County Superior Court
Plaintiff: Gerald Lynch, pro se Glenn Sparr, Esq.
Defendant: Jeanine McConaghy, Esq.
this Court is Gerald Lynch's (Lynch) application for
postconviction relief (Application) challenging his jury
conviction of four counts of first-degree sexual assault and
a sentence of twenty years, with ten years to serve on each
count, and ten years suspended with probation. Lynch now
requests this Court grant his Application and enter an order
overturning his conviction. This matter is before this Court
pursuant to G.L. 1956 § 10-9.1-1.
Court gleans facts from the Rhode Island Supreme Court case
State v. Lynch, 19 A.3d 51 (R.I. 2011), and the
facts are further developed herein. The events that gave rise
to Lynch's convictions transpired in the 1980s, over
twenty years before the complainant, M.G.,  filed a report
with the Pawtucket Police Department. In 2004, a grand jury
returned an indictment charging Lynch with nine counts of
first-degree sexual assault in violation of G.L. 1956 §
11-37-2. The case was tried before a jury in October 2006. Of
the nine incidents giving rise to the matter, eight consisted
of Lynch performing oral sex on M.G., and the remaining count
encompassed a single instance of Lynch forcing M.G. to
perform oral sex on him. At trial, M.G. testified about the
incidents. With respect to two of the incidents that occurred
when M.G. was a high school freshman, M.G. could not recall
if or how much force Lynch used. At the close of evidence,
the state dismissed those two counts. Subsequently, a jury
convicted Lynch on four counts and found Lynch not guilty of
three other counts of first-degree sexual
assault.This Court denied Lynch's motion for
judgment of acquittal and his motion for a new trial and
sentenced Lynch to the Adult Correctional Institution (ACI).
Thereafter, Lynch appealed his conviction to the Rhode Island
Supreme Court, and the Supreme Court affirmed this
August 2015, Lynch filed an Application alleging fourteen
different grounds and also filed for appointment of
counsel. This Court appointed counsel to represent
Lynch. Thereafter, on June 10, 2016, Lynch, with the
assistance of new counsel, filed a verified application for
postconviction relief. In March 2017, counsel filed a motion
to withdraw and a corresponding no-merit memorandum, also
known as a "Shatney Memorandum." In his Shatney
Memoranda, counsel addressed each of the fourteen claims
Lynch included in his verified application, as well as an
additional five issues Lynch asked him to research. Lynch
contended his attorneys were ineffective and that he was
entitled to postconviction relief for the following reasons:
(1) ineffective assistance in making unreasonable strategic
trial decisions which deprived Lynch of his right to a fair
trial; (2) ineffective assistance in not properly objecting;
(3) ineffective assistance in failing to adequately and
sufficiently cross-examine witnesses; (4) ineffective
assistance in failing to call character witnesses during the
defense's case; (5) ineffective assistance in failing to
call proper witnesses in support of defense; (6) ineffective
assistance in not allowing Lynch to testify in his own
defense; (7) ineffective assistance in failing to communicate
and adequately discuss defense strategies with him; (8)
ineffective assistance in failing to properly preserve trial
errors so they could be raised at the appellate level and on
his postconviction appeal; (9) failure of the authorities to
take a statement from necessary witnesses; (10) ineffective
assistance in not properly investigating Lynch's
background to develop defense theory; (11) ineffective
assistance in not cross-examining complaining witness about
his discharge from the United States Coast Guard; (12)
ineffective assistance in not calling witnesses that the
private investigator spoke with; (13) ineffective assistance
by misinformation from his attorneys that there was no way to
verify that M.G. applied for, or had received, funds from the
Victim's Crime Indemnity Fund; (14) Lynch was prejudiced
by mention of "repressed memory" testimony even
though no such testimony was elicited during trial; (15)
prosecutorial misconduct by the State through withholding a
statement; (16) ineffective assistance in failing to
corroborate if witness Joseph Daurado was present on a boat;
(17) ineffective assistance in failing to adequately
investigate M.G.'s military discharge status in effort to
undermine his credibility and financial motive; (18)
ineffective assistance in failing to question a witness about
police responding to his home after an arrest; and (19) the
trial justice erred in commenting at sentencing on
Lynch's involvement with the Boys and Girls Club after
having ordered the evidence not be elicited during the course
Counsel, in the first Shatney Memorandum, concluded and
thoroughly explained that each of Lynch's contentions
lacked merit, and he asked this Court to conduct a hearing to
determine whether it agreed. This Court conducted a hearing
and granted counsel's motion to withdraw. Nevertheless,
Lynch indicated he wished to continue his pursuit for
postconviction relief. Counsel agreed to remain on standby to
facilitate witness examination at future evidentiary
hearings. Moreover, at that time, Lynch raised additional
issues upon which he alleged he was entitled to
postconviction relief. Counsel submitted another Shatney
Memorandum addressing Lynch's new arguments and
ultimately concluded each contention meritless.
Leonard O'Brien (O'Brien) and Lise Gescheidt
(Gescheidt) represented Lynch throughout his jury trial.
After Lynch submitted his Application alleging ineffective
assistance of counsel, this Court held two separate
evidentiary hearings where Lynch had the opportunity to
represent himself and question his former attorneys regarding
their performance throughout his trial. The relevant facts
and exchanges from those hearings are further developed and
Standard of Review
remedy of postconviction relief is available to any person
who has been convicted of a crime and who thereafter alleges
either that the conviction violated the applicant's
constitutional rights or that the existence of newly
discovered material facts requires vacation of the conviction
in the interest of justice." DeCiantis v.
State, 24 A.3d 557, 569 (R.I. 2011) (citing Page v.
State, 995 A.2d 934, 942 (R.I. 2010)) (further citation
omitted); see also § 10-9.1-1. "An
applicant for such relief bears '[t]he burden of proving,
by a preponderance of the evidence, that such relief is
warranted' in his or her case." Brown v.
State, 32 A.3d 901, 907 (R.I. 2011) (quoting State
v. Laurence, 18 A.3d 512, 521 (R.I. 2011)).
Postconviction relief motions are civil in nature and thus
governed by all the applicable rules and statutes governing
civil cases. Ferrell v. Wall, 889 A.2d 177, 184
discussed above, Lynch filed an Application on several
grounds and now asserts he was denied effective assistance of
counsel guaranteed by the Sixth Amendment. For the reasons
stated herein, this Court rejects Lynch's Application and
upholds his conviction.
Ineffective Assistance of Counsel
United States Supreme Court case Strickland v.
Washington, 466 U.S. 668 (1984), which our Supreme Court
has adopted, is the benchmark decision when faced with a
claim of ineffective assistance of counsel. Brown v.
Moran, 534 A.2d 180, 182 (R.I. 1987); LaChappelle v.
State, 686 A.2d 924, 926 (R.I. 1996). A petitioner
claiming ineffective assistance of counsel must overcome a
high burden in proving his claim. See Rice v. State,
38 A.3d 9, 17 (R.I. 2012); Padilla v. Kentucky, 559
U.S. 356, 371 (2010).
1 First Prong
Strickland claim entails a two-part inquiry, and a
petitioner must satisfy both requirements to prevail. First,
a petitioner must prove that counsel's performance was
deficient in such a way that counsel's errors were so
serious that the attorney was "not functioning as the
counsel guaranteed the defendant by the Sixth
Amendment." Strickland, 466 U.S. at 687;
Neufville v. State, 13 A.3d 607, 610 (R.I. 2011).
Essentially, this prong of the Strickland analysis
evaluates whether counsel's performance "fell below
an objective standard of reasonableness." 466 U.S. at
688. However, the Sixth Amendment standard is '"very
forgiving, "' United States v. Theodore,
468 F.3d 52, 57 (1st Cir. 2006) (quoting Delgado v.
Lewis, 223 F.3d 976, 981 (9th Cir. 2000)), and there is
a strong presumption that counsel performed competently.
Gonder v. State, 935 A.2d 85, 86 (R.I. 2007).
"As the Strickland Court cautioned, a reviewing
court should strive 'to eliminate the distorting effects
of hindsight.'" Clark v. Ellerthorpe, 552
A.2d 1186, 1189 (R.I. 1989) (quoting Strickland, 466
U.S. at 689). Accordingly, an attorney's choice in trial
tactics that appear imprudent "only in hindsight, does
not constitute constitutionally-deficient representation
under the reasonably competent assistance standard."
United States v. Bosch, 584 F.2d 1113, 1121 (1st
Cir. 1978). '"[T]actical decisions by trial counsel,
even if ill-advised, do not by themselves constitute
ineffective assistance of ...