                                        Supreme Court

                                        No. 2014-161-Appeal.
                                        (PM 12-4701)



    Pedro Reyes                   :

          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. 2014-161-Appeal.
                                                      (PM 12-4701)
                                                      (Concurrence and dissent begins on page 25)


                Pedro Reyes                    :

                     v.                        :

           State of Rhode Island.              :


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

                                          OPINION

       Justice Indeglia, for the Court. The applicant, Pedro Reyes (Reyes or applicant),

appeals from the denial of his postconviction-relief application. 1 It is Reyes’s contention that his

1994 plea of nolo contendere to the offense of maintaining a narcotics nuisance should be

vacated because the plea was not knowing, intelligent, and voluntary. He also argues that the

hearing justice erroneously entered judgment for the state on his claims of ineffective assistance

of counsel, that the hearing justice failed to consider other arguments, and that the attorney

appointed in connection with his application failed to fulfill his assigned role. This case came

before the Supreme Court for oral argument on December 1, 2015, pursuant to an order directing

the parties to appear and show cause why the issues raised in this appeal should not be

summarily decided. After carefully considering the written and oral submissions of the parties,

we are satisfied 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.

1
  The record is unclear as to Reyes’s full name. Reyes signed his application with the name
Pedro Reyes, but the caption of that document identifies him as Pedro Muriel Reyes.
Additionally, during a change-of-plea hearing in 1994, Reyes indicated that his name was “Pedro
Jaun [sic] Reyes Muriel.” We simply shall refer to applicant as Reyes.

                                              -1-
                                                I

                                        Facts and Travel

       In October 1993, the Attorney General’s Narcotics Strike Force (strike force) was

conducting an investigation into heroin trafficking in an area near Central Falls High School. On

October 5, 1993, Investigator Carl Barovier (Barovier), a member of the strike force, approached

Jose Romero (Romero) to purchase heroin. 2 Romero entered Barovier’s vehicle, and the two

drove to the vicinity of Central Falls High School. After Barovier parked his vehicle, Romero

exited and approached Ismael Cepeda (Cepeda). 3 The two conversed briefly, and then Cepeda

entered a brown Datsun vehicle that was driven by another male. The vehicle drove off,

returning about ten minutes later.    Cepeda exited the vehicle and gave Barovier five bags

containing heroin. Barovier relayed his description of the driver of the Datsun to Inspector

Edward H. Randall (Randall); Randall showed Barovier a photograph of Reyes, and Barovier

identified Reyes as the driver of the Datsun. Reyes was charged, along with Cepeda and

Romero, with conspiracy to distribute heroin within three hundred yards of a school (count 1)

and distribution of heroin within three hundred yards of a school (count 2).

       Reyes was represented with respect to these charges by privately retained counsel (trial

counsel). Eventually, the state dismissed count 2 in accordance with Rule 48(a) of the Superior

Court Rules of Criminal Procedure in exchange for Reyes’s plea of nolo contendere on count 1

to an amended charge of maintaining a narcotics nuisance. The Superior Court file contains two

plea forms executed by Reyes, one in English and the other in Spanish. At the change-of-plea

hearing on October 4, 1994, no Spanish interpreter was present, but the record does not indicate

2
  The facts giving rise to the pertinent offenses with which Reyes was charged have been gleaned
from the criminal-information package.
3
  The record is also unclear as to the precise spelling of Cepeda’s last name; in some documents
it is spelled “Cepeda,” and, in others, “Cepada.”

                                             -2-
that either trial counsel or Reyes requested the assistance of an interpreter. During the plea

colloquy, Reyes was able to respond, in English, to the trial justice’s questions. 4 Reyes provided

his name and date of birth, and he indicated that he wished to change his plea even before trial

counsel responded to that question from the trial justice. Reyes stated that he understood that, by

pleading nolo contendere, he was forfeiting several constitutional rights, and, when asked

whether he had any questions about those rights, he responded that he did not. After the

prosecutor provided the facts in support of the amended charge, Reyes accepted those facts as

true. The trial justice found that Reyes “does have the capacity to understand the nature and

consequences of his plea including but not limited to the waiver of those rights which I have

reviewed with him” and that there was a sufficient factual basis for a plea of nolo contendere.

He therefore accepted Reyes’s plea and sentenced him to a two-year suspended sentence with

three years of probation. In consideration of Reyes’s plea, the state elected to refrain from

presenting Reyes as a violator of a previously imposed probationary sentence.

       Time marched on, and Reyes did not reform his behavior. He subsequently was adjudged

to be a probation violator and served a period of incarceration as a result. Additionally, in 2002,

he was convicted of second-degree murder, discharging a firearm during the commission of a

crime of violence that resulted in death, and carrying a pistol without a license. See State v.

Reyes, 984 A.2d 606, 609, 612 (R.I. 2009). 5 For those charges, Reyes was sentenced to two

consecutive life sentences. Id. The state also sought the imposition of an additional sentence on

the ground that Reyes was a habitual offender under G.L. 1956 § 12-19-21. The conviction

4
   To distinguish between the different Superior Court justices involved in the relevant
proceedings, we refer to the justice who presided over Reyes’s 1994 change-of-plea hearing as
“the trial justice” and the justice who presided over the hearings on his application as “the
hearing justice.”
5
  The facts underlying these convictions are set forth in detail in our opinion affirming his
conviction, State v. Reyes, 984 A.2d 606, 609-12 (R.I. 2009), and need not be repeated here.

                                             -3-
secured by the 1994 nolo contendere plea was one of the predicate offenses that qualified Reyes

as a habitual offender. Reyes received a ten-year sentence on the habitual-offender charge, to be

served concurrently with his second life sentence.

         In September 2012, Reyes filed a pro se application, in which he sought to vacate his

1994 nolo contendere plea. 6        The application set forth several allegations of ineffective

assistance by trial counsel, which fell into two general categories:           failure to adequately

investigate the case and prepare a defense; and failure to communicate with Reyes through an

interpreter so that Reyes could meaningfully participate in the preparation of his defense, even

though, according to Reyes, trial counsel knew that he “barely spoke English.” With respect to

the failure-to-investigate category, Reyes averred that his codefendants in the proceedings that

culminated in his 1994 plea “exonerated [Reyes] at a bail hearing,” but trial counsel failed to

interview these witnesses. One of the paramount allegations in the second category—lack of

communication—was that, because trial counsel failed to engage a translator, he was unable to

adequately inform Reyes about the nature and consequences of his plea. In addition to his

ineffectiveness claims, Reyes also alleged, citing Boykin v. Alabama, 395 U.S. 238 (1969), that

the trial justice erred in accepting his plea because (i) Reyes did not understand the nature of the

amended charge, (ii) the trial justice overlooked the exculpatory statements of Reyes’s

codefendants, and (iii) the lack of factual basis for the plea. In addition to his application, Reyes

also filed a motion for appointment of counsel as an indigent applicant under G.L. 1956 § 10-

9.1-5.

         In accordance with § 10-9.1-5, the hearing justice first referred the matter to the Office of

the Public Defender. Because a conflict of interest precluded a member of that office from

6
  Despite the lag time between the 1994 plea and the filing of the application, the state opted not
to argue below that the application should be dismissed as untimely under the doctrine of laches.

                                               -4-
representing Reyes, an attorney (postconviction counsel) was appointed to represent Reyes in

connection with his application. In connection with his investigation, postconviction counsel

met with Reyes on four occasions; he did not, however, speak with trial counsel. Postconviction

counsel also searched for transcripts or recordings of the allegedly exculpatory bail-hearing

testimony that Reyes claimed was given by his codefendants. Postconviction counsel’s search

revealed that the bail hearing was continued twice with no testimony; the records for the third

and final day of the bail hearing revealed that, once again, no witnesses testified and that the

defendants had admitted that the state had satisfied its burden of showing that bail was not

appropriate. This search led postconviction counsel to conclude that the allegedly exculpatory

bail-hearing testimony did not exist. Because postconviction counsel’s investigation of Reyes’s

claims led him to the conclusion that Reyes’s postconviction claims lacked merit, he moved to

withdraw and filed an accompanying forty-two-page no-merit memorandum explaining the

reasons behind that conclusion, in accordance with the procedure outlined by this Court in

Shatney v. State, 755 A.2d 130 (R.I. 2000). 7




7
  “In Shatney [v. State, 755 A.2d 130 (R.I. 2000)], [this Court] established a procedure by which
an attorney * * * who has been appointed to represent an applicant for postconviction relief may
later seek to withdraw from that representation under specific and limited circumstances[.]”
Campbell v. State, 56 A.3d 448, 455 (R.I. 2012). Specifically, we provided that:
        “[U]pon notice to the applicant, counsel for an applicant may request permission
        from the court to withdraw, based upon an assessment that the application has no
        arguable merit. To do so, however, [postconviction] 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

                                                -5-
       During the hearing on postconviction counsel’s motion to withdraw, Reyes stated that he

had read the no-merit memorandum and had no difficulty understanding its contents. Reyes

acknowledged that the memorandum discussed all of the issues that he sought to raise in his

application. 8 When Reyes cryptically alluded to a letter from postconviction counsel to Reyes

that, according to Reyes, indicated that postconviction counsel represented the state and not

Reyes, the hearing justice properly assured Reyes that postconviction counsel was his attorney.

Reyes objected to the motion to withdraw on the grounds that postconviction counsel failed to

hire an interpreter or an investigator and that he failed to interview trial counsel in connection

with his investigation. Postconviction counsel responded that he did not deem an interview with

trial counsel to be necessary or appropriate based on his conclusion that Reyes knowingly and

voluntarily entered into his plea in 1994. Postconviction counsel also explained that he did not

think that an interpreter was necessary during his meetings with Reyes because Reyes had taken

English classes while incarcerated and his proficiency with the English language allowed


        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.
8
  Postconviction counsel identified twelve claims, many of which overlapped one another, that
Reyes raised in his application: (1) ineffective assistance of counsel in failing to adequately
prepare for representation of Reyes; (2) ineffective assistance of counsel in failing to research
and interview the important state witnesses; (3) ineffective assistance of counsel in trial
counsel’s failure to meet with Reyes and to communicate with him through an interpreter; (4)
ineffective assistance of counsel in failing to file appropriate pretrial motions; (5) Reyes’s plea
was “tainted and coerced” by the illegal and improper actions of the strike force; (6) ineffective
assistance of counsel in allowing Reyes to plead nolo contendere without the assistance of an
interpreter; (7) ineffective assistance of counsel in trial counsel’s failure to discuss the law
governing the crimes with which Reyes was charged; (8) ineffective assistance of counsel in
failing to advise Reyes as to the legal consequences of a plea of nolo contendere; (9) ineffective
assistance of counsel in allowing Reyes to enter his plea when trial counsel knew, or reasonably
should have known, that exculpatory evidence existed that, at the very least, cast reasonable
doubt on Reyes’s guilt; (10) the photo identification in which Reyes was identified as the driver
of the automobile was unconstitutional; (11) the trial justice should not have accepted his plea in
1994 because it was unclear whether Reyes understood the consequences of entering into the
plea; and (12) the trial justice failed to review the case to determine whether Reyes was guilty of
the charged offenses.

                                             -6-
adequate communication between them. Postconviction counsel professed to having “absolutely

no problems communicating with [Reyes] at all.”

         The hearing justice granted the motion to withdraw and explained to Reyes that he could

still proceed pro se on his application or retain another attorney at his own expense.

Additionally, she gave Reyes approximately six weeks to submit a memorandum outlining why

he was entitled to postconviction relief. She also notified him, in accordance with § 10-9.1-6,

that she was inclined to dismiss his application on the merits unless he came forward with

“something of great significance * * * that persuades the [c]ourt that [he] would have gone to

trial” on the 1994 charges. During the hearing, Reyes filed a pro se motion for funds to hire a

private investigator to track down his codefendants from the 1994 case. The hearing justice

denied the motion, concluding that the private investigator’s efforts would reach the same

conclusion that postconviction counsel had reached after his search for the bail-hearing

testimony.

         At the next hearing, Reyes provided a witness statement from Cepeda (Cepeda

statement), one of his codefendants in the 1994 case. 9 In that statement, which was taken over

the telephone by a private investigator, Cepeda explained that he gave testimony to the effect that

he never distributed drugs with Reyes. The hearing justice continued the matter to give the state

adequate time to review the Cepeda statement and to decide how to proceed.

         At the hearing justice’s behest, the state filed a motion for summary dismissal. At the

hearing on the motion for summary dismissal, the hearing justice gave Reyes an opportunity to

be heard. Reyes responded as follows: “I don’t have anything to say right now. Everything that

I wanted to say, I put in the memorandum.” This memorandum mentioned only two documents



9
    See Appendix A.

                                             -7-
in support of it: the Cepeda statement and a notice of the state’s intent to pursue a habitual

offender sentence. The hearing justice determined that there were no genuine issues of material

fact as to any of the claims raised in the application and granted the state’s motion. First, with

respect to the allegations of ineffective assistance of counsel, the hearing justice reasoned that,

because Reyes ultimately received a “less-than-jail sentence on an amended charge” and was not

presented as a probation violator as a result of the plea agreement, Reyes was unable to satisfy

the prejudice prong of the ineffectiveness inquiry. In addition to noting this favorable plea

disposition, she observed that the Cepeda statement was neither an original document nor

executed by Cepeda under the penalty of perjury and that, in any event, it was directed at the

offenses with which Reyes was originally charged. The hearing justice therefore concluded that

the statement “ha[d] no bearing on the amended charge to which [Reyes] pled.”

       With respect to Reyes’s challenge to the adequacy of the 1994 plea colloquy, the hearing

justice, while acknowledging the presence of the Spanish plea form, found no fault in the trial

justice’s colloquy. She noted that there was no evidence in the plea-colloquy transcript that

indicated that Reyes had difficulty understanding the trial justice’s questions; there was no

indication that Reyes needed to speak with trial counsel during the colloquy; no request for an

interpreter was made; and Reyes responded in the affirmative on numerous occasions when

asked by the trial justice whether he understood a particular consequence of his guilty plea. The

hearing justice rejected Reyes’s argument that either the trial justice or trial counsel was required

to inform Reyes about any collateral consequence that might arise from his plea or that it might

form the basis of a habitual-offender sentencing enhancement in the event that Reyes continued

down the criminal path. Ultimately, the hearing justice concluded that Reyes understood the

nature and consequences of his plea and that the plea was voluntary. Accordingly, the hearing




                                              -8-
justice granted the state’s motion for summary judgment and dismissed the application under §

10-9.1-6. Reyes timely appealed. 10

                                                 II

                         Standard of Review for Summary Dismissal

       Before turning to the merits of Reyes’s arguments on appeal, we first set forth the

parameters under which an application can be summarily dismissed under § 10-9.1-6—the

procedure utilized by the hearing justice in this case. Section 10-9.1-6 provides, in pertinent

part, as follows:

                       “(b) 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.

                       “(c) The court may grant a motion by either party for
               summary disposition of the application when it appears from the
               pleadings, depositions, answers to interrogatories, and admissions
               and agreements of fact, together with any affidavits submitted, that
               there is no genuine issue of material fact and the moving party is
               entitled to judgment as a matter of law.”

       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. Palmigiano v. State, 120 R.I.

402, 404-05, 387 A.2d 1382, 1384 (1978). In contrast, summary dismissal under § 10-9.1-6(c)



10
   After Reyes appealed but before oral argument in this case, the General Assembly amended
§ 10-9.1-9 to require a party aggrieved by a final judgment entered in a postconviction-relief
proceeding to seek review by filing a petition for writ of certiorari with this Court. See P.L.
2015, ch. 91, § 1; P.L. 2015, ch. 92, § 1.

                                              -9-
“closely resembles” a grant of summary judgment under Rule 56 of the Superior Court Rules of

Civil Procedure, Palmigiano, 120 R.I. at 405, 387 A.2d at 1384, and “[t]he standards for granting

a § 10-9.1-6(c) [summary dismissal] are identical to those utilized in passing on a summary

judgment motion.”      Palmigiano, 120 R.I. at 406, 387 A.2d at 1385.         Critically, summary

dismissal is improper if a genuine issue of material fact exists. See § 10-9.1-6(c). Thus, a

hearing justice’s role in considering whether to dismiss an application summarily under § 10-9.1-

6(c) is limited to determining whether genuine issues of material fact exist; the hearing justice

cannot resolve those issues or “pass on the weight or credibility of the evidence.” Doyle v. State,

122 R.I. 590, 594, 411 A.2d 907, 909 (1980). On appeal from a summary dismissal under § 10-

9.1-6, “[w]e will uphold the [hearing] justice’s decision only if the record shows that no genuine

issue of material fact exists and the state is entitled to summary disposition as a matter of law.”

Palmigiano, 120 R.I. at 406-07, 387 A.2d at 1385. As in cases in which we review the grant of

summary judgment, our review is de novo. 11 See Estrada v. Walker, 743 A.2d 1026, 1028 (R.I.

1999).

                                                III

                                             Analysis

                                                 A

                                 Sufficiency of Rule 11 Inquiry

         Reyes first contends that his 1994 nolo contendere plea should be vacated because it did

not conform to Rule 11 of the Superior Court Rules of Criminal Procedure and was not a

11
   In past cases involving summary dismissal of an application, we have remarked that we defer
to the factual findings of a hearing justice in the postconviction-relief context. See, e.g., Miguel
v. State, 774 A.2d 19, 21 (R.I. 2001). Although undeniably a correct explication of the manner
in which we review the factual findings of a lower tribunal, this standard of review is inapposite
in cases where the application is summarily dismissed because no such findings can be made by
the hearing justice at this juncture.

                                             - 10 -
knowing, intelligent, and voluntary plea. He argues that the trial justice’s brief colloquy at the

change-of-plea hearing was insufficient to ensure that he understood the nature of the charge and

consequences of his plea and that the trial justice should have exercised his discretion to appoint

an interpreter. At oral argument before this Court, Reyes took his contention one step further,

arguing that, whenever a Spanish language plea form is utilized, a trial justice must appoint an

interpreter even when one is not requested. Neither Rule 11 nor this Court’s jurisprudence

supports such an absolute rule.

       Rule 11 provides in pertinent part:

               “The court * * * shall not accept [a plea of guilty] or a plea of nolo
               contendere without first addressing the defendant personally and
               determining that the plea is made voluntarily with understanding of
               the nature of the charge and the consequences of the plea. * * *
               The court shall not enter a judgment upon a plea of guilty or nolo
               contendere unless it is satisfied that there is a factual basis for the
               plea.”

Rule 11 thus sets forth two prerequisites that must be satisfied at the plea colloquy before a plea

of nolo contendere can be accepted: (1) a determination “that the plea is made voluntarily with

understanding of the nature of the charge and the consequences of the plea”; and (2) a finding

“that there is a factual basis for the plea.” Id. Notably, neither prerequisite imposes the bright-

line rule that Reyes champions before this Court.

       Similarly, this Court has never declared that a trial justice must appoint an interpreter in

every case in which a non-English plea form is utilized. To the contrary, we have held that the

trial justice has discretionary authority to appoint an interpreter, see State v. Ibrahim, 862 A.2d

787, 798 (R.I. 2004), and we afford the the trial justice “‘large discretion’ in the ‘selection,

appointment, and retention of an interpreter.’” State v. Lopez-Navor, 951 A.2d 508, 513 (R.I.




                                             - 11 -
2008) (quoting State v. Deslovers, 40 R.I. 89, 115, 100 A. 64, 73 (1917)). 12 Absent “clear

evidence of prejudice, we will not disturb the trial justice’s discretion.” Id.

        In this case, “it is not readily apparent [from our review of the transcript of Reyes’s

change-of-plea hearing] that [Reyes] did not have a basic, functional understanding of English.”

Ibrahim, 862 A.2d at 798. Reyes answered all of the questions posed to him, and there is no

indication that he was confused or had difficulty understanding the discourse at any point during

the hearing. Reyes contends that the transcript of the change-of-plea colloquy “suggest[s] a lack

of actual understanding since his responses [to the trial justice’s questions] were all non-

descriptive ‘Yes’ and ‘No’ answers.” We disagree. When the trial justice asked whether Reyes

wished to change his plea, Reyes answered affirmatively even before trial counsel was able to do

so. Reyes also provided, without any apparent difficulty, his name and date of birth upon

request. We glean nothing from the record to suggest that anything occurred at the hearing to put

the trial justice on notice to inquire further into whether Reyes required an interpreter. In short,

there is nothing in this record that suggests that the trial justice abused his discretion by failing

sua sponte to appoint an interpreter.

        We are also convinced that the change-of-plea colloquy otherwise satisfied Rule 11 and

that Reyes’s plea was knowing, intelligent, and voluntary. The trial justice explained to Reyes

that he was forfeiting several constitutional rights by entering a plea of nolo contendere, and he

ensured that Reyes had no questions about those rights and understood the consequences of his

plea.   Additionally, the state recited the facts supporting the amended charge, Reyes

acknowledged that those facts were true, and the trial justice found that there was a factual basis

for the plea. See Rodrigues v. State, 985 A.2d 311, 315 (R.I. 2009) (“This Court ‘shall not

12
   General Laws 1956 chapter 19 of title 8 is not implicated in this case because Reyes entered
his plea before the effective date of that chapter.

                                              - 12 -
vacate a plea unless the record viewed in its totality discloses no facts that could have satisfied

the trial justice that a factual basis existed for a defendant’s plea.’” (quoting State v. Frazar, 822

A.2d 931, 935-36 (R.I. 2003))). Finally, the trial justice explained to Reyes the sentence that he

would be imposing and ensured that Reyes had no questions about the consequences of the

suspended sentence and accompanying probationary term. On this record, we must conclude

that the trial justice’s finding that Reyes understood the nature and consequences of his plea is

unassailable.

                                                  B

                                Ineffective Assistance of Counsel

       Reyes next contends that the hearing justice improperly dismissed his claims of

ineffective assistance of counsel because a genuine issue of material fact existed that precluded

summary dismissal. Before addressing the propriety of the summary dismissal of his claims,

however, we first briefly clarify the legal framework under which such a claim must be decided.

       It is well established that, in this jurisdiction, ineffective-assistance-of-counsel claims are

assessed under the familiar two-pronged test announced by the United States Supreme Court in

Strickland v. Washington, 466 U.S. 668, 687 (1984). See Bido v. State, 56 A.3d 104, 110 (R.I.

2012); Brown v. Moran, 534 A.2d 180, 182 (R.I. 1987); Barboza v. State, 484 A.2d 881, 883-84

(R.I. 1984). Under this framework, an applicant for postconviction relief first “must establish

that counsel’s performance was constitutionally deficient; ‘[t]his requires [a] showing that

counsel made errors so serious that counsel was not functioning as the counsel guaranteed * * *

by the Sixth Amendment.’” Bido, 56 A.3d at 110-11 (quoting Neufville v. State, 13 A.3d 607,

610 (R.I. 2011)); see also Strickland, 466 U.S. at 687. To satisfy the performance prong, “the

[applicant] must show that counsel’s representation fell below an objective standard of




                                              - 13 -
reasonableness.” Strickland, 466 U.S. at 688. Courts evaluate counsel’s performance “in a

‘highly deferential’ manner,” Bido, 56 A.3d at 111 (quoting Lynch v. State, 13 A.3d 603, 606

(R.I. 2011)), employing “a strong presumption that counsel’s conduct falls within the permissible

range of assistance,” id. (quoting Neufville, 13 A.3d at 610). See also Strickland, 466 U.S. at

689.

       The second prong of the Strickland standard requires an applicant to “show that he [or

she] was prejudiced by this deficient performance.” Bido, 56 A.3d at 111 (quoting Lynch, 13

A.3d at 605). To satisfy the prejudice prong, “[t]he [applicant] must show that there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different. A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Strickland, 466 U.S. at 694; see also Bido, 56 A.3d at 111.

       In the years since our adoption of Strickland’s performance and prejudice prongs,

however, a handful of our cases have somewhat amplified that standard. In State v. Dunn, 726

A.2d 1142 (R.I. 1999), we stated, in dictum, 13 that:

                       “We note also that rarely, if ever, following conviction has
               any federal or state court permitted a defendant who has been
               represented by private counsel to later question, in post-conviction
               proceedings, the ineffectiveness or inefficiency of the trial counsel
               that the defendant chose and selected to represent him or her at
               trial. The ‘incompetency (or one of its many synonyms) of private
               counsel for the defendant in a criminal prosecution is neither a
               denial of due process under the Fourteenth Amendment, nor an
               infringement of the right to be represented by counsel under either
               the federal or state constitution, unless the attorney’s
               representation is so lacking that the trial has become a farce and a
               mockery of justice, in which case the judgment, violating either the
               Fifth, Sixth, or Fourteenth Amendment to the Federal Constitution,
               or a provision of a state constitution, is void.’” Id. at 1146 n.4

13
   In State v. Dunn, 726 A.2d 1142, 1145-46 (R.I. 1999), we held that the trial justice clearly
erred in granting the defendant’s motion for a new trial on the ground of ineffective assistance of
counsel—an issue that was not raised by the defendant.

                                             - 14 -
               (quoting Annotation, Incompetency of Counsel, 74 A.L.R.2d 1390,
               1397 (1960)) (emphasis added).

Although by no means a constant feature of our ineffective-assistance-of-counsel jurisprudence,

this farce-and-mockery language has reappeared on several occasions, both in cases where

defense counsel evidently was privately retained 14 and in cases where it was unclear whether

defense counsel was retained or appointed. 15 In this case, postconviction counsel and the hearing

justice referenced this language when assessing Reyes’s allegations that trial counsel, who was

privately retained, was ineffective. On appeal, Reyes argues that this language “is not part of the

Sixth Amendment effective[-]assistance[-]of[-]counsel jurisprudence.”

       We take this opportunity to abandon any distinction in our ineffective-assistance-of-

counsel jurisprudence between privately retained defense counsel and court-appointed defense

counsel. In Evitts v. Lucey, 469 U.S. 387, 395 (1985), the Supreme Court declared that “the

constitutional guarantee of effective assistance of counsel at trial applies to every criminal

prosecution, without regard to whether counsel is retained or appointed.” Similarly, in Cuyler v.

Sullivan, 446 U.S. 335, 344-45 (1980), the Supreme Court cautioned that:

                       “A proper respect for the Sixth Amendment disarms
               petitioner’s contention that defendants who retain their own
               lawyers are entitled to less protection than defendants for whom
               the State appoints counsel. * * * Since the State’s conduct of a
               criminal trial itself implicates the State in the defendant’s

14
   See, e.g., Brown v. State, 964 A.2d 516, 527 n.15 (R.I. 2009); Chalk v. State, 949 A.2d 395,
398 (R.I. 2008); Burke v. State, 925 A.2d 890, 893 (R.I. 2007); Larngar v. Wall, 918 A.2d 850,
856 & n.6, 858 (R.I. 2007); Hampton v. State, 786 A.2d 375, 381 (R.I. 2001); Vorgvongsa v.
State, 785 A.2d 542, 548 (R.I. 2001); Heath v. Vose, 747 A.2d 475, 477 n.1 (R.I. 2000); cf.
Hassett v. State, 899 A.2d 430, 434 n.3 (R.I. 2006) (although not employing the farce-and-
mockery language, explaining that “challenges to the performance of private counsel in
postconviction relief proceedings rarely succeed, and when a person selects his or her own
attorney, any alleged deficiencies seldom amount to an infringement of one’s constitutional
rights”).
15
   See, e.g., Pelletier v. State, 966 A.2d 1237, 1241 (R.I. 2009); Moniz v. State, 933 A.2d 691,
696, 697 (R.I. 2007); Ferrell v. Wall, 889 A.2d 177, 191 (R.I. 2005).

                                            - 15 -
               conviction, we see no basis for drawing a distinction between
               retained and appointed counsel that would deny equal justice to
               defendants who must choose their own lawyers.”

       Additionally, we are of the opinion that the farce-and-mockery language contained in

Dunn and its progeny is a relic of a bygone era that has no place in assessing claims of

ineffective assistance of counsel after Strickland. The farce-and-mockery standard evidently was

first announced in Diggs v. Welsh, 148 F.2d 667, 669, 670 (D.C. Cir. 1945), and, by the time the

United States Supreme Court decided Strickland in 1984, every federal circuit had rejected it in

favor of a standard requiring reasonably competent or effective assistance. See Trapnell v.

United States, 725 F.2d 149, 151-53, 155 (2d Cir. 1983) (chronicling origin of and gradual

departure from farce-and-mockery standard and adopting standard of reasonably competent

assistance in its place). 16 Nothing the Supreme Court said in Strickland purported to revive the

farce-and-mockery standard. Moreover, the farce-and-mockery standard has its roots in the Due

Process Clause of the Fifth Amendment to the United States Constitution, see Diggs, 148 F.2d at

669; see also Trapnell, 725 F.2d at 154, while claims of ineffective assistance of counsel are

grounded in the guarantee of the assistance of counsel contained in the Sixth Amendment to the

United States Constitution, see Strickland, 466 U.S. at 684-86, and its Rhode Island counterpart,

the Declaration of Rights, article 1, section 10 of the Rhode Island Constitution, see Merida v.

State, 93 A.3d 545, 549 (R.I. 2014). Henceforth, claims of ineffective assistance of counsel—

whether the attorney is privately retained or court appointed—shall continue to be decided by

reference to the familiar performance and prejudice prongs of the Strickland standard. 17



16
   We also note that the annotation from which we quoted the farce-and-mockery language in
Dunn, 726 A.2d at 1146 n.4, similarly predated Strickland.
17
   We do not imply that the difference in phraseology between the performance and prejudice
prongs of Strickland v. Washington, 466 U.S. 668 (1984), and the farce-and-mockery language
would necessarily make a difference in the adjudication of an ineffective-assistance-of-counsel

                                            - 16 -
       With the governing standard in proper focus, we turn to its application in this case. On

appeal, Reyes contends that the Cepeda statement raised a genuine issue of material fact that

precluded summary dismissal of his claims of ineffective assistance of counsel. We take no

issue, however, with the hearing justice’s determination that no genuine issue of material fact

existed. While the Cepeda statement may cause some to have doubts about Reyes’s involvement

in the 1994 incident, the statement is riddled with maladies that barred it from the hearing

justice’s consideration on summary dismissal.          Part and parcel of our summary judgment

standard (which the summary dismissal standard so closely mirrors) is that the evidence to be

considered when determining whether a genuine issue of material fact exists must be admissible.

See Carlson v. Town of South Kingstown, 131 A.3d 705, 708 (R.I. 2016) (“We will affirm a

lower court's decision only if, after reviewing the admissible evidence in the light most favorable

to the nonmoving party, we conclude that no genuine issue of material fact exists and that the

moving party is entitled to judgment as a matter of law.” (emphasis added) (quoting Daniels v.

Fluette, 64 A.3d 302, 304 (R.I. 2013))); see also Mruk v. Mortgage Electronic Registration

Systems, Inc., 82 A.3d 527, 534 (R.I. 2013) (recognizing that affidavits must be “made on

personal knowledge, * * * set forth such facts as would be admissible in evidence, and * * *

show affirmatively that the affiant is competent to testify to the matters stated therein[,]” and that

the failure to comply with these requirements renders them inadmissible and, thus, “useless in

establishing the absence of a genuine issue of material fact” (quoting Nichola v. Fiat Motor Co.,



claim in any particular case; indeed, we suspect that such a difference would exist “only in the
rarest case.” Strickland, 466 U.S. at 697; see also Trapnell v. United States, 725 F.2d 149, 153
(2d Cir. 1983) (“[W]e have repeatedly applied both standards[—the farce-and-mockery standard
and the standard of reasonably competent assistance—]in recent years and never found that the
result of a case hinged on the choice of a particular standard.”). Our review of the cases in which
we have employed the farce-and-mockery language convinces us that none of them fall into this
exceedingly narrow category.

                                              - 17 -
463 A.2d 511, 513 (R.I. 1983))); Plainfield Pike Gas & Convenience, LLC v. 1889 Plainfield

Pike Realty Corp., 994 A.2d 54, 57 (R.I. 2010) (acknowledging that summary judgment should

be affirmed only if no genuine issue of material fact exists based upon a review of the admissible

and competent evidence); Nichola, 463 A.2d at 513-14 (noting that statements within an affidavit

that “amounted to little more than hearsay” should not be considered by a trial justice in ruling

on a summary judgment motion).

       Here, the Cepeda statement would not stand the slightest chance of being admissible.

First, the witness statement is not presented in the form of an affidavit or other type of sworn

testimony, as is made obvious based upon the method of delivery (via telephone). Furthermore,

the statement was somehow “notarized” by one Nicholas Cardarelli, with, in place of the

witnesses’s signature, the words “RECORDED OVER TELEPHONE.” 18 In addition, to the

extent that the witness statement contains statements delivered to and transcribed by Cardarelli,

the statements constitute hearsay. To that end, we have held that, where statements within a

sworn affidavit would constitute hearsay, such statements should not be considered in ruling on a

summary judgment motion. See Nichola, 463 A.2d at 513-14. Thus, the hearing justice properly

concluded that the Cepeda statement did not create a genuine issue of material fact. 19 Aside

from a notice of the state’s intent to pursue a habitual offender sentence, Reyes produced nothing




18
   Although we are not in a position to opine as to whether any of the Standards of Conduct for
Notary Publics were violated, we are troubled by the fact that Cardarelli affixed his signature and
notary seal to a statement that was not given in person by Cepeda, nor was it signed by Cepeda.
19
   The dissent downplays the defective and untrustworthy nature of the Cepeda statement and
suggests that the notary public’s “mistake” should not foreclose Reyes’s postconviction claim.
However, because of the notary’s disregard for his duties, it is unclear whether Cepeda was even
the person with whom he spoke on the telephone and from whom he received a statement.
Contrary to the dissent’s insistence, the Cepeda statement was useless for purposes of opposing
summary dismissal consistent with the standards underlying Rule 56 of the Superior Court Rules
of Civil Procedure.

                                            - 18 -
else in opposition to the state’s motion for summary dismissal; the hearing justice properly

granted the motion. 20

                                                  C

              Postconviction Counsel’s Compliance with § 10-9.1-5 and Shatney

       Finally, Reyes contends that the efforts of his postconviction counsel were inadequate.

Specifically, he faults postconviction counsel for “simply respond[ing]” to Reyes’s

postconviction claims instead of “mak[ing] an effort to narrow [the] issues, re[]frame[,] or

supplement them,” not speaking with trial counsel or reviewing his files, and failing to hire an

investigator. We reject these contentions.

       “[T]he right to counsel in a postconviction-relief proceeding is a matter of legislative

grace, not constitutional right.” 21 Campbell v. State, 56 A.3d 448, 454 (R.I. 2012). Section 10-



20
   In concluding that the production of the Cepeda statement should have precluded summary
disposition, the dissent suggests that we turn both our existing postconviction relief case law and
§ 10-9.1-6(c) on its head. When a hearing justice grants a motion to withdraw pursuant to
Shatney, the applicant has the option of proceeding pro se on his application or retaining another
attorney at his own expense. See Shatney, 755 A.2d at 135. Independent of this withdrawal, if
the circumstances warrant, the hearing justice “may grant a motion by either party for summary
disposition of the application when * * * there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law.” Section 10-9.1-6(c). The applicant is
not entitled to any special treatment because—after his postconviction claims were determined to
be meritless—he is forced to now proceed pro se. Nevertheless, the dissent suggests the system
should bend over backwards for an applicant after withdrawal of postconviction counsel by
allowing an applicant to oppose summary dismissal with inadmissible evidence, or, in the
alternative, entitling the applicant to a warning and a second shot when he submits inadmissible
evidence. This is not only impractical, but also flies in the face of longstanding authority.
21
   Although Reyes cites Martinez v. Ryan, 132 S. Ct. 1309 (2012), in his show-cause statement
for an unrelated proposition, he did not argue to the Superior Court and has not argued to this
Court on appeal that there is a constitutional right to counsel in this collateral proceeding with
respect to his claims of ineffective assistance of counsel. The United States Supreme Court in
Martinez noted that it is an open question “whether a prisoner has a [constitutional] right to
effective counsel in collateral proceedings [that] provide the first occasion to raise a claim of
ineffective assistance at trial,” but it did not decide that question in Martinez, id. at 1315, and has
not decided it since. Because it is not properly before us in this case, we express no opinion on
this issue.

                                              - 19 -
9.1-5 provides that, in cases like this one where the Office of the Public Defender is unable to

represent the applicant, “the court shall assign counsel to represent the applicant.” As is true in

other contexts, “[t]he hallmarks of a meaningful attorney-client relationship * * *, including

zealous advocacy and the protection of the [client’s] confidences,” exist between the applicant

and counsel appointed under § 10-9.1-5. Campbell, 56 A.3d at 454-55; see also id. at 455

(“Section 10-9.1-5 cannot be satisfied with anything less than a meaningful attorney-client

relationship between appointed counsel and his or her client.”).

       Of course, relations between attorney and client do not always remain harmonious. In

some cases, postconviction applicants insist on pressing claims that are frivolous or mendacious,

notwithstanding the risk of sanctions for violating Rule 11 of the Superior Court Rules of Civil

Procedure. 22 Attorneys who are appointed to represent a postconviction applicant, on the other

hand, cannot ignore the requirements of Rule 11. In recognition of this potential conflict, 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.” Campbell, 56 A.3d at 455-

56.

       Within this framework, Reyes’s assignments of error regarding postconviction counsel

are unpersuasive. Our decision in Campbell involved the paradigm example of noncompliance

with § 10-9.1-5. In that case, despite the applicant’s repeated requests for counsel, the hearing

justice appointed an attorney to conduct an “independent examination” of whether the

22
   Rule 11 of the Superior Court Rules of Civil Procedure, which applies in the postconviction
context, see Campbell, 56 A.3d at 455, gives the trial court discretion to impose sanctions where
a signed pleading, motion, or other paper is not “well grounded in fact and * * * warranted by
existing law or a good faith argument for the extension, modification, or reversal of existing law
* * *.” Rule 11; see generally FIA Card Services, N.A. v. Pichette, 116 A.3d 770, 778-79 (R.I.
2015).

                                            - 20 -
applicant’s claims were meritorious. Campbell, 56 A.3d at 451, 452. The hearing justice

repeatedly informed the applicant that the appointed counsel did not represent him. Id. at 452-

53. We determined that the appointment of counsel in Campbell failed to comply with the

requirements of § 10-9.1-5. Campbell, 56 A.3d at 456, 461-62.

       This case is nothing like Campbell. The record is clear that postconviction counsel

functioned as Reyes’s attorney; 23 he met with Reyes on four separate occasions and expended

considerable effort to locate the alleged exculpatory bail-hearing testimony about which,

according to Reyes, trial counsel knew or should have known. At the hearing on the motion to

withdraw, postconviction counsel represented that he “spent hours” attempting to locate the

alleged bail-hearing testimony, and he chronicled his efforts in detail. In denying Reyes’s

motion for funds to hire a private investigator, the hearing justice explained that “[postconviction

counsel] did everything that [he] could do to determine if there was any recording from that

hearing.” Against this backdrop, Reyes’s argument with respect to postconviction counsel’s

failure to hire an investigator rings hollow. It was permissible for postconviction counsel to take

it upon himself to perform the investigative responsibilities that he deemed necessary; he was not

required to hire an investigator to undertake duplicative efforts. Cf. Campbell, 56 A.3d at 455-

56 (“The procedure set forth in Shatney simply applies Rule 11’s proviso to the context of the

postconviction remedy, such 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)).




23
   Indeed, when Reyes expressed some confusion about whether postconviction counsel
represented him or the state, the hearing justice promptly reassured him that postconviction
counsel was his attorney.

                                             - 21 -
       Reyes’s complaint about postconviction counsel’s failure to discuss the case with trial

counsel or review his files similarly misses the mark.           In his no-merit memorandum,

postconviction counsel focused on Reyes’s inability to establish prejudice because of the

favorable disposition that trial counsel secured for his client. Postconviction counsel noted that,

in marked contrast to the potential for significant jail time that Reyes faced if convicted on the

original charges, trial counsel was able to persuade the state to dismiss one charge, amend the

other charge to a lesser offense, agree to a non-incarcerative sentence, and refrain from

presenting Reyes as a probation violator. While Reyes was insisting that exculpatory testimony

mirroring the allegations in the Cepeda statement was given at his bail hearing, postconviction

counsel had expended considerable effort to locate this alleged bail-hearing testimony to no

avail, and the hearing justice appropriately concluded that “there was no testimony given under

oath exonerating [Reyes in] this matter.” Thus, Reyes’s claim attacking postconviction counsel’s

alleged shortcomings is without merit.

       Finally, it is significant that, pursuant to Shatney, 755 A.2d at 135, postconviction

counsel filed a comprehensive memorandum in which he—as Reyes acknowledged at the

hearing on the motion to withdraw—correctly identified each of the many claims asserted in

Reyes’s application and thoroughly explained the reasons why, in counsel’s professional

opinion, they lacked merit. On appeal, Reyes complains that postconviction counsel failed to

narrow or reframe the claims contained in his application, but appellate counsel similarly makes

no effort to articulate how those claims could have been reworked, and an attorney will not

always be able to salvage a meritless application from the scrap heap. Cf. Campbell, 56 A.3d at

458 (explaining that “appointed counsel may, in an appropriate case, frame the applicant’s

claims in such a way as to avoid § 10-9.1-8’s waiver rule”).          We note that a tension is




                                            - 22 -
unavoidable in cases in which the Shatney procedure is invoked. Our decisions in Campbell and

Shatney recognize that, in some cases, appointed counsel’s efforts must, at some point, shift from

diligent investigation and meaningful representation to dispassionate explanation of why, in the

exercise of counsel’s professional judgment, the claims lack merit. See Campbell, 56 A.3d at

455-56; Shatney, 755 A.2d at 135. Importantly, this is a case where the paradigm shift properly

occurred, whereas Campbell involved a situation where counsel acted as an objective,

independent, and dispassionate outsider from the outset.

       For these reasons, we conclude that postconviction counsel functioned as Reyes’s

attorney and, because he deemed Reyes’s application to be meritless based on the record that

existed at that time, he complied with the procedure outlined in Shatney. See Shatney, 755 A.2d

at 135. Similarly, the hearing justice complied with our directive in Shatney that a hearing be

held at which Reyes was able to respond to the no-merit memorandum, and, at the conclusion of

the hearing, she appropriately granted the motion to withdraw. 24 See id.

       Although we affirm the hearing justice’s decision to allow postconviction counsel to

withdraw, we nonetheless pause to remind the bench and the bar that the Shatney procedure is

not the endgame. An attorney is not appointed under § 10-9.1-5 to perform a screening function

or to steer the case towards the filing of a no-merit memorandum and then withdraw from the

arena. Rather, § 10-9.1-5 directs that an attorney be appointed to represent the applicant in

connection with the litigation of his or her application, see Campbell, 56 A.3d at 454-56, 461,



24
   The dissent states that it is “compelled to express [its] belief that the time has come to abrogate
Shatney, at least as it relates to first-time applicants.” As the dissent recognizes, however,
“Shatney’s life expectancy was not addressed by the parties in this case[,]” and, thus, is not
before this Court. We agree that this issue is not before us, and decline to address it further. The
hearing justice and postconviction counsel properly followed the Shatney procedure, which was
the law at the time of the hearings below and the time the appeal was taken, and which continues
to be the law today.

                                              - 23 -
and the Shatney procedure is a judicially created escape hatch to be opened only in those cases

where the appointed attorney’s obligations under Rule 11 require withdrawal because the only

alternative, in counsel’s professional opinion, is the impermissible pursuit of irremediably

frivolous claims. 25

                                                 IV

                                            Conclusion

        For the reasons articulated above, we affirm the judgment summarily dismissing Reyes’s

application. The papers may be remanded to the Superior Court. 26




25
   We reiterate that an attorney’s reluctance or refusal to accept an appointment “is not embraced
by the dictates of Shatney * * *, and the fact that counsel may decline the appointment should
not result in the summary dismissal of an applicant’s claims absent compliance with § 10-9.1-5.”
Campbell, 56 A.3d at 456 n.5; see also Shatney, 755 A.2d at 136 (“The appointment of
Shatney’s first counsel, who then limited her entry of appearance and apparently declined to
pursue the application and/or withdrew before pursuing petitioner’s claim, before the court
allowed her to withdraw, and before the court passed on the alleged lack of merit of such an
application, did not fulfill the requirements of § 10-9.1-5 in this case.”).
26
   Notwithstanding the state’s failure to raise the doctrine of laches before the hearing justice, the
state argued in its papers to this Court that review of that issue “is not necessarily foreclosed.” At
oral argument, however, the state conceded that, because this affirmative defense was not raised
below, it has been waived. This concession is well-taken. See Andrukiewicz v. Andrukiewicz,
860 A.2d 235, 241 (R.I. 2004) (holding that the plaintiff failed to preserve defense of laches for
appellate review where the plaintiff failed to raise it before the trial justice).

                                              - 24 -
       Justice Goldberg, with whom the Chief Justice joins, concurring in part and

dissenting in part. I join the majority’s well-written opinion clarifying this Court’s standard of

review of a hearing justice’s summary dismissal of an applicant’s postconviction-relief (PCR)

application and its affirmance of the hearing justice’s summary dismissal of Reyes’s claim that

his 1994 nolo contendere plea violated Rule 11 of the Superior Court Rules of Criminal

Procedure and was not knowing, intelligent, and voluntary. 1 I also unhesitatingly join the

majority’s insightful decision to abrogate the farce-and-mockery language of State v. Dunn, 726

A.2d 1142, 1146 n.4 (R.I. 1999), and its progeny and to reiterate that Rhode Island is,

henceforth, a strictly Strickland 2 jurisdiction with respect to claims of ineffective assistance of

counsel.

       I part company with my colleagues, however, on the issue of whether the hearing

justice’s summary dismissal of Reyes’s claims of ineffective assistance of counsel was proper.

These claims alleged violations of a fundamental constitutional right. This first PCR application



1
  I note that I am not convinced that the trial justice properly concluded that there was a
sufficient factual basis for the plea—a requirement of Rule 11 of the Superior Court Rules of
Criminal Procedure. However, Reyes’s argument on appeal focused exclusively on the trial
justice’s failure to appoint an interpreter sua sponte. Apart from one sentence in his show-cause
statement in which he asserted “there is neither a discussion of Mr. Reyes’[s] role in the
amended charge of maintaining a narcotics nuisance, nor of his understanding of that charge,”
the entirety of his argument on appeal concerns the failure to appoint an interpreter. In my
opinion, this single sentence fails to adequately develop—and, therefore, preserve for this
Court’s review—any argument concerning the lack of factual basis for the plea. See McMahon
v. Deutsche Bank National Trust Co., 131 A.3d 175, 176-77 (R.I. 2016) (mem.); see also United
States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (“It is not enough merely to mention a possible
argument in the most skeletal way, leaving the court to do counsel’s work, create the ossature for
the argument, and put flesh on its bones. * * * ‘[A] litigant has an obligation to spell out its
arguments squarely and distinctly, or else forever hold its peace.’” (quoting Rivera-Gomez v. de
Castro, 843 F.2d 631, 635 (1st Cir. 1988)).
2
  Strickland v. Washington, 466 U.S. 688 (1984).



                                             - 25 -
was Reyes’s one and only chance to assert these claims. The attorney who was appointed to

represent Reyes concluded—without conferring with Reyes’s trial counsel—that these claims

lacked merit. This determination was premature. Reyes was then forced to represent himself

and was instructed by the hearing justice to come forward with “something of great

significance.” He did so. Reyes presented the hearing justice with the Cepeda statement before

the state filed its motion for summary dismissal under G.L. 1956 § 10-9.1-6(c). Although the

majority claims that the Cepeda statement is “riddled with maladies,” all of the supposed

“maladies” stem from one aspect of the statement: The registered notary public took the

statement over the telephone and notarized it, rather than having Ismael Cepeda (Cepeda) swear

to its contents in his presence. 3 The hearing justice considered the Cepeda statement and

nonetheless summarily dismissed Reyes’s ineffectiveness claims.

       In concluding that the hearing justice was “barred” from considering the Cepeda

statement, the majority overlooks four critical facts. First, Reyes was forced to proceed pro se

after postconviction counsel, who was statutorily required to represent him zealously, jumped

ship long before Rule 11 of the Superior Court Rules of Civil Procedure required such a drastic

course of action. Second, the Cepeda statement—which the majority analyzes as if it were a

document submitted in opposition to a summary-judgment motion—was submitted before the

state moved for summary dismissal under § 10-9.1-6(c). Third, the state did not coherently raise

any argument that the hearing justice was barred from considering this document at the

summary-dismissal stage, nor did the hearing justice hold that she was so constrained. Fourth,

the “maladies” of which the majority complains were caused by the actions of the notary and not

by Reyes, who remained in prison, stripped of counsel and forced to proceed pro se. In my

3
  A copy of the Cepeda statement is appended to this opinion. The notary seal is visible in a
copy of the statement in the lower-court file.

                                           - 26 -
opinion, summary dismissal of these claims was improper; an evidentiary hearing, at which

Reyes would have been accorded his right to counsel, was required. Therefore, I respectfully

dissent and express my concern about the posture the majority has taken in this appeal.

              Timing and Nature of Claims of Ineffective Assistance of Counsel

        In this jurisdiction, a claim of ineffective assistance of counsel ordinarily cannot be

addressed by this Court on direct appeal; instead, such claims must be asserted in a PCR

application. 4 See State v. Brouillard, 745 A.2d 759, 768 (R.I. 2000). At the same time, the

statutory framework governing the PCR context mandates that, in most cases, an applicant will

have but one opportunity to press a claim for postconviction relief. Section 10-9.1-8 provides

that:

                       “All grounds for relief available to an applicant at the time
               he or she commences a proceeding under this chapter must be
               raised in his or her original, or a supplemental or amended,
               application. Any ground finally adjudicated or not so raised, or
               knowingly, voluntarily and intelligently waived in the proceeding
               that resulted in the conviction or sentence or in any other
               proceeding the applicant has taken to secure relief, may not be the
               basis for a subsequent application, unless the court finds that in the
               interest of justice the applicant should be permitted to assert such a
               ground for relief.”




4
  A narrow exception to this general rule exists where the claim is based on a “specific,
reviewable ruling” by the trial justice. State v. Pineda, 13 A.3d 623, 635 (R.I. 2011). It is the
rare case in which this exception applies.

                                             - 27 -
The upshot is that, in this jurisdiction, a criminal defendant has one and only one opportunity to

assert a claim for ineffective assistance of counsel, and that opportunity almost always must

occur in the PCR context. See Martinez v. Ryan, 132 S. Ct. 1309, 1315 (2012) (explaining that,

when claims of ineffective assistance of counsel can be raised only in a collateral proceeding,

such as the PCR context in this state, “the initial-review collateral proceeding [is] a prisoner’s

‘one and only appeal’ as to an ineffective-assistance claim”).

       Compounding matters, a claim alleging ineffective assistance of counsel is of paramount

importance. As the United States Supreme Court has explained, “[t]he right to the effective

assistance of counsel at trial is a bedrock principle in our justice system” and “the foundation for

our adversary system.” Martinez, 132 S. Ct. at 1317. For this reason, it is critical that a PCR

applicant be afforded a meaningful opportunity to vindicate such a claim. As the Supreme Court

has suggested, such an opportunity may require effective assistance of counsel in the PCR

context:

               “Without the help of an adequate attorney, a prisoner will have
               * * * difficulties vindicating a substantial ineffective-assistance-of-
               trial-counsel claim. Claims of ineffective assistance at trial often
               require investigative work and an understanding of trial strategy.
               When the issue cannot be raised on direct review, moreover, a
               prisoner asserting an ineffective-assistance-of-trial-counsel claim
               in an initial-review collateral proceeding cannot rely on a court
               opinion or the prior work of an attorney addressing that claim.
               * * * To present a claim of ineffective assistance at trial in
               accordance with the [s]tate’s procedures, then, a prisoner likely
               needs an effective attorney.” Id.

The majority concludes—correctly, in my opinion—that this case does not present the question

of whether the United States Constitution requires that a PCR applicant asserting a claim of

ineffective assistance of counsel be afforded effective assistance of counsel in the PCR context.

See id. at 1315 (noting this open question).          However, Martinez instructs that a claim of




                                             - 28 -
ineffective assistance of counsel cannot be given short shrift merely because it is asserted for the

first time in the PCR context and not on direct appeal. To the contrary, the claim must receive

serious consideration. 5

                     Postconviction Counsel’s Compliance with § 10-9.1-5

       The General Assembly has mandated that:

                       “An applicant who is indigent shall be entitled to be
               represented by the public defender. If the public defender is
               excused from representing the applicant because of a conflict of
               interest or is otherwise unable to provide representation, the court
               shall assign counsel to represent the applicant.” Section 10-9.1-5.

This unambiguous statutory text contains no exception: A PCR applicant has the unqualified

statutory right to appointed counsel who “represent[s] the applicant.” Id.

       This Court, however, has qualified and cabined a PCR applicant’s right to counsel. In

Shatney v. State, 755 A.2d 130, 135 (R.I. 2000), this Court “established a procedure by which an

attorney * * * who has been appointed to represent an applicant for postconviction relief may



5
  During one of the hearings in this case, the following exchange transpired between the hearing
justice and Reyes:

               “[THE COURT:] * * * Now, sir, I also have to note that you are doing a
               life sentence for a separate offense.

               “THE DEFENDANT: Yes.

               “THE COURT: Why are we going through this exercise?

               “THE DEFENDANT: Based on this case, I got a different sentence in the
               other case, habitual.

               “THE COURT: But you’re still doing two life sentences.”

The length of the sentences that Reyes may have received in other, unrelated cases was, of
course, utterly irrelevant to the merits of Reyes’s claims of ineffective assistance of counsel.
These claimed violations of Reyes’s fundamental constitutional right warranted careful
consideration.


                                             - 29 -
later seek to withdraw from that representation under specific and limited circumstances.”

Campbell v. State, 56 A.3d 448, 455 (R.I. 2012). In broad strokes, Shatney allows an applicant’s

appointed counsel to withdraw after filing a so-called “no-merit” memorandum containing a

description of the extent of counsel’s review of the case and an explanation of why the issues

raised in the application lack merit. Shatney, 755 A.2d at 135. At that point, the hearing justice

is obligated to conduct a hearing in the applicant’s presence. Id. If the hearing justice agrees

that the claims “lack any arguable merit,” the motion to withdraw may be granted, and the

applicant is advised of the right to proceed pro se. Id. (emphasis added).

       As aptly set forth by the majority, the Shatney procedure represents nothing more than “a

judicially created escape hatch” available only when continued litigation of the PCR application

would violate Rule 11 of the Superior Court Rules of Civil Procedure. See Campbell, 56 A.3d at

455-56 (“The procedure set forth in Shatney simply applies Rule 11’s proviso to the context of

the postconviction remedy, such 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.”). In other words, Shatney

was not meant to water down the quality or extent of the legal representation that § 10-9.1-5

clearly grants to an indigent PCR applicant.

       In the sixteen years since Shatney was decided, the procedures that have arisen scarcely

resemble what was envisioned by the Shatney Court. A veritable cottage industry has arisen

whereby court-appointed lawyers are proceeding as if charged with screening out meritless

applications for the ax of summary dismissal. Along the way, Shatney has been transmuted from

an interpretive effort to achieve coexistence between § 10-9.1-5 and Rule 11 into a high hurdle

that PCR applicants must surmount in order to receive serious consideration of their claims on




                                               - 30 -
the merits. Our decision in Campbell, which the majority characterizes as the most egregious

example of how Shatney has evolved, is by no means an outlier. See, e.g., Garcia v. State, 91

A.3d 359, 359-60 (R.I. 2014) (mem.); Motyka v. State, 91 A.3d 351, 351-52 (R.I. 2014) (mem.);

Ramirez v. State, 89 A.3d 836, 838-40 (R.I. 2014); Rodriguez v. State, 86 A.3d 393, 393 (R.I.

2014) (mem.); Fortes v. State, 65 A.3d 478, 478 (R.I. 2013) (mem.). This Court’s concerns

about the denial of the right to counsel and an evidentiary hearing have caused us to modify

Shatney’s application to cases involving life without parole. See Tassone v. State, 42 A.3d 1277,

1287 (R.I. 2012). I am compelled to express my belief that the time has come to abrogate

Shatney, at least as it relates to first-time applicants. 6   See Campbell, 56 A.3d at 458-59

(explaining important distinction between first application and subsequent applications with

respect to right to appointed counsel under § 10-9.1-5).

       I am mindful, however, that Shatney’s life expectancy was not addressed by the parties in

this case. I therefore proceed to analyze postconviction counsel’s efforts under the existing

regime, such as it is. In my opinion, the hearing justice erred in permitting postconviction

counsel to withdraw pursuant to Shatney and in failing to reappoint counsel after the Cepeda

statement was produced. 7 In order to conclude that Rule 11 required him to withdraw under the

Shatney procedure, postconviction counsel must have reached the point that, in his opinion,

Reyes’s claims were not “well grounded in fact and * * * warranted by existing law or a

good[-]faith argument for the extension, modification, or reversal of existing law.” Rule 11 of



6
  As a member of the Shatney Court, I can state with confidence that “‘[t]he matter does not
appear to me now as it appears to have appeared to me then.’” McGrath v. Kristensen, 340 U.S.
162, 178 (1950) (Jackson, J., concurring).
7
 Following the majority’s lead, I refer to the attorney who represented Reyes in connection with
his 1994 plea of nolo contendere as “trial counsel,” and the attorney who purported to represent
him in connection with his PCR application as “postconviction counsel.”

                                            - 31 -
the Superior Court Rules of Civil Procedure. In his no-merit memorandum, postconviction

counsel concluded that Reyes’s claims of ineffective assistance of counsel were meritless

because Reyes could not satisfy either the performance or prejudice prong of Strickland. In my

opinion, postconviction counsel’s efforts on Reyes’s behalf were insufficient to justify this

conclusion. Indeed, postconviction counsel did not even speak with trial counsel.

       Assessment of whether an alleged ground of ineffective assistance of counsel meets the

performance and prejudice prongs is a case-specific inquiry. In the past, this Court has not

hesitated to vacate the summary dismissal of an applicant’s claims of ineffectiveness where the

record did not clearly support the conclusion that one of the prongs had not been met. See, e.g.,

Tassone, 42 A.3d at 1286 (“[T]he absence of a transcript, coupled with the lack of an evidentiary

hearing, precluded the court from conducting an adequate, independent review of trial counsel’s

actions and from ‘look[ing] at the entire performance of counsel.’ * * * No evidentiary hearing

was conducted to explore the validity of [the] applicant’s arguments, thus leaving unexamined

the foundation for a ‘reasonable probability’ that[,] but for trial counsel’s errors, the result of the

proceeding would have been different.” (quoting Brown v. State, 964 A.2d 516, 528 (R.I.

2009))); Hughes v. State, 609 A.2d 943, 944 (R.I. 1992) (“No evidentiary hearing was conducted

to explore the validity of [the applicant’s ineffective-assistance-of-counsel] claims, thus leaving

unexamined the foundation for a ‘reasonable probability[]’ [under the prejudice prong of

Strickland].   The trial justice’s ruling at the [PCR] hearing that he was satisfied that [the

applicant] had failed to meet the necessary standards for relief under Strickland * * * was

unfounded without an evidentiary hearing to buttress his conclusion.”); see also Randall v. State,

609 A.2d 949, 950 (R.I. 1992) (“Since a claim of ineffective assistance of counsel raises

questions of fact, disposition of such a case by way of summary judgment is not possible.”).




                                              - 32 -
       In my view, postconviction counsel was overeager in labeling Reyes’s claims as

meritless. Critically, Reyes’s 1994 conviction resulted from a plea of nolo contendere in the

Superior Court to an amended charge of maintaining a narcotics nuisance. Because there was no

trial, a trial transcript from which an assessment of trial counsel’s efforts can be made is not

available. Cf. State v. D’Alo, 477 A.2d 89, 91 (R.I. 1984) (“In determining whether a trial

counsel’s performance was effective, no evidence is more probative than the trial transcript, for

through the transcript a trial justice hearing a petition for postconviction relief can observe, albeit

second-hand, what actually happened as far as the trial counsel’s actions are concerned.

Accordingly, the trial justice hearing the petition in the present case had sufficient evidence

before him to assess the performance of [the] defendant’s trial counsel.”). Although the four-

page transcript of the change-of-plea colloquy was attached to Reyes’s PCR application, the vast

majority of Reyes’s claims of ineffective assistance of counsel had nothing to do with trial

counsel’s actions or inactions at the plea hearing.         The transcript sheds no light on the

reasonableness of trial counsel’s performance with respect to these allegations of ineffectiveness.

Notwithstanding this deficiency, postconviction counsel elected not to confer, in any way, with

trial counsel. Even more remarkably, he concluded that Reyes failed to satisfy the performance

and prejudice prongs. In doing so, postconviction counsel failed to function as Reyes’s attorney.

       For starters, he made unfounded assumptions regarding trial counsel’s performance and

overlooked the fact that it was his job—in the course of fulfilling his duty to represent Reyes

zealously—to determine if a nonfrivolous argument could be asserted that trial counsel’s

performance was unreasonable. “[A] fair assessment of attorney performance requires that every

effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of

counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the




                                              - 33 -
time.” Lynch v. State, 13 A.3d 603, 606 (R.I. 2011) (quoting Strickland v. Washington, 466

U.S. 668, 689 (1984)) (emphasis added).            By failing to even speak with trial counsel,

postconviction counsel wholly failed to perform this fair assessment.             Instead, he simply

assumed that trial counsel rendered effective assistance. For example, he speculated that trial

counsel “had a good understanding as to the state of the evidence against his client.” How do we

know that from this record? Likewise, he stated that trial counsel “was not provided concrete

information that there was additional exculpatory evidence other than what already existed.” I

see no evidentiary support for this statement in the record.              The undeniable fact that

postconviction counsel simply was assuming away the critical issue of whether trial counsel’s

performance violated the Strickland standard is evident from the following passage of his no-

merit memorandum:

                       “In the absence of any evidence to the contrary, it is fair to
               assume that Reyes’[s] counsel complied with his responsibilities as
               an attorney concerning open and honest communications with his
               client, and that he communicated with his client in a means
               efficient enough so that they had meaningful discussions regarding
               the case.” (Emphasis added.)

Fair to whom? Certainly not to Reyes, his client, who was owed a duty of zealous advocacy. In

the absence of at least a conversation with trial counsel, postconviction counsel’s conclusion that

Reyes’s claims were meritless must be recognized for what it is: a premature effort to withdraw

from the case. 8 Cf. Tassone, 42 A.3d at 1286 (“[T]he absence of a transcript, coupled with the



8
  These are not merely isolated passages in postconviction counsel’s no-merit memorandum.
Rather, the notion that trial counsel must have rendered effective assistance of counsel is a theme
that permeates the entirety of the memorandum. See, e.g., Postconviction Counsel’s No-Merit
Memorandum at 25 (“[Reyes] was represented by very competent defense counsel who
obviously did not feel that the services of an interpreter were necessary in order for his client to
understand the plea colloquy with the [c]ourt.” (emphasis added)); id. at 15 (“Reyes has not
presented any evidence to prove that his attorney acted in anything other than a competent
manner.”); id. at 19 (“In and [of] itself[, trial counsel’s failure to file a pretrial discovery motion]

                                               - 34 -
lack of an evidentiary hearing, precluded the court from conducting an adequate, independent

review of trial counsel’s actions and from ‘look[ing] at the entire performance of counsel.’”

(quoting Brown, 964 A.2d at 528)).

       At the hearing on the motion to withdraw, postconviction counsel explained that he “did

not feel it was necessary to speak to [trial counsel]” because he concluded that Reyes entered

into a knowing and voluntary plea. However, the fact that the 1994 plea may have been

voluntary, knowing, and intelligent does not bar claims of ineffective assistance of counsel

relating to trial counsel’s advice leading to the decision to enter the plea. See State v. Dufresne,

436 A.2d 720, 722, 723 (R.I. 1981) (“The focus of a postconviction inquiry when there has been

a guilty plea is the nature of counsel’s advice concerning the plea and the voluntariness of the

plea. * * * A defendant who pleads guilty on the advice of counsel must demonstrate at his

postconviction hearing that that advice was not within the range of competence demanded of

attorneys in criminal cases.”). Reyes’s claims attack the effectiveness of trial counsel in advising

him to enter a plea of nolo contendere. Therefore, the fact that Reyes’s plea was otherwise

voluntary, knowing, and intelligent was no excuse for postconviction counsel’s failure to speak

with trial counsel.

       Postconviction counsel alluded to a second reason for not interviewing trial counsel: that,

irrespective of whether Reyes could satisfy the performance prong, he was unable to satisfy the


does not mean that counsel was anything less than diligent in his representation of [Reyes]; there
are many reasons why counsel might elect not to file for discovery. In many cases, it is because
counsel might not want to file an Answer to the State’s Motion for Reciprocal Discovery,
thereby having to give to the [s]tate any evidence that they might not want to divulge.”
(emphases added)); id. at 9 (“I should point out that the defense counsel in this case was, and is,
a very experienced and respected member of the defense bar who has represented hundreds of
criminal defendants in all levels of the judicial system, both [s]tate and [f]ederal. He enjoys a
well-deserved reputation as a hard[]working, top-notch criminal defense attorney who is not
afraid to try a case in front of a jury.”); id. at 28 (“It is difficult to second guess the work of an
attorney when there was a negotiated plea.”).

                                              - 35 -
prejudice prong because of the highly favorable disposition of the charges. To be sure, this

Court previously has explained that, “when counsel has secured a shorter sentence than what the

defendant could have received had he gone to trial, the defendant has an almost insurmountable

burden to establish prejudice.” Neufville v. State, 13 A.3d 607, 614 (R.I. 2011). The assessment

of the strength of a negotiated agreement, however, cannot occur in a vacuum. The need for a

conversation with trial counsel flows in no small part from the unique relationship between the

facts of this case and the amended charge to which Reyes pled. Anyone familiar with the

disposition of criminal cases in this state would recognize that the plea agreement in this case—

in which, based on a single delivery of heroin, a two-count criminal information charging

distribution of heroin within three hundred yards of a school and conspiracy to commit that

offense was amended to a single count of maintaining a narcotics nuisance—was not a typical

disposition.   A conviction for maintaining a narcotics nuisance under G.L. 1956 § 21-28-

4.06(b)(1)(a) requires proof of “acts [that] are recurrent or of [a] habitual nature”; a single drug

transaction is an insufficient basis upon which to convict for this offense. State v. Reis, 430

A.2d 749, 753 (R.I. 1981); see id. at 754 (“[Section] 21-28-4.06 requires a showing of more than

an isolated instance of the prohibited activity.”); see also id. at 753, 754 (reversing the

defendant’s convictions for maintaining a narcotics nuisance where “[t]here was absolutely no

evidence, apart from this single incident, that [the] defendant used his apartment or his car for the

unlawful keeping or sale of a controlled substance.” (emphasis added)). Accordingly, the single

drug buy set forth in the criminal information was insufficient as a matter of law to constitute the

offense of maintaining a narcotics nuisance.             This fact should have alerted postconviction

counsel of the need to consult trial counsel.




                                                - 36 -
       The disposition in this case might have been highly favorable if the state’s evidence was

strong and Reyes had little in the way of a defense. On the other hand, the negotiated plea

agreement appears less favorable if the state’s evidence was weak, Cepeda is deemed a credible

witness, and exculpatory evidence exists and is sufficiently persuasive to create a reasonable

probability that the outcome of the trial would have been an acquittal. When compared to an

acquittal, the disposition in this case—even without jail time—loses much of its luster; it

operated as a felony conviction, it carried a term of probation (the violation of the terms and

conditions of which landed Reyes in prison), and it served as one of the predicate offenses that

qualified Reyes as a habitual offender. It is therefore unsurprising that the assessment of the

strength of the disposition in relation to the prejudice prong of Strickland is not often made at the

summary-dismissal stage. See Neufville, 13 A.3d at 611, 614 (commenting on the effect of a

shorter sentence on the prejudice prong in a case where an evidentiary hearing was held and

findings of fact were made); Rodrigues v. State, 985 A.2d 311, 316, 317 (R.I. 2009) (similar);

Hassett v. State, 899 A.2d 430, 436-37 (R.I. 2006) (similar); cf. Tassone, 42 A.3d at 1286 (“No

evidentiary hearing was conducted to explore the validity of [the] applicant’s arguments, thus

leaving unexamined the foundation for a ‘reasonable probability’ that[,] but for trial counsel’s

errors, the result of the proceeding would have been different.”). Consequently, postconviction

counsel’s premature assessment of the strength of the disposition did not justify his failure to

interview trial counsel.

       In granting postconviction counsel’s motion to withdraw, the hearing justice failed to set

forth her reasons for accepting his assessment of Reyes’s claims as meritless. Indeed, the

hearing justice notified Reyes that she was “not determining whether or not there’s merit to your

case.” (Emphasis added.) This is error. There is no showing on this record that the hearing




                                             - 37 -
justice conducted the independent review that Shatney requires as a prerequisite to permitting

counsel to withdraw; in fact, she declared just the opposite. See Shatney, 755 A.2d at 135 (“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

* * *.” (emphases added)). Without a finding that the grounds set forth in the application lack

any arguable merit—which, in my opinion, could not be made when no effort was made to

contact trial counsel—the hearing justice should not have permitted postconviction counsel to

withdraw.

          In sum, postconviction counsel failed to appreciate his role as Reyes’s attorney, and the

hearing justice erroneously granted him a free pass in permitting him to withdraw from the

representation. This case is yet another example of the injustice that can accompany the Shatney

procedure, which operates simultaneously as an additional court-made hurdle for PCR applicants

to overcome and a mechanism for less-than-full-fledged representation of indigent applicants.

Indeed, had Reyes received the counsel envisioned by § 10-9.1-5—to which he was undeniably

entitled—his counsel likely would have recognized the “maladies” of the Cepeda statement and

rectified them to ensure that Reyes received full and fair consideration of his constitutional

claims.

                              Consideration of the Cepeda Statement

          The hearing justice’s error in granting postconviction counsel’s motion to withdraw,

standing alone, supplies adequate and persuasive grounds to vacate the summary dismissal of

Reyes’s claims of ineffective assistance of counsel.         Nonetheless, I proceed to note my




                                              - 38 -
disagreement with the majority’s incongruous decision to affirm the hearing justice’s summary

dismissal of the application on the ground that she erred in considering the Cepeda statement.

         Immediately after the hearing justice granted postconviction counsel’s motion to

withdraw, Reyes moved for funds to hire a private investigator. Reyes explained that, because

“the records [of the alleged exculpatory testimony of one of his accomplices] are nowhere to be

found,” “the investigator would only need to get the testimony from the witness.” The hearing

justice denied the motion. She then warned Reyes that, “unless there is something of great

significance in your memorandum that persuades the [c]ourt that you would have gone to trial

and the result would have been different, then the [c]ourt may very well be dismissing your

case.”

         Against all odds, Reyes—who remained incarcerated, indigent, and uncounseled—

persuaded Nicholas Cardarelli (Cardarelli), a private investigator and notary public in this state,

to work on his behalf in an effort to come forward with “something of great significance.” He

did so. Cardarelli tracked down Cepeda and took a statement from him that directly bears on the

question of Reyes’s innocence. Reyes produced the Cepeda statement at the next hearing, before

the state filed—at the hearing justice’s suggestion—its motion for summary dismissal under §

10-9.1-6(c). Although noting certain “infirmities” of the Cepeda statement, the hearing justice

explicitly considered it: “On the basis then of the application, all of the materials that have been

submitted, including, for what it’s worth, the statement by Mr. Cepeda, that is not a sworn

statement or an affidavit by Mr. Cepeda, the [c]ourt finds that there is no need to proceed

further.” (Emphasis added.) The majority declares that the hearing justice erred in considering

the statement because it concludes that the Cepeda statement “is riddled with maladies that




                                             - 39 -
barred it from the hearing justice’s consideration on summary dismissal.” In my opinion, this

conclusion is erroneous on at least three independent grounds.

       First, the majority treats the Cepeda statement as if it were submitted in opposition to the

state’s summary-dismissal motion. It was not. The Cepeda statement was submitted in response

to the hearing justice’s notice, required by statute, of her intention to dismiss Reyes’s application

and her corresponding warning that she would dismiss the application unless Reyes came

forward with “something of great significance.” See § 10-9.1-6(b) (“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.”).

At the time that Reyes produced the Cepeda statement, the state’s motion for summary dismissal

under § 10-9.1-6(c) had not yet been filed. Therefore, the majority’s conclusion that the Cepeda

statement could not be considered by the hearing justice because it is not the type of admissible

evidence that can competently defeat a summary-dismissal motion flows from an erroneous

starting premise.

       Because the Cepeda statement was submitted in response to the hearing justice’s notice

of proposed dismissal under § 10-9.1-6(b), that statutory section—and not the requirements of

Rule 56(e) of the Superior Court Rules of Civil Procedure and this Court’s summary-judgment

case law—governs its consideration. In my opinion, the hearing justice, after reviewing the

Cepeda statement (which exculpates Reyes), should have realized her mistake in allowing

postconviction counsel to withdraw and directed that further proceedings occur at which—at a

minimum—Reyes would be provided with an attorney willing to confer with trial counsel or

with a view toward securing his testimony at an evidentiary hearing. See § 10-9.1-6(b) (“The




                                             - 40 -
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.” (emphases added)).

Instead, the hearing justice invited the state to file a motion for summary judgment, considered

the Cepeda statement, and concluded—erroneously, in my view, see infra—that it was irrelevant.

The hearing justice’s authority to consider the Cepeda statement was not restricted by this

Court’s summary-judgment jurisprudence because the state had not yet proceeded down that

path.

        Second, neither the state nor the hearing justice warned Reyes that the Cepeda statement

could be rejected on the basis of the so-called maladies until, if at all, the very hearing at which

his PCR application was summarily dismissed.          The majority overlooks this aspect of the

proceeding. When Reyes first produced the Cepeda statement, the hearing justice did not, in any

way, suggest that it could be rejected on the basis of any defects; instead, she indicated that it

might not be relevant. Nor did the state advocate rejection of the statement based on its defects.

Instead, the state devoted a single paragraph to the Cepeda statement and proffered a merits

argument:

                       “As to the second document, the purported[ly] notarized
               (document does not contain a notary’s seal or Mr. Cepeda’s
               signature) statement of Ismael Cepeda, the [s]tate cannot speculate
               as to the purpose of this document. Mr. Cepeda testified at
               [Reyes]’s bail hearing, well prior to the resolution of the instant
               case (and, in fact, before [Reyes]’s charges were amended pursuant
               to his attorney’s negotiations). Mr. Cepeda is not a ‘previously
               unknown’ witness, nor, by his own account, is Mr. Cepeda’s
               statement different from that which he testified to at the bail
               hearing. * * * Therefore, without further clarification, the [s]tate
               cannot adequately respond.”




                                             - 41 -
Nothing in the above-quoted passage puts Reyes on notice that the state was advocating outright

rejection of the Cepeda statement. 9 A hearing was required at this point.

       In my opinion, the lack of any notice to Reyes is important in this case because he had no

counsel and was expected to develop and litigate a fact-intensive claim concerning the

deprivation of a fundamental constitutional right on his own, while incarcerated. Once forced to

proceed pro se, Reyes ably attempted to address the concerns raised by the hearing justice and

the state. When the hearing justice told him that he had better show her “something of great

significance” or else face dismissal of his PCR application, Reyes produced the Cepeda

statement. When the state argued that the Cepeda statement “does not contain a notary’s seal or

Mr. Cepeda’s signature,” Reyes attempted to address that concern too, correctly pointing out in a

supplemental memorandum that the document does, in fact, contain Cardarelli’s notary seal.

Had Reyes been warned about the issues with the Cepeda statement before his application was

summarily dismissed, he at least would have had an opportunity to remedy them. The hearing

justice did not afford Reyes such an opportunity because she did not reject the document. Both

Reyes and his appellate counsel have been blindsided in this Court—after oral argument—by the

holding of the majority: that, contrary to the understanding of all involved, the hearing justice

was “barred” from considering the Cepeda statement.




9
  In fact, to the extent that the state intended to make such an argument, its attempt to do so was
wholly ineffectual to preserve the argument for our review. Perhaps in light of its failure to
preserve the argument that the Cepeda statement could not be considered by the hearing justice,
the state on appeal simply highlights in a footnote the infirmities of the Cepeda statement that
were noted by the hearing justice. To its credit, the state does not attempt to revive an argument
that was not clearly and distinctly made below. The majority is raising sua sponte a ground of
decision that was not addressed in the Superior Court. In my opinion, it is not the function of
this Court to launch a rescue mission to resurrect an argument that was abandoned in the
proceedings below.

                                            - 42 -
       Finally, the majority improperly attributes to Reyes—an indigent prisoner forced to

proceed pro se—the error of a registered notary public of this state that is squarely within the

notary’s expertise. 10 Under these circumstances, Reyes cannot be expected to recognize that the

Cepeda statement was improperly notarized. This is a fiction that I refuse to embrace. The

majority relies upon the notary’s mistake and, on that basis alone, has foreclosed consideration of

the merits of Reyes’s claims that his fundamental constitutional right to effective assistance of

counsel has been violated.   This is not a just result.

       For all of these reasons, I am of the opinion that the conclusion of the majority that the

hearing justice was barred from considering the Cepeda statement was erroneous. 11

                              Relevancy of the Cepeda Statement

       Finally, I note my disagreement with the hearing justice’s conclusion that the Cepeda

statement was not relevant to the charge to which Reyes pled and her decision that summary

dismissal of Reyes’s claims of ineffective assistance of counsel was proper because Reyes was

unable to satisfy the prejudice prong of Strickland. Contrary to the hearing justice’s assessment,

the Cepeda statement is relevant to the prejudice prong. It specifically relates to the criminal

10
   The majority concedes that the Cepeda statement’s infirmities are the result “of the notary’s
disregard for his duties.”
11
   The majority charges me with “suggest[ing] that we turn both our existing postconviction
relief case law and [G.L. 1956] § 10-9.1-6(c) on its head” and that “the system should bend over
backwards for an applicant” in the circumstances of this case. In my opinion, postconviction
counsel did not comply with § 10-9.1-5. Under “our existing [PCR] case law,” it was reversible
error to enter a summary dismissal before Reyes received the assistance of counsel to which he
was statutorily entitled. See Campbell v. State, 56 A.3d 448, 458-62 (R.I. 2012). To the extent
that the system permits the summary dismissal of the ineffective-assistance-of-counsel claims of
a first-time, pro se applicant who has been deprived of counsel and who nonetheless comes
forward with evidence suggesting actual innocence, the system is broken. It should bend
backwards, forwards, and every other conceivable way so that the applicant receives his day in
court. To hold otherwise turns the postconviction remedy enacted by the General Assembly into
an illusion.



                                              - 43 -
conduct giving rise to the offense to which Reyes entered a plea of nolo contendere. The

statement of facts read in support of the amended charge was as follows: “Pedro [Reyes] on or

about the 5th day of October 1993 at Central Falls in the County of Providence did maintain a

narcotics nuisance in violation of the Rhode Island General Laws.” It is clear that the amended

charge arose from his arrest and prosecution for the acts that gave rise to the two counts of the

criminal information. Because the Cepeda statement concerns—and purports to absolve Reyes

from—that conduct, it is relevant to the amended charge. 12

       The Cepeda statement creates a genuine issue of fact as to whether at least one of Reyes’s

codefendants in the 1994 case gave exculpatory testimony—during a bail hearing or elsewhere—

of which trial counsel knew or should have known. Maybe Cepeda did so testify. Maybe trial

counsel discussed this circumstance with Cepeda and his client. Maybe the state amended the

charges because of this circumstance. Postconviction counsel’s investigation indicated that the

alleged exculpatory bail-hearing testimony did not exist.        However, the Cepeda statement,

although it does not specifically mention bail-hearing testimony, indicates that Cepeda gave

testimony at a judicial proceeding that tended to exculpate Reyes from the charged offenses.

Therefore, at the time that Reyes’s application was summarily dismissed, there was a genuine

issue of fact as to whether Cepeda provided exculpatory evidence. See Bucci v. Hurd Buick

Pontiac GMC Truck, LLC, 85 A.3d 1160, 1175 n.7 (R.I. 2014) (“A ‘genuine’ issue is one that

12
  I also note that, even if the Cepeda statement related only to the original charges, it would still
be relevant to the prejudice inquiry. In the plea context, the prejudice prong requires a defendant
to “‘demonstrate a reasonable probability that[,] but for counsel’s errors, he or she would not
have pleaded guilty [or nolo contendere] and would have insisted on going to trial’ and,
importantly, that the outcome of the trial would have been different.” Neufville v. State, 13 A.3d
607, 610-11 (R.I. 2011) (quoting State v. Figueroa, 639 A.2d 495, 500 (R.I. 1994)); see also
Lopes v. State, 111 A.3d 344, 349 (R.I. 2015). If trial counsel had advised Reyes not to enter
his plea because of the exculpatory testimony of his codefendants, as Reyes alleges should have
been done, and Reyes followed this advice, he presumably would have gone to trial on the
original charges.

                                             - 44 -
could be resolved in favor of either party * * *.” (quoting Calero-Cerezo v. United States

Department of Justice, 355 F.3d 6, 19 (1st Cir. 2004))).

       This genuine issue concerned a fact that is, at least at this early juncture, material to the

prejudice inquiry. If the exculpatory testimony exists, it bears on the question of whether, if

Reyes had proceeded to trial on the original charges, he would have been acquitted. From my

review of the record, it appears that the only evidence linking Reyes to the charged offenses was

Carl Barovier’s eyewitness identification of Reyes as the driver of the Datsun from which

Cepeda emerged with heroin. There is no indication from the police reports that accompanied

the criminal information that the driver ever exited the vehicle, nor is there information about the

length of time that and the distance from which Barovier observed the driver, the lighting, his

degree of certainty, or the time that elapsed before Barovier identified Reyes.          Moreover,

Barovier did not identify Reyes from a photo lineup; instead, when Edward Randall (Randall)

provided Barovier a show-up photograph of Reyes—which Randall had selected based on

Barovier’s description of the driver as having “light[-]black skin” and appearing to be

“approximately 5’8” tall[ and] between 19 and 23 years of age”—Barovier identified him as the

man he saw driving the vehicle. 13 Contrary to the account that Barovier provided in the police

reports, however, the Cepeda statement indicated that Reyes was not involved in the drug deal in

question. In particular, the Cepeda statement asserts that Cepeda testified that he and Reyes did

13
   Recently, this Court recognized “the problematic nature of eyewitness identification and its
potential for misidentification,” State v. Davis, 131 A.3d 679, 696 (R.I. 2016), and “the growing
concern in other jurisdictions with reliance on eyewitness identification testimony, the growing
body of scientific and psychological studies regarding the questionable accuracy of the accounts
of eyewitnesses, and the efforts made to prevent a miscarriage of justice,” id. at 696 n.13. We
therefore announced that, henceforth, “the better practice would be for courts to provide the jury
with more comprehensive instructions when eyewitness testimony is an issue, similar, for
example, to those that were imparted in [State v. ]Austin, 114 A.3d [87,] 92-93 [(R.I. 2015),] and
[State v. ]Figuereo, 31 A.3d [1283,] 1290-91 [(R.I. 2011)].” Davis, 131 A.3d at 697.



                                             - 45 -
not engage in drug transactions with one another as a general matter and that Reyes was not with

him when he sold the heroin to Barovier. Therefore, because the Cepeda statement tended to

discredit the accuracy of Barovier’s identification of Reyes, the existence of Cepeda’s

exculpatory testimony is a material fact that potentially bears on the resolution of the question of

whether, had Reyes gone to trial, “the outcome of the trial would have been different.”

Neufville, 13 A.3d at 611; see Bucci, 85 A.3d at 1175 n.7 (“[A] ‘material fact’ is one that has the

potential of affecting the outcome of the case.” (quoting Calero-Cerezo, 355 F.3d at 19)).

       Finally, I acknowledge that, even if Cepeda’s exculpatory testimony does exist, the

prejudice prong of the Strickland standard would not necessarily be resolved in Reyes’s favor.

To the contrary, several additional factors would first need to be considered, including an

assessment of the circumstances under which the testimony was provided, Cepeda’s credibility

(or lack thereof), and the strength of the state’s evidence against Reyes. In the end, Reyes would

bear the burden of demonstrating the requisite prejudice. 14 See Strickland, 466 U.S. at 693. But

the genuine issue of material fact as to whether Cepeda provided exculpatory testimony—as well

as the additional considerations that flow from the resolution of that issue—cannot and should




14
   Even if Reyes were able to demonstrate prejudice under Strickland, he would still need to meet
the performance prong to obtain postconviction relief. Additional questions would arise before
trial counsel’s performance could be deemed deficient, such as whether trial counsel knew or
should have known of the existence of the exculpatory testimony, cf. Neufville, 13 A.3d at 611-
12 (affirming the hearing justice’s rejection of the applicant’s claim that his trial counsel was
ineffective because he failed to interview potential defense witnesses where, after an evidentiary
hearing, the hearing justice supportably credited trial counsel’s testimony that the applicant never
disclosed any potential witnesses over the applicant’s contrary testimony), and, if trial counsel
had such actual or constructive knowledge, whether it was constitutionally deficient to
nonetheless advise Reyes to accept the state’s generous plea offer. Because the trial justice did
not consider the performance prong and because the genuine issue of material fact as to whether
the exculpatory testimony existed must be resolved before these additional questions can be
answered, Reyes’s claims cannot be summarily dismissed on the basis of an inability to satisfy
the performance prong.

                                             - 46 -
not be resolved at the summary-dismissal stage. See Doyle v. State, 122 R.I. 590, 594, 411 A.2d

907, 909 (1980); Palmigiano v. State, 120 R.I. 402, 406-07, 387 A.2d 1382, 1385 (1978).

       Because this record demonstrates the existence of a genuine issue of material fact about

the question of exculpatory testimony and because the resolution of that question could impact

the resolution of the prejudice prong, summary dismissal under § 10-9.1-6(c) on the basis that

Reyes failed to establish prejudice was, under the terms of that statute, impermissible.

                                           Conclusion

       For all of these reasons, I would vacate the hearing justice’s summary dismissal of

Reyes’s claims of ineffective assistance of counsel. It is my opinion that the hearing justice

erred in granting postconviction counsel’s motion to withdraw and that Reyes did not receive the

assistance of counsel to which he was statutorily entitled. That alone warrants a remand for

further proceedings. Moreover, the majority improperly concludes that the hearing justice was

precluded from considering the Cepeda statement, which was undeniably relevant to Reyes’s

claims. The upshot of the majority’s decision is that Reyes will not receive full consideration of

the merits of the claimed violations of his fundamental constitutional right. Although Reyes may

look to a more hospitable forum for adjudication of this claim, see Martinez, 132 S. Ct. at 1318,

1320, the merits should have been adjudicated in this jurisdiction. Instead, the one-two punch of

the Shatney procedure, followed by an artificial application of this Court’s summary-judgment

standard to a document that was not submitted in opposition to a summary-dismissal motion, has

rendered the postconviction remedy a nullity in this case. Consequently, I respectfully dissent.




                                             - 47 -
                                   RHODE ISLAND SUPREME COURT CLERK’S
                                                 OFFICE

                                   Clerk’s Office Order/Opinion Cover Sheet




TITLE OF CASE:        Pedro Reyes v. State of Rhode Island.

CASE NO:              No. 2014-161-Appeal.
                      (PM 12-4701)

COURT:                Supreme Court

DATE OPINION FILED: July 11, 2016

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

WRITTEN BY:           Associate Justice Gilbert V. Indeglia

SOURCE OF APPEAL:     Providence County Superior Court

JUDGE FROM LOWER COURT:

                      Associate Justice Kristin E. Rodgers

ATTORNEYS ON APPEAL:

                      For Applicant: Camille A. McKenna
                                     Office of the Public Defender

                      For State:   Virginia M. McGinn
                                   Department of Attorney General
