November 27, 2018



                                                                           Supreme Court

                                                                           No. 2016-251-M.P.
                                                                           (WM 13-101)



                         Luigi Ricci                  :

                              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. 2016-251-M.P.
                                                                      (WM 13-101)


                 Luigi Ricci                     :

                      v.                         :

           State of Rhode Island.                :


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

                                            OPINION

       Justice Robinson, for the Court. On August 29, 2016, Luigi Ricci petitioned this Court

for the issuance of a writ of certiorari to review a June 13, 2014 judgment entered against him in

Washington County Superior Court granting the state’s motion for summary judgment and

denying Mr. Ricci’s application for postconviction relief. On October 14, 2016, this Court

granted Mr. Ricci’s petition for a writ of certiorari.

       Mr. Ricci contends before this Court that the hearing justice erred in granting the motion

for summary judgment for the following reasons: (1) “ineffective assistance of counsel is a

material fact;” (2) “claims of ineffective assistance of counsel cannot be barred by res judicata;”

(3) the hearing justice did not hold an evidentiary hearing, which Mr. Ricci contends he was

entitled to given the severity of his sentence; (4) the hearing justice “utilized the ‘farce and

mockery’ standard which was abolished by this Court;” (5) the hearing justice “utilized a higher

standard of proof than the statute requires;” (6) “[t]he interest of justice requires that [Mr. Ricci]

be permitted to assert the tardiness of the habitual offender notice as grounds for relief;” and




                                                 -1-
(7) “[t]he interest of justice requires that [Mr. Ricci] be permitted to assert the lack of consent to

the amendment of the criminal indictment as grounds for relief.”

         This case came before the Supreme Court pursuant to an order directing the parties to

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

After a close review of the record and careful consideration of the parties’ arguments (both

written and oral), we are satisfied that cause has not been shown and that this case may be

decided at this time.

       For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.

                                                  I

                                         Facts and Travel

       On December 18, 2009, Mr. Ricci entered Francis Quinn’s home. Mr. Ricci knocked Mr.

Quinn to the floor and put his hands around Mr. Quinn’s throat before taking approximately forty

dollars from him and fleeing. Mr. Quinn recognized the assailant’s voice and identified him to

the police as Mr. Ricci. On September 30, 2010, Mr. Ricci was found guilty by a jury on the

following three counts: burglary, in violation of G.L. 1956 § 11-8-1; robbery in the first degree,

in violation of G.L. 1956 § 11-39-1(a)(3); and assault on a person over the age of sixty, in

violation of G.L. 1956 § 11-5-10. Mr. Ricci was sentenced as follows: (1) on the first count,

thirty years with twenty years to serve and ten years suspended with probation; (2) on the second

count, thirty years with twenty years to serve and ten years suspended with probation; and (3) on

the third count, ten years to serve. All sentences were to run concurrently. Additionally, at

sentencing, Mr. Ricci was declared an habitual offender and was sentenced to fifteen years with

at least ten years to serve before becoming eligible for parole, to run consecutively.




                                                -2-
       Mr. Ricci appealed to this Court and contended on appeal that the trial justice committed

reversible error in failing to adequately instruct the jury as to how to assess credibility, in failing

to instruct the jury that a history of drug abuse could weaken credibility, and in denying Mr.

Ricci’s motion for a new trial. This Court affirmed Mr. Ricci’s conviction in State v. Ricci, 54

A.3d 965 (R.I. 2012). In the course of relating the facts in that opinion, the Court made two

observations in footnotes to which Mr. Ricci directs our attention in the instant case. The first of

those footnotes is footnote 1, which reads as follows:

               “On [the assault count], the original indictment incorrectly charged
               defendant with violating G.L. 1956 § 11-5-20, rather than § 11-5-
               10. We pause to note that although the state later filed an ‘amended
               indictment’ correcting this error in open court, and defense counsel
               did not object, it is unclear from the record whether defendant
               himself consented to the ‘amended indictment’ in accordance with
               Rule 7 of the Superior Court Rules of Criminal Procedure.” Ricci,
               54 A.3d at 967 n.1.

Subsequently, in footnote 2, this Court stated the following:

               “It appears from our review of the record that the Attorney General
               did not present Ricci as a habitual offender either within forty-five
               days of the arraignment or prior to the date of the first pretrial
               conference, as required by the statute. However, this issue is not
               before us on appeal.” Id. at 967 n.2.

       On February 15, 2013, Mr. Ricci filed a pro se application for postconviction relief, in

which he alleged: (1) that the indictment in his case was “improperly amended without [his]

consent;” (2) that he was “improperly sentenced as an habitual offender because [he] was not

presented as an habitual offender within forty-five days of arraignment or prior to the first

pretrial conference;” and (3) that his “trial attorney was ineffective for failing to object to the

amendment of the indictment, and for failing to object to the untimely habitual offender notice

and sentence.”     Mr. Ricci was then provided with court-appointed counsel; that attorney

subsequently filed a no-merit memorandum and a motion to withdraw pursuant to the dictates of



                                                 -3-
Shatney v. State, 755 A.2d 130 (R.I. 2000). That motion was granted, and Mr. Ricci thereafter

engaged private counsel.

       In March of 2014, Mr. Ricci’s private counsel submitted a “Post Conviction Relief Pre-

Hearing Memorandum.” In that document, the above-summarized allegations were expanded to

include the further allegations that Mr. Ricci’s trial counsel had been ineffective for: (1) his

“failure to establish a sound theory of the case;” (2) his “failure to make effective and timely

objections” concerning the prosecutor’s opening statement, the direct and re-direct testimony of

Mr. Quinn, the testimony of Walter French,1 and the admission of the transcript of Mr. Quinn’s

911 call; (3) his “failure to effectively impeach the state’s key witness;” and (4) his “failure to

make an effective final argument.”

       On April 11, 2014, the state moved for summary judgment pursuant to G.L. 1956 § 10-

9.1-6.2 A hearing on that motion took place on June 13, 2014 in Superior Court. At the close of

that hearing, the hearing justice granted the state’s motion for summary judgment.


1
       Walter French was a former friend of Mr. Ricci who testified at trial.
2
       General Laws 1956 § 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


                                               -4-
       In rendering her opinion, the hearing justice began by describing at some length the

factual and procedural history of the case. The hearing justice next noted that the burden of

proof with respect to an application for postconviction relief was on the petitioner, Mr. Ricci.

She then began her analysis by addressing the contention that the habitual offender notice was

not filed at the appropriate time. She concluded that the notice was in fact timely and that,

regardless, the doctrine of res judicata barred consideration of the argument because it could

have been raised in Mr. Ricci’s direct appeal. With respect to the amendment of Mr. Ricci’s

indictment, she determined that the statutory citation error in the indictment was not prejudicial

to Mr. Ricci and, as such, was not an “error in form” as contemplated by Rule 7(e) of the

Superior Court Rules of Criminal Procedure, which would have required his consent to amend

the indictment. She further held that, in any event, that issue was similarly barred by the doctrine

of res judicata.

       The hearing justice also addressed the allegations of ineffective assistance of trial

counsel. She noted that Mr. Ricci had the burden of demonstrating the existence of a genuine

issue of material fact and that he could not rely on mere allegations, unsupported statements, and

pleadings. She concluded that Mr. Ricci had not met that burden because he had presented “no

affidavit or other evidence * * * that demonstrate[d] that [Mr. Ricci] was prejudiced inasmuch as

the jury would have acquitted him had it not been for counsel’s alleged defective examinations,

his inadequate final argument, and his failure to object at various times during the trial * * *.”

She also noted that there was “overwhelming evidence” against Mr. Ricci.

       Accordingly, on June 13, 2014, a judgment entered granting the state’s motion for

summary judgment and denying Mr. Ricci’s application for postconviction relief. On August 29,


               there is no genuine issue of material fact and the moving party is
               entitled to judgment as a matter of law.”


                                               -5-
2016, Mr. Ricci filed a petition for the issuance of a writ of certiorari for review of that

judgment, which petition this Court subsequently granted.

                                                 II

                                       Standard of Review

       We begin by noting that “[o]ur review of a case on certiorari is limited to an examination

of the record to determine if an error of law has been committed.” DeCurtis v. Visconti, Boren &

Campbell, Ltd., 152 A.3d 413, 420-21 (R.I. 2017) (internal quotation marks omitted). “In

addition to examining the record for judicial error, we inspect the record to discern if there is any

legally competent evidence to support the findings of the hearing justice below.” Id. at 421

(internal quotation marks omitted).

       Section 10-9.1-1 provides for the statutory remedy of postconviction relief, which 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 interest of justice.” Duvere v.

State, 151 A.3d 314, 317 (R.I. 2017) (internal quotation marks omitted). In the instant case, the

state moved for summary judgment pursuant to § 10-9.1-6.3 Under § 10-9.1-6(c), the hearing

justice is tasked with examining the pleadings, depositions, answers to interrogatories,

3
          We note that it is not clear from the state’s “Motion for Summary Judgment” whether it
was moving for summary dismissal pursuant to § 10-9.1-6(b) or (c). See footnote 2, supra. This
Court has stated that subsection (b) requires that the nisi prius court utilize the same standard as
it utilizes when dealing with a motion to dismiss pursuant to Rule 12(b)(6) of the Superior Court
Rules of Civil Procedure, whereas a decision pursuant to subsection (c) “closely resembles a
decision for summary judgment” under Rule 56 of the Superior Court Rules of Civil Procedure.
Palmigiano v. State, 120 R.I. 402, 404-05, 387 A.2d 1382, 1384 (1978).
          The state’s motion does not specify which subsection of § 10-9.1-6 is being relied upon.
It is titled as a “Motion for Summary Judgment.” However, it also references Rule 12(b)(6) as
the rule on which it is relying in moving to dismiss Mr. Ricci’s application. The hearing justice
clearly couched her decision as a decision pursuant to subsection (c). Accordingly, we conduct
our review of her decision pursuant to subsection (c).


                                                -6-
admissions, agreements of fact, and affidavits submitted and determining only whether or not

genuine issues of material fact exist; the hearing justice may not 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). As such, a summary dismissal under § 10-9.1-6(c) “closely resembles” a grant of

summary judgment under Rule 56 of the Superior Court Rules of Civil Procedure and “[t]he

standards for granting a § 10-9.1-6(c) [summary dismissal] motion are identical to those utilized

in passing on a summary judgment motion.” Palmigiano v. State, 120 R.I. 402, 405, 406, 387

A.2d 1382, 1384, 1385 (1978). Accordingly, “[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.” Id. at 406-07, 387 A.2d at 1385. Just as in cases that

deal with summary judgment pursuant to Rule 56, our review in this case is de novo. See Adams

v. Santander Bank, N.A., 183 A.3d 544, 547 (R.I. 2018).

                                                III

                                             Analysis

                                                 A

                                           Res Judicata

       We begin our analysis of Mr. Ricci’s contentions by addressing his contention in his pro

se application for postconviction relief that, in his original criminal case, notice that he would be

deemed an habitual offender if convicted was filed outside the time frame provided for in G.L.

1956 § 12-19-21(b). We shall also address his argument, set forth in his application for

postconviction relief, that the trial justice erred in permitting the amendment of his indictment




                                                -7-
without his consent, which consent he alleges was required pursuant to Rule 7(e) of the Superior

Court Rules of Criminal Procedure.4

       However, we need not delve any further into the specific facts forming the basis of Mr.

Ricci’s arguments in this portion of the opinion, due to our conclusion that his contentions were

barred by the doctrine of res judicata and could not be raised in Mr. Ricci’s application for

postconviction relief.

       The doctrine of res judicata as applied to applications for postconviction relief is codified

in § 10-9.1-8. Hall v. State, 60 A.3d 928, 931 (R.I. 2013); see also Ferrell v. Wall, 971 A.2d

615, 620 (R.I. 2009). That section provides in pertinent part as follows:

               “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.” Section 10-9.1-8.

Thus, the doctrine of res judicata “bars the relitigation of any issue that could have been litigated

in a prior proceeding, including a direct appeal, that resulted in a final judgment between the

same parties, or those in privity with them.” Hall, 60 A.3d at 932 (internal quotation marks

omitted); see Lamoureux v. State, 93 A.3d 958, 962 (R.I. 2014); see also Campbell v. State, 56

A.3d 448, 457 (R.I. 2012); Bossian v. Anderson, 991 A.2d 1025, 1027 (R.I. 2010). It is clear that

the same parties who were involved in Mr. Ricci’s direct appeal (viz., the state and Mr. Ricci) are

involved in the instant application for postconviction relief. Additionally, Mr. Ricci’s direct

appeal clearly resulted in a final judgment. And, most importantly, Mr. Ricci could have raised

4
       Mr. Ricci further contends that his trial counsel was ineffective for failing to raise the
allegedly untimely filing of the habitual offender notice and for failing to object to the
amendment of the indictment. Those contentions are addressed in Part III.B, infra.



                                                -8-
his contention with respect to the timeliness of the habitual offender notice in his direct appeal.

He could also have raised at that time his contention that it was error for the trial justice to allow

the amendment of his indictment without his consent. For those reasons, those contentions are

barred from consideration before this Court.5

       As § 10-9.1-8 states, there is an exception to the application of the doctrine of res

judicata in postconviction relief cases when the Court finds that the contention should be

considered “in the interest of justice.” Mr. Ricci argues, in his supplemental memorandum filed

in accordance with Article I, Rule 12A of the Supreme Court Rules of Appellate Procedure, that

that exception applies to this case. We have stated that “the interest of justice” exception “can be

defined only upon a review of the facts in a particular case.” Ferrell, 971 A.2d at 621. After our

thorough review of the record and the arguments presented to this Court, we simply cannot

conceive of any reason—nor have we been directed to any reason other than with respect to the

length of his sentence—that the “interest of justice” exception is applicable to this case.

       Accordingly, in our judgment, Mr. Ricci’s contention that he received the habitual

offender notice out of time and his contention that the trial justice erred in allowing the

amendment of Mr. Ricci’s indictment are barred.




5
        Mr. Ricci has raised in this case, with particular reference to the amendment to the
indictment, the issue of whether or not a contention of ineffective assistance of counsel can be
barred by the doctrine of res judicata. We need not address that issue. Mr. Ricci’s contention
that the trial justice impermissibly permitted the amendment of his indictment, in his pro se
application for postconviction relief, is barred by res judicata. With respect to his contention
that his trial counsel was ineffective for failing to object to the amendment, he has failed to
present any evidence to show a genuine issue of material fact. See Part III.B, infra.



                                                -9-
                                                    B

                                  Ineffective Assistance of Counsel

          It is well settled that we “pattern [our] evaluations of the ineffective assistance of counsel

claims under the requirements of” Strickland v. Washington, 466 U.S. 668 (1984). Barros v.

State, 180 A.3d 823, 828 (R.I. 2018) (internal quotation marks omitted). That standard consists

of two prongs, and a defendant must satisfy both prongs. Id. at 829. First, an applicant for

postconviction relief must prove that “counsel’s performance was deficient, to the point that the

errors were so serious that trial counsel did not function at the level guaranteed by the Sixth

Amendment;” counsel’s performance “must have fallen below an objective standard of

reasonableness * * * considering all the circumstances.” Page v. State, 995 A.2d 934, 942 (R.I.

2010) (internal quotation marks omitted).                  There is “a strong (albeit rebuttable)

presumption * * * that counsel’s performance was competent” and that “counsel’s strategy and

tactics fall within the range of reasonable professional assistance.” Barros, 180 A.3d at 829

(internal quotation marks omitted).

          To satisfy the second prong of the Strickland standard, an applicant must “demonstrate

that the deficient performance was so prejudicial to the defense and the errors were so serious as

to amount to a deprivation of the applicant’s right to a fair trial.” Page, 995 A.2d at 943 (internal

quotation marks omitted); see also Young v. State, 877 A.2d 625, 629 (R.I. 2005). Specifically,

the second prong of Strickland “requires a showing that there is a reasonable probability that, but

for counsel’s unprofessional errors, the result of the proceeding would have been different.”

Barros, 180 A.3d at 829 (emphasis in original) (internal quotation marks omitted). “[It] is a

‘highly demanding and heavy burden.’” Id. (quoting Knight v. Spencer, 447 F.3d 6, 15 (1st Cir.

2006)).




                                                  - 10 -
       In his application for postconviction relief and his subsequent “Post Conviction Relief

Pre-Hearing Memorandum,” Mr. Ricci raised numerous allegations of ineffective assistance of

counsel. It was his contention that his counsel was ineffective in the following ways: (1) “failing

to object to the untimely habitual offender notice and sentence;” (2) “failing to object to the

amendment of the indictment;” (3) failing to “establish a sound theory of the case;” (4) failing to

“make effective and timely objections,” specifically as to the prosecutor’s mention of Mr. Ricci’s

potential alibi witness during her opening statement, the prosecutor’s reading of a document to

Mr. Quinn during his direct testimony, leading questions during the re-direct examination of Mr.

Quinn, leading questions during the testimony of Walter French, and admission of the redacted

transcript from Mr. Quinn’s 911 call; (5) failing to effectively impeach Mr. Quinn; (6) failing to

make an effective closing argument; and (7) failing to “demand DNA testing for blood found at

the scene of the crime.”6

       Before this Court, Mr. Ricci contends that the hearing justice erred in granting summary

judgment in the state’s favor on his claims of ineffective assistance of counsel. Specifically, he

posits that “ineffective assistance of counsel is a material fact” because determinations of

credibility cannot be made at the summary judgment stage. He cites to the following sentence in

Randall v. State, 609 A.2d 949 (R.I. 1992), to support his contention: “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.” Randall, 609 A.2d at 950. Finally, it is his contention that

the hearing justice could not make credibility determinations without an evidentiary hearing.




6
       The allegation of ineffective assistance of counsel with respect to the failure to demand
DNA testing was first raised in Mr. Ricci’s June 6, 2014 “Addendum to the Memorandum of
Law in Objection to Responden[t]’s Motion for Summary Judgment.”


                                              - 11 -
       We must first address the Randall case on which Mr. Ricci relies. While Mr. Ricci

accurately quotes from that opinion, we are of the view that the statement in that opinion to the

effect that allegations of ineffective assistance of counsel raise issues of fact that cannot be

disposed of by way of summary judgment is not a blanket statement intended to apply to every

allegation of ineffective assistance of counsel.

       We turn next to Mr. Ricci’s contention that his trial counsel was ineffective for failing to

raise the allegedly untimely filing of the habitual offender notice. Section 12-19-21(b) states in

pertinent part as follows:

               “Whenever it appears a person shall be deemed a ‘habitual
               criminal,’ the attorney general, within forty-five (45) days of the
               arraignment, but in no case later than the date of the pretrial
               conference, may file with the court a notice specifying that the
               defendant, upon conviction, is subject to the imposition of an
               additional sentence in accordance with this section[.]”

In the instant case, Mr. Ricci was arraigned on April 8, 2010. The habitual offender notice was

filed on June 21, 2010. Mr. Ricci contends that the first pretrial conference in the instant case

occurred on May 17, 2010. However, the hearing justice stated that the May 17, 2010 pretrial

conference was “vacated” and was conducted on June 21, 2010 instead. Our review of the

record confirms the hearing justice’s statement. Thus, the habitual offender notice in the instant

case was filed outside the forty-five day window provided for in the statute, but on the same day

as the first pretrial conference. In State v. Peterson, 722 A.2d 259 (R.I. 1998), this Court held

that an habitual offender notice filed outside the forty-five day window provided for in the

statute but before the first pretrial conference was timely. Peterson, 722 A.2d at 263-64, 265. In

that case, the arraignment took place on July 22. Id. at 263. The pretrial conference had been

continued due to the defendant’s “difficult relationship with attorneys who were appointed to

represent him” from September 2 (within the forty-five day window) to November 18 (outside



                                               - 12 -
the window). Id. The habitual offender notice was filed on November 10, outside the forty-five

day window. Id. We specifically stated in Peterson that “[t]he state should not be deprived of its

statutory right to seek enhanced sentencing merely because a pretrial conference is continued.”

Id. at 265. Given the existence of such a holding in our jurisprudence, it cannot be said that an

attorney was ineffective for failing to raise an argument about a purported untimely filing of the

habitual offender notice in this case. Accordingly, we perceive no reversible error by the hearing

justice with respect to the issue of the ineffectiveness of trial counsel for failure to raise the

timeliness of the habitual offender notice.

       The next allegation of ineffective assistance of counsel to be addressed is Mr. Ricci’s

contention that it was ineffective for his counsel to have failed to object to the amendment of his

indictment. He contends that the amendment of his indictment required his consent and, as this

Court noted in Ricci, 54 A.3d at 967 n.1, that consent was not given. Rule 7(e) of the Superior

Court Rules of Criminal Procedure provides in pertinent part as follows:

                “At any time prior to verdict or finding, the court may with the
               consent of the defendant permit the indictment to be amended to
               correct an error in form or the description of the offense intended
               to be charged or to charge a lesser included offense.”

Meanwhile, Rule 7(c) states in pertinent part:

               “Error in the citation or its omission shall not be grounds for
               dismissal of the indictment, information, or complaint or for
               reversal of a conviction if the error or omission did not mislead the
               defendant to the defendant’s prejudice.”

As the hearing justice noted in the instant case, this Court reconciled those two rules in State v.

Donato, 414 A.2d 797 (R.I. 1980). In that case, we were likewise confronted with an error as to

a statutory citation in the indictment. Donato, 414 A.2d at 801. We held that “a nonprejudicial

error in statutory citation simply * * * could not properly be deemed to be a Rule 7(e) ‘error in




                                                 - 13 -
form.’” Id. at 802. As such, it was our holding that in such circumstances the defendant’s

consent was not required to correct such an error. Id. at 802-03. We went on to state that only if

the error were prejudicial to the defendant would it be deemed an “error in form” under Rule 7(e)

requiring the defendant’s consent to amend the indictment. Id. We held that the citation error in

the indictment in that case was not prejudicial. Id. at 804.

       The indictment in the instant case charged Mr. Ricci with “knowingly and willfully

commit[ting] an assault and battery upon Francis Quinn, he being a person over Sixty (60) years

of age, causing bodily injury, in violation of § 11-5-20 of the General Laws of Rhode

Island * * *.” The citation in the indictment should have been to § 11-5-10 rather than § 11-5-

20. That error was certainly not prejudicial to Mr. Ricci, because it was clear what crime he was

being charged with from the text of the indictment. See Donato, 414 A.2d at 804. The citation

error was clearly of the de minimis variety. As such, Mr. Ricci’s consent was not required for

the indictment to be amended. We perceive no error on the part of the hearing justice in finding

that there was no evidence to demonstrate a genuine issue of material fact concerning Mr. Ricci’s

allegation that his trial counsel was ineffective in failing to object to the amendment of the

indictment.

       What is more, with respect to the remaining allegations of ineffective assistance of

counsel, our thorough review of the hearing justice’s decision indicates that, contrary to the

assertion of Mr. Ricci, she did not make credibility determinations. Rather, it was her clear

holding that Mr. Ricci had produced no evidence to indicate that any of the remaining allegedly

ineffective actions or inactions by his trial counsel had resulted in any prejudice to him;

specifically, she found that Mr. Ricci was relying on mere allegations and the fact that he was

ultimately convicted. After our review of the record in this case, we are in agreement with the




                                               - 14 -
hearing justice. See Page, 995 A.2d at 943 (discussing the second prong of the Strickland

standard). Mr. Ricci has not produced any evidence to indicate that a genuine issue of material

fact exists with respect to whether, but for the allegedly ineffective actions or inactions of trial

counsel, the result of his trial would have been different. See Barros, 180 A.3d at 829. The

operative rules do not permit Mr. Ricci to rely solely on “mere allegations or denials in the

pleadings, mere conclusions or mere legal opinions.”               Moura v. Mortgage Electronic

Registration Systems, Inc., 90 A.3d 852, 856 (R.I. 2014) (internal quotation marks omitted); see

also Coccoli v. Town of Scituate Town Council, 184 A.3d 1113, 1117-18 (R.I. 2018) (stating that

“the burden is on the nonmoving party to produce competent evidence that prove[s] the existence

of a disputed issue of material fact”) (internal quotation marks omitted). Moreover, we note that

there was strong evidence of Mr. Ricci’s guilt, including the fact that Mr. Quinn identified Mr.

Ricci as his attacker. Thus, given the fact that Mr. Ricci did not produce any evidence to show

the existence of a genuine issue of material fact with respect to the second prong of the

Strickland standard, the state was entitled to judgment as a matter of law on the remaining

allegations of ineffective assistance of counsel. See § 10-9.1-6(c); see also Doyle, 122 R.I. at

593-94, 411 A.2d at 909.

       Accordingly, we perceive no reversible error in the hearing justice’s grant of summary

disposition as to the allegations of ineffective assistance of counsel in this case.

                                                  C

                                Other Issues Raised by Mr. Ricci

       Mr. Ricci raises two additional contentions before this Court. He posits that he should

have been given an evidentiary hearing on his application for postconviction relief due to the




                                                - 15 -
length of his sentence. He further avers that the hearing justice inappropriately used “farce and

mockery” language in assessing his application. We shall address these contentions in turn.

       We first address Mr. Ricci’s contention that he was entitled to an evidentiary hearing due

to the severity of his sentence. This Court stated in Tassone v. State, 42 A.3d 1277 (R.I. 2012),

that an evidentiary hearing is required in the first application for postconviction relief in any case

in which the applicant was sentenced to life without the possibility of parole. Tassone, 42 A.3d

at 1287. Mr. Ricci has not been sentenced to life without the possibility of parole; and, therefore,

Tassone is inapplicable. Additionally, we decline at this time to consider extending the holding

in Tassone.

       Mr. Ricci further argues that the hearing justice inappropriately used what Mr. Ricci

characterizes as the “farce and mockery” standard when assessing his contentions that his trial

counsel was ineffective. Specifically, the hearing justice stated as follows:

               “[A] Court deciding an actual ineffective assistance claim must
               judge the reasonableness of counsel’s challenged conduct on the
               facts of the particular case viewed as of the time of counsel’s
               conduct. It is an extremely high standard that requires the
               petitioner to demonstrate that representation made a farce or a
               mockery out of the trial proceeding.”

Mr. Ricci correctly states that this Court abrogated the “farce and mockery” language in Reyes v.

State, 141 A.3d 644, 656 (R.I. 2016).7 We stated therein that “[h]enceforth, claims of ineffective

assistance of counsel * * * shall continue to be decided by reference to the familiar performance

and prejudice prongs of the Strickland standard.” Id.




7
        We stated, in Reyes v. State, 141 A.3d 644 (R.I. 2016), that “the farce-and-mockery
language * * * is a relic of a bygone era that has no place in assessing claims of ineffective
assistance of counsel after Strickland.” Reyes, 141 A.3d at 656.



                                                - 16 -
        We note initially that the Reyes opinion was issued on July 11, 2016, more than two years

after the June 13, 2014 decision of the hearing justice in this case. What is more, after our

intensive review of the hearing justice’s decision, it is clear to us that she also properly

articulated the Strickland standard; and we are convinced that she utilized the appropriate

standard in addressing Mr. Ricci’s allegations of ineffective assistance of counsel. We point out

as well that in Reyes “[w]e [did] not imply that the difference in phraseology between the

performance and prejudice prongs of Strickland * * * and the farce-and-mockery language

would necessarily make a difference in the adjudication of an ineffective-assistance-of-counsel

claim in any particular case; indeed, we suspect[ed] that such a difference would exist ‘only in

the rarest case.’” Id. at 656 n.17 (quoting Strickland, 466 U.S. at 668).8

        In conclusion, after an exhaustive review of the record in this case and careful

consideration of the numerous issues raised by Mr. Ricci, we cannot perceive any reversible

error in the granting of summary disposition in the state’s favor in this case.

                                                 IV

                                            Conclusion

        Accordingly, we affirm the judgment of the Superior Court. We remand the record to

that tribunal.




8
        Mr. Ricci makes an additional argument in his supplemental memorandum filed in
accordance with Article I, Rule 12A of the Supreme Court Rules of Appellate Procedure to the
effect that the hearing justice should have employed a “satisfaction of the court” standard under
§ 10-9.1-6(b) in assessing Mr. Ricci’s application, whereas she instead asked Mr. Ricci’s counsel
what evidence would be presented that would “definitively prove” that the result in his case
would have been different but for the ineffectiveness of his counsel. There is no merit to this
contention. The hearing justice was utilizing § 10-9.1-6(c), not subsection (b), and it is clear
from perusal of her decision that she was not requiring definitive proof of a different outcome
but rather some evidence to show that a genuine issue of fact existed as to whether or not the
result of Mr. Ricci’s trial would have been different but for the alleged errors by trial counsel.


                                               - 17 -
STATE OF RHODE ISLAND AND                                  PROVIDENCE PLANTATIONS



                         SUPREME COURT – CLERK’S OFFICE

                                 OPINION COVER SHEET

Title of Case                        Luigi Ricci v. State of Rhode Island.
                                     No. 2016-251-M.P.
Case Number
                                     (WM 13-101)
Date Opinion Filed                   November 27, 2018
                                     Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
                                     Indeglia, JJ.
Written By                           Associate Justice William P. Robinson III

Source of Appeal                     Washington County Superior Court

Judicial Officer From Lower Court    Associate Justice Kristin E. Rodgers
                                     For Petitioner:

                                     Jodi M. Gladstone, Esq.
Attorney(s) on Appeal
                                     For State of Rhode Island:

                                     Owen Murphy
                                     Department of Attorney General




SU-CMS-02A (revised June 2016)
