*1 Pedro REYE

Sv. of Rhode Island.

STATE 2014-161-Appeal.

No. Rhode Court of Island.

Supreme 11, 2016.

July

ing a narcotics nuisance should be vacated knowing, because the intelli- voluntary. gent, argues He also hearing justice erroneously entered judgment for the state on his claims of counsel, ineffective assistance of failed consider other ar- guments, attorney appointed and that the connection with his failed assigned fulfill his role. This case came Supreme before argu- Court oral 1, 2015, pursuant ment December to an *4 directing parties appear order and why show cause the issues raised this appeal summarily should be decided. carefully considering After the written and parties, oral submissions we are appeal may satisfied that resolved briefing argument. without further For opinion, the reasons forth in this set judgment Superior affirm the Court. McKenna, Providence, Camille A. I

Applicant. McGinn, Providence, Virginia M. Facts and Travel

State. Attorney October General’s SUTTELL, C.J., Present: force) (strike Narcotics Force was Strike FLAHERTY, GOLDBERG, ROBINSON, conducting investigation into heroin INDEGLIA, and JJ. trafficking in an area near Central Falls 5, 1993,

High School. On October Investi- (Barovier), gator Carl Barovier a member OPINION force, approached of the strike Rome- Jose INDEGLIA, Justice for the Court. (Romero) purchase ro heroin.2 Romero vehicle, applicant, Reyes (Reyes or The Pedro entered Barovier’s two applicant), appeals vicinity High from the of his denial drove Central Falls vehicle, application.1 It postconviction-relief parked After Barovier his School. that his Reyes’s plea approached contention of Romero exited and Ismael nolo Cepeda (Cepeda).3 contendere the offense of maintain- The two conversed giving pertinent 1.The record is unclear as to Ml 2. The facts rise to the of- Reyes charged fenses with which was have Reyes signed name. his with the gleaned from the been criminal-information Reyes, caption name Pedro but the of that package. document identifies him as Pedro Muriel Reyes. Additionally, during change-of-plea precise 3. The record is also unclear as to the Reyes indicated that his name; Cepeda’s spelling of last some docu- Reyes others, name "Pedro Jaun Muriel.” and, [sic] spelled "Cepeda,” ments it is simply Reyes. "Cepada.” We shall refer to as forfeiting rights, several -then’Cepeda brown constitutional briefly, and entered and, by-another any ques- that was driven whether Datsun vehicle when asked he had off, returning drove rights, male. The vehicle responded tions about those later. exited ten minutes about prosecutor provided he did After the not. bags gave Barovier five vehicle support facts the amended relayed Barovier containing heroin.- charge, Reyes accepted facts as those true. of; description the driver Datsun found “does (Randall); H. Randall Inspector Edward the'capacity nature understand the photograph Barovier Randall' showed plea of his consequences including but Barovier identified Reyes, and as not rights limited to the waiver of those of the Datsun. driver which have with him” reviewed Romero, Cepeda and charged, along with there was sufficient for a factual basis heroin conspiracy distribute within with of nolo contendere. ac- He therefore (count 1) yards three school hundred cepted him to Reyes’s plea and sentenced within three distribution heroin two-year suspended three sentence with (count 2).. of a school yards hundred years probation. consideration represented respect Reyes’s plea, the state refrain elected to charges coun- by- privately retained these presenting Reyes of a a violator *5 counsel). (trial Eventually, the state sel imposed previously probationary sentence. in Rule count 2 accordance with dismissed on, not Reyes Time did marched 48(a) of Superior Court Rules Crim- subsequently reform his behavior. He was exchange Reyes’s in for inal Procedure adjudged probation to abe violator and nolo count to plea contendere period of re- served a incarceration as a maintaining charge a narcotics amended Additionally, in sult. he was convict- Superior Court con- file nuisance. The murder, second-degree discharging a ed plea by Reyes, two executed tains forms during firearm crime the commission a English Spanish. in other in one and the death, car- violence resulted and’ hearing At change-of-plea on October a rying pistol without licénse. See State 4, 1994, interpreter pres- no Spanish was (R.I.2009).5 Reyes, v. ent, but record does indicate Reyes charges, For those was sentenced Reyes trial or requested either two life Id. The sentences. consecutive interpreter. During-the assistance of ah imposition sought state of an addi- also colloquy, respond, plea Reyes was able ground Reyes on the tional sentence English, justice’s questions.4 the trial - offender was habitual under G.L.1956 Reyes provided his name and date of § The conviction secured birth, 12-19-21. that he and he indicated wished the 1994 nolo plea contendere was one change his even before trial counsel predicate Reyes qualified offenses that question from trial responded to that the- offender. Reyes Reyes that he as received justice. stated understood a-habitual that, contendere, ten-year by pleading nolo he was sentence on habitual-offender underlying distinguish Superi- are 4. To between the different The facts these convictions justices pro- involved in the opinion affirming or Court relevant our his set in detail in forth justice ceedings, presided we refer to the who conviction, Reyes, State 609-12 change-of-plea hearing ( over as R.I.2009), repeated need here. justice” presid- "the trial and the who hearings on his ed over the hearing justice.” "the concurrently indigent applicant charge, § to be served with his under G.L.1956 10- 9.1-5. second life sentence. ' 2(312, 10-9.1-5, September Reyes pro se Iii filed accordance

application, sought which he first vacate referred the matter to his 1994 nolo plea.6 appli- the Office of contendere the Public Defender. Be allegations cation forth precluded set several of inef- cause a conflict of interest counsel, fective assistance which member of representing that office from general categories: Reyes, attorney fell into two (postconviction failure coun sel) adequately investigate pre- appointed case and to represent defense; pare, application. failure communi- connection with his con Reyes through interpreter cate with investigation, so nection with his postconvic meaningfully participate could tion counsel met with on four occa defense, sions; preparation did‘not, in the of his however, even he speak with though, according Reyes, trial counsel trial counsel. Postconviction counsel also “barely knew that he spoke English.” transcripts recordings searched respect failure-to-investigate With allegedly exculpatory bail-hearing tes category, Reyes that his timony" averred codefen- given by claimed was proceedings dants culminated codefendants. Postconviction counsel’s in his 1994 plea [Reyes] “exonerated at a search revealed that the bail hearing,” bail but trial counsel failed to testimony; continued twice with no interview these par- witnesses. One records the third and final day allegations catego- that,, amount in the second again, bail revealed once witnesses'¡testified ry be- communication—was and that the defendants —lack cause trial engage counsel failed to a had admitted- that the :state had satisfied translator, adequately its showing‘that unable burden of bail was not ap *6 Reyes inform propriate. about the and conse- This postconviction nature search led quences plea. of his to his to allegedly addition counsel conclude that the ex claims, Reyes alleged, ineffectiveness also culpatory bail-hearing testimony not did Alabama, Boykin citing v. 395 postconviction U.S. 89 exist. in Because counsel’s (1969), 5.Ct. vestigation Reyes’s L.Ed.2d 274 -of him claims led to justice accepting trial his erred that-Reyes’s postconviction the conclusion plea (i) Reyes merit, because did not understand the he moved to withdraw lacked (ii) charge, nature amended the trial accompanying forty-two-page and .an filed exculpatory overlooked the explaining state- no-merit memorandum- the rea (iii) codefendants, conclusion, ments and sons behind that in accordance basis, plea. procedure by lack factual Court with outlined State, (R.I application, Reyes to his Shatney addition also filed v. a motion for appointment counsel as an .2000). ^[7] Despite lag plea appointed represent applicant post- time between the 1994 to an filing application, may and the later seek to state conviction relief withdraw opted argue application representation specific not to below that the from that under and State, Campbell untimely limited circumstances[.]” should dismissed as under the (R.I.2012). Specifically, doctrine of laches. (cid:127) n . provided that: (R.I. Shatney "[U]pon applicant, 7. "In [v. notice to counsel for 2000) ], applicant may request procedure permission [this Court] established from ** * withdraw, by attorney upon which an has who been the court based an as- on his conclu- sary appropriate based ppstconviction on During the voluntarily Reyes knowingly and sion that withdraw, Reyes stated motion counsel’s Postconvic- into his in 1994. entered no-merit memoran- read that he had not explained that he did tion counsel also understanding difficulty no dum and necessary interpreter that an was think acknowledged that the Reyes its contents. Reyes meetings during his with all of the issues discussed memorandum in- English classes while Reyes had taken his application.8 sought to raise that he proficiency his with carcerated and to a letter alluded Reyes cryptically When com- language adequate allowed English tq Reyes counsel postconviction Postconviction munication between them. postcon- Reyes, indicated according to “absolutely no having professed counsel the state represented viction counsel [Reyes] at communicating with problems hearing justice properly Reyes, all.” counsel postconviction assured motion Reyes objected granted attorney. The his grounds explained motion to withdraw withdraw proceed pro se on his applica- an in- to hire counsel failed he could still his attorney own investigator and that tion or retain another or an terpreter Reyes ap- Additionally, gave she expense. connec- trial counsel failed interview a memo- six to submit investigation. proximately Postconviction weeks tion with outlining why he was entitled randum that he did deem responded also notified postconviction relief. She to be neces- with interview failure to meet argua- of counsel in trial counsel’s has sessment that so, however,'[postconvic- with him to communicate merit. To do with ble (4) file with the court and counsel must assis- through interpreter; tion] ineffective applicant to with- a motion upon serve appropriate failing file of counsel in tance memo- accompanied a ‘no-merit’ motions; draw (5) Reyes’s plea "taint- pretrial extent details the randum that nature illegal improper ed and coerced” case, lists each her review of the of his or force; (6) as- ineffective actions of the strike raise, and wished issue plead allowing Reyes to counsel in sistance of opin- why professional explains in counsel’s of an the assistance nolo contendere without he or issues and others that ion those (7) of coun- interpreter; ineffective assistance investigated may merit. lacked she law failure to discuss the sel in trial counsel’s then must conduct court governing the crimes with If, upon its applicant present. based *7 (8) charged; counsel ineffective assistance of poten- of the review of counsel’s assessment legal failing Reyes conse- in as to the to advise seeking post-conviction re- grounds for tial contendere; (9) quences plea nolo of a appli- any the lief and of other issues that allowing in ineffective of counsel assistance raise, agrees that the court cant wishes to Reyes plea to enter his when trial any arguable grounds appear those merit, to lack known, knew, reasonably that should have or permit counsel to with- then it shall that, veiy exculpatory at the evidence existed applicant that he -or draw advise the least, Reyes’s guilt; on se, cast reasonable doubt proceed pro required if she shall be to (10) Reyes photo in applica- the identification pursue or she to the he chooses of the automobile Shatney, was identified as the driver tion.” unconstitutional; (11) justice the trial was twelve 8. Postconviction counsel identified plea accepted in 1994 not have his should claims, many overlapped one anoth- of which Reyes under- whether because it was unclear (1) er, application: Reyes in his that raised entering consequences of into the stood the failing in to of counsel ineffective assistance (12) justice to review plea; the failed representation adequately prepare for Reyes was to whether the case determine (2) Reyes; assistance of counsel ineffective guilty charged offenses. impor- failing research and interview the to witnesses; (3) assistance tant state ineffective 10-9.1-6, him, mately in accordance with that “less-than-jail received a sentence inclined to his she was dismiss charge” on an pre amended and was on the he merits unless came forward with probation sented as a violator a result * * * great significance “something of that plea agreement, Reyes was unable persuades [c]ourt that would have [he] satisfy prejudice prong of the inef charges. to trial” on gone During inquiry. fectiveness noting addition to pro se motion hearing, Reyes filed plea disposition, favorable she ob private investigator to hire a funds Cepeda that served statement nei was track down his codefendants from the 1994 an original ther nor document executed hearing justice case. The denied the mo- Cepeda under the penalty perjury and tion, concluding that private investiga- event, in any it was directed at the tor’s efforts would reach the same conclu- Reyes offenses with which originally was sion that counsel had charged. hearing justice The therefore his reached after search for the bail-hear- concluded that the statement no “ha[d] ing testimony. bearing on the charge amended to which hearing, Reyes provided At next [Reyes] pled.” Cepeda witness statement (Cepeda .respect Reyes’s challenge With statement), one his codefendants adequacy of plea the 1994 colloquy, the statement, 1994 case.9 which was hearing justice, acknowledging while telephone by private taken over the in- presence form, Spanish plea found vestigator, Cepeda explained gave justice’s no fault the trial colloquy. She testimony to the effect that he never dis- that there noted no evidence drugs Reyes. hearing tributed The plea-colloquy transcript that indicated justice give continued the matter Reyes difficulty understanding the tri- adequate Cepeda state time to review justice’s questions; al there indica- proceed. statement and decide how tion speak needed with trial behest, hearing justice’s At the the state during colloquy; no request a motion for filed dismissal. At made; interpreter for an on the motion for summary numerous, responded affirmative dismissal, gave hearing justice occasions when justice asked the trial opportunity to be heard. re particular whether he á understood conse- sponded anything as follows: “I don’t quence guilty plea. The say right Everything I now. that want justice rejected argument that ei- put say, ed in the memorandum.” ther the trial or trial counsel was This memorandum only mentioned two - required to inform Reyes about collat- in support documents of it: consequence might eral from his arise statement and a notice of state’s intent might form of a the basis to pursue a habitual offender sentence. sentencing habitual-offender enhancement that there determined *8 Reyes in the event that continued down genuine were no of material issues fact as path. Ultimately, hearing the criminal the any to of applica the in the claims raised justice First, concluded that granted tion and the understood state’s motion. plea nature respect allegations consequences to the of the and of his with ineffec counsel, voluntary. tive assistance of jus and Accord- n tice ingly, hearing justice reasoned ulti granted the Appendix 9. See A. moving of fact summary material and judgment and issue for motion

state’s a judgment is to as matter party § entitled application under 10-9.1- dismissed of law.” timely appealed.10 6. 10-9.1-6(b) § is Dismissal under II 12(b)(6) of akin to a Rule dismissal under Summary for Review Standard Rules of Civil Proce Superior Court Dismissal to standard. subject is the same dure and turning to the merits

Before 402, 404-05, State, Palmigiano v. 120 R.I. forth the appeal, on we first set arguments (1978). contrast, 1382, In 387 A.2d can application an under which parameters 10-9.1-6(c) § summary dismissal under § 10-9.1- under summarily dismissed be summary grant a “closely resembles” by procedure utilized 6—the Superior 56 of the judgment under Rule pro- in this case. Section 10-9.1-6 Procedure, Palmigi Rules Civil Court vides, part, as pertinent follows: 1384, ano, 405, at 120 R.I. at satisfied,

“(b) on the § is a court for 10-9.1- granting When a standards “[t]he or the answer application, 6(c) to basis [summary are identical dismissal] record, motion, appli- that the passing summary on a those utilized post conviction cant is not entitled Palmigiano, 120 R.I. judgment motion.” served purpose no would 406, Critically, relief and at sum 1385. may any proceedings, it indi- by genuine if mary improper further is dismissal § parties its dis- 10- cate See intention of material fact exists. issue reasons application 9.1-6(c). Thus, and its hearing justice’s miss role given doing. shall be considering applica so whether dismiss 10-9.1-6(c) reply proposed opportunity summarily § lim is tion under or on reply, light genuine determining dismissal. issues ited to whether thereof, may exist; court order the default of material fact grant or application dismissed leave or on the “pass those issues cannot resolve or direct amended file an weight credibility of the evidence.” proceedings 590, 594, otherwise continue. Doyle v. R.I. record pleadings (1980). Disposition from sum appeal On genuine if proper 10-9.1-6, is exists a § there mary “[w]e under dismissal of material fact. [hearing] justice’s issue uphold the decision will “(c) genuine if no only shows that may grant a record The court motion fact the state summary exists and disposition issue material party either as a summary disposition appears from the entitled application when Palmigiano, 120 R.I. matter law.” answers to inter- pleadings, depositions, 406-07, As in cases agree- A.2d at 1385. rogatories, admissions grant fact, which we review together ments with affida- novo.11 See submitted, judgment, our review de genuine that there is vits 1; § argu- 10. After See P.L. ch. P.L. Court. appealed before oral but 92, § ch. 1. case, Assembly General ment in this party ag- require amended 10-9.1-9 involving summary past dismissal cases post- grieved judgment in a by final entered application, remarked that we have proceeding review to seek conviction-relief hearing jus- findings of a defer factual filing petition for writ of certiorari See, postconviction-relief context. tice

653 Walker, 1026, it v. 1028 is that is a Estrada satisfied there factual basis (R.I.1999). plea.” for the thus

Rule 11 sets forth two prerequisites plea be' colloquy must satisfied Ill plea before a of nolo contendere can be Analysis (1) accepted: a determination “that A voluntarily is made plea with understand- ing the nature of charge and thé Sufficiency of 11 Inquiry Rule (2) consequences plea”; and find- ing there first “that is a factual basis for contends his 1994 nolo Id, plea.” Notably, plea prerequisite neither contendere be vacated should imposes bright-line Supe- not conform Rule 11 rule that Reyes did of the- (cid:127) champions rior this Court. Court Rules of Criminal Procedure before knowing, not intelligent, and Similarly, this Court has never de voluntary plea. argues trial He justice trial appoint that a must clared justice’s at the colloquy change-of- brief every interpreter case which a non- plea hearing was insufficient ensure English form To plea is utilized. con charge understood nature trary, justice we held that the trial consequences plea of his and that the discretionary has authority appoint an justice trial should have exercised dis- his Ibrahim, interpreter, see State v. to appoint interpreter. cretion oral At (R.I.2004), 798 we afford the trial “ Court, argument before this took ‘selection, justice ‘large in the discretion’ step arguing his contention one further, appointment, interpret and retention of an ” plea Spanish language whenever a v. 951 Lopez-Navor, er.’ State A.2d utilized, form is appoint must (R.I.2008) Deslovers, (quoting 513 State v. interpreter when is even one not re- 89, 115, (1917)).12 40 R.I. A. quested. 11 nor Neither Rule this Court’s prejudice, Absent evidence of “clear we jurisprudence supports such an absolute justice’s disturb will not the trial discre rule. tion.” Id. provides' pertinent part: Rule case, readily In this “it not ap is * * * accept plea “The court not parent shall our of the transcript [a [from review guilty] plea hearing] or of nolo Reyes’s change-of-plea contendere basic, addressing [Reyes] first the' without defendant did have a functional Ibrahim, personally determining plea understanding English.” voluntarily understanding made is A.2d answered all him, charge of the questions posed nature of and there is no * * * consequences plea. that he indication confused judgment upon difficulty understanding court shall not enter a the discourse at plea guilty any point during hearing. Reyes or nolo contendere unless con- (R.I. e.g., Miguel findings no such cause can made 2001). juncture. undeniably at this Although expli a correct in which review cation manner chapter 12. General Laws 1956 19 of 8 is title tribunal, findings stan factual lower implicated this case because inapposite review cases where dard before entered the effective date of summarily dismissed be- chapter. *10 654 record, that change-of- we must conclude the trial transcript of the

tends finding Reyes “suggest[s] justice’s a lack of actual that understood the plea colloquy of his responses consequences plea [to his nature and understanding since all non-de- unassailable. questions] were justice’s trial ‘No’ dis- answers.” We scriptive “Yes’ justice the trial

agree. asked When B plea, his change Reyes wished whether Ineffective Assistance Counsel affirmatively even before Reyes answered Reyes Reyes also next that able to do so. contends trial counsel was difficulty, his justice improperly dismissed claims provided, apparent without of counsel upon request. ineffective his and date birth assistance name sug- genuine issue of material fact that nothing from the record existed glean We precluded summary at the dismissal. Before ad- gest anything that occurred justice inquire dressing propriety trial on notice put the claims, however, Reyes required an of his first further into whether dismissal short, nothing briefly clarify legal there is framework under interpreter. suggests that that the trial such a claim must be decided. this record justice by failing his discretion sua abused It is well established sponte appoint interpreter. jurisdiction, this ineffective-assistance-of- under fa are also convinced are assessed

We colloquy by miliar test announced change-of-plea two-pronged otherwise satisfied Reyes’s plea know Supreme Rule 11 and was United States Court Strick 668, 687, 104 ing, intelligent, voluntary. Washington, The trial land v. 466 U.S. 2052, (1984). justice explained that he 80 674 L.Ed.2d See S.Ct. State, 104, (R.I.2012); rights 110 forfeiting several constitutional Bido v. 56 A.3d 180, contendere, Moran, (R.I. v. entering plea nolo he Brown 534 A.2d 182 1987); State, 881, questions about Barboza v. 484 ensured A.2d (R.I.1984). framework, rights and the conse 883-84 Under those understood quences plea. Additionally, first relief supporting performance state recited facts “must establish that counsel’s deficient; charge, Reyes acknowledged constitutionally re ‘[t]his amended true, justice quires showing those were and the trial that counsel er [a] facts made a factual basis rors so that counsel found that there was serious func * ** State, Rodrigues tioning guaranteed plea. See v. ” (R.I.2009) (“This Bido, 811, 56 Court ‘shall not the Sixth 315 Amendment.’ A.3d State, unless (quoting vacate a the record viewed 110-11 v. Neufville 607, (R.I.2011)); Strickland, totality its discloses no facts 610 see also could trial a factu 2052. To satisfy satisfied the 466 U.S. S.Ct. plea.’” performance prong, “the [applicant] al basis existed for defendant’s Frazar, representation v. (quoting State A.2d must show that counsel’s (R.I.2003))). jus Finally, objective fell below standard reason 935-36 Strickland, explained tice the sentence that 466 U.S. at ableness.” ensured that evaluate counsel’s imposing would be S.Ct. Courts “in questions performance ‘highly had no the conse deferential’ man about Bido, ner,” quences (quoting Lynch at 111 suspended sentence A.3d (R.I.2011)), probationary On this em- accompanying term.

655 strong presumption him or ploying “a that coun her at trial. The ‘incompetency the permissible sel’s conduct falls within (or one of its many synonyms) private assistance,” range (quoting id. counsel in a defendant criminal Neuf ville, 610). Strickland, 13 A.3d at See also prosecution is neither a denial of due 689, 104 466 U.S. at S.Ct. 2052. process under the Fourteenth Amend- ment, nor infringement right prong

The second represented by to be counsel under ei- requires Strickland standard constitution, ther the federal or state prejudiced “show that he [or she] Bido, performance.” attorney’s representation this deficient 56 unless the 111 (quoting Lynch, A.3d at 13 A.3d at lacking so that the trial has become a 605). satisfy prejudice To prong, mockery justice, and a in farce [applicant] “[t]he must show that there is a judgment, violating case the either the probability reasonable but for coun Fifth, Sixth, or Fourteenth Amendment errors, unprofessional sel’s the result of Constitution, to the provi- Federal or a ” proceeding would have been different. constitution, of a state sion void.’ Id. A probability probability reasonable is a (quoting Annotation, at 1146 n. 4 Incom- sufficient to undermine confidence in the Counsel, petency 1390, 74 A.L.R.2d Strickland, 694, 104 466 outcome.” U.S. at (I960)) added). (emphasis 1397 2052; Bido, S.Ct. see also 56 at 111. A.3d Although by no 'a means constant feature In years adoption since our ju- of our ineffective-assistance-of-counsel performance Strickland’s prejudice risprudence, farce-and-mockery this lan- however, prongs, a handful of our cases reappeared has guage several occa- amplified have somewhat that standard. sions, in both cases where defense counsel Dunn, (R.I.1999), v. 1142 State 726 A.2d evidently privately in retained14 and dictum,13 stated, in that: cases where it was unclear whether de- ever, rarely, “We note if also or appointed.15 fense counsel was retained following any has conviction federal case, postconviction counsel and the permitted state a defendant who court language referenced this represented by private has been assessing allegations when post-conviction question, pro- later counsel, retained, trial privately who was ceedings, the ineffectiveness or ineffici- appeal, On ency Reyes argues the trial counsel that the defen- was ineffective. dant represent chose and selected to language part that this “is not of the Sixth Dunn, 1142, State, (R.I.2000); 430, 13. In State v. 726 A.2d 1145-46 Hassett v. A.2d 899 cf. (R.I.1999), (R.I.2006) we held that clear (although employing 434 n. 3 ly granting erred in the defendant’s motion farce-and-mockery language, explaining ground newa trial on the of ineffective 'challenges performance private assistance of counsel—an issue that was not proceedings relief raised the defendant. succeed, rarely person and when a selects alleged attorney, any or her own deficiencies See, State, 516, e.g., Brown v. 964 A.2d 527 infringement seldom amount to of one’s State, (R.I.2009); 395, n. 15 Chalk v. 949 A.2d rights”). constitutional (R.I.2008); State, 890, 398 v. 925 A.2d Burke (R.I.2007); Wall, Larngar 893 850, v. 918 A.2d 15.See, State, 1237, e.g., 6, Pelletier v. 966 A.2d (R.I.2007); Hampton 856 & n. 858 v. (R.I.2009); State, State, 375, 1241 (R.I.2001); v. Moniz A.2d (R.I.2007); Ferrell 691, 696, Wall, Vorgvongsa v. A.2d v. (R.I. 697 191 2001); Vose, (R.I.2005). Heath v. 477 n. 1 . evidently was first announced effective[-]assis- standard

Amendment Welch, 667, 669, 670 Diggs 148 F.2d jurisprudence,” tance[-]of[-]counsel (D.C.Cir.1945), and, by time the United abandon opportunity take this We Court Strickland Supreme decided States ineffective-assistance-of- our distinction circuit had every rejected federal privately *12 between jurisprudence counsel reason requiring in of a favor standard court-ap counsel and defense retained or assistance. ably competent effective Lu counsel. Evitts v. pointed defense States, 395, 830, F.2d 387, v. United 725 Trapnell 105 83 U.S. S.Ct. See cey, 469 (2d Cir.1983) 149, 151-53, (chronicling (1985), 155 Supreme Court 821 L.Ed.2d from guarantee origin gradual departure “the constitutional of and declared adopting of at farce-and-mockery of effective assistance and standard criminal with applies every prosecution, reasonably competent assis standard of regard to counsel is retained Nothing Supreme out whether place).16 tance in its Cuyler in Similarly, v. Sul appointed.” re purported in Strickland said Court 1708, livan, 335, 344-45, 100 446 S.Ct. U.S. standard. farce-and-mockery vive the (1980), Supreme 64 Court L.Ed.2d 333 Moreover, farce-and-mockery standard cautioned that:' of in the Due Process Clause has its roots proper respect

“A for the Sixth the Fifth the United States- Amendment petitioner’s conten- 669; disarms Constitution, Amendment Diggs, see at F.2d 148 who retain tion their .defendants 154, while Trapnell, also 725 see F.2d protec- lawyers entitled less own are claims of of counsel ineffective assistance tion whom the State than defendants grounded guarantee in of the assis are * * * appoints counsel. Since in the tance of counsel contained Sixth of a conduct criminal trial itself State’s Amendment the United States Constitu implicates the in the State defendant’s 684-86, tion, Strickland, 466 see U.S. conviction, drawing no a see basis we 2052, coun 104 and its Island S.Ct. Rhode ap- distinction between retained terpart, Rights, of the Declaration article deny equal would pointed 1, 10 of the Constitu section Rhode Island defendants who choose must 545, tion, 549 see v. Merida 93 lawyers.” own their Henceforth, (R.I.2014). of ineffec claims of at tive counsel—whether the assistance Additionally, opinion arewe ap torney is or court privately retained farce-and-mockery language con that the continue pointed to be progeny its relic of decided tained in Dunn and is a —shall performance familiar reference bygone place assessing era that no in has stand prejudice Strickland prongs assistance of counsel ineffective farce-and-mockery ard.17 after Strickland. case; indeed, any particular We the annotation counsel claim

16. also mote suspect exist farce-and-mockery we that such difference would quoted the lan- which we Strickland, 4, Dunn, "only in the rarest case.” 466 guage 1146 similar- 726 A.2d at n. 697, 2052; Trapnell 104 S.Ct. see also predated ly Strickland. U.S. at States, (2d Cir. v. 725 F.2d 153 United 1983) ("[W]e repeatedly applied both imply We do that the difference farce-and-mockery performance standard phraseology standards[ between —the reasonably competent prongs Washington, prejudice the standard Strickland U.S, 668, years recent and never found ]in 104 S.Ct. L.Ed.2d assistance — (1984), hinged on choice farce-and-mockery language result of a case that the standard.”). necessarily particular Our review make a in the would difference employed we have the farce- adjudication cases in which of an ineffective-assistance-of- governing and, thus, With the standard renders them inadmissible “use focus, proper turn to its application establishing less in the absence of genu appeal, Reyes this case. On contends ine issue material fact” (quoting Nichola Cepeda genu statement raised Co., (R.I. v. Fiat Motor ine issue fact precluded material 1983))); Gas & Conven Pike Plainfield dismissal his claims of ineffec ience, LLC v. 1889 Realty Pike Plainfield tive no assistance counsel. take is We (R.I.2010) (acknowl Corp., 994 A.2d sue, however, hearing justice’s with the edging summary judgment should be that no genuine determination of ma issue only genuine if affirmed issue of materi terial fact existed. While the al fact exists upon based review the may statement cause some to have doubts Nichola, evidence); competent admissible and about involvement in 1994 inci *13 (noting at 513-14 2d that 463 A. dent, the statement is mala riddled with statements within an affidavit that that dies barred from the jus to “amounted little more than hearsay” tice’s summary consideration on dismissal. by should not justice be considered parcel Part and óf our summary judgment motion). in summary on a ruling judgment (which standard summary thé dismissal Here, Cepeda statement would not mirrors) closely standard so is that slightest stand the of being chance admis evidence to be considered when determin First, sible. the witness statement is not ing a genuine whether of issue material presented in the form of an affidavit or fact exists must be admissible. See Carl type other testimony, sworn as is made son v. Kingstown, Town South 131 A.3d upon obvious based delivery (“We method 705, 708 (R.I.2016) will affirm a lower (via Furthermore, telephone). if, only court’s decision reviewing after .state ment by somehow “notarized” one admissible light evidence in the most fa Cardarelli, with, Nicholas in place nonmoving vorable con party, we 1signature, witnesses’s the words “RE genuine that clude issue of material fact CORDED' OVER TELEPHONE.”18 party exists and moving is entitled addition,, to the1 extent that judgment as a witness (emphasis matter law.” added) statement contains Fluette, statements delivered to (quoting Daniels v. 64 A.3d Cardarelli, (R.I.2013))); by and 304 transcribed the state see also Mruk v. end, ments To hearsay. constitute that Mortgage Electronic we Registration Sys tems, that, Inc., (R.I.2013) have held within a statements where hearsay, sworn (recognizing that affidavit would be constitute affidavits must “made * * * (cid:127) such personal statements not be knowledge, should considered set forth in ruling summary judgment bn a such facts motion. would admissible evi * * * dence, Nichola, Thus, affirmatively' show that See A.2d 513-14. 463. competent testify properly affiant concluded theréin[,]” Cepeda matters stated the fail did not- .statement create a to comply ure requirements genuine with these issue of material fact.19 Aside and-mockeiy language signature notary, convinces that none us seal to a statement exceedingly’narrow them fall into this cate- given person nor was it Cepeda, " ’ gory. signed by Cepeda. Although position opine are not downplays 19. The dissent the defective and as to whether of Con- Standards untrustworthy nature statement .violated, Notary duct for Publics were we are suggests notary public’s "mis- troubled the fact Cardarelli affixed con- investigator. reject these pur- intent hire We

from notice the state’s sentence, Reyes tentions. a habitual sue offender nothing opposition

produced else in a right to counsel “[T]he motion for state’s dismissal; is a matter postconviction-relief proceeding granted the hearing justice properly moT grace, legislative not constitutional tion.20 right.” Campbell v. (R.I.2012). provides Section 10-9.1-5

C like this one where Office cases repre of the Public is unable Defender Compliance Postconviction Counsel’s assign applicant, court shall sent “the § Sfyatney 10-9.1-5 and applicant.” As represent contexts, in other hallmarks Finally, Reyes contends true “[t]he relationship meaningful attorney-client of his were efforts * * *, post- including advocacy inadequate. he faults zealous Specifically, confidences,” “simply re ex protection the [client’s] conviction counsel ap ist between the and counsel sponding]” Reyes’s postconviction Campbell, “mak[ing] pointed claims instead of effort to under 10-9.1-5. (“Sec 454-55; issues, ]frame[,] see supple id. at also [the] re[ narrow *14 them,” any coun tion not trial 10-9.1-5 cannot be satisfied with speaking ment with files, failing attorney- reviewing thing meaningful or his to less than sel Reyes’spostconvic- claims to be merit- take” should not foreclose viction were determined However, notary’s pro proceed claim. less—he forced now se. tion to Nevertheless, duties, disregard suggests system unclear whether the dissent for his it is applicant whom over for an Cepeda person was even the with he should bend backwards spoke telephone postconviction on from whom he after withdrawal of counsel allowing Contrary applicant dis- oppose received a dis- to statement. or, insistence, evidence, in the Cepeda missal with sent’s statement inadmissible alternative, entitling purposes opposing summary applicant to a warn- useless for ing inad- standards under- and a second when he submits dismissal consistent with the shot only impracti- lying Superior Rules Rule 56 of the Court missible evidence. This is cal, longstanding Civil Procedure. but also flies in the face of authority. concluding production 20. — precluded Although Reyes Ryan, should have 21. cites statement Martinez -, summary disposition, suggests dissent U.S. 182 L.Ed.2d S.Ct. (2012), existing postconviction for an we turn both our in his relief show-cause statement 9.1—6(c) proposition, argue case on its law head. unrelated did 10— argued grants Superior to this When a motion to Court and has not pursuant Shatney, applicant appeal constitutional withdraw Court that there is a option pro right proceeding proceeding se on counsel in collateral has his this application retaining attorney respect assis- or with to his of ineffective another at expense. Shatney, Supreme his own counsel. States See tance of The United withdrawal, open Independent if Court in that it is of this noted Martinez warrant, question prisoner circumstances "whether has a [constitu- “may grant right for sum in collateral tional] motion either to effective counsel party mary disposition provide proceedings when the first occasion [that] * n * genuine there is no issue of raise a claim of ineffective assistance material to trial,” judg question in moving party fact and the is entitled to but it did not decide that Martinez, ment not decided as a matter of law.” Section 10—9.1— id. at and has it 6(c). properly us in any The entitled to Because it is not before is not since. case, special postcon- express issue. opinion on this treatment because—after this we relationship quirements §of appointed Campbell, client between 10-9.1-5. client.”). A.3d at 461-62. counsel and his or her This case is nothing Campbell.' like course, attorney Of relations between postconviction record clear that counsel always and client do not remain harmoni- functioned as attorney;23 he met cases, postconviction appli- ous. In some four separate with occasions and on. pressing cants insist on claims that are expended considerable effort to locate the mendacious, frivolous notwithstanding or alleged exculpatory bail-hearing testimony violating the risk of sanctions for Rule 11 which, about according Reyes, ,the Superior Court Civil Proce- Rules counsel knew or should At have known. Attorneys appointed dure.22 who are withdraw, on the motion to represent postconviction applicant, on postconviction represented that he hand, ignore the other require- cannot “spent attempting hours” to locate the al recognition ments of 11. In of this Rule. leged bail-hearing testimony, and he conflict, potential adopted mechanism chronicled his efforts in denying detail. * * * in Shatney attorney so “that an Reyes’s motion for private funds to hire a appointed represent indigent appli- investigator, the hearing justice explained may representa- cant withdraw from that “[postconviction every did counsel] clear, tion when becomes after a reason- thing that [he] could do to.determine if investigation, able that some all of the recording there from that hear applicant’s claims Campbell, lack merit.” ing.” Against backdrop, Reyes’s this ar 455-56. A.3d at gument respect counsel’s investigator failure hire an framework, Reyes’s assign- Within rings hollow. It was permissible post- regarding postconviction ments of error conviction it upon take himself unpersuasive. counsel are Our decision *15 perform to the investigative responsibili in Campbell paradigm involved the exam- necessary; ties that he deemed he was not ple noncompliance with 10-9.1-5. In required investigator an to under hire case, despite applicant’s repeated that duplicative take Campbell, efforts. Cf. counsel, requests for (“The procedure A.3d at 455-56 set forth appointed attorney an to conduct an “in- Shatney simply applies in provi Rule ll’s dependent examination” whether .of so to postconviction the context of the * * * applicant’s claims were meritorious. remedy, such attorney ap that an Campbell, 56 A.3d at 452. The hear- pointed represent indigent applicant ing justice repeatedly appli- informed the may withdraw from that representation cant that counsel did not appointed clear, it becomes when after reasonable represent him. Id. at 452-53. We deter- investigation, that or all appli some appointment mined that the of counsel in (emphasis cant’s claims lack merit.” add ed)). Campbell to comply failed the re- with 11; Services, Superior generally

22. Rule 11 of the Court Rules of see FIA Card. N.A. v. Procedure, Pichette, applies postcon- (R.I.2015). Civil in 778-79 context, Campbell, viction see 56 A.3d at gives impose the trial court discretion to sanc Indeed, Reyes expressed when some con- motion, signed pleading, tions where a postconviction fusion whether counsel about paper grounded other is not in "well fact state, represented hearing jus- him of the * * n by existing good warranted law aor postconvic- promptly tice him reassured that extension, argument faith for the modifica attorney. tion counsel was his * * tion, existing or reversal of law Rule similarly counsel application, appellate postconviction but complaint about Reyes’s no effort to articulate how those makes to discuss the case failure counsel’s reworked, and an have been similarly claims could his files or review trial counsel salvage attorney always be able will no-merit memo- the mark. misses scrap from the on a meritless focused randum, postconviction counsel (éx- Campbell, 56 at 458 heap. be- inability prejudice Reyes’s establish Cf. may, in plaining “appointed counsel disposition favorable cause case, appropriate applicant’s frame the .his client. Postconvic- counsel secured for § 10-9.1- way in as to avoid that, such in contrast counsel tion noted marked rule”). note that a tension We significant jail time 8’s waiver potential in the Shat- origi- unavoidable cases which on the is Reyes faced if convicted is invoked. Our decisions per- ney procedure charges, trial counsel able nal that, in recognize charge, Campbell Shatney one the state dismiss suade offense, cases, appointed counsel’s efforts some to a lesser charge other amend the diligent sentence, must, point, shift from some agree a non-incarcerative investigation meaningful representa proba- presenting Reyes as a from refrain why, dispassionate explanation insisting tion -While tion violator. judg professional mirroring the exercise counsel’s testimony exculpatory Camp ment, See the claims' merit. lack allegations in statement bell, 455-56; Shatney, 755 A.2d 56 A.3d at given hearing, postconviction at his bail Importantly, this is case at 135. where effort expended considerable occurred, properly bail-hearing paradigm shift alleged testimo- this to locate Campbell situation avail, justice whereas involved ny and the to no objective, inde acted no where counsel as “there-was concluded that appropriately dispassionate outsider exonerating pendent, given oath testimony under matter,” Thus,- Reyes’s the outset. [Reyes in] al- attacking counsel’s claim postconviction reasons, conclude For these merit. leged shortcomings without functioned postconviction . and, he attorney deemed Reyes’s pursuant significant Finally, application to be meritless based Shatney, 755 A.2d at time, at that on the record existed comprehensive memoran counsel filed procedure outlined complied with acknowledged dum which he—as *16 at 135. Shatney. Shatney, 755 See A.2d to with the motion at the on hearing justice complied Similarly, the correctly each identified draw — Shatney in a hear with our directive Reyes’s in applica many asserted to ing at which was able reasons be held thoroughly explained tion the and memorandum, they to the no-merit opinion, respond why, professional in counsel’s and, hearing, of she the complains at the conclusion appeal, On lacked merit. granted motion to withd the appropriately to nar counsel failed See id. in his or the claims reframe contained raw.24 row us, is not and decline “compelled issue before is this The dissent states it hearing justice and it further. The come to address express the has time [its] belief properly the postconviction counsel followed abrogate to first- Shatney, at least as relates the Shatney procedure, recognizes, which the law applicants.” the time As dissent hearings however, time "Shatney’s expectancy time below and life was .not taken, case[,]” and, to be continues appeal was parties and in this addressed thus, today: agree that the law is We not before this Court. IV Although affirm the hear we ing justice’s postconvic decision to allow Conclusion withdraw, tion counsel nonetheless we above, For the reasons articulated pause remind the bench and the bar affirm judgment summarily dismissing Shatney procedure is not the end Reyes’s application. papers may be An game. attorney appointed not under Superior remanded to Court.26 § screening to perform 10-9.1-5 function of filing or to the case steer towards the GOLDBERG, Justice with whom THE

no-merit memorandum and withdraw then joins, concurring CHIEF JUSTICE Rather, § from the arena. 10-9.1-5 di ' part dissenting part. and attorney that an- appointed rects be represent in connection with I join majority’s opinion well-written her, litigation application, of his see clarifying this Court’s standard of review 454-56, Campbell, and of a justice’s summary of dismissal is, Shatney procedure judicially created applicant’s postconviction-relief (PCR) an escape opened only hatch those application its affirmance of the hear- appointed attorney’s where the obli cases ing justice’s summary dismissal of gations 11 require under Rule withdrawal claim 1994 nolo plea that his contendere alternative, the only counsel’s violated of Superior Rule Court professional opinion, impermissible is the of Criminal Rules Procedure of pursuit knowing, intelligent, claims.25 irremediably frivolous I voluntary.1 , attorney’s 25. We reiterate that an am not reluctance 1. that I convinced note that the trial accept an-appointment or refusal to "is properly concluded there was * * n , Shatney embraced dictates require sufficient basis for the factual —a may the fact that counsel decline Superior ment Rule Court Rules appointment should in the sum not result However, Reyes’s of Criminal Procedure. ar mary applicant's dismissal claims ab gument appeal exclusively on focused on the compliance Campbell, .sent 10-9.1-5.” justice’s appoint interpreter failure 5; Shatney, 56 A.3d at 456 n. see also Apart sponte. sua from one his sentence in ("The appointment Shatney's A.2d at 136 show-cause statement in which he asserted counsel, entry who first then limited her Reyes’[s] "there neither a discussion Mr. to, appearance pur and apparently declined charge aprended maintaining role in sue the before withdrew and/or nuisance, understanding nor of narcotics claim, pursuing petitioner’s the court before charge,” entirety argument of that of his withdraw, her to allowed court before appeal appoint the failure to concerns passed alleged on the lack of of such an merit my opinion, single this sen interpreter. application, requirements did not fulfill the adequately develop and, tence fails there — case,”). § 10-9.1-5 in this fore, preserve for this Court’s review— Notwithstanding raise failure to state’s argument concerning the lack of factual basis hearing jus- the doctrine tice, laches before plea. See for the McMahon v. Deutsche Bank argued papers state its Co., (R.I. Trust 176-77 National *17 Court that review of that issue "is not neces- 2016) (mem.); see also United States v. Zanni however, sarily argument, foreclosed.” At oral 1, no, (1st Cir.1990) ("It 895 F.2d 17 is not the state conceded because this affirma- merely enough possible argu to mention a below, defense was not it tive raised has been way, leaving ment in most skeletal the the This concession waived. is See well-taken. work, court to do counsel's the ossa- create Andrukiewicz, 235, v. A.2d 860 Andrukiewicz argument, put ture and flesh on its for the (R.I.2004) (holding plaintiff 241 the * * * litigant obligation '[A] bones. has an to preserve to appel- failed defense laches spell arguments squarely out its and distinct plaintiff late review where the to raise failed it ” ‘ ly, peace.’ (quoting else forever hold its justice). before the trial 662 hearing justice In concluding in- unhesitatingly join majority’s

also considering Cepeda was “barred” abrogate the to farce-and- sightful decision statement, majority four overlooks Dunn, v. language of State mockery First, to forced critical facts. was (R.I.1999), and its 1146 n. postconviction coun- proceed after pro se Is- to Rhode and reiterate progeny sel, statutorily repre- to required who was henceforth, is, strictly Strickland2 land jumped ship long be- zealously, him sent of inef- respect with claims jurisdiction Superior Rules fore 11 of the Court Rule of counsel. assistance fective required such a drastic Civil Procedure my colleagues, with part company I Second, Cepeda course of action. however, on the issue whether the hear- majority analyzes statement —which summary Reyes’s opposi- if dismissal of submitted ing justice’s were document summary-judgment motion—was tion to a of counsel of ineffective assistance claims for sum- the state moved submitted alleged claims viola- proper. These was before 10-9.1-6(c). § mary under dismissal right. constitutional tions of a fundamental Third, coherently raise did state one Reyes’s This first PCR was justice was argument claims. only chance assert these considering document at barred from this attorney appointed repre- The was who stage, nor summary-dismissal did conferring sent concluded—without con- hearing justice hold she was so these Reyes’s counsel—that with Fourth, the of which “maladies” strained. lacked merit. This determination claims by the majority complains caused were then premature. was forced notary by Reyes, actions of the represent and was instructed himself prison, of coun- stripped who remained hearing justice to come forward with my proceed pro se. sel and forced “something great significance.” He did claims opinion, summary dismissal of these Reyes presented so. hearing, at improper; evidentiary statement Cepeda before his accorded been would filed its motion for state dismiss- Therefore, counsel, right required. 10-9.1-6(c). al Al- under G.L.1956 my con- respectfully express dissent and though the majority Cepe- majority has posture cern about the maladies,” statement “riddled with all da appeal. taken in this stem from one supposed “maladies” Timing Nature of Claims aspect registered The statement: of Ineffective Assistance notary public took statement over the of Counsel it, than telephone notarized rather having Cepeda (Cepeda) Ismael swear jurisdiction, claim of ineffective this its presence.3 contents The ordinarily cannot be of counsel assistance Cepeda statement appeal; considered this Court on addressed direct summarily instead, in a claims must be asserted nonetheless dismissed such Brouillard, See v. application.4 claims. PCR State ineffectiveness Castro, appended A copy 3. statement v. de F.2d Rivera-Gomez (1st notary visible in a 1988))). opinion. seal is this Cir. file, copy in the lower-court of the statement Washington, 466 2. Strickland U.S. exception general A rule ex- narrow (1984). S.Ct. 80 L.Ed.2d "specific, on a ists the claim is based where ruling” by justice. State *18 the trial reviewable (R.I.2000). system” At the same “the foundation for adver- our time, statutory Martinez, governing framework sary system.” S.Ct. that, context in the PCR mandates most reason, it 1317. For this is critical that a ope cases, applicant op- will an have but applicant be meaningful PCR a afforded portunity press a claim for postconvic- opportunity vindicate such claim. As a provides tion relief. Section 10-9.1-8 that: Supreme Court suggested, has such “All for to an grounds relief available opportunity may require assis- effective at the com- applicant time he or she in of counsel tance PCR context: a proceeding chapter mences under this help adequate “Without attor- in original, must raised his or or be her * * * ney, prisoner a will have difficul- amended, or supplemental application. a vindicating a ties substantial ineffective- finally adjudicated or Any ground not so assistance-of-trial-counsel claim. Claims raised, or knowingly, in- voluntarily and of ineffective assistance at often telligently proceeding waived in the investigative require work and an under- in the conviction or or resulted sentence standing trial strategy. When applicant in other proceeding the review, cannot be issue raised on direct relief, has taken secure may not be moreover, prisoner asserting inef- subsequent basis application, claim fective-assistance-of-trial-counsel court unless the finds that in the inter- in an initial-review proceeding collateral justice est should be rely on opinion cannot court permitted to assert ground such a prior of an attorney addressing work relief.” * * * To present claim. a claim of that, in upshot jurisdiction, The this ineffective assistance at trial in accor- only criminal defendant has one one procedures, dance with [s]tate’s opportunity to assert a claim for ineffec- then, prisoner likely needs an effective counsel, oppor- tive assistance attorney.” Id. always in tunity almost must occur —Ryan, PCR context. See Martinez v. majority correctly, my in concludes— -, 132 S.Ct. U.S. 182 opinion this ease not present does —that (2012) (explaining L.Ed.2d when question whether the States United claims of ineffective assistance of counsel requires appli- Constitution PCR only proceed- can in a be raised collateral asserting cant a claim of assis- ineffective state, ing, as the such PCR context this tance of counsel be as- afforded effective proceeding “the initial-review collateral [is] sistance of counsel the PCR context. only a prisoner’s appeal’ ‘one and as to an (noting open question). See id. at 1315 this claim”). ineffective-assistance However, claim Martinez instructs that a matters, cannot ineffective assistance Compounding alleging a claim it is given merely short shrift para- ineffective assistance of counsel is for the first time in PCR importance. mount As the States asserted United not on Supreme explained, right appeal. Court has To the context and direct “[t]he contrary, the claim must effective assistance receive serious principle trial is a bedrock our consideration.5 case, Pineda, (R.I.2011). During hearings It is one of the following exchange transpired applies. between exception the rare case which this Reyes: hearing justice and *19 664 justice agrees the claims hearing the Compliance Counsel’s

Postconviction merit,” any arguable “lack the motion § 10-9.1-5 may appli- and the granted, withdraw Assembly has mandated General The right proceed pro cant advised that: ' added). (emphasis se. Id. shall be applicant indigent “An who by majority, aptly As set forth represented by public to be entitled Shatney represents nothing procedure public If the is ex- defender defender. judicially escape more “a created than representing applicant from cused only when liti- hatch” available continued conflict of or is interest vio- gation application the PCR would provide representa- otherwise unable Superior late Rule Court Rules assign tion, court shall Campbell, 56 Civil Procedure. See A.3d at applicant.”. 10- represent Section (“The forth in procedure 455-56 set Shat- 9.1-5. ney applies proviso Rule ll’s simply contains unambiguous statutory This text postconviction remedy, such context applicant A PCR has the exception: * * * appointed repre- that an attorney right unqualified statutory to appointed . may indigent applicant sent an withdraw “represent^] applicant.” counsel who representation from that when becomes Id. clear, investigation, that after a reasonable however, Court, has qualified This or' applicant’s claims lack some all right to applicant’s counsel. cabined a PCR words, merit.”). Shatney In other State, Shatney v. A.2d quality meant to water down extent (R.I.2000), proce this Court “established § legal representation 10-9.1-5 * ** attorney an has who dure which clearly grants indigent appli- to an PCR to represent appointed been ‘ cant.' may relief later seek years Shatney In the sixteen since representation under from withdraw decided, procedures that arisen have specific limited circumstances.” (R.I. scarcely resemble what was envisioned Campbell 2012). strokes, cottage A Shatney Court. veritable Shatney allows broad industry whereby appointed court-appoint- has arisen applicant’s counsel to with lawyers as if filing proceeding charged are so-called' “no-merit” ed draw after screening applications containing description of with out memorandum meritless Along the ax of of counsel’s of the case dismissal. extent review why way, Shatney explanation issues has been transmuted and an interpretive to achieve coexist- lack Shat effort merit. raised into ney, At ence 10-9.1-5 and Rule 11 point, A.2d at 135. between obligated high applicants justice is to conduct a that PCR hurdle must presence. Id. If to receive con- applicant’s in the surmount’ order serious * * n Now, sir, you’re doing still I “THE COURT: But two COURT:] also “[THE you life doing life sen sentences.” to note are have may length separate offense. of the sentences tence for a other, was, unrelated “THE cases DEFENDANT: Yes. received course, through utterly Why going irrelevant to the merits of "THE are COURT: Reyes’s of ineffective assistance this exercise? DEFENDANT; case, Based counsel. These claimed violations "THE on this case, right got in the other fundamental constitutional warranted a different sentence careful consideration. habitual.

665 of sideration their claims on by existing the merits. ranted law or good[~]faith in Campbell, Our decision which the extension, ma argument for modification, jority as egregious characterizes the most or of existing reversal law.” Rule 11 of example evolved, Shatney how is by has Superior Court Rules of Civil Proce- See, e.g., no means outlier. Garcia v. memorandum, dure. In his no-merit post- d State, 359, (R.I.2014) 91 A.3 359-60 conviction Reyes’s counsel concluded that (mem.); State, Motyka 351, v. 91 A.3d claims of ineffective assistance (R.I.2014) (mem.); 351-52 v. Ramirez were meritless because could not State, 836, (R.I.2014); 89 A.3d 838-40 Rod satisfy either performance prejudice State, 393, riguez (R.I.2014) v. 393 prong of my In opinion, Strickland. post- (mem.); State, 478, Fortes v. 65 A.3d 478 conviction Reyes’s counsel’s efforts be- (R.I.2013) (mem.). This Court’s concerns half were to justify insufficient this conclu- about the denial of to right counsel and Indeed,' postcoriviction sion. counsel did an evidentiary hearing have us to caused not speak even with counsel. modify Shatney application ’s to in cases Assessment whether an alleged volving parole. life without See Tassone v. ground of ineffective State, 1277, 1287 (R.I.2012). 42 I assistance A.3d am performance meets and prejudice compelled express to my belief prongs is a case-specific inquiry. time come abrogate Shatney, has to at past, this Court least as it has.not hesitated to vacate applicants.6 relates first-time Campbell, See 56 an applicant’s at dismissal of (explain A.3d 458-59 ing fye important distinction ap between ineffectiveness where first record plication subsequent clearly with did not applications support the conclusion that respect to right appointed-counsel prongs See, under one.of the not been met. 10-9.1-5). Tassone, e.g., (“[T]he 42 A.3d ab sence of a transcript, coupled with the lack n mindful, I however, am Shatney of an evidentiary .hearing, precluded the expectancy life was not addressed court conducting, adequate, inde parties in this case. I proceed therefore pendent review trial counsel’s actions analyze postconviction un- counsel’s efforts ‘looking], and from perform the entire existing regime, der the such as it is. * * * counsel.’, ance evidentiary No my opinion, erred hearing was to explore the va .conducted permitting postconviction counsel with- lidity applicant’s arguments, [the] thus pursuant to Shatney draw failing leaving- unexamined foundation for a reappoint counsel after the Cepeda state- that[,] probability5 produced.7 ‘reasonable but for trial ment was In order to conclude errors, counsel’s required proceed that Rule 11 result him to withdraw ing under the would have Shatney procedure, postconvic- (quoting been different.” State, (R.I. 516, tion counsel Brown v. point must have reached the opinion, 2009))); in his Hughes claims were * * * grounded (R.I.1992) (“No “well in fact war- evidentiary hearing Court, lead, Shatney 6. As a member of the I Following majority's can refer " attorney represented Reyes who state with confidence that matter does in connection ‘[t]he with his 1994 of nolo appear as appears to me contendere now as it to have ” attorney' pur- "trial and the who appeared me then.' counsel/’ McGrath v. Kristen ported represent him in connection sen, with 340 U.S. 71 S.Ct. 95 L.Ed. "postconviction his PCR coun- (1950) (Jackson, J., concurring). sel.” validity allegations Not- these of ineffectiveness. explore [the conducted deficiency, withstanding postconvic- applicant’s ineffective-assistance-of-coun confer, claims, leaving unexamined the not to thus tion counsel elected sel] probability! way, ]’ for a ‘reasonable more re- foundation trial counsel. Even of Strickland prejudice prong ]. failed markably, [under concluded *21 ruling the [PCR] justice’s The trial to satisfy performance prejudice that [the satisfied hearing that he was so, coun- prongs. doing postconviction necessary meet the applicant] had failed to attorney. Reyes’s to sel failed function as under Strickland standards * for relief starters, as For made unfounded he ** without was unfounded evidentia- per regarding trial sumptions counsel’s conclusion.”); ry to his buttress it that formance and overlooked the fact State, 949, v. 609 A.2d see also Randall job fulfilling of his was his the course —in (R.I.1992) (“Since of a claim ineffective 950 duty represent Reyes zealously de —to of questions assistance of counsel raises argument could if a nonfrivolous termine fact, by way of of such case disposition perform trial counsel’s asserted summary judgment is not possible.”). fair assess “[A] ance was unreasonable. view, my postconviction counsel was requires of attorney performance ment Reyes’s overeager labeling every effort be made eliminate Critically, Reyes’s 1994 convic meritless. distorting hindsight, of recon effects from a nolo tion contende- resulted chal struct the circumstances counsel’s to an Superior re amended Court con lenged conduct and to evaluate the nui charge maintaining a narcotics perspective at duct counsel’s from trial, no trial sance. Because there was 603, v. 606 Lynch time.” from transcript assessment (R.I.2011) Washing (quoting Strickland not trial can be'made is counsel’s efforts ton, 668, 689, 80 466 U.S. S.Ct. D’Alo, State v. available. Cf. (1984)) added). By (emphasis L.Ed.2d 674 (R.I.1984) (“In determining whether counsel, failing to trial speak even with effective, performance trial counsel’s postconviction wholly per counsel failed no probative evidence is more than Instead, form fair he assessment. transcript, through transcript trial simply assumed that trial counsel rendered post- a trial justice hearing petition For he example, effective assistance. observe, conviction can albeit sec relief speculated good that trial counsel “had a ond-hand, far actually happened as what understanding state of the evi as to the con as the trial actions are counsel’s against dence client.” his How do trial Accordingly, cerned. Likewise, from this record? know petition in case hearing the the present provided trial stated that “was counsel had him to as sufficient evidence before concrete information that was addi there sess performance defendant’s [the] than exculpatory tional other evidence counsel.”). four-page Although trial already what existed.” see evidentia- colloquy transcript change-of-plea ry record. support for this statement application, PCR attached postconvietion The undeniable fact majority Reyes’s vast claims of inef simply assuming away counsel nothing fective assistance of counsel had per critical issue whether trial counsel’s do trial actions or inac- with counsel’s plea hearing. transcript tions formance the Strickland standard at the violated following of his light passage sheds no on evident the reasonableness respect performance counsel’s no-merit memorandum: “In However, the absence of evidence to voluntary plea. fact that contrary, plea may assume have been voluntary, know fair Reyes’[s] complied ing, intelligent with his re- does bar claims of sponsibilities attorney as an concerning ineffective assistance of relating open and honest communications with trial counsel’s advice leading to the deci client, his and that he communicated sion to plea. enter the See State v. Du with his client a means efficient fresne, (R.I.1981) enough they (“The meaningful so dis- focus inquiry regarding cussions (Empha- the case.” when there has a guilty plea been is the added.) sis nature of counsel’s concerning advice plea and the plea. voluntariness of the Fair to Certainly Reyes, whom? not to * * * A defendant guilty who pleads client, duty who was owed zealous *22 the advice of counsel must at demonstrate advocacy. In the of absence at least a postconviction that that advice counsel, conversation with trial postconvic was not within range the competence of tion counsel’s conclusion that cases.”). attorneys demanded of in criminal claims were meritless recognized must be Reyes’s claims attack the effectiveness of for premature what it is: a effort to with trial counsel in advising him to enter a Tassone, from draw the case.8 A.3d Cf. plea of Therefore, nolo contendere. (“[T]he at 1286 absence of transcript, a fact that Reyes’s plea was otherwise volun coupled with the lack of an evidentiary tary, knowing, intelligent and was ex hearing, precluded the court from conduct postconviction cuse for counsel’s failure to ing adequate, independent of review speak with trial counsel. trial counsel’s actions from ‘look[ing] and performance entire of counsel.’” Postconviction counsel alluded to a sec- Brown, 528)). (quoting 964 A.2d at reason for not ond interviewing trial coun- At that, motion irrespective with- sel: Reyes of whether draw, postconviction explained satisfy performance could prong, he he not it necessary “did feel was to speak was unable to satisfy prejudice prong to [trial counsel]” because he concluded highly favorable disposition knowing entered into a charges. sure, and of the To be this Court merely passages 8. These are [Reyes]; not isolated many in why there are reasons coun- might counsel’s no-merit memoran- sel elect not to file discovery. for Rather, cases, dum. many the notion that trial counsel might it is because counsel must have rendered effective assistance of want to file an Answer the State’s Motion permeates counsel is entirety a theme Reciprocal Discovery, thereby having to See, e.g„ give any memorandum. Postconviction they to the [s]tate evidence that Counsel’s No-Merit Memorandum might divulge.” at 25 not want to (emphases add- ("[Reyes] ed)); ("I represented very competent point id. at 9 should out that the obviously was, is, counsel who defense did not feel defense in this case and a interpreter that the services of an very experienced were neces- respected and member of sary in order for his client to understand represented the defense who bar has hun- plea colloquy (emphasis with the [c]ourt.” dreds of criminal in all levels defendants added)); ("Reyes presented judicial id. system, has both and [s]tate [flederal. prove attorney enjoys evidence to that his reputation acted He a well-deserved as a anything competent jworldng, than a top-notch hard[ other man- criminal defense at- ner.’’); ("In itselff, id. at 19 torney [of] trial who try is not afraid to case front ("It pretrial discovery counsel's failure to jury.”); file a of a id. at 28 is difficult to second any- guess does not motion] mean that counsel was attorney the work of an when there was thing diligent representation less than negotiated plea.”). in his in this disposition might coun case have explained has “when previously if the evi highly been favorable state’s than a shorter sentence sel has secured strong dence had little have received the defendant could' what hand, On other way a defense. trial, the defendant gone-to has negotiated plea agreement appears burden to establish almost insurmountable if the less evidence favorable state’s prejudice.” Neufville weak, deemed a credible wit (R.I.2011). The assessment ness, exculpatory exists evidence agreement, a-negotiated how strength sufficiently persuasive to create rea vacuum. The ever, in a need cannot occur probability sonable the outcome a conversation with counsel flows acquittal. trial would been an When unique part relation in no small compared acquittal, disposition to an of this the facts case and the ship between jail without time—loses case—even pled. charge to which amended luster; operated felony it much of its disposition of Anyone familiar with conviction, probation it carried term of recognize cases in this state would criminal (the violation the terms and conditions agreement in this case—-in prison), which landed heroin, which, delivery single based on a predicate one offenses served as charging information two-count criminal qualified Reyes as a offender. habitual *23 of within three hundred heroin distribution as .unsurprising It is the therefore conspiracy of yards school and commit strength disposition of of the sessment the single to a count that offense was amended prejudice of prong relation maintaining a narcotics nuisance —was is not often the sum Strickland made at A for disposition. not a conviction typical stage. mary-dismissal Neufville, . See maintaining a narcotics nuisance under 611, 614 (commenting A.3d at on the effect 21-28-4,06(b)(1)(a) requires G.L.1956 prejudice of a on shorter sentence “acts or of proof [a] are recurrent [that] prong evidentiary where hear a ease nature”; drug single habitual transaction ing of fact were findings held upon to con is an insufficient basis made); Rodrigues v. Reis, this v. for offense. State

vict (R.I.2009) (similar); Hassett (R.I.1981); see id. 754 State, 430, 436-37 (sim (R.I.2006) (“[Section] requires showing Tassone, (“No ilar); 21-28-4.06 42 A.3d at 1286 cf. of the of more ex evidentiary than isolated instance conducted argu plore applicant’s see prohibited, validity also id. at activity.”); [the] ments, leaving foun unexamined the (reversing convictions thus defendant’s that[,] probability’ dation for a ‘reasonable maintaining for a narcotics nuisance where errors, for counsel’s result of but evidence, apart absolutely no “[t]here proceeding have differ would been single that [the] defen incident ent.”). Consequently, postconviction coun or his apartment used his dant car premature strength assessment of sel’s of a controlled keeping unlawful sale not his failure disposition justify did added)). Accord (emphasis substance.” trial counsel. interview in the ingly, single drug buy set forth criminal insufficient as a information was mo- granting postconviction counsel’s withdraw, matter law constitute tion to hearing justice offense failed This maintaining accepting narcotics to set' nuisance. forth reasons for her Reyes’s as fact meritless. should have alerted assessment Indeed, hearing justice consult trial counsel. notified the need determining persuasive grounds “not whether or vacate she was the sum- mary your (Empha there’s merit to case.” -dismissal of claims of inef- , added.) sis This is There error*- Nonetheless, fective assistance of counsel. showing on this- record the hearing proceed my disagreement note .to independent conducted-the review majority’s incongruous to af- decision Shatney prerequisite requires justice’s firm the hearing summary dis- - withdraw; fact, permitting counsel to application ground missal the' just she opposite. declared See Shat considering that she erred in (“If, ney, upon 755 A.2d at 135 based its statement. po review of counsel’s assessment after the hearing justice Immediately jconvic grounds seeking post[ tential granted postconviction counsel’s motion to tion of any relief other issues that the withdraw, Reyes for funds to moved hire a raise, applicant wishes to the court agrees ' private investigator... Reyes explained grounds those to lack appear that, “the -alleged records [of the merit, arguable permit shall then it coun exculpatory testimony one of his accom- * * sel to (emphases withdraw add found,” plices] are. nowhere to be “the ed)). finding grounds Without investigator only would to get need set forth in any argua lack testimony from the The hearing witness.” which, my opinion, ble could not merit — , justice denied the motion. She then when no effort was made to con made warned “unless there is some- tact trial counsel—the thing great your significance memo- permitted postconviction should persuades randum that [c]ourt counsel withdraw.- you gone would have to trial result n sum, postconviction counsel failed to different, would have been then the [c]ourt appreciate Reyes’s attorney, his role as may very dismissing your.case.” well be *24 erroneously hearing justice grant- and the - odds, Against all Reyes remained —who him pass permitting ed in him free incarcerated, indigent, and uneounseled— representation.

withdraw from the This (Cardarel- persuaded Nicholas Cardarelli yet case is example injustice another the li), private investigator notary public that can accompany Shatney proce- the state, in this on his in work behalf dure, operates simultaneously as an effort with “something come forward additional for ap- court-made hurdle PCR significance.” great did so. He Cardarelli plicants to for overcome and mechanism Cepeda tracked down and took a state- less-than-full-fledged representation of in- from ment on directly him bears the Indeed, digent applicants. Reyes re- had question Reyes’s pro- innocence. Reyes by § ceived the counsel 10-9.1- envisioned the Cepeda duced at' the next statement undeniably 5—to which he was entitled— hearing, the state filed—at the before likely his counsel recognized would hearing justice’s suggestion motion —its Cepeda the “maladies” statement the '§ for dismissal under 10-9.1- rectified them to ensure that 6(c). Although noting certain “infirmities” received full and fair consideration of his statement, the the Cepeda hearing jus- constitutional claims. explicitly, tice it: “On the considered basis Cepeda Consideration of the Statement then of application, the all materials submitted, hearing justice’s including, The error in granting have been what, Mr, worth, .by motion to it’s counsel’s the statement with- draw, alone, standing supplies adequate Cepeda, not statement that is or sworn case by Cepeda, summary-judgment Mr. the this Court’s law— [c]ourt

an affidavit opinion, proceed my its In governs is no need to there consideration. finds that added.) hearing majori- justice, reviewing after (Emphasis The further.” (which exculpates hearing justice Cepeda erred statement ty declares her Reyes), it should considering the statement because have realized mistake allowing postconviction counsel with- statement “is Cepeda concludes proceed- it that further maladies that barred and directed with draw riddled ings on sum- occur at minimum— hearing justice’s consideration which—at attorney this con- with my opinion, provided would mary dismissal.” willing to trial counsel or on at three inde- confer with with is erroneous least clusion securing testimony a view toward at an pendent grounds. 9.1—6(b) evidentiary hearing. See 10— First, Cepeda majority treats (“The applicant given opportu- shall be oppo- if it were submitted statement nity reply proposed dismissal. mo- summary-dismissal to the state’s sition thereof, light reply, on or default Cepeda not. statement tion. It The may application court order dismissed response was submitted grant applica- leave to file an amended statute, notice, justice’s required by her proceedings tion or direct that other- Reyes’s application to dismiss intention added)). (emphases wise continue.” In- warning that corresponding she her stead, invited the state unless application would dismiss summary judgment, motion to file a “something great came forward statement, considered the con- Cepeda (“When 9.1—6(b) §See significance.” 10— view, erroneously, my see in- cluded— satisfied, appli- court is the basis it was irrelevant. fra —that cation, motion, answer or and the rec- justice’s Cepeda consider the authority to ord, that the is not entitled to statement was restricted jconviction post[ purpose relief and jurisprudence summary-judgment Court’s proceed- any further would be served yet proceeded state parties ings, may indicate to the its path. down intention to dismiss the and its doing.”). for so At the time that reasons Second, nor neither the state the hear- statement, Reyes produced Cepeda ing justice warned un- *25 motion for state’s dismissal rejected on the statement could be basis 10-9.1-6(c) yet der not been filed. had until, all, if at the so-called maladies the Therefore, majority’s the conclusion that very hearing his PCR Cepeda the statement not be consid- could summarily majority The was dismissed. hearing it by justice ered the because is proceeding. of the aspect overlooks this type not the of admissible that evidence Reyes produced Cepeda first When summary-dis- competently can defeat a statement, not, hearing justice did motion flows from an erroneous missal any way, suggest rejected that it could be starting premise. defects; instead, of any on the basis she Cepeda might that not be Because the was sub- indicated relevant. statement rejection response hearing justice’s mitted in to Nor did the state of the advocate Instead, § 10- its proposed notice of dismissal under statement based on defects. 6(b), paragraph statutory single not the state section—and devoted 9.1— 56(e) requirements Cepeda proffered of the Su- statement and merits Rule perior argument: Rules of Procedure and Court Civil document, pur- gued Cepeda “As the second that the statement not “does (document portedly] notary’s does not notarized contain a or seal Mr. Cepeda’s Cepeda’s a notary’s seal or Mr. contain signature,” Reyes attempted to address Cepeda, signature) statement Ismael too, correctly concern pointing out cannot speculate [s]tate supplemental memorandum that the doc- Cepeda purpose this document. Mr. fact, does, in ument contain Cardarelli’s hearing, at [ReyesJ’s testified bail well Had notary Reyes seal. been warned prior the resolution of instant case about with the Cepeda the issues state- fact, (and, in [Reyes]’s charges before his application summarily ment before was pursuant attorney’s were amended to his dismissed, at least he would have had negotiations). Cepeda ‘pre- Mr. is not a opportunity remedy them. The witness, nor, viously unknown’ his oppor- did afford such an account, Cepeda’s own is Mr. statement tunity she reject did not the docu- from that which testified to different he ment. Both appellate and his coun- * * * Therefore, hearing. at the bail sel have been blindsided in this Court— clarification, further without [s]tate argument by after oral holding — adequately respond.” cannot majority: contrary to the under- above-quoted puts in the Nothing passage involved, standing of hearing justice all Reyes on notice the state advo- from considering Cepeda “barred” cating outright rejection Cepeda statement. required A statement.9 Finally, majority improperly attrib- point. this indigent utes to prisoner forced —an opinion, my the lack of notice to proceed regis- pro se—the error of a important in this is case because he public of notary tered state expected no counsel and was devel- squarely notary’s expertise.10 within the litigate a op and claim con- fact-intensive circumstances, Reyes Under these cannot cerning deprivation of a fundamental expected recognize Cepeda own, right on incar- constitutional while improperly This statement was notarized. se, proceed pro Once cerated. forced is a fiction that refuse embrace. Reyes ably attempted to con- address majority upon notary’s relies mistake hearing justice raised cerns and, alone, basis has foreclosed When the told him state. of the merits of consideration “something had better her show significance” claims that his constitutional great fundamental else face dismissal has application, Reyes right to of.counsel produced his PCR effective assistance just statement. state ar- This is When the been violated. result. fact, majority raising sponte ground of to the extent that the intended sua state *26 argument, attempt such an to do Superi- to make its was in the decision that not addressed wholly preserve ineffectual to the ar so was my opinion, or it is not the func Court. light gument Perhaps of our review. its tion of this to launch rescue mission Court preserve argument the failure to the that argument to resurrect an that was abandoned by Cepeda statement could not be considered proceedings in the below. hearing justice, simply appeal the on the state highlights in a footnote the infirmities Cepeda majority 10. The concedes that the Cepeda statement that were the noted infirmities are the "of the statement’s result credit, hearing justice. To its does the state disregard notary’s for his duties.” attempt argument not to revive an that was clearly distinctly and made The not below. reasons, prosecution of and for the acts I am his arrest all of these the For majority the of opinion-that conclusion the to the of the criminal gave rise counts two barred from that the was Cepeda information. Because the state- Cepeda was err considering the statement purports to ment concerns—and absolve oneous.11 conduct, Reyes from—that is relevant it charge.12 the amended

Relevancy Cepeda Statement my disagreement with note Finally, Cepeda genuine creates a The statement . hearing justice’s conclusion the the as to least of of fact at one whether issue not relevant the Cepeda statement was case gave codefendants the 1994 her deci Reyes pled and charge to which exculpatory testimony during bail hear- — 'Reyes’s summary sion- that dismissal ing or trial elsewhere —of which counsel of counsel assistance ineffective knew or should have known. Maybe Reyes was unable to proper because Cepeda testify. Maybe so counsel did of Strickland. satisfy prejudice prong Cepeda with discussed circumstance assess hearing justice’s- to1 Contrary Maybe client. state his amended ment, Cepeda is relevant to statement charges because of this circumstance. prong. specifically relates prejudice It investigation indi- Postconviction counsel’s giving criminal rise to the conduct exculpatory the alleged cated that bail- Reyes plea to which entered offense However, hearing testimony did exist. of facts The statement nolo contendere. statement, it Cepeda although does not charge support the amended read specifically bail-hearing mention testimo- [Reyes] on as follows: or “Pedro gave ny, Cepeda testimony indicates that day at 5th Cen about the October 1993 judicial proceeding tended of Providence County did tral Falls charged from the of- narcotics violation maintain a exculpate nuisance Therefore, the time fenses. It. Island General Laws.” the Rhode summarily charge Reyes’s application was that the dis- clear amended arose "sug- postconviction majority charges remedy me enacted turns 11. existing post- Assembly the General into illusion. gestfing] we turn our both relief [G.L.1956] conviction case law and I also note if the even state 10-9.1-6(c) sys- its § on that "the head” and charges, original only related ment appli- bend over for an tem backwards should prejudice inqui still be would relevant of this case. cant” in circumstances context, plea prejudice prong ry. In the my opinion, counsel did " requires a defendant to ‘demonstrate a rea existing comply with 10-9.1-5. Under "our that[,] probability but for counsel’s sonable errors, law,” it error case was reversible [PCR] pleaded he she would not have , summary enter re- dismissal before- . guilty nolo would [or have contendere] he ceived assistance of counsel and, going importantly, to trial’ insisted statutorily Campbell See entitled. v. outcome that the of the trial would have been State, (R.I.2012). To 56 A.3d 458-62 State, 13 A.3d different.” v. Neufville system permits extent (R.I.2011) Figueroa, (quoting 610-11 State v. of the ineffective-assistance-of-coun- dismissal (R.I.1994)); Lopes see also first-time, applicant pro sel claims se who (R.I.2015). If trial deprived who none- has been .had not to enter his advised suggest- theless comes with evidence forward exculpatory testimony innocence, ing system codefendants, actual is broken. Reyes alleges It should , backwards, forwards, done, every bend .should been followed this ad vice, gone way presumably other conceivable so would have to trial *27 day original charges. receives his To hold otherwise on the court.

673 missed, genuine of there issue was a fact Barovier him identified man the he saw Cepeda provided exculpato- as to whether driving Contrary the vehicle.13 to the ac ry Bucci evidence. v. Hurd Buick .See count that provided police Barovier in the Truck, LLC, Pontiac 85 GMC A.3d reports, however, Cepeda the statement (R.I.2014) (“A ‘genuine’ 1175 n. 7 issue Reyes indicated’that was not involved in one that could be of resolved favor drug the in question. deal In particular, * * party either (quoting Calero- Cepeda the Cepeda statement asserts Cerezo v. United Department States of testified he Reyes did not engage Justice, (1st Cir.2004))). F.3d in drug transactions with one another aas genuine This concerned fact that issue general matter and that was not is, at at early least juncture, material him when he the heroin sold to Baro- prejudice inquiry. exculpato the If the to. Therefore, vier. Cepeda the ry testimony exists, it ques bears on. statement tended discredit the accuracy whether, tion if of proceeded of Baroviet’s Reyes, of identification1 charges, trial on original would have Cepeda’s of exculpatory existence testimo From acquitted. my of been review ny is a material fact that potentially bears record, appears only evidence oh the resolution of of question wheth linking Reyes charged offenses was er, gone trial, had Reyes “the outcome eyewitness Carl Barovier’s identification would have been different.” Reyes as the driver from Datsun 611; Bucci, Neufville, 13 A.3d at see emerged which with heroin. (“[A] at A.3d 1175 n. 7 ‘material fact’ is one There is indication from police re potential affecting has the the out ports accompanied criminal infor Calero-Cerezo, (quoting come the ease.” mation that the driver ever exited 19)). vehicle, F.3d nor is there information about the length of that and the from time distance acknowledge Finally, if even driver, Barovier observed Cepeda’s exculpatory exist, testimony does lighting, degree certainty, or the prejudice prong of the Strickland stan- elapsed time that before Barovier identi necessarily dard would be resolved in Moreover, Reyes. fied Barovier did not contrary, favor. To the several identify Reyes photo lineup; in factors would additional first need be stead, (Randall) when Edward Randall considered, including an assessment of the provided show-up photograph Barovier a testimony circumstances under which the Randall had selected —which (or provided, Cepeda’s credibility lack description based Barovier’s of the driv thereof), strength óf the state’s having “light[-]black er as ap skin” and end, against Reyes. evidence pearing “approximately be 5'8" tall age”— between 19 years [and] and 23 would bear the burden demon- n, Recently, recognized pro- justice,” 13. this Court id. at 696 13. We "the therefore eyewitness that, henceforth, blematic nature of identification prac announced "the better misidentification,” potential its State provide jury tice would for courts to Davis, (R.I.2016), A.3d comprehensive with more instructions when growing jurisdictions “the concern in other issue, similar, eyewitness testimony is an eyewitness with reliance on identification tes- example, imparted to those that were in [State timony, growing body of scientific and Austin, [87,] [(R.I.2015),] v.] 92-93 psychological regarding questiona- studies [1283,] Figuereo, [State v.] 1290-91 accuracy eyewitnesses, ble of the accounts of [ (R.I.2011)].” Davis, 131 prevent miscarriage and the efforts made to *28 674 mg justice precluded considering prejudice.14 See was

strafing requisite the 693, 104 Strickland, statement, S.Ct. 2052. U.S. at was undeni of material fact as genuine But the issue ably up claims. The relevant tes Cepeda provided whether excplpatory is that majority’s shot of the decision well as the additional consider timony Reyes will not receive full consideration —as the resolution of that flow from ations that of his the merits of the claimed violations not be should resolved issue—cannot and Al right. fundamental constitutional stage. See summary-dismissal may though Reyes hospita look to a more 590, 594, State, 122 R.I. Doyle claim, adjudication ble of this see forum (1980); Palmigiano v. 907, 909 Martinez, 1318, 1320, the mer S.Ct. 406-07, R.I. adjudicated its have been this should (1978). Instead, punch jurisdiction. one-two this record demonstrates Because Shatney procedure, followed genuine issue material existence artificial Court’s sum question exculpatory tes- about the fact mary-judgment document standard the resolution of that and because timony opposition to a submitted impact resolution of the could question motion, summary-dismissal has rendered under prejudice prong, dismissal postconviction nullity in this remedy a 10-9.1-6(c) on basis that case. Consequently, respectfully dissent. was, prejudice to establish under failed statute, impermissible. terms of that APPENDIX Conclusion reasons, I STATEMENT vacate WITNESS For all these would summary dismissal of hearing justice’s pm1:00 TIME: Reyes’s claims ineffective assistance my opinion It is that the counsel. 12-9-13 DATE: granting postconviction justice erred Providence, RI Broadway PLACE: motion to withdraw and counsel’s the assistance of Reyes did receive PHONE: 475-7497 statutorily to which enti- he I, voluntarily, Cepeda, Ismael without That warrants a remand tled. alone Moreover, following make the promises, ma- threats proceedings. further hear- statement: jority improperly concludes any poten- if were able to demonstrate never disclosed 14. Even Strickland, prejudice he still applicant’s contrary under would over tial witnesses performance prong and, obtain need to meet the testimony), if trial counsel such ac- questions relief. Additional knowledge, tual or constructive whether it perform counsel’s would arise before trial constitutionally to nonetheless deficient deemed, ance could be such as defícjent, generous accept advise the state’s knew or whether should offer. Because did not the trial exculpatory known of the existence of the performance prong and consider the testimony, Neufville, 13 A.3d at 611-12 cf. genuine issue of fact as to wheth- material (affirming hearing justice's rejection exculpatory testimony er existed must be applicant’s claim that trial counsel questions before these additional can resolved was ineffective because failed interview answered, Reyes's be cannot sum- where, potential defense witnesses after marily inability the basis of dismissed justice sup- evidentiary hearing, satisfy performance prong. testimony portably counsel’s credited trial *29 Q: Q: your your is is What What from way, around the that I knew name? date birth: him because he was from the same A: Ismael A: 11-24-72 I town where yeah, was and Q: your Q: your oc- What What present cupation? clubs, we did see each ad- other at the dress? never, and scenes like but ev- Pawtucket, Un-employed A: Á: erything to, I I I said admitted did Rhode Island deals, my them, all I I did admit Ismael, Q: happened tell me what that, all but I admit to some- can’t day in December 1993 sus- when thing that I I didn’t do and told pected purchased heroin was at the straight up them I never dealt with corner Illinois and Summer guy, me guy and this never Falls, in Streets Central RI? hung in together, never, the car we arrested, Basically, man, I easy got A: know, you I times sold to the got charged, I I up doing ended undercover, I never sold with Pedro time, they all of a up sudden came me, in the car with basically and charge with this one that has to do that was it. him, Pedro, like, I’m okay, so this, Q: Who was the AG strike force? they say trying were that I made Yeah, so, yeah. A: I think a deal with him something like Yeah, Q: it was the AG strike force. lie, that which is a I mind didn’t basically you So no dealings had going to on court it because I never with, dealt with Pedro. Me and Pedro No, never, somebody A: Pedro was like that, I was never cool like nev- was said, small, I F only C is so and we car, er in his in my he never click, our had own little we all did cars so we never had the kind the deals that we every- did and going deal as far as me him and I thing pled else that already and deal, to make a somewhere so un- for, I everything hap- did time did dercover trying say were that me pen but as far as me and Pedro once, and Pedro I think it went never, never, goes, we whatever dope brick of and then Pedro was they trying say were about me car, with me we turned car, being and went see around, got and that he Pedro the undercover and sold to the un- basically

which was a lie so I went dercover, got I out of the car court, stand, got on the on swore car, stayed Pedro and that’s a going the bible that I to say he. I they up don’t know how came they truth basically, and asked me I never, about that but never I and it was a five thing. They minute never, say will it to this I day, me questions. They asked me a few never, I and Pedro don’t think me n said, you guy do you see the got Pedro ever into car know, undercover, there was together. other, We seen each right away, actually I if say, I saw yeah, probably got of the car out him, I would know who he is after once or twice the corner where years all these I pointed later. And to hang we used at but it noth- him I just basically ing said being up like me and him lying, he was that I would never hanging, down the streets and with, know, you deal I knew Pedro never did that. years I know tenced two Do live

Q: you still Pawtucket? he was. I met times. who him few Do I? A: I six all think deliveries Q: Yeah.1 *30 somebody He that. would at the back A: I medium one Yeah. was and, go go to the corner he would lawyer to me up them went buy brick, there with one $500 .and, I he know who was didn’t even that, you like does know. who We thing the same told me. but.he happy money. see That’s were they you’re telling, me how why got many so on people he that. put Pedro me trying were with to be one He of the best cus- used yes, willing go I ' said .I’m undercover, over, coming tomers court, court I I and did went know, you really doing he now, Right I fayor him. for. every- buys, paying top dollar doing thing, the same wouldn’t mind thing, got my so me ten of .they, him bringing are back other friends. court? Q: Okay, it for that’s now. go out Q:1 trying find what’s We’re always can me. I’m al- A: You reach ing on case. with his ; ways around. Pe- Basically, lied. A:. that undercover (cid:127) bye. Q: Okay, bye car, > got out dro never together, it like I never made there him,

said, yeah, I but know CONTINUATION WITNESS way. he’s from around Whatev- STATEMENT SHEET did, my I on er I did He had own. SIGNATURE PAGE nothing anything I do did I I THAT THE SWEAR STATEMENT back then. THE TRUTH TO JUST WAS GAVE Q: Okay, it? that’s about OF MY THE BEST KNOWLEDGE said, court, I I when went to A: Like AND ANY GIVEN WITHOUT thing. minute It was five OR THREATS PROMISES. just make quick; They wanted to RECORDED OVER TELEPHONE sure I whát that' knew undercover WITNESS SIGNATURE was, saying these who was all right him

things, I bar AND TO BE- called SUBSCRIBED SWORN right ME THIS 10th DAY OF DECEM- guy I stand. said FORE finger BER, lying. pointed I my there is him, right I undercover said /»/ n Nicholas Cardarelli

there, a liar. and he’s Me and this NOTARY PUBLIC anything together. guy never did EX- COMMISSION EXPIRATION Q: you Do who the under- .remember PIRES ON cover was? face, name, its remember A: I But long, too I don’t know.

been Walmart, I I

like if saw him took know the face.

would He me, 'got sen-

years away from