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Andrade v. State, PM

Superior Court of Rhode Island

September 27, 2016

NAPOLEON ANDRADE
v.
STATE OF RHODE ISLAND

         Providence County Superior Court

          For Plaintiff: Stefanie DiMaio-Larivee, Esq.

          For Defendant: Jeanine McConaghy, Esq.

          DECISION

          KRAUSE, J.

         In this postconviction relief (PCR) application, Napoleon Andrade claims that Assistant Public Defender Richard A. Brousseau mistakenly advised him to plead nolo contendere to a felony firearm offense, along with a misdemeanor driving infraction, in 2003, instead of pursuing what Andrade now proclaims was a meritorious motion to suppress evidence. He says that had he known that such a suppression motion could have been advanced, he never would have offered the nolo plea and would have insisted on a trial. He claims that because of trial counsel's substandard advice he was deprived of his Sixth Amendment constitutional right to effective assistance of counsel. The Court disagrees.

         The record which the Court is obliged to review is thin. No hearing on Andrade's PCR application was held because he is presently imprisoned in a federal penitentiary in Otisville, New York, serving a lengthy sentence on a subsequent offense, and returning to Rhode Island for a PCR hearing was not feasible. Instead, he agreed to offer a sworn telephonic deposition in support of his PCR application. That deposition, which was not audio or video taped, was conducted on November 2, 2015 by counsel without this Court's presence.

         The record before the Court consists of the parties' memoranda, a transcript of petitioner's deposition, the February 23, 2015 affidavit of Pawtucket Police Detective David Silva, and the September 24 and 29, 2003 transcripts of Andrade's nolo contendere plea and sentencing before the late Associate Justice William A. DiMitri, Jr. (This Court did not receive those transcripts until August 17, 2016.) No testimony or affidavit from Attorney Brousseau was presented because he has unfortunately lost his cognitive abilities after suffering a debilitating stroke in August of 2013. The parties have agreed to submit this matter to the Court for a decision without convening further proceedings.

         Andrade was charged with three counts on February 14, 2013: (1) carrying a pistol in a motor vehicle without a duly issued license or permit, (2) possessing a loaded handgun in a motor vehicle, and (3) driving a vehicle when his operator's license had expired. The first two offenses are felonies and carry maximum jail terms of ten and five years, respectively. The driving infraction is a misdemeanor with a maximum sentence of one year.

         On September 24, 2003, Andrade pled nolo contendere to counts 1 and 3. The state dismissed count 2, and Andrade agreed to serve six months of a five-year sentence on the felony firearm charge in count 1, with the remaining four and one-half years suspended with probation, along with six concurrent months on the misdemeanor charge.

         During the plea colloquy, the state's attorney recounted, inter alia, that Andrade's fingerprints had been identified on the firearm. Tr. at 4, Sept. 24, 2003. Andrade readily conceded that damning fact and acknowledged the prosecutor's additional rendition of other incriminating evidence supporting the charges. Id. at 5. Execution of sentence was postponed for a short time, and on September 29, 2003 he surrendered himself, waived his right of allocution, and commenced serving his sentences. Tr. at 1, Sept. 29, 2003.

          The suppression motion which Andrade laments trial counsel did not pursue is based upon his belief that on February 14, 2003, the Pawtucket Police impermissibly arrested him in Providence while he was driving a Crown Victoria (with no other occupants) on North Main St. in Providence, just as he crossed over the jurisdictional line separating Providence from Pawtucket. In his affidavit, Det. Silva (then a patrolman, along with his partner Ptm. Duhamel) avows that they observed Andrade commit a driving infraction (ignoring a stop sign) in Pawtucket, just short of the Providence line.

         Det. Silva activated the cruiser's lights and signaled Andrade to stop. Andrade subsequently halted the Crown Victoria after entering Providence. He could not produce proof of insurance, and the vehicle was unregistered. A radio check confirmed Silva's suspicion that Andrade's license had expired. He was arrested, and because no one was present to take lawful custody of the Crown Victoria, it was removed to the Pawtucket Police station. There, according to Det. Silva, Officer Stephen Ricco performed a routine inventory search of the car. A loaded 9 mm. semiautomatic with a chambered round was found secreted within the front passenger's armrest.

         * * *

         The benchmark for a claim of ineffective assistance of counsel is Strickland v. Washington, 466 U.S. 668 (1984), which has been adopted by our Supreme Court. Brown v. Moran, 534 A.2d 180, 182 (R.I. 1987); LaChappelle v. State, 686 A.2d 924, 926 (R.I. 1996). Whether an attorney has failed to provide effective assistance is a factual question which petitioner bears the "heavy burden" of proving. Rice v. State, 38 A.3d 9, 17 (R.I. 2012); Pad ...


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