JOHN J. GREENE
STATE OF RHODE ISLAND
Plaintiff: Rebecca Loren Aitchison, Esq.
Defendant: Owen Murphy, Esq.
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.
was charged with and ultimately pled nolo contendere
to a single count of possession of child
pornography. 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 (occurring on
April 24, 25 and 26, 2017); the Petitioner's plea of
nolo contendere (occurring on April 26,
2017); and the postconviction evidentiary
hearing (occurring May 31 and June 1, 2018).
Certain facts are further developed herein.
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.)
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.)
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.
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.)
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. (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,
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.)
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.
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.
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. (Plea Tr. 18:17-25.)
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.
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 ...