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Supreme Court No. 2008-330-Appeal. (PM 02-3312) Efrain Otero 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 2223258 of any typographical or other formal errors in order that corrections may be made before the opinion is published.

Supreme Court No. 2008-330-Appeal. (PM 02-3312) Efrain Otero v. State of Rhode Island. : : :

Present: Suttell, C.J., Goldberg, and Flaherty, JJ. OPINION Chief Justice Suttell, for the Court. The applicant, Efrain Otero, appeals from a Superior Court judgment denying his application for postconviction relief. This case came before the Supreme Court for oral argument pursuant to an order directing the parties to show cause why the issues raised in this appeal should not summarily be decided. After examining the written and oral submissions of the parties, we conclude that this appeal may be resolved without further briefing or argument. For the reasons set forth in this opinion, we affirm the judgment of the Superior Court. I Facts and Procedural History The underlying facts of this case are set out in State v. Otero, 788 A.2d 469, 470 (R.I. 2002), in which this Court affirmed the convictions of applicant. On June 27, 1998, Mr. Otero shot and killed a man in a Providence bar. According to witness testimony, applicant entered the bar and shot the man five times. On August 12, 1999, a jury convicted him of first-degree murder and carrying a pistol without a license, for which he was sentenced to life imprisonment and a ten-year suspended sentence. On January 24, 2002, this Court affirmed the judgment of conviction and commitment. Id.

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On June 19, 2002, applicant filed a pro se application for postconviction relief in Superior Court on the grounds that the trial justice did not consider "all relevant, reliable, and probative evidence * * * before instructing the jury on self-defense" and that he received ineffective assistance of counsel at his trial. Upon applicant's subsequent motion, counsel was appointed to represent him. The appointed counsel thereafter filed a motion to withdraw, stating that the application was wholly frivolous and without merit. To support his motion to withdraw, appointed counsel filed a "no-merit" memorandum in accordance with the requirements set forth by this Court in Shatney v. State, 755 A.2d 130 (R.I. 2000). Specifically, the memorandum stated that (1) the evidentiary issues raised in the postconviction-relief application already had been addressed at trial and on direct appeal; (2) applicant's allegations of witness coercion would not have refuted the other substantial evidence presented; (3) appointed counsel was unable to confirm applicant's assertion that another witness may have had new, exculpatory information; and (4) appointed counsel did not believe that the trial counsel's failure to conduct a more rigorous crossexamination of certain witnesses constituted ineffective assistance of counsel. On April 19, 2004, a hearing was held on appointed counsel's motion to withdraw. 1 The applicant was aided by an interpreter at that hearing. The appointed counsel expressed his wish to withdraw, in accordance with Shatney, and requested that the hearing justice preserve Mr. Otero's argument about newly discovered evidence. 2 The state suggested that it was appropriate

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During the hearing on April 19, 2004, appointed counsel and the state referred to a previous hearing. It appears from the docket and statements made during the hearing on April 19, 2004 that this previous hearing most likely took place on April 5, 2004. The appointed counsel stated that he had addressed his "no-merit" memorandum in open court at the previous hearing. On appeal, this Court was not provided with the transcript of this first hearing. 2 The appointed counsel made the following statement:

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for the hearing justice to deny the remainder of applicant's claims, but it agreed to the preservation of the newly discovered evidence claim. The hearing justice then addressed Mr. Otero, noting that the latter had the assistance of an interpreter. The hearing justice inquired whether applicant had any questions about what appointed counsel had stated on his behalf or what the state had argued; applicant had no such questions. The hearing justice did not rule on applicant's newly discovered evidence claim and found his other claims "groundless," thereupon dismissing them. At that point, the hearing justice asked applicant "Do you understand that, sir?", and applicant responded "Yes. Yes, I understand." On August 16, 2004, applicant filed a second pro se application seeking postconviction relief. In his application, Mr. Otero asserted ineffective assistance of trial counsel because his counsel failed to object to Det. Robert Badessa's testimony on the grounds that he was not qualified as an expert and that he failed to engage a medical expert on the issue of applicant's diminished capacity. The applicant also argued that the trial justice erred by improperly

instructing the jury on the elements of second-degree murder.

"[A]t this time, I would like to ask, on behalf of Mr. Otero, prior to withdrawing as his counsel, the opportunity for Mr. Otero to withdraw that portion of his petition for post-conviction relief that deals with allegations of new evidence, more particularly, a new witness in that Mr. Otero has not fully investigated those issues relative to new evidence, and Mr. Otero has indicated to me, as recently as of today, that he would like an additional several months time to perhaps retain private counsel and/or an investigator to assist him in gathering that information." There appears to have been some confusion surrounding this statement. It is clear to this Court that appointed counsel intended to withdraw the newly discovered evidence claim for purposes of preserving the claim and that appointed counsel did not withdraw any of applicant's other claims. -3-

Thereafter, a private attorney filed an entry of appearance on behalf of applicant. On June 14, 2005, that attorney filed an application for postconviction relief and a memorandum in support thereof, which essentially mirrored Mr. Otero's August 16, 2004 pro se application and reiterated the grounds previously set forth. That same day, a hearing was held on Mr. Otero's applications for postconviction relief. At the June 14, 2005 hearing, the state argued that applicant addressed a number of issues in his postconviction-relief memorandum that were barred by res judicata and that applicant had failed to present, or even allege, newly discovered evidence in his memorandum or at the hearing. In response, the hearing justice noted that most of the substantive issues raised in the petition for postconviction relief had been disposed of and that the case had been continued to allow applicant to investigate his claim of newly discovered evidence. The hearing justice concluded that Mr. Otero had failed to present any newly discovered evidence, and he denied the applications from the bench. A premature notice of appeal was filed on July 11, 2005, 3 and judgment entered denying postconviction relief on June 23, 2008. II Standard of Review "[P]ost-conviction relief is available to a defendant convicted of a crime who contends that his original conviction or sentence violated rights that the state or federal constitutions secured to him." Ballard v. State, 983 A.2d 264, 266 (R.I. 2009) (quoting Young v. State, 877 A.2d 625, 628 (R.I. 2005)); see also G.L. 1956

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