Robert O. Gonder v. State of Rhode Island

Supreme Court
No. 2005-190-M.P.
(PM 96-356)
Robert O. Gonder 	:
v. 	:
State of Rhode Island. 	:
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.

- 1 -
Supreme Court
No. 2005-190-M.P.
(PM 96-356)
Robert O. Gonder 	:
v. 	:
State of Rhode Island. 	:
Present: Williams, C.J., Goldberg, Flaherty, Suttell, and Robinson, JJ.
O P I N I O N
Justice Robinson for the Court. 	The applicant, Robert O. Gonder, seeks review from
this Court of the denial of his application for postconviction relief. 	This case came before the
Court for oral argument on October 1, 2007, pursuant to an order directing the parties to appear
and show cause why the issues raised in this case should not be summarily decided. After
considering the record, the briefs submitted by the parties, and the oral arguments of counsel, we
are of the opinion that cause has not been shown and that the case should be decided at this time.
For the reasons set forth below, we affirm the ruling of the Superior Court.
Facts and Travel
On April 15, 1994, Mr. Gonder was charged by indictment with the first-degree murder
of his wife, Marie Gonder. 	A jury trial commenced on February 7, 1995. 	On February 13,
however, in exchange for the state’s agreement to withdraw its request that he be sentenced to
life imprisonment without the possibility of parole, Mr. Gonder pled guilty to the first-degree
murder of his wife, and he was sentenced to life imprisonment.

- 2 -
On January 24, 1996, Mr. Gonder filed an application for postconviction relief pursuant
to G.L. 1956 § 10-9.1-1, alleging ineffective assistance of counsel by his trial attorney. Counsel
was appointed by the Superior Court to represent Mr. Gonder and to investigate the merits of his
claims. The appointed attorney reviewed the record and, on May 3, 2001, filed with the court a
memorandum, wherein he concluded that Mr. Gonder’s application for postconviction relief
lacked merit. 	Together with that memorandum, the same attorney filed a motion to withdraw
from further representation of Mr. Gonder, and in the text of said motion the attorney requested
that Mr. Gonder be informed that he could proceed pro se.
On May 21, 2001, without holding a hearing, the justice of the Superior Court to whom
the case was assigned issued an order denying Mr. Gonder’s application for postconviction relief
and granting counsel’s motion to withdraw. 	Mr. Gonder then filed a notice of appeal with this
Court with respect to that order. 	At that point, the state conceded that there was error in the
court’s failure to have held a hearing, as required by chapter 9.1 of title 10 and this Court’s
opinion in Shatney v. State, 755 A.2d 130 (R.I. 2000). Consequently, on December 4, 2002, this
Court vacated the order denying Mr. Gonder’s application for postconviction relief and
remanded the case for a hearing.
On remand, Mr. Gonder filed, pro se, an amended application for postconviction relief.
In his amended application, in addition to claiming ineffective assistance of counsel, Mr. Gonder
alleged: (1) that he was under the influence of drugs and alcohol both at the time of the murder
and at the time that he reported the shooting of his wife to the police; (2) that, while he was being
interrogated, the police denied him access to his attorney and coerced him into making a
confession by manipulating his altered state of mind; and (3) that, after he was arrested, the

- 3 -
victim’s family seized his material assets, thus preventing him from retaining the counsel of his
choice and requiring him to be represented by a public defender.
A hearing on the amended application for postconviction relief was held on December
16, 2004. After indicating that the ultimate issue to be decided was whether or not Mr. Gonder’s
guilty plea was voluntary, knowing, and intelligent, the hearing justice concluded that Mr.
Gonder’s allegation of ineffective assistance of counsel lacked merit; accordingly, he denied the
application for postconviction relief. It is from that denial that Mr. Gonder now seeks review by
this Court.
Standard of Review
Section 10-9.1-1 provides that postconviction relief is a remedy available to any person
who has been convicted of a crime and who thereafter alleges either that the conviction violated
the applicant’s constitutional rights or that the existence of newly discovered material facts
requires vacation of the conviction in the interest of justice.1 Larngar v. Wall, 918 A.2d 850, 855
(R.I. 2007). 	In our decision in the case of State v. Thomas, 794 A.2d 990 (R.I. 2002), we set
forth the following criteria with respect to this Court’s review of a hearing justice’s decision
concerning an application for postconviction relief:
“We will not disturb a trial justice’s findings on an application
for postconviction relief absent clear error or a showing that the
trial justice overlooked or misconceived material evidence. * * *
However, questions of fact concerning whether a defendant’s
constitutional rights have been infringed, and mixed questions of
law and fact with constitutional implications, are reviewed de
novo. * * * 	Finally, findings of historical fact, and inferences
drawn from those facts, will still be accorded great deference by
this Court, even when a de novo standard is applied to the issues of
1 An applicant for postconviction relief bears the burden of proving, by a preponderance of
the evidence, that postconviction relief is warranted. 	See, e.g., Larngar v. Wall, 918 A.2d 850,
855 (R.I. 2007).

- 4 -
constitutional 	dimension.” 	Id. 	at 	993 	(citations 	and 	internal
quotation marks omitted).2
Analysis
I
Ineffective Assistance of Counsel
A
The Strickland Test
Mr. Gonder asserts that his application for postconviction relief should have been granted
because he was allegedly deprived of his right to the effective assistance of counsel. 	In his
application, Mr. Gonder alleges a number of deficiencies with regard to his trial attorney’s
performance.3 At the core of his argument is the allegation that, if his attorney had provided him
with effective assistance, he would not have pled guilty. Accordingly, he contends that his plea
should be vacated because it was not made knowingly, intelligently, or voluntarily.
In reviewing a claim of ineffective assistance of counsel, this Court has adhered to the
standards set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S.
668 (1984). See, e.g., Armenakes v. State, 821 A.2d 239, 245 (R.I. 2003); Brennan v. Vose, 764
A.2d 168, 171 (R.I. 2001); Brown v. Moran, 534 A.2d 180, 182 (R.I. 1987). We have stated that
“[t]he benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so
2 See also Doctor v. State, 865 A.2d 1064, 1067 (R.I. 2005); Ouimette v. State, 785 A.2d
1132, 1135 (R.I. 2001).
3 Specifically Mr. Gonder contends that his trial counsel’s assistance was ineffective
because counsel allegedly: (1) failed to adequately investigate and interview witnesses while
preparing for trial; (2) failed to have contact with Mr. Gonder in preparation for the defense; (3)
failed to present an opening statement informing the jury of the diminished-capacity defense; (4)
failed to properly cross-examine police officers during trial; (5) failed to appeal the denial of
pretrial motions; (6) failed to offer evidence that the victim had been engaged in an extramarital
affair with a member of the pertinent police department; (7) erroneously advised Mr. Gonder to
plead guilty; and (8) failed to move for a withdrawal of the guilty plea on the basis of what he
describes as “an incomplete plea colloquy.”

- 5 -
undermined the proper functioning of the adversarial process that the trial cannot be relied on as
having produced a just result.” 	Heath v. Vose, 747 A.2d 475, 478 (R.I. 2000) (quoting
Strickland, 466 U.S. at 686).
In accordance with the standards set forth in Strickland, an applicant who is claiming
ineffective assistance of counsel must satisfy both parts of a two-prong test in order to prevail.
466 U.S. at 687-88. 	“First, the defendant must show that counsel’s performance was
deficient.* * * 	Second, the defendant must show that the deficient performance prejudiced the
defense.” Brown, 534 A.2d at 182 (quoting Strickland, 466 U.S. at 687); see also Burke v. State,
925 A.2d 890, 893 (R.I. 2007); Larngar, 918 A.2d at 856.
With respect to the first prong of the Strickland test, in determining whether counsel’s
performance was deficient, a strong (albeit rebuttable) presumption exists that counsel’s
performance was competent. State v. Figueroa, 639 A.2d 495, 500 (R.I. 1994). With regard to
the second prong of the Strickland test, “[p]rejudice exists if there is a reasonable probability
that, absent counsel’s deficient performance, the result of the proceeding would have been
different.” Id. (citing Strickland, 466 U.S. at 687).
B
Trial Counsel’s Performance
It is noteworthy that, at the time that Mr. Gonder entered his guilty plea, the following
colloquy took place in open court:
“THE COURT: Mr. Gonder, first let me ask you whether or not
you have had full and frank discussion with your lawyers in
regard to this proposed change of plea from one of not guilty to
one of guilty to first degree murder.
“THE DEFENDANT: I have.
“* * *
“THE COURT: Mr. Gonder, did you sign this request to change
your plea.
“THE DEFENDANT: Yes, Your Honor.

- 6 -
“THE COURT: Did you read it before you signed it?
“THE DEFENDANT: Not totally, no.
“THE COURT: We will take a recess.
“[DEFENSE COUNSEL]: Excuse me. I read it to him.
“THE COURT: I don’t care. I want him to read it.”
After this exchange, the court did in fact take a recess so that Mr. Gonder could read the
plea agreement more fully. When the court reconvened, the colloquy between the trial justice
and defendant continued as follows:
“THE COURT: 	Mr. Gonder, during the recess did you have the
opportunity to read this document that you have indicated you
signed?
“THE DEFENDANT: Yes, Your Honor.
“THE COURT: Do you have any difficultly understanding it?
“THE DEFENDANT: I don’t believe so.
“THE COURT: How far did you go in school?
“THE DEFENDANT: High school.
“THE COURT: 	Have you had any drugs, alcohol or medication
this morning?
“THE DEFENDANT: I had a prescription drug this morning.
“THE COURT: What?
“THE DEFENDANT: Zoloft.
“THE COURT: 	Does that have any bearing on your ability to
understand the proceeding this morning?
“THE DEFENDANT: I don’t think so.
“THE COURT: Any question in your mind about it?
“THE DEFENDANT: No, Your Honor.
“* * *
“THE COURT: 	Mr. Gonder, as you well know, you have a right
to continue with this trial to its conclusion. 	During such trial you
would have the opportunity to – through your counsel – to
continue to cross-examine and confront the witnesses who are
presented against you. 	The presumption of innocence would not
disappear. 	It remains with you throughout the course of the trial.
You have no obligation to testify. 	You would have no obligation
to present witnesses or evidence, although you could have done
those things had you wanted to. 	It’s my understanding that you
would have, had this case continued. In any event, you would not
have been obliged to do so. If I accept your plea, Mr. Gonder, you
cannot withdraw it without permission of the Court. 	As you well
know, murder in the first degree carries with it a mandatory life
sentence. There’s no discretion in the Court’s hand with respect to
the sentence. You understand that?

- 7 -
“THE DEFENDANT: Yes, I do.
“THE COURT: Has anybody forced you, or coerced you to enter
this plea of guilty to first degree murder?
“THE DEFENDANT: No.
“THE COURT: Are you pleading guilty to this offense because, in
fact, you did commit it?
“[DEFENSE COUNSEL]: 	With respect to that question Your
Honor asked the defendant I would most respectfully ask the Court
to review in its own mind – as the defendant has – the evidence
that is presented – that has been presented. The defendant does not
dispute the evidence that has been presented by the State today.
There are statements he would like to make to the Court.
“THE 	COURT: 	There 	are 	two 	statements 	available 	to 	this
defendant this morning. One is not guilty; one is guilty. Which is
it, Mr. Gonder?
“THE DEFENDANT: Guilty.
“THE COURT: 	I’m satisfied that there is a factual basis for this
charge; that there is knowing and intelligent waiver by this
defendant with respect to all of the rights and privileges that he is
giving up; that he is giving them up knowingly, voluntarily, and
intelligently. The plea of guilty will be accepted.”
After reviewing the entire colloquy between the trial justice and Mr. Gonder, it is clear to
us that it constitutes an eminently rational basis for concluding that the applicant understood the
consequences of pleading guilty and that he did not do so under force or coercion.4 Mr. Gonder
stated, under oath, that he had discussed the agreement with his attorney prior to entering his plea
and that, although he had taken Zoloft 5 that morning, he nevertheless had no difficultly
understanding the implications of his guilty plea.
This Court has previously held 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
4 The fact that the trial justice took a recess specifically in order to give the defendant
before him time in which to read the plea agreement fully is one indication of the careful manner
in which the trial justice made sure that defendant’s decision to change his plea was knowing and
voluntary.
5 Zoloft is an oral drug most commonly used to treat depression. Physician’s Desk
Reference 2586 (61st ed. 2007).

- 8 -
plea and the voluntariness of the plea. 	If the plea is validly entered, we do not consider any
alleged prior constitutional infirmity.’” 	Miguel v. State, 774 A.2d 19, 22 (R.I. 2001) (quoting
State v. Dufresne, 436 A.2d 720, 722 (R.I. 1981)). The burden is on the applicant to demonstrate
that the advice of his attorney “was not within the range of competence demanded of attorneys in
criminal cases.” 	Dufresne, 436 A.2d at 723; see also Miguel, 774 A.2d at 22. 	The applicant
must further demonstrate that, but for his attorney’s errors, he would not have entered a guilty
plea, but rather would have proceeded to trial. See Hassett v. State, 899 A.2d 430, 434 (R.I.
2006).
We are not persuaded that Mr. Gonder was denied effective assistance of counsel. 	His
attorney acted well within the level of competence demanded of attorneys in criminal cases. The
record reveals that, before the trial began, trial counsel conducted an extensive investigation of
the 	case 	and 	interviewed 	several 	relevant 	witnesses. 	Counsel 	met 	with 	Mr. 	Gonder
approximately fifteen times in person; in addition, the two conferred numerous times by
telephone and by exchange of written correspondence. Defense counsel concluded that a defense
of diminished capacity was the most appropriate defense. 	To that end, he hired an expert
witness, Michael A. Ingall, M.D., to testify at trial in support of the diminished-capacity defense.
Additionally, trial counsel submitted a motion to suppress defendant’s taped confession.
It is true, as Mr. Gonder points out, that his counsel elected not to make an opening
statement before the prosecution presented its case.6 However, a decision as to when or if to
make an opening statement is an inherently tactical decision. See Vorgvongsa v. State, 785 A.2d
6 Rule 26.2 of the Superior Court Rules of Criminal Procedure permits a defendant to make
an opening statement “just prior to the introduction of evidence by the State, or just prior to
presenting his case.” Cf. State v. Bryant, 888 A.2d 965, 970-71 (R.I. 2006) (holding that defense
is not allowed to make an opening statement unless it plans to present evidence); State v. DePina,
810 A.2d 768, 773-75 (R.I. 2002).

- 9 -
542, 549 (R.I. 2001); State v. D’Alo, 477 A.2d 89, 92 (R.I. 1984). 	We perceive absolutely no
error in this regard.
As the hearing justice noted in the course of denying the motion for postconviction relief,
once the criminal trial began Mr. Gonder had the opportunity to observe for four trial days the
unfolding of the prosecution’s case — a case which included the introduction of his own taped
confession. 	It is inconceivable that, having observed the prosecution’s case for that length of
time, he was not aware of the strength of the state’s case against him, 7 and one can also well
understand why his attorney would have advised him to enter into a plea agreement. 	If Mr.
Gonder had not followed the advice of his attorney and had instead allowed the trial to continue,
he ran the very real risk of receiving the much more severe sentence of life imprisonment
without the possibility of parole. 	We agree with the trial justice that the prosecution’s
withdrawal of its request that defendant be sentenced to life imprisonment without the possibility
of parole was “not an inconsequential relinquishment by the State.” In view of the evidence that
the state had presented and in view of the real possibility that his client might receive the
harshest possible penalty permitted under Rhode Island law, the attorney’s advice to his client
that he plead to a negotiated sentence was well within the acceptable range of competence. We
therefore hold that Mr. Gonder’s claim of ineffective assistance of counsel is without merit.
Since we have determined that Mr. Gonder failed to show that his trial counsel’s
performance was deficient as required under the first prong of the Strickland test, we need not
address the second prong of that test.
7 Indeed, during the hearing on the amended application for postconviction relief, the
hearing justice described the prosecution’s evidence against Mr. Gonder as “compelling” and
“persuasive.”

- 10 -
II
The Right of Allocution
Finally, Mr. Gonder contends that his guilty plea should be vacated due to the fact that he
was denied his right of allocution since the trial justice refused his request to make a statement
on his own behalf before sentence was imposed.8
In the course of the extensive colloquy between the trial justice and Mr. Gonder in
connection with the proposed change of plea, the following exchange occurred:
“THE COURT: 	Are you pleading guilty to this offense because,
in fact, you did commit it?
“[DEFENSE COUNSEL]: 	With respect to that question Your
Honor asked the defendant I would most respectfully ask the Court
to review in its own mind – as the defendant has – the evidence
that is presented – that has been presented. The defendant does not
dispute the evidence that has been presented by the State today.
There are statements he would like to make to the Court.
“THE 	COURT: 	There 	are 	two 	statements 	available 	to 	this
defendant this morning. One is not guilty; one is guilty. Which is
it, Mr. Gonder?
“THE DEFENDANT: Guilty.”
The right of a defendant “[i]n all criminal prosecutions” to address the court before
sentence is imposed is protected under the Rhode Island Constitution. Article 1, section 10, of
the Rhode Island Constitution provides:
“In all criminal prosecutions, accused persons shall enjoy the right
to a speedy and public trial, by an impartial jury; to be informed of
the nature and cause of the accusation, to be confronted with the
witnesses against them, to have compulsory process for obtaining
them in their favor, to have the assistance of counsel in their
8 We note that Mr. Gonder did not make reference to a denial of his right of allocution in
his initial application for postconviction relief; he asserted this argument for the first time in his
amended postconviction relief application. 	Even though it is quite probable that the applicant
has waived his right to pursue this argument, for the purposes of this opinion we shall assume
without deciding that defendant’s argument was properly preserved for appellate review.

- 11 -
defense, and shall be at liberty to speak for themselves; nor shall
they be deprived of life, liberty, or property, unless by the
judgment of their peers, or the law of the land.” (Emphasis added.)
The emphasized words refer to the right of what is commonly called “allocution.” 	See State v.
Vaccaro, 121 R.I. 788, 789-93, 403 A.2d 649, 650-52 (1979); see also Robalewski v. Superior
Court, 97 R.I. 357, 358-60, 197 A.2d 751, 752-54 (1964) (summarizing the history of the right of
allocution).9 Moreover, Rule 32(a)(1) of the Superior Court Rules of Criminal Procedure
specifically directs the trial court to inquire personally of the defendant as to whether or not he or
she wishes to exercise the right of allocution.10 In addition, this Court has repeatedly insisted
that this right must be respected. 	See, e.g., State v. Brown, 528 A.2d 1098, 1105 (R.I. 1987);
State v. Nicoletti, 471 A.2d 613, 617-18 (R.I. 1984); Leonardo v. State, 444 A.2d 876, 877-78
(R.I. 1982); Robalewski, 97 R.I. at 358-60, 197 A.2d at 752-54 (1964). Defense counsel’s
request on behalf of his client was utterly clear: “There are statements he would like to make to
the Court.”11 As such, there is no doubt that the trial justice erred when he summarily rejected
9 The relevant definition of “allocution” as set forth in Black’s Law Dictionary 83 (8th ed.
2004) is as follows: “An unsworn statement from a convicted defendant to the sentencing judge
or jury in which the defendant can ask for mercy, explain his or her conduct, apologize for the
crime, or say anything else in an effort to lessen the impending sentence.” It is a right that was
recognized in England long before the American colonies became independent. See Green v.
United States, 365 U.S. 301, 304 (1961).
10 Rule 32(a)(1) of the Superior Court Rules of Criminal Procedure provides as follows:
“Before imposing sentence the court * * * shall address the defendant personally and ask the
defendant if he or she wishes to make a statement in his or her own behalf and to present any
information in mitigation of punishment.”
11 Of course, Rule 32(a)(1) does not mandate that the defendant or defense counsel make
such a request; rather, it requires the trial justice to “address the defendant personally” to
determine whether he or she wishes to exercise the right of allocution.

- 12 -
counsel’s request that the defendant be allowed to exercise his right of allocution prior to
sentencing.12
The right to speak on one’s behalf before a sentence is imposed is a precious and
venerable one. Robalewski, 97 R.I. at 358, 197 A.2d at 753; see also Vaccaro, 121 R.I. at 791,
403 A.2d at 650-51. 13 Although Mr. Gonder was regrettably deprived of his right of allocution,
that deprivation did not result in the life sentence imposed by the trial justice being an illegal
sentence, which we would be required to vacate; it was rather a legal sentence illegally
imposed. 14 See State v. DeCiantis, 813 A.2d 986, 990-93 (R.I. 2003). 	When a legal sentence
has been illegally imposed, Rule 35(a) of the Superior Court Rules of Criminal Procedure
authorizes the trial court to correct the sentence.15 However, the same rule states that a motion to
correct a sentence must be filed within 120 days after the judgment has become final. 	Mr.
Gonder did not file a motion to reduce or correct his sentence within that time period, and
therefore there is no basis for a remand so that he might allocute and be resentenced.
12 We are not unsympathetic with the trial justice’s rather peremptory reaction to defense
counsel’s indication that “[t]here are statements [defendant] would like to make to the Court.”
The trial justice was undoubtedly perturbed by the fact that four trial days, replete with graphic
testimony, had passed before defendant decided to change his plea. Nonetheless, constitutional
mandates are constitutional mandates.
13 We take this occasion once again to emphasize the importance of the constitutional right
of allocution. That right must be respected even in situations in which statutory mandates make
the actual sentence a foregone conclusion.
14 The Reporter’s Notes accompanying Rule 35(a) of the Superior Court Rules of Criminal
Procedure define a sentence illegally imposed as “one that does not conform to the procedures
required by these rules for imposition of sentence—for example, failure to accord a defendant his
right of allocution under Rule 32.” See State v. DeCiantis, 813 A.2d 986, 991 (R.I. 2003).
15 Rule 35(a) provides in pertinent part as follows: 	“The court may correct a sentence
imposed in an illegal manner and it may reduce any sentence when a motion is filed within one
hundred and twenty (120) days after the sentence is imposed * * *.” See DeCiantis, 813 A.2d at
987.

- 13 -
We would add that, even if Mr. Gonder had filed a timely motion to correct his sentence
and was subsequently allowed to exercise his right of allocution, the real-world result would be
the same, since life imprisonment is the mandatory sentence for first-degree murder, and the
right of allocution “does not vest in the judiciary the power to fashion discretionary sentences
independently.” Vaccaro, 121 R.I. at 793, 403 A.2d at 651; see G.L. § 11-23-2 (“Every person
guilty of murder in the first degree shall be imprisoned for life.”). 	While the denial of Mr.
Gonder’s right of allocution in this case was regrettable, the fact is that he has not incurred any
tangible harm as a result. 16
Conclusion
For the reasons set forth herein, we affirm the ruling of the Superior Court denying the
application for postconviction relief. The papers in the case may be remanded to the Superior
Court.
16 Mr. Gonder raised a variety of other issues in his amended application for postconviction
relief. 	See footnote 3, supra. 	We have reviewed those issues, but we do not find them to be
persuasive or determinative.

14
COVER SHEET
TITLE OF CASE: 	Robert O. Gonder v. State of Rhode Island
DOCKET NO: 	2005-0190-M.P.
COURT: 	Supreme
DATE OPINION FILED: 	November 16, 2007
Appeal from
SOURCE OF APPEAL: 	Superior 	County: Providence
JUDGE FROM OTHER COURT: Judge Robert D. Krause
JUSTICES: 	Williams, C.J., Goldberg, Flaherty, Suttell and Robinson, JJ.
WRITTEN BY: 	Justice William P. Robinson, III, for the Court
ATTORNEYS:
For Plaintiff: Leo Manfred, Esq.
ATTORNEYS:
For Defendant: Aaron Weisman, Esq.