Charette v. State, PM 2010-2195
| Court | Superior Court of Rhode Island |
| Writing for the Court | CARNES |
| Parties | MICHAEL P. CHARETTE v. STATE OF RHODE ISLAND |
| Docket Number | PM 2010-2195 |
| Decision Date | 09 April 2012 |
MICHAEL P. CHARETTE
v.
STATE OF RHODE ISLAND
PM 2010-2195
STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS PROVIDENCE, SC. SUPERIOR COURT
Filed: April 9, 2012
CARNES, J. Before this Court is the application of Michael P. Charette ("Charette" or "Petitioner") for post-conviction relief. Charette was convicted and sentenced in P1-1992-1980A.1 Charette now seeks post-conviction relief pursuant to G.L. 1956 § 109.1-1. The State of Rhode Island ("State") objects to and moves to dismiss Petitioner's application.
On May 27, 1993, a Superior Court jury convicted Charette of robbery, burglary, assault on a person sixty (60) years of age or older causing bodily injury, and assault with intent to commit robbery. The trial justice originally sentenced Charette to fifty (50) years to serve on each of the robbery and the burglary counts, five (5) years to serve on the assault on a person sixty (60) years of age or older causing bodily injury count, and twenty (20) years to serve on the assault with intent to commit robbery count. The trial justice further ruled that each of the sentences would run consecutively and not concurrently for a total of one hundred twenty-five (125) years.
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The defendant subsequently appealed, and his convictions were affirmed by the Rhode Island Supreme Court on January 21, 1997. State v. Charette, 688 A.2d 1286 (R.I. 1997). The Supreme Court initially declined to rule on Charette's appeal that his sentence was manifestly excessive on the grounds that it was premature.2 On May 9, 1997, a different justice of the Superior Court heard Charette's motion to reduce his sentence and rendered a written decision which upheld the sentence of fifty (50) years imposed on the robbery conviction in Count I, but reduced the sentence imposed for the burglary conviction on Count III from the original imposition of fifty (50) years consecutive, to a reduced sentence of twenty (20) years to run concurrently and not consecutively to that imposed on Count I. The hearing justice further reduced the sentences imposed for the assault on a person sixty (60) years of age or older causing bodily injury in Count IV, and for assault with intent to commit robbery in Count VII by ruling that each sentence would run concurrent with and not consecutive to the sentences imposed on Counts I and III.
Petitioner gained release on parole at one time but after parole was revoked for an infraction. He filed a subsequent motion to further reduce his sentence that was denied and thereafter, on July 21, 2010, Petitioner filed a pro-se Application for Post-Conviction Relief. After receiving Petitioner's first motion to amend, counsel was appointed to represent Petitioner on February 28, 2011.
Petitioner and his counsel moved to amend the pending Application for Post-Conviction Relief in open court on November 18, 2011. Both counsel and Petitioner agreed that the amendment was embodied in the claims set forth in Petitioner's
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"Memorandum in Support of Michael Charette's Post Conviction Application" filed with the Court on October 31, 2011 ("Petitioner's Memo"). The State did not object to the amendment and the Court allowed the amendment.
Pursuant to his amended application, the Petitioner alleges that he was denied his right to effective assistance of counsel. Specifically, Petitioner alleges (1) that said ineffective assistance of trial counsel, in failing to move to dismiss that charge of assault with intent to rob at the close of the State's case, caused him to be unlawfully convicted of assault with intent to rob (Count VII) because said count was a lesser included offense of the robbery count, thus violating his right to be free from double jeopardy. (Petitioner's Memo at 2). Petitioner also alleges (2) that his trial counsel's failure to move for dismissal of the robbery and burglary counts (Counts I and III) at the close of the State's case caused him to be unlawfully convicted of each of those counts as well. Id. Petitioner argues that he should not have been convicted of the robbery because there was no evidence at trial that he took the victim's property from her person or her presence. Id. at 4. Petitioner further argues (3) that he should not have been convicted of the burglary count because the burglary count was "derivative of" the robbery count and there was no evidence that he broke into and entered the victim's home with the intent to commit a felony. Id. at 5.
Charette alleges that the convictions and sentences were imposed in violation of his right to effective assistance of counsel guaranteed by the Sixth Amendment of the United States Constitution and Article 1, Section 10 of the Rhode Island Constitution.
In its objection to Charette's claims, the State filed two different memorandums. The State filed a document simply entitled "Memorandum" on February 3, 2011. ("State
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Memo Feb 3, 2011"). The State also filed an "Objection to Charette's Post Conviction Relief Application" on November 18, 2011. ("State Objection filed November 18, 2011 ").
The State initially responded that notwithstanding any of Charette's technical arguments, he would be unable to demonstrate that he was prejudiced as a result of his alleged lack of effective counsel as required by Strickland v. Washington, 466 U.S. 688, 104 S. Ct. 2052 (1984).3 The State argues that since Charette subsequently received a reduced sentence where all counts would run concurrently instead of consecutively, he could not show the requisite prejudice. (State Memo Feb 3, 2011 at 3).
The State also maintained that Charette's argument that the assault with intent to rob charge was merged into the robbery charge had been raised on appeal by appellate counsel and the Rhode Island Supreme Court had ruled that the argument was required to be raised pretrial and therefore it was deemed waived. Id. at 5. The State further maintained that under the test described in Blockburger v. U.S., 284 U.S. 209, 304 (1932), the robbery statute contained elements not contained in statute related to the charge of assault with intent to rob and therefore the offenses were distinct. See State Objection filed November 18, 2011 at 1-2.
The State further maintained that Charette's argument that he did not commit robbery because the pocketbook taken from the victim was not taken from her person or her presence was "semantic" (sic) and actually allows Charette to benefit from his assault on the victim by knocking her to the ground on the first floor and then running upstairs to take her pocketbook from the second floor of her house. The State maintains that such an
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argument defies logic, and in a subsequent memo, the State provided several cases in support of its argument that the pocketbook was still taken from the presence of the victim. See State Objection filed November 18, 2011 at 3.
Finally, the State challenges Charette's argument that he should not be convicted of the burglary count because it is derivative of the robbery count, and the victim's property was not taken from her presence by maintaining that even if the Court were to agree to that premise, Charette was still found guilty of the felony count of assault on a person sixty (60) years of age or older causing bodily injury count and therefore the requisite elements of the burglary charge have been proven. Id. at 4.
Under the Rhode Island Post-Conviction Relief Act, a person who has been convicted or sentenced for a crime and who claims that "the conviction or the sentence was in violation of the constitution of the United States or the constitution or laws of this state" may institute an action for post-conviction relief. R.I. Gen. Laws § 10-9.1-1(a)(1). The burden is on the Petitioner to prove, by a preponderance of the evidence, the alleged instance or instances of ineffective assistance of counsel. Page v. State, 995 A.2d 934, 942 (R.I. 2010); Hazard v. State, 968 A.2d 886, 891-92 (R.I. 2009); Bleau v. State, 968 A.2d 276, 278 (R.I.2009); Brown v. State, 964 A.2d 516, 526 (R.I.2009); Palmigiano v. Mullen, 119 R.I. 363, 374, 377 A.2d 242, 248 (1977). The Rhode Island Supreme Court has held that the appropriate procedure for asserting a Sixth Amendment challenge to the competency of counsel is not by direct appeal but rather by filing a petition for post-conviction relief under the Act. State v. Gibbons, 418 A. 2d 830, 839 (R.I. 1980); State
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v. Freitas, 121 R.I. 412, 416-17, 399 A.2d 1217, 1219 (1979).
In reviewing a claim of ineffective assistance of counsel, our Supreme Court has stated that the "benchmark issue is whether 'counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.'" Bustamante v. Wall, 866 A.2d 516, 522 (R.I. 2005) (citing Toole v. State, 748 A.2d 806, 809 (R.I. 2000) (quoting Tarvis v. Moran, 551 A.2d 699, 700 (R.I.1988))). Indeed, the Court should reject a claim of ineffective assistance of counsel "unless the attorney's representation [was] so lacking that the trial became a farce and a mockery of justice. . . ." Pelletier v....
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