                                                                     Supreme Court

                                                                     No. 2012-216-Appeal.
                                                                     (PM 01-1761)


              Robert Chiellini                 :

                     v.                        :

           State of Rhode Island.              :


                                            ORDER

       The applicant, Robert Chiellini, appeals from an October 10, 2003 judgment of the

Superior Court denying his application for postconviction relief.         In 1997, applicant was

convicted of first-degree murder, in violation of G.L. 1956 § 11-23-1. He was sentenced to a

term of life imprisonment, with an additional ten years to serve pursuant to the habitual offender

statute, G.L. 1956 § 12-19-21. This Court affirmed the judgment of conviction in 2000. State v.

Chiellini, 762 A.2d 450 (R.I. 2000).

       On April 5, 2001, following this Court’s affirmance of his conviction, applicant filed

a pro se application for postconviction relief pursuant to G.L. 1956 § 10-9.1-1.            In that

application, he argued that, as a result of what he contended was the ineffective assistance of his

trial counsel and prosecutorial misconduct, his constitutional rights had been violated.

       On April 8, 2002, applicant’s court-appointed attorney moved to withdraw as attorney of

record; in support of that motion, he filed a “no-merit” memorandum pursuant to Shatney v.

State, 755 A.2d 130, 135 (R.I. 2000). According to the attorney’s Shatney memorandum,

applicant’s claims for postconviction relief were based on the following: (1) that, according to



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applicant, the justice who presided at applicant’s bail hearing found that “the case presented by

the State constituted a second degree murder and should be resolved through a plea and [a]

sentence of twenty-five years to serve;” and (2) that a witness statement (missing from the

record) indicating that the victim “was breathing on her own” when she arrived at the hospital

could have been used to show that applicant was not “legally responsible if the emergency room

physician had caused [the victim’s] death * * * .” The attorney then set forth the reasons for his

conclusion that, after meeting with applicant and after reviewing “the trial transcript and the

appellate proceedings,” there was no merit to applicant’s claims. A hearing was held before a

justice of the Superior Court on the attorney’s motion to withdraw, which hearing applicant

attended. The attorney’s motion to withdraw was granted, and applicant proceeded pro se on his

application for postconviction relief.

       The applicant was thereafter afforded two additional hearings (one on February 27 and

the other on March 25, 2003) before a different justice of the Superior Court. 1 At the February

27, 2003 hearing, the hearing justice provided applicant with the opportunity to augment the

record, but applicant did not proffer any additional evidence in support of his claims. At the

March 25, 2003 hearing, applicant contended for the first time that he had been deprived of the

effective assistance of counsel because his trial attorney failed to inform him of a plea bargain

(viz., forty-five years to serve in exchange for a guilty plea) offered by the state prior to trial; in

support of that contention, applicant submitted, among other things, a transcript of a pretrial

evidentiary hearing held on November 12, 1997. The hearing justice then proceeded to read the

transcript line-by-line with applicant, focusing particularly on the portions referred to by



1
       Due to the death of the justice who was initially assigned to applicant’s case, the case was
assigned to another justice of the Superior Court, who presided at both of the subsequent
hearings.
                                                 -2-
applicant. However, the hearing justice found that there was nothing in that transcript to support

applicant’s contention relative to a proposed plea bargain. At the conclusion of the March 25,

2003 hearing, applicant stated that he did not have any additional evidence to submit in support

of his claims for postconviction relief. Subsequently, on June 16, 2003, with the permission of

the court, applicant filed a supplemental memorandum in support of his application.

       On October 10, 2003, the hearing justice issued an order denying applicant’s application

for postconviction relief. In rendering his decision, the hearing justice concluded as follows:

               “[The applicant] has offered no new relevant evidence. Nor has he
               offered any significant new legal arguments not previously
               considered and rejected as meritless by his post conviction [sic]
               attorney. [The applicant] has utterly failed to show that errors of
               the lawyers who represented him during the underlying trial
               proceedings were so serious as to violate his constitutional right to
               counsel and that his lawyers’ performance[s] were so deficient as
               to prejudice his defense.” (Internal quotation marks and original
               brackets omitted.)

The applicant filed a timely appeal to this Court.

       The statutory remedy of postconviction relief, as set forth in § 10-9.1-1, is “available to

any person who has been convicted of a crime and who thereafter alleges either that the

conviction violated the applicant’s constitutional rights or that the existence of newly discovered

material facts requires vacation of the conviction in the interests of justice.” Lynch v. State, 86

A.3d 390, 391 (R.I. 2014) (mem.) (internal quotation marks omitted). An applicant seeking

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

such relief is warranted in his or her case.” Brown v. State, 32 A.3d 901, 907 (R.I. 2011)

(internal quotation marks omitted).     In reviewing a denial of postconviction relief, we are

deferential to the hearing justice’s findings of fact, and we “will not disturb his or her ruling




                                                -3-
absent clear error or a showing that the [hearing] justice overlooked or misconceived material

evidence.” Tassone v. State, 42 A.3d 1277, 1283 (R.I. 2012) (internal quotation marks omitted).

       In the applicant’s written submission to this Court, he has summarized the procedural

posture of the case and his arguments before the Superior Court, but he has failed to indicate the

precise issues that he is challenging on appeal. It is well-settled that a “mere passing reference to

an argument * * * , without meaningful elaboration, will not suffice to merit appellate

review.” State v. Day, 925 A.2d 962, 974 n. 19 (R.I. 2007); see DeAngelis v. DeAngelis, 923

A.2d 1274, 1282 n. 11 (R.I. 2007) (“Simply stating an issue for appellate review, without a

meaningful discussion thereof or legal briefing of the issues, does not assist the Court in focusing

on the legal questions raised, and therefore constitutes a waiver of that issue.”) (internal

quotation marks omitted). It was contended at oral argument before this Court that the hearing

justice, in denying the application for postconviction relief, adopted the conclusions set forth in

the Shatney memorandum without reconsidering the applicant’s claims in light of the additional

evidence that the applicant had presented after the applicant’s court-appointed attorney’s motion

to withdraw was granted. However, as we have previously stated, “this Court will deem as

waived issues that the appellant fails to brief, despite being addressed at oral argument;”

accordingly, we hold that the applicant’s contentions in his written submission to this Court and

at oral argument have been waived. Rice v. State, 38 A.3d 9, 16 n. 10 (R.I. 2012). And, in any

event, the contention articulated at oral argument is clearly meritless in view of what transpired

at the hearing on March 25, 2003.

       We perceive no basis in the record for concluding that the hearing justice clearly erred or

overlooked or misconceived material evidence in denying the applicant’s postconviction relief




                                                -4-
application. See Tassone, 42 A.3d at 1283. Accordingly, we affirm the judgment of the

Superior Court.

       Entered as an Order of this Court this 20th day of June, 2014.


                                                           By Order,




                                                           _____________/s/_______________
                                                                       Clerk




                                              -5-
                          RHODE ISLAND SUPREME COURT CLERK’S OFFICE

                               Clerk’s Office Order/Opinion Cover Sheet




TITLE OF CASE:      Robert Chiellini v. State of Rhode Island.

CASE NO:            No. 2012-216-Appeal.
                    (PM 01-1761)

COURT:              Supreme Court

DATE ORDER FILED:   June 20, 2014

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

WRITTEN BY:         N/A – Court Order

JUDGE FROM LOWER COURT:

                    Associate Justice Edwin J. Gale

ATTORNEYS ON APPEAL:

                    For Applicant: Susan B. Iannitelli, Esq.

                    For State: Jeanine P. McConaghy
                               Department of Attorney General
