                                                     Supreme Court

                                                     No. 2017-351-Appeal.
                                                     (PM 12-128)


 Adless Desamours                 :

          v.                      :

State of Rhode Island.            :




    NOTICE: This opinion is subject to formal revision before
    publication in the Rhode Island Reporter. Readers are requested to
    notify the Opinion Analyst, Supreme Court of Rhode Island,
    250 Benefit Street, Providence, Rhode Island 02903, at (401) 222-
    3258 of any typographical or other formal errors in order that
    corrections may be made before the opinion is published.
                                                                  Supreme Court

                                                                  No. 2017-351-Appeal.
                                                                  (PM 12-128)


            Adless Desamours                  :

                     v.                       :

          State of Rhode Island.              :


              Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

                                          OPINION

       Justice Goldberg, for the Court. Adless Desamours (applicant) appeals from the denial

of his application for postconviction relief in Providence County Superior Court.1 This case

came before the Supreme Court on March 28, 2019, pursuant to an order directing the parties to

appear and show cause why the issues raised in this appeal should not be summarily decided.

After hearing the arguments of counsel and reviewing the memoranda of the parties, we are

satisfied that cause has not been shown. Accordingly, for the reasons set forth herein, we affirm

the judgment of the Superior Court.

                                        Facts and Travel

       On September 15, 1999, at approximately 5 p.m., applicant was arrested by Providence

police officers in Roger Williams Park in Providence, Rhode Island. The applicant was charged

by way of criminal information with one count of possession of a controlled substance, cocaine,

in violation of G.L. 1956 § 21-28-4.01(C)(1)(a), and one count of obstructing a police officer, in


1
 In 2015, G.L. 1956 § 10-9.1-9 was amended to require that an aggrieved party file a petition for
writ of certiorari to review the denial of an application for postconviction relief. See P.L. 2015,
ch. 91, § 1; P.L. 2015, ch. 92, § 1. Because applicant’s notice of appeal was filed on April 23,
2012, before this amendment took effect, his appeal is proper.


                                               -1-
violation of G.L. 1956 § 11-32-1. The facts leading up to applicant’s arrest and subsequent plea

of nolo contendere are in dispute.

       According to the criminal information and the accompanying documents, on September

15, 1999, Officer Shawn Kennedy (Officer Kennedy) of the Providence Police Department was

on patrol in Roger Williams Park and observed applicant, who was seated at a picnic table,

drinking a bottle of malt liquor. As Officer Kennedy approached applicant to inform him that he

was not allowed to drink alcohol in the park, he observed “in plain view” a $20 bill on the picnic

table next to applicant. The $20 bill had a “white powder substance” on it, which appeared to be

cocaine. When asked his name, applicant falsely identified himself as “Dale Montellio” and

stated that his date of birth was April 12, 1974. The applicant was taken into custody “without

incident for public drinking and possession of suspected cocaine[.]” Officer Kennedy also seized

the bottle of malt liquor and the $20 bill, which later tested positive for cocaine. Once at the

police station, it was discovered that applicant’s real name was Adless Desamours and that his

date of birth was January 20, 1978.

       On November 30, 1999, applicant entered a plea of nolo contendere to the charge for

possession of cocaine and was sentenced to two years’ probation. The count for obstruction was

dismissed pursuant to Rule 48(a) of the Superior Court Rules of Criminal Procedure. The plea

colloquy at the November 30, 1999 hearing, which is at issue in this appeal, went as follows:

               “THE COURT:            * * * As to Count One, possession of
                                      cocaine, do you understand what you’re
                                      doing by pleading nolo to this charge? It’s
                                      equivalent to a plea of guilty, and you’re
                                      giving up certain rights.
                                             Your right to have a trial, your right
                                      to take an appeal, your presumption of
                                      innocence. These things you’re giving up by
                                      pleading nolo to this charge.
                                             Do you understand that?

                                               -2-
               “DEFENDANT:            Yes.
               “THE COURT:            And you signed this piece of paper, this
                                      document, yourself? No one forced you to
                                      sign it, right?
               “DEFENDANT:            Yes, I did.
               “THE COURT:            And you understand what’s contained in it?
               “DEFENDANT:            Yes, I do.
               “THE COURT:            A brief recitation of facts, please.
               “[THE STATE]:          Your Honor, should this matter proceed to
                                      trial, the State is prepared to prove beyond a
                                      reasonable doubt that Adless Desamours, on
                                      or about the 15th day of September 1999 at
                                      Providence, did possess cocaine in violation
                                      of Rhode Island general laws.
               “THE COURT:            Do you agree with those facts?
               “DEFENDANT:            I do.
               “THE COURT:            I’m satisfied the defendant knows what he’s
                                      doing by pleading nolo. I’m also satisfied
                                      with the factual basis; therefore, the plea
                                      may enter.”

       On January 10, 2012, more than twelve years after his plea, applicant filed an application

for postconviction relief. The applicant claimed that his plea of nolo contendere was entered in

violation of Rule 11 of the Superior Court Rules of Criminal Procedure because the Superior

Court justice did not properly ascertain whether applicant understood the nature of the charge

and the consequences of his plea, and because the Superior Court justice did not sufficiently

satisfy himself that there was a factual basis for the plea. The applicant, a native and citizen of

Haiti, additionally claimed that he received ineffective assistance of counsel because he “was not

advised by anyone” of the immigration consequences of his plea.

       In support of his application, applicant filed his own affidavit, in which he recited a

different factual predicate than that which was set forth in the police report. According to

applicant, on September 15, 1999, he was at Roger Williams Park with an acquaintance. The

applicant was holding a can of beer as he and his acquaintance were approached by the Roger

Williams Park Police. After a brief conversation, the officers permitted applicant’s companion

                                               -3-
to leave the area; however, because applicant was holding the can of beer, he was detained.2

During this time, one of the officers spotted a rolled-up bill on the ground, which proved to

contain a small amount of cocaine. The applicant was later charged with possession of cocaine.

Despite pleading nolo contendere, applicant’s affidavit declared: “I maintained my innocence

with respect to the cocaine, as it belonged to my companion, not myself. Because I was told that

I could receive a jail sentence if convicted at trial, and the [s]tate was offering probation, I

decided to plea nolo to the charge.”

          The state opposed the application for postconviction relief and argued that applicant

failed to sustain his burden of demonstrating that the Superior Court justice failed to comply with

the requirements of Rule 11 or that his legal counsel provided ineffective assistance. The state’s

objection also emphasized that the plea document signed by applicant advised him that his plea

“may result in deportation proceedings[.]” Finally, the state raised the defense of laches, arguing

that applicant did not file his application for postconviction relief within a reasonable time after

his plea.

          On March 7, 2012, the postconviction-relief application was heard before a different

Superior Court justice (the postconviction hearing justice).3 Christine O’Connell (O’Connell),

an assistant public defender and applicant’s legal counsel at the time of his plea, testified and

explained that, because she has represented thousands of clients during her twenty-five-year

career with the Public Defender’s office, she had no independent recollection of applicant or the

plea in question. Nevertheless, O’Connell testified that she would never have instructed a client



2
  Although the criminal information states that applicant was drinking a bottle of malt liquor, in
his affidavit applicant avers that he was drinking a can of beer; this factual dispute has no
bearing on this Court’s analysis but points to the difficulties that a trial could present.
3
    The applicant was not present at the hearing.
                                                    -4-
to sign a plea form without discussing its contents with the client, and that she would not have

affixed her signature to the plea form if she had not done so. In addition, O’Connell testified that

the only time she would have advised a client who maintained his innocence with respect to a

particular charge to enter a plea was in the context of an Alford plea.4

       Following O’Connell’s testimony, the court heard oral argument. Counsel for applicant

argued that the Superior Court justice failed to “enunciate” the rights applicant was waiving in

pleading nolo contendere, as the plea colloquy is devoid of any evidence that those rights were

discussed with and understood by applicant.5 Counsel also argued that the affirmative defense of

laches did not apply. The state responded that the plea colloquy was sufficient because there was

evidence in the record to support a finding that applicant’s plea was voluntary at the time it was

entered and that he was aware of the nature of the charges at that time. The state concluded by

arguing that the defense of laches applied because the state would be prejudiced due to the fact

that its “best evidence,” the seized cocaine, had been destroyed.

       On April 3, 2012, the postconviction hearing justice rendered a bench decision denying

the application. In doing so, the postconviction hearing justice described the plea colloquy as

“bare-boned,” but nevertheless concluded that the court reasonably could have found that



4
  “The so-called Alford plea is a procedure approved by the Supreme Court of the United States
under which a person charged with a criminal offense may plead guilty even though he maintains
his innocence as long as the state presents a factual basis for such plea through evidence other
than the defendant’s own admission.” State v. Fontaine, 559 A.2d 622, 624 (R.I. 1989); see
North Carolina v. Alford, 400 U.S. 25 (1970).
5
  In addition, applicant argued that there was a violation of Padilla v. Kentucky, 559 U.S. 356
(2010), which held that a criminal defense attorney has an obligation to properly inform his or
her clients of the immigration consequences of their plea. Padilla, 559 U.S. at 373-74.
However, the Supreme Court’s ruling in Padilla does not retroactively apply to convictions that
were “final” when Padilla was decided. See Chaidez v. United States, 568 U.S. 342, 344 (2013).
Therefore, Padilla does not apply in this case, because final judgment entered on January 4,
2000, and there was no appeal taken from that judgment.
                                                -5-
applicant was aware of the nature of his plea and that applicant fully understood his rights and

knowingly relinquished those rights. The postconviction hearing justice further concluded that

there was a factual basis for the offense of possession of cocaine and that applicant agreed with

the recitation of facts at the plea hearing that he had possessed the cocaine in question. The

postconviction hearing justice denied applicant’s claim of ineffective assistance of counsel and

declined to address the issue of laches. The applicant appealed.

                                      Standard of Review

       Postconviction relief is a remedy provided by statute—G.L. 1956 § 10-9.1-1—and is

“available to a convicted defendant who contends that his [or her] original conviction or sentence

violated rights afforded to him [or her] under the state or federal constitution.” Hazard v. State,

968 A.2d 886, 891 (R.I. 2009) (quoting Chalk v. State, 949 A.2d 395, 398 (R.I. 2008)). An

applicant for postconviction relief “bears the burden of proving, by a preponderance of the

evidence, that such relief is warranted * * *.” Rice v. State, 38 A.3d 9, 16 (R.I. 2012) (quoting

Mattatall v. State, 947 A.2d 896, 901 n.7 (R.I. 2008)). When passing on a decision to grant or

deny postconviction relief, “this Court will refrain from disturbing a trial justice’s factual

findings absent a showing that the trial justice overlooked or misconceived material evidence or

otherwise was clearly wrong.” Hazard, 968 A.2d at 891 (quoting Azvedo v. State, 945 A.2d 335,

337 (R.I. 2008)). However, as we repeatedly have stated, “this Court will review de novo any

post[]conviction relief decision involving questions of fact or mixed questions of law and fact

pertaining to an alleged violation of an applicant’s constitutional rights.” Id. (quoting Azvedo,

945 A.2d at 337). Nevertheless, “even when the de novo standard is applied to issues of

constitutional dimension, we still accord a hearing justice’s findings of historical fact, and




                                               -6-
inferences drawn from those facts, great deference in conducting our review.” Rice, 38 A.3d at

16 (brackets omitted).

                                                Analysis

        On appeal, applicant argues that the trial justice deviated from the mandate set forth in

Rule 11 by (1) failing to ensure that applicant entered his plea of nolo contendere knowingly and

voluntarily, and (2) failing to establish a factual basis for his plea. This argument lacks merit.

        Before accepting a plea in a criminal case, a trial justice is obliged to conduct a thorough

review of the plea agreement with the defendant, as set forth in Rule 11, which provides, in

pertinent part:

                  “The court * * * shall not accept [a plea of guilty] 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.”

        Therefore, under Rule 11, there are two prerequisites that must be satisfied at the plea

colloquy before a plea of nolo contendere can be accepted: (1) a determination “that the plea is

made voluntarily with understanding of the nature of the charge and the consequences of the

plea”; and (2) a finding “that there is a factual basis for the plea.”

        As for the first prerequisite, a hearing justice “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. Frazar, 822 A.2d 931, 935 (R.I. 2003)

(quoting State v. Feng, 421 A.2d 1258, 1267 (R.I. 1980)). The applicant argues that the Superior

Court justice did not properly ensure that applicant’s plea was knowing and voluntary because he

did not enunciate the rights applicant was waiving in making his plea. We disagree. Although
                                                   -7-
the plea colloquy between applicant and the Superior Court justice can indeed be characterized

as “bare-boned,” there was no Rule 11 violation. The transcript of the plea hearing reveals that

the Superior Court justice advised applicant of the rights he was waiving by entering a plea of

nolo contendere, and that applicant confirmed his relinquishment of those rights. In addition, the

Superior Court justice asked applicant if he signed the plea form voluntarily and if he understood

the contents contained in the plea form, which included the following language:

               “I UNDERSTAND THAT IF I AM A RESIDENT ALIEN, A
               SENTENCE IMPOSED AS A RESULT OF MY PLEA MAY
               RESULT IN DEPORTATION PROCEEDINGS OVER
               WHICH THIS COURT HAS NO CONTROL.”

The applicant answered both questions in the affirmative. Moreover, applicant was represented

by an experienced and well-respected criminal defense attorney, who testified that she routinely

reviews plea forms with her clients and would have done so in this case. We have every

confidence that O’Connell discussed the contents of the plea form with applicant; there is no

reason to doubt her.

       As for the second prerequisite, the factual basis of the plea, applicant contends that the

recitation of the facts was inadequate because the state did not indicate that applicant had the

knowledge and intent to possess the cocaine. However, contrary to applicant’s assertion, the

state recited facts that, although conclusory, supported the charge against applicant, and

applicant acknowledged that those facts were true. Possession of cocaine in violation of § 21-28-

4.01(c)(1)6 constitutes a general-intent crime in which “[i]t shall be unlawful for any person

knowingly or intentionally to possess a controlled substance * * *.” See Sharbuno v. Moran, 429

A.2d 1294, 1296 (R.I. 1981) (“[T]he Legislature recognized the need for including a general-

intent element in the definition of the offense [of possession of a controlled substance]. This is

6
  The statute that applicant was charged under in 1999, G.L. 1956 § 21-28-4.01(C)(1)(a), is now
found at § 21-28-4.01(c)(1).
                                              -8-
evident in the use of the ‘knowingly or intentionally’ language in § 21-28-4.01(C).”). “General-

intent crimes require only the ‘intention to make the bodily movement which constitutes the act

which the crime requires[.]’” State v. Sivo, 925 A.2d 901, 914 (R.I. 2007) (quoting 1 LaFave,

Substantive Criminal Law § 5.2(e) at 355 (2d ed. 2003)). The applicant unequivocally agreed

with the state’s recitation of facts it would prove if the matter proceeded to trial. Specifically,

applicant agreed that he “did possess cocaine in violation of Rhode Island General Laws” on

September 15, 1999.

       Our careful review of the transcript of the plea hearing convinces us that the requirements

of Rule 11 were satisfied in this case. It is our opinion that the trial justice’s colloquy with

applicant established that the plea was voluntary and that it was made with knowledge and

understanding of the charge against him. See Rodrigues v. State, 985 A.2d 311, 314 (R.I. 2009).

Accordingly, we affirm the postconviction hearing justice’s finding that the Superior Court

justice fully satisfied Rule 11’s requirement of determining that applicant understood the nature

of the charge and that applicant made a voluntary and intelligent plea.

       Finally, although the postconviction hearing justice did not address the state’s affirmative

defense of laches, applicant argues on appeal that laches is not applicable in this case. We

disagree. “[L]aches is an equitable defense that precludes a lawsuit by a plaintiff who has

negligently sat on his or her rights to the detriment of a defendant.” School Committee of

Cranston v. Bergin-Andrews, 984 A.2d 629, 644 (R.I. 2009) (quoting O’Reilly v. Town of

Glocester, 621 A.2d 697, 703 (R.I. 1993)). To establish a laches defense, the state has the

burden of proving “by a preponderance of the evidence that the applicant [was] unreasonably

delayed in seeking relief and that the state is prejudiced by the delay.” Raso v. Wall, 884 A.2d

391, 395 (R.I. 2005).



                                               -9-
       Twelve years passed from the time applicant entered his plea in November 1999 to the

filing of his petition for postconviction relief in January 2012. Although it is well settled that

“time lapse alone does not constitute laches[,]” Rodriques v. Santos, 466 A.2d 306, 311 (R.I.

1983), applicant has not offered a credible explanation for the twelve-year delay. He knew from

the moment that he signed the plea form that his plea could result in deportation consequences.

       There is sufficient evidence in the record to support a finding by the postconviction

hearing justice by a preponderance of the evidence that the state was prejudiced by the delay.

The delay here is particularly worrisome because applicant’s affidavit raises new factual

disputes. Accordingly, we are of the opinion that applicant’s petition for postconviction relief

could also have been denied based on the doctrine of laches.

                                           Conclusion

       For the reasons stated herein, we affirm the judgment of the Superior Court. The record

shall be remanded to the Superior Court.




                                              - 10 -
STATE OF RHODE ISLAND AND                                  PROVIDENCE PLANTATIONS



                         SUPREME COURT – CLERK’S OFFICE

                                 OPINION COVER SHEET

Title of Case                        Adless Desamours v. State of Rhode Island.
                                     No. 2017-351-Appeal.
Case Number
                                     (PM 12-128)
Date Opinion Filed                   June 14, 2019
                                     Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
                                     Indeglia, JJ.
Written By                           Associate Justice Maureen McKenna Goldberg

Source of Appeal                     Providence County Superior Court

Judicial Officer From Lower Court    Associate Justice Sarah Taft-Carter
                                     For Applicant:

                                     Peter F. Spencer, Esq.
                                     Hans Bremer, Esq.
Attorney(s) on Appeal
                                     Randy Olen, Esq.
                                     For State of Rhode Island:

                                     Christopher R. Bush
                                     Department of Attorney General




SU‐CMS‐02A (revised June 2016)
