58 A.3d 171 (R.I. 2013), 2011-322-Appeal, Rivera v. State

Docket Nº:2011-322-Appeal.
Citation:58 A.3d 171
Opinion Judge:INDEGLIA, Justice.
Party Name:Firlando RIVERA v. STATE of Rhode Island.
Attorney:Richard K. Corley, Esq., Providence, for Applicant. Aaron L. Weisman, Department of Attorney General, Providence, for State of Rhode Island.
Case Date:January 14, 2013
Court:Supreme Court of Rhode Island

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58 A.3d 171 (R.I. 2013)

Firlando RIVERA


STATE of Rhode Island.

No. 2011-322-Appeal.

Supreme Court of Rhode Island.

January 14, 2013

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[Copyrighted Material Omitted]

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Richard K. Corley, Esq., Providence, for Applicant.

Aaron L. Weisman, Department of Attorney General, Providence, for State of Rhode Island.


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INDEGLIA, Justice.

Firlando Rivera (Rivera or applicant) appeals from a Superior Court judgment denying his application for postconviction relief. On appeal, Rivera contends that the hearing justice erred in rejecting his claim of ineffective assistance of counsel. This case came before the Supreme Court for oral argument on October 23, 2012, pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not be summarily decided. After carefully considering the written and oral submissions of the parties, we are satisfied that this appeal may be resolved without further briefing or argument. For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.


Facts and Travel


Trial and Appeal

The facts underlying this case are set forth in State v. Rivera, 839 A.2d 497 (R.I.2003), in which this Court upheld Rivera's judgments of conviction. In short, in the early morning hours of November 23, 1997, Rivera and three acquaintances— Hector Vasquez, John Muniz, and Dwight Withee— became involved in a confrontation with Edward " Chipper" Wilson IV and Robert K. Rhoades at the Weiner Palace in Woonsocket.1 See Rivera, 839 A.2d at 499. What began as a verbal altercation escalated into physical violence that ultimately led to Wilson's death after he was shot in the head. Id.

On October 19, 1999, a Superior Court jury convicted Rivera of first-degree murder and three firearms charges. The trial justice denied Rivera's motion for a new trial on October 27, 1999. Several months later, on February 3, 2000, the trial justice sentenced Rivera to a mandatory sentence of life imprisonment for murder. He also imposed a ten-year suspended sentence and a ten-year probationary term for one of the firearms charges; for each of the other two firearms charges, he imposed a ten-year jail term. The sentences on the firearms charges were to run concurrently with the life sentence. The trial justice also declared Rivera to be a habitual offender in accordance with G.L.1956 § 12-19-21. Pursuant to that statute, he sentenced Rivera to an additional twenty years in jail for which he would be ineligible to seek parole; this sentence was to run consecutively to the life sentence. Judgment of conviction was entered thereafter.

Rivera then timely appealed his convictions to this Court. After reviewing the record, we affirmed his convictions on all counts and denied his appeal on November 19, 2003. See Rivera, 839 A.2d at 504.


Postconviction-Relief Proceedings

On February 27, 2004, Rivera filed a pro se application for postconviction relief. Rivera was appointed counsel about one month later. On March 29, 2006, counsel filed a verified complaint in support of Rivera's application for postconviction relief. Unlike Rivera's original application, which contained allegations of a general nature, the verified complaint contained seven specific grounds as to which he alleged

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ineffective assistance of counsel. Those grounds were as follows: (1) attorney conflict of interest; (2) failure to raise a third-party perpetrator defense; (3) failure to pursue a motion to suppress; (4) failure to investigate or conduct pretrial preparation; (5) failure to conduct pretrial investigation; (6) failure to raise a motion for a speedy trial; and (7) failure to preserve issues at trial. In a later filing, Rivera abandoned several of these arguments, stating that he intended to press only four grounds of alleged ineffective assistance of counsel: that his attorneys were conflicted in their representation of him; that they failed to adequately investigate and prepare for trial; that they failed to pursue a motion to suppress; and that they failed to mount a third-party perpetrator defense.

An evidentiary hearing on Rivera's application was held on February 10 and 11, 2011.2 The justice who presided over that hearing had also presided over Rivera's jury trial in 1999. Three witnesses testified at the hearing: Matthew Smith, one of the two attorneys who represented Rivera at trial; John Verdecchia, Smith's co-counsel; and Dwight Withee, an acquaintance of Rivera's who was with him at the Weiner Palace at the time of the shooting. Below, we summarize the relevant evidence adduced at the hearing.


Testimony Concerning Conflict of Interest

Rivera's primary argument at the postconviction-relief hearing was that his trial attorneys had represented him while laboring under a conflict of interest. This conflict, Rivera argued, stemmed from Smith's and Verdecchia's representation of Hector Vasquez. Vasquez was an acquaintance of Rivera's and was with him at the Weiner Palace on the night of the murder. Rivera contended that an " inherent" conflict of interest resulted from Smith's and Verdecchia's representation of Vasquez during a key period of their representation of Rivera.

Rivera's postconviction counsel elicited testimony from both Smith and Verdecchia about this purported conflict of interest. Smith testified that he and Verdecchia jointly represented Rivera in connection with the charges that stemmed from Wilson's murder.3 Although Smith did not open a file on Rivera until January 7, 1998, he stated that he and Verdecchia represented Rivera as of December 1997, when Rivera was presented in the Superior Court as a violator of a previously imposed probation.

Smith explained that in late 1997 he and Verdecchia also represented Vasquez in connection with federal narcotics charges that were unrelated to Wilson's murder. Smith's representation of Vasquez on these charges concluded when Vasquez entered a plea in federal court on June 19, 1998. Smith confirmed on cross-examination that Rivera's murder charge and Vasquez's narcotics charges were " entirely separate and distinct" and that those two cases had " absolutely nothing to do with [each] other."

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Smith testified that shortly after the murder occurred Verdecchia brought Vasquez to the Woonsocket police station to give a statement in connection with the investigation. Vasquez's statement was admitted as a full exhibit at the postconviction-relief hearing. In that statement, Vasquez told the police (1) that he was in the restroom at the Weiner Palace and that he came out when he heard shots; (2) that he did not see Rivera fight with Wilson; and (3) that he did not see Rivera shoot Wilson. Vasquez told the police that, before going to the station to give his statement, he had spoken with Rivera by telephone. When an officer asked Vasquez whether Rivera had told him " what he [Rivera] allegedly did," Vasquez replied that Rivera had not done so. In addition, Vasquez told the police that when he advised Rivera of his intent to give a statement, Rivera told him: " That's your decision."

Smith testified that although he " would like to think" that he discussed with Rivera the issue of a possible conflict concerning the concurrent...

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