Brown v. State

• Decision Date: 03 March 2004
• Docket Number: No. 2002-393-M.P.,2002-393-M.P.
• Citation: 841 A.2d 1116
• Parties: Edmond J. BROWN v. STATE of Rhode Island.
• Court: Rhode Island Supreme Court

841 A.2d 1116

Edmond J. BROWN v. STATE of Rhode Island.

No. 2002-393-M.P.

Supreme Court of Rhode Island.

March 3, 2004.

Joseph F. Hook, Middletown, for Plaintiff.

Virginia M. McGinn, Providence, for Defendant.

Present: WILLIAMS, C.J., FLANDERS, GOLDBERG, FLAHERTY, and SUTTELL, JJ.

OPINION

PER CURIAM.

We review here on certiorari the denial of Edmond J. Brown's (Brown or applicant) application for post-conviction relief. Discerning no merit in any of the arguments he raises, we affirm the Superior Court judgment denying this petition.

Convicted of multiple counts of sexual assault and child molestation committed against his stepdaughter,¹ Brown appealed to this Court, which vacated the convictions on appeal and remanded for a new trial. See State v. Brown, 574 A.2d 745, 749 (R.I.1990)

. After a retrial, however, the Superior Court convicted applicant again on all eight counts. This time, the Court affirmed the convictions on appeal in State v. Brown, 619 A.2d 828, 833 (R.I. 1993).

More than four years later, on September 26, 1997, applicant's counsel filed a ninety-three count application for post-conviction relief on his behalf. Before the court heard the application, however, she withdrew from representing applicant. The court then appointed another attorney, who entered his appearance on May 29, 1998. On May 19, 1999, that attorney filed a forty-page memorandum in which he concluded that there was no basis for granting the relief requested by his client, and he recommended that Brown's application for post-conviction relief be denied and dismissed with prejudice.

At a hearing held in May 1999, the attorney first reviewed with the hearing justice his reasons for suggesting that post-conviction relief was unwarranted. He specifically mentioned his belief that applicant's trial counsel was "competent and very well prepared" and that applicant "had a full and fair trial." Furthermore, he asserted that there was "no newly-discovered evidence that I'm aware of." The hearing justice then permitted Brown to speak. She granted Brown's motion to dismiss his attorney but denied his motion to strike the attorney's no-merit memorandum. At the conclusion of the hearing, she denied the application for post-conviction relief. Brown, acting pro se, filed a notice of appeal, which he did not pursue, and a motion for reconsideration.

At the hearing on Brown's motion for reconsideration, the court gave him a full opportunity to argue for the granting of post-conviction relief. He took issue with his attorney's failure to pursue claims that his first attorney originally asserted, and he then recited, in some detail, all the specific alleged errors and deficiencies that, in his opinion, constituted grounds for relief.

At the conclusion of the hearing on the motion for reconsideration, the hearing justice — who also had presided as the trial justice — accepted for purposes of the application that the applicant would be able to establish his factual assertions. She concluded, however, that most of what he complained about amounted to challenging the strategic decisions and tactics of his trial attorney. She stated that Brown's trial attorney "struck a balance and what he did seems within the scope of the kind of trial strategy choices that any defense attorney would make." She continued: "I cannot say that his trial strategy was clearly wrong, was misguided or was mistaken. You're entitled to a good defense and a fair defense, but not a perfect defense. And the mere fact that the defense doesn't work doesn't necessarily mean he's ineffective." Consequently, the hearing justice denied the motion for reconsideration.

The applicant then filed numerous other motions in Superior Court, including, for example, a motion for appointment of new counsel and a motion to vacate a decision denying bail. He also filed an in forma pauperis motion to have the transcripts of the hearing provided to him. The court granted that latter motion.

In a separate but related development, on September 23, 1999, he filed a petition for writ of mandamus and for a writ of habeas corpus with this Court, which we denied in an order dated February 11, 2000. In that same order, this Court appointed yet another attorney "to represent [applicant] in the further prosecution of his appeal from the denial of his application for post-conviction relief." He took no appeal, however, from the denial of his application for post-conviction relief at that time. In fact, Brown never appealed to this Court from the judgment denying his application for post-conviction relief. Also, he failed to transmit the record of the post-conviction relief proceedings to this Court in accordance with Article I, Rule 11 of the Supreme Court Rules of Appellate Procedure.

On October 20, 2000, we entered an order granting the applicant's motion for appointment of yet another new counsel and we named another attorney to replace his previous counsel "to represent the [applicant] in the further prosecution of his appeal." All of these motions and orders continued to be filed under the docket number for the case involving mandamus and habeas corpus. On August 23, 2001, Brown's new attorney filed a "Petition to Overturn Conviction or to Remand to Superior Court." The state objected, arguing inter alia, that the matter was not properly before this Court because Brown had "filed a miscellaneous petition through his second appointed attorney, under a Supreme Court file number reportedly no longer extant, asking this Court either to `overturn' his conviction for first-degree sexual assault or to remand his post-conviction case for further proceedings."

This Court, at a session in conference, considered and denied applicant's "Petition to Overturn Conviction or to Remand." We noted that the issues raised in the petition could have been raised on direct appeal from the denial of his post-conviction relief application. Because applicant failed to perfect his appeal, however, and because the rules of procedure do not provide for review based on a "petition to overturn a conviction," we concluded that we could not consider the issues Brown had attempted to raise. As a result, the Court denied the petition, but it did so without prejudice to the filing by Brown of a petition toy a writ, of certiorari.

The applicant then filed this petition for a writ of certiorari on July 1, 2002. On July 11, 2002, we appointed yet another attorney to represent him. On December 12, 2002, we granted the petition and issued the writ. We also ordered the case to proceed in accordance with Article I, Rule 12A of the Supreme Court Rules of Appellate Procedure and assigned it to the show-cause calendar.

The applicant argues that: (1) his conviction should be overturned; (2) his application for post-conviction relief should not have been denied; and (3) he was deprived of his Sixth Amendment right to effective assistance of counsel at trial.

With respect to the first issue, the applicant contends that the former three-year statute of limitations for child molestation expired before he was indicted with respect to the acts alleged in counts 1 through 6. He argues that the statutory amendment to G.L. 1956 § 12-12-17 (P.L. 1985, ch. 195, § 1), which eliminated the three-year statute of limitations for such cases, became effective on June 25, 1985, and cannot be applied retroactively to the offenses with which he was charged. Moreover, he asserts that counts 7 and 8 of the indictment contained allegations that occurred partially within the statute of limitations and partially outside the statute of limitations. Contending that it is impossible to determine whether the jury convicted him on those counts for conduct that occurred before or after the statute of limitations had expired, he maintains that his conviction should be overturned. He also insists that "the prosecution of him for offenses that occurred outside the scope of the applicable statute of limitations, was an ex post facto prosecution, and illegal," and argues that the trial justice improperly instructed the jury.

With respect to the second issue, Brown argues that the hearing justice should not have denied his application for post-conviction relief based on a no-merit memorandum filed by his court-appointed attorney. He argues that the trial justice failed to follow the procedure outlined by this court in Shatney v. State, 755 A.2d 130 (R.I. 2000) (per curiam). Had the hearing justice followed those procedures and reached the merits of Brown's claim, he insists, the hearing justice probably would have granted his application for post-conviction relief. He also posits that the hearing justice would have granted post-conviction relief based on the ineffectiveness of his counsel and the alleged prosecutorial misconduct.

Finally, concerning the third issue, the applicant suggests that he was deprived of his Sixth Amendment right to counsel. He initially argues that his trial counsel was ineffective because he failed to raise the statute of limitations defense and failed to move to dismiss the indictment on that ground. In addition, his counsel failed to raise any ex-post-facto argument as a defense. Finally, he also avers that his trial counsel failed to cross-examine the complaining witness effectively and failed to request proper jury instructions.

After reviewing the parties' written and oral submissions, we are of the opinion that cause has not been shown why we should not decide this case summarily. Thus, we proceed to do so at this time.

Unfortunately, Brown appears to misunderstand the nature and posture of this proceeding, as he apparently did in filing his "petition to overturn his conviction." His first claim asks us to overturn his conviction and release him from jail, or grant him a new trial because the sexual assaults and molestation crimes that led to his convictions allegedly occurred outside the applicable statute of limitations....