                                                       Supreme Court

                                                       No. 2007-255-Appeal.
                                                       (PM 06-3208)


   Victor R. Perez                :

          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 Tel. 222-3258 of any typographical or other
    formal errors in order that corrections may be made before the opinion is
    published.
                                                                Supreme Court

                                                                No. 2007-255-Appeal.
                                                                (PM 06-3208)


              Victor R. Perez                  :

                     v.                        :

           State of Rhode Island.              :



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

                                          OPINION

       Justice Flaherty, for the Court. Victor R. Perez appeals from a judgment of the

Superior Court denying and dismissing his application for postconviction relief. This case came

before the Supreme Court for oral argument on September 19, 2012, pursuant to an order

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

summarily be decided. After hearing the arguments of counsel and examining the memoranda

filed on behalf of the parties, we are of the opinion that cause has not been shown, and we

proceed to decide the appeal at this time without further briefing or argument. For the reasons

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

                                                   I

                                        Facts and Travel

       In 2001, a justice of the Superior Court sentenced Perez to life imprisonment after a jury

found him guilty of the first-degree murder of his mother. He then appealed to this Court, which




                                               -1-
affirmed the conviction. 1 Perez then filed an application for postconviction relief on June 15,

2006, pursuant to G.L. 1956 chapter 9.1 of title 10. On October 13, 2006, a justice of the

Superior Court appointed counsel to represent Perez in connection with his application. After a

thorough examination of Perez’s claims, counsel determined that the issues raised therein were

“wholly frivolous, without merit, and neither supported by existing law, nor by a good faith

argument for the extension, modification, or reversal of existing law.”           Counsel further

concluded that there were no other possible arguments that would support Perez’s application.

In accordance with Shatney v. State, 755 A.2d 130, 135-37 (R.I. 2000), counsel moved to

withdraw as attorney of record. He also filed a memorandum to support his motion to withdraw,

which discussed the reasons underlying his opinion that each of Perez’s arguments was frivolous.

       On March 20, 2007, a hearing was held on counsel’s motion to withdraw and, after

finding that Perez’s arguments were meritless, the hearing justice granted the motion. He then

informed Perez of his right to pursue the matter without an attorney and permitted him to submit

a memorandum containing any additional arguments that would support his request. On May 15,

2007, the hearing justice denied and dismissed Perez’s application, citing his failure to file any

memorandum and finding no basis upon which it could be granted. Judgment was entered on

July 10, 2007. Perez timely appealed to this Court.

                                                II

                                      Standard of Review

       The postconviction-relief remedy, created by § 10-9.1-1, is “available to any person who

has been convicted of a crime and who thereafter alleges either that the conviction violated the

applicant’s constitutional rights or that the existence of newly discovered material facts requires

1
 The underlying facts of applicant’s conviction can be found in State v. Perez, 882 A.2d 574,
578-83 (R.I. 2005).
                                               -2-
vacation of the conviction in the interests of justice.” Higham v. State, 45 A.3d 1180, 1183 (R.I.

2012) (quoting DeCiantis v. State, 24 A.3d 557, 569 (R.I. 2011)).              “An applicant for

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

relief is warranted in his or her case.” DeCiantis, 24 A.3d at 569. “In reviewing the denial of

postconviction relief, this Court affords great deference to the hearing justice’s findings of fact

and will not disturb his or her ruling ‘absent clear error or a showing that the [hearing] justice

overlooked or misconceived material evidence.’” Brown v. State, 32 A.3d 901, 907-08 (R.I.

2011) (quoting Page v. State, 995 A.2d 934, 942 (R.I. 2010)).

                                                III

                                             Analysis

       Perez grounds his appeal to this Court on two arguments. First, he argues that the hearing

justice erred when he granted counsel’s motion to withdraw because he failed to adhere to the

procedures set forth in Shatney, 755 A.2d at 135-37. Second, Perez maintains that the hearing

justice erred when he denied his application without providing him with an opportunity to

present his arguments. We shall address each of these arguments in turn.

                                                 A

                          Motion to Withdraw as Attorney of Record

       Perez argues that the hearing justice failed to follow the procedures set forth in Shatney

and that he granted the motion to withdraw prematurely. Specifically, he maintains that he was

not afforded a “full, fair, and counseled” opportunity to be heard.

       In Shatney, 755 A.2d at 132, 134, counsel was appointed to represent an applicant for

postconviction relief because the Public Defender’s office was unable to do so.          After he

reviewed the applicant’s case, appointed counsel determined that the application lacked merit,



                                               -3-
and he sought to withdraw from the matter. Id. at 132. This Court held that an attorney would

be permitted to withdraw from representing an applicant whose claims were frivolous if certain

steps were taken by the appointed counsel and the hearing justice. Id. at 135.

       We began by saying that “[t]he point in time at which a trial court may determine that a *

* * petitioner’s claims are frivolous or meritless is after the petitioner has been afforded a full,

fair, and counselled opportunity to present those claims.” Shatney, 755 A.2d at 135 (quoting

Commonwealth v. Harris, 553 A.2d 428, 433 (Pa. Super. Ct. 1989). Thus, an attorney seeking to

withdraw

               “must file with the court and serve upon the applicant a motion to
               withdraw accompanied by a ‘no-merit’ memorandum that details
               the nature and extent of his or her review of the case, lists each
               issue the applicant wished to raise, and explains why in counsel’s
               professional opinion those issues and any others that he or she may
               have investigated lacked merit. The court then must conduct a
               hearing with the applicant present. If, based upon its review of
               counsel’s assessment of the potential grounds for seeking post-
               conviction relief and of any other issues that the applicant wishes
               to raise, the court agrees that those grounds appear to lack any
               arguable merit, then it shall permit counsel to withdraw and advise
               the applicant that he or she shall be required to proceed pro se, if
               he or she chooses to pursue the application.” Id.

       In this case, we believe that the hearing justice strictly adhered to all those procedures,

and, consequently, we can discern no error by the hearing justice in granting the motion to

withdraw. Counsel filed a twenty-eight page “no-merit” memorandum explaining the reasons

why he believed each of Perez’s claims lacked merit. A hearing on the motion, at which Perez

was present, then was conducted. After reviewing Perez’s arguments, the hearing justice found

that each of them was waived, previously litigated on direct appeal, or devoid of merit. Finally,

the record reveals that the hearing justice informed Perez of his right to proceed in the matter pro

se, and Perez acknowledged his intent to do just that. Therefore, it is our firm opinion that all of



                                               -4-
the procedural requirements of Shatney were followed and that the hearing justice made no error

when he granted counsel’s motion to withdraw. 2

                                                  B

                 Denial and Dismissal of Application for Postconviction Relief

       Perez also argues that he was not afforded an opportunity to reply to the hearing justice’s

proposed dismissal of his application, as required by § 10-9.1-6(b) and Toole v. State, 713 A.2d

1264 (R.I. 1998). Further, he contends that if he had been provided with an opportunity to reply,

he would have raised four additional issues that he did not raise in his original application.

       Section 10-9.1-6(b) sets forth the procedure for entry of a judgment on the pleadings in

postconviction relief matters. That section states, in pertinent part:

                       “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 * * *.” Id.

In Toole, 713 A.2d at 1265-66, this Court held that a hearing justice is not obligated to conduct

an evidentiary hearing in connection with an application for postconviction relief if there exists

no genuine issue of material fact; however, the hearing justice must give the applicant an

opportunity to reply to the hearing justice’s proposed dismissal of the application.




2
  Perez also argues that the hearing justice ignored the language in Shatney v. State, 755 A.2d
130, 136 (R.I. 2000), requiring that he and his counsel be afforded “an opportunity to be heard
on whether any arguable basis exist[ed] to proceed with the application.” It is obvious from the
record that the hearing justice heard from both Perez and his counsel at the hearing on March 20,
2007 about the merit of Perez’s application. Therefore, it is clear to us that the hearing justice
satisfied this Shatney requirement.
                                                 -5-
       In this case, it is abundantly clear from the record that Perez was afforded an opportunity

to reply to the hearing justice’s proposed dismissal of his application and that § 10-9.1-6(b) was

complied with fully. At the March 20, 2007 hearing, the hearing justice informed Perez that the

issues raised in his application had no merit, but he nonetheless generously allowed Perez to file

another memorandum if he wished to further pursue the matter. At the same time, the hearing

justice cautioned Perez that if he did not file an additional memorandum within ten days, his

application would be “summarily rejected.” Despite this warning, the hearing justice granted a

motion for an extension of time, allowing Perez until April 13, 2007 to amend his application.

The hearing justice even provided Perez with an additional month after that extended deadline

before he entered the order denying and dismissing his application.          Perez never filed a

response. 3 Thus, we are perplexed to discern any basis for Perez’s contention on appeal that he

was not afforded an opportunity to reply.

       Moreover, § 10-9.1-6(b) says that when an opportunity to reply to a proposed dismissal

of an application has been given, the court is permitted to dismiss the application “[i]n light of

the reply, or on default thereof.” (Emphasis added). There can be no doubt that Perez was given

ample opportunity to respond to the proposed dismissal of his application, but he failed to

respond. Therefore, the hearing justice did not err when he denied and dismissed his application.

       Before this Court, Perez brings to light four new arguments that were not raised in his

application, but which he believes have merit. 4 However, it is clear that these arguments involve



3
  Perez contends that he sent an amended application to the clerk of the Superior Court in
accordance with the order of April 3, 2007, granting his motion for an extension of time to
amend his application. This alleged amended application never found its way into the file and
there is no record of such a document. Therefore, we can give it no credit in our analysis.
4
  We note that, on appeal, Perez failed to press any of the issues that appeared in his application
to the Superior Court, with the exception of claim XIV. Additionally, while Perez mentions
claim XIV in passing, he fails to develop any argument for us to review. Because those
                                               -6-
alleged errors at Perez’s murder trial. The first three arguments involve the admissibility of

certain expert testimony and the fourth contends that the trial justice improperly instructed the

jury on first-degree murder.

       It is well settled that this Court will not consider issues that were “not raised with the

hearing justice in the first instance.” Brown v. State, 841 A.2d 1116, 1121 (R.I. 2004).

Moreover, such issues are precluded from being raised at this time by § 10-9.1-8, which states

that “[a]ll grounds for relief available to an applicant at the time he or she commences a

proceeding under this chapter must be raised in his or her original, or a supplemental or

amended, application.” Here, Perez readily admits in his brief that the four issues which he now

raises “were not brought up in” his application. Additionally, Perez did not raise these issues

after he was given ample opportunity to do so at the March 20, 2007 hearing. Therefore, Perez is

precluded from raising them on appeal.

       Moreover, even if these issues were properly before us, they would not afford him relief

or a different disposition in this case, because they are not the proper subject matter of a

postconviction-relief application, but rather should have been raised on direct appeal. The

doctrine of res judicata in postconviction-relief matters is codified in § 10-9.1-8. That section

states that “[a]ny 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 * * *.” Id.




arguments were not developed in any meaningful way on appeal, we decline to review them. See
State v. Day, 925 A.2d 962, 974 n.19 (R.I. 2007) (“A mere passing reference to an argument * *
*, without meaningful elaboration, will not suffice to merit appellate review.”).
                                              -7-
       Here, Perez calls into question three issues involving the admission of expert testimony

and one concerning an allegedly improper jury instruction. These matters could have been raised

on direct appeal from his conviction, but were not, and, therefore, “may not be the basis for” his

postconviction-relief application. Section 10-9.1-8. We have no hesitation in concluding that the

hearing justice did not err when he denied Perez’s application.

                                               IV

                                           Conclusion

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

The papers in this case may be remanded to that tribunal.




                                               -8-
                            RHODE ISLAND SUPREME COURT CLERK’S OFFICE

                                 Clerk’s Office Order/Opinion Cover Sheet




TITLE OF CASE:        Victor R. Perez v. State of Rhode Island.

CASE NO:              No. 2007-255-Appeal.
                      (PM 06-3208)

COURT:                Supreme Court

DATE OPINION FILED: January 10, 2013

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

WRITTEN BY:           Associate Justice Francis X. Flaherty

SOURCE OF APPEAL:     Providence County Superior Court

JUDGE FROM LOWER COURT:

                      Associate Justice Robert D. Krause

ATTORNEYS ON APPEAL:

                      For Plaintiff: Michael S. Pezzullo, Esq.

                      For Defendant: Christopher S. Bush
                                     Department of Attorney General
