Supreme Court
No. 2016

- 143

- Appeal. (PM 09

- 5227 )

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. Angel Navarro :

v. :
State of Rhode Island

. :- 1

- Supreme Court
No. 2016

- 143

- Appeal. (PM 09

- 5227 )

Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
O P I N I O N Chief Justice Suttell, for the Court. The applicant , Angel Navarro , 1 appeals from a postconviction

- relief judgment in favor of the State of Rhode Island and against Navarro

. In those proceedings, Navarro challenged the trial court’s acceptance of his nolo contendere plea on a second

- degree murder charge

. Navarro’s plea was “capped” at sixty years, wi th forty years to

serve and twenty years suspended with probation following his release , and the maximum sentence was imposed

. This matter came before the Supreme Court pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not be summarily decided. After considering the parties’ written and oral submissions and reviewing the record, we conclude that cause has not been shown and we proceed to decide the appeal at
this time. For t he reasons set forth herein, we affirm the judgment of the Superior Court.
I Facts and Procedural History On August 1 9 , 1999, Alfred C. Moon, M.D. , was found dead in side his residence. From
199 9 to 2004, police investigated Dr. Moon’s mysterious death , to no avail. Then , on June 23,

1 M r
. Navarro is also identified in the record as Victor Medina, an apparent alias.

Angel Navarro :

v. :
State of Rhode Island

. :- 2

-

2004, after police received information about a potential suspect, Navarro was arrested. On July 8, 2005 , a grand jury indicted Navarro for murder in violation of G.L. 1956 §§ 11

- 23

- 1 and 11

- 23

- 2

. On November 16, 2006, Navarro entered into a plea agreement , whereby he pled nolo
contendere to an amended charge of second

- degree murder , and his sentence was “capped” at sixty year s , with forty years to serve and the twenty

- year balance suspended with probation. The plea pr oceedings began with the state’s motion to amend the charge to second

- degree
murder , which the hearing justice granted

. Next , the hearing ju stice asked if Navarro understood
that by entering his plea he w ould be giving up the rights contained in the plea form ; to which
Navarro responded , “ Y es.” The hearing justice then asked Navarro if he had reviewed the plea form with his attorney (trial counsel)

. Navarro again responded in the affirmative

. At this point,
trial counsel as ked the hearing justice for an opportunity to speak with Navarro about “a question” regarding , as the attorney described it, “the back end of the number which I did not go
over with [Navarro]

. ” The n, trial counsel and Navarro conferred off the record. Subsequently , the hearing justice informed Navarro that he was giving up his right to a trial and explained to Navarro what it meant to give up that right

. The hearing justice then asked
Navarro if he had any questions, to which Navarro responded , “ N o , yo ur Honor .” Following
Navarro’s acceptance of the prosecution’s statement of the facts as true , the hearing justice
informed Navarro that the plea was capped and agreed upon by Navarro , the state , and trial
counsel. The hearing justice further explained that the sentence could be no more than sixty years with forty years to serve and asked Navarro : “ If I accept your plea and cap that sentence with those years, you can’t change your mind later on about this. Do you understand? ” Navarro responded that he understood. The hearing justice indicated that the sentencing was to be held at

a separate hearing , at which time the court would consider a presentence report and the- 3

-

recommendations of the state and trial counsel

. The hearing justice further informed Navarro
that he would also have an opportunity to address the court. Again, t he hearing justice said to Navarro : “I f the maximum sentence is imposed that can be imposed under this agreement, you could end up s pending [forty] years in prison . Do you
understand that? ” Navarro replied , “ Y es.” The hearing justice then warned Navarro that during
the entire s ixty

- year sentence, if imposed, he would have to abide by the terms of his probation,
to which Navarro again respo nded that he understood. Lastly, t he hearing justice asked Navarro if he had any questions , to which Navarro r eplied , “ N o
. ” On December 13, 2006, the same justice conducted Navarro ’s sentencing hearing. At
that time , Dr. Moon ’s colleague, his two sons, and his daughter addressed the c ourt

. Navarro ’ s mother and wife 2 also addressed the c ourt , as did Navarro

. In his statement, Navarro apologized

to Dr. Moon ’s family and expressed remorse
. During the sentencing hearing , trial counsel made a sentence recommendation on
Navarro ’s behalf. He stated that “[ Navarro ] is sincere when he says that his only wish and prayer would be to reverse the events of August 17, 1999 that led to such a tragedy” and that
Navarro “ha s admitted to be ing responsible f or the death of Dr. Moon

. ” Trial counsel described
Navarro ’s difficult upbringing and pointed out that the totality of his criminal past was
nonviolent and related to his challenges with addiction. Trial counsel chronicled the events that
occurred o n the night of the murder from Navarro ’s perspective and provided a very detailed
recitation of the circumstances that led to Dr. Moon’s death

. He noted that Navarro had been released from prison three days prior to Dr. Moon’s murder , afte r serving time for heroin

2 We note that t he transcript of the sentencing hearing is missing three pages that we presume include part of Navarro’s wife ’s statement to the court

.- 4

-

possession

. E arlier that day , Navarro had “ sniffed ” two bags of heroin and had been drinking heavily

. Additionally, trial counsel cited to his research on sentences in other second

- degree
murder cases , which revealed terms of less than five years to up to forty years to serve

. He further noted that the average sentence of the thirty

- six cases he examined was fifty years with twenty

- seven years to serve

. He distinguished the instant case from other s , arguing that in this

case “[ t ] here was a degree of provocation and an element of self

- defense.” He further argued
that Navarro ’s sentence should be reduced because he ha d taken responsibility for Dr. Moon’s
death , show ed genuine remorse, and demonstrated “a true sense of trying t o right his wrongs.” Furthermore, trial counsel explained that Navarro had “assisted the prosecution in the United States District Court for charges that occurred while [Navarro] was serving at the [ A dult
Correctional Inst i t ut ions ] and witnessed an alleged crime

. ” In summation, trial counsel
recommended that Navarro be sentenced to forty years with fifteen to twenty years to serve, and
trial counsel also recommended that Navarro participate in treatment for anger management and
substance abuse. After reviewing the facts of the case, the hearing justice noted that , for four years while
law enforcement worked to solve Dr. Moon’s murder , Navarro failed to take responsibility and remained at large

. In addition, the hearing justice noted the severity of the attack, Navarro ’s criminal history, his likelihood of rehabilitation , and trial counsel’s research on sentencing in
second

- degree murder cases

. T he hearing justice sentenced Navarro to the maximum sentence
under the capped plea agreement: sixty years imprisonment , with forty years to serve and twenty years suspended with probation following Navarro ’s release.- 5

-

On September 11, 2009 , Navarro filed a pro se application for post conviction relief.
Navarro sought to have his sentence vacated pursua nt to G.L. 1956 § 10

- 9.1

- 1. He essentially asserted two arguments in support of his application for postconviction relief : (1) ineffe ctive
assistance of counsel and (2) failure by the hearing justice to adequately explain to Navarro his waiver of constitutional rights when he ple d nolo contendere

. On Oct ober 23, 2009, the state
filed its answer and a motion to dismiss Navarro ’s application for postconviction relief. On September 21, 2010, Navarro ’s court

- appointed counsel for his p ostconviction

- relief application (postconviction counsel) entered an appearance on his behalf

. Prior to the postconviction

- relief hearing , postconviction counsel filed a motion to
withdraw in accordance with the procedures outlined in Shatney v. State , 755 A.2d 130 (R.I. 2000)

. See also Campbell v. State , 56 A.3d 448, 45 5

- 56 (R.I. 2012) (indicating that in Shatney ,

we set forth a mechanism that allows “an attorney * * * appointed to represent an indigent applicant [to] withdraw from that representation w hen it becomes clear, after a reasonable investigation, that some or all of th e applicant’s claims lack merit ”)

. O n October 20, 2011, a justice of the Superior Court heard the parties on Navarro’s application for postconviction relief. T he postconviction

- relief justice noted that “[t]he [c] ourt
* * * appointed an attorney to investigate the petitioner’s claim to determine if there was any
merit to the same.” Navarro ’s p ostconviction counsel indicated that he had been “appointed in
this ca se to represent Mr. Navarro in his [postconviction

- relief] petition.” Postconviction
counsel reported to the justice that , after he obtained the case , he met with Navarro approximately four times. In addition, postconviction counsel stated that he review ed all pertinent exhibits and transcripts. He also spoke with trial counsel “at length at least four times regarding the actual plea.” Postconviction counsel then submitted to the justice that , based on- 6

-

his review of the case , Navarro understood the ramifications of his plea

. Moreover, postconviction counsel stated: “ I n my professional opinion, there is no reasonable avenue by way
of [postconviction] [ r ] elief that Mr. Navarro could gain through this petition

. ” Therefore , h e asked the justice for pe rmission to withdraw as Navarro ’s counsel

. In re sponse to his counsel’s request to withdraw, Navarro stated that he agreed with postconviction counsel ’s summary of the
facts relat ing to what postconviction counsel had done in his case. At that point during the proceedings , t he postconviction

- relief justice told Navarro, “[I] t’s
my responsibility * * * after I receive a report from an attorney * * * to kind of go through the facts myself to make sure that I think he’s covered everything. And I’m satis fied there is an accurate record to substantiate what he’s just said before the [c] ourt.” The justice further indicated that she “had a couple of opportunities” to review the record. S he reviewed the plea form, the transcript of the plea hearing, the tra nscript of the sentencing hearing, postconviction
counsel ’s memorandum, and , in particular, the section in which postconviction counsel
summarized his conversations with trial counsel

. T he postconviction

- relief justice found, after reviewing the entire record, that Navarro
entered his plea “with knowledge, consent, voluntarily, understanding what was happening, the nature of the plea, [and] the consequences of it” and that Navarro’s trial counsel provided “more
than ade quate representation

. ” T he justice also agreed with postconviction counsel’s conclusion
that Navarro ’s claims lacked merit and , accordingly , decided that she was “going to allow [postconviction counsel] to withdraw.” N o order was entered as to either dec ision at that time. Upon issuing her decision orally , t he postconviction

- relief justice informed Navarro that
he ha d a right to further pursue th e matter pro se
. Navarro responded that he d id not wish to pursue the matter, but instea d he sought to file a motion for modification of his sentence. In- 7

-

response, the justice schedule d a future status date and indicated that Navarro could utilize the time prior to his next court date to consider his strategy moving forward. Navarro again informed the justice that he did not want to pursue his postconviction

- relief application; however, the justice persisted in scheduling the matter for a further court date. She noted that the
future date would give Navarro the opportunity to “ talk to [postconviction counsel] about the sentencing issue * * * .” The justice further informed postconviction counsel that , after he spoke
with Navarro , he would be allowed to withdraw as Navarro’s postconviction counsel

. In a letter dated October 29, 2011, Navarro wrote to an atto rney (former counsel) who had represented him prior to his representation by trial counsel

. In the l e tter, Navarro ask ed
former counsel to send him th e name of the prosecutor who had offered a plea deal that purportedly would have give n Navarro assistance with his sentence if he provided testimony in
an unrelated case

. F ormer counsel sent a letter in response , wherein he provid ed Navarro with the prosecutor’s name and explained that the prosecutor did in fact consider Navarro ’s testimony
and that the prosecutor’s consideration resulted in a proposed thirty

- two

- year sentence

. Former
counsel further explained in the letter that , because Navarro decided not to take th e thirty

- two

year offer and instead retained a new attorney, N avarro would have needed to raise the previously proposed plea agreement at his sentencing hearing

. The matter was again before the postconviction

- relief justice on March 16, 2012. At th at time, Navarro discussed the letter that he had receiv ed from his former counsel regarding the offer of a thirty

- two

- year sentence

. Navarro argued that the letter was “proof [he] was getting [thirty

- two] years.” The postconviction

- relief justice concluded , as former counsel stated in the letter, that Navarro had no pl ea agreement with the state and had not raised the state’s offer at his sentencing

. She further informed Navarro that he needed to put forth “something different”- 8

-

because in the prior hearing she had already decided that Navarro did not receive ineffective
assistance from his trial counsel

. Navarro responded by express ing his intention to file an appeal
with this Court

. The justice then instructed Navarro to speak with postconviction counsel about the timing of his appeal . In addition, the ju stice as ked postconviction counsel to prepare an order
that indicated she had accepted postconviction counsel’s Shatney memorandum , th at Navarro
ha d “ nothing new to offer other than what [ the postconviction

- relief justice ] discussed before, ”
and that Navarro intended to file an appeal. On April 18, 2012, Navarro filed a pro se notice of appeal to this Court . During an August 1, 2012 status conference , Navarro stated: “ I just wanted to appeal to the Supreme
Court.” T he postconviction

- relief justice indicated that an order was to be entered in the case at
the end of th e week

. The postconviction

- relief justice then confirmed orally on the record that
Navarro ’s application for postconviction relief was denied ; however, no order was entered at that
tim e
. On April 27, 2016, judgment entered on Navarro ’s application for postconviction relief in favor of the state and against Navarro

. 3 On October 4, 2017, Navarro filed a motion for the appointment of counsel , which this Court granted

. II
Standard of Review Under Rhode Island law, a defendant can seek postconviction relief pursuant to § 10

- 9.1

- 1. Post conviction relief “ is available to a defendant convicted of a crime who contends that his original conviction or sentence violated rights t hat the state or federal constitutions
secured to him.” Bell v. State , 71 A.3d 458, 460 (R.I. 2013) (quoting Chapdelaine v. State , 32 A.3d 937, 941 (R.I. 2011) ). “ Accordingly, in all criminal prosecutions, one who alleges the

3 This Court has not b een made aware of the reason for the delay in the entry of judgment.- 9

-

infringement of his or her constitutional Sixth Amendment right to the assistance of counsel may avail his or herself of the postconviction

- relief process. ” Rice v. State , 38 A.3d 9, 16 (R.I. 2012)

. “‘[T] he burden of proving, by a preponderance of the evidence, that such [post conviction] relief
is warranted’ falls on the applicant. ” Motyka v. State , 172 A.3d 1203, 1205 (R.I. 2017) (quoting
Anderson v. State , 45 A.3d 594, 601 (R.I. 2012)). “This Court will no t disturb a [hearing] justice ’ s factual findings m ade on an application for post[ ]conviction relief absent clear error or a showing that the [hearing] justice overlooked or misconceived material evidence in arriving at those findings. ” Chapdelaine , 32 A.3d at 941 (quoting Gordon v. State , 18 A.3d 467, 473 (R.I. 2011))

. In addition, we will not disturb a hearing justice ’ s credibility determinations unless the applicant shows, by a preponderance of the evidence, that the hearing justice was clearly wrong.
Guerrero v. State , 47 A.3d 289, 299 (R.I. 2012)

. “We will, however, ‘review de novo any post [ ]conviction[

- ]relief decision involving questions of fact or mixed questions of law and fact pertaining to an alleged violation of an applicant ’s constitutional rights.’ ” Bell , 71 A.3d at 460 (quoting Chapdelaine , 32 A.3d at 941 ). “Even when applying the de novo stan dard of review to such issues, however, ‘we still accord a hearing justice ’ s findings of historical fact, and inferences drawn from those facts, great deference * * *.’ ” Jolly v. Wall , 59 A.3d 133, 138 (R.I. 2013) (quoting Anderson , 45 A.3d at 601 ).
III Analysis On appeal, Navarro essentially asserts the same arguments that he raised in Superior
Cou rt , albeit now with greater clarity. He contends that he received ineffective assistanc e from
his trial counsel and that the hearing justice committed judicial error

. Pursuant to his ineffective

assistance

- of

- counsel argument, Navarro contends that he signed the plea form , which he- 10

-

maintains was blank at the time , only because trial counsel informed h im and his family that the
sentence would be fifteen years or , a t most , seventeen years . He further cites to a section of the plea trans cript where his trial counsel ask ed the hearing justice for a n opportunity to confer with
Navarro about “the back end of the number * * *

. ” It is at that point in time , Navarro contends,
that trial counsel informed him “not to worry about the number [forty] [ because he ] was going to
serve in the teens

. ”
Navarro similarly supplements his judicial

- error argument on appeal

. He avers that the hearing justice failed to ask Navarro “ if anybody made threats or promises” to him during the plea negotiations

. He maintains that he would have responded in the affirmative to such an inquiry

. A

Ineffective Assistance of Counsel and Judicial Error “This Court adheres to the standard set forth by the United States Supreme Court in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), when evaluating claims of ineffective assistance of counsel.” Chapdelaine , 32 A.3d at 941 (quoting Rodriguez v. State , 941 A.2d 158, 162 (R.I. 2008) )

. In order t o prevail on a claim of ineffective
assistanc e of counsel , an applicant must satisfy two criteria. Id. “First, the applicant must
demonstrate that counsel ’ s performance was deficient, to the point that the errors were so serious that trial counsel did not function at the level guar anteed by the Sixt h Amendment. ” Id

. (quoting Rodriguez , 941 A.2d at 162). “This prong can be satisfied only by a showing that counsel’ s representation fell below an objecti ve standard of reasonableness. ” Id. (quoting Rodriguez , 941
A.2d at 162). In o ur evaluation of counsel’s performance, “a s trong presumption” exists “that an attorney’s performance falls within the range of reasonable professional assistance and sound- 11

-

strategy * * * .” Rivera v. State , 58 A.3d 171, 180 (R.I. 2013) (quoting Rice , 38 A.3d at 17)

. “Seco nd, the defendant must show that the deficient performance prejudiced the defense.” Neufville v. State , 13 A.3d 607, 610 (R.I. 2011) (quoting Powers v. State , 734 A.2d 508, 522 (R.I. 1999)). “‘ When evaluating a claim for ineffective assistance of counsel in a plea situation, the defendant must demonstrate a reasonable probability that but for counsel’s errors, he or she would not have pleaded guilty and would have insisted on going to trial’ and, importantly, that
the outcome of the trial would have been d ifferent.” Id. at 610

- 11 (quoting State v. Figueroa , 639 A.2d 495, 500 (R.I. 1994)). As noted above, a t the conclusion of postconviction counsel’s presentation of his findings
contained in his no

- merit Shatney memorandum , the postconviction

- relief justice informed
Navarro that “it’s my responsibility at this point after I receive a report from an attorney * * * to kind of go through the facts myself to make sure that I think he’s covered everything.” The justice did not address the state’s motion to dismiss and instead proceeded to de cide the matter
on the merits. The justice indicated that she “ had a couple of opportunities ” to review the record of the case, in addition to her review of postconviction counsel’s memorandum, the plea form,
the tran script of the plea hearing , and the transcript of the sentencing hearing. Specifically, the postconviction

- relief justice reviewed the portion of postconviction counsel’s no

- merit memorandum regarding his conversations with trial counsel related to the pl ea. Additionally , she acknowledged the statements by Navarro’s mother and wife at the sentencing hearing explaining Navarro ’s background, his issues with addiction, how their lives would be impacted if
Navarro was incarcerated for a long period of time, and their belief that Navarro was prepared to
rehabilitate himself. The postconviction

- relief justice also noted that Navarro and trial counsel
both signed the plea form and that the hearing justice discussed t he plea with Navarro , including- 12

-

his attendant rights. Moreover , she took note of Navarro ’s statement to the court at the sentencing hearing. The postconviction

- relief justice also considered trial counsel’s representation of Navarro during the plea proc eedings , including his “strong argument ” on behalf of Navarro at the sentencing hearing; his “very impassioned” sentence recommendation ; his argument that
Navarro ’s criminal past was only related to his addiction issues ; his presentation of Navarro ’s
recollection of the events that took place on the night of the murder ; and his research o n
sentences in second

- degree murder cases , which trial counsel “discussed at length,” together with his conclusion that the average sentence was “far less” than the ma ximum sentence of forty years to serve under Navarro’s capped plea

. Bearing in mind her thorough review of the entire record,
we conclude that the postconviction

- relief justice did not overlook or misconceive material
evidence in concluding that trial counsel ’s representation was not deficient and did not “f[a]ll below an objective standard of reasonableness.” Chapdelaine , 32 A.3d at 943 (quoting
Strickland , 466 U.S. at 687

- 88)

. In light of our determination that trial counsel’s performance was reason able, we need not address the second prong of Strickland requiring that “counsel’s deficient performance prejudiced the defense in this case.” Neufville , 13 A.3d at 614 (concluding that a court should only reach the second prong of the Strickland test when it has determined that the attorney’s representation was deficient). Additionally, Navarro contends that the hearing justice erred when he failed to ask
Navarro “ if anybody made threats or promises” to him during the plea negotiations. Specifically, in regard to the purported previous plea agreement, Navarro maintains that , had he known he would serve forty years, he would have taken the offer of thirty

- two years to serve from former- 13

-

counsel, “ but [ trial counsel] told [ Navarro ] that he can get [ him ] l ess time to serve that’s why [ he ] hired [ trial counsel

. ] ” “It is well settled in this state that ‘[g]uilty pleas are valid only if voluntarily a n d intelligently entered, and the record must so affirmatively disclose’ facts pertaining to those requirements .” Rodrigues v. State , 985 A.2d 311, 314 (R.I. 2009) (quoting Figueroa , 639 A.2d at 498). A defendant’s plea “will be vacated unless the record shows that
the court has conducted an on

- the

- record examination of the defendant before accepting [the] plea [in order] to determine if the plea is being made voluntarily with an understanding of the nature of the charge and the consequences of the plea. ” State v. Frazar , 822 A.2d 931, 935 (R.I. 2003) (quoting Ouimette v. State , 785 A.2d 1132, 1136 (R.I. 2001) )

. In her review of the proceedings , the postconviction

- relief justice acknowledged the extended nature of the sentencing hearing. In addition, she thoroughly studied the transcript of the plea proceeding and concluded that t he hearing justice who presided over said proceeding was “very clear” to Navarro as to “what the plea was

— what the cap of the plea was .” She
further found that the hearing justice informed Navarro of his rights in relation to the plea. She
considered the hearing justice’s explanation to Navarro regarding the nature of the capped plea , as well as the hearing justice’s warning to Navarro that once he accepted the plea , he could not change his mind. She cited to the hearing justice’s statement to Navarro that if the maximum sentence was in fact imposed , he would have to serve forty years in prison ; she also cited to the hearing justice’s follow

- up question asking Navarro if he understood and Navarro ’s affirmative

answer
. The postconviction

- relief justice also took note of the hearing justice’s inquiry to
Navarro as to whether he had any questions, to which Navarro replied , “ N o.” She further
considered the hearing justice’s explanation to Navarro regarding the upcoming sentencing hearing . She also noted that , although trial counsel may have made a sentence recommendation- 14

-

to the hearing justice during the sentencing proceedings that Navarro should serve between
fifteen and twenty years, the hearing justice was n evertheless “very clear” at the plea hearing that
Navarro “could very well end up serving [ forty ] years in jail.” After her thorough review of the record, the postconviction

- relief justice concluded that
Navarro e ntered into the plea agreement “with knowledge, consent, voluntarily, understanding
wh at was happening, the nature of the plea, [and] the consequences of it

. ” W e agree; and we conclude that , in making her determination , the postconviction

- relief justice did not overlook or
misconceive material evidence , nor did she clearly err in her denial of Navarro ’s postconviction

relief application

. B Shatney Proceedings
We note that at the outset of the postconviction

- relief proceedings in Superior Court , the justice mischaracterized postconviction counsel’s role in Navarro ’s case as an investigator appointed by the court to determine if Navarro ’s claims had merit , as opposed to Navarro ’s counsel in pursuit of postconviction relief

. W e have previously clarified that neither Shatney v. State , 755 A.2d 130 (R.I. 2000)

“ 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.” Ramirez v. State , 89 A.3d 836, 840 (R.I. 2014) (quoting Campbell , 56 A.3d at 456 )

. Despite the postconviction

- relief justice’ s mistaken description of postconviction
counsel ’s role , postconviction counsel properly represented Navarro pursuant to the requirements
set forth in Shatney

. P ostconviction counsel described his role a s being appointed to rep resent- 15

-

Navarro in his p ostc onviction

- r elief application

. Postconviction counsel appropriately conducted his representation of Navarro by meeting with Navarro’s trial counsel “at least four times regarding the actual plea.” In addition, he met with Navarro four times and reviewed all the transcripts and exhibits that he deemed pertinent. Notwithstanding the brevity of postconviction
counsel’s Shatney memorandum

— only four pages

— we conclude that his investigation of
Navarro ’s claims was reasonable under Shatney

. Campbell , 56 A.3d at 455

- 56 (noting that according to Shatney , an attorney “may withdraw from * * * representation when it becomes clear, after a reasonable investigation, that some or all of the applicant’s claims lack merit”)

. Furthermore , we are satisfied that the postconviction

- relief justice was cognizant of this
Court’s concerns with the Shatney procedures and made concerted efforts to ensure that Navarro understood his rights in the Shatn ey context. See Motyka , 172 A.3d at 1206 ( recognizing that , when the court permits counsel to withdraw pursuant to Shatney , it must “advise the applicant that he or she shall be required to proceed pro se, if he or she chooses to pursue th e application”) (quoting Shatney , 755 A.2d at 13 5 ). T he postconviction

- relief justice asked Navarro three times if he wanted an evidentiary hearing or to pursue the matter pro se , and each time he responded in the negative. Moreover , the justice brought Navarro into court on three separate occasions , and each time he was given an opportunity to be heard. On the third and final court date , August 1, 2012, the postconviction

- rel ie f justice noted that since the last court date:

“ [ O ] ur Rhode Island Supreme Court ha d entered or filed a case on post[]conviction relief and my understanding from that case is that I need to be very specific with you, sir, as to what you wanted to do after [postconviction counsel] finished and presented his Shatney memo. I gave you an opportunity to refile it and to argue it again if you wish to. You told me you did not wish to do that. I guess

— I think I need to be clearer with you and indicate to you that if you wish to produce any witnesses or have an evidentia ry hearing on the issues that you have raised in your post [] conviction relief, you have the right to do that and proceed on this on you r- 16

- own. * * * Do you want to have

— produce evidence or have an evidentiary hearing on the issues that you have raised? ”
I n response, Navarro replied : “ I just wanted to appeal to the Supreme Court.”
W e note that , a fter the postconviction

- relief justice reviewed all the evidence , agreed with postconviction counsel that Navarro ’s postconviction

- relief application was without merit, accepted postconviction counsel’s no

- merit Shatney memorandum , and indicated that she was “going to allow him to withdraw [ , ] ” postconviction counsel’s representation of Navarro should
have ceased. Instead, however, subsequent to her Shatney determination, the postconviction

relief justice informed Navarro that postconviction counsel could advise him on his plans to file
a motion for “ [ s ] entence modification.”
R ecently, in Motyka , we questioned whether the proceedings in that case met the

r equirements set forth in Shatney

. Motyka , 172 A.3d at 1207. We expressed concern when the applicant’s postconviction counsel appeared to be advising the applicant during the Shatney hearing while simultaneously arguing in support of his no

- merit memorandum. Id

. at 1207, 1207
n.3. Additionally, we took issue in that case with the justice’s statement that she found postconviction counsel’s no

- merit memorandum “justified” and “therefor e” the applicant’s postconviction

- relief application was denied and dismissed. Id. We clarified that a justice’s grant of a postconviction counsel’s motion to withdraw under Shatney is not determinative of the
merits of an applicant ’s postconviction

- relie f application. Id. Here, t he postconviction

- relief justice asked postconviction counsel to continue to advise
Navarro in the matter , specifically with respect to his appeal , while postconviction counsel concurrently offered his opinion that Navarro ’s postconviction

- relief application lacked merit

. W e reiterate that , in a Shatney proceeding, counsel may indeed seek to withdraw his or her representation “when it becomes clear, after a reasonable investigation, that some or all of the- 17

-

applicant’s claims lack merit

. ” Campbell , 56 A.3d at 455

- 56. I n this case, once the postconviction

- relief justice made her decision to grant the Shatney motion, postconviction
counsel should no longer have been expected or allowed to represent Navarro at the subsequent
two court dates. We note , however, that this case was heard by the postconviction

- relief justice prior to a number of cases decided by this Court that clarify the requirements under Shatney

. See, e.g. , Motyka , 172 A.3d at 1208; Ramirez , 8 9 A.3d at 839

- 40; Campbell , 56 A.3d at 455

- 56

. In addition, notwithstanding the postconviction

- relief justice’s comments on the record that seem
to conflate her Shatney review with her review of the merits of Navarro ’s postconviction

- relief application, she nevertheless conducted a thorough and independent review of the record in support of her denial of Navarro ’s postconviction

- relief application. Therefore , it is our opinion that any Shatney

- related issues were cured.
I V
Conclusio n For all the reasons set forth herein , we affirm the Superior Court’s judgment denying
Navarro ’ s application for post conviction relief. The papers in this case may be remanded to the Superior Court.STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS

SUPREME COURT

– CLERK’S OFFICE
OPINION COVER SHEET

Title of Case Angel Navarro v. State of Rhode Island.
Case Number No. 2016

- 143

- Appeal. (PM 09

- 5227) Date Opinion Filed June 22, 2018
Justices Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ. Written By Chief Justice Paul A. Suttell Source of Appeal Providence County Superior Court
Judicial Officer From Lower Court Associate Justice Sus an E. McGuirl

Attorney(s) on Appeal For Applicant: Carl J. Ricci, Esq. For State of Rhode Island: Christopher R. Bush Department of Attorney General

SU

- CMS

- 02A (revised June 2016)