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Supreme Court
No. 2004-77-Appeal.
(PM 00-4818)
Richard Hassett                                                                                       :
v.                                                                                                    :
State of Rhode Island.                                                                                :
Present:  Williams, C.J., Goldberg, Flaherty, Suttell, and Robinson, JJ.
O P I N I O N
Justice Flaherty, for the Court.   Richard Hassett appeals after a justice of the Superior
Court denied his application for postconviction relief.   Hassett was convicted of a number of
criminal counts arising from an alcohol-related automobile accident, which resulted in the death
of one person and injuries to two others.   Hassett’s conviction was not the product of a verdict
after trial.   Instead, pursuant to a plea agreement, he received a twenty-five-year sentence, with
fifteen years to serve in prison and the rest suspended.   As grounds for this appeal, Hassett
argues that the hearing justice should have granted his application for postconviction relief
because of the allegedly ineffective assistance of the attorney who represented him when he
entered his plea.
I
Facts and Travel
On October 4, 1996, Josephine Elgar was driving along Route 102 in Glocester with her
husband, Harold Elgar, in the passenger seat.  The Elgars were enjoying the fall foliage, but their
pleasant day came to a sudden and tragic end when, according to witness statements, Hassett
crossed over the center line of the road in his Chevy Blazer and slammed into their car, knocking
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it into the path of an oncoming vehicle.  Harold Elgar was killed in the accident.  His wife and an
occupant of that other vehicle, Caroline Hannagan, both suffered injuries.
When  Officer  Jamie  Hainsworth  arrived  at the  accident  scene,  an  occupant  of  the
Hannagan vehicle pointed toward Hassett and said, “that’s the guy that caused the accident, don’t
let him get away.”   When Hainsworth approached Hassett, he detected a strong odor of alcohol,
and he observed that his speech was “extremely slurred.”   These observations were consistent
with the statements of other witnesses, who observed that Hassett was driving “erratically” and
appeared to be “intoxicated.”1
After Hassett failed a field sobriety test, he was arrested and brought to the police station.
Because he refused to submit to a blood alcohol test, the police obtained a warrant to withdraw
his blood so that it could be tested.   That test revealed that Hassett’s blood alcohol content was
0.239.   Hassett subsequently was charged by criminal information with one count of driving
under the influence (DUI), death resulting, in violation of G.L. 1956 § 31-27-2.2; one count of
driving so as to endanger, death resulting, in violation of  §  31-27-1;    two counts of DUI,
resulting in serious bodily injury, in violation of § 31-27-2.6; two counts of driving so as to
endanger, resulting in serious bodily injury, in violation of § 31-27-1.1; and one count of driving
on a suspended license after a previous conviction for DUI, in violation of G.L. 1956 § 31-11-
18.1.
Hassett originally was represented by an attorney from the Public Defender’s office, but
he later retained private counsel.   His new attorney filed an entry of appearance on March 26,
1997, and a trial date was set for September 1997.  However, the case against Hassett never went
1   One witness observed Hassett at a nearby gas station shortly before the accident.   She noted
that Hassett was “staggering,” and after he entered his vehicle, he was unable to close his car
door, apparently because he did not realize that his foot was still hanging outside the vehicle.
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to trial.   Instead, after conferring with counsel, Hassett pleaded guilty to six of the seven counts
lodged against him.2  He received a twenty-five-year sentence, with fifteen years to serve and the
balance to be suspended, with probation, including a ten-year loss of license upon his release.
The fifteen-year jail term specifically was attributed to the charge of DUI, death resulting.
Hassett was sentenced concurrently on the remaining charges, except for one count of DUI,
resulting in serous bodily injury, for which he received a ten-year suspended sentence, with
probation, to be served consecutively upon his release from incarceration.
Apparently unhappy with the deal he had struck, Hassett filed a pro se application for
postconviction relief in September 2000, but counsel soon was appointed for him.  Thereafter, he
amended his application and alleged a multitude of deficiencies related to the performance of the
private attorney who represented him when he pleaded to the criminal charges.   After a hearing,
a justice of the Superior Court denied his application, and Hassett timely appealed.
This case came before the Supreme Court for oral argument on May 2, 2006, 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 hearing the arguments of counsel and examining the
memoranda submitted by the parties, we are of the opinion that cause has not been shown, and
we shall decide the case at this time without further briefing or argument.   For the reasons set
forth herein, we affirm the judgment of the Superior Court.
2 Pursuant to Rule 48(a) of the Superior Court Rules of Criminal Procedure, the state dismissed
count 5, which alleged DUI, resulting in serious bodily injury to Carolyn Hannagan, in violation
of G.L. 1956 § 31-27-2.6.
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II
Standard of Review
A hearing justice’s findings on an application for postconviction relief                              ‘“are entitled to
stand undisturbed on appeal in the absence of clear error or a showing that material evidence was
overlooked or misconceived.’”   Miguel v. State, 774 A.2d 19, 21 (R.I. 2001) (quoting Simpson
v. State, 769 A.2d 1257, 1265 (R.I. 2001)).   However, when a decision on postconviction relief
involves questions of fact or mixed questions of law and fact related to an alleged violation of an
applicant’s constitutional rights, this Court applies de novo review.   Ouimette v. State, 785 A.2d
1132, 1135 (R.I. 2001).
III
Analysis
As grounds for this appeal, Hassett alleges a number of deficiencies related to his private
attorney’s performance.   The gravamen of his argument to this Court is that if the attorney had
represented him more effectively, he would not have entered into a plea agreement, and therefore
his plea should be set aside because it was not made knowingly, intelligently, or voluntarily.
When Hassett entered his plea before the court, the following exchange took place:
“THE COURT:   I have before me a request to change plea, Mr.
Hassett.  Did you sign this?
“THE DEFENDANT:  Yes, I did.
“* * *
“THE COURT:   Did you discuss this change of plea document
with your lawyer before you signed it?
“THE DEFENDANT:  Yeah, I did.
“THE COURT:    Are you satisfied with her assistance on your
behalf ?
“THE DEFENDANT:  Yes, I am.”
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After this exchange, an attorney for the state summarized the evidence, noting that the
state would have been able to present evidence on each charge beyond a reasonable doubt.   The
colloquy between the justice and Hassett then continued as follows:
“THE COURT:   You have a right to trial on these charges, Mr.
Hassett.   You would have been presumed innocent at trial.   You
would not have had to testify or present evidence.  The State would
have had to prove your guilt beyond a reasonable doubt.   You
would have had the right and the opportunity to confront and
cross-examine the State’s witnesses against you.
“If convicted at that trial, you could have appealed your conviction
to the Supreme Court.   If I accept your change of plea to these
various  counts,  there  will  be  no  trial.    All  those  rights  and
privileges disappear and they’re waived.  Do you understand that?
“DEFENDANT:  Yes.
“* * *
“THE COURT:   Has anyone forced you or coerced you to change
your plea this morning?
“THE DEFENDANT:  No.
“THE COURT:   Are you pleading guilty to these offenses because
you did in fact commit them?
“THE DEFENDANT:  Yes.
“THE COURT:   I’m satisfied that there is a basis in fact for the
charges; that the defendant understands all the rights and privileges
that he is giving up.   The plea is made knowingly, intelligently,
and voluntarily.”
It is patently clear from his exchange with the justice that Hassett was well aware that by
pleading guilty he was waiving the panoply of rights attendant to a criminal trial.   Now, in this
collateral attack on his conviction, he attempts to raise many of the issues that might have been
grounds for direct appeal by claiming that he is entitled to postconviction relief because of the
ineffective assistance of his attorney.
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This Court previously has explained that “[t]he sole focus of an application for post-
conviction relief filed by an applicant who has pled guilty is ‘the nature of counsel’s advice
concerning the plea and the voluntariness of the plea.   If the plea is validly entered, we do not
consider any alleged prior constitutional infirmity.’”   Miguel, 774 A.2d at 22 (quoting State v.
Dufresne, 436 A.2d 720, 722 (R.I. 1981)).  To successfully challenge the voluntariness of a plea,
an applicant seeking postconviction relief must establish that the advice of his attorney “was not
within  the  range  of  competence  demanded  of  attorneys  in  criminal  cases.”    Id.            (quoting
Dufresne, 436 A.2d at 723).   It is incumbent upon the applicant to demonstrate that he would
have not entered a guilty plea and would have instead proceeded to trial were it not for the
attorney’s errors.  Carpenter v. State, 796 A.2d 1071, 1074 (R.I. 2002).3
With these principles in mind, we begin our analysis by noting that when counsel
undertook this engagement, she was faced with a very difficult case.   One man was dead, two
other people were injured, and the observations of several eyewitnesses uniformly supported the
conclusion that Hassett was profoundly intoxicated and had been operating his vehicle in a
reckless manner when the fatal accident occurred.   Given the gravity of this evidence, it is not
surprising that the public defender who first represented Hassett and his later private counsel
both advised him to enter into a plea agreement.
During his colloquy with the justice, Hassett indicated that he was “satisfied” with his
attorney’s advice and that no one had forced or coerced him to change his plea.   Despite those
unequivocal responses to the justice’s questions, Hassett now alleges a number of deficiencies of
constitutional dimension related to his private attorney’s performance, including that she failed
3
In State v. Dunn,  726 A.2d  1142,  1146 n.4  (R.I.  1999), we noted that challenges to the
performance of private counsel in postconviction relief proceedings rarely succeed, and when a
person  selects  his  or  her  own  attorney,  any  alleged  deficiencies  seldom  amount  to  an
infringement of one’s constitutional rights.
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to interview witnesses or investigate the accident scene, that she failed to maintain contact with
him, and that she was remiss in not filing certain motions challenging the evidence and the
charges against him.
For example, Hassett argues that the charges of driving to endanger and DUI should have
been merged into one offense.  However, it is well settled that “where the same act or transaction
constitutes a violation of two distinct statutory provisions, the test to be applied to determine
whether there are two offenses or only one, is whether each provision requires proof of a fact
which the other does not.”   State v. Ahmadjian,  438 A.2d  1070,  1086  (R.I.  1981)  (quoting
Blockberger v. United States, 284 U.S. 299, 304 (1932)).   Although Hassett was charged with
multiple  offenses  arising  from the  same  motor vehicle accident, conviction for driving to
endanger  requires  proof  of  recklessness,  while  a  conviction  for  DUI  requires  proof  of
intoxication.   See State v. Weeden, 94 R.I. 1, 177 A.2d 182 (1962) (conviction for DUI does not
require proof of recklessness).   Because each of the charged offenses against Hassett required
different elements of proof, we reject his argument that the charges of driving to endanger and
DUI should have been merged.
Hassett further contends that his attorney should have sought dismissal of the charges
involving serious bodily injury under § 31-27-2.6 (DUI, serious bodily injury resulting) and §
31-27-1.1 (driving to endanger, serious bodily injury resulting).   According to him, the injuries
Ms. Elgar and Ms. Hannagan sustained were not serious enough to meet the statutory standards
for these offenses.   However, it is undisputed that both women were injured in the accident, and
Hassett  himself  acknowledged  at  his  postconviction  hearing  that  Elgar  was  still  receiving
medical treatment months after the accident.   The charges against Hassett certainly would have
survived a challenge under Rule 9.1 of the Superior Court Rules of Criminal Procedure, and the
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extent of his victims’ injuries was ultimately a question of fact that a fact-finder would have
resolved.  See Rule 9.1 (requiring defendant to show lack of probable cause on motion to dismiss
a criminal charge).   In our opinion, it would have been pointless for his attorney to challenge
these charges before trial, and when he pleaded guilty, Hassett admitted that he did, in fact,
commit the crimes as charged.
Nonetheless, even if we accepted Hassett’s argument that the charges alleging serious
bodily injury should have been dismissed, the state had strong evidence on the charges of DUI,
death resulting, in violation of § 31-27-2.2, and driving to endanger, death resulting, in violation
of § 31-27-1.   These charges, standing alone, could have warranted up to twenty-five years in
prison if he had been sentenced consecutively on both counts.  See § 31-27-1 (ten-year maximum
sentence); § 31-27-2.2 (fifteen-year maximum sentence).   Hassett contends that his fifteen-year
jail sentence exceeded the applicable sentencing benchmarks,4 but the benchmarks explicitly say
that a sentencing departure may be appropriate based on a defendant’s criminal history.  Superior
Court Sentencing Benchmarks, Departure from Benchmarks (1998); Superior Court Sentencing
Benchmarks, Departure from Benchmarks (1984).   By Hassett’s own admission, he had three
prior convictions for driving under the influence.   The sentencing justice’s observations are
particularly illuminating on this point:
4 At the time of his plea in 1997, the Superior Court Sentencing Benchmarks did not include the
offense of DUI, death resulting, in violation of § 31-27-2.2.   See Superior Court Sentencing
Benchmarks, Introductory Notes to the  1998 Benchmark Revisions, Note  15  (1998).    This
offense  was  added  when  the  benchmarks  were  amended  in                                          1998,  with  a  recommended
sentencing range of three to ten years.   Id.   However, both the current and past versions of the
benchmarks state that a sentencing departure may be appropriate based on convictions for similar
offenses  and  harm  to  a  victim.    Superior  Court  Sentencing  Benchmarks,  Departure  from
Benchmarks  (1998);  Superior  Court  Sentencing  Benchmarks,  Departure  from  Benchmarks
(1984).
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“In view of your history of alcohol abuse behind the wheel
of  a  motor  vehicle,  it  is  abundantly  clear  that  only  severe
punishment will make an impression on you and keep others on the
road safe from you.”
It also is clear under the benchmarks that “the decision about whether the sentences
should be concurrent or consecutive should remain at the discretion of the sentencing judge.”
Superior Court Sentencing Benchmarks, Using the Benchmarks, Note 7 (1998); Superior Court
Sentencing Benchmarks, Using the Benchmarks, Note  7  (1984).    For example, in State v.
Collins, 714 A.2d 610 (1998) (mem.), we affirmed the Superior Court’s denial of a motion to
reduce sentence after the defendant was convicted for DUI, death resulting, and received the
maximum penalty allowable under the statute, in addition to consecutive sentences on the
remaining counts of DUI, serious bodily injury resulting.   We held that the sentence was within
the justice’s discretion based on the circumstances of the case and the defendant’s prior criminal
conduct and driving record.
Hassett also received the maximum penalty allowable by statute for the charge of DUI,
death resulting, but unlike the defendant in Collins, Hassett negotiated concurrent jail sentences
on the remaining charges, even though it would have been well within the justice’s discretion to
sentence him consecutively if he had taken his chances at trial.5   This certainly was a very
distinct possibility given his past convictions and the evidence against him, including the
observations  of  witnesses  who  said  that  he  was                                                  “staggering,”  that  he  had  been  driving
“erratically,” and that he “appeared to be intoxicated.”   We therefore reject the argument that the
5 Hassett received a consecutive sentence on one charge of DUI, serious bodily injury resulting;
however, his sentence on this charge was suspended, with probation.   As a condition of his
probation, Hassett agreed to a ten-year license suspension to commence upon his release from
jail.
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sentence was excessive and that his attorney was deficient in advising him to accept a plea
agreement.
Hassett raises a number of other issues related to the performance of his attorney, most of
which allege a lack of diligence and pretrial preparation.    In our opinion, these arguments have
no  merit  whatsoever.    He  also  suggests  that  we  should  draw  certain  inferences  from his
attorney’s decision to invoke her Fifth Amendment privilege when she was asked during the
postconviction relief proceeding if she had been using illegal drugs while she represented him.
However, the hearing justice specifically found that there was no indication that his attorney had
been incapacitated, and he went on to describe the attorney as “competent” and “articulate.”6   In
the absence of any contrary evidence, we decline to second-guess the hearing justice’s findings
on  this  point.    Furthermore,  even  if  we  accepted  this  allegation  and  Hassett’s  remaining
allegations of error as true, it is well settled that a claim of ineffective assistance requires an
applicant for postconviction relief to prove that the result of the proceeding would have been
different were it not for the performance of his attorney.   See, e.g., Carpenter, 796 A.2d at 1074
(applicant must show that “absent counsel’s deficient performance, the result of the proceeding
would have been different”) (quoting State v. Figueroa, 639 A.2d 495, 500 (R.I. 1994)); accord
Strickland v. Washington, 466 U.S. 668, 687 (1984).   As noted, there was a strong possibility
that Hassett may have received a much more severe sentence if he had not followed the advice of
counsel and instead taken his case to trial.   The attorney’s advice to plead for a negotiated
sentence was well within “the range of competence demanded of attorneys in criminal cases,”
Miguel,  774  A.2d  at  22  (quoting  Dufresne,  436  A.2d  at  723),  and  Hassett  has  failed  to
6 The hearing justice at Hassett’s postconviction relief hearing was the same justice who presided
over his plea proceedings.
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demonstrate that he was prejudiced by his attorney’s allegedly deficient performance.    We
therefore hold that his claim of ineffective assistance of counsel is without merit.
IV
Conclusion
For the reasons stated herein, we affirm the judgment of the Superior Court.   The record
in this case shall be remanded to the Superior Court.
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COVER SHEET
TITLE OF CASE:   Richard Hassett v. State of Rhode Island
DOCKET SHEET NO.:                                             2004-0077-A
COURT:                                                        Supreme
DATE OPINION FILED:   June 2, 2006
Appeal from
SOURCE OF APPEAL:    Superior                                 County:  Providence
JUDGE FROM OTHER COURT:      Judge Robert D. Krause
JUSTICES:                                                     Williams, CJ., Goldberg, Flaherty, Suttell, and Robinson, JJ.
WRITTEN BY:      Justice Francis X. Flaherty, for the Court
ATTORNEYS:
For Plaintiff:                                                Stephen T. Morrissey, Esq.
ATTORNEYS:
For Defendant:                                                Virginia M. McGinn, Esq.
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