Plaintiff: Melissa Larsen, Esq.
Defendant: Jeanine P. McConaghy, Esq.
this Court is Petitioner Robert Raso's (hereinafter,
Petitioner) application for postconviction relief
(hereinafter, Application). Petitioner asserts two theories
in support of his Application: (1) that his counsel, during
his probation violation hearing, rendered ineffective
assistance of counsel and (2) that his appellate counsel
rendered ineffective assistance of counsel. This matter is
before this Court pursuant to G.L. 1956 § 10-9.1-1.
Facts and Travel
March of 2011, the State of Rhode Island (hereinafter, State)
alleged that Petitioner violated his probation by sexually
assaulting his then fourteen-year-old step-daughter. Pursuant
to Super. R. Crim. P. 32(f), this Court (Savage, J.) held a
probation violation hearing. On March 29, 2011, at the
conclusion of the hearing, the Court found that Petitioner
had violated the terms of his probation and sentenced him to
twenty-five years to serve.
appealed, but our Supreme Court denied the appeal on December
3, 2013. On December 17, 2014, Petitioner filed an
application for postconviction relief. Petitioner then
obtained counsel, who, on behalf of Petitioner, filed an
amended application. This Court held a hearing on the
Application on May 19, 2016.
Standard of Review
remedy of postconviction relief 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 vacation of the conviction
in the interest of justice." DeCiantis v.
State, 24 A.3d 557, 569 (R.I. 2011) (citing Page v.
State, 995 A.2d 934, 942 (R.I. 2010)). The action is
civil in nature, with all rules and statutes applicable in
civil proceedings governing. See § 10-9.1.-7;
see also Ouimette v. Moran, 541 A.2d 855, 856 (R.I.
1988) ("In this jurisdiction an application for
postconviction relief is civil in nature."). The
applicant for postconviction relief "bears '[t]he
burden of proving, by a preponderance of the evidence, that
such relief is warranted' in his or her case."
Brown v. State, 32 A.3d 901, 907 (R.I. 2011)
(quoting State v. Laurence, 18 A.3d 512, 521 (R.I.
2011) (alteration in original)).
mentioned above, Petitioner filed his Application asserting
two theories: (1) ineffective assistance of counsel during
the probation violation hearing and (2) ineffective
assistance of counsel during his appeal.
Ineffective Assistance of Counsel During Probation Violation
contends that he was deprived of his right to effective
assistance of counsel during the probation violation hearing
because his counsel "neglected to properly examine a key
piece of evidence, the diary of the complaining witness . . .
." (Pet'r's Mem. Supp. of Am. Appl. at 4.) In
addition, Petitioner claims that his counsel was ineffective
because counsel received "Facebook posts made by the
complaining witness that were potentially exculpatory and . .
. chose not to introduce those posts at the hearing."
Id. at 5.
benchmark decision when faced with a claim of ineffective
assistance of counsel is the United States Supreme Court case
Strickland v. Washington, 466 U.S. 668 (1984), which
has been adopted by our Supreme Court. See LaChappelle v.
State, 686 A.2d 924, 926 (R.I. 1996) ("This Court
has adopted the standard announced by the United States
Supreme Court in Strickland v. Washington, when
generally reviewing claims of ineffective assistance of
counsel."); Brown v. Moran, 534 A.2d 180, 182
(R.I. 1987) ("The appropriate standard for reviewing a
claim of ineffective assistance of counsel is set forth in
Strickland v. Washington . . . ."). The
Strickland test is two-tiered and "provides
certain criteria that a [petitioner] must establish in order
to show ineffective assistance of counsel." Brennan
v. Vose, 764 A.2d 168, 171 (R.I. 2001). Pursuant to the
first prong of the Strickland test, a petitioner
must "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." Id. (citing
Strickland, 466 U.S. at 687). According to our
Supreme Court, "[a] trial attorney's representation
of his or her client will be deemed to have been ineffective
under that criterion only when the court determines that it
fell 'below an objective standard of
reasonableness.'" Guerrero v. State, 47
A.3d 289, 300 (R.I. 2012) (quoting Brennan, 764 A.2d
(but only if) it is determined that there was deficient
performance, the court proceeds to the second prong of the
Strickland test . . . ." Guerrero, 47
A.3d at 300-01. Pursuant to the second prong, a petitioner
"must show that such 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." Brennan, 764 A.2d at 171. In other
words, "[t]he [petitioner] must show 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
Failure to Read Diary
contends that he was deprived of effective assistance of
counsel during the probation violation hearing because his
counsel did not "properly examine a key piece of
evidence, the diary of the complaining witness . . . ."
(Pet'r's Mem. Supp. Am. Appl. at 4.) This Court is
not persuaded that Petitioner was deprived of his right to
effective assistance of counsel because his counsel did not
read the entirety of the diary.
probation violation hearing, Petitioner's counsel
informed the hearing justice that he had possession of the
diary and another journal. After the hearing justice asked if
he had the journal in question in his possession,
Petitioner's counsel answered:
"I do, your Honor. Well, I don't know which is the
journal, which is the notebook, your Honor. I have not looked
at either one of these but I am giving them to the
Burrillville Police at this time. So there are two books; one
is a looseleaf notebook and the other looks like a binded
[sic] hard cover smaller book. I'm giving them both to
the Burrillville detective at this time." Prob. Viol.
Hr'g Tr. at 113, Mar. 25, 2011.
hearing justice then held a sidebar, at which point the
following colloquy took place:
"THE COURT: This witness just indicated that she had
given a journal to you, [Petitioner's counsel]. You now
have given two notebooks two [sic] the detective, correct?
"[PETITIONER'S COUNSEL]: Yes.
"THE COURT: And you indicated that you have not reviewed
"[PETITIONER'S COUNSEL]: That's correct.
"THE COURT: And whether that is in your client's
interest or not, you don't want to look at them?
"[PETITIONER'S COUNSEL]: Judge, after discussing
with [the complaining witness's mother] what she
indicated was in the journal I indicated to her it was not
relevant to my investigation and I felt uncomfortable reading
about details in a little girl's life that were not
involving allegations in this case.
"THE COURT: Okay, and you don't know if, in fact,
that these journals contain matters relevant to this case and
notwithstanding that, ...