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Furlong v. State

Superior Court of Rhode Island, Kent

July 3, 2019

ROBERT FURLONG
v.
STATE OF RHODE ISLAND and the RHODE ISLAND PAROLE BOARD

          Kent County Superior Court

          For Plaintiff: Pamela E. Chin, Esq.

          For Defendant: Timothy G. Healy, Esq.

          DECISION

          TAFT-CARTER, J.

         Before this Court for decision is Robert Furlong's (Petitioner) application for postconviction relief (Application). Petitioner asserts that he is entitled to postconviction relief for the following reasons: (1) his plea of nolo contendere was not knowing and voluntary; (2) his attorney rendered constitutionally ineffective assistance of counsel; (3) the community supervision statute violates the separation of powers; (4) the community supervision statute violates due process; and (5) the community supervision statute violates the Double Jeopardy Clause. Jurisdiction is pursuant to G.L. 1956 § 10-9.1-1.

         I

         Facts and Travel[1]

         In June 2011, a 12-year-old girl disclosed that her father, the Petitioner, had sexually assaulted her on numerous occasions. Viol. Tr. 10:16-31:3. Following further police investigation, Petitioner was charged with two counts of second degree child molestation in violation of G.L. 1956 §§ 11-37-8.3 and 11-37-8.4.[2] Viol. Tr. 31:9-47:25.

         On February 11, 2014, Petitioner's case proceeded to trial before this Court. A jury was empaneled. On the morning of February 12, 2014, the State of Rhode Island (State) and Petitioner entered into plea negotiations. The Petitioner eventually agreed to enter a plea of nolo contendere to two counts of second degree child molestation. The Petitioner was sentenced to twenty years at the Adult Correctional Institutions, fifteen years to serve, the balance suspended with probation.

         The Court conducted a plea hearing during which Petitioner confirmed that he had discussed the plea form with his attorney and understood its terms. Plea Tr. 2:3-3:13. During the plea colloquy, Petitioner affirmed that he understood the charges against him and further understood that he was waiving various constitutional rights. Plea Tr. 5:8-9:19. The plea colloquy then proceeded as follows:

"THE COURT: . . .Now, sir, with respect to K2-2012-0l6lA, have any promises been made to you by your attorney, the police, counsel for the State or this Court other than the fact that if I accept your plea of nolo contendere or guilty, I have agreed to sentence you as follows: as to Counts I and II, second-degree child molestation, 20 years Adult Correctional Institution, 15 years to serve, five suspended with probation, retroactive to June 30th, 2011, sex offender registration as required by law, both counts concurrent with each other, concurrent with the sentence presently being served and concurrent with K2-2011-0853A? Specific conditions of this plea is that you shall engage in and participate in sex offender and substance abuse counseling. Sir, is that your understanding?
"THE DEFENDANT: Yes.
"THE COURT: Is that what you want to do today?
"THE DEFENDANT: Absolutely.
"THE COURT: There is also a no contact order with [the victim].
"THE DEFENDANT: Yes." Plea Tr. 16:3-24.

         The Court then accepted Petitioner's plea of nolo contendere to two counts of second degree child molestation. Plea Tr. 17:8-12. Petitioner was sentenced to serve the accepted term with both counts to be served concurrently. Plea Tr. 19:5-13. The Court also ordered Petitioner to participate in sex offender counseling and substance abuse counseling, and to have no contact with his daughter, the victim. Plea Tr. 19:14-17.

         In 2016, as Petitioner was nearing eligibility for parole, a Parole Administrator presented Petitioner with a document entitled "Notice and Terms of Community Supervision"[3] and requested the Petitioner sign it. The document provided that the Parole Board of the State of Rhode Island (Parole Board), acting in its capacity as the community supervision board, "hereby imposes upon the aforesaid offender the following the [sic] terms and conditions to commence upon his/her completion of any prison sentence, suspended sentence, and/or probationary term imposed as a result of his/her conviction." Id. Next, the document stated that for persons convicted of second degree child molestation "the term of the original sentence and the term of community supervision shall not exceed thirty (30) years." Id. The document then listed nine terms and conditions that Petitioner would be required to comply with as part of his community supervision. Id. Petitioner refused to sign the document asserting that according to the document, he would be subjected to community supervision for up to thirty years-ten years more than the original sentence imposed by this Court.

         On March 20, 2018, Petitioner filed the instant Application challenging the imposition of community supervision on five grounds. Petitioner asserts that he is entitled to postconviction relief for the following reasons: (1) he received ineffective assistance of counsel as his counsel did not inform him that he would be subject to community supervision, (2) his plea of nolo contendere was not knowing and voluntary as he was not informed that he would be subject to community supervision, (3) the imposition of community supervision violates his due process rights, (4) the imposition of community supervision under G.L. 1956 §§ 13-8-30 and 13-8-32 constitutes double jeopardy, and (5) §§ 13-8-30 and 13-8-32 violate the separation of powers doctrine. Appl. 4.

         In response, the State asserts that Petitioner was rendered effective counsel because community supervision is a collateral consequence of his plea, and thus his attorney was not required to advise him of it. State's Answer to Appl. 5. Additionally, the State maintains that even if counsel's performance was deficient, Petitioner is not entitled to relief because he cannot demonstrate prejudice. Id. at 5-6. As the State maintains that community supervision is merely a collateral consequence of his plea, the State also asserts that Petitioner's plea was knowing and voluntary. Id. at 6. Next, the State contends there is no due process violation, either substantive or procedural, because the General Assembly's actions in enacting the statute were not arbitrary or unreasonable. Id. at 7-8. The State also asserts there is no double jeopardy violation because community supervision is a collateral consequence of his plea, and thus he was not resentenced for the same conviction. Id. at 8. Finally, the State maintains that the statute does not violate the separation of powers because the General Assembly is entitled to define criminal offenses and their sentences, which includes community supervision for individuals convicted of child molestation offenses. Id. at 9.

         II

         Standard of Review

         In Rhode Island, "[p]ost-conviction relief is available to a defendant convicted of a crime

who contends that his [or her] original conviction or sentence violated rights that the state or federal constitutions secured to him [or her]." Otero v. State, 996 A.2d 667, 670 (R.I. 2010). A defendant may petition for postconviction relief by asserting:

"(1) That the conviction or the sentence was in violation of the constitution of the United States or the constitution or laws of this state;
"(2) That the court was without jurisdiction to impose sentence;
"(3) That the sentence exceeds the maximum authorized by law, or is otherwise not in accordance with the sentence authorized by law;
"(4) That there exists evidence of material facts, not previously presented and heard, that requires vacation of the conviction or sentence in the interest of justice;
"(5) That his or her sentence has expired, his or her probation, parole, or conditional release unlawfully revoked, or he or she is otherwise unlawfully held in custody or other restraint; or
"(6) That the conviction or sentence is otherwise subject to collateral attack upon any ground of alleged error heretofore available under any common law, statutory or other writ, motion, petition, proceeding, or remedy; may institute, without paying a filing fee, a proceeding under this chapter to secure relief." Sec.10-9.1-1(a)(1)-(6).

         "[A]n applicant bears the burden of proving, by a preponderance of the evidence, that he [or she] is entitled to postconviction relief." Burke v. State, 925 A.2d 890, 893 (R.I. 2007). "Generally, '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.'" State v. Gibson, 182 A.3d 540, 552 (R.I. 2018) (quoting Guerrero v. State, 47 A.3d 289, 300 (R.I. 2012)). Although a nolo contendere plea "'waives all nonjurisdictional defects, '" it does not prevent the petitioner from asserting that an applicable statute is unconstitutional. Id. at 553 (quoting Torres v. State, 19 A.3d 71, 79 (R.I. 2011)).

         III

         Analysis

         The United States Supreme Court has recognized that "[s]ex offenders are a serious threat in this Nation." McKune v. Lile, 536 U.S. 24, 32 (2002). Most concerning is the fact that "the victims of sexual assault are most often juveniles." Id. A majority of states have concluded that "the individual rights of sex offenders are secondary to the safety of society at large." Eric M. Dante, Tracking the Constitution-The Proliferation and Legality of Sex-Offender GPS-Tracking Statutes, 42 Seton Hall L. Rev. 1169, 1192 (2012). Furthermore, there is a high rate of recidivism among convicted sex offenders, and they are dangerous as a class. McKune, 536 U.S. at 33. The risk of recidivism posed by sex offenders is "frightening and high." Id. at 34. As a result, many legislatures, including the Rhode Island General ...


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