Superior Court Providence County (PM 14-3816). Robert D.
Krause Associate Justice.
Petitioner: Camile A. McKenna Office of the Public Defender
State of Rhode Island: Aaron L. Weisman Department of
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and
WILLIAM P. ROBINSON III JUSTICE.
petitioner, Leonard Jefferson, appeals from the June 2,
2015 denial of his application for postconviction relief in
Providence County Superior Court. He contends before this
Court that the hearing justice erred in denying his
application for postconviction relief because, in
petitioner's view, the ex post facto clause of
the United States Constitution was violated when his parole
was revoked and he was denied the possibility of parole in
the future pursuant to G.L. 1956 § 13-8-14(b). He
further avers that the separation of powers doctrine as well
as his right to be free from double jeopardy were also
violated when he was denied the possibility of parole; and he
further argues that his due process rights were violated when
his parole was revoked.
reasons set forth in this opinion, we vacate the judgment of
the Superior Court.
Facts and Travel
October 4, 1974, petitioner was convicted in Providence
County Superior Court of murder in violation of G.L. 1956
§ 11-23-1. He was sentenced to life imprisonment. This
Court affirmed his conviction in State v. Jefferson,
116 R.I. 124, 353 A.2d 190 (1976). We refer the interested
reader to that opinion for a detailed recitation of the facts
underlying Mr. Jefferson's original murder conviction. We
will restrict ourselves to only those facts which are
relevant to the case before us. In setting forth said facts,
we rely primarily on Mr. Jefferson's application for
postconviction relief and the attachments thereto.
2, 1976, after Mr. Jefferson's 1974 murder conviction,
the General Assembly amended the parole statutes to include
the following language, which remains in the current version
of the statute:
"[I]n the case of a prisoner sentenced to imprisonment
for life who is released on parole and who is subsequently
convicted of a crime of violence as defined in section
11-47-2,  said conviction shall constitute an
automatic revocation of parole and the prisoner shall not be
eligible for parole thereafter." P.L. 1976 ch. 223
§ 2; see also § 13-8-14(b).
in January of 1986, Mr. Jefferson was granted parole. He was
thereafter arrested in Pennsylvania and, on May 18, 1994, was
convicted in that commonwealth of one count of aggravated
assault, for which he served a twenty-year prison term.
December 13 and December 29, 1993, after Mr. Jefferson's
Pennsylvania arrest, but before his conviction, a preliminary
parole revocation hearing was held in Pennsylvania with
respect to determining whether or not, as a result of his
Pennsylvania arrest, there was probable cause that he had
violated his parole related to his Rhode Island sentence.
Thereafter, on November 10, 1994, after Mr. Jefferson's
Pennsylvania conviction and while he was serving his sentence
in Pennsylvania, the Rhode Island Parole Board held a final
parole revocation hearing and voted to revoke his parole and
indicated, in the minutes from that hearing, that he would
"no longer be eligible for parole * * *." In
November of 2013, upon completion of his prison term in
Pennsylvania, petitioner was transported to the Adult
Correctional Institutions in Rhode Island. On April 14, 2014,
Mr. Jefferson appeared before the Parole Board for what
appears to have been a second final parole revocation
hearing; there is no indication in the record that he was
represented by counsel at that time. The Parole Board voted
to affirm the above-referenced revocation of Mr.
Jefferson's parole and, according to his application for
postconviction relief presently at issue, informed him that
he "is and forever will remain ineligible for
parole-consideration." Mr. Jefferson represents, in his
application for postconviction relief, and the state does not
contest, that the basis of the Parole Board's decision
that he will remain ineligible for parole was the mandate
contained in § 13-8-14(b).
Jefferson filed the instant pro se application for
postconviction relief on July 1, 2014. He alleged therein
that the Parole Board's reliance on § 13-8-14(b) was
"improper and unconstitutional * * *."
Specifically, he contended that he had not been convicted of
any offense listed under G.L. 1956 § 11-47-2. He further
contended that his due process rights under Morrissey v.
Brewer, 408 U.S. 471 (1972), were violated during the
April 1, 2015, Mr. Jefferson's court-appointed counsel
(having entered his appearance on October 1, 2014) filed both
a motion to withdraw as counsel and a memorandum in support of
that motion pursuant to this Court's opinion in
Shatney v. State, 755 A.2d 130 (R.I.
2000); the grounds for the motion to withdraw
were that the issues raised in petitioner's application
for postconviction relief were "wholly frivolous, and
not supported by existing law, or by a good faith basis for
the reversal, extension, or modification of existing law * *
*." On April 14, 2015, a hearing was held on
court-appointed counsel's motion to withdraw, in the
course of which hearing the hearing justice granted the
motion. Subsequently, on April 29, 2015, Mr. Jefferson filed
an "Objection to Defense Counsel's Shatney
Memorandum." On June 2, 2015, a second hearing was
conducted, at which Mr. Jefferson appeared pro se;
at the close of that hearing, Mr. Jefferson's application
for postconviction relief was denied. He filed a notice of
appeal on June 19, 2015.
Standard of Review
passing on a hearing justice's denial of an application
for postconviction relief, "this Court accords great
deference to the hearing justice's findings of
fact." Lynch v. State, 13 A.3d 603, 605 (R.I.
2011). As such, "[t]his Court will uphold the decision
absent clear error or a determination that the hearing
justice misconceived or overlooked material evidence."
Id. (internal quotation marks omitted). That being
said, we will review "de novo any questions of law or
fact pertaining to an alleged violation of an applicant's
constitutional rights." Id.
not address each of Mr. Jefferson's contentions before
this Court due to the fact that, in our judgment, it was
error to deny him representation of counsel and his
"opportunity to be heard in person" when the Parole
Board voted to revoke his parole on November 10, 1994.
Morrissey, 408 U.S. at 489. Moreover, in our
opinion, his right to counsel under the specific
circumstances of this case was also not provided to him at
the April 14, 2014 hearing before the Parole Board, at which
the Parole Board affirmed the denial of his
United States Supreme Court in Morrissey, 408 U.S.
at 489, set forth what is minimally necessary to comply with
the requirements of the due process clause of the Fourteenth
Amendment of the United States Constitution in the context of
parole revocation. For the purposes of this opinion, we will
focus only on the requirements set forth therein with respect
to the final revocation hearing, as those are the pertinent
requirements for this case. It appears from the facts of this
case that, after Mr. Jefferson's preliminary parole
revocation hearing, which took place on December 13 and
December 29, 1993, he was in essence given two final parole
revocation hearings on November 10, 1994 and April 14, 2014.
The United States Supreme Court in Morrissey stated
that, for a final parole revocation hearing, the minimum
requirements of due process are as follows:
"(a) written notice of the claimed violations of parole;
(b)disclosure to the parolee of evidence against him;
(c)opportunity to be heard in person and to present witnesses
and documentary evidence; (d) the right to confront and
cross-examine adverse witnesses (unless the hearing officer
specifically finds good cause for not allowing
confrontation); (e) a 'neutral and detached' hearing
body such as a traditional parole board, members of which
need not be judicial officers or lawyers; and (f) a written
statement by the factfinders as to the evidence relied on and
reasons for revoking parole." Morrissey, 408
U.S. at 489.
necessarily follows that Mr. Jefferson was entitled to each
of the just-quoted requirements at his final parole
in Morrissey, the Supreme Court specifically opted
not to pass on "the question whether the parolee is
entitled to the assistance of retained counsel or to
appointed counsel if he is indigent." Id. The
United States Supreme Court has never held that a parolee is
entitled in every case to representation by an attorney at a
final parole revocation hearing; rather, that Court has held
that "the decision as to the need for counsel must be
made on a case-by-case basis in the exercise of a sound
discretion by the state authority charged with responsibility
for administering the probation and parole system."
Gagnon v. Scarpelli, 411 U.S. 778, 790
(1973). The Supreme Court went on to explain that
"[a]lthough the presence and participation of counsel
will probably be both undesirable and constitutionally
unnecessary in most revocation hearings, there will remain
certain cases in which fundamental fairness-the touchstone of
due process-will require that the State provide at its
expense counsel for indigent probationers or parolees."
Id. The Supreme Court further stated, in
"Presumptively, it may be said that counsel should be
provided in cases where, after being informed of his right to
request counsel, the probationer or parolee makes such a
request, based on a timely and colorable claim * * * that,
even if the violation is a matter of public record or is
uncontested, there are substantial reasons which justified or
mitigated the violation and make revocation inappropriate,
and that the reasons are complex or otherwise difficult to
develop or present." Gagnon, 411 U.S. at 790;
see also United States v. Dodson, 25 F.3d 385, ...