Reyes v. State

• Decision Date: 11 July 2016
• Docket Number: No. 2014–161–Appeal.,2014–161–Appeal.
• Citation: 141 A.3d 644
• Parties: Pedro REYES v. STATE of Rhode Island.
• Court: Rhode Island Supreme Court

141 A.3d 644

Pedro REYES

v.STATE of Rhode Island.

No. 2014–161–Appeal.

Supreme Court of Rhode Island.

July 11, 2016.

Camille A. McKenna, Providence, for Applicant.

Virginia M. McGinn, Providence, for State.

Present: SUTTELL, C.J., GOLDBERG, FLAHERTY, ROBINSON, and INDEGLIA, JJ.

OPINION

Justice INDEGLIA, for the Court.

The applicant, Pedro Reyes (Reyes or applicant), appeals from the denial of his postconviction-relief application.¹ It is Reyes's contention that his 1994 plea of nolo contendere to the offense of maintaining a narcotics nuisance should be vacated because the plea was not knowing, intelligent, and voluntary. He also argues that the hearing justice erroneously entered judgment for the state on his claims of ineffective assistance of counsel, that the hearing justice failed to consider other arguments, and that the attorney appointed in connection with his application failed to fulfill his assigned role. This case came before the Supreme Court for oral argument on December 1, 2015, pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not be summarily decided. After carefully considering the written and oral submissions of the parties, we are satisfied that this appeal may be resolved without further briefing or argument. For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.

IFacts and Travel

In October 1993, the Attorney General's Narcotics Strike Force (strike force) was conducting an investigation into heroin trafficking in an area near Central Falls High School. On October 5, 1993, Investigator Carl Barovier (Barovier), a member of the strike force, approached Jose Romero (Romero) to purchase heroin.² Romero entered Barovier's vehicle, and the two drove to the vicinity of Central Falls High School. After Barovier parked his vehicle, Romero exited and approached Ismael Cepeda (Cepeda).³ The two conversed briefly, and then Cepeda entered a brown Datsun vehicle that was driven by another male. The vehicle drove off, returning about ten minutes later. Cepeda exited the vehicle and gave Barovier five bags containing heroin. Barovier relayed his description of the driver of the Datsun to Inspector Edward H. Randall (Randall); Randall showed Barovier a photograph of Reyes, and Barovier identified Reyes as the driver of the Datsun. Reyes was charged, along with Cepeda and Romero, with conspiracy to distribute heroin within three hundred yards of a school (count 1) and distribution of heroin within three hundred yards of a school (count 2).

Reyes was represented with respect to these charges by privately retained counsel (trial counsel). Eventually, the state dismissed count 2 in accordance with Rule 48(a) of the Superior Court Rules of Criminal Procedure in exchange for Reyes's plea of nolo contendere on count 1 to an amended charge of maintaining a narcotics nuisance. The Superior Court file contains two plea forms executed by Reyes, one in English and the other in Spanish. At the change-of-plea hearing on October 4, 1994, no Spanish interpreter was present, but the record does not indicate that either trial counsel or Reyes requested the assistance of an interpreter. During the plea colloquy, Reyes was able to respond, in English, to the trial justice's questions.⁴ Reyes provided his name and date of birth, and he indicated that he wished to change his plea even before trial counsel responded to that question from the trial justice. Reyes stated that he understood that, by pleading nolo contendere, he was forfeiting several constitutional rights, and, when asked whether he had any questions about those rights, he responded that he did not. After the prosecutor provided the facts in support of the amended charge, Reyes accepted those facts as true. The trial justice found that Reyes “does have the capacity to understand the nature and consequences of his plea including but not limited to the waiver of those rights which I have reviewed with him” and that there was a sufficient factual basis for a plea of nolo contendere. He therefore accepted Reyes's plea and sentenced him to a two-year suspended sentence with three years of probation. In consideration of Reyes's plea, the state elected to refrain from presenting Reyes as a violator of a previously imposed probationary sentence.

Time marched on, and Reyes did not reform his behavior. He subsequently was adjudged to be a probation violator and served a period of incarceration as a result. Additionally, in 2002, he was convicted of second-degree murder, discharging a firearm during the commission of a crime of violence that resulted in death, and carrying a pistol without a license. See State v. Reyes, 984 A.2d 606, 609, 612 (R.I.2009).⁵ For those charges, Reyes was sentenced to two consecutive life sentences. Id. The state also sought the imposition of an additional sentence on the ground that Reyes was a habitual offender under G.L.1956 § 12–19–21. The conviction secured by the 1994 nolo contendere plea was one of the predicate offenses that qualified Reyes as a habitual offender. Reyes received a ten-year sentence on the habitual-offender charge, to be served concurrently with his second life sentence.

In September 2012, Reyes filed a pro se application, in which he sought to vacate his 1994 nolo contendere plea.⁶ The application set forth several allegations of ineffective assistance by trial counsel, which fell into two general categories: failure to adequately investigate the case and prepare a defense; and failure to communicate with Reyes through an interpreter so that Reyes could meaningfully participate in the preparation of his defense, even though, according to Reyes, trial counsel knew that he “barely spoke English.” With respect to the failure-to-investigate category, Reyes averred that his codefendants in the proceedings that culminated in his 1994 plea “exonerated [Reyes] at a bail hearing,” but trial counsel failed to interview these witnesses. One of the paramount allegations in the second category—lack of communication—was that, because trial counsel failed to engage a translator, he was unable to adequately inform Reyes about the nature and consequences of his plea. In addition to his ineffectiveness claims, Reyes also alleged, citing Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), that the trial justice erred in accepting his plea because (i) Reyes did not understand the nature of the amended charge, (ii) the trial justice overlooked the exculpatory statements of Reyes's codefendants, and (iii) the lack of factual basis for the plea. In addition to his application, Reyes also filed a motion for appointment of counsel as an indigent applicant under G.L.1956 § 10–9.1–5.

In accordance with § 10–9.1–5, the hearing justice first referred the matter to the Office of the Public Defender. Because a conflict of interest precluded a member of that office from representing Reyes, an attorney (postconviction counsel) was appointed to represent Reyes in connection with his application. In connection with his investigation, postconviction counsel met with Reyes on four occasions; he did not, however, speak with trial counsel. Postconviction counsel also searched for transcripts or recordings of the allegedly exculpatory bail-hearing testimony that Reyes claimed was given by his codefendants. Postconviction counsel's search revealed that the bail hearing was continued twice with no testimony; the records for the third and final day of the bail hearing revealed that, once again, no witnesses testified and that the defendants had admitted that the state had satisfied its burden of showing that bail was not appropriate. This search led postconviction counsel to conclude that the allegedly exculpatory bail-hearing testimony did not exist. Because postconviction counsel's investigation of Reyes's claims led him to the conclusion that Reyes's postconviction claims lacked merit, he moved to withdraw and filed an accompanying forty-two-page no-merit memorandum explaining the reasons behind that conclusion, in accordance with the procedure outlined by this Court in Shatney v. State, 755 A.2d 130 (R.I.2000).⁷

During the hearing on postconviction counsel's motion to withdraw, Reyes stated that he had read the no-merit memorandum and had no difficulty understanding its contents. Reyes acknowledged that the memorandum discussed all of the issues that he sought to raise in his application.⁸ When Reyes cryptically alluded to a letter from postconviction counsel to Reyes that, according to Reyes, indicated that postconviction counsel represented the state and not Reyes, the hearing justice properly assured Reyes that postconviction counsel was his attorney. Reyes objected to the motion to withdraw on the grounds that postconviction counsel failed to hire an interpreter or an investigator and that he failed to interview trial counsel in connection with his investigation. Postconviction counsel responded that he did not deem an interview with trial counsel to be necessary or appropriate based on his conclusion that Reyes knowingly and voluntarily entered into his plea in 1994. Postconviction counsel also explained that he did not think that an interpreter was necessary during his meetings with Reyes because Reyes had taken English classes while incarcerated and his proficiency with the English language allowed adequate communication between them. Postconviction counsel professed to having “absolutely no problems communicating with [Reyes] at all.”

The hearing justice granted the motion to withdraw and explained to Reyes that he could still proceed pro se on his application or retain another attorney at his own expense. Additionally, she gave Reyes approximately six weeks to submit a memorandum outlining why he was entitled to postconviction relief. She also notified him, in accordance with § 10–9.1–6, that she was inclined to dismiss his application on the...