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Ricci v. State

Supreme Court of Rhode Island

November 27, 2018

Luigi Ricci
v.
State of Rhode Island.

          Washington County Superior Court (WM 13-101) Associate Justice Kristin E. Rodgers

          For Petitioner: Jodi M. Gladstone, Esq.

          For State of Rhode Island: Owen Murphy Department of Attorney General

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

          OPINION

          WILLIAM P. ROBINSON, III ASSOCIATE JUSTICE

         On 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.

         Mr. 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."

         This 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.

         For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.

         I. Facts and Travel

         On 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.

         Mr. 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.

         Subsequently, 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.

         On 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.

         In 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, [1] 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."

         On April 11, 2014, the state moved for summary judgment pursuant to G.L. 1956 § 10-9.1-6.[2] 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.

         In 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.

         The 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.

         Accordingly, 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.

         II. ...


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