County Superior Court, Lanphear, J.
Plaintiff: John M. Cicilline, Esq.
Defendant: Jeanine P. McConaghy, Esq.
matter is before the Court on Victor Peguero's (Mr.
Peguero) application for postconviction relief.
full recitation of the facts of Mr. Peguero's original
conviction is set out in State v. Victor Peguero,
P2-2006-2860C. This Decision recites facts pertinent to the
application for postconviction relief.
November 1, 2007, Mr. Peguero, represented by a seasoned,
experienced, respected private attorney entered a plea of
nolo contendere to two counts of possession of a
stolen motor vehicle and one charge of operation of a
"chop shop." Appl. 1, ¶ 4. He was sentenced to
four years of probation on each charge, with sentences to be
Peguero filed the instant application on January 4, 2016. He
alleges that his attorney failed to inform him that a plea of
nolo contendere might negatively impact his
immigration status, and that such omission constituted a
denial of his right to effective assistance of
counsel. This case is now before the Court on Mr.
Peguero's application for postconviction relief. He
asserts ineffective assistance of counsel, and further
asserts that the trial justice failed to adequately assess
his understanding of the potential immigration consequences
of the plea, as is required by G.L. § 1956 12-12-22. The
State filed an objection on February 23, 2016, in which it
asserted as affirmative defenses the doctrines of res
judicata and laches.
is pursuant to G.L. 1956 § 10-9.1-1. For the reasons
stated below, this Court denies Mr. Peguero's
application for post conviction relief, an applicant
"bears the burden of proving his allegations by a
preponderance of the evidence." Palmigiano v.
Mullen, 119 R.I. 363, 377 A.2d 242 (1977). Section
10-9.1-6 of the Rhode Island General Laws provides that when
the trial justice is:
"satisfied, on the basis of the application, the answer
or motion, and the record, that the applicant is not entitled
to post conviction relief and no purpose would be served by
any further proceedings, it may indicate to the parties its
intention to dismiss the application and its reasons for so
doing. The applicant shall be given an opportunity to reply
to the proposed dismissal."