsel, who is the subject of this PCR application, was appointed by the Court on January 12, 2018. Because of their overlapping statements to the police, the defendants could not be tried together, and severed trials were anticipated. See Bruton v. United States, 391 U.S. 123 (1968).

Counsel explained to Cano that if convicted of the murder offense after trial, he would automatically be sentenced to serve two consecutive life terms, statutorily mandated because the murder had been committed with a firearm. See G.L. 1956 § 11-47-3.2(b). He also told Cano that if he were convicted of the other offenses, he would be exposed to decades more incarceration. Discussions with the State then led to a disposition of the case.

On June 13, 2018, Cano, accompanied by counsel, presented the Court with a plea form and a cooperation agreement. The agreement contemplated that Cano would plead guilty to first degree murder, conspiracy to commit murder, unlawfully possessing firearms, and a conditional plea to the thirty-year felony drug charge. If Cano fully cooperated with the State and testified at Hudgen's trial, the State would ultimately dismiss that narcotics offense, along with the mandatory consecutive life term for committing murder with a firearm, and any other remaining charges.

Cano pled guilty and testified at Hudgen's trial on October 29-30, 2018. His testimony spans nearly 200 pages. After a jury convicted Hudgen, this Court sentenced her to the two mandatory consecutive life terms for murdering Reverdes with a firearm, as well as concurrent sentences for the rest of the charges.

At Cano's sentencing hearing on February 12, 2019, the prosecutor, as promised, dismissed the drug charge, and the Court sentenced Cano to the single agreed-upon life sentence for the murder charge, along with concurrent terms for conspiring to commit murder and unlawfully carrying the pistols.

Cano declined to exercise his right of allocution and made no statement at the conclusion of the sentencing proceedings.

The Postconviction-Relief Application

In his petition, Cano claims that his guilty plea and conviction are flawed because counsel failed to interview witnesses and ignored his request to advance a diminished capacity defense based upon his professed intoxication when he committed the offenses. He also says that he was intoxicated and/or under the influence of drugs when he spoke with detectives on November 3, 2016. Cano additionally charges that counsel failed to have him psychologically evaluated for the debilitating lingering effects of having been sexually abused in his youth. He also complains that his attorney should have engaged a ballistics expert to demonstrate that Cano's weapon did not fire the fatal shot that killed Reverdes. On December 15, 2022, this Court convened a hearing on Cano's petition, at which Cano and counsel testified.

Cano's complaint that counsel shortchanged him by not procuring a ballistics expert is rejected out of hand. During cross-examination, he conceded that he knew full well that the State had never asserted that he had personally fired the shot which killed Reverdes.

"Q. And you said you wanted to hire a ballistics expert correct?

"A. Yes.

"Q. To show that . . . the bullet that killed Mr. Reverdes . . . did not come from the gun that you were shooting, right?

"A. Yes.

"Q. And you're aware in the discovery, because you said you reviewed it, that the State actually provided that information that the bullet that killed him came from the gun that your co-defendant was firing, correct?

"A. Yes." (PCR Tr. at 46.)

Cano also admitted at the PCR hearing that he had told the detectives who interviewed him that he was not drunk or under the influence of drugs. He said that he had been somewhat intoxicated and/or under the influence the previous night, but not when he spoke with the detectives. (PCR Tr. at 27-28.)

With respect to his claim that he was ostensibly suffering from diminished capacity, Cano admitted that after the shooting he had the wherewithal to hide the weapons and wipe away any possible fingerprints in Reverdes's apartment. He then consulted a lawyer and fled to Massachusetts. (PCR Tr. at 29.) All of these measures are hallmarks of an individual thinking clearly, thoughtfully, and not at all displaying signs of diminished capacity. See State v. Carpio, 43 A.3d 1, 14 (R.I. 2012); State v. Barrett, 768 A.2d 929, 947-48 (R.I. 2001). This claim, too, is entirely specious.

Cano also admitted that his attorney had explained the plea form and the cooperation agreement to him, and he acknowledged that the sentence he received was exactly what he had bargained for and expected. (PCR Tr. at 35-40.) At pages 37-38 of the PCR transcript, the following colloquy ensued between Cano and the State's attorney:

"Q. But this plea that you entered into, that [counsel] explained to you, got rid of all that consecutive time, right?

"A. Yes.

"Q. So you just have the one life sentence. "A. Yes. "Q. And as your attorney suggested, you went before the Court and you told the Judge that [counsel] had gone through this with you, right?

"A. Yes.

"Q. And that you understood it.

"A. Yes.

"Q. And you knew exactly what you were getting into, and you knew that you would be sentenced at a later date, right?

"A. Yes."

And at page 41, the prosecutor asked, "So it was all spelled out, and it was all explained to you before you entered into the plea agreement, right?" Cano answered "Yes." ...