                                                     Supreme Court

                                                     No. 2011-380-Appeal.
                                                     (PM 09-590)


    Gerald Lopes                  :

          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 Telephone
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                                                                 Supreme Court

                                                                 No. 2011-380-Appeal.
                                                                 (PM 09-590)


               Gerald Lopes                  :

                    v.                       :

          State of Rhode Island.             :


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


                                         OPINION

       Justice Goldberg, for the Court. In this appeal, we review the denial of an application

for postconviction relief. Gerald Lopes (Lopes or applicant) entered a plea of nolo contendere in

two separate cases to the charges of burglary, breaking and entering, and receiving stolen goods.

Lopes then applied for postconviction relief in the Superior Court, alleging myriad grounds for

relief, including ineffective assistance of counsel that resulted in an unknowing and involuntary

plea. Lopes’s application for postconviction relief was denied. The applicant sought review by

this Court, and this case came before the Supreme Court for oral argument on February 24, 2015,

pursuant to an order directing the parties to appear and show cause why the issues raised in this

appeal should not summarily be decided. After considering the arguments advanced by counsel,

we are satisfied that cause has not been shown and that the appeal may be decided at this time.

For the reasons set forth below, we affirm the judgment of the Superior Court.




                                              -1-
                                        Facts and Travel

       In February 2008, Lopes was charged by grand jury indictment with one count of

burglary and, by criminal information, with one count of breaking and entering, two counts of

receiving stolen goods valued at over $500, and one count of receiving stolen goods valued at

under $500. Based upon Lopes’s lengthy criminal record, the state filed a notice that applicant

was subject to the habitual-offender statute—G.L. 1956 § 12-19-21. Additionally, in April 2008,

Lopes was declared to be a violator of a previously imposed suspended sentence and probation

as a result of a plea of nolo contendere entered in April 2000 for yet another breaking-and-

entering offense.   A magistrate of the Superior Court lifted the suspension, resulting in a

sentence of fifteen years and four months incarceration.

       On November 19, 2008, the two cases were reached for trial. After a pretrial hearing, a

justice of the Superior Court denied Lopes’s motions to suppress evidence seized during his

arrest which led to the burglary charge. Immediately after the denial of the suppression motions,

Lopes—through his trial counsel—sought to withdraw his not-guilty plea and enter a plea of

nolo contendere to all charges. 1 Pursuant to the plea agreement, applicant was sentenced, inter

alia, to thirty years at the Adult Correctional Institutions (ACI) on the burglary charge, with

twenty years to serve and ten years suspended with probation. 2 All sentences were concurrent to

the sentence Lopes was serving as a violator. Significantly, as part of this disposition, the state

withdrew the habitual-offender notice, thereby relieving Lopes of any potential consecutive

sentence.
1
  The attorney who represented Lopes when he entered his plea of nolo contendere, and who it is
alleged ineffectively represented Lopes, will hereafter be referred to as “trial counsel.”
2
  Lopes was also sentenced to fifteen years at the ACI on the breaking-and-entering charge; five
years at the ACI on both charges of receiving stolen goods valued at over $500, these sentences
suspended; and one year at the ACI on the charge of receipt of stolen goods valued at under
$500, also suspended.
                                               -2-
       A review of the transcript from the plea hearing reveals that, before accepting Lopes’s

plea, the Superior Court justice engaged in a detailed plea colloquy. The trial justice questioned

Lopes as to whether he understood the plea forms, signed the forms, and reviewed them with his

trial counsel. 3 The trial justice satisfied himself that Lopes was aware of the elements of the

offenses alleged in the indictment and criminal information. The Superior Court justice also

reviewed the rights that Lopes was waiving by pleading to the charges, including his right to a

trial, the right to call and confront witnesses, and the right of appeal. Before asking the state to

recite the factual basis to each charge, the trial justice engaged Lopes in the following dialogue:

               “[Trial Justice:] Anything else[, besides your understanding of
               what the sentences in these cases will be,] been promised to you?

               “[Lopes:] No.

               “[Trial Justice:] I know that you’re on the eve of trial but it is
               important that I do understand that you’re not forced – no one gave
               you an ultimatum; is that correct?

               “[Lopes:] Yes.”

       During the state’s presentation of the factual basis for the charge of burglary, the

prosecutor proffered that the burglary “specifically was constituted by this defendant breaking

and entering [into] that apartment in the nighttime with the intent to commit larceny inside of

that apartment; that he did, in fact, commit larceny inside that apartment[.]” Lopes admitted that

all facts as presented by the state were true. Before imposing sentence, the Superior Court

justice again ensured that Lopes was aware that he was giving up his rights, that Lopes was

“satisfied by the representation of your attorney in this case[,]” and that there was “[n]o problem

with this [representation] at all[.]” Having found that Lopes acted “knowingly, voluntarily,



3
 During the plea colloquy, Lopes informed the trial justice that he had attained a GED degree
and had no trouble reading or understanding the plea forms.
                                                -3-
intelligently, willingly and with full awareness of the consequences[,]” the trial justice accepted

the plea and imposed sentence.

       Less than three months later, Lopes, acting pro se, filed an application for postconviction

relief. Lopes alleged that his conviction should be vacated because of (1) violations of the Fifth,

Sixth, and Fourteenth Amendments to the United States Constitution; (2) due process violations;

(3) ineffective assistance of trial counsel; (4) prosecutorial misconduct; and (5) new evidence.

On July 14, 2009, an attorney appointed as counsel for Lopes entered her appearance “for [the]

limited purpose of determination of grounds for postconviction relief application.”            The

appointed attorney then filed a report with the Superior Court on September 2, 2009, finding that

“there are no valid grounds for assignment of counsel to pursue the post conviction [sic] remedy

under the provision of [G.L. 1956 §] 10-9.1-5 * * *.”

       On October 1, 2009, Lopes informed the Superior Court that he had retained private

counsel, and thus, his court-appointed counsel was discharged. After a series of continuances,

applicant’s counsel filed an amended application, alleging, among other things, that there was no

factual basis for the burglary charge, that the plea colloquy was defective, and that applicant’s

trial counsel provided ineffective assistance to Lopes.

       A hearing on Lopes’s application for postconviction relief was undertaken in 2010. 4 The

same justice who had accepted Lopes’s plea of nolo contendere presided over the




4
  The transcript for the September 14, 2010 hearing on the merits of applicant’s postconviction-
relief application appears to be a continuation of a prior hearing at which testimony had
previously occurred. The trial justice indicated as much, stating that testimony had begun in July
2010. However, a review of the record on appeal failed to uncover a transcript from this
referenced hearing.


                                               -4-
postconviction-relief hearing. In addition to Lopes, his trial counsel and Lopes’s wife also

testified in this preceding. 5

        On April 26, 2011, the Superior Court justice issued a written opinion denying Lopes’s

application for postconviction relief. In his decision, the trial justice found Lopes’s credibility to

be “minimal.”      The trial justice noted that, although applicant maintained that he was ill-

informed regarding what a criminal information was and what his rights were, applicant was a

veteran of the criminal justice system, having over twenty-five charges on his record, many of

which were resolved through pleas of guilty or nolo contendere. Overall, the trial justice found

that “[h]is testimony was inconsistent, self-serving, not credible, and not helpful to the

factfinder.”

        After briefly touching upon the testimony of Lopes’s wife, the trial justice addressed the

testimony of trial counsel. The trial justice observed that trial counsel did not specifically recall

the particulars of this case due to the passage of time and the volume of trial counsel’s practice.

However, the trial justice observed that trial counsel specifically recalled speaking to Lopes in

advance of the hearings, filing numerous motions to suppress evidence and discovery requests,

and filing a motion to appoint an independent prosecutor. Despite trial counsel’s inability to

recall with specificity certain details, the trial justice found him to be credible.

        Judgment entered on May 13, 2011; Lopes timely appealed to this Court.

                                         Standard of Review

        “The statutory remedy of postconviction relief set forth in G.L. 1956 § 10-9.1-1 is

‘available to any person who has been convicted of a crime and who thereafter alleges either that

the conviction violated the applicant’s constitutional rights or that the existence of newly

5
 A private investigator retained by applicant also testified about his attempts to deliver a letter to
applicant’s trial counsel. This testimony is irrelevant to the issues on appeal.
                                                  -5-
discovered material facts requires vacation of the conviction in the interest of justice.’” Hall v.

State, 60 A.3d 928, 931 (R.I. 2013) (quoting Sosa v. State, 949 A.2d 1014, 1016 (R.I. 2008)).

“When passing on an application for postconviction relief, this Court accords great deference to

the factual determinations of the Superior Court hearing justice.” Neufville v. State, 13 A.3d 607,

610 (R.I. 2011) (citing Rodrigues v. State, 985 A.2d 311, 313 (R.I. 2009)). Thus, this Court

“will uphold a postconviction relief decision absent clear error or a determination that the

hearing justice misconceived or overlooked material evidence.” Merida v. State, 93 A.3d 545,

549 (R.I. 2014) (quoting Rodrigues, 985 A.2d at 313).

       Yet, “[w]hen a postconviction relief decision involves ‘questions of fact or mixed

questions of law and fact pertaining to an alleged violation of an applicant’s constitutional

rights[,]’ we review those issues de novo.” Neufville, 13 A.3d at 610 (quoting Hazard v. State,

968 A.2d 886, 891 (R.I. 2009)). “[F]indings of historical fact, and inferences drawn from those

facts, will still be accorded great deference by this Court, even when a de novo standard is

applied to the issues of constitutional dimension.” Hazard, 968 A.2d at 891 (quoting Gonder v.

State, 935 A.2d 82, 85 (R.I. 2007)).

       This Court’s review of a claim of ineffective assistance of counsel is guided by the

criteria set forth in Strickland v. Washington, 466 U.S. 668 (1984). See Merida, 93 A.3d at 549.

“First, the applicant must establish that counsel’s performance was constitutionally deficient;

[t]his requires [a] showing that counsel made errors so serious that counsel was not functioning

as the ‘counsel’ guaranteed * * * by the Sixth Amendment.” Merida, 93 A.3d at 549 (quoting

Linde v. State, 78 A.3d 738, 745 (R.I. 2013)). When conducting this review, we are highly

deferential and “afford counsel ‘a strong presumption that counsel’s conduct falls within the

permissible range of assistance.’” Id. (quoting Linde, 78 A.3d at 745). “Only if it is determined



                                               -6-
that trial counsel’s performance was constitutionally deficient does the Court proceed to the

second prong of the Strickland test, in which the applicant must show that the ‘deficient

performance was so prejudicial to the defense and the errors were so serious as to amount to a

deprivation of the applicant’s right to a fair trial.’” Id. (quoting Linde, 78 A.3d at 745-46).

                                              Analysis

       Because Lopes’s arguments regarding the voluntariness of his plea and his trial counsel’s

performance are interwoven, we analyze them in tandem. See Jolly v. Wall, 59 A.3d 133, 138-

39 (R.I. 2013). In this case, Lopes “bore the burden of proving ‘that, but for his attorney’s

errors, he would not have entered a [nolo contendere] plea, but rather would have proceeded to

trial.’” Id. at 139 (quoting Gonder, 935 A.2d at 87).

       In support of his contention that he would not have entered a plea of nolo contendere had

he properly been advised by trial counsel, applicant asserts that he only entered into the plea

because his trial counsel told him that he was facing a life sentence. 6 Additionally, applicant

contends that he was prejudiced by several of trial counsel’s decisions, including trial counsel’s

failure to hire an expert to examine the value of the goods he stole during the burglary and

examine an alleged DNA sample; failing to secure a severance of the charges for trial; and

failing to adequately communicate with applicant.

       We discern no error by the trial justice in his finding that applicant failed to carry his

burden of proof and establish his claim. Initially, we note that trial counsel filed numerous

motions in this case, including a motion for a bill of particulars, a motion for exculpatory

evidence, multiple motions to suppress evidence and identifications, two motions in limine, and a




6
  The crime of burglary carries a sentence of five years to life imprisonment. See G.L. 1956
§ 11-8-1.
                                                 -7-
motion for an independent prosecutor. 7 Furthermore, trial counsel testified at the postconviction-

relief hearing that it was his usual practice to review the rights the client is relinquishing when

entering a plea of nolo contendere and that, despite the fact that he did not specifically recall

doing so with Lopes, he was sure that he would have done so in this case.

       Moreover, we decline to disturb the trial justice’s credibility determination that Lopes’s

testimony was self-serving and not credible. Lopes’s professed ignorance as to the implications

of a plea of nolo contendere is belied by his lengthy criminal record and the record evidence that,

on at least eight prior occasions, Lopes has entered pleas of guilty or nolo contendere in felony

cases. 8 We agree with the trial justice that Lopes is practiced in the crime of burglary and well

versed in the rights that are waived when one enters a plea to a felony charge.              It is no

exaggeration to say that he is a veteran of our criminal justice system. At the postconviction-

relief hearing, Lopes insisted that his lack of knowledge was because he was guilty of the other

crimes but that he did not commit these offenses. 9 Yet, our review of the plea colloquy supports

the trial justice’s conclusion that Lopes entered his plea both knowingly and voluntarily. Lopes

confirmed that he had reviewed the agreement with his trial counsel and that he understood the

agreement. The record reflects no uncertainty, apprehension, or wavering on applicant’s part

7
  Applicant incorrectly asserts in his filing with this Court that “an issue missed by [trial] counsel
was that in one of the counts improperly joined[,] the victim was [an Assistant] Attorney General
* * *. [Trial c]ounsel should have moved to recuse the Attorney General’s Office or at the very
least sever that count from the rest as to not prejudice the [applicant].” As noted above, trial
counsel filed a motion for appointment of an independent prosecutor.
8
  In addition to Lopes’s numerous experiences in entering pleas of guilty or nolo contendere, he
also filed an extensive Bivens action in the United States District Court for the District of Rhode
Island alleging numerous violations of Lopes’s rights under the federal and state constitutions.
9
  With respect to the burglary charge, Lopes was caught in the act. The officers dispatched to the
scene observed a man in red clothing attempting to climb out the back of the second floor of the
building where suspicious activity had been reported. After the officers ordered the man to stop,
he climbed back inside the building and attempted to exit through the front door. It was at this
time that the man in the red clothing was apprehended by officers and was identified as Lopes.
                                                -8-
during the plea hearing. Thus, while Lopes “now apparently regrets his decision to plead to the

charges[,] * * * we conclude that on the critical day of [November 19, 2008], he did so

voluntarily.” See Jolly, 59 A.3d at 139.

         The trial justice also conducted a thorough review of the plea agreement with the

applicant as required by Rule 11 of the Superior Court Rules of Criminal Procedure. Pursuant to

Rule 11, “[t]he [Superior] [C]ourt * * * shall not accept * * * 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 transcript of

the plea hearing reveals that the trial justice informed Lopes that five charges were pending

against him, advised him of the consequences of his pleas of nolo contendere and the manner in

which the court would impose his sentence. Additionally, the state recited the facts supporting

the charges against applicant, and applicant acknowledged that those facts were true. Lastly,

applicant stated that he was satisfied with the representation provided to him by his trial counsel.

         Although not a basis for the trial justice’s decision in the postconviction-relief

proceeding, it should be noted that, upon Lopes’s pleading nolo contendere to the five counts

against him, the trial justice imposed an additional four years and eight months beyond the time

Lopes was serving as a probation violator. 10 Further, if found to be a habitual offender, Lopes

would have faced an additional consecutive term of imprisonment of up to twenty-five years.

See § 12-19-21(a). By entering the plea, trial counsel protected Lopes from an enhanced

sentence. We are not unmindful of the benefit derived from the withdrawal of the habitual-

offender notice. In the past we have observed “that when counsel has secured a shorter sentence

than what the defendant could have received had he gone to trial, the defendant has an almost



10
     The charge of burglary mandates a minimum sentence of five years imprisonment.
                                                -9-
insurmountable burden to establish prejudice” in the context of a claim of ineffective assistance

of counsel. Neufville, 13 A.3d at 614.

          The applicant also suggests that the recitation of the facts which the state was prepared to

prove had the burglary charge gone to trial—facts he admitted were true—was faulty because the

state did not specify that the larceny applicant intended to commit was a felony, which requires

that the value of the stolen items exceed $500. However, as the trial justice correctly noted, it is

the intent to commit a felony that is the essential element of the crime of burglary and not the

value of what was seized after the crime was interrupted. See State v. Abdullah, 967 A.2d 469,

476 (R.I. 2009) (stating that the elements of burglary are “the breaking and entering the

dwelling-house of another in the nighttime with the intent to commit a felony therein, whether

the felony be actually committed or not” (emphasis added) (quoting State v. Contreras-Cruz, 765

A.2d 849, 852 (R.I. 2001))).

          The trial justice examined the record and found sufficient basis to infer the intent

necessary from the facts in both cases to which Lopes admitted his guilt. Because Lopes was

arrested while the burglary was ongoing, this fact, coupled with evidence that he was in

possession of goods valued at well over $500 in the other charges brought against him, it was

reasonable to infer that, if given the opportunity, Lopes had every intention to steal goods valued

at more than $500 in this case. 11 See Camacho v. State, 58 A.3d 182, 186 (R.I. 2013) (“A

finding may be based on the ‘record viewed in its totality.’” quoting State v. Frazar, 822 A.2d

931, 935 (R.I. 2003)); see also State v. McLaughlin, 621 A.2d 170, 178 (R.I. 1993) (affirming a

Superior Court decision when certain facts would allow a factfinder “reasonably to infer” that the

defendant had entered a dwelling with the intent to commit a larceny). Additionally, Lopes



11
     When arrested, Lopes was found with gold jewelry stolen from the occupant of the dwelling.
                                                 - 10 -
himself confirmed that he intended to commit larceny inside the dwelling based upon the facts as

presented by the state. Accordingly, the trial justice’s conclusion that Lopes understood that the

state was alleging that he intended to commit a felony larceny, as opposed to a misdemeanor

larceny, was correct in the circumstances of this case.

                                           Conclusion

       For the reasons set forth in this opinion, we affirm the judgment of the Superior Court, to

which we remand the record in this case.




                                               - 11 -
                            RHODE ISLAND SUPREME COURT CLERK’S OFFICE

                                 Clerk’s Office Order/Opinion Cover Sheet




TITLE OF CASE:        Gerald Lopes v. State of Rhode Island.

CASE NO:              No. 2011-380-Appeal.
                      (PM 09-590)

COURT:                Supreme Court

DATE OPINION FILED: March 26, 2015

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

WRITTEN BY:           Associate Justice Maureen McKenna Goldberg

SOURCE OF APPEAL:     Providence County Superior Court

JUDGE FROM LOWER COURT:

                      Associate Justice Jeffrey A. Lanphear

ATTORNEYS ON APPEAL:

                      For Applicant: Stefanie DiMaio-Larivee, Esq.

                      For State: Jane M. McSoley
                                 Department of Attorney General
