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Duvere v. State

Supreme Court of Rhode Island

January 6, 2017

Jean O. Duvere
v.
State of Rhode Island.

         Kent County (KM 13-646) Superior Court Associate Justice Stephen P. Nugent

          For Applicant: Catherine Gibran Office of the Public Defender

          For State: Owen Murphy Department of Attorney General

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

          OPINION

          Gilbert V. Indeglia, Associate Justice

         The applicant, Jean O. Duvere[1] (Duvere or applicant), appeals from the denial of his postconviction-relief application. Duvere contends that this Court should vacate his 2009 plea of nolo contendere to the offense of possession of between one to five kilograms of a controlled substance classified as marijuana, with knowledge and intent, in violation of G.L. 1956 § 21-28-4.01.1, [2] because his plea was not knowing, intelligent, and voluntary as he lacked the assistance of a Haitian-Creole-speaking interpreter. This matter came before the Supreme Court for oral argument on November 3, 2016, 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 carefully considering the parties' written and oral submissions, we are satisfied that this appeal may be resolved without further briefing or argument. For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.

         I

         Facts and Travel

         On June 13, 1997, Duvere, a native of Haiti and a permanent resident of the United States, was traveling on I-95 South in Rhode Island when the Rhode Island State Police stopped him for speeding. At that time, Duvere was working as a taxi driver and was returning to New York after he dropped off a passenger in Boston, Massachusetts. He consented to a search of his vehicle, and the officers found two "bricks" of marijuana in its trunk. When the officers confronted Duvere, he claimed that he had no knowledge of the marijuana's presence and informed the officers that he had just dropped off a fare in Boston. Duvere was arrested and charged with one count of possession of between one to five kilograms of marijuana, with knowledge and intent, in violation of § 21-28-4.01.1.

         Private counsel represented Duvere with respect to this charge. In August 1997, at his bail hearing at the Kent County District Court, bail was set at $25, 000 with surety. Duvere posted bail and was subsequently released. In October 1997, Duvere was arraigned on a criminal information in the Kent County Superior Court. At the arraignment, the hearing justice kept bail in the original amount but allowed Duvere to maintain his residence in New York. After his arraignment, however, Duvere failed to attend his subsequent court hearings; and, on February 3, 1998, the Superior Court issued a warrant for his failure to appear.

         In 2009, upon his return to the United States after a trip to Haiti, Duvere was arrested in New York on the warrant. Duvere was brought to Rhode Island and presented to the Superior Court on June 4, 2009. His bail was reset at $250, 000 with surety. At this time, Duvere was represented by his original counsel.

         On July 15, 2009, Duvere pled nolo contendere to one count of possession of between one to five kilograms of marijuana, with knowledge and intent, in violation of § 21-28-4.01.1, and he was sentenced to ten years, with eighteen months to serve, and eight-and-a-half years suspended with probation. A Haitian-Creole interpreter was not present at the plea colloquy, and neither Duvere nor his counsel requested an interpreter's assistance. When asked by the hearing justice, Duvere stated that he could understand and speak English. Duvere's counsel, prior to the plea colloquy, did note Duvere's inability to read English; counsel stated, however, that he verbally explained the plea form to Duvere. Upon request, Duvere provided his name, date of birth, and address. Duvere also stated that he understood that, by pleading nolo contendere, he forfeited several constitutional rights. Duvere accepted the state's articulation of facts supporting the charge. At the conclusion of the colloquy, the hearing justice found that "defendant ha[d] the capacity to understand the nature and consequences of his plea" and that there was a factual basis for his nolo contendere plea. The hearing justice found that Duvere pleaded "voluntarily, intelligently, [and] with knowledge and understanding of all matters contained in the request to enter a plea * * * ." Consequently, he accepted Duvere's plea and imposed the agreed-upon sentence.

         After his plea, Duvere appeared multiple times without counsel before the same hearing justice, seeking to correct his sentence, to clarify his sentence, and to receive credit for time served.[3] The hearing justice granted all three motions. At no point during these hearings did Duvere state that he could not understand the court nor did he request an interpreter.

         On June 11, 2013, with the assistance of new counsel, Duvere filed an application for postconviction relief, seeking to vacate his 2009 nolo contendere plea. The application was based, in part, on Duvere's contention that he neither knew nor understood the charges against him because a Haitian-Creole interpreter was not provided at his plea colloquy. The application also set forth several allegations of ineffective assistance of counsel.[4] In September 2014, the same hearing justice ...


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