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STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS
PROVIDENCE, SC. SUPERIOR COURT
[Filed: July 20, 2020]
CHRISTOPHER BLIDI :
:
VS. : Case No. PM-2018-7851
:
STATE OF RHODE ISLAND :
DECISION ON MOTION FOR SUMMARY JUDGMENT
VOGEL, J. Petitioner, Christopher Blidi (Blidi or Applicant) brings this motion for summary
judgment asking the Court to vacate his guilty plea and conviction for first degree child molestation
sexual assault. Blidi filed his Application for Post-Conviction Relief under G.L. 1956 § 10-9.1-
1(a)(1). He claims that his plea was neither knowing, voluntary nor intelligent because he was not
informed of the mandatory community supervision requirements set forth in G.L. 1956 § 13-8-
30.1 The State opposes Blidi’s motion solely on the argument that the consequences of § 13-8-30
are collateral rather than direct, and as such, failure to advise him of those consequences does not
render his plea deficient. Of significance, Blidi does not reference G.L. 1956 § 11-37-8.2.1, the
statute that requires him to be electronically monitored for life through an active global positioning
system upon release from prison.
1 In his pro se Application, Blidi complains that there was a “1) Failure to advise of mandatory
Comm. Supervision 13-8-30.” (Application for Post-Conviction Relief filed October 29, 2018);
His memorandum in support of this motion filed by counsel references only § 13-8-30. Pet’r’s
Mem. Supp. Mot. Summ. J., May 7, 2020.
2
Facts
A grand jury indicted Christopher Blidi in 2012, charging him with two counts of criminal
conduct, one count of first degree child molestation, to wit, penile/vaginal penetration and a second
count of assault with intent to commit child molestation. The charges in count one stem from
allegations against Blidi that in 2010, he molested Amy2, the nine-year old niece of his live-in
girlfriend by penetrating her vagina with his penis from behind. The charges in count two refer to
another occasion when he purportedly attempted to molest her by removing her underwear, but
then stopped when she resisted the assault.
On March 26, 2014, the case was reached for trial before this trial justice. The Court issued
a pretrial order and prepared a written jury questionnaire. The State was prepared to proceed and
to present testimony from Amy. However, at the so-called “eleventh hour,” Blidi requested
permission to change his plea to guilty to the charges in count one, first degree child molestation
in violation of § 11-37-8.1. In exchange for his willingness to plead guilty to count one, the State
agreed to dismiss the charges in count two. At the plea hearing, the Court reviewed the affidavit
signed by Blidi and addressed a variety of issues with him in detail, such as the fact that a guilty
plea carried with it the waiver of specific constitutional rights, the immigration consequences for
a non-citizen, whether he wished to consult with an immigration specialist, the impact on a
citizen’s voting rights if incarcerated, and the ramifications of failing to comply with the terms and
conditions of probation when he is released. (Tr. 5-8, Mar. 26, 2014.) Blidi also acknowledged
knowing that statutory requirements flowed from plea of guilty to first degree child molestation,
“including registration as a sex offender . . .” 3 Id. at 10. On an earlier occasion, August 6, 2013,
2 To protect the anonymity of the complaining witness, the Court uses a pseudonym in place of her
name. 3 The transcript was inaccurately transcribed as “including registrations, sex offender . . .”
3
this trial judge conducted a hearing to ensure that Blidi understood the then pending offer of 45
years with 12 years to serve before he rejected it. At that hearing, the Court reviewed with Blidi
the maximum penalties for both counts for which he was charged “and the fact that you would
have to be registered as a sex offender, there would be statutory requirements of counseling and
so forth, and you said you understood.” Blidi responded in the affirmative. Id. at 2-3. However,
the Court did not address the provisions of § 13-8-30 or § 11-37-8.2.1 at either hearing.4
Counsel for the State provided the Court with a narration of facts. She represented that the
State was prepared to prove beyond a reasonable doubt that in 2010, Blidi engaged in sexual
penetration with Amy, a child under the age of fourteen. The Court asked Blidi if he was guilty of
committing the conduct described by counsel, and he responded “Yes.” Id. at 8-9. The Court then
received a compelling victim impact statement authored by Amy followed by an in-court statement
offered by her mother who noted that “[w]hat happened in dark comes to light by one courageous
little girl who shows the strength within.” Id. at 11. The Court determined that Blidi’s decision to
change his plea was knowing, voluntary and intelligent and accepted his decision to plead guilty
to the charges in count one, first degree child molestation sexual assault. Blidi declined to make
an allocution statement, and the Court imposed the agreed upon sentence of fifty years at the Adult
Correctional Institutions, fourteen years to serve with the balance suspended with probation and a
no contact order with Amy.
On October 29, 2018, Blidi filed this Application for Post-Conviction Relief. The Court
conducted a hearing on the Application on December 17, 2019. Both Scott Lutes, Blidi’s attorney
4 In recent months, multiple postconviction relief applicants have asserted that their pleas should
be vacated for failure to inform them of the provisions of § 13-8-30 at the plea stage, and members
of the judiciary, myself included, have incorporated the provisions into the plea colloquy, where
applicable.
4
at the plea stage, and Blidi offered testimony on the issue of whether attorney Lutes had reviewed
the provisions of § 13-8-30 with Blidi. Lutes testified that he had no recollection of discussing the
community monitoring requirement with the Applicant and was unable to testify as to whether he
then had a regular practice of informing clients of the provisions of that statute. (Tr. 7-8, Dec. 17,
2019.) For his part, Blidi testified that when he decided to plead guilty, he then understood that he
“… would receive a sentence of 50 years with 14 to serve, the balance suspended, and a total of
50 years … would be under supervision and probation …” Id. at 14. He acknowledged knowing
that he “would be required to register as a sex offender …” Id. at 14-15.
Blidi testified that attorney Lutes never informed him of the provisions of the statute and
that he first learned of the community supervision requirement after the plea when a fellow
prisoner told him about it while he was serving his sentence. Id. at 16, 22-23. Blidi testified that if
he had known about the community supervision law, he would not have pled guilty “[b]ecause I
would rather go to trial . . . If I knew about that, I would not plead guilty . . . If he told me about
that, I’d rather go to trial than to plead guilty.” Id. at 17. He explained that he would have gone to
trial rather than “wear the GPS the rest of my life.” Id. at 18. He added that “It’s not about not
pleading guilty, because I didn’t understand, because he never said anything about GPS the rest of
my life.” Id. at 18. Reviewing the entirety of the testimony offered at the December 17, 2019
hearing, it is clear that the questioning attorneys and the witnesses confused the community
supervision provisions under § 13-8-30 with the electronic monitoring requirement under § 11-37-
8.2.1. Pet’r’s Mem. Law Supp. of Mot. Summ. J., Ex. 3, May 7, 2020.
Applicable Law
As a person convicted of first degree child molestation, Blidi is subject to the provisions
of § 13-8-30 and of § 11-37-8.2.1. Those provisions subject Blidi upon his release from prison
5
both to community supervision and electronic monitoring via an active global positioning system
for life. In pertinent part, § 13-8-30 provides:
Ҥ 13-8-30. Community supervision for child molestation
offenses.
Notwithstanding any other provision of the general laws to the
contrary, any person convicted of first degree child molestation
pursuant to § 11-37-8.1 . . . shall, in addition to any other penalty
imposed, be subject to community supervision upon that person’s
completion of any prison sentence, suspended sentence, and/or
probationary term imposed as a result of that conviction.
In the case of a person convicted of first degree child molestation
pursuant to § 11-37-8.1, community supervision shall be for life and
pursuant to the provisions of § 11-37-8.2.1, community supervision
shall include electronic monitoring via an active global positioning
system for life . . .” Section 13-8-30.
While a person is under community supervision, he or she is “under the jurisdiction,
supervision and control of the parole board in the same manner as a person under parole
supervision.” Section 13-8-32(b). Under § 13-8-32(e) – (j), a person “sentenced” to community
supervision can under certain circumstances petition the parole board for termination of
community supervision. Section 13-8-32.
“§ 13-8-33. Violations of community supervision—penalties.
Any person who violates a condition of community supervision
shall be guilty of a separate offense and, upon conviction, shall be
sentenced to no more than one year in prison; provided, if the
violation also constitutes a criminal offense the term of
imprisonment shall be consecutive to any sentence received for the
commission of the new offense.” Section 13-8-33.
The provisions that permit early termination of community supervision would not appear
to greatly benefit Blidi because he was convicted of first degree child molestation which subjects
him to an additional “penalty” under § 11-37-8.2.1, the so-called Penalty for First Degree Child
6
Molestation Sexual Assault--Jessica Lunsford Child Predator Act of 2006. That Act does not give
the parole board or the Court discretion to reduce the “penalty” to less than lifetime.
In accordance with the pertinent provisions of § 11-37-8.2.1:
“Every person who shall violate the provisions of subdivisions 11-
37-8.2.1(b)(1) . . . shall be electronically monitored via an active
global positioning system for life and, as a condition of parole and
probation, and for the duration of any period of his or her probation
following his or her parole shall attend a sex offender treatment
program to address his or her criminally offensive behavior, as
determined by the department of probation and parole. The persons
subject to this condition of parole shall include:
(1) Persons who commit first degree child molestation sexual
assault on or after January 1, 2007 and the victim of the sexual
assault is twelve (12) years of age or younger;
. . .
(3) Any person who violates the terms of the global position
monitoring conditions shall be guilty of a misdemeanor.” Section
11-37-8.2.1.
Blidi brings this petition for postconviction relief pursuant to § 10-9.1-1(a)(1), which
provides that:
“(a) Any person who has been convicted of, or sentenced for, a
crime, a violation of law, or a violation of probationary or deferred
sentence status and who claims:
(1) That the conviction or the sentence was in violation of the
constitution of the United States or the constitution or laws of this
state . . .” Section 10-9.1-1(a)(1).
“Generally, ‘in the case of someone who has entered a plea of nolo contendere (or guilty),
[t]he sole focus of an application for postconviction relief . . . is the nature of counsel’s advice
concerning the plea and the voluntariness of the plea.’” State v. Gibson, 182 A.3d 540, 552 (R.I.
2018) (quoting Guerrero v. State, 47 A.3d 289, 300 (R.I. 2012)). Although a nolo contendere (or
guilty) plea “‘waives all nonjurisdictional defects,’” it does not prevent the petitioner from
7
asserting that an applicable statute is unconstitutional. Id. at 553 (quoting Torres v. State, 19 A.3d
71, 79 (R.I. 2011)).
To prevail on a claim brought under § 10-9.1-1, the applicant must demonstrate by a
preponderance of the evidence “[t]hat the conviction or the sentence was in violation of the
constitution of the United States or the constitution or laws of this state [.]” Section 10-9.1-1(a)(1).
See also Hazard v. State, 64 A.3d 749, 756 (R.I.2013), Perkins v. State, 78 A.3d 764, 767 (R.I.
2013). ‘“[P]ost-conviction relief is available to a defendant convicted of a crime who contends
that his original conviction or sentence violated rights that the state or federal constitutions secured
to him.”’ Gordon v. State, 18 A.3d 467, 473 (R.I. 2011) (quoting Young v. State, 877 A.2d 625,
628 (R.I.2005)).
Blidi claims that his guilty plea should be vacated because it was not knowing, voluntary
and intelligent because he was not first advised that the consequences of his plea included lifetime
community supervision under § 13-8-30. As such, he claims that his plea and conviction violate
the Due Process Clause of the Fourteenth Amendment which guarantees that defendants receive
“the fundamental elements of fairness in a criminal [proceeding].” Spencer v. State of Texas, 385
U.S. 554, 563-64 (1967). Those elements of fairness mean that no person shall plead guilty or nolo
contendere to criminal charges unless the decision to enter the plea is knowing, voluntary and
intelligent. The decision to plead guilty or nolo contendere must be made with sufficient awareness
of the relevant circumstances and the direct consequences of the plea. See Brady v. United States,
397 U.S. 742, 748 (1970). Rule 11 of the Superior Court Rules of Criminal Procedure provides,
in pertinent part:
“The court may refuse to accept a plea of guilty and shall not accept
such plea . . . without first addressing the defendant personally and
determining that the plea is made voluntarily with understanding of
8
the nature of the charge and the consequences of the plea. . . .”
Super. R. Crim. P. 11.
Blidi brings this motion under Rule 56 of the Superior Court Rules of Civil Procedure
which provides, in pertinent part:
“(a) A party seeking to recover upon a claim . . . may . . . move
with or without supporting affidavits for a summary judgment in the
party’s favor upon all or any part thereof
. . .
“(c) The judgment sought shall be rendered forthwith if the
pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is
entitled to judgment as matter of law . . .” Super. R. Civ. P. 56.
Although Blidi entitles his filing as a motion for summary judgment, it is unclear to this
Court why he has done so. Summary judgment “is designed to decide in an expeditious fashion
cases presenting groundless claims.” Bruce Pollak v. 217 Indian Avenue, LLC, 222 A.3d 478, 481
(R.I. 2019); Hexagon Holdings, Inc. v. Carlisle Syntec Inc., 199 A.3d 1034, 1038 (R.I. 2019). By
a grant of summary judgment, the Court determines that all or some of the issues presented should
not proceed to a full hearing or trial. The trial justice should “ deny summary judgment in a case
where there is reason to believe that the better course would be to proceed to a full trial.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In this case, the parties have been fully heard.
The Court conducted a hearing, and the parties have presented their respective arguments in the
legal memoranda they have submitted. If the Court were to deny the motion, there would be
nothing left to determine. Accordingly, the Court construes this so-called motion for summary
judgment as a decision on the merits of Blidi’s Application and will determine whether he has
proven by a preponderance of the evidence that he is entitled to the relief sought.
9
Whether Blidi Has Waived His Claim under § 11-37-8.2.1
Based upon the memorandum submitted in support of Blidi’s motion, it is clear that Blidi
urges this Court merely to adopt the reasoning and findings set forth in a decision issued by another
justice of the Superior Court in Furlong vs. State of Rhode Island, KM-2018-0320 (July 3, 2019).
Clearly, the hearing justice in Furlong issued a well-reasoned and thorough decision based on her
examination of § 13-8-30 as it related to the case before her, one involving an applicant who pled
and was convicted of second degree child molestation. The conviction did not carry obligations
under § 11-37-8.2.1. Arguably, lifetime electronic monitoring constitutes a far more restrictive
sanction than lifetime community supervision.
In her decision granting Furlong’s application for postconviction relief, the hearing justice
focused in significant part on the fact that “[w]hen Furlong pled nolo contendere to second degree
child molestation, he was not aware that as a result of his plea, he would be required to comply
with the extensive requirements imposed by the Parole Board beyond the twenty-year sentence to
which he agreed.” Furlong, KM-2018-0320 at 22. Furlong, who was born on March 28, 1978,
was sentenced to a 20-year full sentence on February 12, 2014. He would have been 56 when he
completed his probation. State vs. Furlong, K2-2012-0161A, Furlong, KM-2018-0320 at 2. In
contrast, Blidi, whose sentence includes at least an additional 36 years following his release from
prison, will be 94 years old when his probation ends. When Blidi expressed concerns that he would
be required to “wear the GPS the rest of my life,” he did not distinguish between the obligation to
be electronically monitored before his probation ended and after it was completed. (Tr. 18, Dec.
17, 2019.)
The posture of the two cases differ. Furlong was nearing his eligibility for parole. Blidi
does not allege that he is scheduled for release from prison. In Furlong, KM-2018-0320, the Parole
10
Administrator presented the applicant with a document entitled “Notice and Terms of Community
Supervision,” which describes nine terms and conditions of his sentence5 and requested that he
sign it. Id. at 3-4. He refused to do so.
Of note, at the time of his guilty plea, Blidi was informed that he would have to comply
with sex offender registration and counseling requirements, conditions #8 and #9 on the list of
“terms and conditions” presented to Furlong for signature. (Tr. 2-3, 10, Mar. 26, 2014; Tr. 14-15,
Dec. 17, 2019).
Frankly, it does not reasonably follow that Blidi would ignore the provisions of § 11-37-
8.2.1 and pursue this Application on the argument that at the age of 94, he would continue to face
community supervision under § 13-8-30 for the remaining years of his life.
5 TERMS AND CONDITIONS
“1. Observe the laws of the State of Rhode Island and of the United States and of
every jurisdiction . . .
“2. Do not leave the State or Rhode Island without the written permission of your
parole officer.
“3. Reply promptly to any communication from the Probation & Parole division . .
. .
“4. Carry out all instructions of your parole officer, report as directed and permit
him/her to visit your residence and place of employment whenever he/she deems
such visits necessary.
“5. Immediately inform your parole officer if you are arrested or charged with any
criminal offense.
“6. No ownership or possession of firearms or weapons of any description.
“7. No contact with minors unless expressly approved by your parole officer.
“8. Comply with all sex offender registration requirements as provided by law.
“9. Sex offender specific counseling with a recognized treatment provider in the
field and compliance with all conditions thereof.
“Pursuant to Rhode Island Law, these terms and conditions may be revised, altered,
and amended by the Parole Board at any time. Any violation of the conditions of
community supervision will result in a separate offense and, upon conviction, shall
result in a sentence of no more than one (1) year in prison.” Id. at 3-4, n.3.
11
Section 13-8-30 clearly states that in addition to community supervision, persons
convicted of first degree child molestation also are subject to electronic monitoring under another
section of the law, § 11-37-8.2.1. “[P]ursuant to the provisions of § 11-37-8.2.1, community
supervision shall include electronic monitoring via an active global positioning system for life.”
Section § 13-8-30. Although the legislature may have referred to electronic monitoring as an
additional form of community supervision, it is clear that electronic monitoring does not fall within
the purview of § 13-8-30. There is only one statute governing electronic monitoring of a person
convicted of first degree child molestation, § 11-37-8.2.1.
The two statutes, § 13-8-30 and § 11-37-8.2.1, are different by sanction and by placement.
The provision regarding lifetime community supervision is situated in Title 13, Criminals—
Correctional Institutions, Chapter 8, Parole. Lifetime electronic monitoring is included in Title 11,
Criminal Offenses, Chapter 37, Sexual Assault. In placement, the provision immediately follows
§ 11-37-8.2, which sets forth the maximum and minimum sentences for those convicted of first
degree child molestation sexual assault. This distinction may be significant in determining whether
the consequences of the provisions are part of a person’s punishment and thereby a direct
consequence of his or her plea.
For example, in rejecting an applicant’s contention that the Wisconsin electronic
monitoring requirement was punitive and a direct consequence of his plea, the Court in that state
considered several factors including the “statutory text, context, and structure” of the applicable
statute. The Court noted:
“Lifetime GPS monitoring is found in Wis. Stat. ch. 301 governing
corrections, not in the criminal penalties chapters of the statutes.
State v. Dugan, 534 N.W.2d 897 (Wis. Ct. App. 1995) (looking to
the statutory placement of the consequence). It also follows several
other provisions dealing with sex offenders that appear to have
similar goals.” State v. Muldrow, 900 N.W.2d 859, 866 (Wis. Ct.
12
App. 2017), aff’d, 912 N.W.2d 74 (Wis. 2018). See also Belleau v.
Wall, 132 F. Supp. 3d 1085 (E.D. Wis. 2015).
In urging the Court to follow Furlong, counsel for Blidi focuses solely on the failure to
inform him of the provisions of § 13-8-30, community supervision. Blidi specifies in his pro se
Application that there was “1) failure to advise of mandatory Comm. Supervision 13-8-30.”
(Application for Post-Conviction Relief filed October 29, 2018), but makes no mention therein of
the failure to advise him of the provisions of § 11-37-8.2.1. Counsel entered his appearance less
than three months later, but never amended the Application.
In accordance with § 10-9.1-4, “the application shall . . . specifically set forth the grounds
upon which the application is based . . .” Section 10-9.1-4. Not only does Blidi fail to identify the
electronic monitoring statute in his Application, he also fails to mention § 11-37-8.2.1 in his
memorandum filed in support of the within motion. (Pet’r’s Mem. Law Supp. of Mot. Summ. J.,
May 7, 2020). For her part, in filing a memorandum in opposition to the within motion, counsel
for the State likewise limited her argument to community supervision under § 13-8-30 and never
mentions § 11-37-8.2.1. (Resp’t’s Mem. Law Objecting to Pet’r’s Mot. Summ. J., July 2, 2020.)
Blidi raised arguments under § 13-8-30 and the State responded to those arguments.
This hearing justice is cognizant of the prohibition against acting as an advocate for either
the Applicant or the State. State v. Fenner, 503 A.2d 518, 525 (R.I. 1986). Given that prohibition
and the fact that this is an adversarial process, the Court is reluctant to rewrite Blidi’s Application
and the arguments advanced on his behalf. However, Blidi submitted certain exhibits with his
memorandum in support of the within motion. One of those exhibits is the transcript from the
hearing held on December 17, 2019 which contains Blidi’s testimony. Although he confused the
community supervision statute with the electronic monitoring statute, his concern clearly was that
he would be subjected to electronic monitoring from the time he was released from prison until he
13
died. Blidi testified that he would have gone to trial rather than “wear the GPS the rest of my life.”
He added “It’s not about not pleading guilty, because I didn’t understand, because he never said
anything about GPS the rest of my life.” (Tr. 18, Dec. 17, 2019.) It is clear to this Court that Blidi’s
concern did not relate to that period of time he would be required to “wear the GPS” between the
expiration of his probation at age 94 and his death. His focus was that he was not informed that
his plea would subject him to electronic monitoring at all, from his release from prison until he
died.
The Court notes that Blidi articulated a claim under § 11-37-8.2.1 when he testified, and a
transcript of his testimony was submitted as an exhibit with his memorandum in support of this
motion. Pet’r’s Mem. Law Supp. of Mot. Summ. J., Ex. 3, May 7, 2020. His pro se Application
includes the broad statement “[t]hat the applicant’s sentence and conviction are in violation of the
United States Constitution and the Rhode Island State Constitution.” (Application for Post-
Conviction Relief filed October 29, 2018.) For these reasons, this Court will consider his motion
as if he had based it on § 11-37-8.2.1 because that was his intent. Although the issue was not
properly pled or briefed, it was raised indirectly by Blidi himself and appears on the transcript of
his testimony which was submitted in support of his motion. Counsel for the State appeared at the
December 17, 2019 hearing and thereby was on notice of the claim by Blidi himself that he was
basing his Application on the failure to advise him of the statutory mandate that he “wear the GPS
the rest of (his) life.” For these reasons, the Court will view Blidi’s Application for Post-Conviction
Relief as though he had based it on the failure to inform him of the provisions of § 11-37-8.2.1.6
6 The Court must express disappointment that counsel for neither party even cited § 11-37-8.2.1.
This is particularly puzzling because the citation to this statute is clearly provided in § 13-8-30
itself. It appears that counsel for both parties merely piggy-backed onto the issues raised and
decided in Furlong without delving into the issues pertinent to this case. This Court does not
14
Ineffective Assistance of Counsel Claim Waived
The Court notes that Blidi has waived any claim for ineffective assistance of counsel,
opting instead to “solely rely on the involuntary/unintelligent plea argument.” Counsel for Blidi
specifically states that “the Strickland analysis is not necessary.”7 Counsel instead asks this trial
justice to find that Blidi’s plea was neither knowing, voluntary nor intelligent and should be
vacated because Blidi was not informed of a direct consequence of pleading guilty.8
Blidi’s decision to waive the ineffective assistance of counsel claim reflects a concession
on his part that, even if he was able to demonstrate that his attorney’s performance was
constitutionally deficient, his claim likely would nonetheless fail because he could not prove such
deficiency prejudiced him, and would be unable to prove that he was prejudiced by such
deficiency. See Strickland v. Washington, 466 U.S. 668 (1984); Chapdelaine v. State, 32 A.3d
937, 941 (R.I. 2011); Rodriguez v. State, 941 A.2d 158, 162 (R.I. 2008). By waiving the claim of
ineffective assistance of counsel, Blidi avoids addressing the potential strength of the evidence
against him and the likelihood that he might be sentenced to a higher term of years to serve if
convicted after trial. Of course, if convicted at trial, he would be subjected to the statutory
requirements under § 13-8-30 and § 11-37-8.2.1. Absent evidence that the outcome would have
merely cut and paste a decision from another judge as a means of submitting an issue to the
Supreme Court for review. Every litigant is entitled to individual consideration of his or her case. 7 Strickland v. Washington, 466 U.S. 668 (1984). 8 In an email to the Court dated July 7, 2020, attorney Berg explained:
“I made a deliberate decision to waive the ineffective assistance of counsel
argument, and solely rely on the involuntary/unintelligent plea
argument. Consequently, the Strickland analysis is not necessary. Mr.
Blidi suggests that if this Court finds that he was not fully informed of the
direct consequences of his plea, including community monitoring, then his
plea must be vacated.”
15
been different he opted to go to trial rather than enter a plea, Blidi would have been unable to meet
Strickland’s second prong, prejudice.
§ 11-37-8.2.1 - A Direct or Collateral Consequence of His Plea
The pertinent facts in this case are undisputed. The State does not contest Blidi’s three
pertinent factual contentions: (1) attorney Lutes failed to advise Blidi of the community and
electronic monitoring provisions of the statutes; (2) Blidi had no prior knowledge of the statutes;
and (3) had he been informed that he was subject to lifetime electronic monitoring, he would have
opted to try the case rather than to plead guilty.
Instead, the State argues that § 13-8-30 is a collateral consequence of Blidi’s plea, and as
such, his plea was valid even if he was unaware that he would be subjected to community
supervision under that statute.9 “A defendant need only be made aware of the direct consequences
of his plea for it to be valid.” State v. Figueroa, 639 A.2d 495, 499 (R.I. 1994); Beagen v. State,
705 A.2d 173, 175 (R.I. 1998).
The consequences facing the applicant in Beagen, were based upon sentencing provisions
in a federal statute. In that case, the applicant pled nolo contendere to drug charges in the Superior
Court and received a suspended sentence with probation. Thereafter, while still on probation, the
applicant committed a federal offense which subjected him to an enhanced sentence because he
was on probation when he committed it. He sought postconviction relief to vacate his state
conviction before being sentenced in federal court. The applicant argued that his attorney’s
representation was constitutionally deficient because he had not been advised of the risk of an
enhanced sentence mandated by federal statute should he commit a federal offense while on state
9 As stated previously, the State does not address the provisions of § 11-37-8.2.1 and never
indicates whether or not electronic monitoring also is a collateral consequence of Blidi’s plea.
16
court probation. The possibility that he could face a stiffer sentence in federal court in the future
was a collateral rather than direct consequence of his plea. As the Court noted “the federal criminal
justice system is outside the authority or control of a Superior Court justice, or any other agent of
the State of Rhode Island.” Beagen, 705 A.2d at 175.
In Cote v. State, 994 A.2d 59, 63 (R.I. 2010), the applicant argued that the Department of
Corrections (DOC) incorrectly calculated good time credits which amounted to “a
misrepresentation [of] the minimum time he would be required to serve.” He claimed that he had
pled nolo contendere and accepted a term of years to serve because he relied upon the DOC’s
representations regarding the calculation of good time credits which would thereby qualify him
for early release. Because those representations later were deemed unlawful and thus inapplicable
to his sentence, he claimed that “his plea was not knowing, intelligent and voluntary, and thus
should be vacated.” Id. at 63. The Court rejected his argument because “[t]he Superior Court has
no authority over the DOC’s decision-making in this area with respect to individual inmates. Thus,
such considerations do not implicate the court’s determination of the voluntariness of a plea.” Id.
The subject consequences facing Blidi under § 11-37-8.2.1 are based upon a Rhode Island
state statute, not the determinations of an outside agency or a different jurisdiction. Although this
judge had no decision-making authority to modify the requirements of § 11-37-8.2.1 when Blidi
pled guilty to first degree child molestation, that fact in and of itself does not render the provisions
of that statute collateral consequences to his plea.
In passing both the community supervision and the electronic monitoring statutes, the
legislature responded to a genuine concern that sex offenders of children, even after serving
lengthy terms of incarceration and engaging in counseling, constitute a significant threat to
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children in our community. Statistics demonstrate that they have higher rates of recidivism than
other offenders, and when they reoffend, the damage they cause is immeasurable.
“Sex offenders are a serious threat in this Nation. In 1995, an
estimated 355,000 rapes and sexual assaults occurred nationwide.
U.S. Dept. of Justice, Bureau of Justice Statistics, Sex Offenses and
Offenders 1 (1997) (hereinafter Sex Offenses); U.S. Dept. of Justice,
Federal Bureau of Investigation, Crime in the United States, 1999,
Uniform Crime Reports 24 (2000). Between 1980 and 1994, the
population of imprisoned sex offenders increased at a faster rate than
for any other category of violent crime. See Sex Offenses 18. As in
the present case, the victims of sexual assault are most often
juveniles. In 1995, for instance, a majority of reported forcible
sexual offenses were committed against persons under 18 years of
age. University of New Hampshire, Crimes Against Children
Research Center, Fact Sheet 5; Sex Offenses 24. Nearly 4 in 10
imprisoned violent sex offenders said their victims were 12 or
younger. Id., at iii. When convicted sex offenders reenter society,
they are much more likely than any other type of offender to be
rearrested for a new rape or sexual assault. See id. at 27; U.S. Dept.
of Justice, Bureau of Justice Statistics, Recidivism of Prisoners
Released in 1983, p. 6 (1997). ‘States thus have a vital interest in
rehabilitating convicted sex offenders.”’ McKune v. Lile, 536 U.S.
24, 33 (2002).
Even though §§ 13-8-30, et seq. and § 11-37-8.2.1 were enacted to protect our most
vulnerable members of the community, that purpose alone does not render the statutes solely
remedial rather than punitive. Pursuant to the Due Process Clause of the Fourteenth Amendment
to the United States Constitution, a plea must be voluntary and knowing to constitute an effective
waiver of a defendant’s constitutional rights. McCarthy v. United States, 394 U.S. 459, 466 (1969);
The decision to plead guilty or nolo contendere must be intelligent and made with sufficient
awareness of the relevant circumstances and the likely consequences. Brady, 397 U.S. at 748. A
plea of guilty or nolo contendere is voluntary only if the defendant is fully aware of all direct
consequences of waiving his or her constitutional rights. Id.
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There are numerous consequences attached to pleading guilty or nolo contendere to a
criminal charge. When considering an application for postconviction relief on the claim that
defendant was not sufficiently aware of the likely consequences of the plea, the court must
determine whether the consequences complained of are “direct” consequences. See, e.g., People
v. Cole, 817 N.W.2d 497, 502 (Mich. 2012).
In Smith v. Doe, 538 U.S. 84, 92 (2003), the United States Supreme Court considered
whether Alaska’s sex offender registration law was a direct or collateral consequence of a sexual
assault conviction. The Court determined that if the legislative intent of the statute were to impose
punishment, the analysis ends; it would be a direct consequence. “If, however, the intention was
to enact a regulatory scheme that is civil and nonpunitive, [the Court] must further examine
whether the statutory scheme is ‘so punitive either in purpose or effect as to negate the State’s
intention to deem it civil.”’ Id. at 92. In determining that the sex offender registration requirement
was not so punitive in purpose or effect to negate its civil intent, the Court noted that the statute
did not constitute “an affirmative disability or restraint. It imposes no physical restraint, and so
does not resemble imprisonment, the paradigmatic affirmative disability or restraint.” Id. at 86.
The same cannot be said of the electronic monitoring requirement which more closely resembles
a restraint and a punishment than does sex offender registration.
If the primary purpose of lifetime community supervision and electronic monitoring is to
protect the public from recidivism by those convicted of child molestation, that same concern is
also a purpose of incarceration. See State v. Schubert, 53 A.3d 1210, 1217 (N.J. 2012).
“[R]ecidivism ‘is as typical a sentencing factor as one might imagine.”’ Almendarez-Torres v.
United States, 523 U.S. 224, 230 (1998); State v. Hall, 940 A.2d 645, 659 (R.I. 2008). Regardless
19
of the legislative intent behind § 11-37-8.2.1, its punitive effect would negate the State’s claim that
supervision and monitoring constitute collateral consequences of Blidi’s plea.
In determining whether the requirements of § 11-37-2.1 were direct rather than collateral,
the consequences of Blidi’s plea, the Court first examines the impact lifetime electronic tracking.
A Wisconsin court described how electronic monitoring of convicted sex offenders in that state
impacts the life of a person subjected to the system:
“[A] person subject to lifetime GPS tracking must wear a 2.5 x 3.5
x 1.5 inch battery-powered tracking device around his or her ankle
at all times for the rest of his or her life. . . . The device can never be
removed—even while showering, bathing, and sleeping—
sometimes causing discomfort and blistering. Every twenty-four
hours, the wearer must plug the device into an electrical outlet to
charge for approximately one hour (while, of course, continuing to
wear the device). The device ‘creates a noticeable bulge under the
wearer’s pants leg and can become visible if his pants leg raises up,
such as when the wearer sits or bends down.’ This may allow others
to infer that the wearer is a sex offender, subjecting him or her to
embarrassment, harassment, or even violence.” Muldrow, 900
N.W.2d at 862.
Blidi’s conviction subjects him to the obligation as he describes it to “wear the GPS the
rest of my life.” (Tr. 18, Dec. 17, 2019.) Clearly, the provisions of § 11-37-8.2.1 will significantly
impact his daily life. Certainly, Blidi himself believes that to be true. It was the only concern Blidi
raised in Court when testifying in support of his Application. He raised it multiple times.
The Court finds guidance in the Michigan Supreme Court’s decision in Cole. The Michigan
court held that mandatory lifetime electronic monitoring was part of the sentence itself. As such,
it was a direct consequence of a guilty or no-contest plea to a charge of child molestation when the
defendant was sentenced. The Court noted that the Michigan legislature “chose to include the
mandatory lifetime electronic monitoring requirement in the penalty sections of the (two
applicable) statutes, and that both statutes can be found in the Michigan Penal Code, which
20
describes criminal offenses and prescribes penalties.” 817 N.W.2d at 502. The Michigan court
further examined the statutory language and determined that it was punitive in nature. In particular,
the applicable statute included words such as “shall sentence” and that which referred to the
requirement as being “in addition to” the term of imprisonment imposed by the court. Id. at 502-
03.
Comparably, the Rhode Island legislature chose to include mandatory lifetime electronic
monitoring in the penalty section of the statutory scheme defining first degree child molestation
and the maximum and minimum sentences to be imposed if convicted of the crime.
Ҥ 11-37-8.1. First degree child molestation sexual assault.
A person is guilty of first degree child molestation sexual assault if
he or she engages in sexual penetration with a person fourteen (14)
years of age or under.” Section 11-37-8.1.
The next statute following § 11-37-8.1 is the penalty section for those convicted of first
degree child molestation. It provides:
Ҥ 11-37-8.2. Penalty for first degree child molestation sexual
assault.
Every person who shall commit first degree child molestation sexual
assault shall be imprisoned for a period of not less than twenty-five
(25) years and may be imprisoned for life.” Section 11-37-8.2.
The section of the law mandating electronic monitoring follows immediately after § 11-37-8.2.
Ҥ 11-37-8.2.1. Penalty for first degree child molestation sexual
assault--Jessica Lunsford Child Predator Act of 2006.
. . .
“(b) Every person who shall violate the provisions of subdivisions
11-37-8.2.1(b)(1)—11-37-8.2.1(b)(2) listed herein shall be
electronically monitored via an active global positioning system for
life and, as a condition of parole and probation, and for the duration
of any period of his or her probation following his or her parole shall
attend a sex offender treatment program to address his or her
criminally offensive behavior, as determined by the department of
probation and parole. The persons subject to this condition of parole
shall include:
21
“(1) Persons who commit first degree child molestation sexual
assault on or after January 1, 2007 and the victim of the sexual
assault is twelve (12) years of age or younger;
. . .
“(3) Any person who violates the terms of the global position
monitoring conditions shall be guilty of a misdemeanor.” Section
11-37-8.2.1.
The proximity of § 11-37-8.2.1 to § 11-37-8.2 strongly suggests that electronic monitoring
is part of the sentence to be imposed on a person convicted of first degree child molestation. The
very title of the statute reveals that it is punitive in nature, Penalty for first degree child molestation
sexual assault—Jessica Lunsford Child Predator Act of 2006. Additionally, persons who violate
the terms of the electronic monitoring conditions will be guilty of a separate crime. The statutory
requirement that subjects Blidi to lifetime electronic monitoring is punitive in nature and will
severely restrict his liberty. Consequently, the provisions of 11-37-8.2.1 are direct rather than
collateral consequences of a plea. Without information as to those consequences, Blidi’s guilty
plea was not knowing, voluntary nor intelligent.
§ 13-8-30 and Furlong vs State of Rhode Island
Although this case clearly is distinguishable from Furlong vs. State of Rhode Island, KM-
2018-0320 (July 3, 2019), the issues are comparable in that they relate to the requirements under
§ 13-8-30. In determining the issue of direct rather than collateral consequence in Furlong, the
hearing justice examined § 13-8-30 and determined that the community supervision provision of
that statute was a direct consequence of Furlong’s plea. She noted that § 13-8-32(b) authorizes
the Parole Board “to establish any conditions of community supervision that may be necessary to
ensure public safety.” Id. at 21. She further found that that “unlike the terms and conditions of
parole that last only as long as the original sentence imposed by the trial justice, community
22
supervision can extend well beyond the original sentence imposed.” Id. at 21-22. Under § 13-8-
30, a person convicted of second degree child molestation is subject to community supervision for
up to the statutory maximum sentence for the crime, 30 years. Furlong had been sentenced to 20
years but faced an additional 10 years of community supervision under the statute. In this case,
Blidi was sentenced to 50 years, but will be subject to the community supervision requirement
after he completes his probation at age 94 until he dies.
Section 13-8-30 refers to community supervision as a requirement “in addition to any other
penalty imposed.” Another section describes a community supervision as a sentence. “After a
person sentenced to community supervision has been under supervision for a period of (fifteen
(15) years . . .” Section 13-8-32(e). The words “penalty” and “sentenced” suggest a punitive rather
than remedial statutory scheme. Additionally, under § 13-8-33, any person who violates
community supervision provisions shall be guilty of a separate crime punishable up to one year in
prison. Basing her decision on §§ 13-8-30, et seq., the hearing justice in Furlong found that the
community supervision requirement was a direct and punitive consequence of Furlong’s
conviction. She concluded that Furlong’s plea was neither knowing, voluntary nor intelligent
because he was not informed that his plea would subject him to the provisions of § 13-8-30 and
§ 13-8-32.
This Court finds the reasoning and conclusions reached by the hearing justice in Furlong
regarding § 13-8-30 are sound. However, it is not necessary for this Court to address those issues
to decide this case. Regardless of repeatedly citing that statute by section number in papers filed
with the Court and in questions and answers provided at the hearing conducted on December 17,
2019, this Court cannot conclude that Blidi even intended to pursue his claim for postconviction
relief based upon the failure to inform him of the provisions of § 13-8-30. Unlike Furlong, Blidi
23
did not resist complying with a list of terms and conditions presented to him under § 13-8-30. The
only factual basis provided to the Court for his Application was based upon the lifetime obligation
that subjects him to electronic monitoring. To view his Application as being brought under § 13-
8-30 would elevate form over substance which our Supreme Court has “consistently refused to do,
choosing rather to treat a proceeding according to its true nature rather than be limited to the form
in which the action is brought.” Granger v. Johnson, 117 R.I. 440, 450, 367 A.2d 1062, 1067-68
(1977).
Additionally, having already determined that Blidi did not make a knowing, voluntary, nor
intelligent plea because he was not informed that his conviction would subject him to the
provisions of § 11-37-8.2.1, this Court need not reach the issue of whether his plea also was
deficient for failure to advise him that he would be subject to community supervision under § 13-
8-30. See Bucci v. Hurd Buick Pontiac GMC Truck, LLC, 85 A.3d 1160, 1171 (R.I. 2014).
Blidi Did Not Make a Knowing, Voluntary, Intelligent Plea
The Due Process Clause of the Fourteenth Amendment provides that no state shall “deprive
any person of life, liberty, or property, without due process of law.” U.S. CONST. amend. XIV.
It is well established that the Due Process Clause guarantees the fundamental elements of fairness
in a criminal [proceeding].” Spencer, 385 U.S. at 563-64. The guarantee of fundamental fairness
means that no person shall plead guilty or nolo contendere to criminal charges unless the decision
to enter the plea is knowing, voluntary and intelligent. Brady, 397 U.S. at 748.
Under Rule 11 of the Superior Court Rules of Criminal Procedure, the Court shall not
accept a guilty plea “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.” Super. R. Crim. P. 11.
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Because Blidi was not adequately advised of the direct consequences of his guilty plea,
his plea does not meet the constitutional guarantee of fundamental fairness, and as a matter of law
is constitutionally deficient.
Conclusion
The lifetime mandate of electronic monitoring set forth in § 11-37-8.2.1 is a direct
consequence of Blidi’s plea. The failure to inform him of this consequence violates the Due
Process Clause of the Fourteenth Amendment to the United States Constitution and Rule 11 of the
Superior Court Rules of Criminal Procedure. Absent information about electronic monitoring,
Blidi did not make a knowing, voluntary and intelligent plea to the charges against him. Blidi’s
Application for Post-Conviction Relief is granted, and his guilty plea and conviction are vacated.
This matter shall be placed on the calendar for trial on both counts, the dismissal of count 2 having
been part of the plea agreement. Counsel shall submit an appropriate order for entry.
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RHODE ISLAND SUPERIOR COURT
Decision Addendum Sheet
Christopher Blidi v. State of Rhode Island
PM-2018-7851
Providence County Superior Court
July 20, 2020
Vogel, J.
Andrew H. Berg, Esq.
Shannon Signore, Esq.
TITLE OF CASE:
CASE NO:
COURT:
DATE DECISION FILED:
JUSTICE/MAGISTRATE:
ATTORNEYS:
For Plaintiff:
For Defendant: