Tassone v. State

1277 up allegation a The that the rainy day began shiny, and she walk floor was ramp rough more, that was covered with sloped without was not “competent evi with a number of smooth interspersed tile negligence plain dence” of defendant’s 697-98, A.2d tiles. Id. at 315 at 57-58. allegation nothing tiffs more than “con fell on what she described as plaintiff The jecture speculation.” Santiago or v. First smooth, ramp. a wet area of the Id. at Student, Inc., 550, (R.I.2004) 839 A.2d 552 700, at 59. 315 A.2d Co., (quoting Skating v. Aetna Insurance (R.I.1999)). 282, 742 justice’s grant

On from the trial 288 We reiter appeal defendant, verdict for the this “the of directed ate that mere occurrence of an acci supported dent, more, the record Court held that without does not warrant an hazard, ramp inference that the was a negli inference that a defendant has been knowledge that the defendant had that the Id. gent.” (quoting Hernandez v. Fernan plaintiffs at ramp was wet the time of (R.I.1997)). dez, 1101, 1103 697 A.2d Cutroneo, 700-01, fall. R.I. at Consequently, the Superior Court did ease, In this not plaintiff A.2d at 59. has granted not err when it the defendant’s alleged raining any it was or that summary motion for judgment because on the floor. slippery substances were See there was no issue of material fact about 697-98, at id. at 57-58. We are dangerous whether a condition existed at supports unable to conclude Cutroneo plaintiffs the time of the fall. To the plaintiffs argument because facts of there contrary, complete was a absence of starkly distinguishable that case are so any upon evidence which the defendant’s from those in the case bar. at negligence could be established. yet has not This Court addressed this issue, systematically but other courts Conclusion rejected negligence claims that sup are For the reasons set forth in opinion, ported by allegation shiny a mere of a we affirm judgment Ventriglio floor. See v. Staten Island Court. University Hospital, 6 A.D.3d (2004) N.Y.S.2d (holding that ab

sent evidence that wax or polish had been smooth,

negligently applied, shiny or

slippery floor does not an action negligence negligence); or infer Boul Hospital,

oukos v. Vassar Brothers (1999) A.D.2d 691 N.Y.S.2d Gary TASSONE (holding slipperiness caused smooth polish ness or did danger not constitute a ous condition absent evidence of negli STATE of Rhode Island. wax).

gent application of 2010-333-Appeal. No. plaintiff The did not testify that her fall by any foreign occasioned substance Supreme of Rhode Island. floor, polish on the or that or wax had May negligently applied to the floor plaintiff pro- defendant. The has failed to give

duce evidence that would rise to a inference that a con-

reasonable hazardous

dition, defendant, created existed. Court,

viction relief. Before contends that the erred in (1) denying postconvic- conducting tion relief without an evidentia- (2) ry hearing wrongly dismissing and his assertions of ineffective assistance of coun- argues sel. Tassone these errors warrant remand to the for Superior Court evidentiary hearing. This case came for Supreme argu- before the Court oral 8, 2012, February ment pursuant to an directing parties appear order and why show cause the issues raised in this summarily be appeal should not decided. record, reviewing reviewing After the written and oral submissions parties, we conclude that cause has not and will shown we decide this case at this time without further or briefing argu- ment. For the reasons set forth in this opinion, judgment we vacate the of the Superior Court.

Facts and Travel particularly Tassone was convicted 28, 1997, gruesome January murder on imprisonment and was sentenced to life possibility parole. without the We af- Tassone, firmed his conviction State v. (R.I.2000), 749 A.2d 1112 and the facts underlying case are set pertinent forth in that will such opinion. We discuss appeal of the facts that are relevant to this post- from the denial of his for Essington, Esq., Appli- Katherine C. conviction relief. cant. 30, 1994, body On June Kendra Hutter’s McSoley, of Attor- Department

Jane M. General, was found buried at the beach at Crescent ney for State. Park in East Providence. An examination SUTTELL, C.J., Present: of her remains revealed that Kendra had FLAHERTY, ROBINSON, GOLDBERG, wounds, chopping suffered numerous INDEGLIA, JJ. skull, fractured and other traumatic brain swelling injuries that resulted brain OPINION day, eventual death. On that same Ken- FLAHERTY, Justice for the Court. husband, estranged Christopher Hut- dra’s ter, (Tassone missing. Hutter reported she or Gary applicant) ap- out police gone told the that Kendra had of the peals judgment from with a man named denying postcon- previous evening Massachusetts, Seekonk, and discarded police a business “Gary,” gave and he num- and shovel on the side of the Gary’s telephone name and the blanket card with time, road. Also at that Tassone asked on it. ber handgun from his room police to remove a Tassone; Gary soon located police The house, requested at mother’s and he Kendra, knowing but denied he admitted women he had police speak with other previous night. her the Tas- having seen advertisements, pre- through personal met scheduled with sone said he had a date sumably they so that could attest to his can- on June but that she had Kendra nature. peaceable request police At the detec- celed. tives, agreed go Tassone then to 4, 2000, filed an August On Tassone questions. to answer further police station for relief under application postconviction application, § 10-9.1-1. In that G.L.1956 station, signed sepa- At the Tassone four alleged rights he that his constitutional statements over the course of rate written adversely impacted by the inef- had In next several hours. the first state- trial fective assistance of his counsel and ment, July on given p.m. at 7:55 perjury. postconviction witness Three met Kendra Tassone said that he had attorneys appointed repre- relief were to through newspaper advertisement and her, all of whom were allowed to applicant, asserted that sent gone had out with but night her on the of June for various reasons over the he had not seen withdraw p.m., signed years. 29. At 8:50 Tassone a waiver of the next five A fourth course form, (hereinafter counsel) p.m. gave and at 10:45 he rights his attorney entered police. second statement to that state- applicant August for on appearance ment, had, fact, in he admitted that he him attorney represented and that gone night out with Kendra on the of June throughout the remainder of the brought 29. He said that he had her to a relief. proceedings postconviction for Riverside, they in sexual beach where had However, 10, 2008, January after con- blanket, intercourse on a that he had and ducting a review of Tassone’s her home driven afterward. relief, counsel filed a “no-merit” memorandum and moved midnight, gave At Tassone a third state- from the case in accordance with withdraw time, ment. This he said that while at the Shatney1 procedure that has been shovel, digging sand castles with a beach adopted this Court. by something he was startled in the woods hit “swung and the shovel at the sound but memorandum to Counsel’s Kendra in the face.” He stated that be- motion to withdraw identified four issues her, cause he was afraid that he had killed (1) by applicant: that had been raised that up he “used the shovel to cover her with attorney adequately his trial had failed to nobody so know.” sand would (2) trial; prepare police officers perjury testimony committed their morning, At 10:30 a.m. the next Tassone (8) statements; form, police about his com- signed rights gave another and he they when testified that perjury mitted police a final statement at 11:15 a.m. In statement, “pointed Tassone out” where to find the provided more de- incident, though and even he was tails about the and he indicated shovel blanket time therefore un- burying body, that after Kendra’s he drove handcuffed at the (R.I.2000), proceeding postconviction-relief after 755 A.2d 130 from a reaching postconviction- procedure court-appointed coun- the conclusion outlined seeking lacks merit. sel must follow when to withdraw (4) withdraw, the motion to anything; grant that his and she point able to he attorney provided opportunity was ineffective because Tassone with the trial continuance, part because Shat- requested a the assertions raised in the address speak time to ney he said he needed additional pro- no-merit memorandum and to experts but at trial no were se on his experts, ceed, Tassone, pro application. by the called defense. however, indicated that he wished to ad- previously nine issues that not dress had applicant indicated that Counsel also been heard. Six of those issues involved requested had that the witness statements allegations planted, that detectives had applicant signed forms that rights with, destroyed, tampered or manufac- ex- police the East Providence station be him. against tured evidence Tassone also examiner, aby amined forensic-document misconduct, alleged prosecutorial perjury experts employed and that be to review detectives, and ineffective assistance of of evidence that had been pieces certain argued counsel. Tassone also that because against used him at trial. The lawyer trial not presented to obtain his had one also maintained that needed testify, police expert information from the “he to be asked” need[ed] Cumberland him why. hearing justice that would enable to demonstrate that The expressed her have received Miranda warn- he should concern that had raised issues ings reviewing earlier than he did. After the Shat- that not been in had addressed by applicant raised and after the issues ney memorandum, and she directed coun- thorough conducting a and conscientious memorandum, sel to draft another incorpo- record, review of the counsel concluded rating all the new issues Tassone raised at that there no evidence to indicate that was hearing day. the on that attorney’s representation applicant’s trial Also, hearing at the conclusion of the on any way, deficient in or that it in was 15, 2008, January parties discussed the way prejudice resulted Tassone. fact that the trial transcripts2 were miss- counsel, raised According to the issues ing Superior and that Court clerk’s postconviction in Tassone’s for application office was unable to track them down and frivolous, “wholly sup- relief were and not locate them. Counsel asserted to the law, by good nor faith ported by existing originally court that he had had access to reversal, extension, for the or modifi- basis personal copies and reviewed Tassone’s existing Concomitantly, cation of law.” oppor- the record and that he had had an sought counsel to withdraw as counsel of tunity transcript to “review the entire trial record for Tassone. preparation initial of this motion.”3 [his] 12, 2008, February dutifully A On counsel hearing on the motion to withdraw January supplemental was held on 2008. The hear- submitted a memorandum to withdraw, ing justice that indicated she was inclined his motion to address- correspondence 2. Postconviction relief counsel and the state this Court received agreed transcript that the official court was Tassone in which he he from admitted that missing story and that the clerk's was unable pipes breaking office had fabricated the about fact, to locate acknowledged "my it. at the ACI. In that originals copy destroyed was never and the court, my possession.” Despite are in per- inexcusa- Tassone maintained that his candor, posture copies transcript ble lack of and in the of this sonal and trial record appeal, we will review the denial destroyed had been in a flood at the Adult nonetheless application Correctional after had of this based on evidence that Institutions hearing justice prepare his was available to the at the used them to submission However, January Court. on time she rendered her decision. decision, justice re- hearing In her by applicant raised the new issues allegations of ineffective viewed Tassone’s postconvic- supporting ap- assistance of counsel. She found each of addressed tion relief.4 Counsel com- first claim that “trial counsel plicant’s in turn and concluded arguments these justice” the trial was perjury mitted before any merit. Counsel of them had that none finding, hearing justice In so baseless. motion to withdraw. pressed then [appli- “at the at which noted that Tassone’s A final himself, perjured claims trial counsel cant] on Feb- relief was held was that he needed all trial counsel said jus- hearing, 2008. At that ruary ex- more time to consult with his defense Tassone that all the tice confirmed with thereafter found that perts.” justice The to raise were before the issues he wished fact, retain the services trial counsel did justice then asked whether court. The expert a DNA and that he had commis- along prior written statement psychiatric sioned a evaluation Tassone. material he with a folder of additional Moreover, hearing justice found that all of the “comprise[d] wished to submit call an witness expert the decision not to you arguments want to evidence in nature. was tactical why your application present to me as to argument, The second why disagree you has merit and representation trial counsel’s was inade- Tassone confirmed opinion.” [counsel’s] reassign- quate requested because he argument complete, and the that his date, ment of the trial was determined that she would review the indicated The to be “ludicrous.” materials and take the matter under ad- that “trial specifically noted visement. request- indicated that the reason he was a he had reassignment was because decision on The court issued written trial and just finished with different 2010, 13, January denying appli- Tassone’s prepare.” time to The court found needed having cation relief after that trial for more time request counsel’s Supreme “considered the Rhode Island * * * allega- actually against militated Tassone’s decision in State v. Tassone Court’s counsel, tion ineffective of of assistance [application] post-convic- [applicant’s] delay “undoubtedly improved and the relief, amended, tion as counsel’s no-merit representation.” quality [applicant’s] memoranda in of his motion to withdraw, op- memoranda in [applicant’s] reviewing report After of the docu- motion, counsel, to that and the record of position ment examiner engaged 15, January post-conviction argu- court also that Tassone’s third found ment, to have the that trial counsel failed hearing.” (1) alleged: secondary prove post- that evidence would that evi- 4. The additional claims car, conviction relief counsel lied in his first Shat- planted applicant’s but that dence was ney memorandum when he asserted that the destroyed or dis- evidence was either closed; not tamper- document examination did not reveal (6) that there evi- was substantial (2) ing; police that East Providence detectives dence, trial, presented at that another not perjury they committed when testified that crime; (7) person that the committed suspect they Tassone was not a when first only linking applicant evidence to the crime him; (3) com- encountered that trial counsel by the East Providence was manufactured justice concerning perjury to the trial mitted police, experts, prove and local who could witnesses; (4) expert trial the issue of theory, were not contacted trial coun- requested he counsel was ineffective because sel. document; (5) wrong examination of the ruling Miranda forms ana- fact and will not disturb his or her statement and correct jus- any showing merit. The ‘absent clear error or a that the lyzed, lacked contention that applicant’s [hearing] justice also denied overlooked or miscon tice ” State, was deficient because ceived material evidence.’ Brown v. trial counsel (R.I.2011) alleged eyewitness 901, failed to call an 32 A.3d 907-08 (quoting State, (R.I. introduce because he failed to Page stand and v. 995 A.2d 2010)). However, Kendra’s tending to show that evidence this Court will “review his wife. estranged ‘any post-conviction husband had murdered de novo relief decision or involving questions ques fact mixed Tassone, ruling against pertaining tions of law and fact to an al two-part test as set out justice applied leged violation of an constitu applicant’s argu and found Strickland5 ” rights.’ (quoting tional Id. at 908 Cote “it Specifically, ments all failed. she found (R.I.2010)); 994 A.2d see also unlikely that even the most highly Chapdelaine, 32 at 941. successfully could have skilled trial counsel overcome the substantial evidence—much proving, by pre burden of “[T]he which, noting, it is worth vol [Tassone] evidence, ponderance of the that such re to the East Providence untarily provided lief is warranted” is placed upon appli police weighing against [his] Brown, detectives — cant. 32 A.3d at 907 (quoting claimed innocence.” The (R.I. Laurence, State v. also determined that Tassone fell short of 2011)). demonstrating mistakes made attorney Analysis

his trial “could be said to have significantly contributed to the ultimate I. Ineffective Assistance of Counsel verdict or sentence.”6 appeal This focuses on what judgment dismissing A was entered Tas- argues are three deficiencies his trial January sone’s 2010 and First, attorney’s representation. he ar- granting an order was entered counsel’s gues that his trial counsel him provided January motion to withdraw on with ineffective assistance of be- se, filed a of appeal, pro Tassone notice alleged eyewit- cause he failed to call an 25, January 2010. testify. ness to He that contends the wit- ness would have testified that she lived Standard of Review near Kendra and that she had observed “Post-conviction relief is avail get her leave her house in a car white able to defendant convicted of crime by long a man driven hair on the original who contends that his conviction night says of murder. Tassone this is or rights sentence violated that the state significant because at the time of the mur- or federal constitutions secured to him.” der, he drove a maroon car and had short State, 937, Chapdelaine v. 941 A.3d hair. (R.I.2011) State, (quoting Gordon (R.I.2011)). Second, 467, argues attorney that his trial reviewing When have the postconvic rights the denial of an failed to correct Miranda relief, expert forms He great tion “this Court affords defer examined witness. hearing justice’s findings alleges expert ence to the that an would have testified Washington, Lastly, 5. Strickland v. 466 U.S. considered and arguments (1984). post- dismissed Tassone's other S.Ct. 80 L.Ed.2d 674 relief, ap- none of which has been conviction pealed Court. to this signed form der because he was aware that his es- rights the first waiver that wife, tranged living, with whom he still was in that manipulated Tassone had been dating meeting other men she was had been add- the names of the detectives through Tas- personal informa- advertisements. time than other ed at a different sone also contends that Hutter’s statement that two alleges He also tion on form. police about the time his wife returned been used to typewriters had different home from work on night of the mur- argues form. Tassone complete the der was inconsistent with the statement attorney had the correct form had his trial given by supervisor her at work. testimony analyzed, expert of an could police doubt on the version of have cast addition, In applicant points out that when he was advised of events about first initially police Hutter refused to allow rights. home, vehicle couple’s search his or the during and that at various times his inter- that his own state- light of fact irrational police, view with Hutter became police damag- ments to the were the most spoke killing himself. Tassone as- him, he against argues evidence serts that introduction of Hutter’s actions form testimony rights about the waiver could have construed as conscious- the sup- could have altered the outcome of guilt probably ness of would have had hearing and the trial. Because pression impact jury on the if trial counsel had primarily his defense was based on an attempted present jury. it to the gave that he his statements in- assertion voluntarily, he contends that the failure of of inef evaluating allegations When waiver-of-rights to have the trial counsel counsel, fective assistance of the standard by an expert form examined was not an employed by this Court is identical objectively reasonable tactical decision. Supreme one set forth

Finally, alleges Tassone that his trial Washing United States Strickland v. attorney present failed to evidence that a ton, 466 U.S. 104 S.Ct. husband, party, third the victim’s Christo- (1984). Applicants L.Ed.2d 674 are re “ Hutter, pher committed the murder.7 (1) quired to demonstrate that: ‘counsel’s says that evidence that Hutter performance was deficient’ in that it fell could have committed the murder included objective below an standard of reasonable police his statement that “people ness,” who Lynch v. 605-06 (R.I.2011) nothing dogs,” coupled Strickland, sex are but (quoting 466 U.S. at 688, 104 (2) discovery by police dog 687, 2052), with the of a “that S.Ct. such bowl buried the sand that was on the performance prejudicial deficient was so argues victim’s chest. Tassone that Hut- the defense and the errors were so serious committing deprivation ter had a motive for the mur- as to amount appli- to State, 1132, (R.I.2001) hearing justice applicant’s 7. The considered v. mette 785 A.2d 1138 Moran, 178, (citing linking claim that v. evidence existed the vic- Carillo 463 A.2d 183 (R.I.1983)). applied tim’s husband to the crime but rule,” was, reasoning However, "raise or waive that it though applicant even did not essence, newly a claim of discovered evi- raise this issue as an ineffective assistance of claim, pro- § dence. General Laws 1956 10-9.1-8 we will review it because the only procedural vides a bar not original issues applications and amended consistent- previous have been raised and decided in a ly alleged ineffective assistance of coun- 10-9.1-6(a) ("In postconviction-relief proceeding, considering § but also to sel. See relitigation postconviction "the issue that could have [for relief] litigated prior proceeding, regard- in a even if court shall take account of substance form.”). particular issue was not raised.” Oui- less of defects of

1285 applicant’s genuine v. contentions raised no right to a fair trial.” Bustamante cant’s (R.I.2005) 516, Wall, (quoting A.2d 522 issues of material fact. 866 (R.I. Vose, v. 764 A.2d 171 Brennan is true that this Court consis It 2001)). that “the tently summary has held dis scrutiny requires This applicant’s application missal of an defer performance highly of counsel’s be require relief does not an ential, “every effort be made to evidentiary hearing, long appli [must] so as an distorting effects of hind eliminate the provided opportunity cant is with an sight, to reconstruct the circumstances of respond proposed to the court’s dismissal.” conduct, Brown, to evalu challenged counsel’s (citing 32 A.3d at 909 v. Sosa perspective State, (R.I.2008)); from counsel’s ate the conduct 949 A.2d 1017 see (c). 10-9.1-6(b), Lynch, § at the time.” 13 A.3d at 606. “If the re ply genuine reveals that there are no is Evidentiary to Hold an Failure dispute, sues of material fact in an then Hearing evidentiary hearing provided need not be proceed and the court can to rule on the overarching argument The ad Brown, hearing.” without a by applicant hearing is that vanced State, A.3d at 909 v. (quoting O’Neil justice erred when she did not hold an (R.I.2002)). This, however, A.2d evidentiary hearing to evaluate his claims This, necessarily predicated is on the court’s of ineffective assistance of counsel. having ability to review the trial rec says, coupled hearing justice’s with the ord in the absence of an evidentiary hear “inability transcripts to review the trial ing. incapable fairly assessing rendered her [applicant’s] allegations of ineffective assis perplexed by We are the fact that the

tance of counsel.” trial transcript was unavailable and there no good explanation why is about it was evidentiary

The state contends that an missing.9 required hearing was not Without or tran- because scripts, with we are unable to discern how the provided opportunity reply was dismissal,8 proposed hearing justice to the court’s findings and be- could make factual cause the hearing justice performance.10 determined that about trial counsel’s Ulti- question respond proposed 8.There no that the dismissal in accor- 10-9.1-6(b). § dance with ample opportunity ensured that Tassone had reply proposed to the court’s dismissal and hearing justice appears It that the had the enormously pa- that the page transcript pre-trial benefit of one from State, tient with him. See Sosa v. that had motions been attached to Tassone’s (R.I.2008). Even after counsel’s application. first memorandum was filed with the court, hearing justice gave applicant factually 10. These circumstances are distin- opportunity present a list of seven addition- guishable Page from documentation, (R.I.2010), complaints, along al in which the had imprisonment been sentenced to life without prepare supplemental ordered counsel to possibility parole of at trial for "the most Shatney addressing memorandum those con- atrocious, killing imaginable.” barbaric In tentions. At the second before the postconviction-relief application, ap- 28, 2008, February court on Tassone was plicant alleged representa- that trial counsel’s given opportunity respond further tion constituted ineffective assistance of coun- dismissal, proposed which he allowed to was sel. Id. at 938. The trial counsel by submitting do written It is evi- materials. postconviction- was the sole witness at the applicant ample opportunity dent that had hearing. considering Id. After the trial 1286 Here, the absence of a that “there 13 A.3d at 606. [was] the court found

mately, any con- support in the record to with the lack of an nothing transcript, coupled counsel repre- than that trial clusion other evidentiary hearing, precluded the court the best of his abili- [applicant] to sented conducting adequate, independent from ty.” from review of trial counsel’s actions and “looking] performance at the entire of expounded on the value This has Court State, Brown v. 964 A.2d counsel.” performance transcripts of trial when (R.I.2009). v. 528 is assessed. State of trial counsel (R.I.1984), D’Alo, up- we 477 A.2d evidentiary was No conducted Court’s denial of the held the validity explore applicant’s argu- of postconviction for applicant’s application ments, leaving the foun- thus unexamined assistance of relief based on ineffective probability” dation for a “reasonable case, evidentiary In that no counsel. errors, but for trial counsel’s the result of held, but the sub- hearing was would have been proceeding different. memorandum and sever- mitted a detailed Strickland, See 466 U.S. at 104 S.Ct. excerpts from the consisting al exhibits application. trial transcript por- at The exhibits contained Id. 90-91. Excessive Reliance on the testimony, including relevant tions of trial Shatney Memoranda counsel, criti- questions posed defense post-conviction relief statute “[T]he counsel, by defense objections cal made may the court provides that dismiss between significant discussions de- if, pleadings on the after re justice. and the trial Id. at fense counsel viewing application, the answer or mo that: explained 91. This Court record, tion, the court determines determining “In whether a trial coun- State, that it lacks merit.” effective, was no evi- performance sel’s (R.I.2000) added); (emphasis than the trial probative dence is more 9.1—6(b); § see see also Toole v. 10— through transcript transcript, (R.I.1998). However, 713 A.2d justice hearing application] trial [an Laurence, recently as echoed State v. observe, relief can albeit (R.I.2011), appointed A.3d 512 “the coun second-hand, actually happened what as * * * sel’s determination frivolousness far as the trial counsel’s actions are necessarily would not warrant a court de concerned.” Id. * * of frivolousness Id. at termination appeal, On held that the trial 133). Shatney, at (quoting justice in that case had “sufficient evidence case, In this the basis for the court’s performance before him to assess the finding applicant’s allegation trial counsel.” of inef- applicant’s] Id. [the fective assistance of counsel lacked merit Although scrutiny per- of trial counsel’s admittedly based on “counsel’s memo- deferential, formance must be the court’s Supreme randa and the Rhode Island review still must strive “to reconstruct the decision State v. Tassone.” The Court’s challenged of counsel’s con- circumstances duct, cites several facts that lead and to evaluate the from court’s decision conduct perspective Lynch, counsel’s at the time.” to the inevitable conclusion that the hear- hearing, testimony at the the hear- He that trial counsel had made sound counsel’s found ing justice, presided had over the trial tactical decisions and had conducted a rea- who investigation transcript, and had the benefit of the trial and made reasonable sonable rejected possible Id. at applicant's the claim. Id. at 939. decisions about defenses.

1287 postconviction applica- was the first relief arrived at her determination ing justice relying applicant, on counsel’s tion filed the who was sen- reading and after the example, possibility memoranda.11 For tenced to life without the of Shatney light severity counsel retained the In the of parole. found that trial of this court sentence, hold, therefore, expert, a DNA commissioned that from services of we this Tassone, “aggres- forward, of evidentiary hearing evaluation psychiatric point prosecu- the sively attempted prevent to required post- in the first introducing [applicant’s] incrimi- tion from involving appli- conviction relief in all cases record,”12 into the nating statements possibil- cants sentenced to life without the testify called witnesses ity parole.

behalf, cross-examined “aggressively and Conclusion

the witnesses.” state’s foregoing, the we vacate upon Based the However, it is unclear to us how the Superior of the and re- judgment independently hearing justice was able to papers mand the the case to that tribu- of mate- genuine that no issues determine evidentiary hearing. nal for an surrounding applicant’s rial fact existed claims of ineffective assistance INDEGLIA, dissenting. Justice the benefit of a trial tran- having without conducting without an eviden- script13 or my postconviction Because review of the noteworthy that tiary hearing. It is also proceedings in the Court leads never asked Tassone hearing justice the me conclude that the hearing present he wanted to testimo- whether the properly followed mandates of G.L. arguments. nial evidence chapter 1956 9.1 of title and our case (in Brown, 32 A.3d at 905 which the it, I respectfully disagree law related Cf. hearing justice applicant offered the majority’s opinion with the in this ease. and opportunity present testimonial my colleagues find that an eviden- While documentary evidence but conducted, tiary hearing have been should so). declined to do especially since was sentenced to fact, § parole, life without 10-9.1-6 hearing justice opinion, our clearly require permits does not one and excessively Shatney on counsel’s relied a postconviction-relief applica dismissal of appli when that the memoranda she found satisfied, tion a court is on the “[w]hen cant’s claim of ineffective assistance of application, basis of the the answer or wholly counsel was without merit. Our motion, record,[14] fact that that the heightened by appli concern is during 11. The did note 13. This Court has held on numerous occa- transcripts integral part sions that are an that the no-merit memoran- provide the record and that a foundation for a prepared by "probably dum counsel was proper appellate proceedings of the review comprehensive” regard- most memorandum Notarantonio, below. See Notarantonio v. Stone, (R.I.2008); Riley A.2d received, had court ever is to be com- (R.I.2006); Bustamante v. plimented for his efforts this case. Wall, (R.I.2005). 866 A.2d hearing justice may gleaned 12. The 14. "Record” is defined in Black’s Law Dictio- about trial counsel’s actions some information nary report proceed- as official of the ”[t]he surrounding the introduction of Tassone’s case, ings including papers, filed in a (if evidence from this fourth statement into transcript trial verbatim or Tassone, opinion Court’s in State v. any), tangible Law exhibits.” Black's (9th ed.2009). (R.I.2000). Dictionary 1387 plication arguable relief has no merit. To do post entitled to conviction cant is not so, however, appointed counsel must file by any be served purpose and no would ** upon appli with the court and serve the Such dismissal proceedings further accompanied cant a motion to withdraw the has permitted long applicant is as as a ‘no-merit’ that details by memorandum to to opportunity reply the provided extent of or her the nature and genuine the dismissal and no is proposed case, the review of the lists each issue §See 10-9.1- sues of material fact exist. raise, explains to applicant wished and 6(b). Likewise, may grant court a “[t]he why professional opinion in counsel’s summary party dispo either motion any those issues and others that he or appears it sition of the when may investigated she lacked merit. depositions, answers pleadings, from the hearing The court then must conduct and interrogatories, to and admissions If, applicant present. with the based fact, together any affi agreements of its review assessment upon counsel’s of submitted, genuine no davits that there is potential grounds seeking the moving par fact and the issue of material post-conviction and of other as a matter of ty judgment is entitled to raise, that the to applicant issues wishes 10-9.1-6(c). Section Neither of law.” agrees grounds ap the court that those conducting of provisions requires these the merit, pear any arguable to lack then it Indeed, evidentiary hearing. hearing an permit shall counsel to withdraw and evi- justice required is not conduct an the applicant advise or she shall if, dentiary hearing applicant’s from se, required proceed if he or pro be dismissal, reply proposed to the court’s pursue application.” she chooses to the the determines that no (citing Id. at 135 v. Al Commonwealth genuine issue of material fact exists and brecht, Pa. n. [554 31] 720 A.2d that, therefore, evidentiary no need for an (Pa.1998) added)). (emphasis State, hearing exists. See Toole v. in opinion This Court’s Thornton v. (R.I.1998). “However, if State, (R.I.2008), 948 A.2d 312 demon- believes, [hearing] justice the after consid in strates the manner which a ering applicant’s] reply, that an evi- [an justice may simultaneously apply both the dentiary hearing necessary, then he [or statutory provisions permitting summary applicant] must afford she] [the such dismissal and the Shatney mandates of hearing.” Id. considering applicant’s postconviction- Perhaps justice no area of the criminal Thornton, relief endeavor. after a ser- system challenges the administrative skills hearings following ies of three the justice handling of a trial more than the multiple court’s consideration of memoran- postconviction-relief applications. Often counsel, da both the defendants, filed self-represented withdraw, seeking who was arguments inartfully whose are sometimes justice deemed claims to be stated, the trial must carve out merit, concurrently dismissing without consideration, those deserving legal evidentiary hearing without an while at time preserving same granting counsel’s motion to withdraw. judicial process from frivolous claims. Thornton, affirming 948 A.2d at 317. In end, To this dismissal, noted that (R.I.2000), A.2d 130 we held that given an “applicant opportunity applicant may request “counsel for an speak on his own behalf at all three hear- withdraw, permission dispute from the court to ings; permitted and he was of the no-merit upon ap- arguments based an assessment that the made each memoranda, remaining merit argument finding oral and in that none had both at Thus, filings.” Id. the “mindful of Court’s observation supplemental [this] [in his Thornton, 317,] under hearing justice required permit- was not 948 A.2d at litigation further follow- permit ting applicant] whose claims for relief [an determination. ‘unavailing’ his “no-merit” have been deemed to be proceed pro application se with his for view, my hearing justice In the was ‘an post-conviction would constitute scrupulous following these mandates. futility inefficient exercise and an use of only did she review the first “no- Not ” [judicial] Accordingly, resources.’ she de- by merit” memorandum filed Tassone’s application.15 nied and dismissed his attorney, terming it “the most appointed regarding memorandum comprehensive majority The that a court’s (ACI) or somehow otherwise Institutions tive assistance of counsel. may this contention misplaced. While my I that noth- Finally, repeat concern interesting issue for our presented 9.1 of title 10 or our chapter in either consideration, totally deflated when it was requires law postconviction-relief case attorney notified us on Feb- appellate evidentiary hearing parole in a life without 1, 2012, that ruary required, if it case. I believe that one is defendant-appel- of the a result “[a]s accomplished by legislative be should to the Court which lant’s recent letter or, if supervisory amendment under our complete copy that he has a he discloses “bet- powers, only by suggesting cell at the transcripts of the trial case, practice” ter is to have one.16 that he could have made available ACI thorough analysis because of the court, undersigned the trial I no need for one here. hearing justice, see claim of error withdraws the first [the differences, Because of these I must re- evidentiary hearing if there is need for spectfully dissent. defendant-appel- in the transcript] no [p]re[b]riefing [statement

lant’s

[supplemental memorandum.” appeal gone, of his Tas- prong

With this viewed, rely forced to on what he

sone was (R.I. sug- Ratchford, practice” v. 16. We use the term "better State 1999). gesting person after a has been allocution probation. State found to be violator of See Jones, (R.I.2009); 681-82 notes author- application conviction relief in a post ity to rule on an in the absence [cjourt this has ever Shatney proceeding evidentiary hearing of an “predicated is received[,]” but, she allowed Tassone to ability court’s having the to review the complaints submit additional and docu- respectfully suggest trial record.” I attorney mentation and ordered his to the factual of this circumstances case re- prepare supplemental memorandum ad- hearing justice veal that indeed re- further, dressing those issues. Still while record, viewed the available trial which “no-merit” memo- considering the second comprised just more than the trial tran- attorney, hearing randum filed Moreover, in scripts. appeal his to this justice permitted Tassone to make more Court, Tassone, at least until shortly be- and to submit a folder of addi- arguments fore argument, oral contended that material, agreed tional which she to con- hearing justice erred in denying appli- rendering sider before a written decision. cation for relief without an asked specifically She Tassone whether because, evidentiary hearing at the time “comprise[d] these all of the evidence and ruling, she issued her the transcripts of arguments you present want underlying Tassone’s murder trial had why your application as to has [the court] destroyed been lost or and therefore were why you disagree [ap- merit and unavailable for her review. See State v. pointed Tassone assured counsel].” D’Alo, (R.I.1984). Al- argument that his though transcripts those were reviewed view, complete. my pro- Tassone was postconviction-relief attorney Tassone’s ample opportunity reply vided memorandum, preparing they ap- his first proposed application. dismissal of his parently missing by were the time of the decision, court, hearing, during In her stu- which the with Tas- claims, diously considered all of Tassone’s sone this present, discussed issue. Tas- analysis justice’s any allegation, 15. The careful makes however unsubstanti- ated, following excerpt theoretically evinced of her deci- that could even under- sion: mine his conviction With or sentence. each memorandum, mutate his claims and multi- allega- applicant] raises no credible "[The ply. post-con- for [Tassone’s] any grounds tions to viable Moreover, charitably viction relief can be character- post-conviction relief. because Thornton, trial, ‘moving target.’ ized as none of these issues were raised at Accordingly, A.2d at 315. [c]ourt and none of them fall under rule, agrees exceptions they [appli- with counsel and finds all of to the 'raise or waive' post-convic- grounds post-conviction cant’s] are barred from this action for stated applicant] clearly wholly relief to be frivolous and tion relief. does not without [The any legitimate claims for relief. He merit.” reject, hearing jus- I as error in the copy was lost due suggested that sone three claims of ineffec- at the Adult Correctional tice’s denial of his to a water leak

Case Details

Case Name: Tassone v. State

Court Name: Supreme Court of Rhode Island

Date Published: May 21, 2012

Citation: 42 A.3d 1277

Docket Number: 2010-333-Appeal

Court Abbreviation: R.I.