Supreme Court

No. 2012-227-Appeal.

(PM 09-2330)

Ricardo Ramirez :

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 Telephone 

222-3258 of any typographical or other formal errors in order that 

corrections may be made before the opinion is published.
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Supreme Court

No. 2012-227-Appeal.

(PM 09-2330)

Ricardo Ramirez :

v. :

State of Rhode Island. :

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

O P I N I O N

Justice Goldberg, for the Court. This case came before the Supreme Court on April 2, 

2014, pursuant to an order directing the parties to appear and show cause why the issues raised in 

this appeal should not summarily be decided. Ricardo Ramirez (Ramirez or applicant), appeals 

from a Superior Court judgment denying his application for postconviction relief. On appeal, 

Ramirez argues that the hearing justice erred (1) by failing to make findings of fact pursuant to 

this Court’s holding in Shatney v. State, 755 A.2d 130 (R.I. 2000); (2) by not allowing Ramirez 

an opportunity to be heard on the merits of his application before allowing the appointed attorney 

to withdraw; and (3) by declining to consider the applicant’s motion to reduce sentence pursuant 

to Rule 35 of the Superior Court Rules of Criminal Procedure. After a thorough review of the 

record and consideration of the parties’ arguments, we conclude that cause has not been shown 

and that the issues presented may be decided without further briefing or argument. For the 

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

 
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Facts and Travel

On September 26, 2002, Ramirez was found guilty of first-degree murder after a jury 

trial.1 He was later sentenced to a term of life imprisonment, with an additional twenty-five 

years to serve consecutively, pursuant to the habitual offender statute, G.L. 1956 § 12-19-21.

Ramirez appealed his conviction, and in December 2007, this Court affirmed the judgment. 

State v. Ramirez, 936 A.2d 1254, 1257 (R.I. 2007). 

On April 23, 2009, Ramirez filed a pro se application for postconviction relief in the 

Superior Court, pursuant to G.L. 1956 § 10-9.1-1, in which he claimed to have received 

ineffective assistance of counsel at the trial on the underlying murder charge.2 Contemporaneous 

with the application for postconviction relief, Ramirez also filed a motion to appoint counsel; 

this motion initially was denied. However, on February 25, 2010, counsel was appointed for the 

limited purpose of investigating Ramirez’s postconviction-relief claims, in light of this Court’s 

holding in Shatney. Counsel later filed with the Superior Court a “Report to the Court of 

Counsel’s Investigation of Post Conviction Claims of Petitioner” (Shatney report). 

On May 24, 2010, a hearing was held before the Superior Court justice who had presided 

at applicant’s criminal trial. At this hearing, counsel referenced the contents of the Shatney

report, and stated:

“Your Honor, I have reviewed the entire record and 

encouraged Mr. Ramirez’s input to my report, and I go into 

significant detail about his counsel’s effectiveness. I list numerous 

 

1

The facts of this case were previously detailed in our opinion affirming Ramirez’s conviction,

State v. Ramirez, 936 A.2d 1254 (R.I. 2007). It is therefore unnecessary for us to repeat them 

here.

2

Specifically, Ramirez asserted that his trial counsel was ineffective in failing to ask for an 

evidentiary hearing regarding the availability of a witness and in failing to ask the state to grant 

immunity to a witness. Ramirez also contended that a witness for the state had since provided 

Ramirez with a sworn statement recanting his prior testimony.
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things that his counsel did for him. I looked into the theories of 

prosecutorial misconduct as well as newly-discovered evidence 

and the sum and substance of my report’s that the level of 

assistance provided to Mr. Ramirez was, in fact, effective and that 

there’s no way I can meet the threshold required by 

Strickland[ v. Washington, 466 U.S. 668 (1984)], and so I don’t 

believe he is entitled to counsel for the purpose of pursuing his 

post-conviction case in order to vacate the conviction.” 

Counsel then requested that the court permit her to withdraw her appearance on Ramirez’s 

claims of ineffective assistance of counsel. However, counsel asked that she be allowed to 

represent Ramirez for the sole purpose of filing—admittedly out of time—a motion to reduce 

sentence in accordance with Rule 35. Over the state’s objection, and despite the trial justice’s 

“grave reservation,” the court requested that counsel provide further briefing on the court’s 

equitable authority to entertain a Rule 35 motion past the 120-day time period specified in the 

rule. The trial justice further stated that the court would “accept the findings of [counsel] in the 

Shatney report,” and informed Ramirez that, in order to pursue his claims of ineffective 

assistance of counsel, he would have to proceed pro se. After this hearing, Ramirez filed an 

objection to counsel’s Shatney report and disputed counsel’s assertion that a Rule 35 motion to 

reduce sentence may be permissible, and requested that the court “appoint him competent 

counsel to represent his postconviction issues.” 

On June 22, 2010, counsel submitted a memorandum, citing this Court’s opinion in

Ballard v. State, 983 A.2d 264 (R.I. 2009), arguing that the Rhode Island Post Conviction 

Remedy Act, chapter 9.1 of title 10, provides a court with the “ability to vacate the sentence in 

part or effectively reduce the sentence * * * [with] the only requisite being the interest of 

justice.” On July 7, 2010, the state filed a motion to dismiss Ramirez’s application for 

postconviction relief, as well as an objection to counsel’s motion to reduce sentence. 
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On July 12, 2010, another hearing was held, at which the trial justice denied Ramirez’s 

motion to reduce sentence and allowed counsel to withdraw from the case. The trial justice 

reserved decision on the state’s motion to dismiss and set another hearing date, in order to give

Ramirez time to decide whether to proceed pro se, retain private counsel, or withdraw his

application for postconviction relief. The hearing on the state’s motion to dismiss subsequently

was held on October 5, 2010. Ramirez appeared pro se and requested summary judgment based 

on nine postconviction-relief issues that he read into the record from a prepared statement. After 

the state addressed each of applicant’s contentions, the trial justice asked applicant if he wished 

to respond; Ramirez declined. In his bench decision, the trial justice noted that the attorney who 

prepared the Shatney report was appointed “as an independent officer of the [c]ourt to investigate 

[applicant’s] initial allegations.” The trial justice continued, stating:

“And as I told you at the time of her appointment, because a lot of 

petitioners are under the impression that this person is representing 

[their] interests, I told you [counsel] is representing the Court to 

make an independent investigation regarding the allegations that 

you have raised. Her report, as you know * * * was a negative 

report.”

At the end of the hearing the trial justice denied and dismissed Ramirez’s application for 

postconviction relief, and judgment was entered. Ramirez filed a timely notice of appeal. 

Standard of Review

Pursuant to chapter 9.1 of title 10, the statutory 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.” Campbell 

v. State, 56 A.3d 448, 453 (R.I. 2012) (quoting Sosa v. State, 949 A.2d 1014, 1016 (R.I. 2008)). 

When faced with the grant or denial of postconviction relief, “[t]his Court will not disturb a trial 
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justice’s factual findings made on an application for post-conviction relief absent clear error or a 

showing that the trial justice overlooked or misconceived material evidence in arriving at those 

findings.” Young v. State, 877 A.2d 625, 628 (R.I. 2005) (quoting Bustamante v. Wall, 866 

A.2d 516, 522 (R.I. 2005)). However, we review “questions of fact concerning infringement of 

constitutional rights, and mixed questions of law and fact with constitutional implications, de

novo.” Campbell, 56 A.3d at 454.

Discussion

On appeal, Ramirez argues that the trial justice did not follow the appropriate procedure 

mandated by Shatney, a contention that is not disputed by the state. Specifically, Ramirez claims

that the trial justice did not place on the record an assessment, or findings of fact, regarding 

whether counsel’s conclusions were justified. Ramirez also contends that the trial justice erred 

by allowing counsel to withdraw after accepting the Shatney report, and claims that he was 

entitled to be heard on the merits of the report while represented by counsel. Finally, Ramirez 

argues that he was entitled to have his Rule 35 motion for reduction of sentence considered, and 

claims that the trial justice erred by summarily dismissing the motion as being untimely. 

As set forth by this Court in Shatney, an applicant for postconviction relief “has the right 

to court-appointed assistance of counsel if he or she is indigent, unless a previous application 

involving the same issue or issues has been finally determined adversely to the applicant.”

3

 

Shatney, 755 A.2d at 135. This mandate derives from Rhode Island’s Post Conviction Remedy

Act, specifically § 10-9.1-5, which states in part that “[a]n applicant who is indigent shall be 

entitled to be represented by the public defender. If the public defender is excused from 

 

3 Consequently, “the inquiry into whether an indigent postconviction-relief applicant is entitled 

to counsel and a hearing should focus, at least in part, on how many applications have been 

filed.” Campbell v. State, 56 A.3d 448, 458 (R.I. 2012).
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representing the applicant because of a conflict of interest or is otherwise unable to provide 

representation, the court shall assign counsel to represent the applicant.” Once counsel has been 

appointed to represent an indigent applicant, “[t]he hallmarks of a meaningful attorney-client 

relationship thus arise, including zealous advocacy and the protection of the applicant’s 

confidences.” Campbell, 56 A.3d at 454-55. Accordingly, “[t]he point in time at which a trial 

court may determine that a * * * petitioner’s claims are frivolous or meritless is after the 

petitioner has been afforded a full, fair, and counselled opportunity to present those claims.”

Shatney, 755 A.2d at 135 (quoting Commonwealth v. Harris, 553 A.2d 428, 433 (Pa. Super. Ct.

1989)). 

This Court has clarified that “[n]either Shatney nor its progeny contemplates the 

appointment of an ‘objective’ or ‘independent’ lawyer who does not represent the applicant,” and 

that “[g]enerally, Shatney considerations should arise after counsel has been appointed in 

accordance with § 10-9.1-5 and the applicant has been provided with a meaningful discussion 

with counsel about the issues that may or may not be suitable grounds for postconviction relief.” 

Campbell, 56 A.3d at 456. In Campbell, we explained that “[§] 10-9.1-5 cannot be satisfied with 

anything less than a meaningful attorney-client relationship between appointed counsel and his 

or her client.” Campbell, 56 A.3d at 455. Accordingly, we now reiterate that a “trial justice’s 

appointment of an ‘objective attorney’ to make an ‘independent evaluation’ of the merits of his 

claim of ineffective assistance of counsel violat[es] § 10-9.1-5.” Campbell, 56 A.3d at 457.

In the case at bar, the state concedes that the trial justice did not follow the requisite 

procedure and that Ramirez was not provided with appointed counsel as required by § 10-9.1-5. 

Accordingly, we conclude that both the state and Ramirez are correct in their contention that a 

remand is necessary to provide Ramirez with a meaningful opportunity to present his 
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postconviction claims in the first instance. We are not, however, persuaded by the state’s 

argument that Ramirez should not be afforded an opportunity to present his Rule 35 argument in 

the context of a claim of ineffective assistance of counsel because, the state contends, the trial 

justice decided that issue. Although the filing of a Rule 35 motion is time-barred, we are of the 

opinion that Ramirez should have the opportunity to present—while represented by counsel—

whatever claims may be available to him in this, his first application for postconviction relief, 

including that he was deprived of the assistance of counsel at the Rule 35 stage, after this Court 

affirmed his conviction. 

Conclusion

For the reasons articulated above, we vacate the judgment and remand the case to the 

Superior Court with directions to appoint counsel to Ramirez in accordance with § 10-9.1-5 for 

investigation and, if appropriate, litigation of the applicant’s allegations. The papers in this case 

may be remanded to the Superior Court.
RHODE ISLAND SUPREME COURT CLERK’S OFFICE

Clerk’s Office Order/Opinion Cover Sheet

TITLE OF CASE: Ricardo Ramirez v. State of Rhode Island.

 

CASE NO: No. 2012-227-Appeal.

(PM 09-2330)

COURT: Supreme Court

DATE OPINION FILED: May 9, 2014

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

WRITTEN BY: Associate Justice Maureen McKenna Goldberg

SOURCE OF APPEAL: Providence County Superior Court

JUDGE FROM LOWER COURT:

 Associate Justice Francis J. Darigan, Jr.

ATTORNEYS ON APPEAL:

 For Applicant: C. Daniel Schrock, Esq.

 

For Defendant: Jeanine P. McConaghy, Esq.