32 A.3d 901 (R.I. 2011), 2010-228-Appeal, Brown v. State

Docket Nº:2010-228-Appeal.
Citation:32 A.3d 901
Opinion Judge:INDEGLIA, Justice.
Party Name:Gerald M. BROWN v. STATE of Rhode Island.
Attorney:Gerald M. Brown, pro se, for Applicant. Christopher R. Bush, Department of Attorney General, for State.
Case Date:December 02, 2011
Court:Supreme Court of Rhode Island

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32 A.3d 901 (R.I. 2011)

Gerald M. BROWN


STATE of Rhode Island.

No. 2010-228-Appeal.

Supreme Court of Rhode Island.

December 2, 2011

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[Copyrighted Material Omitted]

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Gerald M. Brown, pro se, for Applicant.

Christopher R. Bush, Department of Attorney General, for State.



INDEGLIA, Justice.

The applicant, Gerald M. Brown (applicant or Brown), appeals pro se from a judgment of the Superior Court dismissing his second application for postconviction relief. On appeal, Brown contends that the hearing justice (1) failed to provide Brown an opportunity for a full and fair hearing as a pro se applicant; (2) erroneously denied his claim of newly discovered evidence; (3) improperly rejected his claim of unlawful incarceration; and (4) wrongly dismissed his assertions of ineffective assistance of counsel based on prior counsels' failure to raise a statute-of-limitations defense. This case came before the Supreme Court for oral argument on October 4, 2011, 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.


Facts and Travel

The facts underlying Brown's convictions are set forth in State v. Brown, 626 A.2d 228 (R.I.1993) (hereinafter Brown I ). The original indictment against Brown

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presented four counts of sexual assault and child molestation based upon acts occurring between May 1984 and November 1988. 1 The state dismissed the fourth count of the indictment pursuant to Rule 48(a) of the Superior Court Rules of Criminal Procedure, and the case proceeded to a jury trial on the remaining three counts in January of 1991. The jury convicted Brown on each count, and, after the denial of Brown's motion for a new trial, the trial justice sentenced Brown to thirty years on counts 1 and 2 and five years on count 3, to be served concurrently. This Court denied Brown's appeal from his convictions in Brown I.

On February 2, 1994, Brown filed his first application for postconviction relief, alleging ineffective assistance of his trial counsel. After extensive hearings in the Superior Court on February 15-16, 1995, the hearing justice 2 denied Brown's petition " on the ground that [Brown] had failed to show that he was deprived of the effective assistance of counsel pursuant to the standards set out in Strickland v. Washington, 466 U.S. 668 [104 S.Ct. 2052, 80 L.Ed.2d 674] (1984)." 3 Brown v. State, 702 A.2d 1171, 1171 (R.I.1997) (mem.) (hereinafter Brown II ). Brown appealed from the denial of his application, and this Court affirmed the decision of the hearing justice on October 23, 1997, in Brown II.

On April 18, 2000, Brown filed a second application for postconviction relief in the Superior Court, this time premised on Brown's assertion of newly discovered evidence not presented at trial. In conjunction with his application, Brown also filed a motion for appointment of counsel, a pleading entitled " Facts in Support of Application For Post-Conviction Relief," and a stipulation concerning his pro se status at the time of filing. Included in Brown's recitation of facts to support his application was a document called " Information For Case," in which Brown enumerated a list of potential witnesses and court and hospital records he averred could be presented at an evidentiary hearing to support his innocence. In this document, Brown also referenced several medical articles and studies he argued tended to disprove expert testimony presented at trial (articles).4 The Superior Court granted

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Brown's motion for appointment of counsel; however, appointed counsel later determined Brown's petition to be without merit and made a motion to withdraw. The Superior Court granted counsel's motion and, as a result, allowed Brown to proceed on his application pro se. 5

Brown subsequently amended his application on two occasions. The first amendment, filed on December 12, 2002, set forth an unlawful incarceration argument. In his memorandum of law accompanying the first motion to amend, Brown maintained that he remained detained in violation of Rhode Island's parole statute; specifically, G.L.1956 § 13-8-10(a), discussed infra. 6 Brown's second amendment, filed in July 2003, proffered a claim of ineffective assistance of counsel premised on his prior counsels' alleged failure to raise a statute-of-limitations defense. That same month, Brown filed a separate pleading captioned " Correlation of Newly Discovered and Not Previously Presented Evidence to Trial Transcript," in which he more fully presented his arguments as to how the articles refuted the expert medical testimony proffered at trial. On August 21, 2003, the state moved to dismiss Brown's application pursuant to G.L.1956 § 10-9.1-87 based on Brown's alleged failure to raise such arguments in his first application for postconviction relief years prior.8 The state subsequently filed several responses in opposition to Brown's application and amendments. On March 9, 2004, in reply to the state's memoranda, Brown filed additional supplemental materials.

On April 6, 2004, the hearing justice assigned to the matter requested that Brown submit a memorandum explaining why the court should not dismiss his second postconviction-relief application. Ten days later, Brown filed his " Response with Facts of Law to Judge's Request of 6 Apr. 2004," addressing each of his claims and maintaining his entitlement to a second application under § 10-9.1-8, despite questions of waiver. The hearing justice also offered Brown the opportunity to present testimonial and documentary evidence on his behalf; however, Brown declined.9

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On July 21, 2004, the hearing justice issued a written decision denying and dismissing Brown's application. In regard to Brown's newly discovered evidence claim, the hearing justice found that Brown proffered " no meaningful reason as to why he did not raise the issue * * * in his first application for postconviction relief[,]" in light of the fact that " all of the new evidence [Brown] reference[d] was available at the time of [Brown's] first application." Thus, the hearing justice concluded, Brown's claim premised on newly discovered evidence was barred under § 10-9.1-8. The hearing justice further determined that even if Brown's newly discovered evidence argument was not waived, the claim substantively failed. In finding such failure on the merits, the hearing justice applied the two-part test employed by Rhode Island courts in granting a new trial based on newly discovered evidence, which is likewise used in the postconviction-relief setting.10 After applying this standard, the hearing justice determined that Brown fell far short of showing that the evidence he sought to admit constituted newly discovered evidence, citing to Brown's failure to file copies of the articles, the publication dates of the articles, and the inadmissibility of the articles absent an authenticating expert.

After determining that Brown was not entitled to postconviction relief based on his purported newly discovered evidence, the hearing justice likewise determined that Brown's statute-of-limitations argument set forth in his amended application was procedurally defective and without merit.11 The hearing justice determined that any postconviction-relief claim by Brown based on the expiration of the limitations period with respect to certain acts of child molestation alleged in the indictment was waived by his failure to have raised such an affirmative defense at the time of trial. The hearing justice further expounded that even if Brown had preserved his statute-of-limitations claim, he would not have succeeded on such a defense based on this Court's precedential holding in Edmond J. Brown v. State, 841 A.2d 1116 (R.I.2004), discussed infra. 12

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Lastly, the hearing justice considered and dismissed Brown's claim of unlawful incarceration, deeming Brown's interpretation of the pertinent parole statutes as fundamentally flawed and " contrary to the legislature's clear intent" in enacting § 13-8-10. Accordingly, the hearing justice denied and dismissed Brown's second application for postconviction relief in its entirety.

On July 22, 2004, Brown filed a notice of appeal in Superior Court. A final judgment reflecting the hearing justice's decision was entered on October 5, 2006.13 This Court docketed Brown's appeal on July 1, 2010, after the parties filed an agreed statement of facts on June 3, 2010.


Issues on Appeal

On appeal, Brown asserts several errors committed by the hearing justice in denying his second application for postconviction relief. These assertions may be considered as four distinct arguments: (1) the hearing justice denied Brown a full and fair hearing on his pro se application in contravention of his Sixth Amendment rights (Brown maintains that the hearing justice improperly prohibited him from presenting oral argument, submitting his alleged newly discovered evidence, and subpoenaing witnesses to testify on his behalf); (2) the hearing justice erroneously denied his claim of newly discovered evidence by classifying Brown's claim as waived and alternatively finding the claim to be without merit; (3) the hearing justice wrongly interpreted the language of § 13-8-10(a) in considering and denying Brown's unlawful-incarceration claim; and (4) the hearing justice mistakenly...

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