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Greene v. State

Superior Court of Rhode Island

November 7, 2018


          For Plaintiff: Rebecca Loren Aitchison, Esq.

          For Defendant: Owen Murphy, Esq.


          CARNES, J.

         Before this Court is John J. Greene's (Petitioner) application for postconviction relief (Application). Petitioner asserts two theories in support of his Application: (1) that his attorney rendered constitutionally ineffective assistance of counsel and (2) that his nolo contendere plea was in violation of his constitutional rights and Super. R. Crim. P. 11 (Rule 11). This matter is before this Court pursuant to G.L. 1956 § 10-9.1-1.


         Facts and Travel

         Petitioner was charged with and ultimately pled nolo contendere to a single count of possession of child pornography.[1] Many facts are not in dispute. In addition to the filings and arguments of counsel, this Court gleans facts from the transcripts of the jury trial[2] (occurring on April 24, 25 and 26, 2017); the Petitioner's plea of nolo contendere[3] (occurring on April 26, 2017); and the postconviction evidentiary hearing[4] (occurring May 31 and June 1, 2018). Certain facts are further developed herein.

         Petitioner was employed as a paralegal at the law office of Higgins, Cavanagh & Cooney, LLP. (Trial Tr. vol. 1, 3:22-4:1; 7:2-3.) On February 21, 2014, the office administrator was approached by a female employee who reported that she saw an image of what she thought was a female in lingerie on Petitioner's computer screen. (Trial Tr. vol. 1, 5:5-7:3.) The office administrator then walked by Petitioner's office and observed an image of an elementary school female wearing "either a bikini or some type of bra and panties" on Petitioner's computer screen while Petitioner was seated at his desk. (Trial Tr. vol. 1, 16:2-23.) Following this incident, on February 25, 2014, the office administrator installed monitoring software on Petitioner's work computer. (Trial Tr. vol. 1, 19:17-21; 20:12-21:1.) On February 28, 2014, the office administrator reported the results to the police, and Petitioner was subsequently arrested and charged with one count of possession of child pornography. (Trial Tr. vol. 2, 17:13-15; 23:16-24:1; State's Ex. A, Arrest Report.) According to the Arrest Report, following his arrest but after receiving Miranda warnings, Petitioner admitted to police that he downloaded images of child pornography and child erotica to his work computer. (State's Ex. A, Arrest Report; PCR Tr. 90:5-91:2.)

         Petitioner hired private counsel to represent him on the single charge. (PCR Tr. 10:17-25.) Defense counsel is an experienced criminal attorney; however, prior to Petitioner's case, he had never tried a child pornography case. (PCR Tr. 11:24-12:3; 79:17-23.) Defense counsel obtained a copy of the criminal information package prior to trial, but did not file for discovery. (PCR Tr. 23:23-24:17.)

         However, defense counsel did attend an evidence view at the Rhode Island State Police Barracks in Scituate. (PCR Tr. 42:7-9.) At the evidence view, the State of Rhode Island (State) informed defense counsel that it recovered seven or 8000 images from Petitioner's work computer that it intended to use at trial. (PCR Tr. 50:5-10; 51:1-2; 92:1-2.) However, of the thousands of images, the State contended that only 11 of the images depicted child pornography. (PCR Tr. 50:5-51:18.) Defense counsel did not file any motions in limine to exclude any of the images. (PCR Tr. 51:21-52:1.) Defense counsel did not think the images of child erotica were harmful to Petitioner because he planned to argue that Petitioner downloaded the small number of allegedly pornographic images by accident and, therefore, Petitioner lacked the required intent. (PCR Tr. 51:7-12; 91:13-21; 92:7-16.) Additionally, defense counsel stated that he preferred to raise his objections at trial. (PCR Tr. 52:19-25.)

         Prior to trial, Petitioner asked his attorney to investigate certain aspects of the monitoring software and the ability of others to access his computer. (PCR Tr. 44:7-45:13.) Petitioner also requested his attorney issue a subpoena for an office-wide email that issued new passwords for work computers. (PCR Tr. 30:9-31:6.) Defense counsel remembers receiving these requests, but admitted that he never pursued either. (PCR Tr. 31:18-32:4; 44:7-45:13.)

         On April 24, 2017, Petitioner's jury trial began. Before the State presented the screenshots to the jury and out of the presence of the jury, defense counsel requested the Court give a limiting instruction to the jury explaining the difference between child erotica, which is legal to possess, and child pornography, which is not.[5] (Trial Tr. vol. 2, 29:19-30:16.) Next, the State introduced approximately 1400 of the 8000 screenshots downloaded from Petitioner's work computer to the jury. (Trial Tr. vol. 2, 31:1-3.) The images depicted Petitioner's activities throughout the work day including: logging into his computer, using his work email and other work-related programs, and downloading and viewing child pornography and erotica. (Trial Tr. vol. 2, 45:19-128:20.)

         On the morning of April 26, 2017, after two days of trial, Petitioner decided to change his plea of not guilty to nolo contendere. (PCR Tr. 61:10-18.) After reaching an agreement with the State, defense counsel explained to Petitioner the rights he would be giving up. (PCR Tr. 97:3-16.) Defense counsel also discussed the contents of the plea form with Petitioner, including the special conditions that would be imposed, such as the statutory requirement to register as a sex offender. (PCR Tr. 100:14-102:1.) Although Petitioner appeared anxious throughout the plea discussions, Petitioner was able to express to his attorney that he understood his rights. (PCR Tr. 97:10-16.)

         At the plea proceedings, Petitioner, who was under oath, stated that he understood that if the Court accepted his plea, he could not withdraw the plea without the Court's permission. (Plea Tr. 3:3-6; 4:10-15.) The trial justice then asked Petitioner if he had reviewed the contents of the plea form carefully and discussed it with his attorney, to which Petitioner responded, "I did." (Plea Tr. 5:1-13.) The trial justice also ensured defense counsel explained the elements of the charge of possession of child pornography to Petitioner and that Petitioner did not have any questions. (Plea Tr. 5:14-20.) Next, the trial justice asked Petitioner if he had discussed the Special Conditions included in the plea form with his attorney. (Plea Tr. 5:21-6:9.) Petitioner confirmed that he had, and that he understood the consequences of violating such conditions. (Plea Tr. 6:10-25.)

         The trial justice also asked Petitioner if he was satisfied with his attorney's representation of him, to which Petitioner responded, "I am." The trial justice then informed Petitioner that he was giving up his right to complete the trial and "to make the State prove all the elements of th[e] charge by proof beyond a reasonable doubt." In response, Petitioner stated, "I understand." (Plea Tr. 7:24-8:12.) Next, the trial justice asked Petitioner if he was "entering this plea both freely and voluntarily," to which, Petitioner responded, "I am." (Plea Tr. 12:5-7.) After the State placed their statement of the facts on the record, Petitioner conferred with his attorney for a moment. (Plea Tr. 13:19-25.) Petitioner then stated that he accepted those facts as true. (Plea Tr. 13:12-14:8.) The trial justice found Petitioner's plea to be knowing and voluntary and accordingly, "expressly accept[ed]" it. (Plea Tr. 14:9-17.)

         Petitioner then asked the Court for less time to serve. (Plea Tr. 14:20-23.) In response, the Court offered to vacate the plea and continue with trial. (Plea Tr. 15:3-4.) Petitioner then inquired regarding what the sentence would be if he were found guilty at trial. (Plea Tr. 15:12-13.) The Court informed Petitioner that it could be around 18 months. (Plea Tr. 16:8-14.) After consulting with his attorney again, Petitioner decided to maintain his plea. (Plea Tr. 17:2.) In accordance with the plea agreement, the trial justice sentenced Petitioner to five years at the Adult Correctional Institutions (ACI) with 60 days to serve and four years and ten months of probation with special conditions.[6] (Plea Tr. 18:17-25.)

         On January 3, 2018, Petitioner filed a pro se application for postconviction relief requesting this Court to vacate his plea of nolo contendere because he was denied effective assistance of counsel and his plea was not knowing and voluntary as required by Rule 11. (Application.) This Court appointed counsel for Petitioner, who then filed a verified application for postconviction relief (Verified Application, Apr. 23, 2018) asserting the same allegations as Petitioner's Application. (Verified Application.) The State timely objected to both Applications.

         On May 31, 2018 and June 1, 2018, this Court conducted an evidentiary hearing on Petitioner's Application. At the hearing, defense counsel, the only witness, testified that during his representation of Petitioner, he was experiencing physical and mental health issues that affected his memory. (PCR Tr. 77:10-79:4.) Defense counsel also stated that, "[i]n retrospect, [he] should have filed for discovery, given the nature of this case, and the fact that [he] had not tried another possession of child porn case . . . ." (PCR Tr. 93:21-23.) However, defense counsel also stated that not filing for discovery is sometimes a strategic decision. (PCR Tr. 93:23-25.) Additionally, defense counsel stated that, although he believed that his ...

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