County PM 07-984 Superior Court Robert D. Krause Associate
Applicant: Camille A. McKenna Office of the Public Defender
State: Lauren S. Zurier Department of Attorney General
Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia,
William P. Robinson III Associate Justice.
applicant, Keith Burke, appeals from the denial of his
application for postconviction relief at the conclusion of a
March 5, 2015 hearing in Providence County Superior Court. He
contends on appeal that the hearing justice erred in denying
his application for postconviction relief because "on
October 12, 1994, [he] negotiated, bargained for, and reached
an unambiguous agreement with the state, in which it would
dismiss the murder case [pending against him] in exchange for
his guilty plea in two other felony cases and the state
breached [that] agreement."
22, 1992, Mr. Burke was indicted for murder. On November 23,
1993, he was charged by criminal information with breaking
and entering (P2/93-3719A); and, on December 22, 1993, he was
also charged by criminal information with larceny
(P2/93-3967A). On October 12, 1994, while represented by
counsel, Mr. Burke pled guilty to the charges of breaking and
entering and of larceny; and he was sentenced to a ten-year
suspended sentence and ten years probation on each charge, to
be served concurrently. The murder charge was dismissed
pursuant to Rule 48(a) of the Superior Court Rules of
Criminal Procedure. Mr. Burke contends that his guilty pleas
in the breaking and entering and larceny cases were in
exchange for what he characterizes as the dismissal with
prejudice of the pending murder charge.
on September 3, 2004, Mr. Burke was indicted, in P1/04-2715A,
for the same murder that had formed the basis of the
indictment that had been dismissed in 1994. On June 22, 2005,
Mr. Burke, through counsel, moved to dismiss the 2004 murder
indictment, making the same argument that he makes before
this Court-that the murder charge was dismissed with
prejudice in 1994 in exchange for his guilty pleas on the
other two charges. The state denied Mr. Burke's
contention that the dismissal of the 1992 indictment was a
dismissal with prejudice. The Superior Court justice
presiding over the motion to dismiss held a full-blown
hearing, at which hearing testimony from the prosecutor who
handled the 1994 pleas and his supervisor was elicited.
Thereafter, the Superior Court justice, in a written
decision, made findings of fact and denied Mr. Burke's
motion to dismiss; the Superior Court justice found that the
1994 dismissal of the murder charge was without prejudice.
Mr. Burke took no further action with respect to that
February 23, 2007, while the 2004 murder indictment was still
pending, Mr. Burke filed the instant application for
postconviction relief, seeking leave to withdraw his guilty
pleas to the breaking and entering and larceny charges. He
argued that the state "violated a contractual
relationship" when it re-indicted him for the murder in
2004 after he "reli[ed]" on the state's
intention to dismiss the 1992 murder indictment when he pled
guilty to breaking and entering and larceny; he added that,
at the time he pled guilty to breaking and entering and
larceny, he thereby waived his constitutional rights,
"including the right to proceed to trial." On
October 1, 2008, while the instant application for
postconviction relief remained pending, Mr. Burke pled guilty
to second-degree murder in P1/04-2715A-the 2004 murder case.
As part of his plea agreement, Mr. Burke agreed to withdraw
"all pending matters before the Superior and Supreme
Courts." Significantly, the docket reflects the fact
that Mr. Burke then filed a motion to dismiss the instant
application. The docket does not reflect that an order
granting the dismissal was entered.
was no further action in this case for an extended period;
then, on April 17, 2014, Mr. Burke filed a bevy of motions.
Those motions included: (1) a motion to withdraw the
just-mentioned motion to dismiss; (2) a motion requesting an
evidentiary hearing; and (3) a motion for "enforcement
and specific performance of plea agreement and request for
dismissal" of the 2004 murder indictment. A hearing was
held on March 5, 2015 before another justice of the Superior
Court, at the conclusion of which the hearing justice denied
Mr. Burke's application for postconviction relief; the
hearing justice based his decision on the fact that Mr. Burke
had agreed, as part of his guilty plea to second-degree
murder, to withdraw all pending applications for
postconviction relief, including the instant application. Mr.
Burke thereafter appealed to this Court.