Supreme Court

No. 2015-177-Appeal.

(PM 07-984)

Keith Burke :

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. 2015-177-Appeal.

(PM 07-984)

Keith Burke :

v. :

State of Rhode Island. :

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

O P I N I O N

Justice Robinson for the Court. The applicant, Keith Burke, appeals1from the denial 

of his application for postconviction relief at the conclusion of a March 5, 2015 hearing in 

Providence County Superior Court. He contends on appeal that the hearing justice erred in 

denying his application for postconviction relief because “on October 12, 1994, [he] negotiated, 

bargained for, and reached an unambiguous agreement with the state, in which it would dismiss 

the murder case [pending against him] in exchange for his guilty plea in two other felony cases 

and the state breached [that] agreement.”

I

Facts and Travel

On May 22, 1992, Mr. Burke was indicted for murder.2 On November 23, 1993, he was 

charged by criminal information with breaking and entering (P2/93-3719A); and, on December 

22, 1993, he was also charged by criminal information with larceny (P2/93-3967A). On October 

 

1 After Mr. Burke appealed but before oral argument in this case, the General Assembly 

amended G.L. 1956 § 10-9.1-9 to require a party aggrieved by a final judgment entered in a 

postconviction relief proceeding to seek review by filing a petition for a writ of certiorari with 

this Court. See P.L. 2015, ch. 91, § 1; P.L. 2015, ch. 92, § 1.

2

The murder indictment in the record is not dated, but the docket reflects the fact that it 

was entered on May 22, 1992.
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12, 1994, while represented by counsel, Mr. Burke pled guilty to the charges of breaking and 

entering and of larceny; and he was sentenced to a ten-year suspended sentence and ten years 

probation on each charge, to be served concurrently. The murder charge was dismissed pursuant 

to Rule 48(a) of the Superior Court Rules of Criminal Procedure. Mr. Burke contends that his 

guilty pleas in the breaking and entering and larceny cases were in exchange for what he 

characterizes as the dismissal with prejudice of the pending murder charge.

Thereafter, on September 3, 2004, Mr. Burke was indicted, in P1/04-2715A, for the same 

murder that had formed the basis of the indictment that had been dismissed in 1994. On June 22, 

2005, Mr. Burke, through counsel, moved to dismiss the 2004 murder indictment, making the 

same argument that he makes before this Court—that the murder charge was dismissed with 

prejudice in 1994 in exchange for his guilty pleas on the other two charges. The state denied Mr. 

Burke’s contention that the dismissal of the 1992 indictment was a dismissal with prejudice. The 

Superior Court justice presiding over the motion to dismiss held a full-blown hearing, at which 

hearing testimony from the prosecutor who handled the 1994 pleas and his supervisor was 

elicited. Thereafter, the Superior Court justice, in a written decision, made findings of fact and 

denied Mr. Burke’s motion to dismiss; the Superior Court justice found that the 1994 dismissal 

of the murder charge was without prejudice. Mr. Burke took no further action with respect to 

that finding.3

On February 23, 2007, while the 2004 murder indictment was still pending, Mr. Burke 

filed the instant application for postconviction relief, seeking leave to withdraw his guilty pleas 

 

3

It may well be that Mr. Burke is collaterally estopped by the Superior Court’s ruling that 

the 1994 dismissal was without prejudice; but that is an issue which we need not and, therefore, 

do not reach in the context of this case. See Grady v. Narragansett Electric Co., 962 A.2d 34, 42

n.4 (R.I. 2009) (referencing “our usual policy of not opining with respect to issues about which 

we need not opine”).
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to the breaking and entering and larceny charges. He argued that the state “violated a contractual 

relationship” when it re-indicted him for the murder in 2004 after he “reli[ed]” on the state’s 

intention to dismiss the 1992 murder indictment when he pled guilty to breaking and entering 

and larceny; he added that, at the time he pled guilty to breaking and entering and larceny, he

thereby waived his constitutional rights, “including the right to proceed to trial.” On October 1, 

2008, while the instant application for postconviction relief remained pending, Mr. Burke pled 

guilty to second-degree murder in P1/04-2715A—the 2004 murder case. As part of his plea 

agreement, Mr. Burke agreed to withdraw “all pending matters before the Superior and Supreme 

Courts.” Significantly, the docket reflects the fact that Mr. Burke then filed a motion to dismiss 

the instant application. The docket does not reflect that an order granting the dismissal was 

entered.

There was no further action in this case for an extended period; then, on April 17, 2014,

Mr. Burke filed a bevy of motions. Those motions included: (1) a motion to withdraw the justmentioned motion to dismiss; (2) a motion requesting an evidentiary hearing; and (3) a motion 

for “enforcement and specific performance of plea agreement and request for dismissal” of the 

2004 murder indictment. A hearing was held on March 5, 2015 before another justice of the 

Superior Court, at the conclusion of which the hearing justice denied Mr. Burke’s application for 

postconviction relief; the hearing justice based his decision on the fact that Mr. Burke had 

agreed, as part of his guilty plea to second-degree murder, to withdraw all pending applications

for postconviction relief, including the instant application. Mr. Burke thereafter appealed to this 

Court.
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II

Standard of Review

When 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.

III

Analysis

The procedural morass presented by this case suggests at first glance that it is uniquely

difficult and complicated. However, in the opinion of this Court, the issue before us is actually 

capable of summary disposition. On February 23, 2007, Mr. Burke filed the instant application 

for postconviction relief seeking to withdraw his guilty pleas on the breaking and entering and 

larceny charges. He filed this application before he pled guilty to the murder charge in 2008.

According to G.L. 1956 § 10-9.1-1(a), only “[a]ny person who has been convicted of, or 

sentenced for, a crime * * * may institute” an application for postconviction relief.4(Emphasis 

added.) Mr. Burke’s application related only to the breaking and entering and larceny charges,

and they were the only charges at issue in the instant appeal concerning which he had been 

convicted or sentenced at the time he filed the instant application. That application has never 

been amended. Consequently, the gravamen of Mr. Burke’s application for postconviction relief

 

4

See also § 10-9.1-4 (requiring an applicant for postconviction relief to identify in his or 

her application “the proceedings in which the applicant was convicted [and] give the date of the 

entry of the judgment and sentence complained of”). 
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is, by its own terms, only the breaking and entering and larceny pleas that were entered in 1994. 

Mr. Burke has since served his entire sentence with respect to both of those cases. The relief he 

seeks from this Court on appeal is the vacating of his 2008 guilty plea to second-degree murder

and the dismissal of his 2004 murder indictment. However, Mr. Burke is not entitled to the relief 

that he seeks. It is clear beyond peradventure that the 2004 murder charge and Mr. Burke’s 

eventual guilty plea are not before the Court in this application, and we will only rule on the 

application that is before us.

Moreover, and significantly, as the hearing justice in the instant case indicated, when Mr. 

Burke pled guilty to second-degree murder in 2008, he agreed to dismiss all pending actions,

including this application for postconviction relief.

On appeal, Mr. Burke also raised a contention of ineffective assistance of counsel; he 

posits that his counsel for the 2004 murder case was ineffective in his representation of Mr. 

Burke in connection with the motion to dismiss. We note that that contention relates to the 2004 

murder charge rather than the charges for breaking and entering and larceny, which form the 

basis of this application for postconviction relief. As such, said contention is not properly before 

us at this time.

Mr. Burke also contends on appeal that the hearing justice in the case before us “denied 

[him] the statutory right to post-conviction counsel and a meaningful opportunity to present his 

post-conviction claims.” Specifically, he avers that the hearing justice should not have 

proceeded with the hearing when Mr. Burke’s counsel indicated that she was not prepared to 

submit a brief. We perceive no merit in Mr. Burke’s argument; counsel was precluded by Mr. 

Burke himself from submitting a brief that she had drafted. We likewise perceive no merit in the 

contention that Mr. Burke’s counsel was unprepared for the hearing since she made a cogent 
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argument at the hearing on his behalf. Mr. Burke was also given an opportunity to personally 

address the court at the hearing.

IV

Conclusion

For the reasons stated herein, we affirm the judgment of the Superior Court. We remand 

the record to that tribunal.
STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS

SUPREME COURT – CLERK’S OFFICE

OPINION COVER SHEET

Title of Case Keith Burke v. State of Rhode Island.

Case Number No. 2015-177-Appeal.

(PM 07-984)

Date Opinion Filed December 4, 2017

Justices Suttell, C.J., Goldberg, Flaherty, Robinson, and 

Indeglia, JJ.

Written By Associate Justice William P. Robinson III

Source of Appeal Providence County Superior Court 

Judicial Officer From Lower Court Associate Justice Robert D. Krause

Attorney(s) on Appeal

For Applicant: 

Camille A. McKenna

Office of the Public Defender

For State:

Lauren S. Zurier

Department of Attorney General

SU-CMS-02A (revised June 2016)