Shatney v. State

• Decision Date: 22 June 2000
• Docket Number: No. 99-274-M.P.,99-274-M.P.
• Citation: 755 A.2d 130
• Parties: Louis E. SHATNEY v. STATE.
• Court: Rhode Island Supreme Court

755 A.2d 130

Louis E. SHATNEY v. STATE.

No. 99-274-M.P.

Supreme Court of Rhode Island.

June 22, 2000.

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

Richard K. Corley, Providence, for Plaintiff.

Aaron L. Weisman, Providence, for Defendant.

OPINION

PER CURIAM.

This case is before us on certiorari to review the Superior Court's denial of the applicant Louis E. Shatney's (Shatney) motion for the appointment of new counsel to pursue an application for post-conviction relief. His previously appointed counsel had determined that his application lacked merit, and, thus, she had declined to pursue it. On September 13, 1999, this Court entered an order granting the petition for a writ of certiorari, assigned the case to the show-cause calendar, and directed the parties to address the following issues: (1) whether Shatney's Superior Court application for post-conviction relief was frivolous, and (2) whether, after the Superior Court learned of appointed counsel's determination that the client's application for post-conviction relief was frivolous, Shatney was entitled under G.L. 1956 § 10-9.1-5 to the appointment of new counsel to prosecute his post-conviction-relief application. That order also appointed an attorney to represent Shatney before this Court.

The Superior Court convicted Shatney in 1988 on several counts of first-and second-degree child molestation, and first-degree sexual assault. This Court denied his appeal and affirmed theconvictions in State v. Shatney, 572 A.2d 872 (R.I.1990). On April 26, 1993, Shatney filed both a motion for post-conviction relief and a motion for appointed counsel in the Superior Court. That court appointed an attorney (appointed counsel) to represent Shatney on June 10, 1993, and continued the matter to July 8, 1993. The docket sheet has a brief entry for July 8, 1993, that states: "Determination of Attorney [—] [appointed counsel] for the sole purpose of determining appropriateness of PCR." An unsigned entry of appearance form also appears in the record, date-stamped July 8, 1993, on which is written: "I hereby enter my appearance for the defendant for [the] sole purpose of determining appropriateness of post conviction remedies and to file any motion or amended petition which may be supported by adequate grounds in my professional judgment." The next document in the record, a copy of a letter from the Superior Court's Presiding Justice to Shatney, dated February 7, 1995, does not appear until approximately nineteen months later. This letter states:

"I am in receipt of your letter of January 25, 1995 in which you seek to have new counsel appointed in your application for post-conviction relief. As your letter indicates, Mr. Justice Gemma appointed [appointed counsel] to determine whether or not there was any merit to your applications. She determined there was no merit and, as an attorney, she is precluded from filing frivolous complaints with the Court.

"You were provided all that is statutorily required in Rhode Island for your application for post-conviction relief. Your request for additional counsel is denied."

On June 16, 1999, Shatney filed a petition for a writ of certiorari and a motion to appoint counsel in this Court. In his petition, he asserted that his appointed counsel never actually represented him. He explained that he sent her a letter outlining the issues he wished to raise in his application for post-conviction relief, but she never responded. According to his account, he called her several months later, and she told him she had withdrawn from the case because she never received his list of issues.She then, according to Shatney, searched her office and found his letter, explaining that her husband must have misplaced it. Shatney's account continued, "She also said she couldn't do anything about it now, as she had already withdrawn from my case." At that point, according to Shatney, he wrote to the Superior Court and received the letter from the Presiding Justice denying his request for additional counsel. Shatney contends that he then asked the Superior Court to have his motion heard and to represent himself, but received no reply.

The state responded to Shatney's petition for certiorari by attaching to its memorandum, among other things, a copy of a letter dated June 18, 1997, from Shatney's appointed counsel to a Superior Court justice in which she outlined the steps she took to review Shatney's case. She also set forth the specific concerns he related to her about his trial and motion to reduce sentence, and stated that "[t]hese allegations, in my professional judgment, would be frivolous to pursue, even presuming that it would be in the interest of Mr. Shatney to relitigate this case." The state suggests that the case should be remanded to the Superior Court for a review of the appointed counsel's "no-merit" letter, in accordance with the procedure set forth in Commonwealth v. Albrecht, 554 Pa. 31, 720 A.2d 693, 699 n.7 (1998). After we granted Shatney's petition and issued the writ of certiorari, both parties have filed supplemental memoranda in accordance with this Court's directive.

As to the first issue, Shatney argues simply that no meaningful application for post-conviction relief ever was filed in Superior Court, so it is impossible to determine whether the application was frivolous. The only document he filed was a boilerplate form with blanks filled in indicating the charges on which he was convicted and the sentence he received. He seeks a remand and a hearing so the Superior Court can review appointed counsel's investigation and research in this case. Moreover, he points out that although the Presiding Justice refers in his letter of February 7, 1995, to appointedcounsel's determination that there was no merit to the application for post-conviction relief, "[i]t is impossible to determine how the court determined this since there had been no action or court hearing or filing in the post-conviction relief case file since [appointed counsel's] entry of limited appearance on July 8, 1993." Shatney also urges this Court to adopt the procedures that Pennsylvania courts follow when court-appointed counsel in a post-conviction relief case seeks to withdraw after determining that the applicant does not have any arguable issues to present for review.

The state agrees that this record fails to provide sufficient information for us to determine whether Shatney's post-conviction relief application was frivolous. If we were to assume, however, that the Presiding Justice's February 7, 1995, letter constituted an adequate review of appointed counsel's determination of "frivolousness," then the state suggests that Shatney is not entitled to further appointment of counsel. The state proposes that the statutory mandate of § 10-9.1-5 has been met.

We are of the opinion that both the state and Shatney are correct in arguing that a remand is necessary. Nothing in this record indicates what issues Shatney sought to raise in his petition for post-conviction relief. Moreover, appointed counsel's 1997 letter to the Superior Court could not have served as the basis for the Presiding Justice's earlier 1995 letter to Shatney in which he indicated he would not appoint another attorney.¹

Therefore, it is difficult, if not impossible, for us to address the question of whether Shatney's application for post-conviction relief was frivolous on this inadequate record. It is unclear what groundshe still might have or may have wished to pursue in that application. The appointed counsel's determination of frivolousness, even if it were part of the official record, would not necessarily warrant a court determination of frivolousness, especially if Shatney himself were able to articulate an arguable basis for post-conviction relief that his appointed attorney, for whatever reason, may have overlooked or wrongly deemed frivolous. Furthermore, the post-conviction relief statute provides that the court may dismiss an application on the pleadings if, after reviewing the application, the answer or motion, and the record, the court determines that it lacks merit. See § 10-9.1-6(b); see also Toole v. State, 713 A.2d 1264 (R.I.1998)

. Thus, rather than rely solely on appointed-counsel's conclusion concerning the merits of Shatney's application, it seems to us that, at the very least, a Superior Court justice should have assessed counsel's proposed withdrawal from representing Shatney in light of whatever grounds Shatney may have proposed for seeking post-conviction relief, and then determined on the record whether to permit counsel to withdraw from representing Shatney because of the apparent lack of merit to Shatney's application.

With respect to the second issue that we asked the parties to address, it appears that no statute or case in Rhode Island governs the precise situation presented here. We asked whether, following appointed counsel's determination that his application was frivolous, Shatney was entitled to an appointment of new counsel under § 10-9.1-5. Section 10-9.1-5, which is part of the chapter on post-conviction remedies, provides:

"An applicant who is indigent shall be entitled to be represented by the public defender. If the public defender is excused from representing the applicant because of a conflict of interest or is otherwise unable to provide representation, the court shall assign counsel to represent the applicant. An indigent applicant is entitled, to the extent deemed appropriate by the court, to be provided with stenographic, printing,and other costs necessary to proceed under this chapter." (Emphasis added.)

Here, the Public Defender's office was unable to represent Shatney. Therefore, Shatney qualified for the appointment of counsel under § 10-9.1-5. But the statute is silent on whether an applicant is entitled to further appointed counsel after the initial appointed counsel declines to pursue the...