June 7, 2018




                                                                      Supreme Court
                                                                      No. 2015-323-Appeal.
                                                                      (PM 14-3816)


                 Leonard Jefferson               :

                         v.                      :

               State of Rhode Island.            :




                   NOTICE: This opinion is subject to formal revision before
                   publication in the Rhode Island Reporter. Readers are requested to
                   notify the Opinion Analyst, Supreme Court of Rhode Island, 250
                   Benefit Street, Providence, Rhode Island 02903, at Telephone 222-
                   3258 of any typographical or other formal errors in order that
                   corrections may be made before the opinion is published.
                                                                      Supreme Court
                                                                      No. 2015-323-Appeal.
                                                                      (PM 14-3816)
                                                                      Concurrence and Dissent
                                                                      begins on page 10
                                                                      Dissent begins on page 11

             Leonard Jefferson                  :

                     v.                         :

           State of Rhode Island.               :


              Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

                                           OPINION

       Justice Robinson, for the Court. The petitioner, Leonard Jefferson, appeals1 from the

June 2, 2015 denial of his application for postconviction relief in Providence County Superior

Court. He contends before this Court that the hearing justice erred in denying his application for

postconviction relief because, in petitioner’s view, the ex post facto clause of the United States

Constitution was violated when his parole was revoked and he was denied the possibility of

parole in the future pursuant to G.L. 1956 § 13-8-14(b). He further avers that the separation of

powers doctrine as well as his right to be free from double jeopardy were also violated when he

was denied the possibility of parole; and he further argues that his due process rights were

violated when his parole was revoked.



1
        The General Assembly has amended G.L. 1956 § 10-9.1-9 so as to require a party
aggrieved by a final judgment entered in a postconviction relief proceeding to seek review by
filing a petition for a writ of certiorari with this Court. See P.L. 2015, ch. 91, § 1; P.L. 2015, ch.
92, § 1. That amendment went into effect on June 19, 2015. The notice of appeal in this case
was docketed in the Superior Court on June 19, 2015. To the extent that it may be necessary, we
are hereby treating the instant appeal as a petition for the issuance of a writ of certiorari, and we
are granting that petition.


                                                -1-
       For the reasons set forth in this opinion, we vacate the judgment of the Superior Court.

                                                 I

                                         Facts and Travel

       On October 4, 1974, petitioner was convicted in Providence County Superior Court of

murder in violation of G.L. 1956 § 11-23-1. He was sentenced to life imprisonment. This Court

affirmed his conviction in State v. Jefferson, 116 R.I. 124, 353 A.2d 190 (1976). We refer the

interested reader to that opinion for a detailed recitation of the facts underlying Mr. Jefferson’s

original murder conviction. We will restrict ourselves to only those facts which are relevant to

the case before us. In setting forth said facts, we rely primarily on Mr. Jefferson’s application for

postconviction relief and the attachments thereto.

       On June 2, 1976, after Mr. Jefferson’s 1974 murder conviction, the General Assembly

amended the parole statutes to include the following language, which remains in the current

version of the statute:

               “[I]n the case of a prisoner sentenced to imprisonment for life who
               is released on parole and who is subsequently convicted of a crime
               of violence as defined in section 11-47-2,[2] said conviction shall

2
       General Laws 1956 § 11-47-2 provides in pertinent part as follows:

               “‘Crime of violence’ means and includes any of the following
               crimes or an attempt to commit any of them: murder,
               manslaughter, rape, first or second degree sexual assault, first or
               second degree child molestation, kidnapping, first and second
               degree arson, mayhem, robbery, burglary, breaking and entering,
               any felony violation involving the illegal manufacture, sale, or
               delivery of a controlled substance, or possession with intent to
               manufacture, sell, or deliver a controlled substance classified in
               schedule I or schedule II of § 21-28-2.08, any violation of § 21-28-
               4.01.1 or 21-28-4.01.2 or conspiracy to commit any violation of
               these statutes, assault with a dangerous weapon, assault or battery
               involving grave bodily injury, and/or assault with intent to commit
               any offense punishable as a felony; upon any conviction of an
               offense punishable as a felony offense under § 12-29-5.”


                                                -2-
               constitute an automatic revocation of parole and the prisoner shall
               not be eligible for parole thereafter.” P.L. 1976 ch. 223 § 2; see
               also § 13-8-14(b).

Subsequently, in January of 1986, Mr. Jefferson was granted parole. He was thereafter arrested

in Pennsylvania and, on May 18, 1994, was convicted in that commonwealth of one count of

aggravated assault, for which he served a twenty-year prison term.

       On December 13 and December 29, 1993, after Mr. Jefferson’s Pennsylvania arrest, but

before his conviction, a preliminary parole revocation hearing was held in Pennsylvania with

respect to determining whether or not, as a result of his Pennsylvania arrest, there was probable

cause that he had violated his parole related to his Rhode Island sentence. Thereafter, on

November 10, 1994, after Mr. Jefferson’s Pennsylvania conviction and while he was serving his

sentence in Pennsylvania, the Rhode Island Parole Board held a final parole revocation hearing

and voted to revoke his parole and indicated, in the minutes from that hearing, that he would “no

longer be eligible for parole * * *.” In November of 2013, upon completion of his prison term in

Pennsylvania, petitioner was transported to the Adult Correctional Institutions in Rhode Island.

On April 14, 2014, Mr. Jefferson appeared before the Parole Board for what appears to have

been a second final parole revocation hearing; there is no indication in the record that he was

represented by counsel at that time. The Parole Board voted to affirm the above-referenced

revocation of Mr. Jefferson’s parole and, according to his application for postconviction relief

presently at issue, informed him that he “is and forever will remain ineligible for parole-

consideration.” Mr. Jefferson represents, in his application for postconviction relief, and the

state does not contest, that the basis of the Parole Board’s decision that he will remain ineligible

for parole was the mandate contained in § 13-8-14(b).




                                               -3-
       Mr. Jefferson filed the instant pro se application for postconviction relief on July 1, 2014.

He alleged therein that the Parole Board’s reliance on § 13-8-14(b) was “improper and

unconstitutional * * *.” Specifically, he contended that he had not been convicted of any offense

listed under G.L. 1956 § 11-47-2. He further contended that his due process rights under

Morrissey v. Brewer, 408 U.S. 471 (1972), were violated during the revocation proceedings.

       On April 1, 2015, Mr. Jefferson’s court-appointed counsel (having entered his appearance

on October 1, 2014) filed both a motion to withdraw as counsel3 and a memorandum in support

of that motion pursuant to this Court’s opinion in Shatney v. State, 755 A.2d 130 (R.I. 2000);4 the

grounds for the motion to withdraw were that the issues raised in petitioner’s application for

postconviction relief were “wholly frivolous, and not supported by existing law, or by a good

faith basis for the reversal, extension, or modification of existing law * * *.” On April 14, 2015,

a hearing was held on court-appointed counsel’s motion to withdraw, in the course of which

hearing the hearing justice granted the motion. Subsequently, on April 29, 2015, Mr. Jefferson

filed an “Objection to Defense Counsel’s Shatney Memorandum.” On June 2, 2015, a second

hearing was conducted, at which Mr. Jefferson appeared pro se; at the close of that hearing, Mr.

Jefferson’s application for postconviction relief was denied. He filed a notice of appeal on June

19, 2015.



3
       The docket sheet reflects the fact that a motion to withdraw was filed on April 1, 2015,
but only a copy of the memorandum in support of the motion is contained in the record.
4
        We take this opportunity to note our continuing concern with respect to the way our
decision in Shatney v. State, 755 A.2d 130 (R.I. 2000), has been implemented. In our judgment,
too often court-appointed counsel are overly ready to simply file a motion to withdraw and are
not providing applicants for postconviction relief the kind of inquiry into the record, research of
potential grounds for the grant of postconviction relief, and zealous representation to which they
are entitled. While we hold the issue in abeyance at this time, we have grave doubts as to the
continuation of the procedure provided for in Shatney. We tend to think that, as it has been
administered, it has become untenable.


                                               -4-
                                                 II

                                        Standard of Review

       When passing on a hearing justice’s denial of an application for postconviction relief,

“this Court accords great deference to the hearing justice’s findings of fact.” Lynch v. State, 13

A.3d 603, 605 (R.I. 2011). As such, “[t]his Court will uphold the decision absent clear error or a

determination that the hearing justice misconceived or overlooked material evidence.”               Id.

(internal quotation marks omitted). That being said, we will review “de novo any questions of

law or fact pertaining to an alleged violation of an applicant’s constitutional rights.” Id.

                                                 III

                                              Analysis

       We need not address each of Mr. Jefferson’s contentions before this Court due to the fact

that, in our judgment, it was error to deny him representation of counsel and his “opportunity to

be heard in person” when the Parole Board voted to revoke his parole on November 10, 1994.

Morrissey, 408 U.S. at 489. Moreover, in our opinion, his right to counsel under the specific

circumstances of this case was also not provided to him at the April 14, 2014 hearing before the

Parole Board, at which the Parole Board affirmed the denial of his parole.5




5
       We note, initially, that there is no issue as to waiver with respect to Mr. Jefferson’s
contention that his due process rights were violated. He clearly raised the violation of his due
process rights in his application for postconviction relief, and he specifically cited Morrissey v.
Brewer, 408 U.S. 471 (1972), in that same application.
       We deem it prudent to add that, in our judgment, Mr. Jefferson’s contention in his pro se
application for postconviction relief that his constitutional rights were violated, and his mention
of due process specifically, are sufficient, on the specific facts of the instant case, to preserve his
contention that the ex post facto clause of the United States Constitution was violated when his
parole was revoked and he was denied the possibility of parole in the future. We take no position
on the merits of that contention at this time.



                                                 -5-
       The United States Supreme Court in Morrissey, 408 U.S. at 489, set forth what is

minimally necessary to comply with the requirements of the due process clause of the Fourteenth

Amendment of the United States Constitution in the context of parole revocation.          For the

purposes of this opinion, we will focus only on the requirements set forth therein with respect to

the final revocation hearing, as those are the pertinent requirements for this case.6 It appears

from the facts of this case that, after Mr. Jefferson’s preliminary parole revocation hearing,

which took place on December 13 and December 29, 1993, he was in essence given two final

parole revocation hearings on November 10, 1994 and April 14, 2014. The United States

Supreme Court in Morrissey stated that, for a final parole revocation hearing, the minimum

requirements of due process are as follows:

               “(a) written notice of the claimed violations of parole;
               (b) disclosure to the parolee of evidence against him;
               (c) opportunity to be heard in person and to present witnesses and
               documentary evidence; (d) the right to confront and cross-examine
               adverse witnesses (unless the hearing officer specifically finds
               good cause for not allowing confrontation); (e) a ‘neutral and
               detached’ hearing body such as a traditional parole board,
               members of which need not be judicial officers or lawyers; and
               (f) a written statement by the factfinders as to the evidence relied
               on and reasons for revoking parole.” Morrissey, 408 U.S. at 489.

It necessarily follows that Mr. Jefferson was entitled to each of the just-quoted requirements at

his final parole revocation hearings.




6
         The United States Supreme Court in Morrissey, 408 U.S. at 485-87, also set forth the
requirement of a preliminary hearing and specific details as to the requirements of due process at
such a hearing. We acknowledge that, in his pro se application for postconviction relief, Mr.
Jefferson referenced what he contended were errors at his preliminary hearing, which took place
on December 13 and December 29, 1993 in Pennsylvania. However, before this Court he
restricts his argument to the final parole revocation hearings, and we will likewise restrict our
review to those hearings. See Rice v. State, 38 A.3d 9, 16 n.10 (R.I. 2012) (“We note that this
Court will deem as waived issues that the appellant fails to brief * * *.”).


                                              -6-
       However, in Morrissey, the Supreme Court specifically opted not to pass on “the question

whether the parolee is entitled to the assistance of retained counsel or to appointed counsel if he

is indigent.” Id. The United States Supreme Court has never held that a parolee is entitled in

every case to representation by an attorney at a final parole revocation hearing; rather, that Court

has held that “the decision as to the need for counsel must be made on a case-by-case basis in the

exercise of a sound discretion by the state authority charged with responsibility for administering

the probation and parole system.” Gagnon v. Scarpelli, 411 U.S. 778, 790 (1973).7 The

Supreme Court went on to explain that “[a]lthough the presence and participation of counsel will

probably be both undesirable and constitutionally unnecessary in most revocation hearings, there

will remain certain cases in which fundamental fairness—the touchstone of due process—will

require that the State provide at its expense counsel for indigent probationers or parolees.” Id.

The Supreme Court further stated, in Gagnon, that:

               “Presumptively, it may be said that counsel should be provided in
               cases where, after being informed of his right to request counsel,
               the probationer or parolee makes such a request, based on a timely
               and colorable claim * * * that, even if the violation is a matter of
               public record or is uncontested, there are substantial reasons which
               justified or mitigated the violation and make revocation
               inappropriate, and that the reasons are complex or otherwise
               difficult to develop or present.” Gagnon, 411 U.S. at 790; see also
7
        Subsequent to the Supreme Court’s opinion in Gagnon v. Scarpelli, 411 U.S. 778 (1973),
Congress passed the United States Parole Commission and Reorganization Act, Pub. L. No. 94-
233, 90 Stat. 228 (1976), which requires representation by an attorney at a parole revocation
hearing if the parolee so desires. See Jones v. State, 560 A.2d 1056, 1057 n.1 (Del. 1989).
Despite the passage of said act, Gagnon remains good law with respect to whether or not the
United States Constitution requires the opportunity to be represented by counsel at a final parole
revocation hearing. It is further noteworthy that the Supreme Court has reaffirmed the holding in
Gagnon in more recent cases. See Turner v. Rogers, 564 U.S. 431, 443 (2011) (“[T]he Court has
held that a criminal offender facing revocation of probation and imprisonment does not
ordinarily have a right to counsel at a probation revocation hearing.”) (emphasis in original)
(citing Gagnon, 411 U.S. at 790); Black v. Romano, 471 U.S. 606, 612 (1985) (“[T]he
probationer has a right to the assistance of counsel in some circumstances.”) (citing Gagnon, 411
U.S. at 790).


                                               -7-
               United States v. Dodson, 25 F.3d 385, 388-89 (6th Cir. 1994);
               Gibbs v. State, 760 A.2d 541, 543 (Del. 2000); Walker v. Forbes,
               790 S.E.2d 240, 244 (Va. 2016).

       We consider to be noteworthy the United States Supreme Court’s explicit

acknowledgment in Gagnon that there will arise some cases whose complexity calls for

providing counsel to a parolee at a parole revocation hearing. In our judgment, the instant case is

on its face one of particular factual and legal complexity, and it is our view that in this case

petitioner should be represented by counsel before the Parole Board if he so chooses. See

Gagnon, 411 U.S. at 789 (“The need for counsel at revocation hearings derives, not from the

invariable attributes of those hearings, but rather from the peculiarities of particular cases.”)

(emphasis added). We expressly refrain from formulating any broader rule in these premises; we

restrict ourselves to the case at hand. In support of our conclusion, we note that, according to the

several letters Mr. Jefferson attached to his “Objection to Defense Counsel’s Shatney

Memorandum,” he specifically requested counsel, in writing and on more than one occasion,

prior to the April 14, 2014 hearing before the Parole Board. In support of his request for an

attorney, Mr. Jefferson cited the fact that he was contending that he had been “wrongly convicted

of [the] ‘trigger’ offense;” he further cited the “complex issues involved” in the case, and he

made specific mention of the applicability of § 13-8-14(b).

       It is clear from the record that, when the Parole Board first revoked Mr. Jefferson’s

parole on November 10, 1994, at his first final parole revocation hearing, he was not “heard in

person” because he was incarcerated in Pennsylvania at the time, nor was he represented by

counsel in connection with his parole revocation. Morrissey, 408 U.S. at 489. Consequently, it

does not appear that Mr. Jefferson’s due process rights, detailed in Morrissey, and his right to an

attorney, recognized in Gagnon, were complied with at the time of the initial revocation of his




                                               -8-
parole by the Rhode Island Parole Board in 1994. Moreover, after Mr. Jefferson completed his

sentence in Pennsylvania and was transported back to Rhode Island, he appeared before the

Parole Board for what appears to have been a second final parole revocation hearing, at which

appearance the Parole Board affirmed the revocation of his parole. There is no indication that he

was represented by counsel at that hearing despite his numerous requests for counsel. It was

error for the Parole Board to deny Mr. Jefferson counsel at the April 14, 2014 hearing.

       Without addressing the constitutionality of § 13-8-14(b) as applied to Mr. Jefferson, we

note that the applicability of § 13-8-14(b) to Mr. Jefferson turns in part on whether the offense

for which he was convicted in Pennsylvania (aggravated assault) constitutes “a crime of violence

as defined in § 11-47-2.” The consequences of this determination are obviously severe—viz.,

whether Mr. Jefferson will ever be eligible for parole or whether he must serve his life sentence

without the possibility of parole.    Under these circumstances, we are of the opinion that

fundamental fairness and due process require that counsel be provided to him. We deem it error,

therefore, for the Parole Board to have denied him counsel at the November 10, 1994 hearing

and the April 14, 2014 hearing.

       Accordingly, we remand this case to the Superior Court with instructions that it remand

the case to the Parole Board to conduct a new parole revocation hearing.

                                               IV

                                           Conclusion

       For the reasons stated herein and due to the especially complex nature of this case, we

vacate the judgment of the Superior Court; and we remand the record to that tribunal with

instructions that it remand the case to the Parole Board to conduct a new parole revocation




                                              -9-
hearing which complies with the requirements of due process and the right to be represented by

counsel if Mr. Jefferson so chooses.



       Chief Justice Suttell, concurring in part and dissenting in part. Although I concur

with the majority’s holding to vacate the judgment of the Superior Court, I respectfully dissent

from its mandate to remand the case to the Superior Court with instructions that it in turn remand

the case to the Parole Board to conduct a new parole-revocation hearing. In my view, the

decision to hold a new parole hearing is, at best, premature at this juncture. Significantly, this

Court has not been provided with a record of the proceedings before the Parole Board.

       Moreover, the Board’s discretion was severely constricted under the circumstances of this

case. Mr. Jefferson’s conviction of aggravated assault in Pennsylvania conclusively establishes

the fact that he indeed violated the conditions of his parole. Under the provisions of G.L. 1956

§ 13-8-14(b), the conviction automatically triggers his parole revocation and precludes his

eligibility for future parole. The only statutory question that must be resolved is whether the

Pennsylvania conviction constitutes “a crime of violence as defined in § 11-47-2[.]” Section 13-

8-14(b). The ultimate resolution of that issue is a question of law properly cognizable in the

Superior Court in the context of a petition for postconviction relief.         So too must any

constitutional question be resolved by the courts, not by the Parole Board.

       I join my dissenting colleague, however, in her assessment that Jefferson was

ignominiously “Shatneyed.” In the interest of justice, therefore, I would vacate the judgment

denying Jefferson’s application for postconviction relief and remand the case to the Superior

Court for a new hearing with appointed counsel. I further endorse my dissenting colleague’s

elegy for the procedures this Court adopted in Shatney v. State, 755 A.2d 130 (R.I. 2000).




                                              - 10 -
       Justice Goldberg, dissenting. The majority has erred in this case; it has reached issues

of constitutional dimension that were not raised by the parties and are not properly before the

Supreme Court or even necessary to our decision, and it has decided them wrongly. The

majority’s decision amounts to a judicial amendment of the general laws relative to parole

revocation, and will adversely affect the orderly procedures of the Parole Board. I am therefore

compelled to write separately in an effort, at the very least, to illuminate where the majority

opinion has gone off the rails.

                  Parole Revocation is Governed by Statute in Rhode Island

       The majority opinion references the minimum due-process requirements for parole-

revocation proceedings set forth by the United States Supreme Court in Morrissey v. Brewer, 408

U.S. 471 (1972), and declares that Jefferson was entitled to each of those requirements at his

final parole hearing and also holds that “it was error to deny [Jefferson] representation of counsel

and his ‘opportunity to be heard in person’ when the Parole Board voted to revoke his parole on

November 10, 1994.” (Quoting Morrissey, 408 U.S. at 489.) The majority opinion ignores the

holding in Morrissey that procedural guarantees in the parole-revocation context, as mandated by

the Due Process Clause, fall upon the states and that at the time Morrissey was promulgated,

most states already had procedural protections in place. Id. at 484. “What is needed is an

informal hearing structured to assure that the finding of a parole violation will be based on

verified facts and that the exercise of discretion will be informed by an accurate knowledge of

the parolee’s behavior.” Id. The concerns in Morrissey centered on the potential for arbitrary

revocation decisions based on putative violations of the conditions of one’s parole.            The

“discretionary aspect of the revocation decision need not be reached unless there is first an



                                               - 11 -
appropriate determination that the individual has in fact breached the conditions of parole.” Id.

at 483-84 (emphasis added). The Supreme Court also recognized the public’s interest “in not

having parole revoked because of erroneous information or because of an erroneous evaluation

of the need to revoke parole, given the breach of parole conditions.”        Id. at 484 (emphasis

added). None of these salutary considerations concern the commission of a new felony crime by

the parolee and the statutory consequences of that crime; which is the case before us on appeal.

       The appellants in Morrissey were returned to prison by the Iowa Board of Parole as

parole violators—without a hearing or opportunity to be heard—not for the commission of new

criminal offenses, but for alleged violations of the conditions of parole set forth in their parole

officers’ reports, including, inter alia, the unauthorized purchase of a motor vehicle, use of an

assumed name to obtain credit and a driver’s license, and leaving the territorial limits of the

county without consent. Morrissey, 408 U.S. at 474. The Supreme Court declared that the

liberty interest in remaining on parole was sufficient to require minimum due-process

protections. Id. at 483-84. The Court was confronted with prisoners who were accused of

violating the conditions of their parole, not individuals convicted of violent felony crimes.

Notwithstanding this distinction, the overriding emphasis of the Supreme Court as set forth

repeatedly in Morrissey was the declaration that “there is no thought to equate this second stage

of parole revocation to a criminal prosecution in any sense. It is a narrow inquiry * * *. * * *

We have no thought to create an inflexible structure for parole revocation procedures.”

Id. at 489, 490. The majority opinion misconstrues the seminal holding in Morrissey.

       This Court has long recognized “that revocation proceedings must accord the parolee a

minimum degree of due-process protection.” Gaze v. State, 521 A.2d 125, 127 (R.I. 1987). The

issues in this case, however, are wholly unrelated to the minimum due-process requirements for




                                              - 12 -
revocation hearings. The majority overlooks the fact that Jefferson’s parole and its revocation

were governed by the law of the Commonwealth of Pennsylvania and the then-existing Rhode

Island “Uniform Act for Out of State Parolee Supervision,” under which Jefferson was afforded

an evidentiary hearing with the benefit of counsel before he was declared in violation of his

parole. Jefferson was then convicted in Pennsylvania of the underlying offense that gave rise to

the violation, and sentenced to twenty years imprisonment. This conviction and sentence, of

course, obviated any due-process requirement for a prompt resolution of the parole revocation

issue. See Moody v. Daggett, 429 U.S. 78, 85 n.7 (1976) (criminal conviction serves to eliminate

the need for a preliminary parole-revocation hearing as required by Morrissey because the

conviction supplies the parole authority with the requisite probable cause to believe parolee

committed acts that would constitute a violation of the conditions of his or her parole).

       In 1994, when the Parole Board voted to revoke Jefferson’s parole, Jefferson had been

found guilty in Pennsylvania, beyond a reasonable doubt, of the offense of aggravated assault, an

offense classified as a violent felony crime. Despite the finality of this criminal conviction, the

majority decrees, sua sponte, that in 1994, while incarcerated in Pennsylvania, in accordance

with the Uniform Act, the Due Process Clause of the United States Constitution mandated that

Jefferson was entitled to be provided with, inter alia, written notice of the claimed violation and

the evidence against him, as well as an opportunity to be heard in person, present witnesses and

documentary evidence, and confront and cross-examine the witnesses against him. The majority

has declared, without any analysis, that the Due Process Clause mandates that Jefferson be

afforded the opportunity to relitigate the merits of the Pennsylvania conviction. The majority is

incorrect. This holding misconstrues the Supreme Court’s jurisprudence and this Court’s

holdings in the area of parole revocation.




                                               - 13 -
        Furthermore, the majority goes on to declare that in 2014—after he served the entire

sentence in Pennsylvania—minimum due process required that Jefferson be afforded counsel,

notice of the evidence, an opportunity to be heard in person, and the right to confront and cross-

examine adverse witnesses, as well as the right to relitigate the merits of that offense. The

majority opinion ignores the requirements of G.L. 1956 § 13-8-14(b), the statute under review in

this case, and imposes requirements that will drastically alter the manner in which the Parole

Board conducts parole-revocation proceedings. The opinion amounts to a judicial amendment of

the parole statute.

        Parole revocation has long been recognized as a “nonadversarial, administrative process[]

established by the States” that is “predictive and discretionary,” designed “to promote the best

interests of both parolees and society * * *.” Pennsylvania Board of Probation and Parole v.

Scott, 524 U.S. 357, 366, 367 (1998) (quoting Gagnon v. Scarpelli, 411 U.S. 778, 787-88

(1973)).   Indeed, the Supreme Court has refused “to intrude into the States’ correctional

schemes[,]” recognizing that “States have wide latitude under the Constitution to structure parole

revocation proceedings.” Id. at 365, 367.

        In this state, the parole system is a creature of the Legislature. One who is imprisoned as

a result of a criminal conviction is “turned over to an administrative agency for the execution of

the sentence.” State v. Fazzano, 96 R.I. 472, 478, 194 A.2d 680, 684 (1963). Parole is a

legislatively-created system, governed by chapter 8 of title 13 of the general laws, whereby the

prisoner is granted conditional release to serve the remainder of the sentence outside the confines

of the prison, but under the supervision and upon conditions of the Parole Board, an

administrative body created by the Legislature. “Courts have no power to determine the

penological system; this is within the exclusive jurisdiction of the [L]egislature.” Fazzano, 96




                                               - 14 -
R.I. at 478, 194 A.2d at 684. This Court has adopted a “hands-off” policy when dealing with

Parole Board proceedings, and has consistently expressed our reluctance to interfere with this

orderly, legislatively-created structure. State v. Ouimette, 117 R.I. 361, 363, 367 A.2d 704, 706

(1976). “This [C]ourt has previously acknowledged a historically hands-off policy with respect

to board proceedings ‘and the overall reluctance to interfere with what must necessarily be

highly discretionary decisions.’” Pine v. Clark, 636 A.2d 1319, 1324 (R.I. 1994) (quoting

Ouimette, 117 R.I. at 363, 367 A.2d at 706). At no time in the thirty-plus years since our holding

in Gaze, in which we acknowledged that basic due-process requirements were required in parole-

revocation proceedings, has this Court had occasion to interfere with the proceedings of the

Parole Board. See Gaze, 521 A.2d at 127. We certainly have never ventured into this area in the

absence of a justiciable issue, with no briefing by the parties. In this appeal, without any

analysis, the majority has judicially altered the procedures of the Parole Board and, with no

record before us, concluded that the Parole Board violated Jefferson’s constitutional rights.

       Parole-revocation hearings are administrative in nature and governed by statute.

Section 13-8-18 provides that a majority of the members of the Parole Board may, in accordance

with the provisions of § 13-8-18.1, revoke any permit issued to any prisoner under its

jurisdiction. Section 13-8-18.1 sets forth in detail the process under which the Parole Board may

exercise its broad discretion. Section 13-8-18.1 is set forth in its entirety here because several of

its provisions have a direct bearing on this case:

               “13-8-18.1. Preliminary parole violation hearing.

               “(a) As soon as is practicable after a detention for an alleged
               violation of parole, the parole board shall afford the alleged parole
               violator a preliminary parole revocation hearing before a hearing
               officer designated by the board. Such hearing officer shall not




                                                - 15 -
have had any prior supervisory involvement over the alleged
violator.

“(b) The alleged violator shall, within five (5) days of the
detention, in Rhode Island be given written notice of the time,
place and purpose of the preliminary hearing. The notice shall state
the specific conditions of parole that are alleged to have been
violated and in what manner. The notice shall also inform the
alleged violator of the following rights in connection with the
preliminary hearing:

       “(1) The right to appear and speak in his/her own behalf;
       “(2) The right to call witnesses and present evidence;
       “(3) The right to confront and cross-examine the witnesses
       against him/her, unless the hearing officer finds on the
       record that a witness may be subjected to risk of harm if his
       or her identity is revealed; and
       “(4) The right to retain counsel and, if unable to afford
       counsel, the right under certain circumstances to the
       appointment of counsel for the preliminary hearing.

        “The determination of whether or not the alleged violator is
entitled to appointed counsel, if such a request is made, shall be
made on the record and in accordance with all relevant statutory
and constitutional provisions.

“(c) The notice form must explain in clear and unambiguous
language the procedures established by the parole board
concerning an alleged violator’s exercise of the rights denominated
in subsection (b), including the mechanism for compelling the
attendance of witnesses, the mechanism for obtaining documentary
evidence, and the mechanism for requesting the appointment of
counsel.

“(d) The preliminary hearing shall take place no later than ten (10)
days after service of notice set forth in subsection (b). A
preliminary hearing may be postponed beyond the ten (10) day
time limit for good cause at the request of either party, but may not
be postponed at the request of the state for more than five (5)
additional days. The parole revocation charges shall be dismissed



                               - 16 -
with prejudice if a preliminary hearing is not conducted within the
time period established by this paragraph, not including any delay
directly attributed to a postponement requested by the alleged
violator.

“(e) If the alleged violator has requested the appointment of
counsel at least five (5) days prior to the preliminary hearing, the
preliminary hearing may not proceed without counsel present
unless the hearing officer finds on the record, in accordance with
all relevant statutory and constitutional provisions, that the alleged
violator is not entitled to appointed counsel. If the alleged violator
is found to have been entitled to counsel and no such counsel has
been appointed, the parole violation charges must be dismissed
with prejudice. If the request for counsel was made four (4) or
fewer days in advance of the preliminary hearing, the time limit
within which the preliminary hearing must be held may be
extended up to five (5) additional days.

“(f) The standard of proof at the preliminary hearing shall be
probable cause to believe that the alleged violator has violated one
or more conditions of his or her parole and that the violation or
violations were not de minimus in nature. Proof of conviction of a
crime committed subsequent to release on parole shall constitute
probable cause for the purposes of the preliminary hearing.

“(g) At the preliminary hearing, the hearing officer shall review
the violation charges with the alleged violator, direct the
presentation of the evidence concerning the alleged violation,
receive the statements of the witnesses and documentary evidence,
and allow cross-examination of those witnesses in attendance. All
proceedings shall be recorded and preserved.

“(h) At the conclusion of the preliminary hearing, the hearing
officer shall inform the alleged violator of his or her decision as to
whether there is probable cause to believe that the alleged violator
has violated one or more conditions of his or her parole and, if so,
whether the violation or violations were de minimus in nature.
Those determinations shall be based solely on the evidence
adduced at the preliminary hearing. The hearing officer shall state
in writing the reasons for his or her determinations and the



                                - 17 -
              evidence relied upon for those determinations. A copy of the
              written findings shall be sent to the alleged violator, and his or her
              counsel if applicable, within fourteen (14) days of the preliminary
              hearing.

              “(i) If the hearing officer finds that there is no probable cause to
              believe that the alleged violator has violated one or more
              conditions of his or her parole or that the violation or violations, if
              any, were de minimus in nature, the parole chairperson shall
              rescind the detention warrant and direct that the alleged violator,
              unless in custody for other reasons, be released and restored to
              parole supervision.

              “(j) If the hearing officer finds that there is probable cause to
              believe that the alleged violator has violated one or more
              conditions of his or her parole and that the violation or violations
              were not de minimus in nature, the alleged violator shall be held
              for a final parole revocation hearing. A final parole revocation
              hearing must be held as soon as is practicable, but in no event more
              than ninety (90) days after the conclusion of the preliminary
              hearing.

              “(k) An alleged violator may waive his or her right to a preliminary
              hearing. Such a waiver must be in written form. In the event of
              such a written waiver, a final parole revocation hearing must be
              held as soon as is practicable, but in no event more than ninety (90)
              days after the right to a preliminary hearing is waived.
              Notwithstanding the above, a final parole revocation hearing may
              be continued by the alleged violator beyond the ninety (90) day
              time period.” (Emphasis added.)

       The majority opinion wholly overlooks this statute, in which the Legislature has enacted

a comprehensive and efficient procedure for the Parole Board to address parole violations. This

Court should refrain from entering these waters. First, clearly, the parolee’s due-process rights

to notice and an opportunity to be heard and to confront one’s accusers, as set forth in

§ 13-8-18.1(a) and (b), mirrors the Supreme Court’s pronouncement in Morrissey, 408 U.S.

at 489. Second, the parolee’s right to counsel and right “under certain circumstances to the


                                              - 18 -
appointment of counsel” also are provided by statute. See § 13-8-18.1(b)(4). Critically, for

purposes of this case, § 13-8-18.1(e) provides that “[i]f the alleged violator is found to have been

entitled to counsel and no such counsel has been appointed, the parole violation charges must be

dismissed with prejudice.” (Emphasis added.) Alarmingly, with no record of the Parole Board

proceeding, the majority has concluded that Jefferson was entitled to counsel, and that no such

counsel was appointed.

                                  Jefferson’s Parole Violation

       To begin with, we have no record in this case and, with the exception of the documents

attached to Jefferson’s pro se application for postconviction relief, we have no idea what

occurred before the Parole Board in 1994, and again in 2014, twenty years after the conviction

that gave rise to Jefferson’s parole revocation. What is clear in these paltry materials is that

Jefferson sought to relitigate the merits of his Pennsylvania criminal conviction before the Parole

Board and again in Superior Court on postconviction relief, where he alleged actual innocence to

those charges. The majority has declared that it was error for the Parole Board to deny Jefferson

counsel and an opportunity to be heard in person when the Parole Board voted to revoke his

parole on November 10, 1994, and again at the 2014 hearing. The majority also concludes that

Jefferson was entitled to disclosure of the evidence against him, the right to confront and cross-

examine adverse witnesses, and a written statement of the evidence relied upon in revoking his

parole. The majority is mistaken. The Pennsylvania conviction is conclusive on the question of

whether Jefferson committed a parole violation. See § 13-8-18.1(f). In the usual course of

events, when confronted with a finding of probable cause to conclude that the parolee has

violated a condition of his or her parole, the Parole Board, in a final hearing, would determine




                                               - 19 -
whether Jefferson’s parole permit should be revoked. In the case of a criminal conviction, the

parolee is not entitled to relitigate the merits of the conviction.

        However, because Jefferson was serving a sentence of life imprisonment when he was

granted parole, the Parole Board’s discretion was limited. The only question before the Parole

Board was whether Jefferson’s felony conviction in Pennsylvania for aggravated assault falls

within the provisions of § 13-8-14(b). This is a question of law. The majority opinion ignores

the provisions of this statute that are triggered upon conviction of a violent crime while on

parole, by one serving a sentence of life imprisonment, and “shall constitute an automatic

revocation of parole and the prisoner shall not be eligible for parole thereafter.” (Emphasis

added.) This is the controlling statutory provision before this Court.

        Section 13-8-14(b) provides, in its entirety:

                “In the case of a prisoner sentenced to imprisonment for life who is
                released on parole and who is subsequently convicted of a crime of
                violence as defined in § 11-47-2, the conviction shall constitute an
                automatic revocation of parole and the prisoner shall not be
                eligible for parole thereafter.”

        After his term of incarceration in Pennsylvania, Jefferson was returned to Rhode Island

and appeared before the Parole Board on April 14, 2014; he was subsequently informed that the

Parole Board voted to affirm his 1994 parole revocation. It is fair to say that, in the face of a

final criminal conviction for a violent felony, the board had no discretion but to inform Jefferson

that the provisions of § 13-8-14(b) applied to him.

        The operative language in § 13-8-14(b) is that “the conviction shall constitute an

automatic revocation of parole[.]” (Emphasis added.) A conviction for a crime of violence, as

enumerated in § 11-47-2, is conclusive. Because the Pennsylvania conviction is accorded full

faith and credit, no court or administrative body would look behind the judgment to determine




                                                 - 20 -
whether there is probable cause to conclude that the parolee violated parole. The majority’s

suggestion that Morrissey mandates or even permits the Parole Board to look beyond the

conviction and permit Jefferson to confront his accusers twenty years after the conviction simply

is wrong. See Lee v. Gough, 86 R.I. 23, 32, 133 A.2d 779, 783 (1957) (considering parole to be

void as of the date of subsequent criminal conviction); see also State v. Seamans, 935 A.2d 618,

622 (R.I. 2007) (admission of guilt to the underlying offense is tantamount to admission of fault

with respect to probation violation). Furthermore, the Legislature has addressed the effects of a

criminal conviction in the parole violation context: Section 13-8-18.1(f) provides, in relevant

part, that “[p]roof of conviction of a crime committed subsequent to release on parole shall

constitute probable cause for the purposes of the preliminary hearing.” Thus, the issue of

whether Jefferson violated his parole in Pennsylvania was conclusive; it is not however, the

controlling issue in this case.

        It is only when a parolee serving a life sentence has been convicted of an enumerated

violent crime that § 13-8-14(b) becomes operative and “shall constitute an automatic revocation

of parole[.]” By employing the term “automatic,” the Legislature has divested the Parole Board

of any discretion in its application. Parole is revoked by operation of law, and the second part of

that section comes into play: “the prisoner shall not be eligible for parole thereafter.” In the case

at bar, it was only after Jefferson was convicted of aggravated assault and sentenced to and

served twenty years in prison in Pennsylvania that the Parole Board entered its final revocation

decision. See Moody v. Daggett, 429 U.S. 78, 87 (1976) (final parole revocation hearing not

constitutionally required until the prisoner is taken into custody as a parole violator).

        Once Jefferson returned to Rhode Island in 2014 as a parole violator, it was incumbent

upon the Parole Board to determine whether the crime of aggravated assault, for which he had




                                                - 21 -
been convicted, fell within the enumerated offenses set forth in § 11-47-2. I am confident that

the Parole Board did not employ the provisions of § 13-8-14(b) in a vacuum and that the

presumption of administrative regularity that generally attaches to the decisions of administrative

bodies obtains in this case. See Ouimette, 117 R.I. at 372, 367 A.2d at 710 (the Court has every

confidence that the Parole Board, charged with significant responsibility, carries out its duties

faithfully according to statutory directions); see generally Gardner v. Cumberland Town

Council, 826 A.2d 972, 978 (R.I. 2003) (broad latitude given to legislative bodies). Furthermore,

and most critically, whether Jefferson’s Pennsylvania conviction fell within the provisions of

§ 11-47-2 is a question of law that is reviewed de novo. The mandate set forth in the majority

opinion requires the Parole Board “to conduct a new parole revocation hearing which complies

with the requirements of due process and the right to be represented by counsel * * *.” The

majority should explicate just what is expected of the Parole Board at this juncture, and how it

should be accomplished.

       Unfortunately, this analysis is not the terminus of my alarm at the degree and breadth of

error in the majority’s opinion.

                                          Waiver

       In a footnote, the majority opinion reaches and then decides the question of whether, in

his pro se application for postconviction relief, Jefferson waived the constitutional claims raised

by his appellate counsel on appeal. Indeed, the majority not only concludes that, by citing

Morrissey, Jefferson “clearly raised the violation of his due process rights”—which is

irrelevant—but with no analysis, discussion, or citation to authority, the majority takes an

unacceptable leap and declares that, by merely mentioning “due process” in his pro se

application for postconviction relief, Jefferson preserved “his contention that the ex post facto




                                              - 22 -
clause of the United States Constitution was violated when his parole was revoked and he was

denied the possibility of parole in the future.” This remarkable holding, set forth in a footnote, is

legally incorrect and overlooks the entire argument by the state, which was based on waiver.

Because the question of waiver forms the basis for the state’s argument in favor of affirming the

judgment of the Superior Court, its resolution belongs in the body of the opinion with

appropriate jurisprudential support and analysis.

       There is no question that, in the ordinary case, the raise-or-waive rule would be a

significant hurdle for Jefferson to overcome. Even Jefferson does not suggest that the mere

mention of the phrase “due process” suffices to overcome the raise-or-waive rule. In his reply

brief to this Court, Jefferson argues against the application of the raise-or-waive rule, not because

the issues were preserved as the majority concludes, but in light of the grave injustices wrought

upon him by the application of Shatney v. State, 755 A.2d 130 (R.I. 2000), to his pro se

application for postconviction relief, such that the question of waiver ought not apply. I agree.

The applicant was denied his statutory right to counsel, and he has every right to have his claims

fully and fairly litigated in the Superior Court.

                                  Shatney Should be Laid to Rest

       I also write separately to express my firm belief that this Court should abrogate the

holding in Shatney, 755 A.2d at 136, in its entirety. This Court’s attempt in Shatney to short-

circuit duplicitous applications for postconviction relief has too often resulted in the denial of an

applicant’s right to collateral review of his or her conviction. Simply put, the ad hoc nature of

Shatney and the questionable procedure in which counsel is appointed to undertake an initial

review of the merits of a case is a procedural and substantive hodgepodge. See Campbell v.

State, 56 A.3d 448, 456 (R.I. 2012) (the Superior Court erroneously interpreted Shatney as




                                                - 23 -
requiring an attorney to report back to the court rather than represent the applicant). It is my

opinion that the salutary goal we aimed to accomplish in Shatney has been misconstrued by the

trial bench, is inconsistently applied, and produces disparate and unjust results. Furthermore, the

Shatney practice overlooks the statutory right of a postconviction-relief applicant in this state to

have the assistance of counsel, and ignores the statutory mandate that the Public Defender shall

be appointed to represent indigent applicants in postconviction-relief cases.

       In the case at bar, in accordance with § 13-8-14(b), as a result of his Pennsylvania

conviction, Jefferson has been denied any further opportunity for release on parole. He filed a

pro se application for postconviction relief, and private counsel was appointed. The record

contains no explanation as to why the Public Defender was not appointed. See G.L. 1956

§ 10-9.1-5. The first order of business was to comply with Shatney’s distasteful gatekeeping

function as a condition precedent to litigating one’s claim. Private counsel was appointed to

determine whether there were any viable issues that would warrant counsel remaining in the

case. Notably, the no-merit review performed by private counsel was based solely on the pro se

application, with no consideration by counsel that other viable grounds for collateral review may

exist such that an amended application was in order.

       Although the Public Defender in practice refuses to take on Shatney cases,

notwithstanding the command of the Legislature that the applicant shall be represented by the

Public Defender, on appeal, after the case has been dismissed, the Public Defender enters the

case, comes before this Court and proceeds to condemn both the trial justice and the Shatney




                                               - 24 -
attorney.1 As a result, in this case and in many others, applicants seeking postconviction relief

are deprived of their right to collateral review of their convictions.

       Additionally, § 10-9.1-6(b) specifically allows for summary dismissal of applications for

postconviction relief on the pleadings where there is no basis for relief. It provides:

               “When a court is satisfied, on the basis of the application, the
               answer or motion, and the record, that the applicant is not entitled
               to post conviction relief and no purpose would be served by any
               further proceedings, it may indicate to the parties its intention to
               dismiss the application and its reasons for so doing. The applicant
               shall be given an opportunity to reply to the proposed dismissal. In
               light of the reply, or on default thereof, the court may order the
               application dismissed or grant leave to file an amended application
               or direct that the proceedings otherwise continue. Disposition on
               the pleadings and record is not proper if there exists a genuine
               issue of material fact.” Section 10-9.1-6(b).

       The distinguishing factor between Shatney and § 10-9.1-6(b) is that the applicant has the

benefit of counsel, and the trial justice, the ultimate factfinder, is not called upon to initiate

summary disposition measures as a condition precedent to collateral review. Accordingly, it is

my opinion that although Shatney was a worthwhile and well-intended effort by this Court, it is

time for Shatney to be assigned to the graveyard of noble causes.

                                             Conclusion

       For the reasons set forth in this opinion, I respectfully dissent in this case. I would vacate

the judgment and remand this case to the Superior Court with directions to appoint counsel for

the applicant and proceed, ab initio, in accordance with the provisions of the Post Conviction

Remedy statute, chapter 9.1 of title 10.

1
  In her reply brief to this Court, counsel for Jefferson declared that “Mr. Jefferson’s court-
appointed post-conviction attorney conducted absolutely no investigation into the case and
determined that the issues raised in his client’s pro se pleadings lacked merit. Likewise, a
Superior Court judge promptly endorsed this erroneous no-merit finding despite the existence of
glaring constitutional issues that appear after reading R.I.G.L. § 13-8-14(b), the statute
implicated in this case.”


                                                - 25 -
STATE OF RHODE ISLAND AND                                  PROVIDENCE PLANTATIONS



                         SUPREME COURT – CLERK’S OFFICE

                                 OPINION COVER SHEET

Title of Case                        Leonard Jefferson v. State of Rhode Island.
                                     No. 2015-323-Appeal.
Case Number
                                     (PM 14-3816)
Date Opinion Filed                   June 7, 2018
                                     Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
                                     Indeglia, JJ.
Written By                           Associate Justice William P. Robinson III

Source of Appeal                     Providence County Superior Court

Judicial Officer From Lower Court    Associate Justice Robert D. Krause
                                     For Petitioner:

                                     Camile A. McKenna
                                     Office of the Public Defender
Attorney(s) on Appeal
                                     For State of Rhode Island:

                                     Aaron L. Weisman
                                     Department of Attorney General




SU-CMS-02A (revised June 2016)
