County Superior Court
Plaintiff: Pamela E. Chin, Esq.
Defendant: Timothy G. Healy, Esq.
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.
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. Viol. Tr. 31:9-47:25.
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.
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
"THE DEFENDANT: Yes." Plea Tr. 16:3-24.
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.
2016, as Petitioner was nearing eligibility for parole, a
Parole Administrator presented Petitioner with a document
entitled "Notice and Terms of Community
Supervision" 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
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.
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.
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
"(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
"(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).
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)).
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 ...