County Superior Court
Plaintiff: Stefanie DiMaio-Larivee, Esq.
Defendant: Jeanine McConaghy, Esq.
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.
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
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.
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.
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.
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.
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.
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.
* * *
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 ...