Opinion
C.A. PM 11-3794
07-30-2013
RAYMOND STAFFIER v. STATE OF RHODE ISLAND
For Plaintiff: Pamela E. Chin, Esq. For Defendant: Jeanine McConaghy, Esq.
Providence Superior Court
For Plaintiff: Pamela E. Chin, Esq.
For Defendant: Jeanine McConaghy, Esq.
DECISION
SAVAGE, J.
This action is before this Court on Petitioner's pro se application for postconviction relief on the grounds of ineffective assistance of counsel. For the reasons set forth in this Decision, this Court denies Petitioner's application.
I
FACTS AND TRAVEL
In his post-conviction relief application, Petitioner asserts that his trial attorney failed to properly defend him in his underlying criminal case by not planning an appropriate defense strategy, not adequately cross-examining a witness who testified against him, and failing to make proper objections during trial. See State v. Staffier, P2/02-2263A (R.I. Super. Ct. 2002). In that case, a jury convicted him of three counts of second degree child molestation and found him not guilty of a fourth similar count. This Court sentenced him to fifteen years at the Adult Correctional Institutions, with six years to serve, nine years suspended and nine years probation on each of the three counts to run concurrently. The Rhode Island Supreme Court affirmed. See State v. Staffier, 21 A.3d 287 (R.I. 2011).
This Court appointed counsel to represent Petitioner in connection with his petition for post-conviction relief When court-appointed counsel took no action to advance the petition and ultimately withdrew, this Court appointed successor counsel. The matter went to hearing on March 7, 2013. Petitioner testified in support of his petition and offered into evidence, with no objection, the transcripts from his criminal trial. The State presented the testimony of Petitioner's trial attorney and put into evidence several exhibits, including a two-page undated document detailing Petitioner's background (Def's Ex. A), a letter of support from Petitioner's daughter dated February 2003 (Def's Ex. D), and medical documentation regarding the Petitioner's medical condition in the fall of 2003. (Def's Exs. B and C). According to his testimony, defense counsel presented these documents to a hearing justice of this Court during pre-trial conferences in the criminal case. The State also placed into evidence ten notices of pretrial conferences sent to Petitioner from his defense attorney, from the fall of 2002 through April 2003, as well as notices of a hearing on his motion for new trial and sentencing. (Def's Ex. E).
At the conclusion of the post-conviction relief hearing, counsel for each of the parties presented oral argument. On grounds somewhat different from those asserted in his original application for post-conviction relief, Petitioner claimed that his trial counsel was ineffective. He faulted him for failing to cross-examine Robin Lisi, the complaining witness' mother, to establish the animosity between Ms. Lisi and Petitioner that could have biased the child in testifying against him. He further claimed that his counsel failed to advise him pre-trial as to the State's plea offer, to discuss an offer of some jail time to serve on a plea versus trial, and to advise him of the maximum sentences that he could face, if convicted, as well as the applicable Superior Court benchmarks for the offenses. He generally criticized counsel for engaging in inadequate pre-trial discussions with him. He also faulted his attorney for failing to adequately cross-examine the complaining witness. In making this argument, however, counsel for Petitioner conceded in oral argument, following the post-conviction relief hearing, that the cross-examination of the minor child could have been tactical and not ineffective.
To the extent that Petitioner raised additional grounds for post-conviction relief in his original application that his counsel did not press at the hearing, they are deemed waived.
Petitioner further contended that he suffered prejudice from counsel's deficient performance. He claimed that had counsel been effective, it could have altered his decision to go to trial or changed the result at trial.
The State responded that Petitioner failed to prove that his trial counsel's performance was deficient or that it prejudiced him. More specifically, it argued that defense counsel represented Petitioner zealously and communicated with him fully during pre-trial proceedings. It also contended that defense counsel had tried unsuccessfully to secure defendant a non-jail offer prior to trial and that the defendant decided, in the absence of a non-jail disposition and with knowledge of his exposure, not to plead but to take his chances at trial. It argued further that Petitioner failed to show, relative to the lack of cross-examination of the complaining witness' mother by defense counsel at trial, that his attorney was aware of a contentious relationship between Ms. Lisi and Petitioner at the time of trial that could have been exploited during her cross-examination.
II
STANDARD OF REVIEW
Under the Rhode Island Post-Conviction Relief Act, a person who has been convicted or sentenced for a crime and who claims that "the conviction or the sentence was in violation of the Constitution of the United States or the constitution or laws of this state" may institute an action for post-conviction relief. R.I. Gen. Laws § 10-9.1-1(a)(1). The burden is on the petitioner to prove, by a preponderance of the evidence, the alleged instance or instances of ineffective assistance of counsel. Hazard v. State, 968 A.2d 886, 891-92 (R.I. 2009); Bleu v. State, 968 A.2d 276, 278 (R.I. 2009); Brown v. State, 964 A.2d 516, 526 (R.I. 2009); Palmigiano v. Mullen, 119 R.I. 363, 374, 377 A.2d 242, 248 (1977). The Rhode Island Supreme Court has held that the appropriate procedure for asserting a Sixth Amendment challenge to the competency of counsel is not by direct appeal, but rather by filing a petition for post-conviction relief under the Act. State v. Gibbons, 418 A.2d 830, 839 (R.I. 1980); State v. Freitas, 121 R.I. 412, 416-17, 399 A.2d 1217, 1219 (1979).
In reviewing a claim of ineffective assistance of counsel, our Supreme Court has stated that 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) (citing Toole v. State, 748 A.2d 806, 809 (R.I. 2000) (quoting Tarvis v. Moran, 551 A.2d 699, 700 (R.I. 1988))). Indeed, the Court should reject a claim of ineffective assistance of counsel „"unless the attorney's representation [was] so lacking that the trial became a farce and a mockery of justice . . . ."' Pelletier v. State, 966 A.2d 1237, 1241 (R.I. 2009) (quoting State v. Dunn, 726 A.2d 1142, 1146 n.4 (R.I. 1999)).
In evaluating claims of ineffective assistance of counsel, our Supreme Court follows the standard articulated by the United States Supreme Court in its seminal decision in Strickland v. Washington, 466 U.S. 668 (1984). See Hazard, 968 A.2d at 891-92; Bustamante, 866 A.2d at 522. The two-part test of Strickland requires that a defendant show: (1) that counsel's performance was so deficient and that counsel made errors so serious that he or she was not functioning at the level guaranteed by the Sixth Amendment; 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." Brennan v. Vose, 764 A.2d 168, 171 (R.I. 2001) (citing Strickland, 466 U.S. at 687). A defendant raising an ineffective assistance of counsel claim must satisfy both parts of the Strickland test to prevail; unless he or she does so, „"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).
In assessing the first part of the Strickland test, the performance of counsel is evaluated by determining whether that representation "fell below an objective standard of reasonableness." 466 U.S. at 688. "The performance proxy must be assessed in view of the totality of circumstances and in light of „a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance."' Hazard, 968 A.2d at 892 (quoting Strickland, 466 U.S. at 689). „"Mere tactical decisions, though ill-advised, do not by themselves constitute ineffective assistance of counsel."' Bustamante, 866 A.2d at 523 (quoting Toole, 748 A.2d at 809). „"A choice between trial tactics, which appears unwise only in hindsight, does not constitute constitutionally deficient representation under the reasonably competent assistance standard."' State v. D'Alo, 477 A.2d 89, 92 (R.I. 1984) (quoting United States v. Bosch, 584 F.2d 1113, 1121 (1st Cir. 1978)).
In addition, "a single failure or omission on the part of privately retained counsel is unlikely to meet the Strickland threshold." Heath v. Vose, 747 A.2d 475, 479 (R.I. 2000). Furthermore, our Supreme Court, based on a decision of the United States Supreme Court, has warned against applying the standards set forth in Strickland "overbroadly", lest standard legal tactics be suddenly deemed inappropriate or insufficient. See Rivera v. State, 58 A.3d 171, 180 (R.I. 2013) (citing Nix v. Whiteside, 475 U.S. 157, 165 (1986)). When reviewing a claim of ineffective assistance of counsel, this Court thus should examine "the entire performance of counsel." Brown, 964 A.2d at 528; Heath, 747 A.2d at 478.
Even if a defendant is able to satisfy the first part of the Strickland test by showing that counsel's performance was objectively unreasonable considering all of the circumstances, the defendant then must go on to establish that counsel's performance resulted in serious prejudice that undermined his or her right to a fair trial. Strickland, 466 U.S. at 694; Brown, 964 A.2d at 527. Under this second part of the Strickland analysis, „"the defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome."' Brown v. State, 964 A.2d at 529 (quoting Strickland, 466 U.S. at 694).
This second part of the test focuses on the reliability of the outcome of the proceeding. Thus, even if a defendant is successful in demonstrating that his or her counsel committed unreasonable errors, he or she still must be able to show that those errors "actually had an adverse effect on the defense, " and not simply "some conceivable effect, " since "virtually every act or omission of counsel would meet the test." Id. at 693. The United States Supreme Court has made clear that "an error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Id. at 691 (emphasis added); see also Brown, 964 A.2d at 528 (when counsel's performance is "deficient in a number of respects, then the possibility is greater than an accumulation of serious shortcomings prejudiced the defendant to a sufficient degree to meet the Strickland requirement") (internal citation omitted).
With these precepts in mind, "judicial scrutiny of counsel's performance must be highly deferential." Id. at 689. In Strickland, the Court cautioned a defendant against "second guess[ing] counsel's assistance after conviction or adverse sentence." Id. Further, the Court added, "it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable." Id. A fair assessment of counsel's performance, therefore, "requires that every effort 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." Id. Recognizing the difficulties inherent in making such an evaluation, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action „might be considered sound trial strategy."' Id. In any given case, "[t]here are countless ways to provide effective assistance . . . [e]ven the best criminal defense attorneys would not defend a particular client in the same way." Id.; cf. Engle v. Isaac, 456 U.S. 107, 133-34 (1982) (holding that the Constitution only guarantees criminal defendants a fair trial and a competent attorney; it does not ensure that the defense will recognize and raise every possible claim). Thus, the task for a court is to determine if a defendant has met and carried his or her burden of showing that "the decision reached would reasonably likely have been different absent the errors." Strickland, 466 U.S. at 696.
The United States Supreme Court, as well as the Rhode Island Supreme Court, have made it clear that the Sixth Amendment right to effective assistance of counsel attaches not only during trial, but also during the plea-negotiation process. Moran v. Burbine, 475 U.S. 412, 431 (1986); Chapdelaine v. State, 32 A.3d 937, 943 (R.I. 2011). Claims of ineffective assistance of counsel in the plea bargaining context are thus governed by the same two-part Strickland test. See Missouri v. Frye, 566 U.S.__, 132 S.Ct. 1399, 1405 (2012) (citing Hill v. Lockhart, 474 U.S. 52 (1985)); Lafler v. Cooper, 566 U.S. __, 132 S.Ct. 1376, 1384 (2012). As such, the burden is on the applicant challenging the effectiveness of assistance during the plea negotiation process to demonstrate that „"the advice was not within the range of competence demanded of attorneys in criminal cases."' Guerrero v. State, 47 A.3d at 300 (quoting Tollett v. Henderson, 411 U.S. 258, 266 (1973)). In addition, to show prejudice, the applicant must demonstrate a reasonable probability that the outcome of the plea process would have been different had he or she been afforded effective assistance of counsel. See Missouri v. Frye, 566 U.S. at__, 132 S.Ct. at 1409; Lafler v. Cooper, 566 U.S. at __, 132 S.Ct. at 1384.
III
ANALYSIS
Petitioner asserts that he was denied effective assistance of counsel at his criminal trial as protected by the Sixth Amendment to the United States Constitution and, consequently, seeks post-conviction relief He claims that his attorney was deficient in: (1) failing to adequately cross-examine the complaining witness and failing to cross-examine the complaining witness' mother altogether; (2) not informing him of the State's plea offer, the nature and consequences of the plea, the maximum sentences he could face if convicted, and the sentencing benchmarks applicable to the charged offenses; and (3) not engaging in adequate pre-trial discussions with him.
A
Deficiency
Based on the evidence presented at the post-conviction relief hearing, this Court cannot find that the decision of Petitioner's trial attorney to not cross-examine the complaining witness' mother at trial fell below an objective standard of reasonableness. See Strickland, 466 U.S. at 688. Petitioner has failed to show that cross-examination of Robin Lisi would have resulted in testimony by her favorable to his cause. While he contends that cross-examination would have shown animosity in her relationship with Petitioner that could have biased her daughter in her testimony against Petitioner, he failed to prove that claim. Ms. Lisi did not testify at the postconviction relief hearing to corroborate his claim of a contentious relationship unrelated to the molestation charges, Petitioner's former counsel was unaware of any such alleged animosity and Petitioner's testimony on this point was insufficient to establish to this Court's satisfaction that his attorney knew or should have known to explore this area during the cross-examination of Ms. Lisi. Moreover, Petitioner failed to convince this Court that his attorney's decision not to cross-examine Ms. Lisi was unjustified as a matter of trial tactics. Even if there was animosity between Petitioner and Ms. Lisi, it could have appeared at trial to be rooted in Petitioner's molestation of the complaining witness, rather than any other tension between her mother and Petitioner. Exploring that issue, therefore, could have hurt rather than helped Petitioner in his defense. "Mere tactical decisions, " even if ill-advised, simply „"do not . . . constitute ineffective assistance of counsel.'" Bustamante, 866 A.2d at 523 (quoting Toole, 748 A.2d at 809). No amount of cross-examination of the complaining witness' mother in this case—a witness who was not present when Petitioner's molestation of the minor child occurred—could have lessened the palpable credence of the victim's own testimony.
This Court also cannot find that Petitioner proved that the cross-examination of the complaining witness by Petitioner's counsel at trial fell below an objective standard of reasonableness. Strickland, 466 U.S. at 688. A review of the trial transcript containing the cross-examination of the complaining witness reveals that the questioning of her by defense counsel was appropriate and adequate.
While Petitioner suggests that his attorney should have pressed the complaining witness further about exactly where she was touched, whether he loosened her pants and whether he had an erection or ejaculated, those questions, if asked, clearly could have yielded fruit for the prosecution. Indeed, when the prosecutor asked the complaining witness about whether the defendant ejaculated, that worked to his disadvantage. The decision of whether to ask such questions was a tactical one to be made by counsel. To the extent Petitioner asked his attorney to pose those questions and counsel refused and stated, "I don't want to go there, " counsel was exercising tactical judgment that cannot be said to have fallen below an objective standard of reasonableness. See Bustamante, 866 A.2d at 523. In fact, probing those areas could have strengthened, rather than undermined, her testimony. Presumably that is why Petitioner's counsel, during oral argument following the post-conviction relief hearing, conceded that the cross-examination of the complaining witness could have been tactical and not ineffective.
In this regard, this case has a distinct parallel to a similar case where a petitioner sought to attack his child molestation conviction collaterally on grounds of ineffective assistance of counsel based on claims that his attorney failed to appropriately cross-examine the complaining child witness at trial. See Brown v. State, 841 A.2d 1116, 1123 (R.I. 2004). In rejecting Petitioner's claim, the hearing justice observed that "in essence, applicant's trial attorney had, pitted your [applicant's] word against hers [the complaining witness] which very often is a very… effective trial strategy." Id. At 1123. The court observed that:
Very often defense attorneys will avoid a lot of cross-examination on the details of… the incidents because what they don't want to do… is give the witness the opportunity to tell the story again and again to the jury…. if you have a particularly sympathetic appearing witness… a lot of times attorneys don't want to cross-examine too heavily because they are afraid they're going to create a bias in the minds of the jury against the party that attorney is representing. These are very legitimate trial strategies.Id. This same reasoning and observation about the child witness applies in this case, leading to the inescapable conclusion that Petitioner's claim of ineffective assistance premised on his counsel's cross-examination of the complaining witness in this case must fail.
With regard to Petitioner's claim of deficiency regarding the plea negotiation process, this Court also finds that he failed to prove ineffective assistance of counsel. Petitioner claims that his attorney never talked to him about a pre-trial plea offer, the sentencing benchmarks for the offenses, or the maximum sentences that he could receive if found guilty after trial and that he never told his attorney that he would not plead. Yet, this Court, based on the testimony of Petitioner's prior attorney and Petitioner's evident lack of recollection, finds to the contrary. It is clear to this Court that the State wanted a jail disposition in the case, that Petitioner's attorney tried diligently, but unsuccessfully, to secure a less than jail offer, and that Petitioner did not want to plead in exchange for a jail sentence. While Petitioner faults his attorney for not securing a firm offer from the State for a set period of years to serve and years suspended with probation and not discussing with the prosecutor a sentence of "short" jail, it is clear to this Court that Petitioner would not have pled in exchange for any time to serve. Petitioner knew of his exposure to significant jail time from the nature of the State's pre-trial offer as well as from his discussions with his attorney. Yet, he was adamant about his innocence, his refusal to plead in exchange for time to serve and his desire to testify at trial. Once again, it must be stressed that "the burden is on the applicant to demonstrate that the advice was not within the range of competence demanded of attorneys in criminal cases.'" Guerrero v. State, 47 A.3d 289, 300 (R.I. 2012) (quoting Tollet v. Henderson, 411 U.S. at 266). Based on his testimony and the evidence presented at the post-conviction relief hearing, Petitioner has fallen short of the mark. He has simply failed to prove that his attorney's conduct with regard to pre-trial plea negotiations fell below an objective standard of reasonableness.
In this regard, this case is reminiscent of a recent decision in which the Rhode Island Supreme Court affirmed the denial of a petitioner's application for post-conviction relief premised on similar grounds. See Bell v. State of Rhode Island, 2013 WL 3013649 (R.I. 2013). In Bell, the petitioner faulted his trial counsel for giving him incorrect legal advice that deprived him of the opportunity to consider and accept a favorable plea offer. Id. Yet, the evidence showed that counsel "did not actively pursue a plea disposition „because [he] was told in no uncertain terms [by his client that they were] going to trial.'" Id. The client did not want to "take any offer" because he wanted to go into the military. The Supreme Court found counsel's conduct in that regard to be in compliance with the obligation of attorneys under Article V, Rule 1.2(a) of the Supreme Court Rules of Professional Conduct to "abide by a client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify." Id. Similarly here, counsel abided by Petitioner's decision not to plead and to go to trial, in conformance with counsel's professional obligation, based on Petitioner's refusal to plead in exchange for any jail time and the State's refusal to extend a non-jail offer.
While, in Bell, the Supreme Court recognized that the petitioner there might have put aside his military career in favor of a shorter prison term if he had known that he would be convicted and receive fifteen years with four years to serve after trial, it deemed counsel's performance sufficient because counsel informed the client of his options. The client knew he could go to jail and nevertheless decided to go to trial. Petitioner here, like the petitioner in Bell, knew that he could go to jail if convicted and made a counseled decision not to plead and to take his chances at trial, confident that his testimony would prove his innocence.
Finally, Petitioner's claim that his attorney failed to communicate with him prior to trial or prepare him adequately for his trial testimony must be rejected. It is clear to this Court that counsel worked diligently to try to secure Petitioner a non-jail disposition and worked with him to submit to the Court mitigation evidence, including a document prepared by Petitioner to summarize his background, medical documentation of Petitioner's health issues, and a character reference from Petitioner's daughter. See Def.'s Exs. A-D. He kept Petitioner apprised of the numerous pre-trial conferences in the case at which the parties discussed these issues and the State's position regarding a plea offer. While Petitioner tried to suggest that his attorney met with him only one time, never discussed with him a pre-trial offer, failed to prepare him for his trial testimony or discuss with him the pros and cons of testifying, this Court, based on statements to the contrary in Petitioner's own testimony, his apparent trouble recollecting past events, and the testimony of his prior attorney, finds that Petitioner has failed to prove these claims. Counsel met with Petitioner pre-trial on multiple occasions, discussed with him the plea negotiation process and the State's refusal to entertain a non-jail offer based largely on the position of the complaining witness' mother, counseled Petitioner as to the risks of a jail sentence if he did not succeed at trial, and worked with Petitioner to identify trial witnesses and evidence and to prepare for trial. There is no question that counsel could have done more to memorialize, in writing, his pre-trial discussions with Petitioner and the work that he did to prepare for trial—steps that could have assisted this Court in evaluating Petitioner's claim of ineffective assistance. Even in absence of that evidence, however, this Court cannot find that Petitioner proved ineffective assistance on the part of his trial attorney with regard to his communication with Petitioner or otherwise.
It is the view of this Court that Petitioner made a counseled decision to reject any jail disposition of his case pre-trial and to proceed to trial, confident that his own testimony would carry the day. Now in hindsight, after the jury appropriately rejected his testimony in favor of the complaining witness and this Court sentenced him to a not insignificant term of years to serve, Petitioner regrets that decision. In this Court's view, however, Petitioner did not suffer those consequences because his attorney failed him, but rather because he could not admit to his own sexual misconduct or accept the consequences of his actions.
B
Prejudice
Even assuming, arguendo, that Petitioner could establish deficiency on the part of his trial attorney, he has failed to prove that any of those claimed deficiencies prejudiced him in any way. Had his attorney cross-examined the complaining witness' mother to establish animosity between Petitioner and her, Petitioner has failed to establish that any such animosity would have undermined the credence of the complaining witness' critical testimony against the Petitioner. Indeed, her testimony against him was compelling. Similarly, even if his attorney had questioned the complaining witness in the manner that Petitioner requested, Petitioner has failed to prove that it would have yielded responses helpful to him.
As to Petitioner's criticism of his attorney's role in the plea negotiation process, Petitioner did not testify or prove at the post-conviction relief hearing that he would have pled to the charges in exchange for a sentence of some time to serve, and not gone to trial, had he been apprised more fully of the maximum sentences that could be imposed after trial, the Rhode Island Superior Court sentencing benchmarks or the State's offer. See Chapdelaine v. State, 32 A.3d at 945 (applicant failed to show that the result would have been any different had his attorney explained to him in greater detail the advisability of accepting or rejecting the plea offer). He also did not testify or prove that his decision to take the stand at trial or his trial testimony would have been any different had he been better counseled regarding that decision and his testimony prior to trial. Petitioner simply has failed to prove that but for counsel's alleged errors, the result of his case would have been different. He failed to show that, absent such alleged deficiencies on the part of his attorney, there is a reasonable probability that he would have secured a non-jail disposition or accepted a short jail disposition or that the jury would not have convicted him. To the contrary, the evidence suggests that the State would not have offered a non-jail disposition prior to trial, Petitioner would not have accepted any jail sentence in lieu of trial, and the complaining witness' testimony would have carried the day, regardless of whether Petitioner testified at trial or testified differently.
This case is unlike Lafler v. Cooper, 566 U.S.__, 132 S.Ct. 1376 (2012), therefore, where a defendant's trial attorney was ineffective for misadvising the defendant that the government would not be able to prove the lead charge, thereby depriving the defendant of his right to plead in exchange for a lesser sentence than he received after trial. It likewise is unlike Missouri v. Frye, 566 U.S. __, 132 S.Ct. 1399 (2012), where counsel failed to advise the defendant of a favorable plea offer from the government, thereby depriving him of the opportunity to plead to a misdemeanor in exchange for a 90 day sentence rather than allowing him to plead to a felony in exchange for a sentence of three years to serve.
IV
CONCLUSION
For all of these reasons, Petitioner's application for post-conviction relief is denied in its entirety, with prejudice.
Counsel shall confer and submit to this Court forthwith for entry an agreed upon form of Order and Final Judgment that is consistent with this Decision.