                                                     Supreme Court

                                                     No. 2014-50-Appeal.
                                                     (PM 10-5585)


    Curley Snell                  :

          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
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                                                                  Supreme Court

                                                                  No. 2014-50-Appeal.
                                                                  (PM 10-5585)


               Curley Snell                   :

                      v.                      :

          State of Rhode Island.              :



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

                                          OPINION

       Justice Indeglia, for the Court.       The applicant, Curley Snell (Snell or applicant),

appeals from a judgment of the Superior Court denying his application for postconviction relief.

On appeal, Snell contends that the hearing justice erred by rejecting his claim of ineffective

assistance of counsel. This case came before the Supreme Court for oral argument on September

29, 2015, 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 carefully considering the written

and oral submissions of the parties, we are satisfied that this appeal may be resolved 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

       This Court affirmed Snell’s convictions in State v. Snell, 892 A.2d 108, 123 (R.I. 2006)

(Snell II), 1 which sets forth the facts and procedural history of his prosecution. In short, on



1
  Prior to this appeal, Snell has filed three appeals with this Court. To avoid confusion, we will
refer to his previous appeals as follows: (i) an appeal contesting a hearing justice's finding that
                                               -1-
January 11, 2001, Snell argued with his ex-girlfriend, Tanny Eisom (Tanny), about her plans to

go out that night. Upon her return to her apartment early the following morning, Snell chased

after Tanny and stabbed her and her brother, Slade Edmonds.

       On March 19, 2001, Snell was charged with one count of felony domestic assault (count

1), two counts of assault with a dangerous weapon (counts 2 and 3), and one count of simple

domestic assault after previously having been convicted twice of domestic assault (count 4).

During Snell’s trial, in December 2001, both the state and Snell’s trial counsel stipulated in the

presence of the jury that Snell had been “twice previously convicted of a domestic violence

crime.” The trial justice then immediately instructed the jury that they were not to consider the

previous convictions as evidence that Snell had a propensity to commit the charged offenses.

Instead, the trial justice made clear that the jury was to consider the stipulation solely for the

purpose of establishing an essential element of count 4, namely, that Snell had been convicted

twice previously of domestic violence crimes. He further cautioned that the jury was to consider

the stipulation for no other purpose.

       The jury convicted Snell on all four counts, and he timely appealed those convictions to

this Court. After reviewing the record, we affirmed his convictions on all counts on February 27,

2006. See Snell II, 892 A.2d at 123. On May 26, 2006, Snell timely moved for a reduced

sentence, which the trial justice denied. We affirmed that decision in State v. Snell, 11 A.3d 97,

103 (R.I. 2011) (Snell III). On September 23, 2010, Snell filed an application for postconviction

relief. In it, he alleged that his trial counsel was “constitutionally deficient because he failed to

even attempt to prevent the jury from hearing that [Snell] had two prior convictions for domestic


Snell violated his probation, see State v. Snell, 861 A.2d 1029, 1030 (R.I. 2004) (Snell I); (ii) an
appeal contesting his convictions, see State v. Snell, 892 A.2d 108, 112 (R.I. 2006) (Snell II);
and (iii) an appeal from an order denying his motion to reduce his sentence, see State v. Snell, 11
A.3d 97, 98 (R.I. 2011) (Snell III).
                                                -2-
violence, but, instead, actually stipulated to this fact before the jury.” 2 At the hearing, the parties

submitted memoranda and stipulated facts, the hearing justice heard oral arguments, and Snell

testified. Snell’s trial counsel could not be located and therefore was unavailable to testify.

        In his bench decision denying Snell’s application, the hearing justice noted that count 4

charged Snell with violating G.L. 1956 § 11-5-3 which, because it would be his third offense,

“required [the state] to prove beyond a reasonable doubt that [Snell] had at least two prior

convictions of domestic violence offenses.” See G.L. 1956 § 12-29-5. 3 The hearing justice

considered the stipulation to be a tactical decision, reasoning that Snell’s trial counsel chose to

stipulate to the existence of the prior convictions, “[r]ather than allow[ing] the jury to see or

consider the certified copies of the convictions and to hear the details of the prior crimes * * * as

well as the resulting sentences imposed for each of those prior convictions * * * .” The hearing

justice further noted that “the trial court properly characterized the prior convictions as elements

of crimes charged and cautioned the jury from considering or using [the stipulation] for any other

purpose or in any other way.” As to Snell’s contention that his counsel should have stipulated to

the convictions outside the presence of the jury, the hearing justice countered that counsel had no

control with regard to “whether [the trial court] was going to read that stipulation to the jury[.]”




2
  Snell also alleged in his application that his trial counsel was deficient by not timely objecting
to the fact that he was wearing prison clothes, handcuffs, and leg shackles at trial. He does not
press these issues on appeal.
3
  The Domestic Violence Prevention Act, G.L. 1956 § 12-29-5, provides in pertinent part:
                “(c)(1) Every person convicted of an offense punishable as a misdemeanor
        involving domestic violence as defined in § 12-29-2 shall:
                “(i) For a second violation be imprisoned for a term of not less than ten
        (10) days and not more than one year.
                “(ii) For a third and subsequent violation be deemed guilty of a felony and
        be imprisoned for a term of not less than one year and not more than ten (10)
        years.”
                                                 -3-
He also noted that “the Supreme Court upheld the conviction, including the fact that that

stipulation was read to the jury.” 4

       After three unsuccessful appeals, Snell is again before this Court, this time arguing that

the hearing justice erred in denying his application for postconviction relief.

                                                 II

                                        Standard of Review

       “The postconviction remedy, set forth in G.L. 1956 § 10-9.1-1, provides that ‘one who

has been convicted of a crime may seek collateral review of that conviction based on alleged

violations of his or her constitutional rights.’” 5 Anderson v. State, 45 A.3d 594, 601 (R.I. 2012)

(quoting Rice v. State, 38 A.3d 9, 16 (R.I. 2012)). In so doing, the “applicant who files an

application for postconviction relief bears the burden of proving, by a preponderance of the

evidence, that such relief is warranted.” Mattatall v. State, 947 A.2d 896, 901 n.7 (R.I. 2008).

       “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.’” Rice, 38

A.3d at 16 (quoting Brown v. State, 32 A.3d 901, 907-08 (R.I. 2011)). “[H]owever, ‘questions

of fact concerning whether a defendant's constitutional rights have been infringed, and mixed

question[s] of law and fact with constitutional implications, are reviewed de novo.’” Mattatall,



4
  In Snell’s previous appeal contesting his convictions, he asserted that “the trial justice abused
his discretion in permitting the jury to hear that he had been convicted twice previously of
domestic assault * * *.” Snell II, 892 A.2d at 122. However, because the issue was not raised in
the trial court, this Court held that Snell’s argument was waived. Id. at 123.
5
  In 2015, subsequent to the filing of this appeal, the General Assembly amended G.L. 1956 §
10-9.1-9, as amended by P.L. 2015, ch. 92, § 1, to provide that an aggrieved party may seek
review of an order denying postconviction relief “by filing a petition for writ of certiorari in
accordance with the [S]upreme [C]ourt rules of [A]ppellate [P]rocedure within sixty (60) days of
the entry of the final judgment.”
                                                -4-
947 A.2d at 901 (quoting State v. Thomas, 794 A.2d 990, 993 (R.I. 2002)).            “Nevertheless,

‘[e]ven when the de novo standard is applied to issues of constitutional dimension, we still

accord a hearing justice's findings of historical fact, and inferences drawn from those facts, great

deference in conducting our review.’” Rice, 38 A.3d at 16 (quoting State v. Laurence, 18 A.3d

512, 521 (R.I. 2011)).

                                                III

                                            Discussion

       When assessing claims of ineffective assistance of counsel, this Court employs the two-

tier test set forth in Strickland v. Washington, 466 U.S. 668 (1984), requiring that the defendant

show “(1) that the counsel's performance was so deficient and the errors so serious that they

violate a defendant's Sixth Amendment guaranty of counsel; and, (2) that this deficient

performance prejudiced his or her defense and deprived the defendant of his or her right to a fair

trial.” Rice, 38 A.3d at 17 (quoting Pierce v. Wall, 941 A.2d 189, 193 (R.I. 2008)). To

demonstrate a deficiency under the first prong of this analysis, the defendant must establish “that

counsel's representation fell below an objective standard of reasonableness.” Rodriguez v. State,

941 A.2d 158, 162 (R.I. 2008) (quoting Brennan v. Vose, 764 A.2d 168, 171 (R.I. 2001)). “This

requires showing that counsel made errors so serious that counsel was not functioning as the

‘counsel’ guaranteed the defendant by the Sixth Amendment.” Pelletier v. State, 966 A.2d 1237,

1241 (R.I. 2009) (quoting Strickland, 466 U.S. at 687). In analyzing counsel’s conduct under the

deficiency prong, we are mindful that “there exists ‘a strong presumption [recognized by this

Court] that an attorney's performance falls within the range of reasonable professional assistance

and sound strategy * * *.’” Rice, 38 A.3d at 17 (quoting Ouimette v. State, 785 A.2d 1132,

1138-39 (R.I. 2001)).



                                               -5-
       Only if this Court determines that trial counsel's performance was constitutionally

deficient does it proceed to the second prong, requiring the defendant “to demonstrate prejudice

emanating from the attorney's deficient performance such as ‘to amount to a deprivation of the

[defendant’s] right to a fair trial.’” Rodriguez, 941 A.2d at 162 (quoting Brennan, 764 A.2d at

171). This prong can be satisfied only upon a showing that “there is a reasonable probability

that, but for counsel's unprofessional errors, the result of the proceeding would have been

different.” Id. (quoting Strickland, 466 U.S. at 694).

       On appeal, Snell contends that his trial counsel was ineffective because he stipulated to

Snell’s two prior convictions for domestic assault in the presence of the jury. Specifically, Snell

claims that the existence of his two prior domestic assault convictions should have been taken

into account as sentencing enhancements, not as elements of the offense, and so their admission

for the jury’s consideration was improper.       Snell argues that his trial counsel’s failure to

recognize that the prior convictions were sentencing factors rendered him deficient. In support

of his claim, Snell cites to this Court’s decision in State v. Ramirez, 936 A.2d 1254, 1268 (R.I.

2007), in which the defendant challenged the enhanced sentence he received as a habitual

offender on the grounds that his Sixth Amendment rights were violated because his sentence was

based on prior convictions not found by the jury. Snell relies on dicta 6 from Ramirez, in which

we noted that, in the context of the habitual offender statute, G.L. 1956 § 12-19-21, “a prior

judgment of conviction as reflected in a genuine court document is sufficient proof and need not

be proved to a jury beyond a reasonable doubt.” Ramirez, 936 A.2d at 1271. Snell argues that,

based on Ramirez, the prior convictions at issue in this case, like those under the habitual

6
  In State v. Ramirez, 936 A.2d 1254, 1269 (R.I. 2007), we first held that the defendant’s Sixth
Amendment challenge had not been raised at the time of sentencing and was, therefore, waived.
This Court nevertheless went on to discuss the defendant’s arguments, after prefacing the
discussion by stating that “were this argument properly before us, it is without merit.” Id.
                                               -6-
offender statute, are not elements of the crime for which he was charged and need not be

submitted to the jury. 7

        Snell’s argument misses the mark. This Court has not yet had an opportunity to interpret

the Domestic Violence Prevention Act, § 12-29-5, to determine whether the prior convictions

required therein are elements of the underlying offense or merely sentencing factors and we need

not do so today. The circumstances before the trial justice, at best, presented a novel issue. In

fact, it is notable that all of the parties involved, including the trial justice and the prosecutor,

treated the prior convictions as an element of the crime. Numerous state and federal courts have

addressed the issue of whether a claim for ineffective assistance of counsel may be founded

based on a novel legal argument or theory of defense, concluding that the “failure to advance

novel legal theories or arguments does not constitute ineffective performance.” Ledbetter v.

Commissioner of Correction, 880 A.2d 160, 167 (Conn. 2005); see Anderson v. United States,

393 F.3d 749, 754 (8th Cir. 2005) (“Counsel's failure to raise this novel argument does not

render his performance constitutionally ineffective.”); People v. Reed, 556 N.W.2d 858, 863

(Mich. 1996) (“[D]efense counsel's performance cannot be deemed deficient for failing to

advance a novel legal argument.”); see also United States v. Fusaro, 708 F.2d 17, 26 (1st Cir.

1983) (defense counsel's “failure to spot” a novel claim did “not render counsel's assistance

below the range of competence of attorneys”); cf. Engle v. Isaac, 456 U.S. 107, 134 (1982)

(“[T]he Constitution guarantees criminal defendants only a fair trial and a competent attorney. It



7
  Notably, Snell’s reliance on the dicta from Ramirez is misplaced. First, Ramirez considered
stipulations outside of the presence of the jury in a wholly different context—the habitual
offender statute. Thus, Snell’s trial counsel would not necessarily be deficient by neglecting to
predict that we may interpret the Domestic Violence Prevention Act in a similar manner.
Moreover, Snell’s trial counsel cannot possibly have been expected to rely on our decision in
Ramirez in making his trial decisions in 2001, because our decision in Ramirez was not
published until 2007.
                                                -7-
does not insure that defense counsel will recognize and raise every conceivable constitutional

claim.”). We agree with this view, and conclude that defense counsel’s failure to raise a novel

legal issue does not render his performance deficient.

        Snell also contends that his trial counsel’s conduct in stipulating to his prior convictions

in the presence of the jury was objectively unreasonable. In support, Snell cites to Old Chief v.

United States, 519 U.S. 172, 180-92 (1997), in which the Supreme Court held that, based on

Rule 403 of the Federal Rules of Evidence, the risk of unfair prejudice substantially outweighed

the value of the prosecution introducing a record of conviction when a stipulation was available.

Snell relies on the Court’s reasoning that evidence of a defendant’s prior conviction “generally

carries a risk of unfair prejudice to the defendant”, Old Chief, 519 U.S. at 185, to support his

argument that it was objectively unreasonable for his trial attorney to stipulate to the prior

convictions in the presence of the jury.

        Contrary to Snell’s assertions, however, merely because defense counsel may have the

option of stipulating outside of the presence of the jury does not always require such conduct. In

some instances, stipulating to facts in the presence of the jury may be considered trial strategy.

Indeed, in a case such as this, where the prosecutor, trial judge, and defense attorney all

considered the fact of prior convictions to be an element of the offense, it may have been sound

trial strategy for the defense attorney to stipulate to the prior convictions rather than run the risk

that the graphic details of the offenses might be presented to the jury. As we have previously

recognized, “a choice between trial tactics, which appears unwise only in hindsight, does not

constitute constitutionally deficient representation * * *.” Rice, 38 A.3d at 18 (quoting State v.

D'Alo, 477 A.2d 89, 92 (R.I. 1984)). Therefore, we cannot say that Snell’s trial counsel was

deficient.



                                                -8-
       Accordingly, we hold that Snell has failed to meet his burden in seeking to prove his

claim of ineffective assistance of counsel. Snell’s plaints can be categorized as either taking

issue with his trial counsel’s failure to raise a novel legal issue or faulting counsel for making

tactical decisions that an otherwise reasonably competent trial attorney would make. In either

event, the trial counsel’s conduct cannot be said to be deficient; and, therefore, the hearing

justice did not err in denying Snell’s application for postconviction relief.

       Notably, even if Snell were able to establish that his trial counsel was ineffective for

stipulating to his prior offenses in the presence of the jury, he would be unsuccessful in

satisfying the “prejudice” prong of the Strickland test. The trial counsel’s mention of the

existence of two prior domestic violence offenses pales in comparison to the evidence presented

to the jury of Snell’s egregious behavior in the case at hand. Additionally, the trial justice gave a

cautionary instruction to the jury, instructing them that they were not to consider the previous

convictions as evidence that Snell had a propensity to commit the charged offenses. Therefore,

we are satisfied that Snell’s right to a fair trial was not prejudiced by his trial counsel’s conduct.

                                                  IV

                                             Conclusion

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

The materials associated with this case may be remanded to that court.




                                                 -9-
                            RHODE ISLAND SUPREME COURT CLERK’S OFFICE

                                 Clerk’s Office Order/Opinion Cover Sheet




TITLE OF CASE:        Curley Snell v. State of Rhode Island.

CASE NO:              No. 2014-50-Appeal.
                      (PM 10-5585)

COURT:                Supreme Court

DATE OPINION FILED: November 17, 2015

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

WRITTEN BY:           Associate Justice Gilbert V. Indeglia

SOURCE OF APPEAL:     Providence County Superior Court

JUDGE FROM LOWER COURT:

                      Associate Justice Stephen P. Nugent

ATTORNEYS ON APPEAL:

                      For Applicant: Catherin Gibran
                                     Office of the Public Defender

                      For State: Virginia M. McGinn
                                 Department of Attorney General
