Henry Asare v. State of Rhode Island

Supreme Court
No. 2007-128-Appeal.
(PM 06-4083)
NOTICE: 	This opinion is subject to formal revision before
publication in the Rhode Island Reporter. Readers are requested to
notify the Opinion Analyst, Supreme Court of Rhode Island, 250
Benefit Street, Providence, Rhode Island 02903, at Telephone 222-
3258 of any typographical or other formal errors in order that
corrections may be made before the opinion is published.
Henry Asare 	:
v. 	:
State of Rhode Island. 	:

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Supreme Court
No. 2007-128-Appeal.
(PM 06-4083)
Present: Williams, C.J., Goldberg, Flaherty, Suttell, and Robinson, JJ.
O P I N I O N
Justice Suttell, for the Court. 	The applicant, Henry Asare, appeals from a Superior
Court judgment denying his application for postconviction relief. In 2003, Mr. Asare, who is not
a citizen of the United States, was convicted of one count of forgery and counterfeiting after he
entered a plea of nolo contendere. 	On appeal, he argues that the court erred in denying his
application because (1) the plea forms did not contain the warnings about potential immigration
consequences of a plea that are required in G.L. 1956 § 12-12-22(b), as amended by P.L. 2000,
ch. 501 § 1;1 (2) the hearing justice accepted the applicant’s nolo contendere plea before giving
the applicant the statutorily required warnings; and (3) the hearing justice did not allow the
1 General Laws 1956 § 12-12-22(b), as amended by P.L. 2000, ch. 501, § 1 provides:
“Prior to accepting a plea of guilty or nolo contendere in
the district or superior court, the court shall inform the defendant
that if he or she is not a citizen of the United States, a plea of
guilty or nolo contendere may have immigration consequences,
including 	deportation, 	exclusion 	of 	admission 	to 	the 	United
States, or denial of naturalization pursuant to the laws of the
United States. 	Upon request, the court shall allow the defendant
additional time to consider the appropriateness of the plea in light
of this advisement.”
Section 12-12-22 was later amended by P.L. 2003, chapters 1 and 2, to delete the provision
relating to the expiration of the 2000 amendment. This amendment had no effect on the matter
before us.
Henry Asare 	:
v. 	:
State of Rhode Island. 	:

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applicant time to discuss the warnings with his attorney before entering his plea. 	This appeal
came before the Supreme Court for oral argument based on an order directing the parties to show
cause why the issues raised in this appeal should not be decided summarily. 	After hearing the
arguments of counsel and examining the record and memoranda filed by the parties, we are of
the opinion that the appeal may be resolved without further briefing or argument. 	For the
reasons stated in this opinion, we affirm the Superior Court judgment.
Facts and Procedural History
On May 21, 2003, applicant entered a plea of nolo contendere to one charge of forgery
and counterfeiting in violation of G.L. 1956 § 11-17-1.2 At the plea colloquy, the hearing justice
asked applicant, “You understand the consequences of this plea and sentence as it affects your
status in this country, is that correct?” to which applicant replied, “Yes.” 	The hearing justice
also asked applicant’s lawyer if he had gone over the ramifications of the sentence with his
client, and the attorney assured the hearing justice that he had. Then, after the prosecutor recited
the facts the state would attempt to prove if the case went to trial and applicant agreed that those
facts were correct, the hearing justice stated that applicant “knowingly, intelligently and
voluntarily entered this plea.” 	The hearing justice then sentenced defendant to a three-year
suspended sentence, with three years probation.
As applicant was leaving the courtroom, the hearing justice called him back to make sure
applicant understood the immigration consequences of his plea. 	After the hearing justice
reviewed all the information required by § 12-12-22(b) with applicant and his attorney, the
prosecutor again read the facts. When applicant seemed to equivocate, the hearing justice asked
him, “I don’t want you to admit to something you didn’t do * * *. Are those facts correct?” The
2 Neither party filed a transcript of the May 21, 2003 plea colloquy with this Court. Therefore,
we must rely on the transcript of the January 9, 2007 postconviction-relief hearing.

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applicant responded, “Yes, your Honor.” 	The hearing justice again found that applicant
knowingly, intelligently, and voluntarily entered the plea, and he again imposed a three-year
suspended sentence, with three years probation.
On January 9, 2007, the same hearing justice who had sentenced applicant heard
applicant’s request for postconviction relief. 	The hearing justice found that “even if I hadn’t
resentenced [applicant], I think the colloquy is appropriate and I think the rights were properly
given * * *.” 	Accordingly, the trial justice denied Mr. Asare’s application for postconviction
relief.
Standard of Review
This Court consistently has stated that we “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.” Evans
v. Wall, 910 A.2d 801, 803 (R.I. 2006) (quoting Bustamante v. Wall, 866 A.2d 516, 522 (R.I.
2005)). 	“This Court will, however, ‘review de novo any post-conviction relief decision
involving questions of fact or mixed questions of law and fact pertaining to an alleged violation
of an applicant’s constitutional rights.’” Id.
Discussion
The applicant raises three arguments on appeal. 	First, applicant argues that the hearing
justice erred by finding that applicant was given all three immigration warnings as required by
§ 12-12-22(b). Specifically, applicant states that the trial justice erred by accepting his plea after
reading only one of the required three immigration warnings. The applicant argues that when the
trial justice called applicant back to advise applicant of the remaining two immigration warnings,
the new warnings were inadequate because applicant already had pled to the offense.

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Section 12-12-22 requires that a hearing justice give a defendant three immigration
warnings before accepting a plea of nolo contendere. If the hearing justice fails to so inform the
defendant and the defendant later shows that his plea and conviction may have immigration
consequences, the defendant is entitled to have the plea vacated. Section 12-12-22(c).
Although this Court does not have an official transcript of the plea colloquy, we can
glean the facts from the transcript of the postconviction-relief hearing. 	It appears that initially
only one warning was given to applicant stating that the sentence imposed could result in
deportation proceedings. 	At the postconviction-relief hearing, applicant’s counsel stated that
before the plea and the imposition of the sentence, the hearing justice provided only one part of
the required three-part warning to applicant. The hearing justice stated, however, that he asked
Mr. Asare’s attorney if he had “also gone over the ramifications of this sentence” with applicant,
and the attorney replied that he had. The hearing justice then stated:
“THE COURT: And then I said to [Mr. Asare], ‘Is that
your understanding?’ 	And then he starts talking about it and gets
off the subject, and I say, ‘You understand the consequences of
this plea and sentence as it affects your status in this country, is
that correct?’ 	The defendant, ‘Yes.’ 	And then I go on and say
‘Well,’ - - and he had some further reservations and went on with
that, and then I had [the State] review all of the facts again, and he
said to my question, ‘Are those facts correct?’ ‘Yes, your Honor.’
And then I say, ‘He knowingly, intelligently and voluntarily
entered this plea. Accordingly, I sentence the defendant.’
“So, if that isn’t the case of me going back and then
resentencing him again after I heard everything, I don’t know what
is. You tell me where I’m wrong.”
We have held that the “plain and clear language of § 12-12-22 requires the court to
inform a noncitizen defendant of ‘deportation, exclusion of admission to the United States, or
denial of naturalization.’” Machado v. State, 839 A.2d 509, 513 (R.I. 2003). 	Therefore, “[a]n
advisement of deportation alone does not adequately warn a defendant of the other two

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immigration consequences.” Id. Although the sentencing justice must give all three warnings to
a defendant, “substantial, not strict, compliance [with the statutory language] will satisfy the
statute’s mandate.” Id.
In the instant case we are satisfied that the hearing justice, having realized that he had
accepted applicant’s plea after giving only one part of the tripartite immigration warnings,
appropriately and timely rectified his mistake. 	The hearing justice readdressed applicant and
reviewed with him all three of the immigration consequences as required by statute. 	At the
postconviction-relief hearing, applicant acknowledged that all three advisements were given.
Although the hearing justice did not vacate the original plea, he did have the prosecutor reread
the facts that the state would attempt to prove at trial. 	Then, when applicant “started to
equivocate,” the hearing justice carefully elicited from applicant an admission that the facts were
correct, at which point the hearing justice again found that applicant knowingly and voluntarily
had entered a plea. Finally, the hearing justice pronounced a sentence identical to the one he had
imposed earlier.
We do not believe that the hearing justice’s failure to vacate the original plea of nolo
contendere before explaining all three immigration consequences was fatal to his subsequent
resentencing of applicant. As the hearing justice noted, it was “all part of the same colloquy.” It
does not appear that applicant had even left the courtroom when the hearing justice called him
back. 	Moreover, applicant never objected to any aspect of the proceedings, and when it had
concluded his counsel simply stated “Nothing further, your Honor.”
The applicant also argues that the hearing justice erred by not allowing applicant time to
consider his plea in light of the immigration warnings just issued to him. 	The hearing justice
stated that he believed the statute required that “[i]f he asked for [time to consider his plea], I

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have to give it to him.” We agree with the hearing justice’s statement of the law. The sentence
of § 12-12-22(b) questioned by applicant reads “[u]pon request, the court shall allow the
defendant additional time to consider the appropriateness of the plea in light of this advisement.”
(Emphasis added.) 	This Court has stated that “[t]he plain and ordinary meaning of the phrase
‘[u]pon request’ compels us to conclude that § 12-12-22(b) requires the court to grant such
additional time only if the defendant requests it.” Dossantos v. State, 897 A.2d 39, 42 (R.I.
2006). Here, the record does not indicate that applicant asked for any additional time to consider
his plea, but instead stated that he understood the consequences of his plea and how it may affect
his immigration status in this country. Accordingly, we affirm the hearing justice’s ruling on this
issue.
Finally, the applicant argues that the written plea form did not include the required
immigration warnings. 	The record before us does not show that the applicant raised this issue
below. 	Therefore we need not address this issue because “our well-established raise-or-waive
rule precludes this Court from addressing arguments raised on appeal that first were not
presented to the trial justice for review.” State v. Lyons, 924 A.2d 756, 764 (R.I. 2007) (citing
State v. Mohapatra, 880 A.2d 802, 810 (R.I. 2005)).3
3 Even if this issue were properly before this Court, we have already addressed this matter. In
Dossantos v. State, 897 A.2d 39, 42 (R.I. 2006), we stated “[n]either the statute nor our opinion
in Machado, however, requires that these [immigration] warnings appear in writing on a
defendant’s plea forms.”

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Conclusion
For the reasons stated in this opinion, we affirm the judgment denying Mr. Asare’s
application for postconviction relief and remand the papers to the Superior Court.

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COVER SHEET
TITLE OF CASE: 	Henry Asare v. State of Rhode Island
DOCKET NO: 	2007-0128-A
COURT:Supreme
DATE OPINION FILED: 	April 14, 2008
SOURCE OF APPEAL: 	Superior 	County: Providence
JUDGE FROM OTHER COURT: Judge Gilbert V. Indeglia
JUSTICES: 	Williams, C.J., Goldberg, Flaherty, Suttell and Robinson, JJ.
WRITTEN BY: 	Justice Paul A. Suttell, for the Court
ATTORNEYS:
For Petitioner: Damon D’Ambrosio, Esq.
ATTORNEYS:
For Respondent: 	Christopher R. Bush, Esq.