Plaintiff: Daniel Guglielmo, Esq.
Defendant: James M. Hanley, Esq.
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
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.
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
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.
review of submitted evidence and testimony, a Decision is
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
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.
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.
Ineffective Assistance of Attorney Joseph Patriarca
to Attend Trial
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.
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.").
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/" 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.)
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.
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
"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
"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,
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.
the Confidential Statement
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
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
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.
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.
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 ...