Candelario v. State
| Decision Date | 03 December 2012 |
| Docket Number | C.A. No.: PM-2010-6205 |
| Parties | HECTOR CANDELARIO v. STATE OF RHODE ISLAND |
| Court | Rhode Island Superior Court |
DECISION
This matter is before this Court on the parties' cross-motions for summary judgment with respect to Petitioner's Amended Application (Fourth) for Post-Conviction Relief. In this action, Petitioner Hector Candelario alleges ineffective assistance of counsel and seeks to vacate his 2008 plea to a misdemeanor drug charge of frequenting a narcotics nuisance in an effort to regain entry to the United States following his deportation in 2009. He argues that his former counsel failed to advise him of the immigration consequences of the plea. He claims further that a hearing justice of this Court violated Rule 11 of the Rhode Island Superior Court Rules of Criminal Procedure by taking his plea without first determining that Petitioner understood the nature of the charge and the consequences of the plea.
For the reasons set forth in this Decision, this Court grants the State's motion for summary judgment and denies Petitioner's motion for summary judgment. As such,judgment shall enter in favor of the State as to Petitioner's Amended Application (Fourth) for Post-Conviction Relief.
Petitioner Hector Candelario is a native of the Dominican Republic and was a long-time permanent resident of the United States. On May 23, 1980, Petitioner was convicted of first degree robbery in New York and sentenced to a term of imprisonment of six to eighteen years. See Pet'r's Ex. List in Supp. of Appl. for Post-Conviction Relief, filed Dec. 6, 2010, Ex. 6, Decision of Board of Immigration Appeals, at 2 n.2. On September 11, 2000, in a case unrelated to the case at bar, Petitioner pled nolo contendere to a charge of unlawful possession of cocaine in the Rhode Island Superior Court and received a sentence of two years probation. See State v. Candelario, C.A. No. P2 00-1183B (R.I. Super. 2000). On March, 19, 2004, a hearing justice of this Court granted the Petitioner post-conviction relief and vacated this plea and sentence. See id. (Clerk's Note dated March 19, 2004; Viera v. State, C.A. No. PM 04-0802 (R.I. Super. 2004) (Petitioner's Application for Post-Conviction Relief) (Order dated March 19, 2004).
On June 17, 2005, the State filed a criminal information in another drug case, charging the Petitioner with one count of unlawful possession of cocaine in violation of R.I. Gen Laws § 21-28-4.01(c)(2)(6). See State v. Candelario, C.A. No. P2-05-1796A (R.I. Super. 2005). Attorney Donna Uhlmann entered her appearance for Petitioner, on June 29, 2005, at the time of his arraignment on this charge. See id. (Entry of Appearance dated June 29, 2005). She continued to represent him actively in the case until at least December 12, 2007 when, for unknown reasons, Attorney Terry McEnaneyentered his appearance for Petitioner "for warrant presentment only." Id. (Entry of Appearance dated December 12, 2007).
A few weeks later, the State agreed to amend the charge to one of frequenting a narcotics nuisance, in violation of § 21-28-4.06, in exchange for Petitioner's plea of nolo contendere to the amended charge.1 Petitioner entered a plea of nolo contendere to the reduced charge on January 22, 2008 and received a sentence of 364 days probation. See State's Supp. Mem. Ex. 1, Plea Form. Notwithstanding his previous limited entry of appearance, and even though Attorney Uhlmann never withdrew as counsel of record for Petitioner in the case, Attorney McEnaney apparently acted as counsel for Petitioner at the time of his plea, as evidenced by his signature, as counsel, on the plea form and the references to him as counsel in the transcript of the plea colloquy. Id.; see State's Supp. Mem. Ex. 1, Plea Form; Pet'r's Supp. Mem. for Summ. J., Ex. 1, Tr. of Plea Colloquy dated Jan. 22, 2008. The record is confusing in this regard, however, because the Clerk's Note, from the date of the plea as well as the Judgment and Disposition enteredthereafter, both record Attorney Thomas Connors as acting as Petitioner's counsel at the time of his plea. See State v. Candelario, C.A. No. P2-05-1796 (R.I. Super. 2005) (Clerk's Note dated Jan. 22, 2008; Judgment and Disposition dated Feb. 13, 2008). It is this plea that is at issue here and that Petitioner claims was the product of a violation of Rule 11 and ineffective assistance of counsel.2
On January 22, 2008, prior to entering into his plea, Petitioner and his attorney signed the standard plea form that this Court used at that time. Id. The plea form was written in English. Id. It contained spaces at the top of the form where defense counsel traditionally lists the charge and the maximum possible punishment for that charge. Id. The plea form signed by the Petitioner and his attorney contained a handwritten description of the charge, presumably written by counsel, that states with a maximum penalty of "3 years ACI." Id. The plea form then described the nature of a plea of nolo contendere and delineated the rights that Petitioner would be giving up in entering into the plea:
Id. The plea form continued with check marks next to each of these listed rights, which are customarily made by defendants or their attorneys to indicate that the defendant has read, understood and voluntarily waived each of his or her rights after reviewing the plea form with counsel. Id.
The sentence portion of the plea form, again presumably handwritten on the plea form by counsel, stated: "Amended to Frequenting a Narcotics Nuisance. 364 days probation." Id. Preceding this sentence note, the plea form contained the following language:
No promises have been made to me by my Attorney, the State's Attorney, or the Court, other than the fact the Court has agreed to impose the following sentence in addition to whatever money costs are imposed by law. . . .
Id. Following the sentence note, the plea form stated:
The plea form also contained an immigration warning, which read:
I understand that if I am a resident alien, a sentence imposed as a result of my plea may result in deportation, exclusion of admission to the United States, and/or denial of naturalization pursuant to the laws of the United States, and that this Court will have no control over those proceedings.
Id. The plea form concluded with an affidavit by which the defendant, by signing, acknowledged that he had read, understood and voluntarily signed the plea form. The affidavit portion of the plea form stated, in pertinent part, as follows:
I also understand that this conviction will result in the loss of my right to vote only if I am incarcerated and for as long as I am incarcerated, and that my voting rights will be restored upon my release. . . . I have discussed the entire contents of this form with my Attorney, who has explained it to me. I have no questions as to what it states or what it means, and I understand it completely. I swear to the truth of the above.
Id. (emphasis removed).
After Petitioner and his attorney signed the plea form, a hearing justice of this Court proceeded to take the plea. The following plea colloquy occurred between the Court and Petitioner and his attorney on January 22, 2008:
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