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Lipscomb v. State

Supreme Court of Rhode Island

June 24, 2016

Anthony Lipscomb
State of Rhode Island.

         Providence County Superior Court (PM 10-3377) Edward C. Clifton, Associate Justice.

          For Applicant: Camille A. McKenna Office of the Public Defender.

          For State: Christopher R. Bush Department of Attorney General.

          Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.



         The applicant, Anthony Lipscomb, appeals from the denial of his application for postconviction relief. This case came before the Supreme Court pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not be summarily decided. After considering the parties' written and oral submissions and reviewing the record, we conclude that cause has not been shown and that this case may be decided without further briefing or argument. For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.

         I. Facts and Procedural History

         The applicant first initiated his postconviction-relief proceedings in 2009, when he filed an "omnibus pro-se motion." The applicant's motion was neither sworn nor verified as required by G.L. 1956 § 10-9.1-3; therefore the Superior Court issued an order staying the postconviction-relief proceedings until applicant filed a complaint in the proper form. On July 20, 2012, applicant filed an amended application for postconviction relief-sworn and verified-asserting that his convictions in four separate drug-offense cases were the result of ineffective assistance of counsel in violation of the state and federal constitutions because he had pled nolo contendere in each case rather than either pursuing a motion to suppress physical evidence or going to trial.

         A justice of the Superior Court held a hearing on the postconviction-relief application in February 2013. The three attorneys who had represented applicant in the four cases at issue each testified. The applicant could not testify in person because he was incarcerated in a federal prison located out of state, but he had been deposed in January 2013 by telephone and this deposition testimony was admitted as an exhibit to the postconviction-relief proceedings. During the closing argument, applicant's counsel withdrew one of the four cases included in his postconviction-relief application because, in applicant's deposition testimony, he had discussed a series of facts that were not consistent with that case. The travel of the three remaining cases as well as the testimony from applicant and the attorney who represented him in each case are summarized below.

         A. 2000 Conviction (Case No. P2/00-1178A)

         On March 1, 2000, applicant was arrested after police responded to a call that a passenger in a white Mercury Sable with registration plate IU-72 had been seen holding a shotgun. Just a few days before, the police had received a report that a gun had been fired into a vehicle from a white Mercury Sable; the complainant had claimed that this vehicle belonged to applicant. When applicant was strip-searched at the police station after his arrest, a bag of marijuana and some small bags of cocaine fell from between his legs. The applicant was charged with one count of possession of cocaine and one count of possession of marijuana. On October 2, 2000, applicant pled nolo contendere to possession of cocaine and marijuana and was sentenced to two years, suspended, with probation.

         In his application for postconviction relief, applicant claimed that he had been denied his constitutional right to the effective assistance of counsel and alleged that he had pled nolo contendere without being advised that a motion to suppress the items seized from his person could have been viable had the issue been raised. At the hearing, attorney Scott Lutes, who represented applicant in this case, testified that his review of the postconviction-relief application "vaguely" refreshed his recollection regarding his representation of applicant, but that he "represent[ed] probably 200 people a year, [which was] a lot of cases to distinguish from." Mr. Lutes, however, "recall[ed] [applicant] because [he] [had] represented him several times." Mr. Lutes testified that he "always" considered potential grounds for alleging unconstitutional search and seizure and whether to file a motion to suppress, and that he would "go over a case with a client and discuss the legal issues, the pros and cons of pursuing this avenue or that avenue, and ultimately the client ma[de] the decision [about] what they want[ed] to do." While Mr. Lutes did not specifically recall either this case or having had such a conversation with applicant, he did recall that "we had a conversation with the clerk's office when he was charged, and I showed him it was only charged as a simple possession charge, and he was happy with that because he didn't feel he had the same potential going to jail [sic] for that." Mr. Lutes testified that his "vague recollection * * * was that [applicant's] primary focus was on * * * wrapping everything up for a concurrent sentence and [applicant] was satisfied that it wasn't a possession with intent charge * * * and didn't want to pursue the issues and go[] to trial." According to Mr. Lutes, he "never made a client plead to something. Even if they're hesitant, [he would] continue it * * *, and [he] [did not] recall that being an issue in this case at all."

         During his deposition, applicant testified that, while he had not asked Mr. Lutes any questions about the legality of the search, "now that [he had] a little understanding in regards to the law * * *, " he would have "definitely" proceeded with a motion to suppress if Mr. Lutes had told him that there were grounds for such a motion. The applicant also testified that his communication with Mr. Lutes during the case occurred "during court proceedings" and that he had not "really sat down with him and discussed the case in length in its totality at all, * * * to * * * review [his] options." The applicant also testified that he could not recall any specific conversations with Mr. Lutes regarding his case or whether ...

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