Plaintiff: Kenneth C. Vale, Esq. Diane Daigle, Esq.
Defendant: Jeanine P. McConaghy, Esq.
matter is before the Court on the Amended Verified Petition
of Gabriel Santiago (Petitioner) for Post Conviction Relief
(Amended Petition). Petitioner asserts defense counsel denied
him effective assistance of counsel as guaranteed by the
Sixth and Fourteenth Amendments of the United States
Constitution, and article I, section 10 of the Rhode Island
Constitution, and that as a result, he was convicted of the
crime with which he had been charged. He also maintains his
innocence of the charge. Jurisdiction is pursuant to G.L.
1956 § 10-9.1-3.
November 22, 2011, a jury found Petitioner guilty of second
degree child molestation sexual assault pursuant to G.L. 1956
§ 11-37-8.3. See State v. Santiago,
P2/09-0972A. Thereafter, the Court sentenced Petitioner to a
term of twenty-five years imprisonment at the Adult
Correctional Institutions, with nine years to serve and
sixteen years suspended, with probation. See State v.
Santiago, 81 A.3d 1136, 1137 (R.I. 2014). The Rhode
Island Supreme Court affirmed his conviction on January 15,
2014. Id. at 1141.
following facts are taken from the Supreme Court opinion:
"In August 2008, defendant met a woman named Chely on
the internet. During the course of their burgeoning
online relationship, Santiago invited Chely to relocate to
Rhode Island from Texas, and she eventually moved into
defendant's Central Falls apartment with two of her
daughters, then ages six and seven.
"On February 5, 2009, defendant was home alone with
Chely's daughters while their mother attended night
classes. Doreen, the older of Chely's daughters, asked
defendant for permission to play a video game. Doreen said
that Santiago told her that, to play the video games, she
would have to 'do something,' specifically, to
'take a shower with him or touch his private part.'
According to Doreen, defendant made her touch 'his
private part' under his clothes and move her hand back
and forth. The defendant instructed Doreen to cover her eyes
with her other hand so that she would not see. While
recounting the events of that night, Doreen also said that
after about a minute, defendant told her to go wash her hands
because she had 'white things around her hands.' She
said that she did not know the source of the substance but
that it had not been on her hand before she touched
defendant. She also said that Santiago instructed her not to
tell anyone what had occurred.
"Despite that admonition, however, the following day
Doreen informed her mother about what had happened. Chely and
her daughters quickly vacated the apartment, and, a few days
later, Chely reported the incident to the Central Falls
Police Department. Chely and Doreen were referred by the
police to the Child Advocacy Center (CAC) for an interview,
and a trained CAC counselor interviewed the young girl on
February 11, 2009. The interview was transcribed and recorded
on videotape. During the CAC interview, Doreen provided
details of the events of February 5, including the fact that
when she touched defendant's body part it felt hard.
Santiago subsequently was arrested and charged with
second-degree child molestation sexual assault."
Santiago, 81 A.3d at 1138.
13, 2014, Petitioner, pro se, filed an Application
for Post Conviction Relief (PCR). He later obtained counsel
who then filed an Amended Petition on Petitioner's
behalf. The Court conducted a hearing on the
Amended Petition on February 5, 2017. Petitioner and his
former attorney, Jeffrey D. Peckham, testified at the
hearing. Additional facts will be supplied in the Analysis
section of this Decision.
well-settled that '"the 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) (quoting Page v. State, 995 A.2d
934, 942 (R.I. 2010)); see also Lyons v. State, 43
A.3d 62, 64 (R.I. 2012) ("[O]ne who has been convicted
of a crime may seek collateral review of that conviction
based on alleged violations of his or her constitutional
rights"). The action is civil in nature and governed by
all rules and statutes applicable in civil proceedings.
See § 10-9.1-7 ("All rules and statutes
applicable in civil proceedings shall apply . . . .");
see also Lyons, 43 A.3d at 64 (stating
"[a]pplication[s] for postconviction relief [are] civil
in nature"). The "applicant for postconviction
relief bears the burden of proving, by a preponderance of the
evidence, that such relief is warranted in his or her
case." DeCiantis, 24 A.3d at 569.
Petitioner contends that the defense counsel was ineffective
because he failed to satisfy Petitioner's tactical
demands during the trial. He asserts three ineffective
assistance of counsel arguments; namely, that his counsel
failed (a) to engage a medical expert; (b) to cross-examine
the victim's mother regarding her alleged motive to make
false allegations against Petitioner; and (c) to utilize
notes about witnesses that Petitioner took during the trial
at counsel's request. Petitioner also maintains that he
is innocent of the crime.
Rhode Island, "[i]t is well established that . . .
ineffective-assistance-of-counsel claims are assessed under
the familiar two-pronged test announced by the United States
Supreme Court in Strickland v. Washington, 466 U.S.
668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)."
Millette v. State, 183 A.3d 1124, 1129
(R.I. 2018). Under the Strickland test,
"an applicant for postconviction relief must first
establish that counsel's performance was constitutionally
deficient by demonstrating that counsel made errors so
serious that counsel was not functioning as the counsel
guaranteed . . . by the Sixth Amendment. Second, the
applicant must demonstrate that he or she was prejudiced by
counsel's performance by showing that there is a
reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different." Millette, 183 A.3d at
1129 (internal citations and quotations omitted).
making his claim, Petitioner "is saddled with a
'heavy burden,' in that there exists 'a strong
presumption [recognized by this Court] that an attorney's
performance falls within the range of reasonable professional
assistance and sound strategy . . . .'" Rice v.
State, 38 A.3d 9, 16-17 (R.I. 2012) (quoting
Ouimette v. State, 785 A.2d 1132, 1138-39 (R.I.
2001)). See also Jaiman v. State, 55 A.3d
224, 238 (R.I. 2012) ("Recognizing the difficulties
inherent in [an ineffective assistance of counsel claim, ]
'a court must indulge a strong presumption that
counsel's conduct falls within the wide range of
reasonable professional assistance; that is, the defendant
must overcome the presumption that, under the circumstances,
the challenged action 'might be considered sound trial
strategy.'" (quoting Strickland, 466 U.S.
at 689). The "Constitution guarantees criminal
defendants only a fair trial and a competent attorney. It
does not insure that defense counsel will recognize and raise
every conceivable constitutional claim." Engle v.
Isaac, 456 U.S. 107, 134 (1982).
to Engage ...