                                                    Supreme Court

                                                    No. 2013-131-Appeal.
                                                    (KM 12-743)

   Amadeu Santos                  :

          v.                      :

State of Rhode Island.            :




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 notify the Opinion Analyst, Supreme Court of Rhode Island, 250
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                                                                    Supreme Court

                                                                    No. 2013-131-Appeal.
                                                                    (KM 12-743)

                Amadeu Santos                    :

                       v.                        :

             State of Rhode Island.              :

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

                                          OPINION

       Chief Justice Suttell, for the Court. The applicant, Amadeu Santos, appeals from the

denial of his application for postconviction relief. Santos contends that the hearing justice erred

in finding that his application was barred by the doctrine of laches. This case came before the

Supreme Court 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 considering the parties’

written and oral submissions and reviewing the record, we conclude that cause has not been

shown and that this case may be decided without further briefing or argument. For the reasons

set forth in this opinion, we affirm the judgment of the Superior Court.

                                                 I

                                 Facts and Procedural History

       On August 1, 1996, Amadeu Santos was charged by indictment with three counts of

second-degree sexual assault by force or coercion against two women, in violation of G.L. 1956

§ 11-37-4 and § 11-37-5. After initially pleading not guilty to these three counts, Santos made a

request to enter a plea of nolo contendere under the dictates of North Carolina v. Alford, 400




                                               -1-
U.S. 25 (1970). 1 A plea hearing was held on March 16, 1998, during which the hearing justice

accepted Santos’s plea and sentenced him to a suspended sentence of five years with five years

probation. As conditions of his probation, Santos was required to register as a sex offender, to

receive counseling, and to refrain from having contact with the two victims. Santos completed

his probation and complied with the sex-offender registration requirements. He is no longer

required to register in Rhode Island as a sex offender; however, Santos asserts that if he moves to

another state, he will be required to register as a sex offender in that state.

        On June 22, 2012, more than fourteen years after his plea hearing, Santos filed a verified

application for postconviction relief pursuant to G.L. 1956 § 10-9.1-1. Santos asserted that the

March 16, 1998 plea colloquy did not comply with Rule 11 of the Superior Court Rules of

Criminal Procedure. 2 Specifically, Santos contended that his plea was not knowing, intelligent,

and voluntary because the court’s colloquy “failed to contain sufficient factual evidence to prove

the three charges against him.” Santos further asserted that he was not made aware that “sexual

contact,” which is an element of second-degree sexual assault, entailed the touching of a




1
  Pursuant to North Carolina v. Alford, 400 U.S. 25, 38 (1970), a court may accept a defendant’s
plea of guilty or nolo contendere, notwithstanding his or her protestations of innocence, if the
court is satisfied that there is a factual basis for the plea.
2
  Rule 11 of the Superior Court Rules of Criminal Procedure 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. If a defendant refuses to plead or if the court refuses to
                 accept a plea of guilty or if a defendant corporation fails to appear,
                 the court shall enter a plea of not guilty. 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.”
                                                 -2-
complaining witness’s “intimate parts” for the purposes of “sexual arousal, gratification, or

assault.”

       The state filed a motion to dismiss Santos’s application for postconviction relief pursuant

to § 10-9.1-6, 3 arguing, inter alia, that Santos had waived his right to postconviction relief

because he failed to file his application in a timely manner. In response, Santos argued that the

state could not prove that he was aware of the insufficiency of his plea until he conferred with

new counsel shortly before filing his application for postconviction relief. 4 On November 7,

2012, a hearing was held on Santos’s application for postconviction relief as well as on the issues

raised in the state’s motion to dismiss. The state introduced as a stipulated exhibit the affidavit

of Attorney William Devine, who represented Santos at the time of his plea in 1998. In this

affidavit, Attorney Devine stated that he had “no independent recollection of [his] representation

of Amadeu Santos.” Attorney Devine further stated that he “[did] not remember specifically

whether or not [he] reviewed the elements of second degree sexual assault with [] Amadeu

Santos before he changed his plea,” but he added that “it is [his] practice with any change of plea

in a criminal matter to review the elements of the crime charged with [his] client.” Attorney

Devine asserted that he did “not possess any files or documents pertaining to this matter.”

       On December 10, 2012, the hearing justice issued a written decision denying Santos’s

application for postconviction relief. The hearing justice found that Santos’s application was



3
  General Laws 1956 § 10-9.1-6(c) provides:
                       “The court may grant a motion by either party for summary
               disposition of the [postconviction relief] application when it
               appears from the pleadings, depositions, answers to interrogatories,
               and admissions and agreements of fact, together with any affidavits
               submitted, that there is no genuine issue of material fact and the
               moving party is entitled to judgment as a matter of law.”
4
  Santos also argued that the state would be unable to prove prejudice caused by the delay. This
argument is not presented on appeal.
                                               -3-
barred by the doctrine of laches; he did not reach the merits of Santos’s claim. An order denying

Santos’s application for postconviction relief was entered on January 17, 2013, and Santos filed a

timely notice of appeal. Judgment was entered on May 15, 2013. 5

                                                II

                                      Standard of Review

       “For the purposes of appellate review, ‘the application of the defense of laches is

generally committed to the discretion of the trial justice.’” 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)). “We will not reverse the trial justice’s decision on what constitutes

laches on appeal ‘unless it is clearly wrong.’” Id. (quoting Arcand v. Haley, 95 R.I. 357, 364,

187 A.2d 142, 146 (1963)). Additionally, this Court “will not disturb a trial justice’s factual

findings made on an application for post-conviction relief absent clear error or a showing that the

trial justice overlooked or misconceived material evidence in arriving at those findings.” Bell v.

State, 71 A.3d 458, 460 (R.I. 2013) (quoting Chapdelaine v. State, 32 A.3d 937, 941 (R.I. 2011)).

“We will, however, ‘review de novo any post-conviction relief decision involving * * * mixed

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

rights.’” Id. (quoting Chapdelaine, 32 A.3d at 941).

                                               III

                                           Discussion

       As this Court has explained, “[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.” Bergin-

Andrews, 984 A.2d at 644 (quoting O’Reilly, 621 A.2d at 702). The state may invoke the

5
  Because final judgment entered, Santos’s premature notice of appeal is valid. See Chapdelaine
v. State, 32 A.3d 937, 941 n.1 (R.I. 2011).
                                               -4-
defense of laches as an affirmative defense to an application for postconviction relief. See Heon

v. State, 19 A.3d 1225, 1225 (R.I. 2010) (mem.) (citing Raso v. Wall, 884 A.2d 391, 394 (R.I.

2005)).

          “In order to prove the defense of laches, ‘the state has the burden of proving by a

preponderance of the evidence that the applicant unreasonably delayed in seeking relief and that

the state is prejudiced by the delay.’” Heon, 19 A.3d at 1225 (quoting Raso, 884 A.2d at 395

(emphasis omitted)). As we have previously held,

                         “[l]aches, in legal significance, is not mere delay, but delay
                 that works a disadvantage to another. So long as parties are in the
                 same condition, it matters little whether one presses a right
                 promptly or slowly, within limits allowed by law; but when,
                 knowing his rights, he takes no steps to enforce them until the
                 condition of the other party has, in good faith, become so changed
                 that he cannot be restored to his former state, if the right be then
                 enforced, delay becomes inequitable and operates as an estoppel
                 against the assertion of the right.” Bergin-Andrews, 984 A.2d at
                 644 (quoting O’Reilly, 621 A.2d at 702).

“Whether or not there has been unreasonable delay, and whether the state has been prejudiced by

the delay, are both questions of fact, which require that specific ‘determination[s] * * * be made

in light of the circumstances of the particular case.’” Heon, 19 A.3d at 1225 (quoting Raso, 884

A.2d at 396). We have said, however, that “[w]e do not exclude the possibility of summary

judgment being granted on the ground of laches in a particular case.” Raso, 884 A.2d at 396

n.13.

          On appeal, Santos concedes that the fourteen-year delay satisfies the prejudice prong of

the laches defense. Thus, the only issue currently before this Court for review is whether the

hearing justice erred in finding that the delay was unreasonable. The state argues that the length

of the delay in this case is “sufficient to imply unreasonableness and a lack of reasonable

diligence” on the part of Santos. The state asserts that the delay was unreasonable because

                                                 -5-
Santos should have been aware of the basis for his postconviction-relief claim at the time of his

plea. According to the state, the fact that Santos did not file his application for postconviction

relief until he was faced with a potential sex-offender registration requirement in another state

shows that he was merely “disgruntled about the collateral consequences of his conviction”

rather than “confused about the nature of the offense to which he pled.” Furthermore, the state

contends that Santos had access to a privately retained attorney in 2002; if he had been confused

about the validity of his plea, he could have asked that attorney, rather than wait until 2011,

when he retained the attorney who filed the instant application for postconviction relief.

       Santos, on the other hand, argues on appeal that the state failed to prove that he

negligently failed to assert a known right.       Santos asserts that he was unaware until his

consultation with new counsel in 2011 that the “sexual contact” element of second-degree sexual

assault is defined as a touching for the purpose of sexual arousal or gratification. 6 Santos further

contends that “the charging document and the prosecutor’s representation at the plea hearing

used only the term ‘sexual contact,’ which was not sufficient to put Mr. Santos on notice of the

intent requirement of the offense charged.” Thus, Santos explains that he did not become “aware



6
 Pursuant to G.L. 1956 § 11-37-4, second-degree sexual assault is defined as follows:
               “A person is guilty of a second degree sexual assault if he or she
               engages in sexual contact with another person and if any of the
               following circumstances exist:
                       “(1) The accused knows or has reason to know that the
                       victim is mentally incapacitated, mentally disabled or
                       physically helpless.
                       “(2) The accused uses force or coercion.
                       “(3) The accused engages in the medical treatment or
                       examination of the victim for the purpose of sexual arousal,
                       gratification or stimulation.”
“Sexual contact” is defined as “the intentional touching of the victim’s or accused’s intimate
parts, clothed or unclothed, if that intentional touching can be reasonably construed as intended
by the accused to be for the purpose of sexual arousal, gratification, or assault.” Section 11-37-
1(7).
                                                -6-
of his own unawareness” regarding the nature of the charged offenses until he consulted with

new counsel. According to Santos, the hearing justice misconceived the nature of his claim by

assuming that he was aware of his confusion at the time of the plea.

       At the hearing, Santos conceded that the court could consider the reasonableness of the

delay in light of the nature of the allegations made in the application, but argued that the state

presented no evidence that he was aware of a legal remedy. Santos’s counsel later emphasized

this point when responding to the hearing justice’s question, “Was [Santos] aware of the facts or

was he aware of the remedy[?] You’ve argued both.” Santos’s counsel said, “That’s correct, but

really, it’s the remedy, Judge. Was he aware that he had a remedy to reopen this matter back in

199[8], at the moment he was aggrieved[?]” The following exchange further clarifies the nub of

Santos’s argument:

                       “The COURT: But you’re saying that it’s Mr. Santos’[s]
               state of mind and his knowledge or lack of knowledge of what
               remedy might be available to him based on the facts he brings to
               the Court’s attention today --
                       “[Defense Counsel]: Certainly -- I’m sorry.
                       “The COURT: -- that controls the question of the
               reasonableness of his delay.
                       “[Defense Counsel]: What I’m saying, Judge, is that laches
               is their burden. The first prong is unreasonable and inexcusable
               delay, and the [s]tate offered no evidence as to that, other than the
               fact that there has been a 14-year delay. * * * [T]here is no
               evidence presented before you that Mr. Santos was aware of this
               legal remedy.
                       “The COURT: So Mr. Santos’[s] subjective lack of
               knowledge of a remedy is controlling on whether or not he delayed
               unreasonably?
                       “[Defense Counsel]: In a nutshell, yes, your Honor.”

On appeal, however, Santos seems to have abandoned the contention that the delay in filing his

application for postconviction relief was caused by his unawareness that this remedy existed;




                                               -7-
instead, he has focused on the argument that he delayed because he was unaware of his own

confusion regarding the nature of the charges to which he pled.

       The hearing justice aptly noted in his written decision that “[t]he [s]tate need not

introduce direct evidence that the delay was unreasonable,” and that “the [c]ourt, considering the

circumstances as a whole, may draw reasonable inferences from such circumstances in finding

the delay to have been unreasonable.” See Shappy v. Downcity Capital Partners, Ltd., 973 A.2d

40, 45 (R.I. 2009) (“where the facts suggest only one reasonable inference, the trial justice may

properly treat the question as a matter of law” and grant summary judgment) (quoting Kennedy

v. Providence Hockey Club, Inc., 119 R.I. 70, 77, 376 A.2d 329, 333 (1977)). Here, the

circumstances of Santos’s case are that he waited fourteen years to file his application and that,

during that time, he had repeated contact with the judicial system in the form of fulfilling his

obligations to register as a sex offender, appearing before the court in relation to his probation

requirements, and making two motions for permission to travel, for which he retained private

counsel.

       The hearing justice found that the state met its burden of proving that Santos’s delay was

unreasonable. He stated: “The [c]ourt believes that the ground asserted for post-conviction relief

was known, or should have been known, to [applicant] well earlier than fourteen years after the

plea. Thus, the [c]ourt finds that the [s]tate has met its burden of proving the delay to have been

unreasonable.” It is a well-established principle that this Court gives great deference to a hearing

justice’s factual findings. Otero v. State, 996 A.2d 667, 670 (R.I. 2010). The hearing justice in

this case found as fact that Santos was aware of the basis for his application for postconviction

relief at the time of his plea; we cannot say that his decision regarding the unreasonableness of




                                               -8-
Santos’s delay was clearly wrong or constituted an abuse of discretion. Accordingly, we affirm

the judgment of the Superior Court.

                                              IV

                                           Conclusion

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

shall be returned to the Superior Court.




                                              -9-
                            RHODE ISLAND SUPREME COURT CLERK’S OFFICE

                                 Clerk’s Office Order/Opinion Cover Sheet




TITLE OF CASE:        Amadeu Santos v. State of Rhode Island.

CASE NO:              No. 2013-131-Appeal.
                      (KM 12-743)

COURT:                Supreme Court

DATE OPINION FILED: June 2, 2014

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

WRITTEN BY:           Chief Justice Paul A. Suttell

SOURCE OF APPEAL:     Kent County Superior Court

JUDGE FROM LOWER COURT:

                      Associate Justice Allen P. Rubine

ATTORNEYS ON APPEAL:

                      For Petitioner: Janice M. Weisfeld
                                      Office of the Public Defender

                      For State: Lauren S. Zurier
                                 Department of Attorney General
