Kent County Superior Court
For Plaintiff: Jason P. Knight, Esq.
For Defendant: Meg McDonough, Esq.
This action is before this Court on Kathleen Thompson's (Petitioner) appeal from the District Court's denial of her petition for postconviction relief. This Court has jurisdiction over the appeal pursuant to G.L. 1956 § 10-9.1-2(b). For the reasons set forth in this Decision, Petitioner's appeal is denied, and the underlying petition is denied and dismissed.
I Facts and Travel
Petitioner filed a petition for postconviction relief in District Court on February 14, 2014, seeking to vacate a District Court conviction resulting from a September 2000 nolo contendere plea to a misdemeanor violation of a protective order. Petitioner asserted that the District Court violated G.L. 1956 § 12-12-22 during the plea colloquy by failing to inform her of the potential immigration consequences of her plea. The State did not file an answer to the petition in the District Court, but argued at the hearing that the doctrine of laches would prevent Petitioner from receiving the postconviction relief sought. After a hearing on the petition, the District Court denied Petitioner's requested relief on April 8, 2014. Petitioner timely appealed this denial to the Superior Court. This Court held a hearing on April 23, 2014, and took the appeal under advisement.
II Standard of Review
Rhode Island law provides that "[a]ny person who has been convicted of, or sentenced for, a crime, a violation of law, or a violation of probationary or deferred sentence status . . . may institute . . . a proceeding under this chapter to secure relief" on one of six grounds. Sec. § 10-9.1-1. One of the grounds is "[t]hat the conviction or the sentence was in violation of the constitution of the United States or the constitution or laws of this state." Sec. 10-9.1-1(a)(1). The petitioner bears the burden of establishing, by a preponderance of the evidence, that he or she is entitled to the relief sought. Anderson v. State, 45 A.3d 594, 601 (R.I. 2012) (citing Mattatall v. State, 947 A.2d 896, 901 n.7 (R.I. 2008)). This Court's review of an appeal from a District Court's denial of a petition for postconviction relief is de novo. Id. (citing State v. Laurence, 18 A.3d 512, 521 (R.I. 2011) (further citations omitted)). Pursuant to § 10-9.1-7, "[a]ll rules and statutes applicable in civil proceedings shall apply except that pretrial discovery proceedings shall be available only upon order of the court."
The State did not file an answer to the petition in the District Court but argued at both the District Court hearing and the hearing before this Court that Petitioner's claim for postconviction relief should be denied based on laches. Petitioner argued that the State waived this defense of laches by not raising it in a responsive pleading. The merits of Petitioner's postconviction relief petition need not be considered if her claim is barred by laches.
According to Super. R. Civ. P. 8(c), the affirmative defense of laches shall be set forth in a responsive pleading to a preceding pleading. It is well settled that the failure to plead an affirmative defense in a responsive pleading results in the waiver of that defense. Catelli v. Fleetwood, 842 A.2d 1078, 1081 (R.I. 2004) (citing Duquette v. Godbout, 416 A.2d 669, 670 (R.I. 1980)). However, Super. R. Civ. P. 15(b), entitled "Amendments to Conform to the Evidence, " provides that "when issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings." Our Supreme Court has held that the affirmative defense of laches may be raised and tried by implied consent of the parties even if not pleaded. Kelly v. C.H. Sprague & Sons Co., 455 A.2d 1302, 1305 (R.I. 1983) (citing Kenney v. Providence Gas Co., 118 R.I. 134, 372 A.2d 510 (1977)). In Kenney, our Supreme Court stated that "[t]here can be no implied consent under Rule 15(b) unless the parties clearly understand that the evidence in question is aimed at the unpleaded issue." 118 R.I. at 141, 372 A.2d at 514 (holding that laches was not tried by implied consent when the only evidence to support the defense were two statements made at trial in relation to other issues, and the parties had no other notice of the unpleaded defense of laches).
At the hearing before this Court, Petitioner's counsel argued that the affirmative defense of laches was waived because it was not raised in a responsive pleading or motion in the District Court. In response, the State argued that Petitioner and her counsel were well aware of the State's assertion of the defense of laches because the District Court heard both parties on the issue of laches and found the State's assertion of the defense to be meritorious. This Court finds that the defense of laches was raised and argued through the implied consent of the parties at both the District Court and before this Court. Accordingly, this Court concludes that the State's failure to assert the defense in a pleading under these circumstances does not result in a waiver of the defense of laches. ...