747 A.2d 475 (R.I. 2000), 98-583, Heath v. Vose

Docket Nº:98-583-C.A.
Citation:747 A.2d 475
Opinion Judge:PER CURIAM.
Party Name:David HEATH v. George VOSE et al.
Attorney:Paula Rosin, Paula Lynch Hardiman, Providence, for Plaintiff., Aaron Weisman, Emily A. Maranjian, Providence, for Defendant., Before WEISBERGER, C.J., and LEDERBERG, BOURCIER, FLANDERS, and GOLDBERG, JJ. Paula Rosin, Paula Lynch Hardiman, Providence, for Plaintiff. Aaron Weisman, Emily A. Maranj...
Judge Panel:Before WEISBERGER, C.J., and LEDERBERG, BOURCIER, FLANDERS, and GOLDBERG, JJ.
Case Date:March 22, 2000
Court:Supreme Court of Rhode Island
 
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Page 475

747 A.2d 475 (R.I. 2000)

David HEATH

v.

George VOSE et al.

No. 98-583-C.A.

Supreme Court of Rhode Island

March 22, 2000.

Page 476

Paula Rosin, Paula Lynch Hardiman, Providence, for Plaintiff.

Aaron Weisman, Emily A. Maranjian, Providence, for Defendant.

Before WEISBERGER, C.J., and LEDERBERG, BOURCIER, FLANDERS, and GOLDBERG, JJ.

OPINION

PER CURIAM.

This case came before the Court on February 7, 2000, pursuant to an order entered in accordance with Rule 12A(3) of the Supreme Court Rules of Appellate Procedure, wherein we ordered the applicant, David Heath (Heath or applicant), to appear and show cause why the issues raised in this appeal should not be summarily decided. Heath appealed from the January 27, 1998, denial of his application for post-conviction relief. After hearing the arguments of counsel and examining the memoranda submitted to the Court, we conclude that cause has not been shown. We sustain the appeal of the applicant, vacate his conviction, and remand this case for a new trial.

Facts and Procedural History

Heath was arrested in April 1993 after the police found him inside the home of an elderly man, Louis Pascone (Pascone), who told the officers on the scene that he had never seen Heath before and had not invited Heath into his home that night. An indictment returned by the grand jury charged Heath with one count of burglary in violation of G.L.1956 § 11-8-1. Heath was convicted on that count following a jury trial and was sentenced to twenty years in prison, ordered to serve ten years at the Adult Correctional Institutions with ten years suspended and probation. He was further declared to be a habitual offender by the trial justice, who imposed an additional sentence of five years to serve, consecutive to the sentence on the underlying burglary conviction. This conviction

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was affirmed by this Court in State v. Heath, 665 A.2d 1336 (R.I.1995).

Thereafter, Heath filed an application for post-conviction relief pursuant to G.L.1956 chapter 9.1 of title 10, asserting that his conviction and subsequent sentence were unlawful and void because of the ineffective assistance of his privately retained defense attorney, Joslyn Hall (Hall).1 Specifically, Heath alleged that his Sixth Amendment rights were violated because of Hall's failure to file for discovery pursuant to Rule 16 of the Superior Court Rules of Criminal Procedure, failure to call any witnesses in connection with his state of intoxication at the time of the burglary, failure to move for a judgment of acquittal at the close of the state's case, failure to request jury instructions on lesser-included offenses, and failure to file a motion for a new trial in a timely manner. A hearing on the application for post-conviction relief was held before the trial justice, who denied the application on January 20, 1998. Judgment entered, and Heath appealed. Additional facts will be supplied as necessary to address Heath's appeal.

Standard of Review

This Court has held that "[t]he findings of a trial justice hearing an application for postconviction relief are entitled to stand undisturbed on appeal in the absence of clear error or a showing that material evidence was overlooked or misconceived." Beagen v. State, 705 A.2d 173, 176 (R.I.1998) (citing LaChappelle v. State, 686 A.2d 924, 926 (R.I.1996); Brown v. Moran, 534 A.2d 180, 183 (R.I.1987)). However, "the ultimate determination concerning whether [a defendant's] constitutional rights have been infringed must be reviewed de novo." Powers v. State, 734 A.2d 508, 514 (R.I.1999) (citing Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); Broccoli v. Moran, 698 A.2d 720 (R.I.1997); Mastracchio v. Moran, 698 A.2d 706 (R.I.1997)).

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