Skally v. State

Providence County Superior Court

For Plaintiff: William V. Devine, Jr., Esq.

For Defendant: Judy Davis, Esq.

DECISION

MONTALBANO, J.

Before the Court is an application for postconviction relief filed by Richard Skally (Petitioner). See Second Amended Petition for Post Conviction Relief (Second Am. Pet.). Petitioner contends that his conviction and sentence should be vacated on the basis that he received ineffective assistance of counsel. Id. ¶ 16. Petitioner further contends that his presentation with a Notice of Habitual Offender was untimely. Id. ¶ 7. Petitioner also contends that the State presented an insufficient factual basis for the plea, specifically that there was no evidence to support the charge of burglary with respect to his intent to commit a felony. Id. ¶¶ 11, 12, 13, 14. Petitioner further contends that he entered a plea that was not voluntary, knowing, and intelligent. See Application for Post-Conviction Relief (original Pet.) ¶ 10. Finally, Petitioner contends that the State made a "Judicial Admission" during the September 2015 violation hearing precluding the State from proving the intent element of the burglary charge. (Second Am. Pet. ¶¶ 9, 10.) The Court has jurisdiction pursuant to G.L. 1956 §§ 10-9.1-1 and 10-9.1-2.

I

Facts and Travel

On June 20, 2014, Petitioner was arraigned in District Court on one count of burglary. He was presented as a violator of his probation in Case No. P1-1994-3571A on June 23, 2014. In that

case, he was sentenced to a thirty-year term, with fourteen years to serve, balance suspended with probation after being convicted of Count 1, entering a building with intent to commit sexual assault and Count 2, rape. The presentment was based upon a Pawtucket Police complaint for which the Petitioner was formally indicted on April 29, 2015 as Case No. P1-2015-1343A. In that case, Petitioner was charged with burglary (Count 1), breaking and entering a dwelling without the consent of the owner, while the resident was on premises (Count 2), and assault and battery (Count 3). Justice Procaccini presided over a violation hearing with witnesses on September 17 and 18, 2015 (Pet'r's Ex. A) and found Petitioner to be a violator of his probation. Petitioner was sentenced to serve ten years on that violation. Petitioner was arraigned on P1-2015-1343A on May 20, 2015 and pled not guilty. The first pretrial conference was held before Ms. Justice Rodgers on the morning of August 20, 2015. The State presented Petitioner with a Notice of Habitual Offender in open Court on the afternoon of August 20, 2015. (Pet'r's Ex. B.) Petitioner pled nolo contendere to the burglary charge (Count 1) on November 2, 2017. Counts 2 and 3 were dismissed pursuant to Rule 48(a) of the Superior Court Rules of Criminal Procedure and the Notice of Habitual Offender was withdrawn by the State. (Pet'r's Ex. D.) This Justice sentenced Petitioner to thirty-five years at the ACI, with twenty years to serve, the balance suspended with probation. Id. ¶ 5. The sentence imposed was to run concurrently with the sentence received by Petitioner after his violation hearing in P1-1994-3571A. Id.

This Court conducted an evidentiary hearing on Petitioner's Second Amended Petition on May 6 and May 11, 2021. Petitioner filed his Memorandum in Support of his Petition for Post-Conviction Relief on July 16, 2021, and the State filed its Post-Hearing Memorandum of Law on July 15, 2021.

II

Standard of Review

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 interests of justice."' Higham v. State, 45 A.3d 1180, 1183 (R.I. 2012) (quoting DeCiantis v. State, 24 A.3d 557, 569 (R.I. 2011)). This Court notes that the applicant for postconviction relief bears the burden of proving, by a preponderance of the evidence, that postconviction relief is warranted in his or her case. Hazard v. State, 64 A.3d 749, 756 (R.I. 2013).

III

Analysis

Petitioner argues his plea should be vacated on constitutional grounds alleging that he received ineffective assistance of counsel from Attorney Philip Vicini. Petitioner further contends that the Notice of Habitual Offender was not timely served, that the factual basis for his plea of nolo contendere was insufficient, that he entered a plea that was not voluntary, knowing, and intelligent, and that during the violation hearing the State gave a closing argument during which it made a judicial admission, precluding it from proving the intent element of the burglary charge.

A

Notice of Habitual Offender

Petitioner contends that the Notice of Habitual Offender was not timely served. General Laws 1956 § 12-19-21(b) provides, in pertinent part:

"Whenever it appears a person shall be deemed a 'habitual criminal,' the attorney general, within forty-five (45) days of the arraignment, but in no case later than the date of the pretrial conference, may file with the court a notice specifying that the

defendant, upon conviction, is subject to the imposition of an additional sentence in accordance with this section; provided, that in no case shall the fact that the defendant is alleged to be a habitual offender be an issue upon the trial of the defendant, nor shall it be disclosed to the jury." Section 12-19-21(b).

Our Supreme Court has held that '"when the language of a statute is clear and unambiguous, this Court must interpret the statute literally and must give the words of the statute their plain and ordinary meanings."' State v. Paiva, 200 A.3d 665, 667 (R.I. 2019) (quoting State v. Diamante, 83 A.3d 546, 548 (R.I. 2014)). Rhode Island courts have consistently found that the statutory language set forth in § 12-19-21(b) is clear and unambiguous and that a Notice of Habitual Offender is timely if presented more than forty-five days after arraignment, as long as notice is provided on the date of the pretrial conference. See, e.g., State v. Hampton-Boyd, 253 A.3d 418, 427-28 (R.I. 2021); Ricci v. State, 196 A.3d 292, 301 (R.I. 2018).

After careful review, this Court finds that the language in § 12-19-21(b) is clear and unambiguous. The statutory language contemplates that the Notice of Habitual Offender may be filed with the Court no later than the date of the pretrial conference. Petitioner contends that since a pretrial conference took place on the morning of August 20, 2015, and the Notice of Habitual Offender was filed with the Court on the afternoon of August 20, 2015, that the notice was not timely. The clear and unambiguous language of § 12-19-21(b) leads this Court to conclude that the Notice of Habitual Offender in this case, which was filed with the Court on the same date as the first pretrial conference, was timely filed. The Petitioner was thereby put on notice of the potential punishment he faced if found to be a Habitual Offender and consequently the notice satisfied the requirements of due process. See Hampton-Boyd, 253 A.3d at 427.

Moreover, Attorney Vicini was careful to take into consideration the Notice of Habitual Offender when he advised Petitioner of the potential consequences of going to trial as opposed to

pleading. While Attorney Vicini knew there could be a potential issue with regard to the Notice of Habitual Offender in Petitioner's case, he spoke with Petitioner at length about the notice and what it could mean for Petitioner. (Postconviction Hr'g Tr. 16:3-4, May 6, 2021.) Attorney Vicini's explanation of the potential consequences of the Notice of Habitual Offender if Petitioner was convicted after a trial fell within the wide range of reasonable professional assistance to which Petitioner was entitled.

B

Compliance with Rule 11

Petitioner contends that his plea of nolo contendere was not made knowingly and voluntarily because the factual basis for his plea to the burglary charge was not placed on the record by the State in violation of Rule 11 of the Superior Court Rules of Criminal Procedure. Rule 11 states, in pertinent part:

"A defendant may plead not guilty, guilty or, with the consent of the court, nolo contendere. The court may refuse to accept a plea of guilty and shall not accept such plea or a plea of nolo contendere without first addressing the defendant personally and determining that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea. . . . The court shall not enter a judgment upon a plea of guilty or nolo contendere unless it is satisfied that there is a factual basis for the plea" Super. R. Crim. P. 11.

The Supreme Court has found that "Rule 11 implies a subjective standard for determining whether a factual basis exists" for a plea, and that the trial justice should view the record in its totality in order to make that determination. State v. Feng, 421 A.2d 1258, 1269 (R.I. 1980). The Supreme Court has previously found a "bare-boned" plea colloquy, where the defendant acknowledged the facts as true, to satisfy the factual basis requirement of Rule 11. Desamours v. State, 210 A.3d 1177, 1183 (R.I. 2019).

In the instant case, Petitioner alleges his plea of nolo contendere was not made knowingly and voluntarily because a factual basis for the plea to the burglary charge was not placed on the record by the State. Rule 11 does not require the entire factual basis of a plea to be placed on the record for the plea to be valid. See Super. R. Crim. P. 11. Rather, it permits this Court to view the total record to determine whether it is satisfied that a factual basis exists for a defendant's plea. Feng, 421...