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State v. Cook

Superior Court of Rhode Island, Providence

October 8, 2019


          For Plaintiff: Daniel Guglielmo, Esq.

          For Defendant: James M. Hanley, Esq.


          McGUIRL, J.

         Before this Court is the Motion of Noah L. Cook (Mr. Cook or Petitioner) for Post Conviction Relief. Mr. Cook files his motion on the basis that he received ineffective assistance of counsel as guaranteed by the Sixth Amendment of the United States Constitution. Jurisdiction is pursuant to G.L. 1956 § 10-9.1-1(a).


         Facts and Travel

         Mr. Cook faced four charges contained in the criminal complaint P2/2013-3152ADV: Domestic Strangulation G.L. 1956 § 11-5-2.3 (June 23, 2013); Felony Domestic Assault § 11-5-2 (July 7, 2013); Simple Domestic Assault § 11-5-3/G.L. 1956 § 12-29-5 (July 7, 2013); and Simple Domestic Assault § 11-5-2.3 (June 23, 2013) of Ms. Tara Sunderland (Ms. Sunderland). These charges relate to incidents that took place on June 23, 2013 and July 7, 2013 respectively. Mr. Cook faced trial on March 10, 2015 through March 17, 2015. During trial testimony was provided by Ms. Sunderland, Dr. Victor Pinkes (Dr. Pinkes), Officer Kathleen Kelly (Officer Kelly), Mr. Cook, and Michael Toscani (Mr. Toscani), an acquaintance of both parties. Specifically, Ms. Sunderland and Mr. Cook testified to their accounts of the alleged assaults on the respective dates with Mr. Cook indicating rough sex caused Ms. Sunderland's injuries on June 23, 2013 while also providing an alternative recounting of events relating to the July 7, 2013 encounter. Conversely, Ms. Sunderland indicated that she was assaulted on both dates and suffered serious injuries as a result. Dr. Pinkes offered testimony regarding Ms. Sunderland's injuries and demeanor when he treated her after the alleged assault. Officer Kelly of the Burrillville Police Department testified to Ms. Sunderland's appearance and demeanor when Ms. Sunderland presented to the Burrillville Police Station July 7, 2013, seeking to file a police report. Finally, Mr. Toscani testified that he was familiar with both parties and recounted a brief conversation he had had with Ms. Sunderland after the incidents in which she indicated she was taking Mr. Cook to court. Ultimately, Mr. Cook was convicted of the charges stemming from the July 7, 2013 incident, but was acquitted of the June 23, 2013 charges.

         On January 12, 2017, Mr. Cook filed this Application for postconviction relief. Mr. Cook alleges that he received ineffective assistance of counsel from both of his attorneys of record in the criminal case-Attorney David Levy (Mr. Levy) and Attorney F. Joseph Patriarca (Mr. Patriarca). The heart of his claim against his attorneys' actions results from a confidential statement (the statement) that Mr. Cook prepared, at the request of Mr. Patriarca, describing his version of the events involving Ms. Sunderland and himself. Mr. Patriarca gave the State a copy of the statement-allegedly at the behest of Mr. Cook-which was later used against Mr. Cook on cross-examination during trial when represented by his trial attorney, Mr. Levy. Mr. Cook claims he did not know or agree to give the statement to the prosecutor and was surprised by its use at trial. He claims that the statement impacted his trial because the statement and his testimony on direct examination were inconsistent with one another. Mr. Cook claims that he was convicted of the charges stemming from the July 7, 2013 incident because of the inconsistencies but was acquitted of the June 23, 2013 charges because his testimony was consistent with the written statement.

         This Court held evidentiary hearings in connection with Mr. Cook's motion in November 2017, and February and June of 2018. During these hearings, the Court heard testimony from Mr. Patriarca, Mr. Levy, Mr. Cook, and State prosecutor Daniel Guglielmo (Mr. Guglielmo). During these hearings, particular emphasis was placed on the contents, purpose, use, and transmittal of the statement written by Mr. Cook. The statement describes the events of June 23, 2013 and July 7, 2013 from Mr. Cook's perspective. Mr. Cook described the June 23, 2013 incident and the injuries suffered by Ms. Sunderland on that date as arising from rough sex and that Ms. Sunderland requested he "asphyxiate her in attempt [sic] so she may gain an orgasm, so we had sex with the dog collar around her neck." (Ex. C at 1.) The statement also offers Mr. Cook's alternative recollection of events relating to the July 7, 2013 incident in which he describes an argument over his cell phone and other women precipitated a physical altercation.

         After review of submitted evidence and testimony, a Decision is herein rendered.


         Standard of Review

         "'[T]he 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)) (further citation omitted); see also § 10-9.1-1. Postconviction relief applications are civil in nature and thus, are governed by all applicable rules and statutes governing civil cases. Ferrell v. A.T. Wall, 889 A.2d 177, 184 (R.I. 2005). Thus, "[a]n applicant for such relief bears '[t]he burden of proving, by a preponderance of the evidence, that such relief is warranted' in his or her case." Brown v. State, 32 A.3d 901, 907 (R.I. 2011) (citing State v. Laurence, 18 A.3d 512, 521 (R.I. 2011)).



         Mr. Cook claims that he is entitled to postconviction relief because he was denied the effective assistance of counsel guaranteed by the Sixth Amendment of the United States Constitution. He alleges that both attorneys who represented him in his criminal matter were ineffective.

         The analytical framework for an ineffective assistance claim is well-established. To prevail on an application for postconviction relief based on ineffective assistance of counsel, a petitioner must establish two criteria. Rodriguez v. State, 941 A.2d 158, 162 (R.I. 2008). He must first demonstrate that "counsel's performance was deficient in that it fell below an objective standard of reasonableness." Hazard v. State, 64 A.3d 749, 756 (R.I. 2013) (citation omitted). Second, he must demonstrate that the deficient performance prejudiced the defense meaning "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland v. Washington, 466 U.S. 668, 687 (1984). The Court affords a "high degree of deference" to trial counsel when evaluating a claim for ineffective assistance of counsel. Hazard, 64 A.3d at 762.


         Alleged Ineffective Assistance of Attorney Joseph Patriarca


         Failure to Attend Trial

         Mr. Cook claims that he is entitled to postconviction relief because Mr. Patriarca was not present for his criminal trial even though he was the attorney of record. He further alleges that Mr. Patriarca never withdrew from his case.

         Generally, counsel cannot terminate the representation of a client without taking affirmative action. In re Gordon, 780 F.3d 156, 159 (2nd Cir. 2015) (affirming the discipline of an attorney-of-record who failed to appear in appellate proceedings but who had never formally withdrawn from the case). The attorney must wait until the court grants leave to withdraw. An attorney who has failed to withdraw is still considered responsible for the case. 7 Am. Jur. 2d Attorneys at Law § 174 (2017) ("An attorney who has appeared as an attorney of record cannot terminate the attorney-client relationship by withdrawal until application is made to the court and leave to withdraw is granted; until such occurs, the attorney-client relationship continues until the end of litigation.") However, the entry of appearance of another attorney may excuse the need for a formal substitution. 7 Am. Jur. 2d Attorneys at Law § 177 (2017) ("[A]lthough generally the attorney of record has the exclusive right to appear for his or her client, when the actual authority of the new or different attorney appears, the absence of record of a formal substitution may be excused.").

         It is undisputed that Mr. Patriarca was Mr. Cook's attorney of record. It is also undisputed that Mr. Patriarca failed to formally withdraw from the case. He neither filed a motion nor was he granted leave to withdraw. However, Mr. Patriarca ensured that Mr. Cook had substitute counsel. 7 Am. Jur. 2d Attorneys at Law § 177 (2017). Mr. Patriarca claims that he brought Mr. Levy into the case, as trial counsel, when he believed the case could not be resolved through plea negotiations. He gave Mr. Levy the complete file that he had prepared for Mr. Cook's case. Likewise, Mr. Guglielmo testified that his notes from the time indicate that "Mr. Levy enters on 9/29/[2014]" and that his "assumption was that Mr. Levy was coming in and Mr. Patriarca was out. I had no more dealings with [Mr. Patriarca]." (Post Conviction Relief (PCR) Hr'g Tr. 12:8-16, Nov. 2, 2017.)

         Mr. Levy testified that he believes Mr. Patriarca was present during jury selection for Mr. Cook's trial. (PCR Hr'g Tr. 25:25, June 20, 2018.) According to Mr. Levy, Mr. Patriarca was Mr. Cook's friend. Id. at 26:3-4. Mr. Levy further indicated that Mr. Patriarca neither sat at the counsel table nor did he assist with jury selection. Id. at 26:5-8. Moreover, Mr. Levy testified that Mr. Patriarca was not working with him on the case and had no role in trying the case. Id. at 26:18-22. In addition, Mr. Levy noted that he is unsure whether Mr. Patriarca formally withdrew from the case. Id. at 26:10-11. When Mr. Levy was asked whether he expected Mr. Patriarca at trial, he indicated that "He [Mr. Patriarca] said at one point he wanted to be there." Id. at 26:16-17. Mr. Levy's testimony indicates that he intended and did take over as Mr. Cook's trial counsel after the failed negotiations.

         In spite of Mr. Patriarca's failure to take formal action, it is unlikely that Mr. Cook suffered any prejudice from the failure of Mr. Patriarca to appear at trial. Mr. Cook claims that he was prejudiced by Mr. Patriarca's absence, but his argument fails to account for the discussion he had with the Court on the record. Specifically, he told the Court that he had no concerns or problems with Mr. Patriarca's absence:

"THE COURT: All right. A couple of things I just want to put on the record before we go any further. Mr. Cook, according to the court file, Mr. Patriarca -- I think Francis Joseph Patriarca was representing you at one point. He hasn't withdrawn. My understanding was some conference was going on, after which time had passed, I was informed that Mr. Levy was entering the case to try the case. Is that correct?
"THE DEFENDANT: That is correct. Yes, Your Honor.
"THE COURT: And Mr. Patriarca has not been here and I don't expect him to be here for the trial. Do you have any problem with that?
"THE DEFENDANT: Not at all, Your Honor.
"THE COURT: So Mr. Levy is your trial counsel?
"THE DEFENDANT: Yes." (Trial Tr. 6:4-18, Mar. 13, 2015.)

         Mr. Cook's assent above seemingly ratifies Mr. Patriarca's absence. State v. Moran, 699 A.2d 20, 25 (R.I. 1997) ("We have recognized that an accused's right to select his or her own attorney to defend against criminal charges has a central role in our adversary system of justice . . . Although a criminal defendant's right to the attorney of his or her choice is not absolute, it does command a presumption in favor of its being honored."). Further, Mr. Patriarca believed that Mr. Cook "needed someone with more trial experience than [him]self." (PCR Hr'g Tr. 43:11-12, Nov. 2, 2017.) As a result, he "had given Mr. Cook three options with three different attorneys" and Mr. Cook agreed to representation by Mr. Levy after an introductory meeting arranged and attended by Mr. Patriarca. Id. at 33:3-14. Accordingly, because there was substitute counsel and Mr. Cook assented to said substitution in open Court, the substitution was neither unreasonable nor prejudicial.


         Disclosing the Confidential Statement

         Second and most importantly, Mr. Cook claims that Mr. Patriarca was ineffective when he gave his written statement to the State without his informed consent or knowledge that such was provided. Mr. Cook asserts that he did not give permission for Mr. Patriarca to provide the State with a copy of his written statement. He further adds that Mr. Patriarca failed to inform Mr. Levy that the statement existed and that it had been previously given to the State. Mr. Cook further asserts that he was unprepared for the statement's use during his cross-examination at trial. Accordingly, Mr. Cook now also contends that the unauthorized transmittal of his statement to Mr. Guglielmo violated the attorney client privilege outlined in Article V, Rule 1.6(a) of the Rules of Professional Conduct.

         During the evidentiary hearings, Mr. Patriarca explained that it was his typical business practice to have his clients compile a document recounting their version of events relating to their representation. He further testified that he "absolutely do[es] remember" telling Mr. Cook of his policy not to disclose the personal statements and "was very adamant about that." PCR Hr'g Tr. 26:18; 26:22, Nov. 2, 2017. Mr. Patriarca was questioned about whether he actually gave a copy of the statement to the State, to which he replied "[a]t Mr. Cook's request, yes" and that "[Mr. Cook] told me he wanted Mr. Guglielmo to have a copy of the time - - what he called the time line." Id. at 29:18; 29:21-22. Mr. Patriarca further explained that he did not want to turn over the statement but Mr. Cook insisted, despite repeated advice that it was not in Mr. Cook's best interest. In addition, Mr. Patriarca indicated that Mr. Cook was present and "behind my right shoulder and Mr. Guglielmo was standing . . . to the left of me" when Mr. Patriarca handed over the statement to the State on the third floor of the courthouse. Id. at 31:5-8. Mr. Patriarca indicates that Mr. Cook was present when he handed over the statement to the State prior to trial and thus was aware of the State's possession of the statement.

         Mr. Cook states that he had no knowledge of the State having his written statement. He claims that he was shocked when Mr. Guglielmo presented the statement to him on cross-examination. Of particular interest, Mr. Guglielmo testified that it was the State's understanding that "[the statement] was [Petitioner's] version of events" and that [Petitioner] wanted to explain himself and wanted to, obviously, throw the victim's credibility into question as well." Id. at 14:19-24.

         Mr. Levy testified that he was told Mr. Cook told Mr. Patriarca to give the statement to the State so they would know what happened and to contradict Ms. Sunderland's account of the events. In corroboration of Mr. Patriarca's testimony, Mr. Levy testified that he ran into Mr. Patriarca in the court house and at times discussed the statement with him. (PCR Hr'g Tr. 9:8-11, June 20, 2018.) Mr. Levy further testified, "[Mr. Patriarca] told me Mr. Cook wanted him or instructed him to turn it over to Mr. Guglielmo so Mr. Guglielmo would have Mr. Cook's version of events." Id. at 8:4-6. Mr. Levy adds that Mr. Patriarca told him that he should not have given the document over to Mr. Guglielmo but that Mr. Cook insisted upon it. Id. at 9:15-17.

         The testimony of both Mr. Levy and Mr. Patriarca indicates that Mr. Cook wanted the State to have his written statement to further its purpose to discredit the victim. Similarly, Mr. Patriarca testified that he gave a copy of the statement to Mr. Guglielmo "[a]t Mr. Cook's request . . ." and that "[Mr. Cook] told me he wanted Mr. Guglielmo to have a copy of the time- - what he called the time line . . . to prove that the victim in the case was ...

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