State v. Frazar

• Decision Date: 28 May 2003
• Docket Number: No. 2002-192-C.A.,2002-192-C.A.
• Citation: 822 A.2d 931
• Parties: STATE v. Ronnie FRAZAR.
• Court: Rhode Island Supreme Court

822 A.2d 931

STATE v. Ronnie FRAZAR.

No. 2002-192-C.A.

Supreme Court of Rhode Island.

May 28, 2003.

Present: WILLIAMS, C.J., FLANDERS, GOLDBERG, J.J., WEISBERGER, C.J. (Ret.), and SHEA, J. (Ret.).

Aaron L. Weisman, Providence, for Plaintiff.

Michael J. Gardiner, Warwick, for Defendant.

OPINION

PER CURIAM.

This appeal from the denial of an application for post-conviction relief came before the Court for oral argument on March 11, 2003, pursuant to an order directing the parties to appear and show cause why the issues raised by this appeal should not summarily be decided. After hearing the arguments of counsel and examining the memoranda filed by the parties, we are of the opinion that cause has not been shown and that the case should be decided at this time.

The applicant, Ronnie Frazar (Frazar or applicant), appeals from the denial of his application for post-conviction relief following the entry of his plea agreement.¹ He asserts that the plea was not entered into voluntarily and that the trial justice violated Rule 11 of the Superior Court Rules of Criminal Procedure by failing to conduct sufficient inquiry to determine whether he understood the implications of his plea. He additionally contends that the trial justice erred in later finding that his plea had been entered both intelligently and voluntarily and that he was fully aware of the consequences of his plea.

On June 11, 1999, Frazar allegedly assaulted his sister-in-law when he pointed a gun to her head. On October 26, 1999, Frazar's two attorneys presented his signed plea agreement to a Superior Court trial justice.² Frazar, through a Spanish interpreter, admitted in open court that he had signed the plea agreement. The interpreter told the trial justice that she had translated the agreement to Frazar and that he appeared to understand its contents. The following colloquy then took place through the interpreter:

"THE COURT: Mr. Frazar, on or about June 11th of this year did you possess a firearm — handgun?

"THE DEFENDANT: Yes.

"THE COURT: Did you have a license for possessing that handgun?

"THE DEFENDANT: What do I have to answer?

"THE COURT: I didn't hear you.

"THE DEFENDANT: Why do I have to answer?

"THE COURT: Because I asked you.

"THE DEFENDANT: No.

"THE COURT: Did you also assault Lisa Pagan with that handgun?

"THE DEFENDANT: I didn't hurt her. I didn't hurt her.

"THE COURT: I understand that, but did you point it at her?

"THE DEFENDANT: Yes.

"THE COURT: You have a right to trial on those charges. You would be presumed innocent at the trial. You would not have to testify or present evidence. The State would have been required to prove your guilt beyond a reasonable doubt. You would not have had to testify or present evidence. You would have had a right to confront and cross-examine the State's witnesses. If convicted, you could have appealed your conviction to the Supreme Court. If I accept your change of plea those rights and appellate rights disappear; they're waived. You can't withdraw your plea once I have accepted it without permission of the Court. Do you understand all of that?

"THE DEFENDANT: Yes.

"THE COURT: Has anybody forced or coerced you to plead guilty to these two charges?

"THE DEFENDANT: No.

"THE COURT: The plea will be accepted * * *.

"* * *

"THE COURT: Mr. Frazar, are you a United States citizen, or a resident alien?

"THE DEFENDANT: No.

"THE COURT: I tell you Mr. Frazar, I have no idea what immigration authorities may have to say about your situation in the United States. I have no jurisdiction in that regard. You understand that?

"THE DEFENDANT: Yes."

A few weeks later, Frazar was arrested and deported by immigration authorities. When he later attempted to reenter the United States, he was arrested, charged, and convicted in a federal court for illegal reentry.³ On October 4, 2000, Frazar filed a motion for a writ of coram nobis⁴ and an application for post-conviction relief.

In his memoranda to the Superior Court, Frazar maintained that he did not intelligently and voluntary enter his plea agreement and he suggested that this was attributable to ineffectiveassistance of counsel. On December 6, 2000, the trial justice summarily dismissed the application without a hearing. Frazar appealed to this Court and we remanded the case for a hearing on his post-conviction relief application. See State v. Frazar, 776 A.2d 1063 (R.I.2001) (Mem.).

On January 29 and 30, 2002, the trial justice conducted the hearing. Frazar and his wife, Maria Frazar, testified on Frazar's behalf,⁵ while the two attorneys who formerly represented Frazar testified on behalf of the state. At the conclusion of the two-day hearing, the trial justice rendered his decision. He completely rejected the Frazars' testimony as incredible. Instead, he accepted as credible the testimony from the attorneys. He determined that Frazar knew and understood the consequences of the plea agreement, that the plea had not been coerced and "that the defendant's attorneys' efforts served the defendant well and that they represented him effectively." The trial justice then denied Frazar's application for post-conviction relief and remanded him to federal custody.

On appeal Frazar asserts that he received ineffective assistance of counsel and did not make a knowing and intelligent waiver of his constitutional rights in pleading guilty to the assault and weapon possession charges. He contends that the trial justice erred in failing to ask him personally whether he understood the implications of his plea and in failing to determine whether his plea was voluntary. He additionally contends that the trial justice erred when he elicited incriminating statements from him before establishing whether the plea was intelligent and voluntary. Finally, Frazar maintains that the trial justice erred in later finding his plea agreement to be both intelligently and voluntarily given and that he was fully aware of the consequences of his plea.

This Court has noted previously that in Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274, 279 (1969), "the United States Supreme Court held that it was impermissible to presume a waiver of constitutional rights by a criminal defendant if the record was silent in regard to the voluntariness of the plea." Ouimette v. State, 785 A.2d 1132, 1136 (R.I.2001). That is because "[r]ecord proof of an intelligent and understanding waiver of a defendant's rights was required in order to protect the constitutional guarantees against compulsory self-incrimination, the right to a jury trial and the right to confront one's accusers." Id. Pleas entered after the holding in Boykin "will be vacated unless the record shows that the court has conducted an on-the-record examination of the defendant before accepting [the] plea [in order] to determine if the plea is being made voluntarily with an understanding of the nature of the charge and the consequences of the plea." Id. (quoting Flint v. Sharkey, 107 R.I. 530, 537, 268 A.2d 714, 719 (1970)). Thus, a trial court "should engage in as extensive an interchange as necessary so that `the record as a whole and the circumstances in their totality' will disclose to a court reviewing a guilty or nolo plea that the defendant understood the nature of the charge and the consequences of the plea." State v. Feng, 421 A.2d 1258, 1267 (R.I.1980) (quoting State v. Williams, 122 R.I. 32, 42, 404 A.2d 814, 820 (1979)).

In 1972, our Rule 11 was adopted to formalize the requirements of due process under the Fourteenth Amendment as reflected by the holding in Boykin. Rule 11 provides:

"A defendant may plead not guilty, guilty or, with the consent of the court, nolo contendere. The court may refuse to accept a plea of guilty, and shall not accept such plea or a plea of nolo contendere without first addressing the defendant personally and determining that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea. * * * The court shall not enter a judgment upon a plea of guilty or nolo contendere unless it is satisfied that there is a factual basis for the plea."

"Where a plea has been accepted without conforming to the requirements of the rule, the...