Plaintiff: Judith Crowell, Esq.
Defendant: Jeanine P. McConaghy, Esq.; J. Patrick Youngs,
MCGUIRL, MAGISTRATE J.
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
Facts and Travel
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.
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.
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).
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. 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.
Standard of Review
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 §
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)).
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)).
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)).
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. 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
"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 DEFENDANT: Yes.
"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.
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
"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 DEFENDANT: Yes, I do.
"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
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)).
Inquiry into Medications at Plea Hearing
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
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
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
Information at Sentencing
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.)
Hardiman sought leniency despite his crimes and acknowledged
the "most difficult aspect . . . [of] law is to argue
for the life of another human being." 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.
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.
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. 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.)
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.
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.
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.
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.
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.
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
"THE COURT: Very well, Other than the sentences that I
have just outlined for you, have any other promises ...