November 27, 2018



                                                                         Supreme Court

                                                                         No. 2016-117-A.
                                                                         (PM 08-401)


                    Ricardo Hernandez               :

                           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 Tel. 222-3258 of any typographical or other
                      formal errors in order that corrections may be made before the opinion is
                      published.
                                                                   Supreme Court

                                                                   No. 2016-117-A.
                                                                   (PM 08-401)


            Ricardo Hernandez                   :

                      v.                        :

           State of Rhode Island.               :


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

                                           OPINION

       Justice Flaherty, for the Court. Ricardo Hernandez appeals from a judgment of the

Superior Court denying and dismissing his application for postconviction relief. 1 This case came

before this Court for oral argument on October 2, 2018, pursuant to an order directing the parties

to appear and show cause why the issues raised in this appeal should not summarily be decided.

After hearing the arguments of counsel and examining the memoranda filed on behalf of the

parties, we are of the opinion that cause has not been shown, and we proceed to decide the appeal

at this time without further briefing or argument. For the reasons set forth in this opinion, we

vacate the judgment of the Superior Court.




1
  We note that G.L. 1956 § 10-9.1-9 was amended in 2015, and now requires an aggrieved party
to file a petition for certiorari to review the denial of an application for postconviction relief. See
P.L. 2015, ch. 91, § 1; P.L. 2015, ch. 92, § 1. Hernandez’s notice of appeal was filed on April
29, 2010, before this amendment took effect, and therefore his appeal is proper.


                                                 -1-
                                                 I

                                        Facts and Travel

       In 1998, a justice of the Superior Court sentenced Hernandez to sixty-three years to serve

at the Adult Correctional Institutions after a jury found him guilty, in three consolidated criminal

cases, of first degree sexual assault, two counts of second degree sexual assault, assault with

intent to commit murder, assault with intent to commit robbery, unlawful possession of a firearm

by a felon, and assault with a device similar to a firearm. He appealed to this Court, and we

affirmed the conviction. 2 Ten years later, in January 2008, Hernandez filed an application for

postconviction relief, in accordance with G.L. 1956 chapter 9.1 of title 10. A justice of the

Superior Court appointed counsel to represent Hernandez. After a thorough examination of

Hernandez’s claims, postconviction relief counsel opined that the issues that had been raised in

Hernandez’s application were “wholly frivolous, without merit, and neither supported by

existing law, nor by a good faith argument for the extension, modification, or reversal of existing

law.” Counsel further determined that “no other non-frivolous issues or arguments exist which

might arguably support plaintiff’s Petition[,]” and that “trial counsel’s performance was neither

deficient, prejudicial, nor ineffective.” Consequently, and in accordance with the mandate set

forth in Shatney v. State, 755 A.2d 130 (R.I. 2000), counsel moved to withdraw from the case.

       A hearing was held on postconviction relief counsel’s motion to withdraw on April 23,

2010. After counsel explained to the hearing justice his basis for concluding that Hernandez’s

claims for postconviction relief lacked merit, the hearing justice granted his motion. The hearing

justice then reviewed Hernandez’s claims and said that he agreed with counsel that the claims

lacked merit. He informed Hernandez that, if he still wished to pursue his postconviction relief

2
 The underlying facts pertinent to Hernandez’s conviction can be found in State v. Hernandez,
822 A.2d 915 (R.I. 2003).


                                               -2-
claims, he would have to do so without court-appointed counsel. After the hearing justice asked

Hernandez what he wished to do, Hernandez replied that he continued to believe that he had the

right to an attorney to represent him, and that he should not have been charged with attempted

murder for using a BB gun during one of the assaults. The hearing justice responded that

Hernandez’s argument was “wholly and totally without merit[,]” was a matter “set forth to the

finders of fact[,]” and was never raised.   He denied Hernandez’s application for postconviction

relief. Final judgment was entered on that same day, and Hernandez timely appealed to this

Court.

                                                II

                                       Standard of Review

         Pursuant to § 10-9.1-1, postconviction relief is a remedy available to “any person who

has been convicted of a crime and who thereafter alleges either that the conviction violated the

applicant’s constitutional rights or that the existence of newly discovered material facts requires

vacation of the conviction in the interest of justice.” Duvere v. State, 151 A.3d 314, 317 (R.I.

2017) (quoting Lamoureux v. State, 93 A.3d 958, 961 (R.I. 2014)).               An applicant for

postconviction relief bears “[t]he burden of proving, by a preponderance of the evidence, that

such [postconviction] relief is warranted[.]” Navarro v. State, 187 A.3d 317, 325 (R.I. 2018)

(quoting Motyka v. State, 172 A.3d 1203, 1205 (R.I. 2017)). “This Court will not disturb a

[hearing] justice’s factual findings made on an application for post[ ]conviction relief absent

clear error or a showing that the [hearing] justice overlooked or misconceived material evidence

in arriving at those findings.” Id. (quoting Chapdelaine v. State, 32 A.3d 937, 941 (R.I. 2011)).




                                               -3-
                                                 III

                                            Discussion

       Before this Court, Hernandez argues that postconviction relief counsel acted as a mere

screening agent rather than as his advocate, as required under state law. He also contends that

the hearing justice erred when he denied the application without providing Hernandez with

notice of his intent to dismiss the action or granting a continuance to allow Hernandez to respond

to the proposed dismissal. Moreover, Hernandez alleges that the hearing justice failed to probe

the potential existence of genuine issues of material fact.

                                                 A

                                     Appointment of Counsel

       Hernandez argues that postconviction relief counsel acted primarily as a “screening

agent” for the Superior Court and not as his advocate. Specifically, Hernandez maintains that the

attorney who had been appointed to represent him misconstrued, in his memorandum in support

of his motion to withdraw, his role as counsel to conduct an “independent examination” of the

merits of the applicant’s claim. According to Hernandez, this is contrary to the mandate of

§ 10-9.1-5.

       At the outset, we note that we have held that the right to counsel in a postconviction relief

proceeding “is a matter of legislative grace, not constitutional right.” Reyes v. State, 141 A.3d

644, 658 (R.I. 2016) (quoting Campbell v. State, 56 A.3d 448, 454 (R.I. 2012)). “Because the

postconviction remedy amounts to a collateral attack on a conviction, the action is civil in nature,

for which there is no constitutional right to counsel.” Campbell, 56 A.3d at 454 (citing

Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); Bryant v. Wall, 896 A.2d 704, 708 (R.I.

2006); Louro v. State, 740 A.2d 343, 344 n.1 (R.I. 1999)). Despite that, the General Assembly




                                                -4-
has provided that “[a]n 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.” Section 10-9.1-5; see also Reyes, 141 A.3d at 649; Ramirez v. State, 89

A.3d 836, 839 (R.I. 2014); Campbell, 56 A.3d at 454-55. Importantly, neither Shatney

               “nor its progeny contemplates the appointment of an objective or
               independent lawyer who does not represent the applicant, and that
               [g]enerally, Shatney considerations should arise after counsel has
               been appointed in accordance with § 10-9.1-5 and the applicant has
               been provided with a meaningful discussion with counsel about the
               issues that may or may not be suitable grounds for postconviction
               relief.” Navarro, 187 A.3d at 328 (quoting Ramirez, 89 A.3d at
               840).

       In this case, postconviction relief counsel was appointed by the hearing justice. 3 There is

no question about the thoroughness and diligence of counsel’s work—he claimed that he met

with Hernandez at least three times at the ACI; reviewed his application for postconviction relief

along with supporting documents; reviewed and read the police reports and witness statements

from Hernandez’s case; researched all the issues raised in Hernandez’s application; spoke with

pretrial and trial counsel; reviewed the decision from this Court on direct appeal and the briefs

filed in that case; and read the pretrial and trial transcripts. Counsel then determined that

Hernandez’s claims lacked merit and he filed a memorandum to that effect, along with a motion

to withdraw, pursuant to Shatney.

       Critically, however, in that Shatney memorandum, counsel described his role as “for a

limited entry of appearance under the guidelines established by [the] Shatney decision by the

Rhode Island Supreme Court to determine if Mr. Hernandez’[s] post conviction is with merit.”



3
 We note that the record is unclear whether the hearing justice first considered the Public
Defender before opting to appoint private counsel to represent Hernandez, an indigent applicant.


                                               -5-
This is an incorrect interpretation of counsel’s role in representing a postconviction relief

applicant.   As we have indicated in our prior decisions, counsel’s role in representing a

postconviction relief applicant is to be an advocate for his or her client. See Navarro, 187 A.3d at

328 (postconviction relief counsel properly “described his role as being appointed to represent

[applicant] in his postconviction-relief application”); Reyes, 141 A.3d at 659 (in recognition of a

potential conflict between pressing an applicant’s claims that are frivolous and the risk of

sanctions under Rule 11 of the Superior Court Rules of Civil Procedure, “we adopted a

mechanism in Shatney so ‘that an attorney * * * appointed to represent an indigent applicant

may withdraw from that representation when it becomes clear, after a reasonable investigation,

that some or all of the applicant’s claims lack merit’” (emphasis added) (quoting Campbell, 56

A.3d at 455-56)); Campbell, 56 A.3d at 456 (citing post-Shatney decisions by this Court where

counsel had been appointed to represent a postconviction relief applicant, and not as an

independent or objective lawyer). It is true that, as the state argues, counsel’s deficiency is

apparent in but a few lines in an otherwise thorough and comprehensive memorandum.

Nonetheless, the description by counsel of his belief as to his role in this case leads to the

inevitable conclusion that he was not acting as a zealous advocate, despite the meticulous nature

of his work. Therefore, we are constrained to hold that Hernandez was not afforded “a full, fair,

and counselled opportunity” to present his claims before the hearing justice determined them to

be meritless. See Shatney, 755 A.2d at 135 (emphasis added) (quoting Commonwealth v. Harris,

553 A.2d 428, 433 (Pa. Super. Ct. 1989)).




                                               -6-
                                                  B

                     Notice of Dismissal and an Opportunity to be Heard

       Hernandez also argues that he should have been given notice of the hearing justice’s

intent to dismiss his application or a continuance to provide him with the opportunity to respond

to the proposed dismissal. Section 10-9.1-6(b) states the following:

               “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.”

As this Court has recognized, § 10-9.1-6(b) “permits a trial justice to dismiss an application

whenever, based upon the record, the application, and the answer, he finds that no genuine issue

of material fact exists and the applicant is therefore not entitled to relief as a matter of law.”

Palmigiano v. State, 120 R.I. 402, 404, 387 A.2d 1382, 1384 (1978).                “Dismissal under

§ 10-9.1-6(b) is akin to a dismissal under Rule 12(b)(6) of the Superior Court Rules of Civil

Procedure and is subject to the same standard.” Reyes, 141 A.3d at 652.

       This Court has held that “a hearing justice is not obligated to conduct an evidentiary

hearing in connection with an application for postconviction relief if there exists no genuine

issue of material fact; however, the hearing justice must give the applicant an opportunity to

reply to the hearing justice’s proposed dismissal of the application.” Perez v. State, 57 A.3d 677,

681 (R.I. 2013); see also Shatney, 755 A.2d at 135 (“The point in time at which a trial court may

determine that a * * * petitioner’s claims are frivolous or meritless is after the petitioner has been




                                                -7-
afforded a full, fair, and counselled opportunity to present those claims.”) (quoting Harris, 553

A.2d at 433).

       In our opinion, Hernandez was not provided with an opportunity to reply to the hearing

justice’s proposed dismissal of his application for postconviction relief. After the hearing justice

granted counsel’s motion to withdraw, he afforded Hernandez the option to pursue his claims pro

se, but forewarned him that he had determined that his claims were meritless. 4 After that

preface, the hearing justice gave Hernandez an opportunity to respond as to whether he wished to

continue to pursue his claims, to which Hernandez stated that he believed that it was “ludicrous”

that he could be convicted of assault with the intent to commit murder when the weapon that he

had used was a BB gun. After hearing this, the hearing justice stated that his claim was without

merit, and summarily denied his application for postconviction relief.

       By way of contrast, the hearing justice in Perez—after granting counsel’s motion to

withdraw pursuant to Shatney—informed the applicant that the issues he had raised in his

application had no merit. Perez, 57 A.3d at 681. Nonetheless, the hearing justice “generously

allowed [the applicant] to file another memorandum if he wished to further pursue the matter[,]”

cautioning the applicant that if he did not file a memorandum within ten days, his application

would summarily be rejected. Id. Further, despite this admonition, the hearing justice granted a

motion for an extension of time, giving the applicant almost an additional month to file the

supplemental memorandum. Id. When the applicant still failed to file the memorandum by that

time, the hearing justice provided an additional month after that extended deadline before

4
  Before he asked Hernandez what he wished to do, the hearing justice first said, “I can tell you
that the laundry list of claims that you make are meritous [sic].” After combing through each of
Hernandez’s claims, the hearing justice continued, “Mr. Hernandez, if you want to pursue this
thing alone, you can do so. But it is my intention, I’m giving you forewarning right now, I agree
with the claims that have been set forth in the Shatney brief and the comments set forth a few
minutes ago.”


                                               -8-
entering an order denying and dismissing the application. Id. We held that the hearing justice

had afforded the applicant an opportunity to respond to the proposed dismissal of his application

for postconviction relief. Id. at 682; see also Reyes, 141 A.3d at 650-51 (hearing justice—

proposing to dismiss application after granting counsel’s motion to withdraw—gave applicant

approximately six weeks to submit a supplemental memorandum outlining why he was entitled

to postconviction relief and also provided him with an opportunity to be heard again at the

hearing on the state’s motion for summary dismissal of his application).

       Although we have not drawn a bright line between what constitutes an opportunity to

respond and what does not, our case law has stated that the opportunity to respond must be

“meaningful[,]” regardless of the merits of the application. See Campbell, 56 A.3d at 457; Harris

v. State, 973 A.2d 618, 619 (R.I. 2009) (mem.); Mattatall v. State, 966 A.2d 125, 126 (R.I. 2009)

(mem.); Ramirez v. State, 933 A.2d 1110, 1112 n.4 (R.I. 2007). The following exchange

occurred during the hearing on counsel’s motion to withdraw in the present case:

               “THE COURT: * * * I am obliged to give you the opportunity if
               you choose to pursue this on your own.

               “What is your pleasure, sir? What do you want to do?

               “THE DEFENDANT: I still feel that I have the right for an
               attorney to represent me. I feel that I still have a case for post
               conviction. And, Judge, I feel that I was—you know, the lawyer
               did not do a good job in investigating my case. The fact that I was
               charged with attempted murder with a BB gun should have been
               anything—should have been something of assault with a dangerous
               weapon instead of attempted murder. I have never heard of a case
               where a person died as a result of a person getting shot by a BB
               gun. That’s ludicrous within itself. So, I mean, anybody that
               would say I don’t have a case, that’s ludicrous.

               “THE COURT: Is that what you wish to persue [sic], the charge
               was ludicrous, and that’s your claim now? That’s what’s left, that
               this was a ludicrous charge and you should not have been
               prosecuted under that charge?



                                              -9-
               “THE DEFENDANT: Exactly, your Honor.

               “THE COURT: And that’s what you now argue to me?

               “THE DEFENDANT: Yes, sir.

               “THE COURT: That argument is wholly and totally without merit.
               That was a matter that was set forth to the finders of fact, and it
               was a charge brought by the Attorney General’s office and
               presented in full fashion to the jury, with full instructions through
               your attorney, who had an opportunity to appeal that in a direct
               fashion. It was never raised. And to the extent now you claim that
               it is a trumped up charge of some sort is a meritous [sic] argument,
               and I deny your application for Post Conviction Relief.”

       It is our opinion that, after counsel’s motion to withdraw was granted, the hearing justice

did not provide Hernandez with an opportunity, at the very least, to file additional memoranda or

to present an argument. For this reason, we find that Hernandez was not provided a meaningful

opportunity to respond to the hearing justice’s proposed dismissal of the application. 5

                                                IV

                                            Conclusion

       For the reasons set forth in this opinion, we vacate the judgment. Because the applicant

was not afforded counsel in accordance with Shatney, we direct that counsel be appointed in

accordance with § 10-9.1-5 and our holdings in Shatney and its progeny. The papers in this case

are remanded to the Superior Court.




5
  Because we vacate the judgment on these grounds, we need not, and do not, reach Hernandez’s
argument regarding the failure to probe the potential existence of genuine issues of material fact.


                                               - 10 -
STATE OF RHODE ISLAND AND                                  PROVIDENCE PLANTATIONS



                         SUPREME COURT – CLERK’S OFFICE

                                 OPINION COVER SHEET

Title of Case                        Ricardo Hernandez v. State of Rhode Island.
                                     No. 2016-117-A.
Case Number
                                     (PM 08-401)
Date Opinion Filed                   November 27, 2018
                                     Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
                                     Indeglia, JJ.
Written By                           Associate Justice Francis X. Flaherty

Source of Appeal                     Providence County Superior Court

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

                                     William T. Murphy, Esq.
Attorney(s) on Appeal
                                     For State of Rhode Island:

                                     Christopher R. Bush
                                     Department of Attorney General




SU-CMS-02A (revised June 2016)
