Supreme Court
No. 2012

- 216

- A ppeal

. ( PM 0 1

- 1761 )

Robert Chiellini :

v. : State of Rhode Island. :

O R D E R The applicant, Robert Chiellini, appeals from a n October 10, 2003 judgment of the Superior Court denying his application for postconviction relief. In 1997 , applicant was
convicted of first

- degree murder, in violation of G.L. 1956 § 11

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- 1 . He was sente nced to a term of life imprisonment , with an additional ten years to serve pursuant t o the habitual offender statute, G.L. 1956 § 12

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. This Court affirmed the judgment of conviction in 2000. State v.
Chiellini , 762 A.2d 450 (R.I. 2000 ). On April 5, 200 1, following this Court’s affirmance of his conviction, applicant filed

a pro se application for postconviction relief pursuant to G.L. 1956 § 10

- 9.1

- 1

. In that application, he argued that , as a result of what he contended was the ineffective assistance of his trial counsel and prosecutorial misconduct , his constitutional rights had been violated

. On April 8, 2002 , applicant’s court

- appointed attorney moved to withdraw as attorney of
record ; in support of that motion, he filed a “ no
- merit ” memorandum pursuant to Shatney v.
State , 755 A.2d 130 , 135 (R.I. 2 000). According to the attorney’s Shatney memorandum , applicant’s claims for postconviction relief were based on the following : (1) that , according to

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-applicant, the justice who presided at applicant’s bail hearing found that “the case presented by the State constituted a second degree murder and should be resolved through a plea and [ a ]
sentence of twent y
- five years to serve;” and (2) that a witness statement (missing from the record) indicating that the victim “was breathing on her own” when she arrived at the hospital could have been used to show that applicant was not “legally responsible if the emergency room physician had caused [ the victim’s ] death * * * .” The attorney then set forth the reasons for his
conclusion that, after meeting with applicant and after reviewing “ the trial transcript and the appellate proceedings, ” t here was no merit to applicant’s claims. A hearing was held before a justice of the Superi or Court on the attorney’s motion to withdraw, which hearing applicant
attended

. The attorney’s motion to withdraw was granted, and applicant proceed ed pro se on his applic ation for postconviction relief

. The applicant was thereafter afforded two additional hearings (one on February 27 and the other on March 25, 2003) before a different justice of the Superior Court

. 1 At the February 27, 2003 hearing , the hearing justice provided applicant with the opportunity to augment the record, but applicant did not proffer any additional evidence in support of his claims

. At the March 25, 2003 hearing , applicant contended for the first time that he had been deprived of the
effective assistance of counsel because his trial attorney failed to inform him of a plea bargain ( viz. , forty

- five years to serve in exchange for a guilty plea) offered by the state prior to trial ; in support of that contention, applicant submitted , among other things, a transcript of a pretrial evidentiary heari ng held on November 12, 1997

. T he hearing justice then proceeded to read the transcript line

- by

- line with applicant, focusing particularly on the portions referred to by

1 Due to the death of the justice who was initially assigned to applicant’s case, the case was assigned to anothe r justice of the Superior Court, who presided at both of the subsequent hearings.

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-applicant

. However, t he hearing justice found that there was no thing in that transcript to support applicant’s contention relative to a proposed plea bargain

. At the conclusion of the March 25,
2003 hearing, applicant stated that he did not have any additional evidence to submit in support
of his claims for postconviction relief

. Subsequently , o n June 16, 2003, with the permission of the court, applicant filed a supplemental memorandum in support of his application

. On October 10, 2003 , the hearing justice issued an order denying applicant’s application for postconviction relief

. In rendering his decision, the hearing justice concluded as follows :

“ [ The a pplicant] has offered no new relevant evidence. Nor has he offered any significant new legal arguments not previously considered and rejected as meritless by his post conviction [ sic ] attorney. [ The a pplicant] has utterly failed to show that errors of th e lawyers who represented him during the underlying trial proceedings were so serious as to violate his constitutional right to counsel and that his lawyers’ performance [s] were so deficient as to prejudice his defense.” (I nternal quotation marks and origi nal brackets omitted

. ) The applicant filed a timely appeal to this Court.
The statutory remedy of postconviction relief , as set for th in § 10

- 9.1

- 1 , is “available to any person who has been convicted of a crime and who thereafter alleges either that the

c o nviction violated the applicant’ s constitutional rights or that the existence of newly discovered material facts requires vacation of the conviction in the interests of justice.” Lynch v. State , 86 A.3d 390, 391 (R.I. 2014) (mem.) (in ternal quotation marks omitted)

. An applicant seeking postconviction relief bears “[t]he burden of proving, by a preponderance of the evidence, that
such relief is warranted in his or her case.” Brown v. State , 32 A.3d 901, 907 (R.I. 2011) (internal quotation marks omitt ed ) . In reviewing a denial of postconviction relief , we are deferential to the hearing justice’s findings of fact , and we “will not disturb his or her ruling

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-absent clear error or a showing that the [hearing] justice overlooked or misconceived material

ev idence.” Tassone v. State , 42 A.3d 1277, 1283 (R.I. 2012) (int ernal quotation marks omitted).
In the applicant’s written submission to this C ourt, he has summarize d the procedural posture of the case and his arguments before the Superior Court , but he h as failed to indicate the precise issues that he is challenging on appeal. It is well

- settled that a “ mere passing reference to
an argument * * * , without meaningful elaboration, will not su ffice to merit appellate
review.” State v. Day , 925 A.2d 962, 974 n. 19 (R.I. 2007) ; see DeAngelis v. DeAngelis , 923 A.2d 1274, 1282 n. 11 (R.I. 2007) ( “Simply stating an issue for appellate review, without a meaningful discussion thereof or legal briefing of the issues, does not assist the Court in focusing
on the l egal questions raised, and therefore constitutes a waiver of that issue.”) (internal quotation marks omitted)

. It was contended at oral argument before this Court that the hearing justice , in denying the application for postconviction relief, adopted the conclu sions set forth in
the Shatney memorandum without re considering the applicant’s claims in light of the additional
evidence that the applicant had presented after the applicant’s court

- appointed attorney’s motion
to withdraw was granted

. However, as we have previously stated, “this Court will deem as waived issues that the appellant fails to brief, despite b eing addressed at oral argument; ” accordingly, we hold that the applicant’s contention s in his written submission to this Court and at oral argume nt have been waived. Rice v. State , 38 A.3d 9, 16 n. 10 (R.I. 2012)

. And, in any
event, the contention articulated at oral argument is clearly meritless in view of what transpired at the hearing on March 25, 2003. We perceive no basis in the record for concluding that the hearing justice clearly erred or
overlooked or misconceived material evidence in denying the applicant ’ s postconviction relief

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-application

. See Tassone , 42 A.3d at 1283

. Accordingly, we affirm the judgment of the Superior Court.
En tered as an Order of this Court this 20 th day of June , 2014

.
By Order,

_____________ /s/

_______________ Clerk

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### R HODE 

### I SLAND 

### S UPREME 

### C OURT 

### C LERK 

### ’ S 

### O FFICE


### Clerk’s Office Order/O pinion Cover Sheet

TITLE OF CASE: Robert Chiellini v. State of Rhode Island.
CASE NO : No. 20 1 2

- 216

- Appeal. (PM 01

- 1761)
COURT: Supreme Court
DATE ORDER FILED: June 20 , 2014
JUSTICES: S uttell, C.J. , Goldberg, Flaherty , R obinson , and Indeglia, JJ

. WRITTEN BY: N/A

– Court Order
JUDGE FROM LOWER COURT : Associate Justice Edwin J. Gale
ATTORNEYS ON APPEAL :
For Applicant : Susan B. Iannitelli , Esq.
For State : Jeanine P. McConaghy Department of Attorney General