Providence County Superior Court. (PM 09-590). Associate Justice Jeffrey A. Lanphear.
For Applicant: Stefanie DiMaio-Larivee, Esq.
For State: Jane M. McSoley, Department of Attorney General.
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
In this appeal, we review the denial of an application for postconviction relief. Gerald Lopes (Lopes or applicant) entered a plea of nolo contendere in two separate cases to the charges of burglary, breaking and entering, and receiving stolen goods. Lopes then applied for postconviction relief in the Superior Court, alleging myriad grounds for relief, including ineffective assistance of counsel that resulted in an unknowing and involuntary plea. Lopes's application for postconviction relief was denied. The applicant sought review by this Court, and this case came before the Supreme Court for oral argument on February 24, 2015, pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not summarily be decided. After considering the arguments advanced by counsel, we are satisfied that cause has not been shown and that the appeal may be decided at this time. For the reasons set forth below, we affirm the judgment of the Superior Court.
Facts and Travel
In February 2008, Lopes was charged by grand jury indictment with one count of burglary and, by criminal information, with one count of breaking and entering, two counts of receiving stolen goods valued at over $500, and one count of receiving stolen goods valued at under $500. Based upon Lopes's lengthy criminal record, the state filed a notice that applicant was subject to the habitual-offender statute--G.L. 1956 § 12-19-21. Additionally, in April 2008, Lopes was declared to be a violator of a previously imposed suspended sentence and probation as a result of a plea of nolo contendere entered in April 2000 for yet another breaking-and- entering offense. A magistrate of the Superior Court lifted the suspension, resulting in a sentence of fifteen years and four months incarceration.
On November 19, 2008, the two cases were reached for trial. After a pretrial hearing, a justice of the Superior Court denied Lopes's motions to suppress evidence seized during his arrest which led to the burglary charge. Immediately after the denial of the suppression motions, Lopes--through his trial counsel--sought to withdraw his not-guilty plea and enter a plea of nolo contendere to all charges. Pursuant to the plea agreement, applicant was sentenced, inter alia, to thirty years at the Adult Correctional Institutions (ACI) on the burglary charge, with twenty years to serve and ten years suspended with probation. All sentences were concurrent to the sentence Lopes was serving as a violator. Significantly, as part of this disposition, the state withdrew the habitual-offender notice, thereby relieving Lopes of any potential consecutive sentence.
A review of the transcript from the plea hearing reveals that, before accepting Lopes's plea, the Superior Court justice engaged in a detailed plea colloquy. The trial justice questioned Lopes as to whether he understood the plea forms, signed the forms, and reviewed them with his trial
counsel. The trial justice satisfied himself that Lopes was aware of the elements of the offenses alleged in the indictment and criminal information. The Superior Court justice also reviewed the rights that Lopes was waiving by pleading to the charges, including his right to a trial, the right to call and confront witnesses, and the right of appeal. Before asking the state to ...