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Raso v. State

Superior Court of Rhode Island, Providence

May 22, 2018

ROBERT RASO
v.
STATE OF RHODE ISLAND

          For Plaintiff: Melissa Larsen, Esq.

          For Defendant: Jeanine P. McConaghy, Esq.

          DECISION

          McGUIRL, J.

         Before this Court is Petitioner Robert Raso's (hereinafter, Petitioner) application for postconviction relief (hereinafter, Application). Petitioner asserts two theories in support of his Application: (1) that his counsel, during his probation violation hearing, rendered ineffective assistance of counsel and (2) that his appellate counsel rendered ineffective assistance of counsel.[1] This matter is before this Court pursuant to G.L. 1956 § 10-9.1-1.

         I. Facts and Travel

         In March of 2011, the State of Rhode Island (hereinafter, State) alleged that Petitioner violated his probation by sexually assaulting his then fourteen-year-old step-daughter. Pursuant to Super. R. Crim. P. 32(f), this Court (Savage, J.) held a probation violation hearing. On March 29, 2011, at the conclusion of the hearing, the Court found that Petitioner had violated the terms of his probation and sentenced him to twenty-five years to serve.[2]

         Petitioner appealed, but our Supreme Court denied the appeal on December 3, 2013. On December 17, 2014, Petitioner filed an application for postconviction relief. Petitioner then obtained counsel, who, on behalf of Petitioner, filed an amended application.[3] This Court held a hearing on the Application on May 19, 2016.

         II. Standard of Review

         "[T]he 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)). The action is civil in nature, with all rules and statutes applicable in civil proceedings governing. See § 10-9.1.-7; see also Ouimette v. Moran, 541 A.2d 855, 856 (R.I. 1988) ("In this jurisdiction an application for postconviction relief is civil in nature."). The applicant for postconviction 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) (alteration in original)).

         III. Analysis

         As mentioned above, Petitioner filed his Application asserting two theories: (1) ineffective assistance of counsel during the probation violation hearing and (2) ineffective assistance of counsel during his appeal.

         A. Ineffective Assistance of Counsel During Probation Violation Hearing

         Petitioner contends that he was deprived of his right to effective assistance of counsel during the probation violation hearing because his counsel "neglected to properly examine a key piece of evidence, the diary of the complaining witness . . . ." (Pet'r's Mem. Supp. of Am. Appl. at 4.) In addition, Petitioner claims that his counsel was ineffective because counsel received "Facebook posts made by the complaining witness that were potentially exculpatory and . . . chose not to introduce those posts at the hearing." Id. at 5.

         The benchmark decision when faced with a claim of ineffective assistance of counsel is the United States Supreme Court case Strickland v. Washington, 466 U.S. 668 (1984), which has been adopted by our Supreme Court. See LaChappelle v. State, 686 A.2d 924, 926 (R.I. 1996) ("This Court has adopted the standard announced by the United States Supreme Court in Strickland v. Washington, when generally reviewing claims of ineffective assistance of counsel."); Brown v. Moran, 534 A.2d 180, 182 (R.I. 1987) ("The appropriate standard for reviewing a claim of ineffective assistance of counsel is set forth in Strickland v. Washington . . . ."). The Strickland test is two-tiered and "provides certain criteria that a [petitioner] must establish in order to show ineffective assistance of counsel." Brennan v. Vose, 764 A.2d 168, 171 (R.I. 2001). Pursuant to the first prong of the Strickland test, a petitioner must "demonstrate that counsel's performance was deficient, to the point that the errors were so serious that trial counsel did not function at the level guaranteed by the Sixth Amendment." Id. (citing Strickland, 466 U.S. at 687). According to our Supreme Court, "[a] trial attorney's representation of his or her client will be deemed to have been ineffective under that criterion only when the court determines that it fell 'below an objective standard of reasonableness.'" Guerrero v. State, 47 A.3d 289, 300 (R.I. 2012) (quoting Brennan, 764 A.2d at 171).

         "If (but only if) it is determined that there was deficient performance, the court proceeds to the second prong of the Strickland test . . . ." Guerrero, 47 A.3d at 300-01. Pursuant to the second prong, a petitioner "must show that such deficient performance was so prejudicial to the defense and the errors were so serious as to amount to a deprivation of the applicant's right to a fair trial." Brennan, 764 A.2d at 171. In other words, "[t]he [petitioner] must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694.

         1. Failure to Read Diary

         Petitioner contends that he was deprived of effective assistance of counsel during the probation violation hearing because his counsel did not "properly examine a key piece of evidence, the diary of the complaining witness . . . ." (Pet'r's Mem. Supp. Am. Appl. at 4.) This Court is not persuaded that Petitioner was deprived of his right to effective assistance of counsel because his counsel did not read the entirety of the diary.

         At the probation violation hearing, Petitioner's counsel informed the hearing justice that he had possession of the diary and another journal. After the hearing justice asked if he had the journal in question in his possession, Petitioner's counsel answered:

"I do, your Honor. Well, I don't know which is the journal, which is the notebook, your Honor. I have not looked at either one of these but I am giving them to the Burrillville Police at this time. So there are two books; one is a looseleaf notebook and the other looks like a binded [sic] hard cover smaller book. I'm giving them both to the Burrillville detective at this time." Prob. Viol. Hr'g Tr. at 113, Mar. 25, 2011.

         The hearing justice then held a sidebar, at which point the following colloquy took place:

"THE COURT: This witness just indicated that she had given a journal to you, [Petitioner's counsel]. You now have given two notebooks two [sic] the detective, correct?
"[PETITIONER'S COUNSEL]: Yes.
"THE COURT: And you indicated that you have not reviewed those materials?
"[PETITIONER'S COUNSEL]: That's correct.
"THE COURT: And whether that is in your client's interest or not, you don't want to look at them?
"[PETITIONER'S COUNSEL]: Judge, after discussing with [the complaining witness's mother] what she indicated was in the journal I indicated to her it was not relevant to my investigation and I felt uncomfortable reading about details in a little girl's life that were not involving allegations in this case.
"THE COURT: Okay, and you don't know if, in fact, that these journals contain matters relevant to this case and notwithstanding that, ...

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