December 11, 2018




                                                                        Supreme Court

                                                                        No. 2016-323-M.P.
                                                                        (PM 16-386)


                    Mariano Jimenez                :

                          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-
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                                                                    Supreme Court

                                                                    No. 2016-323-M.P.
                                                                    (PM 16-386)


             Mariano Jimenez                  :

                     v.                       :

          State of Rhode Island.              :


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

                                          OPINION

       Justice Robinson, for the Court. On November 15, 2016, Mariano Jimenez petitioned

this Court for the issuance of a writ of certiorari to review a September 19, 2016 judgment

denying his application for postconviction relief in Providence County Superior Court. On

December 1, 2017, this Court granted his petition for a writ of certiorari. He contends that he

was denied effective assistance of counsel in his 2000 criminal trial and in his 2003 direct appeal

to this Court. 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.




                                               -1-
                                                 I

                                        Facts and Travel

       On September 11, 2000, applicant was charged by criminal indictment with: murder in

the first degree (Count One); felony assault with a dangerous weapon (Count Two); carrying a

pistol without a license (Count Three); and possession of a firearm by a fugitive (Count Four).

Those charges stemmed from an incident that occurred on April 9, 2000, during which applicant

fatally shot Manuel Clemente “in the back of the neck as Clemente was leaving an apartment

building on Dartmouth Avenue in Providence” after a confrontation between the two at a party.

State v. Jimenez, 882 A.2d 549, 550 (R.I. 2005). On December 1, 2000, a jury found applicant

guilty of Counts One, Two, and Three.1 The trial justice denied applicant’s motion for a new

trial on December 8, 2000. He was thereafter sentenced to life imprisonment on the first-degree

murder count, as well as concurrent ten-year terms of imprisonment on Counts Two and Three,

suspended, with probation, to be served consecutively to the life sentence.

       Mr. Jimenez appealed that judgment to this Court in 2003, “contending that the trial

justice committed reversible error (1) in permitting him to be questioned concerning his previous

experience with the pistol that fired the fatal shot and (2) in failing to instruct the jury on the



1
       In addressing the direct appeal, this Court noted as follows:

               “Before trial, [Mr. Jimenez] had entered a plea of guilty to a charge
               of possession of a firearm by a fugitive from justice (count 4).
               Upon [Mr. Jimenez’s] conviction of the other charges, the trial
               justice sentenced him to serve a term of life imprisonment on count
               1 with a concurrent ten-year term of imprisonment on count 4. In
               addition, and consecutive to the time to be served on counts 1 and
               4, the trial justice sentenced [Mr. Jimenez] to serve concurrent ten-
               year suspended terms of imprisonment, with probation, on the two
               remaining counts.” State v. Jimenez, 882 A.2d 549, 550 n.1 (R.I.
               2005).



                                               -2-
lesser-included offense of manslaughter because of his alleged diminished capacity.” Jimenez,

882 A.2d at 550. This Court rejected these contentions and affirmed the conviction in Jimenez,

which sets forth a comprehensive recitation of the facts. Id. at 557.

       In 2016, Mr. Jimenez filed the instant application for postconviction relief, alleging that

he was denied effective assistance of counsel by his trial attorney in 2000 and by his appellate

counsel in his direct appeal in 2003. In due course, an evidentiary hearing was held on his

postconviction relief application on July 7, 2016.2 We summarize below the salient aspects of

what transpired at that hearing.

                                                  A

                      The Testimony at the Postconviction Relief Hearing

                                   1. The Testimony of Applicant

       Mr. Jimenez testified at the evidentiary hearing that his trial counsel never offered to give

him a copy of the indictment against him, police reports, or other documents about the case,

saying that he “never got any paper of anything.” In addition, applicant responded in the

negative when his postconviction relief attorney asked him if his trial counsel had prepared him

to testify on his own behalf.3 Mr. Jimenez also testified under redirect examination that he did

not know before the trial that he would be called upon to testify on his own behalf. The

applicant additionally testified that he told his appellate counsel that his trial counsel had acted

ineffectively, but that appellate counsel declined to comply when he asked her to “deliver” “a

letter to the prosecutor” about his trial counsel’s allegedly ineffective representation.



2
       We note that the same justice of the Superior Court presided over both the criminal trial
and the hearing on the application for postconviction relief.
3
        The applicant’s postconviction relief attorney asked: “Before you testified at the trial, did
he review your testimony with you?” The applicant responded: “Before going – no.”


                                                 -3-
                         2. The Testimony of Applicant’s Trial Counsel

       The applicant’s trial counsel also testified at the postconviction relief hearing. When

asked whether he “provided Mr. Jimenez with the package that was put together by the police” in

the course of their investigation of the murder of Manuel Clemente, trial counsel responded: “I

don’t remember whether or not I did give it to him. I know it was my practice to make copies

and especially if my people are out in the prison, I would bring them a copy * * *.” Trial

counsel added that he had no independent recollection of going to the prison and giving applicant

physical copies of the documents. Trial counsel further testified as follows:

               “I recall speaking to [Mr. Jimenez] about his testimony and what
               he had to say. I don’t recall if we sat down and did a question-by-
               question preparation, but I remember telling him what he had to
               say. How he had to say it. How he had to maintain himself in
               front of the jury. How to behave with the prosecution.”

                                                 B

                                 The Hearing Justice’s Decision

       On September 19, 2016, the hearing justice denied Mr. Jimenez’s application for

postconviction relief, holding that, taking into account the criteria set forth in Strickland v.

Washington, 466 U.S. 668 (1984),4 he had not met his burden of proving that either his trial

counsel or his appellate attorney had failed to provide effective assistance of counsel. In a

thirteen-page written decision, the hearing justice specifically determined as follows:

               “In all, Jimenez has completely failed to present any evidence
               which overcomes his prodigious burden of demonstrating that even
               if his attorney’s efforts were somehow substandard (and this Court
               expressly finds that they were not), the result would have been

4
       It was in Barboza v. State, 484 A.2d 881 (R.I. 1984), that this Court first alluded to the
then-recent decision of the United States Supreme Court in Strickland v. Washington, 466 U.S.
668 (1984); and the analytical approach set forth in Strickland has been utilized by this Court and
the Superior Court in cases alleging ineffective assistance of counsel since that time. Barboza,
484 A.2d at 883.


                                               -4-
                  different. * * * The conviction in this case was not a result of
                  petitioner’s attorney but, rather, the weight of the credible evidence
                  against [him].” (Internal quotation marks omitted.)

       On December 1, 2017, Mr. Jimenez filed a petition for the issuance of a writ of certiorari

for review of the judgment denying his application for postconviction relief, which petition this

Court subsequently granted.

                                                    C

                                           Issues on Appeal

       Mr. Jimenez has sought review of the decision denying his application for postconviction

relief, arguing that the hearing justice erred and that his decision warrants reversal due to: (1)

ineffective assistance by his trial counsel in that said attorney “never provided him with any

documents” and did not prepare him to testify in his own defense; and (2) ineffective assistance

of his appellate counsel for failure to argue ineffective assistance of trial counsel as part of his

direct appeal.5

                                                    II

                                          Standard of Review

       When reviewing the denial of an application for postconviction relief, “this Court accords

great deference to the hearing justice’s findings of fact.” Lynch v. State, 13 A.3d 603, 605 (R.I.

2011). As such, “[t]his Court will uphold the decision absent clear error or a determination that

the hearing justice misconceived or overlooked material evidence.” Id. (internal quotation marks

omitted).   However, this Court will “review de novo any post-conviction relief decision

5
        The applicant’s memorandum filed pursuant to Article I, Rule 12A of the Supreme
Court’s Rules of Appellate Procedure alleges ineffective assistance only with respect to his trial
counsel. However, in a memorandum filed subsequent to the prebriefing conference concerning
this case, Mr. Jimenez “raises a claim that his appeals counsel * * * refused to obey the
petitioner’s request that she present a claim of ineffective assistance of counsel,” which he
argues amounts to ineffective assistance by appellate counsel in the direct appeal.


                                                  -5-
involving questions of fact or mixed questions of law and fact pertaining to an alleged violation

of an applicant’s constitutional rights.” Bustamante v. Wall, 866 A.2d 516, 522 (R.I. 2005)

(internal quotation marks omitted). Nevertheless, even when the de novo standard is applied

with respect to constitutional issues, “we still accord a hearing justice’s findings of historical

fact, and inferences drawn from those facts, great deference in conducting our review.” Gomes

v. State, 161 A.3d 511, 518 (R.I. 2017) (internal quotation marks omitted). An applicant for

postconviction relief “bears the burden of proving, by a preponderance of the evidence, that such

relief is warranted * * *.” Rice v. State, 38 A.3d 9, 16 (R.I. 2012) (internal quotation marks

omitted).

                                                III

                                            Analysis

       As we have often noted, it “is well settled that [we] will 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). In applying that standard, “the benchmark issue is whether counsel’s conduct so

undermined the proper functioning of the adversarial process that the trial cannot be relied on as

having produced a just result.” Id. at 829 (internal quotation marks omitted).

       We have further observed that “[t]he Strickland standard consists of two prongs” and that

an applicant must satisfy both of those prongs. Id. Accordingly, an applicant’s “failure to satisfy

one prong of the Strickland analysis obviates the need for a court to consider the remaining

prong,” due to the fact that “it cannot be said that the conviction * * * resulted from a breakdown

in the adversary process that renders the result unreliable.”      Id. (internal quotation marks

omitted).




                                               -6-
       Under the Strickland mode of analysis, it is first required that an applicant “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.” Page v. State, 995

A.2d 934, 942 (R.I. 2010) (internal quotation marks omitted). In addressing a case with respect

to this first prong, there is a “strong (albeit rebuttable) presumption * * * that counsel’s

performance was competent.” Id. at 943 (internal quotation marks omitted). To satisfy the

second prong of Strickland, 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.” Id. (internal quotation marks omitted). To do so, an 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.”         Id. (emphasis in original) (internal

quotation marks omitted).

                                                 A

                      The Allegation Concerning “Copies of Documents”

       Firstly, Mr. Jimenez argues that the hearing justice erred in denying his application for

postconviction relief because his 2000 trial counsel allegedly failed to provide him with

documents relative to his case. It is his contention that “the fact that his counsel failed to give

him any copies of documents standing alone would show counsel did not function at the level

guaranteed by the Sixth Amendment.”

       The only document that Mr. Jimenez alluded to in his postconviction relief application

was “applicant’s hand written and executed April 9th, 2000 confession which applicant wrote at




                                               -7-
the Providence Police station * * *.”6 At the hearing, Mr. Jimenez testified that his trial counsel

did not provide him with that purported handwritten statement. The relevant portion of the

hearing transcript reads as follows:

               “[APPLICANT’S COUNSEL:] What did [trial counsel] say about
               the handwritten statement?

               “[APPLICANT:] Oh, he asked me where is the – I think he asked
               me where was the statement, and I told him, I mean, the police –
               the police has [sic] the statement. That’s what I told him.

               “[APPLICANT’S COUNSEL:] And what did he say?

               “[APPLICANT:] He said he was going to try to find it.

               “[APPLICANT’S COUNSEL:] Did he ever provide it or produce
               it for you?

               “[APPLICANT:] No. Because I remember at the trial I asked him
               for my statement, and I don’t know who said it, but somebody said
               that there was no statement. And I told him, Why not? I mean, I
               just – I wrote the statement, and I signed it. So it’s supposed to be
               somewhere.”

In his decision following this hearing, the hearing justice found as follows:

               “At trial and at the [postconviction relief] hearing, Jimenez said
               that he had also provided the police with a handwritten statement,
               which he faults his trial attorney for not retrieving. He testified at
               trial and at the [postconviction relief] hearing that he had never
               read the typed statement. In denying Jimenez’[s] new trial motion,
               this Court rejected any notion that Jimenez was ignorant of the
               contents of that statement * * *. The Court also accepts the state’s
               assertion that there never was any handwritten statement * * *.”




6
        While no such handwritten statement was introduced at trial, a typed statement signed by
Mr. Jimenez that was generated by the police after interviewing him was introduced. (Mr.
Jimenez testified at that hearing that he never read that typed statement before signing it and that
the typed statement did not accurately reflect his written statement or what he told the police. As
to the typed document, he testified: “this doesn’t even start the way I tell them.”)



                                                -8-
       The existence vel non of the just-referenced “handwritten statement” was a question of

fact that the hearing justice ruled upon after hearing testimony from both Mr. Jimenez and his

trial counsel. The hearing justice determined that that statement did not exist, and this Court

perceives no clear error in his determination. See Fontaine v. State, 602 A.2d 521, 525-26 (R.I.

1992) (“Because the trial justice was presented with conflicting testimony and evidence, he was

able to make sound credibility findings by assessing the facts and the totality of the

circumstances before him.”); see also State v. Feng, 421 A.2d 1258, 1273 (R.I. 1980). Affording

the requisite deference to the hearing justice’s findings, we perceive no basis for concluding that

trial counsel’s representation of applicant was constitutionally deficient in this regard.

       To the extent that applicant contends that his trial counsel was ineffective because he

failed to provide applicant with other documents related to the case, we similarly defer to the

hearing justice’s determinations and conclude that there was no clear error on this ground. It is

fundamental that “[t]his Court will not disturb credibility determinations by a postconviction-

relief hearing justice unless the [applicant] demonstrates by a preponderance of the evidence that

the hearing justice was clearly wrong.” Rice v. State, 38 A.3d 9, 17 n.11 (R.I. 2012) (internal

quotation marks omitted).

       When applicant’s postconviction relief counsel asked if his trial counsel “gave [him] a

copy of the indictment against [him],” Mr. Jimenez replied: “No. I never got any paper of

anything.” The applicant also testified that he never received any copies of the police reports in

his case. At the postconviction relief hearing, applicant’s trial counsel testified in pertinent part

as follows with respect to this issue:

               “[COUNSEL FOR THE STATE:] Do you recall whether or not
               you provided Mr. Jimenez with the package that was put together
               by the police in this case?




                                                -9-
               “[TRIAL COUNSEL:] I don’t remember whether or not I did give
               it to him. I know it was my practice to make copies and especially
               if my people are out in the prison, I would bring them a copy * * *.
               But I don’t have an independent recollection that, you know, I
               actually went there and gave it to him.

               “[COUNSEL FOR THE STATE:] And is that because it was so
               long ago?

               “[TRIAL COUNSEL:] Yes, that’s why.”

       We see no basis for concluding that the hearing justice erred when he determined that

applicant had not met his “heavy burden” under Strickland with respect to this allegation of

error. The applicant has failed to satisfy both prongs of the Strickland analysis concerning

ineffective assistance of trial counsel. Mr. Jimenez’s assertion before this Court that he “has

proof of the prejudice that resulted from the counsel’s error” in not providing him with

documents is not even remotely sufficient to meet his burden under Strickland. Mr. Jimenez’s

burden was to show by a preponderance of the evidence that the hearing justice’s determination

was clearly wrong and that by allegedly failing to provide him with documents relating to the

case, his trial counsel was so ineffective that “there is a reasonable probability that, but for

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

Strickland, 466 U.S. at 694; see Rice, 38 A.3d at 17 n.11. He has not met this burden by simply

stating that his trial counsel allegedly committed this error. Therefore, this Court affirms the

ruling of the hearing justice on this ground.

                                                  B

    The Allegation Concerning Trial Counsel’s Failure to Prepare Applicant to Testify

       Mr. Jimenez also contends that the hearing justice erred in denying the application for

postconviction relief because his trial counsel allegedly failed to prepare applicant to testify in

his own defense and that “[h]e was prejudiced by his counsel not preparing him to testify.” At



                                                - 10 -
the postconviction relief hearing, Mr. Jimenez testified repeatedly that his trial counsel did not

prepare him to testify and that he had not known before trial that he would be expected to testify

on his own behalf:

               “[APPLICANT’S COUNSEL:] Did he prepare you to testify on
               your own behalf?

               “[APPLICANT:] No.”

Shortly thereafter, Mr. Jimenez further testified:

                “[APPLICANT’S COUNSEL:] Before you testified at the trial,
               did he review your testimony with you?

               “[APPLICANT:] Before going – no.

               “[APPLICANT’S COUNSEL:] When did you first learn that you
               were going to testify on your own behalf?

               “[APPLICANT:] At the hearing.

               “[APPLICANT’S COUNSEL:] At which hearing?

               “[APPLICANT:] In the courtroom. He told me that I was going to
               take the stand.

               “[APPLICANT’S COUNSEL:] At the trial?

               “[APPLICANT:] Yes.”

Trial counsel testified at the hearing as follows (in pertinent part) regarding applicant’s trial

testimony and the pre-trial preparation for same:

               “[COUNSEL FOR THE STATE:] Prior to the trial beginning, did
               you have a conversation with [Mr. Jimenez] about whether or not
               he might have to testify? Do you recall that at all?

               “[TRIAL COUNSEL:] Yes. As a matter of fact, I remember
               telling him that although he had a confession and they may
               introduce the confession into evidence, that with this type of case,
               because he would have to testify to say he was – he was scared for
               his life, he was terrified and that’s why he acted the way he did.




                                               - 11 -
              Because I basically said historically jurors like to hear a defendant
              say, I didn’t do it or I did it for these following reasons.”

Trial counsel’s testimony in this regard continued on cross-examination as follows:

              “[APPLICANT’S COUNSEL:] And when you advised him as to
              the problems that he had with his self-defense, you told him that he
              was going to have to testify?

              “[TRIAL COUNSEL:] I told him a number of times he was
              probably going to have to testify. I would prefer that he not have
              to testify, but that deal with the self-defense issue, the assault issue,
              and the fact that the man was running away or running downstairs,
              it was an issue.

              “[APPLICANT’S COUNSEL:] When did you first tell him that he
              had to testify?

              “[TRIAL COUNSEL:] Oh, I don’t remember.

              “[APPLICANT’S COUNSEL:] Could it have been during the trial
              or right at the day of the trial?

              “[TRIAL COUNSEL:] No, I would never have told him during
              trial that, Oh, hey, you’re going to testify. It was well before the
              trial.”

       In his written decision, the hearing justice stated: “The Court fully credits [trial counsel’s]

testimony that long before the commencement of trial, and on more than one occasion, he

discussed the merits of the case with Jimenez and that he had also advised him several times that

he would probably have to testify * * *.”         This Court affords great deference to such a

determination concerning credibility, and we conclude that there was no clear error on this

ground. See III.A, supra. The hearing justice made an express credibility determination after

Mr. Jimenez and trial counsel both testified on this question of fact, and we see absolutely no

basis for reversal with respect to this issue. See generally State v. DiCarlo, 987 A.2d 867, 872

(R.I. 2010) (“This Court affords a great deal of respect to the factual determinations and

credibility assessments made by the judicial officer who has actually observed the human drama



                                               - 12 -
that is part and parcel of every trial and who has had an opportunity to appraise witness

demeanor and to take into account other realities that cannot be grasped from a reading of a cold

record.”) (internal quotation marks omitted).

                                                  C

                   The Alleged Ineffective Assistance of Appellate Counsel

       Mr. Jimenez argues that the hearing justice additionally erred when he found that counsel

in Mr. Jimenez’s direct appeal had not rendered ineffective assistance. Mr. Jimenez contends

that “his appeals counsel * * * refused to obey the petitioner’s request that she present a claim of

ineffective assistance of [trial] counsel to the Rhode Island [S]upreme Court * * *.”

       When addressing the claim of ineffective assistance of appellate counsel, the hearing

justice concluded as follows:

               “This imprecation is also meritless. It is firmly established that
               claims of ineffective assistance of counsel should be raised in
               applications for postconviction relief, not in direct appeals.”

Whether Mr. Jimenez’s appellate counsel could have raised a claim of ineffective assistance of

trial counsel is a question of law which this Court reviews in a de novo manner. See Gomes v.

State, 161 A.3d 511, 518 (R.I. 2017). We agree with the hearing justice’s ruling to the effect that

Mr. Jimenez’s appellate counsel could not have properly raised ineffective assistance of his trial

counsel on direct appeal to this Court. See State v. Brouillard, 745 A.2d 759, 768 (R.I. 2000)

(“This Court repeatedly has held that it will not consider a claim of ineffectiveness of [trial]

counsel that is raised for the first time on a direct appeal.”).      Accordingly, there was no

ineffective assistance of either Mr. Jimenez’s trial or appellate counsel, and we conclude that the

hearing justice properly denied Mr. Jimenez’s application for postconviction relief.




                                                - 13 -
                                               IV

                                           Conclusion

       Accordingly, we affirm the judgment of the Superior Court denying Mr. Jimenez’s

application for postconviction relief. We remand the record to that tribunal.




                                              - 14 -
STATE OF RHODE ISLAND AND                                  PROVIDENCE PLANTATIONS



                         SUPREME COURT – CLERK’S OFFICE

                                 OPINION COVER SHEET

Title of Case                        Mariano Jimenez v. State of Rhode Island.
                                     No. 2016-323-M.P.
Case Number
                                     (PM 16-386)
Date Opinion Filed                   December 11, 2018
                                     Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
                                     Indeglia, JJ.
Written By                           Associate Justice William P. Robinson III

Source of Appeal                     Providence County Superior Court

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

                                     Paul Dinsmore, Esq.
Attorney(s) on Appeal                For Defendant:

                                     Aaron L. Weisman
                                     Department of Attorney General




SU-CMS-02A (revised June 2016)
