Anthony Lipscomb v. State of Rhode Island

144 A.3d 299, 2016 R.I. LEXIS 90
CourtSupreme Court of Rhode Island
DecidedJune 24, 2016
Docket2015-45-Appeal (PM 10-3377)
StatusPublished
Cited by2 cases

This text of 144 A.3d 299 (Anthony Lipscomb v. State of Rhode Island) is published on Counsel Stack Legal Research, covering Supreme Court of Rhode Island primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Anthony Lipscomb v. State of Rhode Island, 144 A.3d 299, 2016 R.I. LEXIS 90 (R.I. 2016).

Opinion

OPINION

Chief Justice Suttell, for the Court.

The applicant, Anthony Lipscomb, appeals from the denial of his application for postconviction relief. This ease 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 submission's 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

The applicant first initiated his postcon-viction-relief proceedings in 2009, when he filed an “omnibus pro-sé motion.” The applicant’s motion was neither sworn nor verified as required by G.L. 1956 § 10-9.1-3; therefore the Superior Court issued an order staying the postconvictioh-relief proceedings until applicant filed a complaint in the proper form. On July 20, 2012, applicant filed an amended application for postconviction relief — sworn and verified — asserting that his convictions in four separate drug-offense cases were the result of ineffective assistance of counsel in violation of the state and federal constitutions because he had pled nolo contendere in each case rather than either pursuing a motion to suppress physical .evidence or going to trial.

*302 A justice of the Superior Court held a hearing on the postconviction-relief application in February 2013. The three attorneys who had represented applicant in the four cases at issue each testified. The applicant could not testify in person because he was incarcerated in a federal prison located out of state, but he had been deposed in January 2013 by telephone and this deposition testimony was admitted as an exhibit to the postconviction-relief proceedings. During the closing argument, applicant’s counsel withdrew one of the four cases included in his postconviction-relief application because, in applicant’s deposition testimony, he had discussed a series of facts that were not consistent with that case. The travel of the three remaining cases as well as the testimony from applicant and the attorney who represented him in each case are summarized below.

A

2000 Conviction (Case No. P2/00-1178A)

On March 1, 2000, applicant was arrested after police responded to a call that a passenger in a white Mercury Sable with registration plate IU-72 had been seen holding a shotgun. Just a few days before, the police had received a report that a gun had been fired into a vehicle from a white Mercury Sable; the complainant had claimed that this vehicle belonged to applicant. When applicant was strip-searched at the police station after his arrest, a bag of marijuana and some small bags of cocaine fell from between his legs. The applicant was charged with one count of possession of cocaine and one count of possession of marijuana. On October 2, 2000, applicant pled nolo contendere to possession of cocaine and marijuana and was sentenced to two years, suspended, with probation.

In his application for postconviction relief, applicant claimed that he had been denied his constitutional right to the effective assistance of counsel and alleged that he had pled nolo contendere without being advised that a motion to suppress the items seized from his person could have been viable had the issue been raised. At the hearing, attorney Scott Lutes, who represented applicant in this case, testified that his review of the postconviction-relief application “vaguely” refreshed his recollection regarding his representation of applicant, but that he “represent[ed] probably 200 people a year, [which was] a lot of cases to distinguish from.” Mr. Lutes, however, “recall[ed] [applicant] because [he] [had] represented him several times.” Mr. Lutes testified that he “always” considered potential grounds for alleging unconstitutional search and seizure and whether to file a motion to suppress, and that he would “go over a case with a client and discuss the legal issues, the pros and cons of pursuing this avenue or that avenue, and ultimately the client ma[de] the decision [about] what they want[ed] to do.” While Mr. Lutes did not specifically recall either this case or having had such a conversation with applicant, he did recall that “we had a conversation with the clerk’s office when he was charged, and I showed him it was only charged as a simple possession charge, and he was happy with that because he didn’t feel he had the same potential going to jail [sic] for that.” Mr. Lutes testified that his “vague recollection * * * was that [applicant’s] primary focus was on * * * wrapping everything up for a concurrent sentence and [applicant] was satisfied that it wasn’t a possession with intent charge * * * and didn’t want to pursue the issues and go[] to trial.” According to Mr. Lutes, he “never made a client plead to something. Even if they’re hesitant, [he would] continue it * * *, and [he] [did not] recall that being an issue in this case at all.”

*303 During his deposition, applicant testified that, while he had not asked Mr. Lutes any questions about the legality of the search, “now that [he had] a little understanding in regards to the law * * *,” he would have “definitely” proceeded with a motion to suppress if Mr. Lutes had told him that there were grounds for such a motion. The applicant also testified that his communication with Mr. Lutes during the case occurred “during court proceedings” and that he had not “really sat down with him and discussed the case in length in its totality at all, * * * to * * * review [his] options.” The applicant also testified that he could not recall any specific conversations with Mr. Lutes regarding his case or whether Mr.. Lutes spoke with him about the case, “but [he was] leaning more toward” Mr. Lutes not having spoken with him regarding the defense strategy.

B

2002 Conviction (Case No. P2/01-1539A)

On April 13, 2001, applicant was pulled over for' speeding on interstate 95. The applicant produced his driver’s license and a bill of sale for the car that was dated that day. According to the police' narrative attached to the criminal information filed in this case, while the state trooper was checking applicant’s driver’s license, he recalled that he had stopped the same individual the week before in the same vehicle and that applicant had also handed him a bill of sale- for that same vehicle that had reflected that day’s date. After the state trooper ran a -license check, he discovered that applicant had been previously arrested on drug charges. The trooper asked applicant whether he had bought the vehicle that day; applicant replied in the affirmative. The trooper also asked whether applicant had ever been arrested, and applicant answered in the negative. The applicant exited the vehicle upon request; after additional questioning, the state trooper searched him. The state trooper found marijuana in the pocket of applicant’s underwear.

In May 2001, applicant was charged with possession of marijuana, subsequent offense. On April 23, 2002, applicant pled nolo contendere to that charge and was referred to the drug court treatment program.

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Cite This Page — Counsel Stack

Bluebook (online)
144 A.3d 299, 2016 R.I. LEXIS 90, Counsel Stack Legal Research, https://law.counselstack.com/opinion/anthony-lipscomb-v-state-of-rhode-island-ri-2016.