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Davis v. State

Superior Court of Rhode Island, Providence

October 16, 2019


          For Plaintiff: Judith Crowell, Esq.

          For Defendant: Jeanine P. McConaghy, Esq.; J. Patrick Youngs, III, Esq.



         Before the Court is Joshua Davis's (Petitioner) application for postconviction relief (Application). Petitioner asserts two theories in support of his Application: (1) that his change of plea hearing was in violation of his constitutional rights and Rule 11 of the Superior Court Rules of Criminal Procedure (Rule 11); and (2) that his attorneys rendered constitutionally ineffective assistance of counsel by failing to raise the question of his competency or to inform the Court he was being prescribed anti-psychotic medications at the time of the change of plea hearing. Petitioner filed a second amended petition alleging that the Court violated Rule 11 when it failed to advise him that his plea would subject him to sex offender registration and community supervision. See G.L. 1956 §§ 11-37.1-1 et seq.; G.L. 1956 § 13-8-33. Therefore, the Petitioner contends that his attorneys were ineffective for not advising him of this registration requirement and ramification of the community supervision statute prior to entering his plea. Jurisdiction is pursuant to G.L. 1956 § 10-9.1-1.

         I Facts and Travel

         On May 7, 2006, eight-year-old Savannah Smith disappeared from outside her home in Woonsocket, Rhode Island. Petitioner, who resided near the Smith home, was identified as an individual with whom Savannah was last seen. Subsequently, Petitioner was questioned by Woonsocket Police the night of the disappearance and would later lead detectives to Savannah's body in a wooded location in Cranston, Rhode Island. In addition, Petitioner confessed to driving Savannah from Woonsocket to Cranston, engaging in sexual intercourse with her, and strangling her with his hands. A used condom with the Petitioner's semen inside and the victim's blood on the outside was also found near Savannah's body.

         Petitioner was charged with first-degree murder, first-degree child molestation, and kidnapping of a minor. The Petitioner was held without bail from the time of his arrest on May 7, 2006 until he entered guilty pleas to all three charges on April 17, 2008. On June 25, 2008, the Petitioner was sentenced to serve life without parole for the murder, and consecutive life sentences for the crimes of first-degree child molestation and kidnapping of a minor.

         In August 2011, the Superior Court appointed attorney Glenn Sparr to represent Petitioner in connection with his Application. After reviewing Petitioner's claims, Attorney Sparr moved to withdraw from the case and filed a lengthy memorandum in support of said motion pursuant to Shatney v. State, 755 A.2d 130 (R.I. 2000). The Superior Court granted Attorney Sparr's motion to withdraw but allowed the Petitioner an opportunity to provide evidence in support of his claims. After review, the Superior Court denied Petitioner's claim. Subsequently, the Petitioner appealed and on November 12, 2015, the Rhode Island Supreme Court remanded the Petitioner's case with instructions for the lower court to appoint new counsel and provide Petitioner with an evidentiary hearing. Davis v. State, 124 A.3d 428 (R.I. 2015).

         Present counsel was assigned, and an evidentiary hearing was held on November 15 and 27, 2018. The Court heard testimony from Dr. Wade Myers, Director of Forensic Psychiatry at Rhode Island Hospital; Scott Tirocchi, Mental Health Clinician; the Petitioner, and defense attorney Anthony Capraro.[1] A further hearing was held July 10, 2019 in relation to the Petitioner's second amended petition with no additional testimony heard. After review of submitted evidence and testimony, a Decision is herein rendered.

         II 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 motions are civil in nature and thus, are governed by all the applicable rules and statutes governing civil cases. Ferrell v. 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) (quoting State v. Laurence, 18 A.3d 512, 521 (R.I. 2011)).

         III Analysis

         A Plea Colloquy

         Petitioner alleges that he was not competent when he entered his guilty plea on April 17, 2008 because the prescribed anti-psychotic medications he was on at the time, in combination with side effects of his mental illness, prevented a knowing, voluntary, and intelligent waiver of his constitutional rights as required by Rule 11. According to Rule 11, the court "shall not accept [a guilty] plea . . . without first addressing the defendant personally and determining that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea." Rule 11.1; see also Njie v. State, 156 A.3d 429, 434 (R.I. 2017). Pursuant to Rule 11, the trial justice must speak with the defendant to the extent necessary to establish that '"the defendant understood the nature of the charge and the consequences of the plea."' Njie, 156 A.3d at 434 (quoting State v. Frazar, 822 A.2d 931, 935 (R.I. 2003)).

         In addition, the focus of a competency probe is whether a defendant has the capacity to understand the proceedings. State v. Cook, 104 R.I. 442, 446, 244 A.2d 833, 835 (1968). A defendant's competency to plead guilty is contingent on his capacity to '"first, . . . understand[ ] the nature of the charges brought against him; second, . . . appreciate[ ] the purpose and object of the trial proceedings based thereon; and third, that defendant has the mental capacity to assist reasonably and rationally his counsel in preparing and putting forth a defense to the criminal charges of which he stands accused.'" State v. Thomas, 794 A.2d 990, 994 (R.I. 2002) (quoting Cook, 104 R.I. at 447, 244 A.2d at 835-36). Finally, the party challenging the validity of a plea has the burden of establishing "by a preponderance of the evidence, that he did not already understand the nature of the charges and the rights he was giving up, either through prior experience with the criminal courts of this state or by reason of having been so advised by counsel." Ouimette v. State, 785 A.2d 1132, 1136 (R.I. 2001) (citing Hall v. Langlois, 105 R.I. 642, 645, 254 A.2d 282, 284 (1969)).

         During the plea proceedings, the justice questioned Petitioner thoroughly before accepting his plea as knowing and voluntary. First, the trial justice established that the Petitioner had his GED, could read and write, and was not under the influence of alcohol or drugs at the time of the plea.[2] Next, the trial justice asked Petitioner's counsel, John Hardiman (Attorney Hardiman), if he had reviewed the rights form with the Petitioner. Attorney Hardiman replied "[a] number of times . . . not only today, yesterday, and again on Tuesday, earlier this week, when we went over it very extensively . . . ." (Plea Hr'g Tr. 9:17-20, Apr. 17, 2008.) Attorney Hardiman further advised the Court that he was "satisfied not only that [Petitioner] understands the entire process that he is giving up, I'm also satisfied he understands each and every one of the rights on the rights form and that he is competent to acknowledge those rights and understands the reading of them." Id. at 10:11-15. The Court further questioned Attorney Hardiman as to the Petitioner's understanding of his plea and subsequently confirmed Petitioner's desire during the following exchange:

"THE COURT: Did you go over with him the possible penalties that could be imposed as a result of this plea?
"MR. HARDIMAN: I indicated to him that when he did plead, that he was going to be acknowledging to the three counts, of murder in the first degree, first degree child molestation and kidnapping of a minor, which all carries a penalty of life, with the condition that first degree murder also had a possibility of life without parole. I told him the life criteria for life with parole would be satisfied. The issues of whether or not the killing was done by torture or aggravated battery or by felony murder, by his very plea, he is acknowledging that that has been satisfied for the purpose of this plea and he could be facing a sentence of life without parole as related to the murder charge.
"THE COURT: Now, you heard the recitation of your attorney, Mr. Davis, is what he said to you; correct?
"THE COURT: And after talking to him about this and hearing from him about this, is it still your desire to go forward at this time and plead guilty to these three charges?
"THE DEFENDANT: Yes, it is, your Honor." Id. at 10:16-11:1-13.

         Next, the trial justice reviewed the possible sentences which Petitioner may receive, including the possibility of life without parole, which the Petitioner then acknowledged. Specifically, the following exchange occurred during the colloquy:

"THE COURT: Now, the proposed sentence in this matter, as to Count I, which is first degree murder, the sentence is life in prison with the possibility in this case of life without parole; and then with regard to Count II, the potential sentence is up to life in prison, and that's the child molestation charge; and then on Count III, which is the kidnapping of a minor charge, again, the potential is for up to life in prison. Those sentences could be meted out by me so that they could be concurrent with each other, meaning running together, or they could be consecutive. So, there's a potential that you could have three consecutive life imprisonments as a sentence, and in addition, because of the nature of this particular murder and the other charges that are involved, you're looking at the possibility of life without parole; do you understand that?
"THE COURT: And specifically, our statute speaks to situations when a person is either found guilty or pleads guilty to first degree murder, while not only is there a mandatory life sentence, if certain circumstances exist in this case, that that the murder was committed intentionally while engaged in another capital offense, such as Counts II and III, and/or that it was committed in a manner involving torture or an aggravated battery to the victim, that those components and circumstances would trigger the ability to have me consider the possibility of sentencing you to life without parole; do you understand that?
"THE DEFENDANT: Yes; your Honor.
"THE COURT: And do you understand today that not only are you pleading guilty to these three counts, but in addition, you're acknowledging your guilt as to those two issues; in other words, that they were committed either by aggravation or torture or that the murder was committed in conjunction with another capital offense. Are you acknowledging that to me today?
"THE DEFENDANT: Yes, your Honor." Id. at 13:5-14:1-16.

         Based on the Petitioner's responses during the plea colloquy and repeated assertions that he understood, accepted, and desired to plead guilty, this Court is satisfied that the trial justice complied somewhat adequately with Rule 11 and conducted a sufficiently detailed exchange with Petitioner to ensure that he "understood the nature of the charge and the consequences of the plea" in relation to Counts I and III. Njie, 156 A.3d at 434. The Court further notes that the Petitioner acknowledged the rights he would be giving up and the potential serious consequences which could result from his decision to plead guilty. See United States v. Pulido, 566 F.3d 52, 59-60 (1st Cir. 2009) (citing United States v. Butt, 731 F.2d 75, 80 n.5 (1st Cir. 1984)).

         1 Inquiry into Medications at Plea Hearing

         Petitioner now contends that his plea violated Rule 11 because the trial justice specifically failed to ask if he was under the influence of medications that might have affected his ability to make a knowing and voluntary plea. Rather, Petitioner asserts that trial justice's inquiry-"[a]re you presently under the influence of alcohol or drugs?"-to which Petitioner responded "No," was insufficient as Petitioner did not understand that "drugs" also encompassed prescription medications. (Plea Hr'g Tr. 9:12-14, Apr. 17, 2008.) First Circuit cases on this topic indicate that a duty is only placed upon the hearing justice to inquire about potential impairment once he or she has been informed that a defendant has recently ingested medication. See United States v. Parra-Ibanez, 936 F.2d 588, 595-96 (1st Cir. 1991) (holding that trial justice's failure at plea hearing to inquire regarding the dosages and effects of medications on Defendant's "clear-headedness," once informed, rendered plea invalid).

         Our Supreme Court has found that inquiring whether Petitioner has ingested medication may be a "better practice" but has nonetheless consistently upheld the validity of a colloquy which posits questions involving only the ingestion of alcohol or drugs. See Jolly v. Wall, 59 A.3d 133, 139 n.8 (R.I. 2013) (finding that "[t]he better practice may be for the court to specifically inquire whether a defendant has taken 'any drugs, alcohol or medication' before the plea hearing"); see also Njie, 156 A.3d at 435 (discussing a trial justice's determination that a plea was knowing, intelligent, and voluntary after establishing, among other things, that the defendant "was not under the influence of alcohol or narcotics" while entering the plea); Thomas, 794 A.2d at 993 (holding that nolo contendre plea was not invalid on grounds plea colloquy did not address defendant's mental illness despite admission that he had been "off" his medication for schizo-affective disorder).

         Here, the record is silent as to any indication or notice to the trial justice that the Petitioner was taking medication at the time of his plea; therefore, no duty can be imposed on the trial justice to question dosage and effect as seen in Parra-Ibanez. Rather, substantial evidence indicates that the trial justice was not informed of the Petitioner's alleged mental illness until after the change of plea hearing and in preparation for the subsequent sentencing hearing. During the trial justice's plea colloquy, he asked Petitioner, "Are you presently under the influence of alcohol or drugs?" Petitioner responded "No" and did not indicate any other drugs, prescribed or illicit, that he may have been using at that time. (Plea Hr'g Tr. 9:12-14, Apr. 17, 2008.) Moreover, the Petitioner addressed the Court at his plea hearing and subsequent sentencing hearing and failed to raise the issue of any medications he was taking at that time. Rather, Petitioner remained consistent in his remorse and indicated that his guilty plea was entered to "help [the victim's family] find some closure." (Plea Hr'g Tr. 18:14, Apr. 17, 2008.) Moreover, this Court is satisfied that the Petitioner's perceived challenge to his change of plea is separate and distinct from an analysis from information before the Court at sentencing. Indeed, the record is devoid of any indication that the trial justice was versed in the Petitioner's mental health history at the time of the change of plea, nor is the Court required to investigate such condition absent notice by a party. See Parra-Ibanez, 936 F.2d at 596-97. Accordingly, this Court is satisfied that the colloquy conducted by the trial justice adequately evaluated the competency of the Petitioner at the time of his change of plea. See Weisberg v. State of Minnesota, 29 F.3d 1271, 1278 (8th Cir. 1994) ("Retrospective determinations of whether a defendant is competent to stand trial or to plead guilty are strongly disfavored.").

         2 Information at Sentencing

         As previously stated, this Court is satisfied that the Petitioner's perceived challenge to his change of plea is separate and distinct from an analysis from information before the Court at sentencing. However, the availability of information regarding prescribed medications and discussion of such on the record reveal a continuous, singular, and unabated desire to plead guilty by the Petitioner. Indeed, the record of the Petitioner's sentencing hearing does contain instances indicating the ingestion of medication and possible mental health issues. Specifically, the Court was able to review the presentence report, discussed in depth infra, which indicated ingestion of certain anti-psychotic medications and the Petitioner's overall health during the interim period between his change of plea and sentencing. Specifically, during the sentencing hearing, Attorney Hardiman instructed the Court that:

"[Petitioner] had a psychiatric history, hospitalizations and attempted suicides to the point - - even one point ingesting antifreeze into his body. We know that presently he is on some pretty powerful antipsychotics at the ACI; Haldol, Cogentin, Effexor, Seroquel, Mirtazapine, Trazodone, Amitriptyline, Wellbutrin, Hydroxyzine in the course of his stay at the ACI." (Sentencing Hr'g Tr. 76:14-21, June 25, 2008.)

         Attorney Hardiman sought leniency despite his crimes and acknowledged the "most difficult aspect . . . [of] law is to argue for the life of another human being."[3] Id. at 68:23-24. Attorney Hardiman implored the Court to review all circumstances of the Petitioner's life including substance abuse, his psychiatric history, and sexual abuse as a child. See id. at 70:11-12; 76:14-22. Attorney Hardiman continued that Petitioner had "finally [ ] gotten all the effects of his drugs and his alcohol out of his body and he is now thinking more straight than he had before." Id. at 79:2-5.

         Regardless of Attorney Hardiman's representations, the Petitioner addressed the Court and again indicated his desire to plead guilty in order to spare the victim's family the trauma of trial. Indeed, the Court recognized that the Petitioner had been treated with various drugs while at the ACI for psychological conditions but that "his condition and behavior has improved dramatically" as a result of these medications. Id. at 89:19-20. Nevertheless, the Court upon review of letters, testimony presented, and the presentence report, found that the progress made by the Petitioner constituted a "last-ditch effort by a desperate man to try to avoid the ultimate penalty." Id. at 95:10-11. The Court further informed the Petitioner that none of the previous twenty-six instances where life without parole were administered, "none were more cruel, heartless, inhumane, malicious, savage or vicious . . ." than that committed by the Petitioner. Id. at 100:2-4. Accordingly, this Court is satisfied that the evidence and findings by the justice at the sentencing hearing sheds light upon the mental state of the Petitioner at the time of his change of plea. When presented with an opportunity to elaborate on any mental illness or medication that may have clouded his judgment, the Petitioner remained silent in that respect, yet adamant in his desire to plead to spare the victim's family.

         Notwithstanding the adequacy of the trial justice's colloquy, Petitioner further contends that his "belief" that he would receive a lesser sentence if he pled guilty is evidence that his plea was not knowing, intelligent, and voluntary. In furtherance, Petitioner proffers the opinion of Dr. Wade Myers (Dr. Myers), Director of Forensic Psychiatry at Rhode Island Hospital, who was engaged by the Petitioner to review Petitioner's mental health history-including Petitioner's prescribed anti-psychotropic medications-and perform two interviews in 2017.[4] Dr. Myers noted that during the interviews, Petitioner "[came] across as [ ] straightforward and frank" and "that [Petitioner] had trouble with interpersonal relationships." (PCR Hr'g Tr. 13:9, 21-22, Nov. 15, 2018.)

         During these interviews, Dr. Myers conducted a Personality Assessment Inventory (PAI) and the Montreal Cognitive Assessment (MoCA). In relation to the PAI, Dr. Myers asked the Petitioner 350 questions "in a broad range of areas and the validity scales on this test that [sic] is reflecting whether the person answering the question is being forthright or whether they seem to be trying to exaggerate . . . . Id. at 13:10-14. Consequently, the test ". . . didn't indicate that [Petitioner] was presenting himself in either an overly positive or overly negative way." Id. at 14:22-23. Dr. Myers then conducted the MoCA test "[a]s a check to see if I'm seeing the same thing that has been seen by others . . ." and determined his findings were consistent with previous evaluations which found mild problems with verbal and visual memory tasks. Id. at 16:9-10.

         After conducting the aforementioned tests and interviewing the Petitioner, Dr. Myers diagnosed Petitioner with three disorders: (1) mild neurocognitive disorder due to multiple ideologies; (2) schizoid personality disorder; and (3) schizotypal personality disorder. Id. at 23:13-15. Dr. Myers further elaborated that individuals with schizotypal personality disorder "often have odd beliefs and can sometimes have magical thinking about the world." Id. at 23:19-20. In the opinion of Dr. Myers, the Petitioner was not competent to enter his plea:

"At the time, because of his psychiatric diagnoses that we've gone over, as well as the effects of the psychotropic medications he was on, including an antipsychotic medication, Haldol, primarily, but he was also on Cogentin, which is a medicine to treat the side effects of Haldol, and he was also on Effexor. So the combination of the psychiatric disorders and the combined effects with the medication, I believe impaired his ability to knowingly and intelligently and voluntarily waive his constitutional rights and enter a plea of guilty." Id. at 24:13-23.

         Essentially, Dr. Myers believes that a combination of Petitioner's psychotropic medication and "magical thinking" prevented him from entering a knowing, voluntary, and intelligent plea. Id. at 24:11. Further, it is Dr. Myers' belief that this "magical thinking" was a "symptom of [Petitioner's] underlying mental illness," particularly of Myers' diagnosis of schizotypal disorder. Consequently, the alleged "magical thinking" shown by the Petitioner was articulated by an illogical understanding that by pleading guilty, the Petitioner would receive a lesser sentence, or at a minimum, he "was not going to end up in the worst sentence . . . because that's the way the system seemed to always worked." Id. at 27:22-25; 28:1-3; 29:6-8. Accordingly, it is Dr. Myers' opinion that "[i]n a magical way, [Petitioner] didn't understand how the court system would perceive the really enormity of these crimes" Id. at 29:20-22.

         Specifically, Dr. Myers testified that Petitioner's magical thinking led to Petitioner's belief that ". . . if he pled guilty, expressed remorse, threw himself on the mercy of the Court, didn't put the family through a trial, and just played along with this . . . he would [ ] get a lesser sentence. . . ." Id. at 27:24-28:2. According to Dr. Myers, Petitioner believed the consequences of his plea would be lessened because of his "understanding that it was an unofficial plea bargain." Id. at 27:19-20. Moreover, the magical thinking resulted in the Petitioner "saying what he feels he is supposed to say. He's being as cooperative and basically vulnerable and obsequious as he can be." Id. at 55:15-17. The Court at Petitioner's PCR hearing directly inquired to Dr. Myers ". . . that [Petitioner] thought he had a chance of getting a lesser sentence, that that means his plea was not knowingly and intelligently given; is that your testimony?" Id. at 69:7-10. Dr. Myers answered, "[y]es, Because there is repeated incidents of magical thinking being documented and this also, to me, seemed magical." Id. at 69:11-13. Moreover, Dr. Myers indicated that "I'm not saying [Petitioner] doesn't know the role of the attorney . . . of the Judge . . . of the jury or what have you. I didn't see deficits in that area." Id. at 74:25-75:1-3.) Rather, Petitioner "didn't appreciate the consequence of his plea basically because of his mental disorders." Id. at 74:23-25.

         The Petitioner testified that his "magical thinking" led to an assumption that by pleading guilty, he would receive a lesser sentence. It was his belief that ". . . [prosecutors] would take life without parole off the table and [he would] get the mandatory life sentence instead." Id. at 120:6-7. However, the record is silent as to any promises or indications that a plea bargain absent life without parole was ever offered. Rather, Attorney Capraro testified that "there was no offer that the Attorney General would give us other than life without parole" and that this information was subsequently relayed to Petitioner during the pendency of his case. (PCR Hr'g Tr. 193:22-23, Nov. 27, 2018.) In Petitioner's initial meeting with his attorneys, Petitioner acknowledged that there would be no guaranteed sentence in exchange for his plea and that ". . . because one of the charges was life without parole eligibility. It was a mandatory life sentence if you were found guilty. So I assume[d] by pleading guilty I would get life with parole as opposed to life without parole." (PCR Hr'g Tr. 113:4-8, Nov. 15, 2018.) Petitioner based this reasoning on the fact that he had "never seen that happen before. Nobody entered a plea and still ended up with the maximum sentence for the charges." Id. at 115:1-3.

         The Court is unpersuaded by repeated assertions by the Petitioner that "magical thinking" led him to a belief that by pleading guilty he would be entitled to a lesser sentence. The Petitioner was repeatedly informed by his attorneys that no deal or promises had been made which would lessen the high probability that he may receive life without parole as a consequence of his plea. Moreover, Petitioner acknowledged in open Court at his plea hearing that no promises had been made to him immediately after the trial justice laid out in great detail the possible sentences which may be imposed during the following exchange:

"THE COURT: Very well, Other than the sentences that I have just outlined for you, have any other promises ...

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