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Rivera v. State

Superior Court of Rhode Island

August 23, 2016

JOSE RIVERA, Petitioner,

          For Plaintiff: Kevin F. Dwyer, Esq.

          For Defendant: Roger R. Demers, Esq.


          NUGENT, J.

         Before the Court is Petitioner Jose Rivera's (Rivera or Petitioner) Application for Post-Conviction Relief. In essence, Petitioner claims that he was deprived of the effective assistance of counsel because his trial attorney failed to inform him of a plea bargain offer from the State of Rhode Island (State or Defendant). Based on this claim, he now requests that this Court vacate his earlier conviction by a jury and order a new trial. Jurisdiction is pursuant to G.L. 1956 § 10-9.1-2.

         I Facts & Travel

         On February 10, 2006, a grand jury returned an indictment charging Rivera with having committed several crimes against developmentally disabled adult women while he was employed as a Rhode Island Public Transit Authority driver, and the women rode his bus to and from the Adeline LaPlante Memorial Center in Wakefield, Rhode Island. On June 4, 2007, a jury found Rivera guilty on two counts of first degree sexual assault (Counts 2 and 4), four counts of second degree sexual assault (Counts 3, 5, 6, and 7), and one count of simple assault or battery-the lesser included offense of Count 1. On August 7, 2007, the Court sentenced Petitioner to life imprisonment for Counts 2 and 4 and fifteen years to serve on Counts 3 and 5, all such terms to run concurrently. Further, Petitioner was sentenced to two concurrent terms of fifteen years on Counts 6 and 7, said terms to run consecutively to Counts 2, 3, 4, and 5. Finally, Rivera was sentenced to one year, consecutive to all other counts for the simple assault conviction. In total, the sentence was life imprisonment plus sixteen years.

         Subsequently, Rivera appealed the merits of his conviction to the Supreme Court which affirmed the jury's verdict. See State v. Rivera, 987 A.2d 887, 908 (R.I. 2010). Similarly, following a motion to reduce his sentence that was denied by this Court, the Supreme Court affirmed Petitioner's sentence in State v. Rivera, 64 A.3d 742, 749 (R.I. 2013) (noting that "the offenses of which the defendant stands convicted irrefutably were horrific").

         Presently, Petitioner is before the Court on a Petition for Post-Conviction Relief. On November 23, 2011, Rivera filed a Petition with this Court seeking post-conviction relief based on various grounds. On September 18, 2015, with the assistance of court-appointed counsel, Rivera amended his Petition to include a claim that his trial counsel was ineffective by failing to inform him of a plea offer from the State. Prior to the hearing, Petitioner chose to proceed solely on the amended claim that counsel was ineffective because he failed to inform him of a plea offer from the State in violation of Missouri v. Frye, __ U.S. __, 132 S.Ct. 1399, 1410, 182 L.Ed.2d 379 (2012) .

         The Court held hearings on March 9, 2016 and on April 27, 2016. Over the course of two days, the Court heard testimony from four witnesses: 1) Craig Montecalvo (Montecalvo), lead prosecutor in the original trial; 2) Mark Trovato (Trovato), co-counsel with Montecalvo; 3) Lucinda Avelino (Avelino), Rivera's wife; and 4) Rivera. Both Montecalvo and Trovato testified that no formal offer was ever made regarding Rivera's case. (Hr'g Tr. (Tr.) 7:13-14; 22:2-5, Mar. 9, 2016 and Apr. 27, 2016.) The State chose not to make an offer to Rivera because he was adamant in maintaining his actual innocence. Id at 12:3-13; 22:2-5; see also id. at 38:16-18 (Rivera admits that he was not willing to admit to any of the charges against him).

         Rivera seemingly rested his argument that an offer was communicated from the State to his trial attorney based on an email between his present attorney and Montecalvo.[1] In the email, Montecalvo quotes an email exchange between him and Trovato discussing why they had not given Rivera a plea offer. Id. at 9:9-21. It states, in relevant part, that "[w]e recalled talking about something in the range of ten to twelve years to serve." Id at 9:14-15. However, they both agree that the conversation discussing "ten to twelve years" was one that they had with one another and, importantly, did not include defense counsel. Id. at 12-13; 21:10-17. Rivera's trial counsel was never called to testify at the Post-Conviction Hearing.

         In turn, Avelino testified that she had participated heavily in her husband's defense by attending-as she recalled-"all" of the meetings between him and his trial lawyer. See id. at 24:12-19. As it relates to Rivera's present claim, she testified that she never heard his trial attorney inform Rivera that there was a plea bargain, or proposed plea bargain, being offered by the State. Id. 24:20-25:2.

         Rivera also testified before the Court on April 27, 2016. He testified that his trial counsel failed to discuss all the options that he had available to him and merely told him that his case was a winnable one. In pertinent part, Rivera stated that he was never advised of any offer from the State by his trial attorney. On cross-examination by the State, he further noted that he did not know what type of offer he would have expected to receive and that he would not have been willing to admit to any of the charges against him.

         Following the hearing, on July 7, 2016 and July 17, 2016, the State and Petitioner respectively submitted memoranda on the issues presented. The Court then took the matter under advisement. For the reasons that are set forth herein, the Court finds that Petitioner has failed to establish by a preponderance of the evidence the he is entitled to post-conviction relief and, therefore, his Petition is denied.

         II ...

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