Otero v. State Of R.I., 2008-330-Appeal.

• Decision Date: 23 June 2010
• Docket Number: No. 2008-330-Appeal.,2008-330-Appeal.
• Citation: 996 A.2d 667
• Parties: Efrain OTEROv.STATE of Rhode Island.
• Court: Rhode Island Supreme Court

996 A.2d 667

Efrain OTEROv.STATE of Rhode Island.

No. 2008-330-Appeal.

Supreme Court of Rhode Island.

June 23, 2010.

C. Daniel Schrock, Esq., for Plaintiff.

Aaron L. Weisman, Esq., Department of Attorney General, for Defendant.

Present: SUTTELL, C.J., GOLDBERG, and FLAHERTY, JJ.

OPINION

Chief Justice SUTTELL, for the Court.

The applicant, Efrain Otero, appeals from a Superior Court judgment denying his application for postconviction relief. This case came before the Supreme Court for oral argument pursuant to an order directing the parties to show cause why the issues raised in this appeal should not summarily be decided. After examining the written and oral submissions of the parties, we conclude 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.

IFacts and Procedural History

The underlying facts of this case are set out in State v. Otero, 788 A.2d 469, 470 (R.I.2002), in which this Court affirmed the convictions of applicant. On June 27, 1998, Mr. Otero shot and killed a man in a Providence bar. According to witness testimony, applicant entered the bar and shot the man five times. On August 12, 1999, a jury convicted him of first-degree murder and carrying a pistol without a license, for which he was sentenced to life imprisonment and a ten-year suspended sentence. On January 24, 2002, this Court affirmed the judgment of conviction and commitment. Id.

On June 19, 2002, applicant filed a pro se application for postconviction relief in Superior Court on the grounds that the trial justice did not consider “all relevant, reliable, and probative evidence * * * before instructing the jury on self-defense” and that he received ineffective assistance of counsel at his trial. Upon applicant's subsequent motion, counsel was appointed to represent him.

The appointed counsel thereafter filed a motion to withdraw, stating that the application was wholly frivolous and without merit. To support his motion to withdraw, appointed counsel filed a “no-merit” memorandum in accordance with the requirements set forth by this Court in Shatney v. State, 755 A.2d 130 (R.I.2000). Specifically, the memorandum stated that (1) the evidentiary issues raised in the postconviction-relief application already had been addressed at trial and on direct appeal; (2) applicant's allegations of witness coercion would not have refuted the other substantial evidence presented; (3) appointed counsel was unable to confirm applicant's assertion that another witness may have had new, exculpatory information; and (4) appointed counsel did not believe that the trial counsel's failure to conduct a more rigorous cross-examination of certain witnesses constituted ineffective assistance of counsel.

On April 19, 2004, a hearing was held on appointed counsel's motion to withdraw.¹ The applicant was aided by an interpreter at that hearing. The appointed counsel expressed his wish to withdraw, in accordance with Shatney, and requested that the hearing justice preserve Mr. Otero's argument about newly discovered evidence.² The state suggested that it was appropriate for the hearing justice to deny the remainder of applicant's claims, but it agreed to the preservation of the newly discovered evidence claim. The hearing justice then addressed Mr. Otero, noting that the latter had the assistance of an interpreter. The hearing justice inquired whether applicant had any questions about what appointed counsel had stated on his behalf or what the state had argued; applicant had no such questions.

The hearing justice did not rule on applicant's newly discovered evidence claim and found his other claims “groundless,” thereupon dismissing them. At that point, the hearing justice asked applicant “Do you understand that, sir?”, and applicant responded “Yes. Yes, I understand.”

On August 16, 2004, applicant filed a second pro se application seeking postconviction relief. In his application, Mr. Otero asserted ineffective assistance of trial counsel because his counsel failed to object to Det. Robert Badessa's testimony on the grounds that he was not qualified as an expert and that he failed to engage a medical expert on the issue of applicant's diminished capacity. The applicant also argued that the trial justice erred by improperly instructing the jury on the elements of second-degree murder.

Thereafter, a private attorney filed an entry of appearance on behalf of applicant. On June 14, 2005, that attorney filed an application for postconviction relief and a memorandum in support thereof, which essentially mirrored Mr. Otero's August 16, 2004 pro se application and reiterated the grounds previously set forth. That same day, a hearing was held on Mr. Otero's applications for postconviction relief.

At the June 14, 2005 hearing, the state argued that applicant addressed a number of issues in his postconviction-relief memorandum that were barred by res judicata and that applicant had failed to present, or even allege, newly discovered evidence in his memorandum or at the hearing. In response, the hearing justice noted that most of the substantive issues raised in the petition for postconviction relief had been disposed of and that the case had been continued to allow applicant to investigate his claim of newly discovered evidence. The hearing justice concluded that Mr. Otero had failed to present any newly discovered evidence, and he denied the applications from the bench.

A premature notice of appeal was filed on July 11, 2005,³ and judgment entered denying postconviction relief on June 23, 2008.

IIStandard of Review

“[P]ost-conviction relief is available to a defendant convicted of a crime who contends that his original conviction or sentence violated rights that the state or federal constitutions secured to him.” Ballard v. State, 983 A.2d 264, 266 (R.I.2009) (quoting Young v. State, 877 A.2d 625, 628 (R.I.2005)); see also G.L.1956 § 10-9.1-1(a)(1) (providing a statutory right to postconviction relief for constitutional violations). On review, this Court gives “great deference to the [hearing] justice's findings of fact.” Moniz v. State, 933 A.2d 691, 694 (R.I.2007). However, “[t]his Court will * * * ‘review de novo any post-conviction relief decision involving questions of fact or mixed questions of law and fact pertaining to an alleged violation of an applicant's constitutional rights.’ ” Bustamante v. Wall, 866 A.2d 516, 522 (R.I.2005) (quoting Taylor v. Wall, 821 A.2d 685, 688 (R.I.2003)).

IIIDiscussion

AProcedural Claims

On appeal, Mr. Otero asserts that the hearings on April 19, 2004 and June 14, 2005 were defective on procedural grounds. Specifically, he argues that the hearing justice improperly allowed his appointed counsel to withdraw his original postconviction-relief claims as he concurrently sought to withdraw as counsel. He further contends that the hearing justice should have advised him at the hearing on April 19, 2004, in accordance with Shatney, that he could proceed pro se with his claims. With respect to the hearing on June 14, 2005, applicant avers that his counsel was not prepared and that the hearing justice should have intervened and sua sponte afforded him the opportunity to proceed pro se.

The applicant's arguments are wholly unavailing. The applicant's first argument is fatally flawed because his appointed counsel did not, in fact, withdraw his postconviction-relief claims. The only claim appointed counsel “withdrew” was the newly discovered evidence claim, and it was withdrawn for the purpose of preservation. Rather, at the hearing on April 19 2004, applicant's other postconviction-relief claims were dismissed by the hearing justice.

Mr. Otero's second argument, that the hearing justice should have advised him of his right to proceed pro se at the hearing on April 19, 2004, is similarly unavailing. In Shatney, this Court set forth the procedures a hearing justice must follow when an appointed counsel of an applicant for postconviction relief seeks to withdraw from representation. This Court stated:

“[A]ppointed counsel must file with the court and serve upon the applicant a motion to withdraw accompanied by a ‘no-merit’ memorandum that details the nature and extent of his or her review of the case, lists each issue the applicant wished to raise, and explains why in counsel's professional opinion those issues and any others that he or she may have investigated lacked merit. The court then must conduct a hearing with the applicant present. If, based upon its review of counsel's assessment of the potential grounds for seeking post-conviction relief and of any other issues that the applicant wishes to raise, the court agrees that those grounds appear to lack any arguable merit, then it shall permit counsel to withdraw and advise the applicant that he or she shall be required to proceed pro se, if he or she chooses to pursue the application.” Shatney, 755 A.2d at 135.

With respect to advising applicants of their right to proceed pro se, we have said that the Shatney procedures must be “essentially followed,” emphasizing that the applicant must be given the opportunity to be heard. Thornton v. State, 948 A.2d 312, 316 (R.I.2008) (quoting Brown v. State, 841 A.2d 1116, 1123 (R.I.2004)).

The case before us is analogous to Thornton, 948 A.2d at 317, in which we held that the hearing justice had “essentially complied” with the requirements of Shatney, and therefore, that the Shatney procedures were satisfied. In Thornton, this Court stated that upon the hearing justice's review of the memoranda of the applicant and his appointed counsel and having heard oral argument on the memoranda, it would be “an exercise in futility and an inefficient use of judicial resources” to allow the applicant to proceed pro se on his application. Id.

Similarly, in the case at bar, the hearing justice essentially satisfied the Shatney procedures. Before the hearing,...