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Peguero v. State

Superior Court of Rhode Island

June 20, 2016

VICTOR PEGUERO
v.
STATE OF RHODE ISLAND

         Providence County Superior Court, Lanphear, J.

          For Plaintiff: John M. Cicilline, Esq.

          For Defendant: Jeanine P. McConaghy, Esq.

          DECISION

          LANPHEAR, J.

         This matter is before the Court on Victor Peguero's (Mr. Peguero) application for postconviction relief.

         Facts and Travel

         The 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.

         On 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 served concurrently.

         Mr. 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.[1] 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.

         Jurisdiction is pursuant to G.L. 1956 § 10-9.1-1. For the reasons stated below, this Court denies Mr. Peguero's application.

         Standard of Review

         On an 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."

         Ineffective ...


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