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Reyes v. State

Supreme Court of Rhode Island

July 11, 2016

Pedro Reyes
State of Rhode Island.

         Providence County Superior Court No. 2014-161-Appeal. (PM 12-4701) Associate Justice Kristin E. Rodgers

          For Applicant: Camille A. McKenna Office of the Public Defender

          For State: Virginia M. McGinn Department of Attorney General

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


          Associate Justice Gilbert V. Indeglia

         The applicant, Pedro Reyes (Reyes or applicant), appeals from the denial of his postconviction-relief application.[1] It is Reyes's contention that his 1994 plea of nolo contendere to the offense of maintaining a narcotics nuisance should be vacated because the plea was not knowing, intelligent, and voluntary. He also argues that the hearing justice erroneously entered judgment for the state on his claims of ineffective assistance of counsel, that the hearing justice failed to consider other arguments, and that the attorney appointed in connection with his application failed to fulfill his assigned role. This case came before the Supreme Court for oral argument on December 1, 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.


         Facts and Travel

         In October 1993, the Attorney General's Narcotics Strike Force (strike force) was conducting an investigation into heroin trafficking in an area near Central Falls High School. On October 5, 1993, Investigator Carl Barovier (Barovier), a member of the strike force, approached Jose Romero (Romero) to purchase heroin.[2] Romero entered Barovier's vehicle, and the two drove to the vicinity of Central Falls High School. After Barovier parked his vehicle, Romero exited and approached Ismael Cepeda (Cepeda).[3] The two conversed briefly, and then Cepeda entered a brown Datsun vehicle that was driven by another male. The vehicle drove off, returning about ten minutes later. Cepeda exited the vehicle and gave Barovier five bags containing heroin. Barovier relayed his description of the driver of the Datsun to Inspector Edward H. Randall (Randall); Randall showed Barovier a photograph of Reyes, and Barovier identified Reyes as the driver of the Datsun. Reyes was charged, along with Cepeda and Romero, with conspiracy to distribute heroin within three hundred yards of a school (count 1) and distribution of heroin within three hundred yards of a school (count 2).

         Reyes was represented with respect to these charges by privately retained counsel (trial counsel). Eventually, the state dismissed count 2 in accordance with Rule 48(a) of the Superior Court Rules of Criminal Procedure in exchange for Reyes's plea of nolo contendere on count 1 to an amended charge of maintaining a narcotics nuisance. The Superior Court file contains two plea forms executed by Reyes, one in English and the other in Spanish. At the change-of-plea hearing on October 4, 1994, no Spanish interpreter was present, but the record does not indicate that either trial counsel or Reyes requested the assistance of an interpreter. During the plea colloquy, Reyes was able to respond, in English, to the trial justice's questions.[4] Reyes provided his name and date of birth, and he indicated that he wished to change his plea even before trial counsel responded to that question from the trial justice. Reyes stated that he understood that, by pleading nolo contendere, he was forfeiting several constitutional rights, and, when asked whether he had any questions about those rights, he responded that he did not. After the prosecutor provided the facts in support of the amended charge, Reyes accepted those facts as true. The trial justice found that Reyes "does have the capacity to understand the nature and consequences of his plea including but not limited to the waiver of those rights which I have reviewed with him" and that there was a sufficient factual basis for a plea of nolo contendere. He therefore accepted Reyes's plea and sentenced him to a two-year suspended sentence with three years of probation. In consideration of Reyes's plea, the state elected to refrain from presenting Reyes as a violator of a previously imposed probationary sentence.

         Time marched on, and Reyes did not reform his behavior. He subsequently was adjudged to be a probation violator and served a period of incarceration as a result. Additionally, in 2002, he was convicted of second-degree murder, discharging a firearm during the commission of a crime of violence that resulted in death, and carrying a pistol without a license. See State v. Reyes, 984 A.2d 606, 609, 612 (R.I. 2009).[5] For those charges, Reyes was sentenced to two consecutive life sentences. Id. The state also sought the imposition of an additional sentence on the ground that Reyes was a habitual offender under G.L. 1956 § 12-19-21. The conviction secured by the 1994 nolo contendere plea was one of the predicate offenses that qualified Reyes as a habitual offender. Reyes received a ten-year sentence on the habitual-offender charge, to be served concurrently with his second life sentence.

         In September 2012, Reyes filed a pro se application, in which he sought to vacate his 1994 nolo contendere plea.[6] The application set forth several allegations of ineffective assistance by trial counsel, which fell into two general categories: failure to adequately investigate the case and prepare a defense; and failure to communicate with Reyes through an interpreter so that Reyes could meaningfully participate in the preparation of his defense, even though, according to Reyes, trial counsel knew that he "barely spoke English." With respect to the failure-to-investigate category, Reyes averred that his codefendants in the proceedings that culminated in his 1994 plea "exonerated [Reyes] at a bail hearing, " but trial counsel failed to interview these witnesses. One of the paramount allegations in the second category-lack of communication-was that, because trial counsel failed to engage a translator, he was unable to adequately inform Reyes about the nature and consequences of his plea. In addition to his ineffectiveness claims, Reyes also alleged, citing Boykin v. Alabama, 395 U.S. 238 (1969), that the trial justice erred in accepting his plea because (i) Reyes did not understand the nature of the amended charge, (ii) the trial justice overlooked the exculpatory statements of Reyes's codefendants, and (iii) the lack of factual basis for the plea. In addition to his application, Reyes also filed a motion for appointment of counsel as an indigent applicant under G.L. 1956 § 10-9.1-5.

         In accordance with § 10-9.1-5, the hearing justice first referred the matter to the Office of the Public Defender. Because a conflict of interest precluded a member of that office from representing Reyes, an attorney (postconviction counsel) was appointed to represent Reyes in connection with his application. In connection with his investigation, postconviction counsel met with Reyes on four occasions; he did not, however, speak with trial counsel. Postconviction counsel also searched for transcripts or recordings of the allegedly exculpatory bail-hearing testimony that Reyes claimed was given by his codefendants. Postconviction counsel's search revealed that the bail hearing was continued twice with no testimony; the records for the third and final day of the bail hearing revealed that, once again, no witnesses testified and that the defendants had admitted that the state had satisfied its burden of showing that bail was not appropriate. This search led postconviction counsel to conclude that the allegedly exculpatory bail-hearing testimony did not exist. Because postconviction counsel's investigation of Reyes's claims led him to the conclusion that Reyes's postconviction claims lacked merit, he moved to withdraw and filed an accompanying forty-two-page no-merit memorandum explaining the reasons behind that conclusion, in accordance with the procedure outlined by this Court in Shatney v. State, 755 A.2d 130 (R.I. 2000).[7]

         During the hearing on postconviction counsel's motion to withdraw, Reyes stated that he had read the no-merit memorandum and had no difficulty understanding its contents. Reyes acknowledged that the memorandum discussed all of the issues that he sought to raise in his application.[8] When Reyes cryptically alluded to a letter from postconviction counsel to Reyes that, according to Reyes, indicated that postconviction counsel represented the state and not Reyes, the hearing justice properly assured Reyes that postconviction counsel was his attorney. Reyes objected to the motion to withdraw on the grounds that postconviction counsel failed to hire an interpreter or an investigator and that he failed to interview trial counsel in connection with his investigation. Postconviction counsel responded that he did not deem an interview with trial counsel to be necessary or appropriate based on his conclusion that Reyes knowingly and voluntarily entered into his plea in 1994. Postconviction counsel also explained that he did not think that an interpreter was necessary during his meetings with Reyes because Reyes had taken English classes while incarcerated and his proficiency with the English language allowed adequate communication between them. Postconviction counsel professed to having "absolutely no problems communicating with [Reyes] at all."

         The hearing justice granted the motion to withdraw and explained to Reyes that he could still proceed pro se on his application or retain another attorney at his own expense. Additionally, she gave Reyes approximately six weeks to submit a memorandum outlining why he was entitled to postconviction relief. She also notified him, in accordance with § 10-9.1-6, that she was inclined to dismiss his application on the merits unless he came forward with "something of great significance * * * that persuades the [c]ourt that [he] would have gone to trial" on the 1994 charges. During the hearing, Reyes filed a pro se motion for funds to hire a private investigator to track down his codefendants from the 1994 case. The hearing justice denied the motion, concluding that the private investigator's efforts would reach the same conclusion that postconviction counsel had reached after his search for the bail-hearing testimony.

         At the next hearing, Reyes provided a witness statement from Cepeda (Cepeda statement), one of his codefendants in the 1994 case.[9] In that statement, which was taken over the telephone by a private investigator, Cepeda explained that he gave testimony to the effect that he never distributed drugs with Reyes. The hearing justice continued the matter to give the state adequate time to review the Cepeda statement and to decide how to proceed.

         At the hearing justice's behest, the state filed a motion for summary dismissal. At the hearing on the motion for summary dismissal, the hearing justice gave Reyes an opportunity to be heard. Reyes responded as follows: "I don't have anything to say right now. Everything that I wanted to say, I put in the memorandum." This memorandum mentioned only two documents in support of it: the Cepeda statement and a notice of the state's intent to pursue a habitual offender sentence. The hearing justice determined that there were no genuine issues of material fact as to any of the claims raised in the application and granted the state's motion. First, with respect to the allegations of ineffective assistance of counsel, the hearing justice reasoned that, because Reyes ultimately received a "less-than-jail sentence on an amended charge" and was not presented as a probation violator as a result of the plea agreement, Reyes was unable to satisfy the prejudice prong of the ineffectiveness inquiry. In addition to noting this favorable plea disposition, she observed that the Cepeda statement was neither an original document nor executed by Cepeda under the penalty of perjury and that, in any event, it was directed at the offenses with which Reyes was originally charged. The hearing justice therefore concluded that the statement "ha[d] no bearing on the amended charge to which [Reyes] pled."

         With respect to Reyes's challenge to the adequacy of the 1994 plea colloquy, the hearing justice, while acknowledging the presence of the Spanish plea form, found no fault in the trial justice's colloquy. She noted that there was no evidence in the plea-colloquy transcript that indicated that Reyes had difficulty understanding the trial justice's questions; there was no indication that Reyes needed to speak with trial counsel during the colloquy; no request for an interpreter was made; and Reyes responded in the affirmative on numerous occasions when asked by the trial justice whether he understood a particular consequence of his guilty plea. The hearing justice rejected Reyes's argument that either the trial justice or trial counsel was required to inform Reyes about any collateral consequence that might arise from his plea or that it might form the basis of a habitual-offender sentencing enhancement in the event that Reyes continued down the criminal path. Ultimately, the hearing justice concluded that Reyes understood the nature and consequences of his plea and that the plea was voluntary. Accordingly, the hearing justice granted the state's motion for summary judgment and dismissed the application under § 10-9.1-6. Reyes timely appealed.[10]


         Standard of Review for Summary Dismissal

         Before turning to the merits of Reyes's arguments on appeal, we first set forth the parameters under which an application can be summarily dismissed under § 10-9.1-6-the procedure utilized by the hearing justice in this case. Section 10-9.1-6 provides, in pertinent part, as follows:

"(b) 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 or grant leave to file an amended application or direct that the proceedings otherwise continue. Disposition on the pleadings and record is not proper if there exists a genuine issue of material fact.
"(c) The court may grant a motion by either party for summary disposition of the application when it appears from the pleadings, depositions, answers to interrogatories, and admissions and agreements of fact, together with any affidavits submitted, that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law."

         Dismissal under § 10-9.1-6(b) is akin to a dismissal under Rule 12(b)(6) of the Superior Court Rules of Civil Procedure and is subject to the same standard. Palmigiano v. State, 120 R.I. 402, 404-05, 387 A.2d 1382, 1384 (1978). In contrast, summary dismissal under § 10-9.1-6(c) "closely resembles" a grant of summary judgment under Rule 56 of the Superior Court Rules of Civil Procedure, Palmigiano, 120 R.I. at 405, 387 A.2d at 1384, and "[t]he standards for granting a § 10-9.1-6(c) [summary dismissal] are identical to those utilized in passing on a summary judgment motion." Palmigiano, 120 R.I. at 406, 387 A.2d at 1385. Critically, summary dismissal is improper if a genuine issue of material fact exists. See § 10-9.1-6(c). Thus, a hearing justice's role in considering whether to dismiss an application summarily under § 10-9.1-6(c) is limited to determining whether genuine issues of material fact exist; the hearing justice cannot resolve those issues or "pass on the weight or credibility of the evidence." Doyle v. State, 122 R.I. 590, 594, 411 A.2d 907, 909 (1980). On appeal from a summary dismissal under § 10-9.1-6, "[w]e will uphold the [hearing] justice's decision only if the record shows that no genuine issue of material fact exists and the state is entitled to summary disposition as a matter of law." Palmigiano, 120 R.I. at 406-07, 387 A.2d at 1385. As in cases in which we review the grant of summary judgment, our review is de novo.[11] See Estrada v. Walker, 743 A.2d 1026, 1028 (R.I. 1999).




         Sufficiency of Rule 11 Inquiry

         Reyes first contends that his 1994 nolo contendere plea should be vacated because it did not conform to Rule 11 of the Superior Court Rules of Criminal Procedure and was not a knowing, intelligent, and voluntary plea. He argues that the trial justice's brief colloquy at the change-of-plea hearing was insufficient to ensure that he understood the nature of the charge and consequences of his plea and that the trial justice should have exercised his discretion to appoint an interpreter. At oral argument before this Court, Reyes took his contention one step further, arguing that, whenever a Spanish language plea form is utilized, a trial justice must appoint an interpreter even when one is not requested. Neither Rule 11 nor this Court's jurisprudence supports such an absolute rule.

Rule 11 provides in pertinent part:
"The court * * * shall not accept [a plea of guilty] or a plea of nolo contendere without first addressing the defendant personally and determining that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea. * * * The court shall not enter a judgment upon a plea of guilty or nolo contendere unless it is satisfied that there is a factual basis for the plea."

Rule 11 thus sets forth two prerequisites that must be satisfied at the plea colloquy before a plea of nolo contendere can be accepted: (1) a determination "that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea"; and (2) a finding "that there is a factual basis for the plea." Id. Notably, neither prerequisite imposes the bright-line rule that Reyes champions before this Court.

         Similarly, this Court has never declared that a trial justice must appoint an interpreter in every case in which a non-English plea form is utilized. To the contrary, we have held that the trial justice has discretionary authority to appoint an interpreter, see State v. Ibrahim, 862 A.2d 787, 798 (R.I. 2004), and we afford the the trial justice "'large discretion' in the 'selection, appointment, and retention of an interpreter.'" State v. Lopez-Navor, 951 A.2d 508, 513 (R.I. 2008) (quoting State v. Deslovers, 40 R.I. 89, 115, 100 A. 64, 73 (1917)).[12] Absent "clear evidence of prejudice, we will not disturb the trial justice's discretion." Id.

         In this case, "it is not readily apparent [from our review of the transcript of Reyes's change-of-plea hearing] that [Reyes] did not have a basic, functional understanding of English." Ibrahim, 862 A.2d at 798. Reyes answered all of the questions posed to him, and there is no indication that he was confused or had difficulty understanding the discourse at any point during the hearing. Reyes contends that the transcript of the change-of-plea colloquy "suggest[s] a lack of actual understanding since his responses [to the trial justice's questions] were all non-descriptive 'Yes' and 'No' answers." We disagree. When the trial justice asked whether Reyes wished to change his plea, Reyes answered affirmatively even before trial counsel was able to do so. Reyes also provided, without any apparent difficulty, his name and date of birth upon request. We glean nothing from the record to suggest that anything occurred at the hearing to put the trial justice on notice to inquire further into whether Reyes required an interpreter. In short, there is nothing in this record that suggests that the trial justice abused his discretion by failing sua sponte to appoint an interpreter.

         We are also convinced that the change-of-plea colloquy otherwise satisfied Rule 11 and that Reyes's plea was knowing, intelligent, and voluntary. The trial justice explained to Reyes that he was forfeiting several constitutional rights by entering a plea of nolo contendere, and he ensured that Reyes had no questions about those rights and understood the consequences of his plea. Additionally, the state recited the facts supporting the amended charge, Reyes acknowledged that those facts were true, and the trial justice found that there was a factual basis for the plea. See Rodrigues v. State, 985 A.2d 311, 315 (R.I. 2009) ("This Court 'shall not vacate a plea unless the record viewed in its totality discloses no facts that could have satisfied the trial justice that a factual basis existed for a defendant's plea.'" (quoting State v. Frazar, 822 A.2d 931, 935-36 (R.I. 2003))). Finally, the trial justice explained to Reyes the sentence that he would be imposing and ensured that Reyes had no questions about the consequences of the suspended sentence and accompanying probationary term. On this record, we must conclude that the trial justice's finding that Reyes understood the nature and consequences of his plea is unassailable.


         Ineffective Assistance of Counsel

         Reyes next contends that the hearing justice improperly dismissed his claims of ineffective assistance of counsel because a genuine issue of material fact existed that precluded summary dismissal. Before addressing the propriety of the summary dismissal of his claims, however, we first briefly clarify the legal framework under which such a claim must be decided.

         It is well established that, in this jurisdiction, ineffective-assistance-of-counsel claims are assessed under the familiar two-pronged test announced by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687 (1984). See Bido v. State, 56 A.3d 104, 110 (R.I. 2012); Brown v. Moran, 534 A.2d 180, 182 (R.I. 1987); Barboza v. State, 484 A.2d 881, 883-84 (R.I. 1984). Under this framework, an applicant for postconviction relief first "must establish that counsel's performance was constitutionally deficient; '[t]his requires [a] showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed * * * by the Sixth Amendment.'" Bido, 56 A.3d at 110-11 (quoting Neufville v. State, 13 A.3d 607, 610 (R.I. 2011)); see also Strickland, 466 U.S. at 687. To satisfy the performance prong, "the [applicant] must show that counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688. Courts evaluate counsel's performance "in a 'highly deferential' manner, " Bido, 56 A.3d at 111 (quoting Lynch v. State, 13 A.3d 603, 606 (R.I. 2011)), employing "a strong presumption that counsel's conduct falls within the permissible range of assistance, " id. (quoting Neufville, 13 A.3d at 610). See also Strickland, 466 U.S. at 689.

         The second prong of the Strickland standard requires an applicant to "show that he [or she] was prejudiced by this deficient performance." Bido, 56 A.3d at 111 (quoting Lynch, 13 A.3d at 605). To satisfy the prejudice prong, "[t]he [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. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694; see also Bido, 56 A.3d at 111.

         In the years since our adoption of Strickland's performance and prejudice prongs, however, a handful of our cases have somewhat amplified that standard. In State v. Dunn, 726 A.2d 1142 (R.I. 1999), we stated, in dictum, [13] that:

"We note also that rarely, if ever, following conviction has any federal or state court permitted a defendant who has been represented by private counsel to later question, in post-conviction proceedings, the ineffectiveness or inefficiency of the trial counsel that the defendant chose and selected to represent him or her at trial. The 'incompetency (or one of its many synonyms) of private counsel for the defendant in a criminal prosecution is neither a denial of due process under the Fourteenth Amendment, nor an infringement of the right to be represented by counsel under either the federal or state constitution, unless the attorney's representation is so lacking that the trial has become a farce and a mockery of justice, in which case the judgment, violating either the Fifth, Sixth, or Fourteenth Amendment to the Federal Constitution, or a provision of a state constitution, is void.'" Id. at 1146 n.4 (quoting Annotation, Incompetency of Counsel, 74 A.L.R.2d 1390, 1397 (1960)) (emphasis added).

         Although by no means a constant feature of our ineffective-assistance-of-counsel jurisprudence, this farce-and-mockery language has reappeared on several occasions, both in cases where defense counsel evidently was privately retained[14] and in cases where it was unclear whether defense counsel was retained or appointed.[15] In this case, postconviction counsel and the hearing justice referenced this language when assessing Reyes's allegations that trial counsel, who was privately retained, was ineffective. On appeal, Reyes argues that this language "is not part of the Sixth Amendment effective[-]assistance[-]of[-]counsel jurisprudence."

         We take this opportunity to abandon any distinction in our ineffective-assistance-of-counsel jurisprudence between privately retained defense counsel and court-appointed defense counsel. In Evitts v. Lucey, 469 U.S. 387, 395 (1985), the Supreme Court declared that "the constitutional guarantee of effective assistance of counsel at trial applies to every criminal prosecution, without regard to whether counsel is retained or appointed." Similarly, in Cuyler v. Sullivan, 446 U.S. 335, 344-45 (1980), the Supreme Court cautioned that:

"A proper respect for the Sixth Amendment disarms petitioner's contention that defendants who retain their own lawyers are entitled to less protection than defendants for whom the State appoints counsel. * * * Since the State's conduct of a criminal trial itself implicates the State in the defendant's conviction, we see no basis for drawing a distinction between retained and appointed counsel that would deny equal justice to defendants who must choose their own lawyers."

         Additionally, we are of the opinion that the farce-and-mockery language contained in Dunn and its progeny is a relic of a bygone era that has no place in assessing claims of ineffective assistance of counsel after Strickland. The farce-and-mockery standard evidently was first announced in Diggs v. Welsh, 148 F.2d 667, 669, 670 (D.C. Cir. 1945), and, by the time the United States Supreme Court decided Strickland in 1984, every federal circuit had rejected it in favor of a standard requiring reasonably competent or effective assistance. See Trapnell v. United States, 725 F.2d 149, 151-53, 155 (2d Cir. 1983) (chronicling origin of and gradual departure from farce-and-mockery standard and adopting standard of reasonably competent assistance in its place).[16] Nothing the Supreme Court said in Strickland purported to revive the farce-and-mockery standard. Moreover, the farce-and-mockery standard has its roots in the Due Process Clause of the Fifth Amendment to the United States Constitution, see Diggs, 148 F.2d at 669; see also Trapnell, 725 F.2d at 154, while claims of ineffective assistance of counsel are grounded in the guarantee of the assistance of counsel contained in the Sixth Amendment to the United States Constitution, see Strickland, 466 U.S. at 684-86, and its Rhode Island counterpart, the Declaration of Rights, article 1, section 10 of the Rhode Island Constitution, see Merida v. State, 93 A.3d 545, 549 (R.I. 2014). Henceforth, claims of ineffective assistance of counsel- whether the attorney is privately retained or court appointed-shall continue to be decided by reference to the familiar performance and prejudice prongs of the Strickland standard.[17]

         With the governing standard in proper focus, we turn to its application in this case. On appeal, Reyes contends that the Cepeda statement raised a genuine issue of material fact that precluded summary dismissal of his claims of ineffective assistance of counsel. We take no issue, however, with the hearing justice's determination that no genuine issue of material fact existed. While the Cepeda statement may cause some to have doubts about Reyes's involvement in the 1994 incident, the statement is riddled with maladies that barred it from the hearing justice's consideration on summary dismissal. Part and parcel of our summary judgment standard (which the summary dismissal standard so closely mirrors) is that the evidence to be considered when determining whether a genuine issue of material fact exists must be admissible. See Carlson v. Town of South Kingstown, 131 A.3d 705, 708 (R.I. 2016) ("We will affirm a lower court's decision only if, after reviewing the admissible evidence in the light most favorable to the nonmoving party, we conclude that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law." (emphasis added) (quoting Daniels v. Fluette, 64 A.3d 302, 304 (R.I. 2013))); see also Mruk v. Mortgage Electronic Registration Systems, Inc., 82 A.3d 527, 534 (R.I. 2013) (recognizing that affidavits must be "made on personal knowledge, * * * set forth such facts as would be admissible in evidence, and * * * show affirmatively that the affiant is competent to testify to the matters stated therein[, ]" and that the failure to comply with these requirements renders them inadmissible and, thus, "useless in establishing the absence of a genuine issue of material fact" (quoting Nichola v. Fiat Motor Co., 463 A.2d 511, 513 (R.I. 1983))); Plainfield Pike Gas & Convenience, LLC v. 1889 Plainfield Pike Realty Corp., 994 A.2d 54, 57 (R.I. 2010) (acknowledging that summary judgment should be affirmed only if no genuine issue of material fact exists based upon a review of the admissible and competent evidence); Nichola, 463 A.2d at 513-14 (noting that statements within an affidavit that "amounted to little more than hearsay" should not be considered by a trial justice in ruling on a summary judgment motion).

         Here, the Cepeda statement would not stand the slightest chance of being admissible. First, the witness statement is not presented in the form of an affidavit or other type of sworn testimony, as is made obvious based upon the method of delivery (via telephone). Furthermore, the statement was somehow "notarized" by one Nicholas Cardarelli, with, in place of the witnesses's signature, the words "RECORDED OVER TELEPHONE."[18] In addition, to the extent that the witness statement contains statements delivered to and transcribed by Cardarelli, the statements constitute hearsay. To that end, we have held that, where statements within a sworn affidavit would constitute hearsay, such statements should not be considered in ruling on a summary judgment motion. See Nichola, 463 A.2d at 513-14. Thus, the hearing justice properly concluded that the Cepeda statement did not create a genuine issue of material fact.[19] Aside from a notice of the state's intent to pursue a habitual offender sentence, Reyes produced nothing else in opposition to the state's motion for summary dismissal; the hearing justice properly granted the motion.[20]


         Postconviction Counsel's Compliance with § 10-9.1-5 and Shatney

         Finally, Reyes contends that the efforts of his postconviction counsel were inadequate. Specifically, he faults postconviction counsel for "simply respond[ing]" to Reyes's postconviction claims instead of "mak[ing] an effort to narrow [the] issues, re[]frame[, ] or supplement them, " not speaking with trial counsel or reviewing his files, and failing to hire an investigator. We reject these contentions.

         "[T]he right to counsel in a postconviction-relief proceeding is a matter of legislative grace, not constitutional right."[21] Campbell v. State, 56 A.3d 448, 454 (R.I. 2012). Section 10- 9.1-5 provides that, in cases like this one where the Office of the Public Defender is unable to represent the applicant, "the court shall assign counsel to represent the applicant." As is true in other contexts, "[t]he hallmarks of a meaningful attorney-client relationship * * *, including zealous advocacy and the protection of the [client's] confidences, " exist between the applicant and counsel appointed under § 10-9.1-5. Campbell, 56 A.3d at 454-55; see also id. at 455 ("Section 10-9.1-5 cannot be satisfied with anything less than a meaningful attorney-client relationship between appointed counsel and his or her client.").

         Of course, relations between attorney and client do not always remain harmonious. In some cases, postconviction applicants insist on pressing claims that are frivolous or mendacious, notwithstanding the risk of sanctions for violating Rule 11 of the Superior Court Rules of Civil Procedure.[22] Attorneys who are appointed to represent a postconviction applicant, on the other hand, cannot ignore the requirements of Rule 11. In recognition of this potential conflict, we adopted a mechanism in Shatney so "that an attorney * * * appointed to represent an indigent applicant may withdraw from that representation when it becomes clear, after a reasonable investigation, that some or all of the applicant's claims lack merit." Campbell, 56 A.3d at 455-56.

         Within this framework, Reyes's assignments of error regarding postconviction counsel are unpersuasive. Our decision in Campbell involved the paradigm example of noncompliance with § 10-9.1-5. In that case, despite the applicant's repeated requests for counsel, the hearing justice appointed an attorney to conduct an "independent examination" of whether the applicant's claims were meritorious. Campbell, 56 A.3d at 451, 452. The hearing justice repeatedly informed the applicant that the appointed counsel did not represent him. Id. at 452-53. We determined that the appointment of counsel in Campbell failed to comply with the requirements of § 10-9.1-5. Campbell, 56 A.3d at 456, 461-62.

         This case is nothing like Campbell. The record is clear that postconviction counsel functioned as Reyes's attorney;[23] he met with Reyes on four separate occasions and expended considerable effort to locate the alleged exculpatory bail-hearing testimony about which, according to Reyes, trial counsel knew or should have known. At the hearing on the motion to withdraw, postconviction counsel represented that he "spent hours" attempting to locate the alleged bail-hearing testimony, and he chronicled his efforts in detail. In denying Reyes's motion for funds to hire a private investigator, the hearing justice explained that "[postconviction counsel] did everything that [he] could do to determine if there was any recording from that hearing." Against this backdrop, Reyes's argument with respect to postconviction counsel's failure to hire an investigator rings hollow. It was permissible for postconviction counsel to take it upon himself to perform the investigative responsibilities that he deemed necessary; he was not required to hire an investigator to undertake duplicative efforts. Cf. Campbell, 56 A.3d at 455-56 ("The procedure set forth in Shatney simply applies Rule 11's proviso to the context of the postconviction remedy, such that an attorney * * * appointed to represent an indigent applicant may withdraw from that representation when it becomes clear, after a reasonable investigation, that some or all of the applicant's claims lack merit." (emphasis added)).

         Reyes's complaint about postconviction counsel's failure to discuss the case with trial counsel or review his files similarly misses the mark. In his no-merit memorandum, postconviction counsel focused on Reyes's inability to establish prejudice because of the favorable disposition that trial counsel secured for his client. Postconviction counsel noted that, in marked contrast to the potential for significant jail time that Reyes faced if convicted on the original charges, trial counsel was able to persuade the state to dismiss one charge, amend the other charge to a lesser offense, agree to a non-incarcerative sentence, and refrain from presenting Reyes as a probation violator. While Reyes was insisting that exculpatory testimony mirroring the allegations in the Cepeda statement was given at his bail hearing, postconviction counsel had expended considerable effort to locate this alleged bail-hearing testimony to no avail, and the hearing justice appropriately concluded that "there was no testimony given under oath exonerating [Reyes in] this matter." Thus, Reyes's claim attacking postconviction counsel's alleged shortcomings is without merit.

         Finally, it is significant that, pursuant to Shatney, 755 A.2d at 135, postconviction counsel filed a comprehensive memorandum in which he-as Reyes acknowledged at the hearing on the motion to withdraw-correctly identified each of the many claims asserted in Reyes's application and thoroughly explained the reasons why, in counsel's professional opinion, they lacked merit. On appeal, Reyes complains that postconviction counsel failed to narrow or reframe the claims contained in his application, but appellate counsel similarly makes no effort to articulate how those claims could have been reworked, and an attorney will not always be able to salvage a meritless application from the scrap heap. Cf. Campbell, 56 A.3d at 458 (explaining that "appointed counsel may, in an appropriate case, frame the applicant's claims in such a way as to avoid § 10-9.1-8's waiver rule"). We note that a tension is unavoidable in cases in which the Shatney procedure is invoked. Our decisions in Campbell and Shatney recognize that, in some cases, appointed counsel's efforts must, at some point, shift from diligent investigation and meaningful representation to dispassionate explanation of why, in the exercise of ...

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