Bolarinho v. State
| Decision Date | 20 June 2012 |
| Docket Number | C.A. PM-2011-3700 |
| Parties | ALFREDO BOLARINHO v. STATE OF RHODE ISLAND |
| Court | Rhode Island Superior Court |
DECISION
This matter is before the Court on Petitioner's Application for Post-Conviction Relief from a plea entered and sentence imposed on September 18, 1989, in a criminal action captioned State v. Alfredo A. Bolarinho, P2/89-1460A.1 In that case, Alfredo Bolarinho (Petitioner or Bolarinho) pled nolo contendere to one count of breaking and entering a dwelling with the intent to commit larceny, in violation of G.L. 1956 § 11-8-3, as amended (1981 Reenactment). Petitioner was sentenced to ten years at the ACI, all of which was suspended, and ten years probation, and was ordered to pay $1,973 in restitution, $100 to the indemnity fund, and $100 to the probation fund. Recently, the United States Immigration Court entered an order of removal against Petitioner. Petitioner now asserts that he was denied his right to effective assistance of counsel because his attorney failed to advise him of the immigration consequencesarising from his plea. For the reasons that follow, the State is entitled to judgment as a matter of law on Petitioner's Application.
The facts of the case as gleaned from the 1989 criminal information packet are as follows. On February 11, 1989, Providence police responded to the property of Frank Andreozzi (Andreozzi) for a report of a possible breaking and entering and theft of an electric mitre saw. Andreozzi's property, a one-story home, was under construction at the time of the incident. In the ensuing investigation, police obtained a description of the suspect and the license plate of the car used in the incident from Andreozzi's neighbor, Alice D'Alessio (D'Alessio), who claimed to have observed the suspect jumping two fences in the area of Andreozzi's home twice, just minutes apart. On the second time, D'Alessio observed the suspect carrying a circular saw, putting it in the rear of the car, and "tak[ing] off" in the car. Providence police traced the vehicle back to Petitioner and soon thereafter apprehended him in his apartment. Petitioner was advised of his rights and ultimately confessed to breaking into Andreozzi's home but denied stealing the saw. D'Alessio identified Petitioner in a police lineup conducted at the Providence police station.
Represented by a public defender, Petitioner, a Portuguese citizen who had been granted legal permanent resident status in the United States in 1979, entered a plea of nolo contendere. As was customary in 1989, the plea colloquy of record failed to address potential immigration consequences as a result of the plea. Moreover, the only evidence before this Court concerning counsel's advice on immigration consequences is set forthin Petitioner's Affidavit in which he states that his public defender "failed to advise [him] of the immigration consequences of [his] plea." The State does not dispute this assertion.
At the time of the plea, the criminal offense of breaking and entering a dwelling was not a deportable offense - it was neither an aggravated felony nor a crime involving moral turpitude as defined by federal law. In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which, inter alia, expanded the definition of "aggravated felony" to include a crime of violence for which the term of imprisonment is at least one year, see 8 U.S.C. § 1101(a)(43)(F), "crime of violence" being further defined as "the use, attempted use or threatened use of physical force against a person or property of another." 18 U.S.C. § 16. "Aggravated felony" was also expanded to include a theft offense or burglary offense for which the term of imprisonment is at least one year. 8 U.S.C. § 1101(a)(43)(G). Importantly, Congress expressly stated that the "term 'aggravated felony' applies regardless of whether the conviction was entered before, on or after September 30, 1996." 8 U.S.C. § 1101(a)(43). Any alien convicted of an aggravated felony at any time after admission to the United States is deportable. 8 U.S.C. § 1227(a)(2)(A)(iii). Thus, prior to 1996, a nonresident alien who was convicted of the charge of breaking and entering a dwelling pursuant to § 11-8-3 would not suffer any immigration consequences as a result of that conviction, but that offense became an automatic, non-discretionary deportable offense in 1996, regardless of when the conviction was entered. See 8 U.S.C. § 1101(a)(43); 8 U.S.C. § 1227(a)(2)(A)(iii).
By a Notice to Appear dated February 4, 2009, Petitioner was advised by the Immigration and Naturalization Service (INS) that, as an "arriving alien" from Portugalto Boston's Logan International Airport on January 6, 2009,2 he was subject to removal based upon his 1989 conviction for breaking and entering.3 (Petitioner's Memo, Ex. 4.) A hearing before the Immigration Court was conducted and the Court issued an oral decision on July 12, 2011, ordering Petitioner's removal and further denying Bolarinho's application for cancellation of removal under the Immigration and Nationality Act (INA) § 240A(a)4 and application for waiver under INA §§ 212c and 212h.5 (Petitioner's Memo, Exs. 2-3.)
Petitioner filed this Application for Post-Conviction Relief to vacate his 1989 plea based upon ineffective assistance of counsel, specifically alleging that his public defender at the time failed to advise him of the plea's potential immigration consequences. The State responded to Petitioner's Application and the parties briefed the issues before the Court. In a hearing on February 8, 2012, the parties agreed that the proceeding would be treated as the State's Motion for Summary Judgment.
When a defendant has entered a plea of nolo contendere and sentence has been imposed, "any issue relating to the validity of the plea must be raised by way of post-conviction relief." State v. Vashey, 912 A.2d 416, 418 (R.I. 2006); see also G.L. 1956 §10-9.1-1, et seq. It is the applicant's burden to prove by a preponderance of the evidence that he or she is entitled to post-conviction relief. Burke v. State, 925 A.2d 890, 893 (R.I. 2007). Section 10-9.1-6(c) of the Rhode Island General Laws permits the Court to "grant a motion by either party for summary disposition of the application when it appears from the pleadings, depositions, answers to interrogatories, and admissions of fact, together with any affidavits submitted, that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." The Rhode Island Supreme Court has recognized that these standards are the same as those used in passing on a summary judgment motion under Rule 56. Palmigiano v. State, 120 R.I. 402, 206, 387 A.2d 1382, 1385 (R.I. 1978). In opposing a motion for summary judgment, the nonmoving party "has the burden of proving by competent evidence the existence of a disputed issue of material fact and cannot rest upon mere allegations or denials in the pleadings, mere conclusions or mere legal opinions." D'Allesandro v. Tarro, 842 A.2d 1063, 1065 (R.I. 2004). The Court must consider the affidavits and pleadings in the light most favorable to the nonmoving party, here, the Petitioner. See Casador v. First Nat'l Stores, Inc., 478 A.2d 191, 194 (R.I. 1984).
In reviewing claims of ineffective assistance of counsel, Rhode Island courts adhere to the standard announced by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, when confronted with a claim thata criminal defendant received ineffective assistance of counsel, the Court must conduct a two-part test. Id. at 687. First, the defendant must show that counsel's performance was deficient, which requires a showing that counsel made errors so serious that counsel was not functioning as 'counsel' guaranteed the defendant by the Sixth Amendment. Id. A defendant must demonstrate that counsel's advice was not within the range of competence demanded of attorneys in criminal cases, and counsel's performance must be assessed in view of the totality of the circumstances. Id. at 695. There is a strong presumption that counsel's conduct falls within the permissible range of assistance. Hazard v. State, 968 A.2d 886, 892 (R.I. 2009) (quoting Strickland, 466 U.S. at 689). Moreover, "[a] court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Strickland, 466 U.S. at 690 (emphasis added).
The second prong of the Strickland test requires that the defendant show that counsel's deficient performance prejudiced the defendant. Id. at 687. The Rhode Island Supreme Court has further stated that when evaluating a claim for ineffective assistance of counsel in a plea situation, the defendant must demonstrate a reasonable probability that, but for counsel's errors, he or she would not have pleaded guilty or nolo contendere, would have insisted on going to trial, and, importantly, that the outcome of the trial would have been different. Neufville v. State, 13 A.3d 607, 610 (R.I. 2011).
In recent years, legal advice concerning immigration consequences has become a familiar ground for ineffective assistance of counsel claims in the context of post-conviction relief petitions. The Rhode Island Supreme Court's decision in Neufville addressed this very issue, citing the momentous 2010 opinion from the United StatesSupreme Court in Padilla v. Kentucky, 130 S.Ct. 1473 (2010). In Padilla, the Supreme Court commented on the changes to the landscape of federal immigration law over a 90-year span and ultimately held that criminal defense attorneys are responsible for affirmatively providing at least some immigration advice to non-citizen clients....
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