June 22, 2018



                                                                    Supreme Court

                                                                    No. 2016-143-Appeal.
                                                                    (PM 09-5227)
                   Angel Navarro                  :

                          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. 2016-143-Appeal.
                                                                       (PM 09-5227)
                   Angel Navarro                    :

                          v.                        :

               State of Rhode Island.               :



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

                                            OPINION

          Chief Justice Suttell, for the Court. The applicant, Angel Navarro,1 appeals from a

postconviction-relief judgment in favor of the State of Rhode Island and against Navarro. In

those proceedings, Navarro challenged the trial court’s acceptance of his nolo contendere plea on

a second-degree murder charge. Navarro’s plea was “capped” at sixty years, with forty years to

serve and twenty years suspended with probation following his release, and the maximum

sentence was imposed.          This matter came before the Supreme Court 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 considering the parties’ written and oral submissions and reviewing

the record, we conclude that cause has not been shown and we proceed to decide the appeal at

this time. For the reasons set forth herein, we affirm the judgment of the Superior Court.

                                                   I

                                    Facts and Procedural History

          On August 19, 1999, Alfred C. Moon, M.D., was found dead inside his residence. From

1999 to 2004, police investigated Dr. Moon’s mysterious death, to no avail. Then, on June 23,



1
    Mr. Navarro is also identified in the record as Victor Medina, an apparent alias.
                                                  -1-
2004, after police received information about a potential suspect, Navarro was arrested. On July

8, 2005, a grand jury indicted Navarro for murder in violation of G.L. 1956 §§ 11-23-1 and 11-

23-2. On November 16, 2006, Navarro entered into a plea agreement, whereby he pled nolo

contendere to an amended charge of second-degree murder, and his sentence was “capped” at

sixty years, with forty years to serve and the twenty-year balance suspended with probation.

       The plea proceedings began with the state’s motion to amend the charge to second-degree

murder, which the hearing justice granted. Next, the hearing justice asked if Navarro understood

that by entering his plea he would be giving up the rights contained in the plea form; to which

Navarro responded, “Yes.” The hearing justice then asked Navarro if he had reviewed the plea

form with his attorney (trial counsel). Navarro again responded in the affirmative. At this point,

trial counsel asked the hearing justice for an opportunity to speak with Navarro about “a

question” regarding, as the attorney described it, “the back end of the number which I did not go

over with [Navarro].” Then, trial counsel and Navarro conferred off the record.

       Subsequently, the hearing justice informed Navarro that he was giving up his right to a

trial and explained to Navarro what it meant to give up that right. The hearing justice then asked

Navarro if he had any questions, to which Navarro responded, “No, your Honor.” Following

Navarro’s acceptance of the prosecution’s statement of the facts as true, the hearing justice

informed Navarro that the plea was capped and agreed upon by Navarro, the state, and trial

counsel. The hearing justice further explained that the sentence could be no more than sixty

years with forty years to serve and asked Navarro: “If I accept your plea and cap that sentence

with those years, you can’t change your mind later on about this. Do you understand?” Navarro

responded that he understood. The hearing justice indicated that the sentencing was to be held at

a separate hearing, at which time the court would consider a presentence report and the



                                              -2-
recommendations of the state and trial counsel. The hearing justice further informed Navarro

that he would also have an opportunity to address the court.

       Again, the hearing justice said to Navarro: “If the maximum sentence is imposed that can

be imposed under this agreement, you could end up spending [forty] years in prison. Do you

understand that?” Navarro replied, “Yes.” The hearing justice then warned Navarro that during

the entire sixty-year sentence, if imposed, he would have to abide by the terms of his probation,

to which Navarro again responded that he understood. Lastly, the hearing justice asked Navarro

if he had any questions, to which Navarro replied, “No.”

       On December 13, 2006, the same justice conducted Navarro’s sentencing hearing. At

that time, Dr. Moon’s colleague, his two sons, and his daughter addressed the court. Navarro’s

mother and wife2 also addressed the court, as did Navarro. In his statement, Navarro apologized

to Dr. Moon’s family and expressed remorse.

       During the sentencing hearing, trial counsel made a sentence recommendation on

Navarro’s behalf. He stated that “[Navarro] is sincere when he says that his only wish and

prayer would be to reverse the events of August 17, 1999 that led to such a tragedy” and that

Navarro “has admitted to being responsible for the death of Dr. Moon.” Trial counsel described

Navarro’s difficult upbringing and pointed out that the totality of his criminal past was

nonviolent and related to his challenges with addiction. Trial counsel chronicled the events that

occurred on the night of the murder from Navarro’s perspective and provided a very detailed

recitation of the circumstances that led to Dr. Moon’s death. He noted that Navarro had been

released from prison three days prior to Dr. Moon’s murder, after serving time for heroin




2
  We note that the transcript of the sentencing hearing is missing three pages that we presume
include part of Navarro’s wife’s statement to the court.
                                              -3-
possession. Earlier that day, Navarro had “sniffed” two bags of heroin and had been drinking

heavily.

       Additionally, trial counsel cited to his research on sentences in other second-degree

murder cases, which revealed terms of less than five years to up to forty years to serve. He

further noted that the average sentence of the thirty-six cases he examined was fifty years with

twenty-seven years to serve. He distinguished the instant case from others, arguing that in this

case “[t]here was a degree of provocation and an element of self-defense.” He further argued

that Navarro’s sentence should be reduced because he had taken responsibility for Dr. Moon’s

death, showed genuine remorse, and demonstrated “a true sense of trying to right his wrongs.”

       Furthermore, trial counsel explained that Navarro had “assisted the prosecution in the

United States District Court for charges that occurred while [Navarro] was serving at the [Adult

Correctional Institutions] and witnessed an alleged crime.”        In summation, trial counsel

recommended that Navarro be sentenced to forty years with fifteen to twenty years to serve, and

trial counsel also recommended that Navarro participate in treatment for anger management and

substance abuse.

       After reviewing the facts of the case, the hearing justice noted that, for four years while

law enforcement worked to solve Dr. Moon’s murder, Navarro failed to take responsibility and

remained at large. In addition, the hearing justice noted the severity of the attack, Navarro’s

criminal history, his likelihood of rehabilitation, and trial counsel’s research on sentencing in

second-degree murder cases. The hearing justice sentenced Navarro to the maximum sentence

under the capped plea agreement: sixty years imprisonment, with forty years to serve and twenty

years suspended with probation following Navarro’s release.




                                              -4-
       On September 11, 2009, Navarro filed a pro se application for postconviction relief.

Navarro sought to have his sentence vacated pursuant to G.L. 1956 § 10-9.1-1. He essentially

asserted two arguments in support of his application for postconviction relief: (1) ineffective

assistance of counsel and (2) failure by the hearing justice to adequately explain to Navarro his

waiver of constitutional rights when he pled nolo contendere. On October 23, 2009, the state

filed its answer and a motion to dismiss Navarro’s application for postconviction relief. On

September 21, 2010, Navarro’s court-appointed counsel for his postconviction-relief application

(postconviction counsel) entered an appearance on his behalf.

       Prior to the postconviction-relief hearing, postconviction counsel filed a motion to

withdraw in accordance with the procedures outlined in Shatney v. State, 755 A.2d 130 (R.I.

2000). See also Campbell v. State, 56 A.3d 448, 455-56 (R.I. 2012) (indicating that in Shatney,

we set forth a mechanism that allows “an attorney * * * appointed to represent an indigent

applicant [to] withdraw from that representation when it becomes clear, after a reasonable

investigation, that some or all of the applicant’s claims lack merit”).

       On October 20, 2011, a justice of the Superior Court heard the parties on Navarro’s

application for postconviction relief. The postconviction-relief justice noted that “[t]he [c]ourt

* * * appointed an attorney to investigate the petitioner’s claim to determine if there was any

merit to the same.” Navarro’s postconviction counsel indicated that he had been “appointed in

this case to represent Mr. Navarro in his [postconviction-relief] petition.”       Postconviction

counsel reported to the justice that, after he obtained the case, he met with Navarro

approximately four times.      In addition, postconviction counsel stated that he reviewed all

pertinent exhibits and transcripts. He also spoke with trial counsel “at length at least four times

regarding the actual plea.” Postconviction counsel then submitted to the justice that, based on



                                                -5-
his review of the case, Navarro understood the ramifications of his plea.                Moreover,

postconviction counsel stated: “In my professional opinion, there is no reasonable avenue by way

of [postconviction] [r]elief that Mr. Navarro could gain through this petition.” Therefore, he

asked the justice for permission to withdraw as Navarro’s counsel. In response to his counsel’s

request to withdraw, Navarro stated that he agreed with postconviction counsel’s summary of the

facts relating to what postconviction counsel had done in his case.

       At that point during the proceedings, the postconviction-relief justice told Navarro, “[I]t’s

my responsibility * * * after I receive a report from an attorney * * * to kind of go through the

facts myself to make sure that I think he’s covered everything. And I’m satisfied there is an

accurate record to substantiate what he’s just said before the [c]ourt.” The justice further

indicated that she “had a couple of opportunities” to review the record. She reviewed the plea

form, the transcript of the plea hearing, the transcript of the sentencing hearing, postconviction

counsel’s memorandum, and, in particular, the section in which postconviction counsel

summarized his conversations with trial counsel.

       The postconviction-relief justice found, after reviewing the entire record, that Navarro

entered his plea “with knowledge, consent, voluntarily, understanding what was happening, the

nature of the plea, [and] the consequences of it” and that Navarro’s trial counsel provided “more

than adequate representation.” The justice also agreed with postconviction counsel’s conclusion

that Navarro’s claims lacked merit and, accordingly, decided that she was “going to allow

[postconviction counsel] to withdraw.” No order was entered as to either decision at that time.

       Upon issuing her decision orally, the postconviction-relief justice informed Navarro that

he had a right to further pursue the matter pro se. Navarro responded that he did not wish to

pursue the matter, but instead he sought to file a motion for modification of his sentence. In



                                               -6-
response, the justice scheduled a future status date and indicated that Navarro could utilize the

time prior to his next court date to consider his strategy moving forward.           Navarro again

informed the justice that he did not want to pursue his postconviction-relief application;

however, the justice persisted in scheduling the matter for a further court date. She noted that the

future date would give Navarro the opportunity to “talk to [postconviction counsel] about the

sentencing issue * * *.” The justice further informed postconviction counsel that, after he spoke

with Navarro, he would be allowed to withdraw as Navarro’s postconviction counsel.

       In a letter dated October 29, 2011, Navarro wrote to an attorney (former counsel) who

had represented him prior to his representation by trial counsel. In the letter, Navarro asked

former counsel to send him the name of the prosecutor who had offered a plea deal that

purportedly would have given Navarro assistance with his sentence if he provided testimony in

an unrelated case. Former counsel sent a letter in response, wherein he provided Navarro with

the prosecutor’s name and explained that the prosecutor did in fact consider Navarro’s testimony

and that the prosecutor’s consideration resulted in a proposed thirty-two-year sentence. Former

counsel further explained in the letter that, because Navarro decided not to take the thirty-two-

year offer and instead retained a new attorney, Navarro would have needed to raise the

previously proposed plea agreement at his sentencing hearing.

       The matter was again before the postconviction-relief justice on March 16, 2012. At that

time, Navarro discussed the letter that he had received from his former counsel regarding the

offer of a thirty-two-year sentence. Navarro argued that the letter was “proof [he] was getting

[thirty-two] years.” The postconviction-relief justice concluded, as former counsel stated in the

letter, that Navarro had no plea agreement with the state and had not raised the state’s offer at his

sentencing. She further informed Navarro that he needed to put forth “something different”



                                                -7-
because in the prior hearing she had already decided that Navarro did not receive ineffective

assistance from his trial counsel. Navarro responded by expressing his intention to file an appeal

with this Court. The justice then instructed Navarro to speak with postconviction counsel about

the timing of his appeal. In addition, the justice asked postconviction counsel to prepare an order

that indicated she had accepted postconviction counsel’s Shatney memorandum, that Navarro

had “nothing new to offer other than what [the postconviction-relief justice] discussed before,”

and that Navarro intended to file an appeal.

         On April 18, 2012, Navarro filed a pro se notice of appeal to this Court. During an

August 1, 2012 status conference, Navarro stated: “I just wanted to appeal to the Supreme

Court.” The postconviction-relief justice indicated that an order was to be entered in the case at

the end of the week. The postconviction-relief justice then confirmed orally on the record that

Navarro’s application for postconviction relief was denied; however, no order was entered at that

time. On April 27, 2016, judgment entered on Navarro’s application for postconviction relief in

favor of the state and against Navarro.3 On October 4, 2017, Navarro filed a motion for the

appointment of counsel, which this Court granted.

                                                 II

                                        Standard of Review

         Under Rhode Island law, a defendant can seek postconviction relief pursuant to

§ 10-9.1-1. Postconviction relief “is available to a defendant convicted of a crime who contends

that his original conviction or sentence violated rights that the state or federal constitutions

secured to him.” Bell v. State, 71 A.3d 458, 460 (R.I. 2013) (quoting Chapdelaine v. State, 32

A.3d 937, 941 (R.I. 2011)). “Accordingly, in all criminal prosecutions, one who alleges the



3
    This Court has not been made aware of the reason for the delay in the entry of judgment.
                                                -8-
infringement of his or her constitutional Sixth Amendment right to the assistance of counsel may

avail his or herself of the postconviction-relief process.” Rice v. State, 38 A.3d 9, 16 (R.I. 2012).

“‘[T]he burden of proving, by a preponderance of the evidence, that such [postconviction] relief

is warranted’ falls on the applicant.” Motyka v. State, 172 A.3d 1203, 1205 (R.I. 2017) (quoting

Anderson v. State, 45 A.3d 594, 601 (R.I. 2012)). “This Court will not disturb a [hearing]

justice’s factual findings made on an application for post[]conviction relief absent clear error or a

showing that the [hearing] justice overlooked or misconceived material evidence in arriving at

those findings.” Chapdelaine, 32 A.3d at 941 (quoting Gordon v. State, 18 A.3d 467, 473 (R.I.

2011)). In addition, we will not disturb a hearing justice’s credibility determinations unless the

applicant shows, by a preponderance of the evidence, that the hearing justice was clearly wrong.

Guerrero v. State, 47 A.3d 289, 299 (R.I. 2012). “We will, however, ‘review de novo any

post[]conviction[-]relief decision involving questions of fact or mixed questions of law and fact

pertaining to an alleged violation of an applicant’s constitutional rights.’” Bell, 71 A.3d at 460

(quoting Chapdelaine, 32 A.3d at 941). “Even when applying the de novo standard of review to

such issues, however, ‘we still accord a hearing justice’s findings of historical fact, and

inferences drawn from those facts, great deference * * *.’” Jolly v. Wall, 59 A.3d 133, 138 (R.I.

2013) (quoting Anderson, 45 A.3d at 601).

                                                III

                                             Analysis

       On appeal, Navarro essentially asserts the same arguments that he raised in Superior

Court, albeit now with greater clarity. He contends that he received ineffective assistance from

his trial counsel and that the hearing justice committed judicial error. Pursuant to his ineffective-

assistance-of-counsel argument, Navarro contends that he signed the plea form, which he



                                                -9-
maintains was blank at the time, only because trial counsel informed him and his family that the

sentence would be fifteen years or, at most, seventeen years. He further cites to a section of the

plea transcript where his trial counsel asked the hearing justice for an opportunity to confer with

Navarro about “the back end of the number * * *.” It is at that point in time, Navarro contends,

that trial counsel informed him “not to worry about the number [forty] [because he] was going to

serve in the teens.”

       Navarro similarly supplements his judicial-error argument on appeal. He avers that the

hearing justice failed to ask Navarro “if anybody made threats or promises” to him during the

plea negotiations. He maintains that he would have responded in the affirmative to such an

inquiry.

                                                A

                       Ineffective Assistance of Counsel and Judicial Error

       “This Court adheres to the standard set forth by the United States Supreme Court in

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), when

evaluating claims of ineffective assistance of counsel.” Chapdelaine, 32 A.3d at 941 (quoting

Rodriguez v. State, 941 A.2d 158, 162 (R.I. 2008)). In order to prevail on a claim of ineffective

assistance of counsel, an applicant must satisfy two criteria. Id. “First, the applicant must

demonstrate 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.” Id. (quoting

Rodriguez, 941 A.2d at 162). “This prong can be satisfied only by a showing that counsel’s

representation fell below an objective standard of reasonableness.” Id. (quoting Rodriguez, 941

A.2d at 162). In our evaluation of counsel’s performance, “a strong presumption” exists “that an

attorney’s performance falls within the range of reasonable professional assistance and sound



                                              - 10 -
strategy * * *.” Rivera v. State, 58 A.3d 171, 180 (R.I. 2013) (quoting Rice, 38 A.3d at 17).

“Second, the defendant must show that the deficient performance prejudiced the defense.”

Neufville v. State, 13 A.3d 607, 610 (R.I. 2011) (quoting Powers v. State, 734 A.2d 508, 522

(R.I. 1999)). “‘When evaluating a claim for ineffective assistance of counsel in a plea situation,

the defendant must demonstrate a reasonable probability that but for counsel’s errors, he or she

would not have pleaded guilty and would have insisted on going to trial’ and, importantly, that

the outcome of the trial would have been different.” Id. at 610-11 (quoting State v. Figueroa, 639

A.2d 495, 500 (R.I. 1994)).

       As noted above, at the conclusion of postconviction counsel’s presentation of his findings

contained in his no-merit Shatney memorandum, the postconviction-relief justice informed

Navarro that “it’s my responsibility at this point after I receive a report from an attorney * * * to

kind of go through the facts myself to make sure that I think he’s covered everything.” The

justice did not address the state’s motion to dismiss and instead proceeded to decide the matter

on the merits. The justice indicated that she “had a couple of opportunities” to review the record

of the case, in addition to her review of postconviction counsel’s memorandum, the plea form,

the transcript of the plea hearing, and the transcript of the sentencing hearing. Specifically, the

postconviction-relief justice reviewed the portion of postconviction counsel’s no-merit

memorandum regarding his conversations with trial counsel related to the plea. Additionally,

she acknowledged the statements by Navarro’s mother and wife at the sentencing hearing

explaining Navarro’s background, his issues with addiction, how their lives would be impacted if

Navarro was incarcerated for a long period of time, and their belief that Navarro was prepared to

rehabilitate himself. The postconviction-relief justice also noted that Navarro and trial counsel

both signed the plea form and that the hearing justice discussed the plea with Navarro, including



                                               - 11 -
his attendant rights.   Moreover, she took note of Navarro’s statement to the court at the

sentencing hearing.

       The postconviction-relief justice also considered trial counsel’s representation of Navarro

during the plea proceedings, including his “strong argument” on behalf of Navarro at the

sentencing hearing; his “very impassioned” sentence recommendation; his argument that

Navarro’s criminal past was only related to his addiction issues; his presentation of Navarro’s

recollection of the events that took place on the night of the murder; and his research on

sentences in second-degree murder cases, which trial counsel “discussed at length,” together with

his conclusion that the average sentence was “far less” than the maximum sentence of forty years

to serve under Navarro’s capped plea. Bearing in mind her thorough review of the entire record,

we conclude that the postconviction-relief justice did not overlook or misconceive material

evidence in concluding that trial counsel’s representation was not deficient and did not “f[a]ll

below an objective standard of reasonableness.” Chapdelaine, 32 A.3d at 943 (quoting

Strickland, 466 U.S. at 687-88).

       In light of our determination that trial counsel’s performance was reasonable, we need not

address the second prong of Strickland requiring that “counsel’s deficient performance

prejudiced the defense in this case.” Neufville, 13 A.3d at 614 (concluding that a court should

only reach the second prong of the Strickland test when it has determined that the attorney’s

representation was deficient).

       Additionally, Navarro contends that the hearing justice erred when he failed to ask

Navarro “if anybody made threats or promises” to him during the plea negotiations. Specifically,

in regard to the purported previous plea agreement, Navarro maintains that, had he known he

would serve forty years, he would have taken the offer of thirty-two years to serve from former



                                             - 12 -
counsel, “but [trial counsel] told [Navarro] that he can get [him] less time to serve that’s why

[he] hired [trial counsel.]” “It is well settled in this state that ‘[g]uilty pleas are valid only if

voluntarily and intelligently entered, and the record must so affirmatively disclose’ facts

pertaining to those requirements.” Rodrigues v. State, 985 A.2d 311, 314 (R.I. 2009) (quoting

Figueroa, 639 A.2d at 498). A defendant’s plea “will be vacated unless the record shows that

the court has conducted an on-the-record examination of the defendant before accepting [the]

plea [in order] to determine if the plea is being made voluntarily with an understanding of the

nature of the charge and the consequences of the plea.” State v. Frazar, 822 A.2d 931, 935 (R.I.

2003) (quoting Ouimette v. State, 785 A.2d 1132, 1136 (R.I. 2001)).

       In her review of the proceedings, the postconviction-relief justice acknowledged the

extended nature of the sentencing hearing. In addition, she thoroughly studied the transcript of

the plea proceeding and concluded that the hearing justice who presided over said proceeding

was “very clear” to Navarro as to “what the plea was—what the cap of the plea was.” She

further found that the hearing justice informed Navarro of his rights in relation to the plea. She

considered the hearing justice’s explanation to Navarro regarding the nature of the capped plea,

as well as the hearing justice’s warning to Navarro that once he accepted the plea, he could not

change his mind. She cited to the hearing justice’s statement to Navarro that if the maximum

sentence was in fact imposed, he would have to serve forty years in prison; she also cited to the

hearing justice’s follow-up question asking Navarro if he understood and Navarro’s affirmative

answer. The postconviction-relief justice also took note of the hearing justice’s inquiry to

Navarro as to whether he had any questions, to which Navarro replied, “No.” She further

considered the hearing justice’s explanation to Navarro regarding the upcoming sentencing

hearing. She also noted that, although trial counsel may have made a sentence recommendation



                                               - 13 -
to the hearing justice during the sentencing proceedings that Navarro should serve between

fifteen and twenty years, the hearing justice was nevertheless “very clear” at the plea hearing that

Navarro “could very well end up serving [forty] years in jail.”

        After her thorough review of the record, the postconviction-relief justice concluded that

Navarro entered into the plea agreement “with knowledge, consent, voluntarily, understanding

what was happening, the nature of the plea, [and] the consequences of it.” We agree; and we

conclude that, in making her determination, the postconviction-relief justice did not overlook or

misconceive material evidence, nor did she clearly err in her denial of Navarro’s postconviction-

relief application.

                                                 B

                                      Shatney Proceedings

        We note that at the outset of the postconviction-relief proceedings in Superior Court, the

justice mischaracterized postconviction counsel’s role in Navarro’s case as an investigator

appointed by the court to determine if Navarro’s claims had merit, as opposed to Navarro’s

counsel in pursuit of postconviction relief. We have previously clarified that neither Shatney v.

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

                “nor its progeny contemplates the appointment of an objective or
                independent lawyer who does not represent the applicant,’ and that
                ‘[g]enerally, Shatney considerations should arise after counsel has
                been appointed in accordance with § 10-9.1-5 and the applicant has
                been provided with a meaningful discussion with counsel about the
                issues that may or may not be suitable grounds for postconviction
                relief.” Ramirez v. State, 89 A.3d 836, 840 (R.I. 2014) (quoting
                Campbell, 56 A.3d at 456).

        Despite the postconviction-relief justice’s mistaken description of postconviction

counsel’s role, postconviction counsel properly represented Navarro pursuant to the requirements

set forth in Shatney. Postconviction counsel described his role as being appointed to represent

                                               - 14 -
Navarro in his postconviction-relief application. Postconviction counsel appropriately conducted

his representation of Navarro by meeting with Navarro’s trial counsel “at least four times

regarding the actual plea.” In addition, he met with Navarro four times and reviewed all the

transcripts and exhibits that he deemed pertinent. Notwithstanding the brevity of postconviction

counsel’s Shatney memorandum—only four pages—we conclude that his investigation of

Navarro’s claims was reasonable under Shatney. Campbell, 56 A.3d at 455-56 (noting that

according to Shatney, an attorney “may withdraw from * * * representation when it becomes

clear, after a reasonable investigation, that some or all of the applicant’s claims lack merit”).

       Furthermore, we are satisfied that the postconviction-relief justice was cognizant of this

Court’s concerns with the Shatney procedures and made concerted efforts to ensure that Navarro

understood his rights in the Shatney context. See Motyka, 172 A.3d at 1206 (recognizing that,

when the court permits counsel to withdraw pursuant to Shatney, it must “advise the applicant

that he or she shall be required to proceed pro se, if he or she chooses to pursue the application”)

(quoting Shatney, 755 A.2d at 135). The postconviction-relief justice asked Navarro three times

if he wanted an evidentiary hearing or to pursue the matter pro se, and each time he responded in

the negative. Moreover, the justice brought Navarro into court on three separate occasions, and

each time he was given an opportunity to be heard. On the third and final court date, August 1,

2012, the postconviction-relief justice noted that since the last court date:

               “[O]ur Rhode Island Supreme Court had entered or filed a case on
               post[]conviction relief and my understanding from that case is that
               I need to be very specific with you, sir, as to what you wanted to
               do after [postconviction counsel] finished and presented his
               Shatney memo. I gave you an opportunity to refile it and to argue
               it again if you wish to. You told me you did not wish to do that. I
               guess—I think I need to be clearer with you and indicate to you
               that if you wish to produce any witnesses or have an evidentiary
               hearing on the issues that you have raised in your post[]conviction
               relief, you have the right to do that and proceed on this on your

                                                - 15 -
               own. * * * Do you want to have—produce evidence or have an
               evidentiary hearing on the issues that you have raised?”

In response, Navarro replied: “I just wanted to appeal to the Supreme Court.”

        We note that, after the postconviction-relief justice reviewed all the evidence, agreed with

postconviction counsel that Navarro’s postconviction-relief application was without merit,

accepted postconviction counsel’s no-merit Shatney memorandum, and indicated that she was

“going to allow him to withdraw[,]” postconviction counsel’s representation of Navarro should

have ceased. Instead, however, subsequent to her Shatney determination, the postconviction-

relief justice informed Navarro that postconviction counsel could advise him on his plans to file

a motion for “[s]entence modification.”

        Recently, in Motyka, we questioned whether the proceedings in that case met the

requirements set forth in Shatney. Motyka, 172 A.3d at 1207. We expressed concern when the

applicant’s postconviction counsel appeared to be advising the applicant during the Shatney

hearing while simultaneously arguing in support of his no-merit memorandum. Id. at 1207, 1207

n.3.   Additionally, we took issue in that case with the justice’s statement that she found

postconviction counsel’s no-merit memorandum “justified” and “therefore” the applicant’s

postconviction-relief application was denied and dismissed. Id. We clarified that a justice’s

grant of a postconviction counsel’s motion to withdraw under Shatney is not determinative of the

merits of an applicant’s postconviction-relief application. Id.

        Here, the postconviction-relief justice asked postconviction counsel to continue to advise

Navarro in the matter, specifically with respect to his appeal, while postconviction counsel

concurrently offered his opinion that Navarro’s postconviction-relief application lacked merit.

We reiterate that, in a Shatney proceeding, counsel may indeed seek to withdraw his or her

representation “when it becomes clear, after a reasonable investigation, that some or all of the

                                               - 16 -
applicant’s claims lack merit.” Campbell, 56 A.3d at 455-56.            In this case, once the

postconviction-relief justice made her decision to grant the Shatney motion, postconviction

counsel should no longer have been expected or allowed to represent Navarro at the subsequent

two court dates. We note, however, that this case was heard by the postconviction-relief justice

prior to a number of cases decided by this Court that clarify the requirements under Shatney.

See, e.g., Motyka, 172 A.3d at 1208; Ramirez, 89 A.3d at 839-40; Campbell, 56 A.3d at 455-56.

In addition, notwithstanding the postconviction-relief justice’s comments on the record that seem

to conflate her Shatney review with her review of the merits of Navarro’s postconviction-relief

application, she nevertheless conducted a thorough and independent review of the record in

support of her denial of Navarro’s postconviction-relief application. Therefore, it is our opinion

that any Shatney-related issues were cured.

                                               IV

                                           Conclusion

       For all the reasons set forth herein, we affirm the Superior Court’s judgment denying

Navarro’s application for postconviction relief. The papers in this case may be remanded to the

Superior Court.




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STATE OF RHODE ISLAND AND                                  PROVIDENCE PLANTATIONS



                         SUPREME COURT – CLERK’S OFFICE

                                 OPINION COVER SHEET

Title of Case                        Angel Navarro v. State of Rhode Island.
                                     No. 2016-143-Appeal.
Case Number
                                     (PM 09-5227)
Date Opinion Filed                   June 22, 2018
                                     Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
                                     Indeglia, JJ.
Written By                           Chief Justice Paul A. Suttell

Source of Appeal                     Providence County Superior Court

Judicial Officer From Lower Court    Associate Justice Susan E. McGuirl
                                     For Applicant:

                                     Carl J. Ricci, Esq.
Attorney(s) on Appeal                For State of Rhode Island:

                                     Christopher R. Bush
                                     Department of Attorney General




SU-CMS-02A (revised June 2016)
