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Sylvia v. State

Superior Court of Rhode Island

July 17, 2018

STEPHEN A. SYLVIA
v.
STATE OF RHODE ISLAND

          Kent County Superior Court

          For Plaintiff: R. Francis DiPrete, Esq.

          For Defendant: Jeanine P. McConaghy, Esq.

          DECISION

          PROCACCINI MAGISTRATE J.

         Before this Court is Petitioner Stephen A. Sylvia's (hereinafter Petitioner) application for postconviction relief (hereinafter Application). In support of his Application, Petitioner asserts that his counsel rendered constitutionally ineffective assistance of counsel. This matter is before this Court pursuant to G.L. 1956 § 10-9.1-1.

         I Facts and Travel

         On December 2, 2003, Petitioner entered a plea of nolo contendere for violation of G.L. 1956 § 21-28-4.01(a)(2). As a result of this plea, Petitioner received a five-year deferred sentence.[1] In July of 2005, the Bristol Police Department initiated a traffic stop of Petitioner's vehicle.[2] During the traffic stop, members of the Bristol Police Department confiscated a substance that was later determined to be cocaine. Consequently, the State of Rhode Island (hereinafter State) charged Petitioner with: 1) possession of cocaine in excess of one ounce and 2) conspiracy. In addition to charging Petitioner with these new charges, the State also presented Petitioner as a violator of the 2003 deferred sentence.[3] Petitioner searched for an attorney to handle the 2005 charges and the violation matter, and eventually rehired Mr. Cicilline. On November 9, 2005, Petitioner entered a plea of nolo contendere to the 2005 charges. Pursuant to the plea agreement, this Court imposed a ten-year sentence with two years to serve and eight years suspended, with an additional eight years of probation for the possession of cocaine in excess of one ounce and conspiracy, and a five-year suspended sentence with five years of probation for the violation of the 2003 deferred sentence.[4]

         On November 15, 2017-twelve years and six days after entering the nolo contendere plea-Petitioner filed his Application, pro se. Five days later, on November 20, 2017, Petitioner met with Kevin Hagan, Esq. (hereinafter Mr. Hagan), who was the prosecutor for the 2005 charges. Petitioner secretly recorded the conversation, which revolved around Petitioner's Application, between himself and Mr. Hagan on his cell phone. Petitioner then met with Mr. Cicilline on December 14, 2017, and secretly[5] recorded this conversation on his cell phone as well.

         On June 5, 2018, this Court commenced a hearing on Petitioner's Application. Petitioner began the hearing as a pro se litigant.[6] During the first day of testimony, Petitioner questioned Mr. Cicilline and Mr. Hagan. Before resuming the hearing on June 6, 2018, Petitioner requested that R. Francis DiPrete, Esq. (hereinafter Mr. DiPrete), who was present as an interested observer during the prior day's testimony, enter on his behalf. The State did not object to Mr. DiPrete's entry on the condition that Petitioner would not be allowed to recall Mr. Cicilline and Mr. Hagan in order to have, for lack of a better term, a "second bite at the apple." This Court then granted a week continuance in order for Mr. DiPrete to acclimate himself with the case. The hearing continued and concluded on June 13, 2018.

         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 asserts that Mr. Cicilline rendered ineffective assistance of counsel in 2005. Specifically, Petitioner asserts that Mr. Cicilline acted under a conflict of interest during the 2005 representation-which ended in a plea of nolo contendere-and never received Petitioner's informed consent to continue representation in spite of the conflict. Our Supreme Court, however, has limited this Court's review of an application for postconviction relief when the applicant pled guilty or nolo contendere.

         According to our Supreme Court, "a plea of nolo contendere is treated as a guilty plea" and the decision to enter into such a plea "is not one to be taken lightly." Cote v. State, 994 A.2d 59, 63 (R.I. 2010). Consequently, "in the case of someone who has entered a plea of nolo contendere, [t]he sole focus of an application for post-conviction relief . . . is the nature of counsel's advice concerning the plea and the voluntariness of the plea." Guerrero v. State, 47 A.3d 289, 300 (R.I. 2012) (internal quotation marks omitted) (alterations in original). "If the plea is validly entered, [this Court will] not consider any alleged prior constitutional infirmity." State v. Dufresne, 436 A.2d 720, 722 (R.I. 1981). Therefore, Petitioner's argument regarding Mr. Cicilline's alleged conflict of interest does not fall within this limited scope of review and will not be addressed.

         A Counsel's Advice Concerning Nolo Contendere Plea

         With regards to the advice of an applicant's attorney, the applicant must "demonstrate that . . . [it] 'was not within the range of competence demanded of attorneys in criminal cases.'" Gonder v. State, 935 A.2d 82, 87 (R.I. 2007) (quoting Dufresne, 436 A.2d at 723). If the applicant can show this, the applicant must then show that the incompetent advice prejudiced he or she, which means that there is "a reasonable probability that, but for counsel's [incompetent advice], the result of the proceeding would have been different," Brown v. State, 964 A.2d 516, 529 (R.I. 2009). In the context of a plea this means that the applicant "'would not have pleaded [nolo contendere] and would have insisted on going to trial' and, importantly, that the outcome of the trial would have been different." Neufville v. State, 13 A.3d 607, 611 (R.I. 2011) (quoting State v. Figueroa, 639 A.2d 495, 500 (R.I. 1994)). According to our Supreme Court, "when counsel has secured a shorter sentence than what the [applicant] could have received had he gone to trial, the [applicant] has an almost insurmountable burden to establish prejudice." Id. at 614 (citing Rodrigues v. State, 985 A.2d 311, 317 (R.I. 2009)).

         Here, Mr. Cicilline testified on cross-examination about discussions with Petitioner regarding the nolo contendere plea. A pertinent portion of the cross-examination follows:

"[PROSECUTOR]: In this particular case, this Mr. Sylvia was arrested in August and the violation hearing was scheduled on November 9th. Between that time period, which was just over two months, you had several conferences about the nature of these allegations; is that fair to say?
"[MR. CICILLINE]: Yes.
"[PROSECUTOR]: And, having had those conferences, those conferences would have involved a judge and the prosecutor?
"[MR. CICILLINE]: Yes.
"[PROSECUTOR]: And you would have discussions about the general nature of the case ...

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