Plaintiff: Kevin F. Dwyer, Esq.
Defendant: Roger R. Demers, Esq.
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.
Facts & Travel
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.
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").
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) .
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).
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. 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
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.
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.
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.