Joseph Shephard v. State of Rhode Island

STATE OF RHODE ISLAND
PROVIDENCE, SC. SUPERIOR COURT
(Filed: November 9, 2023)
JOSEPH SHEPARD :
:
VS. : C.A. No. PM-2020-00259
:
STATE OF RHODE ISLAND :
DECISION
MONTALBANO, J. Before this Court is an application for postconviction relief filed by Joseph
Shepard (Petitioner). See First Amended Application for Post-Conviction Relief (First Am. Appl.).
Petitioner contends that his conviction and sentence should be vacated on the basis that he received
ineffective assistance of counsel. Id. ¶¶ 5, 6, 7, 8, 18, and 28. Petitioner further contends that he
entered a plea that was not voluntary, knowing, and intelligent. Id. ¶¶ 14, 15, 16, and 17. The Court
has jurisdiction pursuant to G.L. 1956 §§ 10-9.1-1 and 10-9.1-2.
I
Facts and Travel
On May 11, 2015, a Providence County Grand Jury indicted Petitioner charging him with
Count 1: Conspiracy; Count 2: Murder; Count 3: Felony Assault; Count 4: Felony Assault; Count
5: Felony Assault; Count 6: Larceny over $1,500; and Count 7: Leaving the Scene of an Accident
Injury or Death Resulting. (Grand Jury Indictment, May 11, 2015.) Petitioner pled not guilty, a
trial was scheduled, but on July 11, 2016, Petitioner requested that he be allowed to change his
plea to guilty. (Hr’g Tr. 18:3-4, July 11, 2016.) Petitioner pled guilty to the conspiracy to commit
a felony charge (Count 1), the assault with a dangerous weapon, to wit, a motor vehicle charge
(Count 5), and the larceny over $1,500 charge (Count 6). In exchange for Mr. Shepard’s guilty

2
plea to Counts 1, 5, and 6, the State agreed to dismiss the remaining counts against Petitioner,
being Counts 2, 3, 4, and 7. (Plea Form, July 11, 2016; see also RCP 48(a) Dismissal.) Petitioner
was sentenced to ten years to serve at the ACI on Counts 1 and 6, and to twenty years at the ACI
with thirteen years to serve, balance suspended with twenty years’ probation on the assault with a
dangerous weapon charge (Count 5), and the time to serve was retroactive to October 17, 2014.
All sentences were ordered to run concurrently. Id.
On January 13, 2020, Petitioner filed his initial petition for postconviction relief, which
said petition was amended by an Amended Complaint filed on December 15, 2021. (First
Amended Complaint.) On March 6, 2021, Petitioner filed a motion for partial summary judgment
and a memorandum in support thereof. On April 12, 2021, the State filed a cross-motion for partial
summary judgment and its memorandum in support thereof. On April 25, 2021, the motion justice
denied Petitioner’s motion for partial summary judgment and granted the state’s motion for partial
summary judgment. See Order, Vogel J., May 4, 2022. The motion justice ruled that if Petitioner
was seeking to pursue an ineffective assistance of counsel claim, he must request an evidentiary
hearing. Id.1
1 The parties moved for summary judgment on the issue of whether the sentence imposed on the
Petitioner violated his rights. Quoting from Justice Vogel’s decision granting the State’s cross-
motion for summary judgment:
“The parties are moving for partial summary judgment on the issue
of whether the sentence imposed on Petition[er] violated his rights.
“The court may grant a motion by either party for summary
disposition of the application when it appears from the pleadings,
depositions, answers to interrogatories, and admissions and
agreements of fact, together with any affidavits submitted, that there
is no genuine issue of material fact and the moving party is entitled
to judgment as a matter of law. 10 R.I. Gen. Laws Ann. § 10-9.1-
6(c).

3
“The Court has stated that a summary determination under § 10-9.1-
6(c) ‘closely resembles’ a grant of summary judgment under Rule
56 of the Superior Court Rules of Civil Procedure, Palmigiano v.
State, 120 R.I. 402, 405, 387 A.2d 1382, 1384 (1978); Reyes v. State,
141 A.3d 644, 652 (R.I. 2016). In determining the instant motions,
the Court will follow the standards set forth in that rule, which
provides, in pertinent part:
“(a) A party seeking to recover upon a claim, counterclaim, or cross-
claim or to obtain a declaratory judgment may, at any time after the
expiration of twenty (20) days from the commencement of the action
or after service of a motion for summary judgment by the adverse
party, move with or without supporting affidavits for a summary
judgment in the party’s favor upon all or any part thereof . . .
“(b) A party against whom a claim, counterclaim, or cross-claim is
asserted or a declaratory judgment is sought may, at any time, move
with or without supporting affidavits for summary judgment in the
party’s favor as to all or any part thereof.
“(c) The judgment sought shall be rendered forthwith if the
pleadings, depositions, documents, electronically stored
information, 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.
“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). Docket (Decision, Vogel, J. Apr. 25, 2022, 7-
8.)
In granting the State’s cross-motion for summary judgment, Justice Vogel clearly
articulated her reasons for granting the state’s cross-motion. See id. She concluded as follows:
“For the reasons set forth herein, the Court rules that there exists no
genuine issue as to a material fact that the sentence imposed on
Petitioner did not violate his rights as alleged. The sentence was not
grossly disparate from that imposed on Oliver. The trial justice
adequately articulated the basis for accepting the agreed upon

4
Thereafter, Petitioner filed three motions on September 13, 2022:
1. A motion for leave to amend Petitioner’s application for post-conviction relief, which was
granted by this Court on October 18, 2022; see Order, Montalbano, J., November 14, 2022;
2. A motion for funds to obtain medical records which was granted by this Court on October 18,
2022; see Order, Montalbano, J., November 14, 2022; and
3. A motion for funds to hire an expert witness which was denied by this Court on October 18,
2022; see Order, Montalbano, J., November 14, 2022.
Petitioner also filed a request for issuance of a subpoena duces tecum to the Rhode Island
Department of Corrections for the purpose of obtaining copies of his mental health records which
was granted by this Court on March 20, 2023. See Order, Montalbano, J., March 23, 2023.
This Court conducted an evidentiary hearing on Petitioner’s First Amended Application on
July 7, 2023.
sentence even if it exceeded the sentencing benchmarks. Petitioner’s
claim that the evidence did not support a finding of conspiracy is
without merit. As such, Petitioner’s motion for partial summary
judgment is denied. The State’s motion for partial summary
judgment is granted.” Id. at 13.
Consequently, as to Petitioner’s claims that his rights were violated because his sentence
was grossly disparate from that imposed on a co-defendant, and Petitioner’s claims that his
sentence violated his rights because the sentencing judge failed to articulate why she was imposing
an agreed upon sentence that exceeded sentencing benchmarks, this Court finds that Justice
Vogel’s decision and order granting the state’s cross-motion for summary judgment to be
determinative of those issues in this case. Id. Therefore, the only matter before this Court with
regard to Petitioner’s First Amended Application for Post-Conviction Relief is Mr. Shepard’s
claim of ineffective assistance of counsel which he says makes his plea not a knowing, intelligent,
and voluntary one.

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II
Standard of Review
Postconviction relief is a statutory remedy for:
“[a]ny 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). See
Higham v. State, 45 A.3d 1180, 1183 (R.I. 2012) (quoting DeCiantis
v. State, 24 A.3d 557, 569 (R.I. 2011)).
In pursuing such claims a petitioner bears the burden of proving — by a preponderance of
the evidence — that he is entitled to postconviction relief. Hazard v. State, 64 A.3d 749, 756 (R.I.
2013); Burke v. State, 925 A.2d 890, 893 (R.I. 2007) (citing Larngar v. Wall, 918 A.2d 850, 855
(R.I. 2007)). The proceedings for such relief are “civil in nature.” Ouimette v. Moran, 541 A.2d
855, 856 (R.I. 1988) (citing State v. Tassone, 417 A.2d 323, 326 n.2 (R.I. 1980)). In accordance
with the statute, the “court shall make specific findings of fact, and state expressly its conclusions
of law, relating to each issue presented.” Section 10-9.1-7.
When there has been a guilty [or nolo contendere] plea, postconviction inquiry focuses on
the nature of counsel’s advice regarding the plea and the voluntariness of the plea. State v.
Dufresne, 436 A.2d 720, 722 (R.I. 1981). Furthermore, “[a] defendant who pleads guilty [or nolo
contendere] on the advice of counsel must demonstrate at his postconviction hearing that that
advice was not within the range of competence demanded of attorneys in criminal cases.” Id. at
723 (citing McMann v. Richardson, 397 U.S. 759, 771 (1970)). In Dufresne, counsel advised the
defendant to plead guilty to a reduced charge of second-degree murder after incriminating
statements had been admitted against him, which our Supreme Court concluded was “within the
range of competence demanded of criminal attorneys.” Id. at 724.

6
III
Analysis
Petitioner argues his plea should be vacated on constitutional grounds alleging that he
received ineffective assistance of counsel from Attorney Terry Livingston (Attorney Livingston).
Petitioner further contends that he entered a plea that was not voluntary, knowing, and intelligent,
in violation of Rule 11 of the Superior Court Rules of Criminal Procedure.
A
Compliance with Rule 11
Rule 11 states, in pertinent part:
“A defendant may plead not guilty, guilty or, with the consent of the
court, nolo contendere. The court may refuse to accept a plea of
guilty and shall not accept such plea or a plea of nolo contendere
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.
Waivers of constitutional rights must consider the totality of the circumstances and the
waivers must be “voluntary and knowing, intelligent acts done with sufficient awareness of the
relevant circumstances and likely consequences.” Johnson v. Mullen, 390 A.2d 909, 912 (R.I.
1978). “At the conclusion of a plea hearing, the trial justice should be able to say with assurance
that the accused is fully aware of the nature of the charge and the consequences of the plea.”
Camacho v. State, 58 A.3d 182, 186 (R.I. 2013). That objective can be obtained by: “(1) an
explanation of the essential elements by the judge at the guilty plea hearing; (2) a representation
that counsel had explained to the defendant the elements he admits by his plea; (3) defendant’s
statements admitting to facts constituting the unexplained element or stipulations to such facts.”
Id. at 186. In the final analysis, “[t]he applicant bear[s] the burden of proving by a preponderance

7
of the evidence that [he or she] did not intelligently and understandingly waive [his or her] rights.”
Id. at 186-87.
In the present case, Petitioner alleges his plea was not made knowingly and voluntarily
because, (1) his attorney, Mr. Livingston, did not explain to him the elements of each offense (First
Amended Application, ¶¶ 14-16); (2) he was not advised by his attorney, Mr. Livingston, that with
regard to count 5 the benchmarks recommended a maximum sentence of five (5) years to serve at
the ACI, and that had he been so apprised he would not have pled, and would have insisted on
going to trial, Id. ¶¶ 17, 19; (3) at the time petitioner entered his plea he was not taking his
prescribed medications, Id. ¶ 20; (4) segregation in a high security prison in the months preceding
his plea affected his ability to think clearly and rationally, Id. ¶ 29; and (5) Attorney Livingston
failed to request a competency examination in order to determine whether petitioner was
competent either to stand trial or to enter a knowing, intelligent and voluntary plea, Id. ¶ 27.
The Court notes at this juncture that in his first amended application, Petitioner avers that
the sentencing justice failed to give specific reasons on the record for an upward departure from
the sentencing guidelines. Id. ¶ 11.2 Additionally, Petitioner argues his sentence is grossly
disproportionate to the sentences imposed on his co-defendants. Id. ¶¶ 12-13.3
Viewing the entire record of the plea colloquy, this Court hereby determines that
Petitioner’s plea was made knowingly, intelligently, and voluntarily. At the outset of the plea, the
Honorable Justice Vogel inquired about Petitioner’s education and whether Petitioner was under
the influence of drugs or alcohol. See Ex. C, Sentencing Hr’g Tr. 6:14-17, July 11, 2016 (Ex. C).
2 This issue was addressed and resolved in favor of the State by Ms. Justice Vogel when
she granted the State’s cross-motion for partial summary judgment. See Order, Vogel, J.,
May 4, 2022.
3 Id.

8
Petitioner acknowledged that he went over the plea form with his lawyer before signing. Id. at
7:11-13. Critically, the following exchange took place between the court and Petitioner:
“THE COURT: Did you go over this form with your lawyer before
you signed it?
“DEFENDANT: Yes, your Honor.
“THE COURT: Did Mr. Livingston answer any and all questions
you had concerning your decision to change your plea as well as
what’s contained in this form?
“DEFENDANT: Yes, your Honor.
“THE COURT: Are you satisfied with the Mr. Livingston’s
representation of you?
“DEFENDANT: Yes, your Honor.” Id. at 7:11-20.
Importantly, Petitioner’s first argument is unavailing as Attorney Livingston testified at the
postconviction relief hearing that he discussed the elements with Petitioner, both, of the offenses
he was charged with, and the elements of the charges he was pleading to. See postconviction relief
Hr’g Tr. 46:13-14, 53:12-23, July 3, 2023 (relief Tr.)4 Additionally, Petitioner’s argument that he
was not advised about the sentencing benchmarks is equally unavailing. Attorney Livingston
testified that he had conversations with Petitioner about the benchmarks. Specifically, he testified
that he told Petitioner:
“They want murder, they want manslaughter, there’s a dead body.
This isn’t your run-of-the-mill ADW [Assault with a Deadly
Weapon]. You’re not going to get a benchmark case. They think
they’re being reasonable. This is the lowest they’re going to go. I
said something about eight years, and he said, I’d take eight years
right now. I said, when you look at it, this is nine years because
you’re doing four; you’re not getting the four back. This is
concurrent and retro to the time you started the four. It’s an
additional nine years.” Id. at 59:9-25.
4 The hearing date was Friday July 7, 2023 despite the transcript reflecting July 3, 2023.
See relief Tr. at 1.

9
The Court notes that the Rhode Island Sentencing Benchmarks for Felony Assault with or
without a deadly weapon when serious injury results are four to five years. See R.I. Super. R.
Sentencing Benchmarks, Felony Assault, ¶ 10. Departures from the sentence range should be made
only when substantial and compelling circumstances exist, including harm to the victim,
defendant’s criminal record, whether the crime was part of an isolated offense or part of an
organized enterprise, and the circumstances of the commission of the crime. See id. at Using the
Benchmarks, ¶ 1.
Next, Petitioner’s argument that at the time of the plea he was not taking his prescribed
medications and that this affected his thinking necessarily fails as the record shows otherwise. The
sentencing justice asked Petitioner prior to his plea whether he was on any drugs or alcohol. Ex. C
at 6:14-17. This Court does not find Petitioner’s argument that he did not consider prescription
drugs as “drugs,” persuasive. See relief Tr. at 31:8-14. Moreover, Attorney Livingston testified at
the postconviction relief hearing that Petitioner never mentioned anything about Petitioner’s
mental health to him prior to, or after, Petitioner entered his plea. Id. at 56:19-21.
Further, Petitioner’s argument that segregation in a high security prison prior to his plea
impacted his ability to think clearly and rationally is unpersuasive. Not only did Petitioner answer
the sentencing justice’s questions clearly, but he provided an apology to the family of the victim
that was articulate and thoughtful. Ex. C at 43:10-19.
Finally, Petitioner’s argument that neither the court nor his attorney requested a
competency evaluation to see if he could stand trial or enter a plea is without merit. The case was
scheduled for trial and neither the court nor the defense questioned competency. Clearly, based on
the plea colloquy, under the totality of the circumstances, Petitioner was competent to both go to
trial (assist in his defense/strategy) or take a plea. Attorney Livingston had no reason to question

10
competency as Petitioner never mentioned his mental health to Mr. Livingston. See relief Tr. at
56:19-21. Moreover, Attorney Livingston testified that Petitioner was one of the more articulate
and intelligent clients that he ever had. Id. at 56:21-23. Additionally, Petitioner would send
Attorney Livingston legal research, witness notes, witness inconsistencies, and consistently
questioned everything. Id. at 45:4-13.
In the final analysis of the plea colloquy, Petitioner acknowledged that he knew he was
giving up certain constitutional rights and that Attorney Livingston went over them with him. Ex.
C at 20:7-17. The court informed Petitioner of the constitutional rights he was relinquishing by
virtue of his plea. Id. at 18:21-20:9. The court asked the Petitioner if he agreed with the facts he
was pleading to as read by the prosecutor and he agreed to the facts as read, and Petitioner agreed
that the State could prove the facts as read beyond a reasonable doubt if the case went to trial. Id.
at 26:8-27:21. Ultimately, the Court found that Petitioner had the capacity to understand the nature
and consequences of his plea, including the waiver of his constitutional rights. Id. at 37:20-23. The
Court found that the plea was made knowingly, intelligently, and voluntarily, with knowledge and
understanding of all matters set forth in the affidavit and Petitioner pled guilty. Id. at 38:2-9.
Petitioner acknowledged that Attorney Livingston went over the plea form with him and
answered all of his questions. Moreover, Petitioner admitted to the facts underlying the charged
offenses and incorporating the elements of those offenses. See Camacho, 58 A.3d at 186. Petitioner
was also informed of his constitutional rights that he was giving up by entering his plea. See
Desamours v. State, 210 A.3d 1177, 1183 (R.I. 2019) (no Rule 11 violation for “bare-boned” plea
colloquy where Superior Court justice advised applicant of rights he was waiving by entering plea
and applicant confirmed his relinquishment of those rights). This Court is satisfied that Petitioner’s
plea was a voluntary, knowing, and intelligent plea, and that the requirements of Rule 11 and the

11
Fourteenth Amendment were complied with in this case.
B
Ineffective Assistance of Counsel
When evaluating allegations of ineffective assistance of counsel, Rhode Island Courts have
adopted the two-pronged standard enunciated in Strickland v. Washington, 466 U.S. 668
(1984). Perkins v. State, 78 A.3d 764, 767 (R.I. 2013); see Guerrero v. State, 47 A.3d 289, 300
(R.I. 2012) (citing Strickland, 466 U.S. 668). “Applicants are required to demonstrate that: (1)
counsel’s performance was deficient in that it fell below an objective standard of reasonableness
… and (2) that such deficient performance was so prejudicial to the defense and the errors were so
serious as to amount to a deprivation of the applicant’s right to a fair trial.” Tassone v. State, 42
A.3d 1277, 1284-85 (R.I. 2012) (internal quotation marks and citations omitted). If an applicant
for postconviction relief does not make both showings, “‘it cannot be said that the conviction or
… sentence resulted from a breakdown in the adversary process that renders the result
unreliable.’” Simpson v. State, 769 A.2d 1257, 1266 (R.I. 2001) (quoting Strickland, 466 U.S. at
687). Our Supreme Court has stated when ruling on an ineffective assistance of counsel claim,
courts should consider counsel’s performance in its entirety. Hazard, 64 A.3d at 756. Thus, “the
benchmark issue is whether ‘counsel’s conduct so undermined the proper functioning of the
adversarial process that the trial cannot be relied on as having produced a just result.’” Bustamante
v. Wall, 866 A.2d 516, 522 (R.I. 2005) (quoting Toole v. State, 748 A.2d 806, 809 (R.I. 2000)).
1
First Prong
The first prong of the Strickland analysis requires the applicant to “demonstrate that
‘counsel’s performance was deficient, to the point that the errors were so serious that trial counsel

12
did not function at the level guaranteed by the Sixth Amendment.’” Guerrero, 47 A.3d at
300 (quoting Brennan v. Vose, 764 A.2d 168, 171 (R.I. 2001)). To do so, Petitioner must show
that “counsel’s advice was not within the range of competence demanded of attorneys in criminal
cases.” Neufville v. State, 13 A.3d 607, 610 (R.I. 2011). Our Supreme Court “requires that scrutiny
of counsel’s performance be highly deferential, and ‘every effort [must] be made to eliminate the
distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct,
and to evaluate the conduct from counsel’s perspective at the time.’” Tassone, 42 A.3d at
1285 (alteration in original) (quoting Lynch v. State, 13 A.3d 603, 606 (R.I. 2011)).
Counsel’s performance, therefore, “must be assessed in view of the totality of the
circumstances and in light of ‘a strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance.’” Hazard v. State, 968 A.2d 886, 892 (R.I. 2009)
(quoting Heath v. Vose, 747 A.2d 475, 478 (R.I. 2000)). With regard to the first prong, this Court
must consider whether Mr. Livingston’s advice to Petitioner regarding a potential plea to the
assault with a dangerous weapon charge was within the range of competence demanded of
attorneys in criminal cases. See Neufville, 13 A.3d at 610. The Court’s scrutiny of Mr. Livingston’s
performance must be highly deferential, and it must make every effort to eliminate the distorting
effects of hindsight, reconstruct the circumstances of Mr. Livingston’s challenged conduct, and
evaluate same from his perspective at the time. See Lynch, 13 A.3d at 606.
Petitioner argues that his counsel’s performance was deficient because, (1) he was not
advised by Attorney Livingston that the sentencing benchmarks recommended a maximum
sentence of five years to serve and that he would have insisted on going to trial had he been so
apprised, See First Am. Appl., ¶¶ 5, 6, 18; (2) Attorney Livingston failed to negotiate a sentence
within the range recommended by the sentencing benchmarks, Id. ¶¶ 7-8; (3) Attorney Livingston

13
knew that Petitioner was being deprived of his prescribed medications prior to his plea and never
notified the court of same, Id. ¶¶ 21-22; (4) Attorney Livingston knew the negative effects that
high security segregation was having on Petitioner’s mental health and did not notify the court of
same, Id. ¶¶ 23, 25, 26, 28; and (5) Petitioner did not have time to consider the State’s offer and
was coerced into accepting the offer by Attorney Livingston, Id. ¶ 30.
At the postconviction relief hearing, Attorney Livingston testified that he has been an
attorney for thirty-two years, handled fifty jury trials as a prosecutor, and has prosecuted and
defended capital cases. See relief Tr. at 39-40:8. With regard to both the violation hearing and the
possible trial on the new charges, Attorney Livingston described his thought processes, case
strategy, discussion with Petitioner about sentencing benchmarks,5 and tactical decisions he made:
“Q: So the State wanted to go to a violation hearing . . .?
“A: That was my understanding. And so then we sat down and
talked, all right, so, you know, Joe, here’s the guidelines, you’re on
probation for robbery, and I believe it was a 15-year sentence, 5
years to serve and 10 suspended. The guidelines on a robbery was –
I think it was 8 to 12. I believe that was the number.
So I said our argument would be with this mitigation – he had some
health issues, a bullet in the back . . . and so we’re going to use that
as mitigation and also argue that he’s admitting violation. . . . Id. at
43:1-16.
“And we went over the elements and the evidence down the road
when we both had it all. . . . And I said, Joe, I agree with you. I think
it’s a very, very weak murder, they can’t prove the co-defendant
intentionally hit Mr. Rodriguez with the intention of killing him.”
Id. at 46:13-20.
Mr. Shepard, to the contrary, testified at the postconviction relief hearing that when he met
with Mr. Livingston, he never discussed the sentencing benchmarks for any of the charges he was
5 Attorney Livingston referred to the sentencing benchmarks several times as guidelines
but later testified that “guidelines” is the federal term for the benchmarks. See relief Tr. at
44:5-8.

14
facing. This Court finds Mr. Shepard’s testimony in that regard not credible. The pretrial offers
from the State initially contemplated that Mr. Shepard would plead either to second-degree murder
or manslaughter. Attorney Livingston presented these offers from the State to Mr. Shepard, who
responded that he would not have on his record that he killed someone. Id. at 49:12-14. Attorney
Livingston, in the context of continuing plea negotiations, specifically advised Mr. Shepard with
regard to the assault with a dangerous weapon charge that “you’re not going to get a benchmark
case.” Id. at 59:17. This Court finds that Petitioner’s claims that his counsel Mr. Livingston’s
performance was deficient because he failed to advise Petitioner about the applicable sentencing
benchmarks for an assault with a dangerous weapon charge, and because he failed to negotiate a
sentence within the range suggested by the benchmarks to be without merit.
Once Mr. Shepard rejected the initial offers from the State, Attorney Livingston diligently
prepared for trial, filing several motions on Mr. Shepard’s behalf, and discussing trial strategy in
detail with the Petitioner:
“Q: Did you discuss all of the different motions and different
strategies that you had with Mr. Shepard?
“A: Every single motion that I had, every piece of evidence that we
had was all not only shared with Mr. Shepard, was discussed back
and forth, including trial strategy, what our strategy was going to be
on defeating the murder or the manslaughter or the ADW [assault
with a dangerous weapon].” Id. at 48:19-25.
At the same time Mr. Livingston was preparing for trial, plea negotiations with the State
continued. Attorney Livingston testified about his plea discussions with Petitioner:
“Q: So during the time that you’re preparing for trial, did you ever
have any discussions with Mr. Shepard about potentially entering a
plea?
“A: Yes, numerous times. I should say I brought all offers to Mr.
Shepard. So I brought the original offer. And now, if memory serves
me, I think it was 25. . . . I think the next offer was the 30, 18, 30

15
years, 18 to serve on the manslaughter. I brought that to Mr.
Shepard. He said, no way, I’m not pleading to any charge that would
have on my record that I killed someone. I’m not doing it. So the
prosecutor contacted me and said have you had any discussions
about the 30 years, 18 to serve with Mr. Shepard. . . . I said I have,
and they said, He’s rejecting it? And they said, what doesn’t he like,
the charge or the time? I said both, the charge and the time. . . . So
on that final offer, the one that he ultimately pled to, he thought it
was high. . . . I said without your prior record and without the dead
body . . . you’re not going to get a benchmark case. They think
they’re being reasonable. This is the lowest they’re going to go.” Id.
at 49:3-8, 10-20, 59:5-6, 11-12, 17-19.
When it became time for trial and Petitioner changed his mind and wanted to enter a plea,
Attorney Livingston testified credibly as to his process in discussing the plea form with the
Petitioner. Attorney Livingston indicated that he would have reviewed the plea form in its entirety
with Petitioner, that he would have discussed the rights Petitioner was giving up in more detail,
the elements Petitioner was pleading to, and let Petitioner know he was facing life plus ninety-five
years at trial. Id. at 52:10-11, 53:9-11, 53:12-14, 54:11-16. Attorney Livingston testified that he
told Petitioner that the decision to enter into a plea deal was ultimately the Petitioner’s to make.
Id. at 58:2-6.
Petitioner argues that Attorney Livingston’s performance was deficient for failing to raise
Petitioner’s mental health issues and lack of medication to the sentencing justice. Petitioner further
argues that at the time of the plea on July 11, 2016, Attorney Livingston’s performance was
deficient because he knew the negative effects that being housed in high security were having on
him, and he failed to notify the court of the same. Both arguments are without merit. Attorney
Livingston testified credibly that Petitioner never mentioned mental health issues to him. Id. at
55:6-9, 56:19-21. Mr. Shepard described in some detail the negative effects which being housed
in high security had upon him, concluding, “[y]ou don’t understand how bad the affect is with
High Security and Seg until you’re not in that environment no more . . . And my anxiety, my

16
PTSD, the slamming of the doors, you’re watching people hurt themselves to get medical
attention.” Id. at 8:8-13.
Mr. Livingston testified, however, that Mr. Shepard did not want to be in High Security
because “they didn’t have the programs that he wanted to get into . . . .” Id. 56:13-15. Attorney
Livingston further testified that prior to the time Petitioner entered his plea and after he entered his
plea, he (Attorney Livingston), never recalled him (Mr. Shepard) “ever mentioning anything about
his mental health,” and that his interactions with Mr. Shepard were such that he felt Mr. Shepard
was one of the more articulate and intelligent clients he had ever had. Id. at 56:19-23. And in
reviewing the plea colloquy (Ex. C) it is clear that Mr. Shepard indicated to the sentencing judge
that he was not under the influence of alcohol or narcotics, did not mention that he was having any
mental health issues or issues with being housed in High Security or Segregation, and indicated to
the sentencing judge that he was satisfied with Mr. Livingston’s representation. Id. at 6:13-16,
7:18-20.
Finally, Petitioner argues that he did not have time to consider the State’s offer and was
coerced into accepting the plea by Attorney Livingston. For his part, Attorney Livingston testified
credibly that the decision was the Petitioner’s and that he expected a trial on the day of the plea.
Id. at 49:21-24. Moreover, that he met with Petitioner several times in the days leading up to the
plea. Id. at 50:1-2. Finally, with Petitioner’s assent, a decision was made to allow all three co-
defendants to be in the courtroom the day of the plea and for them to meet alone to discuss what
they wanted to do. Id. at 51:8-52:2.
This Court finds that Attorney Livingston’s discussions with Petitioner and representation
during the plea negotiations was reasonable “in view of the totality of the circumstances.” Hazard,
968 A.2d at 892. Attorney Livingston was diligently preparing for trial but ultimately Petitioner

17
chose to plead. Petitioner’s decision to plead was informed by Mr. Livingston’s considered advice
and experience, enabling him to weigh the potential consequences of going to trial as opposed to
accepting a plea.
In “look[ing] at the entire performance of counsel,” the Court is satisfied that Petitioner
received effective assistance of counsel. (Alteration in original; internal quotation marks omitted.)
Tassone, 42 A.3d at 1286. The Court cannot conclude that Attorney Livingston’s performance
“was deficient in that it fell below an objective standard of reasonableness.” (Internal quotation
marks omitted.) Id. at 1284; see Page v. State, 995 A.2d 934, 945 (R.I. 2010). This Court is
satisfied that Attorney Livingston’s performance prior to a potential trial, during plea negotiations,
and his representation during the hearings certainly fell within the wide range of reasonable
professional assistance to which Petitioner was entitled. Accordingly, Petitioner has not satisfied
the first prong of the Strickland test.
2
Second Prong
Because of Petitioner’s failure to prove that Attorney Livingston’s representation was
constitutionally deficient, the Court need not—and will not—address the second prong of the
Strickland standard. Page, 995 A.2d at 945 (declining to consider the second Strickland prong
when “counsel’s performance was reasonable and, as such, did not run afoul of even the first prong
. . . under the Strickland test”). Nevertheless, this Court notes that Petitioner was in no way
prejudiced by Attorney Livingston’s representation of him. It is clear to this Court that Petitioner
received effective assistance of counsel and a just result was produced. Bustamante, 866 A.2d at
522.

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IV
Conclusion
In light of the foregoing, the Court concludes that Petitioner has not satisfied his burden of
proving by a preponderance of the evidence that postconviction relief is warranted. Furthermore,
this Court is satisfied that defense counsel provided competent and professional services in defense
of the charges against Petitioner. Accordingly, the First Amended Application for Post-Conviction
Relief is denied and dismissed.
Counsel shall submit an appropriate order for entry.

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RHODE ISLAND SUPERIOR COURT
Decision Addendum Sheet
TITLE OF CASE: Joseph Shephard v. State of Rhode Island
CASE NO: PM-2020-00259
COURT: Providence County Superior Court
DATE DECISION FILED: November 9, 2023
JUSTICE/MAGISTRATE: Montalbano, J.
ATTORNEYS:
For Plaintiff: Ronald C. Desnoyers Jr., Esq.
For Defendant: Judy Davis, Esq.