MICHAEL P. CHARETTE
STATE OF RHODE ISLAND
For Plaintiff: James T. McCormick, Esq.
For Defendant: Kurt F. Mutter, Esq.
This matter is before the Court for further decision on additional grounds advanced in support of the application for postconviction relief brought by Michael P. Charette (Petitioner). Jurisdiction is pursuant to G.L. 1956 §§ 10-9.1-1 et seq.,
Facts and Travel
The factual underpinnings of the criminal case are set forth in the Rhode Island Supreme Court's opinion affirming Petitioner's convictions, State v. Charette, 688 A.2d 1286 (R.I. 1997). Thereafter, Petitioner filed an application for postconviction relief. After amending his application with the assistance of counsel, this Court issued an initial Decision on April 9, 2012. Charette v. State of R.I., No. PM 2010-2195, 2012 WL 1245547 (Super. Ct. Apr. 9, 2010) (hereinafter, initial Decision). In said initial Decision, relevant facts were further discussed by this Court in the context of Petitioner's claims for postconviction relief. To the extent necessary, some of those facts will be referenced herein.
After the Court's initial Decision, both an Order and a Judgment in favor of the State of Rhode Island entered on April 19, 2012. Petitioner thereafter filed a timely Notice of Appeal on April 30, 2012. Prior to docketing the Notice of Appeal in the Supreme Court, the Petitioner moved for a stay on September 14, 2012 in order to allow him to assert additional grounds not already ruled upon by the Court. The Court granted the stay and, thereafter, Petitioner filed a new application for postconviction relief under the same file number on December 9, 2013. Petitioner and the State of Rhode Island each filed additional briefs and memoranda. Petitioner, his counsel, and counsel for the State of Rhode Island have waived a hearing, submitted brief oral arguments, and submitted the case to this Court on the additional grounds raised.
Additional Grounds Asserted At Present Time
Petitioner alleges that the concurrent sentences he received in Counts 1 and 7 of his indictment, alleging robbery and assault with intent to commit robbery, respectively, were unlawful. (Pet'r's Supplemental Post-Conviction Mem. 2.) Petitioner submits that his trial counsel should be found to be ineffective for failing to raise the double jeopardy issue at the appropriate time before the trial court. Id. at 2, 3. Petitioner further submits that "trial counsel's failure to raise this issue at trial requires no proof of malfeasance other than omission itself." Id. at 2. Petitioner asserts that the constitutional prohibition against double jeopardy prohibits multiple sentences to be imposed for conduct constituting the same criminal act.
In order to fully understand Petitioner's argument, it is necessary to look back upon the sentencing history, especially as applied to Count 1 (robbery) and Count 7 (assault with intent to commit robbery). Petitioner was originally sentenced by the trial justice on August 30, 1993. He received, in relevant part, fifty years to serve on Count 1, with twenty years to serve on Count 7 consecutive to Count 1 (emphasis added). On May 9, 1997, another justice of the Superior Court, pursuant to a motion brought under Rule 35 of the Superior Court Rules of Criminal Procedure, further reduced the sentence in Count 7 by ordering that its twenty years run concurrent with the fifty years in Count 1 and not consecutive thereto (emphasis added). Petitioner next notes that, as of this date, he has served "the entirety of his sentence on Count 7 assault with intent to rob, [and] has thus been punished for those facts constituting his criminal conduct in both Count 7 and Count 1. By his continuing to serve his sentence for robbery, he is in effect and actuality, being punished again for those facts for which he has already been punished by the completion of his sentence in Count 7." (Pet'r's Supplemental Post-Conviction Mem. 3.) Petitioner suggests that the Court should "vacate and dismiss his conviction on Count 1 robbery." Id. Petitioner claims he is "prejudiced" by said conviction in Count 7 because it "carries a societal stigma, can result in an increased sentence for a future offense, and may have a prejudicial effect on his parole eligibility as well as his prison classification." Id.
As to Petitioner's new ineffective assistance claim, the State maintains at oral argument and in its written brief that it is "the same argument only now phrased differently." (State's Obj. to Pet'r's ...