(PM 01-1761). Associate Justice Edwin J. Gale.
For Applicant: Susan B. Iannitelli, Esq.
For State: Jeanine P. McConaghy, Department of Attorney General.
Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
The applicant, Robert Chiellini, appeals from an October 10, 2003 judgment of the Superior Court denying his application for postconviction relief. In 1997, applicant was convicted of first-degree murder, in violation of G.L. 1956 § 11-23-1. He was sentenced to a term of life imprisonment, with an additional ten years to serve pursuant to the habitual offender statute, G.L. 1956 § 12-19-21. This Court affirmed the judgment of conviction in 2000. State v. Chiellini, 762 A.2d 450 (R.I. 2000).
On April 5, 2001, following this Court's affirmance of his conviction, applicant filed a pro se application for postconviction relief pursuant to G.L. 1956 § 10-9.1-1. In that application, he argued that, as a result of what he contended was the ineffective assistance of his trial counsel and prosecutorial misconduct, his constitutional rights had been violated.
On April 8, 2002, applicant's court-appointed attorney moved to withdraw as attorney of record; in support of that motion, he filed a " no-merit" memorandum pursuant to Shatney v. State, 755 A.2d 130, 135 (R.I. 2000). According to the attorney's Shatney memorandum, applicant's claims for postconviction relief were based on the following: (1) that, according to applicant, the justice who presided at applicant's bail hearing found that " the case presented by the State constituted a second degree murder and should be resolved through a plea and [a] sentence of twenty-five years to serve; " and (2) that a witness statement (missing from the record) indicating that the victim " was breathing on her own" when she arrived at the hospital could have been used to show that applicant was not " legally responsible if the emergency room physician had caused [the victim's] death * * * ." The attorney then set forth the reasons for his conclusion that, after meeting with applicant and after reviewing " the trial transcript and the appellate proceedings," there was no merit to applicant's claims. A hearing was held before a justice of the Superior Court on the attorney's motion to withdraw, which hearing applicant attended. The attorney's motion to withdraw was granted, and applicant proceeded pro se on his application for postconviction relief.
The applicant was thereafter afforded two additional hearings (one on February 27 and the other on March 25, 2003) before a different justice of the Superior Court. At the February 27, 2003 hearing, the hearing justice provided applicant with the opportunity to augment the record, but applicant did not proffer any additional evidence in support of his claims. At the March 25, 2003 hearing, applicant contended for the first time that he had been deprived of the effective assistance of counsel because his trial attorney failed to inform him of a plea bargain (viz., forty-five years to serve in exchange for a guilty plea) offered by the state prior to trial; in support of that contention, applicant submitted, among other things, a transcript of a pretrial evidentiary hearing held on November 12, 1997. The hearing justice then proceeded to read the transcript line-by-line with applicant, focusing particularly on the portions referred to by applicant. However, the hearing justice found that there was nothing in that transcript to support applicant's contention relative to a proposed plea bargain. At the conclusion of
the March 25, 2003 hearing, applicant stated that he did not have any additional evidence to submit in support of his claims for postconviction relief. Subsequently, on June 16, 2003, with the permission of the court, applicant filed a supplemental memorandum in support of his application.
On October 10, 2003, the hearing justice issued an order denying applicant's application for postconviction relief. In rendering his decision, the hearing justice concluded as follows:
" [The applicant] has offered no new relevant evidence. Nor has he offered any significant new legal arguments not previously considered and rejected as meritless by his post conviction [sic] attorney. [The applicant] has utterly failed to show that errors of the lawyers who represented him during the underlying trial proceedings were so serious as to violate his constitutional right to counsel and that his lawyers' performance[s] were ...