Torres v. State

• Decision Date: 19 May 2011
• Docket Number: No. 2009–347–Appeal.,2009–347–Appeal.
• Citation: 19 A.3d 71
• Parties: Jose TORRESv.STATE of Rhode Island.
• Court: Rhode Island Supreme Court

19 A.3d 71

Jose TORRES

v.STATE of Rhode Island.

No. 2009–347–Appeal.

Supreme Court of Rhode Island.

May 19, 2011.

James T. McCormick, Esq., Providence, for Applicant.Virginia M. McGinn, Department of Attorney General, for State.Present: SUTTELL, C.J., GOLDBERG, FLAHERTY, ROBINSON, and INDEGLIA, JJ.

OPINION

Justice INDEGLIA, for the Court.

The applicant, Jose Torres (applicant or Torres), appeals from the denial of his application for postconviction relief in Superior Court. On appeal, Torres argues that the grand jury indictment wrongly charged him with murder. Although he ultimately pled to a lesser charge of manslaughter, Torres contends that his conviction should be vacated because of what he contends was an inherently flawed indictment, which, he maintains, is a defect not waived by his plea. This case came before this Court for oral argument on March 29, 2011, pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not be decided summarily. After carefully considering the written and oral submissions of the parties, we conclude that this appeal may be resolved without further briefing or argument. For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.

IFacts and Travel

The underlying facts are not disputed.¹ On or about December 31, 2002, Gregory Lovenbury purchased heroin from Torres. Gregory Lovenbury then gave the heroin to his wife, Lisa Lovenbury, who died of an overdose on or about January 1, 2003. During the investigation of his wife's death, Gregory Lovenbury provided the police with information about Torres that assisted their procurement of a search warrant for Torres's home. After the execution of the warrant and the seizure of contraband from his residence, Torres was charged by District Court complaint “with possession with intent to deliver heroin” and was released on bail. In April 2003, Torres was arrested for other heroin crimes in Providence County.

While Torres was incarcerated as a bail violator, a grand jury investigated his involvement in Lisa Lovenbury's death. In November 2003, the grand jury returned a three-count indictment, docketed as K1/03–630A, that charged Torres with count 1, “possession of heroin with intent to deliver in violation of” G.L.1956 § 21–28–4.01(a)(2),² count 2, “murder” in violation of G.L.1956 § 11–23–1,³ and count 3, “unlawful delivery of a controlled substance, to wit, heroin to [Gregory Lovenbury] on or about December 31, [20]02 in violation of” § 21–28–4.01(a)(2). For the April 2003 heroin crimes, criminal information P2/03–2159A charged Torres with count 1, “possession with intent to deliver [heroin]” in violation of § 21–28–4.01(a)(2), and count 2, “possession of one ounce to one kilogram [of heroin] on or about April 19, 2003” in violation of § 21–28–4.01.1(a)(1).⁴

Torres proceeded to his trial date of June 24, 2004, but then began plea negotiations just before opening statements. With the assistance of his privately retained attorney and after the appropriate colloquy ⁵ with the trial justice, Torres pled guilty in K1/03–630A ⁶ to count 1, possession with the intent to deliver, and count 2, which as part of the plea negotiations, was amended from murder to manslaughter, a violation of § 11–23–3.⁷ On both counts, Torres received identical sentences of thirty years, with eleven years to serve and the remaining nineteen years suspended, with probation. The sentences were to run concurrently. The same day, Torres also pled guilty to both counts charged in P2/03–2159A and again received two identical sentences of thirty years, with eleven years to serve and the remaining nineteen years suspended, with probation. The P2/03–2159A sentences were to run concurrently with each other and with the sentences imposed in K1/03–630A.

On or about February 16, 2006, Torres, acting pro se, filed an application for postconviction relief in Kent County Superior Court, alleging newly discovered evidence, ineffective assistance of counsel, and that his guilty pleas to the amended charges were not knowing or intelligent. At Torres's request, an attorney was appointed to represent him on May 17, 2006. A supplemental memorandum was filed on his behalf on February 13, 2008, which focused on a single contention that the original indictment was flawed because it “failed to charge a crime.” Torres argued that he could not be charged with murder based on the uncontested facts. He maintained that possessing drugs with the intent to deliver or actually delivering drugs to Gregory Lovenbury, although crimes, could not form the predicate felony for the death (and thereby the resultant felony murder) of Lisa Lovenbury, to whom Torres undisputedly did not deliver drugs. Although Torres had entered a guilty plea to a lesser charge of manslaughter, and not murder, he argued that the waiver effect of the plea was circumvented because the original indictment failed to state a criminal offense, a defect that he contended was an unwaivable issue.

In its opposition, submitted on July 19, 2007, prior to the submission of Torres's supplemental memorandum, the state focused on the voluntariness of Torres's plea and the effectiveness of Torres's privately retained counsel in securing the plea bargain for Torres. The state repeatedly noted that the sentences Torres received in exchange for his plea (four concurrent sentences of thirty years, with eleven years to serve and nineteen years suspended, with probation) were in no way disproportionate to the charges he was facing. The state averred that the bargained-for sentences actually were a much more favorable outcome than the potential sentences Torres could have endured had he been found guilty of these offenses at trial: life in prison for the murder charge, thirty years to serve for each charge of possession of heroin with the intent to deliver, and fifty years to serve for the charge of possession of over an ounce of heroin.

On July 31, 2008, after the parties indicated that they would rest on their memoranda, the trial justice rendered his bench decision on Torres's application for postconviction relief. First, he articulated that an applicant bears the burden of proving by a preponderance of the evidence that the conviction or sentence violated the Constitution of the United States or the Constitution of the State of Rhode Island. He then summarized the crux of Torres's constitutional contention: “[T]he presence of this [allegedly] invalid or illegal [felony-murder] charge tainted the entire plea bargain process in both cases [P2/03–2159A and K1/03–630A] and [Torres] should now be entitled to withdraw his guilty plea, * * * and re-enter plea negotiations based on a dismissal * * * of the * * * felony murder charge.” The trial justice noted that Torres neither had moved to withdraw his guilty plea posttrial, nor had he filed a pretrial motion to dismiss the indictment.

Relying on Rhode Island caselaw, however, the trial justice found it unnecessary to address the constitutional question presented by Torres. He concluded that, regardless of an alleged defect in the original indictment, a plea waives any “prior [c]onstitutional infirmity” as long as defense counsel's advice to accept the plea was competent and effective, and the defendant voluntarily entered the plea. Applying this law to the instant matter, the trial justice examined the advice of Torres's trial counsel ⁸ based on the standard enunciated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). He explained that a defendant bears the burden of satisfying Strickland's two-part inquiry that: (1) “counsel's performance was deficient” and (2) “the deficient performance prejudiced the defense.” Id. The trial justice then assessed that Torres had not made the necessary Strickland showing because his attorney was not deficient when he wisely recommended taking the state's plea offer, a significantly less onerous outcome than the possible sentences Torres could have faced if convicted of the charged offenses. He further declined “to engage in * * * speculation or conjecture” that “the entire course of the plea negotiation would have proceeded differently and to [Torres's] benefit had the original charge of felony murder been dismissed or not been brought in the first place.” The trial justice nonetheless propounded arguendo that even if Torres's attorney had been ineffective when he advised him to plead guilty to the allegedly nonexistent crime of felony murder, Torres's argument was moot because Torres did not plead to felony murder; he pled to manslaughter. Torres, the trial justice observed, had not explained, on postconviction relief or at any other juncture, whether it was equally invalid for the state to charge him with manslaughter as it was to charge him with felony murder.

As for the legitimacy of the plea colloquy, the trial justice recalled that Torres's “plea was voluntarily and intelligently made,” and he further concluded that Torres “entered into [the plea] with knowledge of his rights as well as the consequences of his plea, [and] that there was a factual basis for his plea.” Given these dual findings with respect to the effective representation of the attorney who advised Torres to take the plea and the voluntariness of Torres's plea, the trial justice found “that * * * applicant * * * waived any argument as to the original indictment being defective in that [c]ount 2 [murder] failed to charge a crime” and similarly that Torres's “privately-retained defense counsel was in no way ineffective.” He accordingly denied Torres's application. Torres appealed the trial justice's decision the same day as it was rendered.⁹ Final judgment was entered on August 5, 2008.

IIStandard of Review

“[P]ost-conviction relief is available to a defendant convicted of a crime who contends that his original conviction or sentence violated rights that ...