Providence County Superior Court
For Plaintiff: Chad F. Bank, Esq.
For Defendant: Maureen B. Keough, Esq.
Before the Court is an application for post-conviction relief filed by Felix Reyes Andino (Petitioner). Petitioner files his application on the basis that he received ineffective assistance of counsel. Petitioner also contends that he entered pleas, which were not voluntary, knowing, and intelligent. Jurisdiction is pursuant to G.L. 1956 § 10-9.1-1.
Facts and Travel
In 2012, Petitioner was charged in federal court for possession with intent to distribute cocaine. Attorney James McCormick represented Petitioner on his federal charge. While on bail, Petitioner was arrested for and charged with three additional felony cases in state court. Attorney Alberto Aponte Cardona entered his appearance for Petitioner in the new state cases. These cases included:
o Count 1: Possession of a Controlled Substance
o Count 2: Obstructing a Police Officer
o Count 1: Felony Assault o Count 2: Felony Assault
o Count 3: Felony Conspiracy
o Count 4: Obstructing a Police Officer
o Count 1: Possession of a Motor Vehicle with an Altered VIN Number
o Count 2: Possession of a Stolen Motor Vehicle
On December 4, 2012, Petitioner pleaded to one count of possession with intent to distribute cocaine in federal court and was sentenced on February 28, 2013 to sixty months to serve. Subsequently, Attorney Cardona entered into plea negotiations with the State. As a result of the plea bargaining, the State offered to dismiss the following counts, pursuant to Super. R. Crim. P. 48A: (1) Count 2 of P2-2012-1534A (Obstructing a Police Officer); (2) Count 3 of P2-2012-0431A (Felony Conspiracy); (3) Count 4 of P2-2012-0431A (Obstructing a Police Officer); Count 1 of P2-2012-1846A (Possession of a Motor Vehicle with an Altered VIN Number). The State also amended Petitioner's two counts of felony assault-originally charged under P2-2012-0431A-to two counts of misdemeanor simple assault. Petitioner pleaded nolo contendere to Count 1 of P2-2012-1534A (Possession of a Controlled Substance). The Court accepted this plea, and Petitioner was sentenced to three years suspended with probation. Petitioner pleaded nolo contendere to Counts 1 and 2 of P2-2012-0431 A, as amended (Simple Assault). The Court accepted this plea, and Petitioner was sentenced to one year suspended, one year probation for each count of simple assault. Petitioner pleaded nolo contendere to Count 2 of P2-2012-1846A (Possession of a Stolen Motor Vehicle). The Court accepted this plea, and Petitioner was sentenced to ten years full, three years to serve at the ACI, the balance suspended with probation. The three year sentence Petitioner was to serve at the ACI was applied consecutively to the sixty month sentence he received as a result of his plea in federal court.  Thus, Petitioner was ultimately sentenced to a total of eight years to serve in state and federal prison. The Petitioner is currently serving five years in the Federal Correctional Institute in Berlin, New Hampshire.
Petitioner filed the instant motion for post-conviction relief on July 17, 2014, averring that he did not consent to this disposition. Specifically, Petitioner claims that Attorney Cardona informed Petitioner that his federal and state sentences were to run concurrently, rather than consecutively. As a result, Petitioner claims that Attorney Cardona's representation was ineffective, and therefore violated Petitioner's Sixth Amendment right to counsel. Petitioner also raises the issue of the voluntariness of his plea in state court. Each of Petitioner's arguments is supported by Petitioner's claim that had he been fully advised of the consequences of his pleas in state court, he would not have pleaded nolo contendere.
The State filed its objection on August 25, 2014. On December 9, 2014 and February 19, 2015, this Court held evidentiary hearings and heard the testimony of Petitioner and Attorney Cardona. On April 7, 2015, this Court heard oral arguments by the Petitioner and Respondent.This Court also reviewed the transcript of the Petitioner's July 10, 2013 plea colloquy.
The accounts of Petitioner and Attorney Cardona are completely at odds with each other. Petitioner testified that Attorney Cardona met with Petitioner only twice, and that during those meetings, Petitioner specifically requested that his federal sentence run concurrently, rather than consecutively. Petitioner testified that he does not recall Attorney Cardona telling Petitioner any of his rights, or going over the plea form with Petitioner. Petitioner also claims that Attorney Cardona promised Petitioner that his state sentences would run concurrently with his federal sentences.
Attorney Cardona recalls a much different version of events. Attorney Cardona testified that once he entered his appearance for Petitioner, he filed motions, met with Attorney McCormick (Petitioner's counsel in the federal matter), and conferenced the case at least seven times with the trial justice. Attorney Cardona testified that he met with Petitioner at least thirteen times-both at the ACI and at the courthouse cellblock. During their meetings, Attorney Cardona and Petitioner discussed the likelihood of success at trial compared to the disposition after a plea. As to the likelihood of success at trial, Attorney Cardona noted to this Court that Petitioner's co-defendant had already pleaded to his charge, that there was video surveillance that implicated Petitioner as having committed the crime and serious bodily injuries were involved. Therefore, Attorney Cardona advised Petitioner to consider a plea bargain. Attorney Cardona testified that the focus of Petitioner's concern was to remain eligible for a drug program in the federal system. After conferring with Attorney McCormick, Attorney Cardona confirmed that Petitioner would not be eligible for the drug program if he was convicted of a felony assault. Thus, as Attorney Cardona explained, Petitioner's expressed goal during plea bargaining was to request that the State amend the felony assault charges in state court to simple assaults. This amendment would result in preserving Petitioner's eligibility for the federal drug program.
After approximately seven conferences, Attorney Cardona was able to work out a disposition with the State, which the Court was willing to accept, resulting in the amendment of the felony assault charges to misdemeanor simple assaults, and imposing the time to serve required by the Petitioner's plea in state court as part of the sentence on the possession of a stolen motor vehicle charge. Attorney Cardona testified that prior to the plea colloquy, Attorney Cardona informed Petitioner of his rights and went over the plea forms with Petitioner. Attorney Cardona also testified that he believed Attorney McCormick informed him that Petitioner's federal and state sentences would run concurrently, but Attorney Cardona could not be sure. Attorney Cardona did testify that he may or may not have informed Petitioner that his state sentence would run concurrently with his federal sentence, but again, he could not be sure. Nevertheless, Attorney Cardona was confident that the focus of his conversations regarding the plea dispositions involved eligibility for the federal drug program, not whether the time served would be concurrent.
The Court has also reviewed the transcript of Petitioner's July 10, 2013 plea colloquy, and this Court finds that it resolves the major contradictions in the testimony. During the plea colloquy, Petitioner assured the Court that he was competent, both mentally and intellectually, to understand that he was entering a plea of nolo contendere. See Tr. of Plea Colloquy at 4, State v. Reyes-Andino, Nos. P2-2012-1846A, P2-2012-0431A, P2-2012-1534A (R.I. Super. Ct. July 10, 2013). Petitioner also informed the Court that he had discussed his pleas with Attorney Cardona and that Attorney Cardona had answered all of his questions concerning the pleas of nolo contendere. Id. at 4-5. Petitioner testified that he was informed of the plea negotiations that took place and was satisfied with Attorney Cardona's representation. Id. at 5. The Court read the Petitioner his rights and Petitioner stated that he was voluntarily and freely giving up those rights. Id. at 6-7. When asked if he had any questions regarding the sentencing recommendations that the Assistant Attorney General read into the record on behalf of the State, Petitioner replied in the negative. Id. at 11-12. Those recommendations did not make any mention of running consecutively to or concurrently with Petitioner's federal sentences. Id. Finally, the Petitioner testified that no other promises had been made to him by Attorney Cardona, the police, the State, or the Court. Id. at 12-13.
After reviewing the transcript of the plea colloquy, this Court finds that Attorney Cardona did inform Petitioner of his rights, as well as go over the plea forms with Petitioner. Because the plea colloquy comports with Attorney Cardona's testimony, and contradicts Petitioner's testimony, this Court finds Attorney Cardona's testimony to have been far more credible than Petitioner's. Specifically, this Court determines that Attorney Cardona was credible in admitting that he may have told Petitioner that Petitioner's state sentence would run concurrently with his federal sentence, but that the ...