Washington County Superior Court (WM 13-101) Associate
Justice Kristin E. Rodgers
Petitioner: Jodi M. Gladstone, Esq.
State of Rhode Island: Owen Murphy Department of Attorney
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and
WILLIAM P. ROBINSON, III ASSOCIATE JUSTICE
August 29, 2016, Luigi Ricci petitioned this Court for the
issuance of a writ of certiorari to review a June 13, 2014
judgment entered against him in Washington County Superior
Court granting the state's motion for summary judgment
and denying Mr. Ricci's application for postconviction
relief. On October 14, 2016, this Court granted Mr.
Ricci's petition for a writ of certiorari.
Ricci contends before this Court that the hearing justice
erred in granting the motion for summary judgment for the
following reasons: (1) "ineffective assistance of
counsel is a material fact;" (2) "claims of
ineffective assistance of counsel cannot be barred by res
judicata;" (3) the hearing justice did not hold an
evidentiary hearing, which Mr. Ricci contends he was entitled
to given the severity of his sentence; (4) the hearing
justice "utilized the 'farce and mockery'
standard which was abolished by this Court;" (5) the
hearing justice "utilized a higher standard of proof
than the statute requires;" (6) "[t]he interest of
justice requires that [Mr. Ricci] be permitted to assert the
tardiness of the habitual offender notice as grounds for
relief;" and (7) "[t]he interest of justice
requires that [Mr. Ricci] be permitted to assert the lack of
consent to the amendment of the criminal indictment as
grounds for relief."
case came before the Supreme Court pursuant to an order
directing the parties to appear and show cause why the issues
raised in this case should not be summarily decided. After a
close review of the record and careful consideration of the
parties' arguments (both written and oral), we are
satisfied that cause has not been shown and that this case
may be decided at this time.
reasons set forth in this opinion, we affirm the judgment of
the Superior Court.
Facts and Travel
December 18, 2009, Mr. Ricci entered Francis Quinn's
home. Mr. Ricci knocked Mr. Quinn to the floor and put his
hands around Mr. Quinn's throat before taking
approximately forty dollars from him and fleeing. Mr. Quinn
recognized the assailant's voice and identified him to
the police as Mr. Ricci. On September 30, 2010, Mr. Ricci was
found guilty by a jury on the following three counts:
burglary, in violation of G.L. 1956 § 11-8-1; robbery in
the first degree, in violation of G.L. 1956 §
11-39-1(a)(3); and assault on a person over the age of sixty,
in violation of G.L. 1956 § 11-5-10. Mr. Ricci was
sentenced as follows: (1) on the first count, thirty years
with twenty years to serve and ten years suspended with
probation; (2) on the second count, thirty years with twenty
years to serve and ten years suspended with probation; and
(3) on the third count, ten years to serve. All sentences
were to run concurrently. Additionally, at sentencing, Mr.
Ricci was declared an habitual offender and was sentenced to
fifteen years with at least ten years to serve before
becoming eligible for parole, to run consecutively.
Ricci appealed to this Court and contended on appeal that the
trial justice committed reversible error in failing to
adequately instruct the jury as to how to assess credibility,
in failing to instruct the jury that a history of drug abuse
could weaken credibility, and in denying Mr. Ricci's
motion for a new trial. This Court affirmed Mr. Ricci's
conviction in State v. Ricci, 54 A.3d 965 (R.I.
2012). In the course of relating the facts in that opinion,
the Court made two observations in footnotes to which Mr.
Ricci directs our attention in the instant case. The first of
those footnotes is footnote 1, which reads as follows:
"On [the assault count], the original indictment
incorrectly charged defendant with violating G.L. 1956 §
11-5-20, rather than § 11-5-10. We pause to note that
although the state later filed an 'amended
indictment' correcting this error in open court, and
defense counsel did not object, it is unclear from the record
whether defendant himself consented to the 'amended
indictment' in accordance with Rule 7 of the Superior
Court Rules of Criminal Procedure." Ricci, 54
A.3d at 967 n.1.
in footnote 2, this Court stated the following:
"It appears from our review of the record that the
Attorney General did not present Ricci as a habitual offender
either within forty-five days of the arraignment or prior to
the date of the first pretrial conference, as required by the
statute. However, this issue is not before us on
appeal." Id. at 967 n.2.
February 15, 2013, Mr. Ricci filed a pro se
application for postconviction relief, in which he alleged:
(1) that the indictment in his case was "improperly
amended without [his] consent;" (2) that he was
"improperly sentenced as an habitual offender because
[he] was not presented as an habitual offender within
forty-five days of arraignment or prior to the first pretrial
conference;" and (3) that his "trial attorney was
ineffective for failing to object to the amendment of the
indictment, and for failing to object to the untimely
habitual offender notice and sentence." Mr. Ricci was
then provided with court-appointed counsel; that attorney
subsequently filed a no-merit memorandum and a motion to
withdraw pursuant to the dictates of Shatney v.
State, 755 A.2d 130 (R.I. 2000). That motion was
granted, and Mr. Ricci thereafter engaged private counsel.
March of 2014, Mr. Ricci's private counsel submitted a
"Post Conviction Relief Pre-Hearing Memorandum." In
that document, the above-summarized allegations were expanded
to include the further allegations that Mr. Ricci's trial
counsel had been ineffective for: (1) his "failure to
establish a sound theory of the case;" (2) his
"failure to make effective and timely objections"
concerning the prosecutor's opening statement, the direct
and re-direct testimony of Mr. Quinn, the testimony of Walter
French,  and the admission of the transcript of Mr.
Quinn's 911 call; (3) his "failure to effectively
impeach the state's key witness;" and (4) his
"failure to make an effective final argument."
April 11, 2014, the state moved for summary judgment pursuant
to G.L. 1956 § 10-9.1-6. A hearing on that motion took
place on June 13, 2014 in Superior Court. At the close of
that hearing, the hearing justice granted the state's
motion for summary judgment.
rendering her opinion, the hearing justice began by
describing at some length the factual and procedural history
of the case. The hearing justice next noted that the burden
of proof with respect to an application for postconviction
relief was on the petitioner, Mr. Ricci. She then began her
analysis by addressing the contention that the habitual
offender notice was not filed at the appropriate time. She
concluded that the notice was in fact timely and that,
regardless, the doctrine of res judicata barred
consideration of the argument because it could have been
raised in Mr. Ricci's direct appeal. With respect to the
amendment of Mr. Ricci's indictment, she determined that
the statutory citation error in the indictment was not
prejudicial to Mr. Ricci and, as such, was not an "error
in form" as contemplated by Rule 7(e) of the Superior
Court Rules of Criminal Procedure, which would have required
his consent to amend the indictment. She further held that,
in any event, that issue was similarly barred by the doctrine
of res judicata.
hearing justice also addressed the allegations of ineffective
assistance of trial counsel. She noted that Mr. Ricci had the
burden of demonstrating the existence of a genuine issue of
material fact and that he could not rely on mere allegations,
unsupported statements, and pleadings. She concluded that Mr.
Ricci had not met that burden because he had presented
"no affidavit or other evidence * * * that
demonstrate[d] that [Mr. Ricci] was prejudiced inasmuch as
the jury would have acquitted him had it not been for
counsel's alleged defective examinations, his inadequate
final argument, and his failure to object at various times
during the trial * * *." She also noted that there was
"overwhelming evidence" against Mr. Ricci.
on June 13, 2014, a judgment entered granting the state's
motion for summary judgment and denying Mr. Ricci's
application for postconviction relief. On August 29, 2016,
Mr. Ricci filed a petition for the issuance of a writ of
certiorari for review of that judgment, which petition this
Court subsequently granted.