David A. Roscoe v. State of Rhode Island , 2014 R.I. LEXIS 64 ( 2014 )

Supreme Court
No. 2011-328-Appeal.
(WM 05-360)
David A. Roscoe :
v. :
State of Rhode Island. :
NOTICE: This opinion is subject to formal revision before publication in
the Rhode Island Reporter. Readers are requested to notify the Opinion
Analyst, Supreme Court of Rhode Island, 250 Benefit Street, Providence,
Rhode Island 02903, at Tel. 222-3258 of any typographical or other
formal errors in order that corrections may be made before the opinion is
published.
Supreme Court
No. 2011-328-Appeal.
(WM 05-360)
David A. Roscoe :
v. :
State of Rhode Island. :
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
OPINION
Justice Flaherty, for the Court. Fifteen years after he had been convicted, but only one
year after a hearing justice had ordered him to serve the remaining fifteen years of a previously
suspended sentence, David A. Roscoe filed an application for postconviction relief in which he
attacked his original conviction. An attorney was appointed to represent him, but the appointed
attorney filed a no-merit memorandum and moved to withdraw. Following a hearing, the
attorney was allowed to withdraw. Ultimately, Roscoe’s application was denied and he appealed
to this Court, arguing that the hearing justice erred when she allowed his attorney to withdraw.
For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.
I
Facts and Travel
On September 28, 1990, applicant Roscoe was convicted of several charges: first-degree
child molestation, second-degree child molestation, simple assault and battery, and intimidation
of a witness or victim. He was then sentenced to thirty years imprisonment, with fifteen years to
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serve and fifteen years suspended, with probation. This Court affirmed applicant’s conviction in
State v. Roscoe, 603 A.2d 330, 331 (R.I. 1992) (mem.).
The applicant was released from prison in 2001. In early 2003, Roscoe was charged in
District Court with simple assault. The next year, a judge convicted applicant and sentenced him
to a year in prison, with three months to serve and the remainder suspended.
The conduct underlying the 2003 assault charge also formed the basis of 2004 probation-
violation hearings in the Superior Court. A justice of that court determined that applicant had
violated the terms and conditions of his probation, which originally had been imposed as part of
his 1991 thirty-year sentence. That justice vacated the suspension of the remaining fifteen years
of applicant’s 1991 sentence.
On June 14, 2005, Roscoe filed a postconviction-relief application. He asserted several
grounds that he contended justified relief from his 1990 conviction, including allegations that:
(1) the trial justice had been biased against him, (2) his trial counsel had provided ineffective
assistance, and (3) there had been insufficient evidence to find him guilty. An attorney was
appointed to represent Roscoe in his postconviction-relief action.
On October 19, 2007, the attorney who had been appointed to represent Roscoe filed a
motion to withdraw as attorney of record. Along with his motion to withdraw, counsel filed a
no-merit memorandum in accordance with Shatney v. State, 755 A.2d 130, 135 (R.I. 2000). In
that memorandum, the attorney set forth the reasons underlying his conclusion that applicant’s
grounds for relief lacked merit.
A justice of the Superior Court held a hearing on the attorney’s motion to withdraw as
counsel. During that proceeding, the hearing justice described for Roscoe the nature of his
attorney’s motion:
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“[Y]ou understand that [the attorney’s] recommendation to the
Court, though it is based upon the issues that are before me, that
you would not likely be successful on any of these legal issues;
therefore, he’s requesting that he be allowed to withdraw as
counsel so that he doesn’t have to proceed any further on the post-
conviction relief motion.”
After the attorney clarified that his motion and memorandum related only to those issues that
Roscoe had raised, he, Roscoe, and the hearing justice engaged in a further colloquy about the
attorney’s motion.
The attorney added that he had explained to Roscoe the level to which the evidence must
rise to warrant relief. The attorney also said that applicant was “justified in having some
concerns” but “it d[id] not rise to the level, in [the attorney’s] opinion, to allow the [c]ourt this
additional review[.]” The hearing justice then addressed applicant, “That’s correct, even though
you have what may be some legitimate concerns.” Finally, Roscoe himself asked, “There is no
way that we can prove it, is that what he’s saying?” The hearing justice answered that applicant
was correct.
Following that discussion, the hearing justice granted the motion to withdraw as to the
issues raised in Roscoe’s original postconviction-relief application. In doing so, she asked
Roscoe whether he wished to represent himself on the issues that he had raised and counsel had
analyzed in the Shatney memorandum. Roscoe responded that he intended to continue
researching the issues but that he did not know whether he wished to proceed and have a hearing
on the three original grounds. The hearing justice also appointed the attorney to research another
issue, that is, the fact that the judge who presided over applicant’s conviction in District Court
had been the prosecutor in the 1990 Superior Court trial. 1
1
At the hearing on his motion to withdraw, appointed counsel informed the court that Roscoe
had told him of his concern that the prosecutor at the 1990 trial for the sexual-assault charges
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On September 19, 2008, there was an evidentiary hearing on the postconviction-relief
application, at which Roscoe represented himself. During that hearing, Roscoe was the only
witness. He testified about the assistance provided to him by his trial counsel, the trial justice’s
prejudice or bias towards him during the 1990 trial, and the lack of evidence at his trial. After
Roscoe had been cross-examined, the hearing justice asked him twice whether he had anything
else that he wished to present; nothing further was brought forth. Ultimately, the hearing justice
denied Roscoe’s postconviction-relief application, precipitating a timely appeal to this Court. 2
Before this Court, Roscoe contends that the hearing justice erred when she allowed his
attorney to withdraw from the case. Specifically, he argues that she should have allowed him to
raise additional issues before permitting counsel to withdraw. He also contends that the hearing
justice’s comment that Roscoe had “legitimate concerns” should have dissuaded her from
granting the motion to withdraw. Roscoe also maintains that the factual inquiry into his grounds
for postconviction relief was insufficient to allow his counsel to withdraw. Finally, applicant
avers that the hearing justice compounded her error in allowing counsel to withdraw because she
did not appoint successor counsel. 3
was later appointed to the District Court bench and presided over his 2003 simple-assault trial.
The trial justice directed counsel to explore that issue, but we see nothing in the record that
would indicate that counsel filed anything with the court pertaining to the subject. In her
decision after the evidentiary hearing on the postconviction-relief application, the trial justice
addressed the issue and found that it had no merit. We can conceive of no set of circumstances
under which an assault conviction in 2003 could undermine the fairness of a sexual-assault trial
that took place thirteen years earlier.
2
The applicant’s notice of appeal was filed on August 12, 2009, the same day that the hearing
justice issued her decision. A final judgment in accordance with that decision was not entered
until August 14, 2009. We previously have treated a premature notice of appeal as valid. Miller
v. Saunders, 80 A.3d 44, 51 n.8 (R.I. 2013) (citing Chapdelaine v. State, 32 A.3d 937, 941 n.1
(R.I. 2011)).
3
After a single-justice conference was held pursuant to Article I, Rule 12A(3) of the Supreme
Court Rules of Appellate Procedure, the parties were ordered to address the issue of laches. In
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II
Standard of Review
If a defendant who has been convicted of a crime “contends that his original conviction
or sentence violated rights that the state or federal constitutions secured to him,” then he may
seek redress through postconviction relief. Tassone v. State, 42 A.3d 1277, 1283 (R.I. 2012)
(quoting Chapdelaine v. State, 32 A.3d 937, 941 (R.I. 2011)). Our review in postconviction-
relief cases is deferential. Accordingly, we “will not disturb [a hearing justice’s] ruling ‘absent
clear error or a showing that the [hearing] justice overlooked or misconceived material
evidence.’” Id. (quoting Brown v. State, 32 A.3d 901, 907-08 (R.I. 2011)).
III
Discussion
In Shatney, 755 A.2d at 135, this Court adopted a procedure whereby counsel appointed
to represent an applicant for postconviction relief may withdraw. To do so,
“[A]ppointed counsel must file with the court and serve upon the
applicant a motion to withdraw accompanied by a ‘no merit’
memorandum that details the nature and extent of his or her review
of the case, lists each issue the applicant wished to raise, and
explains why in counsel’s professional opinion those issues and
any others that he or she may have investigated lacked merit. The
court then must conduct a hearing with the applicant present. If,
based upon its review of counsel’s assessment of the potential
grounds for seeking post-conviction relief and of any other issues
that the applicant wishes to raise, the court agrees that those
grounds appear to lack any arguable merit, then it shall permit
counsel to withdraw and advise the applicant that he or she shall be
required to proceed pro se, if he or she chooses to pursue the
application.” Id.
its brief to this Court, the state asserted that it did not raise laches because it did not plead the
issue as an affirmative defense in the Superior Court.
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We have had numerous opportunities to define the parameters of acceptable Shatney
procedures. In Perez v. State, 57 A.3d 677, 679 (R.I. 2013), appointed counsel filed a motion to
withdraw along with a no-merit memorandum, and a Superior Court justice held a hearing on the
matter. Having determined that the applicant’s arguments were meritless, the hearing justice
granted the motion, instructed the applicant that he could proceed pro se, and allowed the
applicant to file a memorandum with additional arguments supporting his application. Id. On
review, we held that the hearing justice had “strictly adhered to all those procedures” required by
Shatney. Perez, 57 A.3d at 679.
We reached a similar result in Brown v. State, 841 A.2d 1116, 1123 (R.I. 2004), in which
we said that a trial justice “essentially followed” Shatney when she conducted a hearing at which
an applicant was “afforded * * * an opportunity to speak on his own behalf and to dispute the
points made in his counsel’s no-merit memorandum.” In another case, we concluded that an
applicant who had been afforded multiple hearings and had been given the opportunity to
respond to his attorney’s two no-merit memoranda also had not been “denied the procedural
protections of Shatney.” Thornton v. State, 948 A.2d 312, 317 (R.I. 2008).
In this case, it is our opinion that the trial justice abided by the procedure set forth in
Shatney and that applicant received all the protections due to him. The hearing justice reviewed
the attorney’s no-merit memorandum, which she lauded as detailed and complete, and she held a
hearing on the motion to withdraw. During that hearing, she heard from the attorney and then
inquired of applicant whether he had read the memorandum and whether he had any questions.
Roscoe said that he had indeed read it and that he did not have any questions. “[O]ur caselaw
indicates that an applicant bears some responsibility before the trial justice to dispute the content
of the Shatney memorandum or raise any issues overlooked by the Shatney attorney.” State v.
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Laurence, 18 A.3d 512, 523 (R.I. 2011). But here, Roscoe offered nothing that his attorney “for
whatever reason, may have overlooked or wrongly deemed frivolous.” See id. (quoting Shatney,
755 A.2d at 133) (emphasis omitted).
We conclude that the hearing justice was not clearly wrong and did not overlook or
misconceive material evidence when she agreed with the conclusion of Roscoe’s attorney that
the application lacked merit before she granted the motion to withdraw. See Tassone, 42 A.3d at
1283. Two of the grounds raised in the application, lack of evidence and judicial bias, are more
properly brought in a direct appeal. Indeed, all the cases claiming judicial bias that have come
before this Court have been direct appeals. See, e.g., Krivitsky v. Krivitsky, 43 A.3d 23, 32-33
(R.I. 2012); Yates v. Wall, 973 A.2d 621, 621 (R.I. 2009) (mem.); State v. Lyons, 924 A.2d 756,
763-64 (R.I. 2007); see also Washington v. State, 675 N.W.2d 628, 630 (Minn. 2004) (relying on
the fact that “issues * * * known by the defendant but not raised on direct appeal, are not
considered in a subsequent petition for postconviction relief” to bar the consideration of a
judicial-bias claim). The supposed bias is alleged to have occurred before and during Roscoe’s
trial and includes a comment made during his arraignment. 4 Any claim of bias was therefore
known to him at the time of his direct appeal to this Court; therefore, a postconviction-relief
application was not the proper way to assert such a claim.
Additionally, any argument that the evidence presented at trial was legally insufficient to
convict him or was otherwise unpersuasive should have been made to the trial justice and then
raised before this Court on direct appeal. In fact, one of the arguments that we rejected in
Roscoe’s original appeal was that the trial justice erred when he denied a motion for judgment of
acquittal on the witness-intimidation charge. Roscoe, 603 A.2d at 330.
4
Roscoe alleged that during his arraignment, the justice presiding over the proceeding was heard
to mutter in Italian that those who molest children should be severely punished.
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We also agree with the hearing justice’s determination that Roscoe’s postconviction-
relief attorney should have been allowed to withdraw because applicant’s contention that he had
been prejudiced by the ineffective assistance of trial counsel was without merit. According to
the Shatney memorandum, Roscoe’s trial counsel diligently pursued the only defense available
to him, which was that the victim was lying. We cannot conclude that the hearing justice erred
when she determined that appointed counsel could withdraw from the case but that Roscoe
would be able to proceed pro se.
We also cannot say that the hearing justice’s indulgent remark that applicant had “what
may be some legitimate concerns” required her to deny the motion to withdraw. The
determination to be made in a proceeding held pursuant to Shatney is whether the claims lack
merit. See Campbell v. State, 56 A.3d 448, 456 (R.I. 2012) (“Without the ability to withdraw
from a case in which the applicant persists in pursuing meritless claims, appointed counsel could
be subject to [Super. R. Civ. P.] Rule 11’s sanctions.”). An applicant’s genuine belief that he or
she is entitled to relief does not transform the asserted grounds into those having legal merit. We
conclude that the trial justice’s comment that Roscoe had “concerns” does not collide with her
conclusion that the claims were without legal merit. Based on the record, it appears that Roscoe
understood the comments in the same manner because he responded to the hearing justice by
asking whether his attorney had determined that the claims could not be proven.
We also reject applicant’s argument that the factual inquiry into his claims was
insufficient. In his Shatney memorandum, Roscoe’s attorney described how he had arrived at his
determination concerning the application: he met with applicant twice, spoke to applicant’s trial
attorney, read applicant’s correspondence, and reviewed the prior case’s file and transcript. On
appeal, Roscoe fails to point out what else, if anything, his attorney could or should have done.
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Rather, applicant assails the fact that his attorney failed to disclose the details of the
conversations he had with Roscoe. We are satisfied that applicant’s postconviction-relief
counsel engaged in a satisfactory factual inquiry into the nature of Roscoe’s claims.
Additionally, when his attorney was allowed to withdraw, Roscoe had the opportunity to press
his claims in an evidentiary hearing before the hearing justice ultimately denied the application.
Finally, we disagree with the applicant’s assertion that the hearing justice should have
appointed successor counsel after granting the motion to withdraw. Once the hearing justice
granted the motion to withdraw, the applicant was afforded the opportunity to pursue his claims
pro se. Roscoe’s right to the assistance of counsel is guided by the principles set forth in
Shatney; because the hearing justice followed the procedures outlined in that case before
permitting counsel to withdraw, Roscoe’s option was to represent himself if he decided to pursue
the application. Requiring the appointment of another attorney would defeat the purpose of
allowing appointed attorneys to withdraw from postconviction-relief cases that lack legal merit.
See Campbell, 56 A.3d at 455-56. Thus, the applicant’s right to counsel was not undermined by
the hearing justice’s failure to appoint a second lawyer for him.
IV
Conclusion
For the foregoing reasons, we affirm the judgment of the Superior Court. The papers
shall be remanded to that court.
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RHODE ISLAND SUPREME COURT CLERK’S OFFICE
Clerk’s Office Order/Opinion Cover Sheet
TITLE OF CASE: David A. Roscoe v. State of Rhode Island
CASE NO: No. 2011-328-Appeal.
(WM 05-360)
COURT: Supreme Court
DATE OPINION FILED: May 16, 2014
JUSTICES: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
WRITTEN BY: Associate Justice Francis X. Flaherty
SOURCE OF APPEAL: Washington County Superior Court
JUDGE FROM LOWER COURT:
Associate Justice O. Rogeriee Thompson
ATTORNEYS ON APPEAL:
For Applicant: George J. West, Esq.
For State: Jeanine McConaghy, Esq.
Department of Attorney General