STEPHEN A. SYLVIA
STATE OF RHODE ISLAND
County Superior Court
Plaintiff: R. Francis DiPrete, Esq.
Defendant: Jeanine P. McConaghy, Esq.
PROCACCINI MAGISTRATE J.
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.
Facts and Travel
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. In July of 2005,
the Bristol Police Department initiated a traffic stop of
Petitioner's vehicle. 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. 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
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 recorded this
conversation on his cell phone as well.
5, 2018, this Court commenced a hearing on Petitioner's
Application. Petitioner began the hearing as a pro
se litigant. 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.
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)). 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)).
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.
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.
Counsel's Advice Concerning Nolo Contendere
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)).
Mr. Cicilline testified on cross-examination about
discussions with Petitioner regarding the nolo
contendere plea. A pertinent portion of the
"[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 ...