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Supreme Court
No. 2010-7-M.P.
(PM 04-2037)
Rudy Sifuentes                                                        :
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-
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Supreme Court
No. 2010-7-M.P.
(PM 04-2037)
Rudy Sifuentes                                                                                              :
v.                                                                                                          :
State of Rhode Island.                                                                                      :
Present: Suttell, C.J., Goldberg, Flaherty, and Robinson, JJ.
O P I N I O N
Chief Justice Suttell, for the Court.   The applicant, Rudy Sifuentes, by way of a writ of
certiorari, seeks review of a Superior Court judgment denying his application for postconviction
relief.    The  applicant  argues  that  the  hearing  justice  erred  in  denying  his  application  for
postconviction relief by accepting “the memoranda of investigating counsel in lieu of evidence.”
This case came before the Supreme Court for oral argument pursuant to an order directing the
parties to appear and show cause why the issues raised in this case should not summarily be
decided.   After reviewing the record and considering the parties’ written and oral submissions,
we are satisfied that this case may be decided 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
On April  3,  1992, a jury found applicant guilty of first-degree murder in a manner
involving torture and aggravated battery, for which he subsequently was sentenced to life
imprisonment without the possibility of parole.  The applicant directly appealed his conviction to
this Court, and his conviction was affirmed. State v. Sifuentes, 649 A.2d 500, 501, 503 (R.I.
1994).   Thereafter, we affirmed the denial of applicant’s motion to reduce his sentence pursuant
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to Rule 35 of the Superior Court Rules of Criminal Procedure, State v. Sifuentes, 667 A.2d 791,
792 (R.I. 1995), and we later affirmed his sentence of life imprisonment without the possibility
of parole. State v. Sifuentes, 996 A.2d 1130, 1139 (R.I. 2010).
On June 2, 2006,1 applicant filed a pro se application for postconviction relief pursuant to
G.L. 1956 § 10-9.1-1.2   His application asserted the following: (1) his trial counsel provided
ineffective  assistance  by  not  interviewing  and  calling  witnesses  who  could  have  provided
exculpatory testimony concerning applicant’s diminished capacity; (2) the trial court erred in not
inquiring, on the record, if applicant was waiving his right to testify on his own behalf; (3) the
Providence Police Department’s custodial interrogation of applicant violated his constitutional
rights;                                                                                                (4)  his trial counsel provided ineffective assistance by not presenting a defense of
diminished capacity; and  (5) the trial court erred in allowing the statements of applicant’s
codefendant to be given to the jury for its inspection.
Prior to the June 2006 application, a Shatney3 no-merit memorandum had been submitted
by  applicant’s  then-court-appointed  attorney,  Mary  J.  Ciresi,  concerning  a  previous
postconviction-relief application that applicant made.   Ms. Ciresi then was released as counsel
1 The Superior Court case file was reconstructed by applicant’s appellate counsel together with
the state.   Because of this reconstruction, the lower court documents do not bear date stamps; as
a result, we adopt the dates notated in the lower court docket sheet for the purpose of referring to
filing dates.
2 General Laws 1956 § 10-9.1-1(a), in pertinent part, provides:
“Any person who has been convicted of, or sentenced for, a
crime, a violation of law, or a violation of probationary or deferred
sentence status and who claims * * * [t]hat the conviction or the
sentence was in violation of the constitution of the United States or
the constitution or laws of this state * * * may institute, without
paying a filing fee, a  proceeding under this chapter to secure
relief.”
3 “In Shatney v. State, 755 A.2d 130 (R.I. 2000), this Court outlined a procedure whereby court-
appointed counsel, after reaching the conclusion that an application for postconviction relief
lacks merit, may seek to withdraw during a postconviction relief proceeding.” State v. Laurence,
18 A.3d 512, 518 n.5 (R.I. 2011) (quoting Thornton v. State, 948 A.2d 312, 313 n.2 (R.I. 2008)).
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and attorney Christopher T. Millea subsequently entered his appearance; however, he also was
allowed to withdraw from the case after concurring with Ms. Ciresi’s no-merit memorandum.
The hearing justice then advised applicant of his right to present evidence on his own behalf.
A hearing on the June 2006 application was held on August 1, 2006, at which time the
state informed the hearing justice that applicant had filed a stipulation with the court.4        The
stipulation read as follows:
“Now  comes                                                                                       [applicant]                                             * * *  Pro-Se,  in  the  above
captioned matter and moves this honorable court, and the attorney
for the State of Rhode Island to agree to a stipulation, and states
the following in support,
“The [applicant] in the instant case * * * is deaf, and has
limited knowledge of the law.   Counsel in this matter, Christopher
T[.] Millea[,] Esq[.], has represented to this honorable court that
[applicant’s]  Post-Conviction  Application  has  no  merit,  which
resulted with [applicant] having no choice but to represent himself.
“The                                                                                              [applicant]  would  at  this  time  suggest  to  this
honorable court, and the attorney for the state to Stipulate That;
“1.) His memorandum in support of his post-conviction
application be read into the court record by his interpret[e]r, for
determination by this court.
“2.)  He  forgo  oral  argument  in  this  matter  due  to  his
disability, and limited knowledge of the law.
“3.) He will prepare any necessary briefs that this court
may order in determining this matter.
“4.) He does not object to the attorney for the state orally
arguing their side of the case.
“5.) That  the interests  of justice, and  judicial economy
would be best served by this proposed stipulation.”
After the hearing justice was presented with this stipulation, the following colloquy occurred:
“[The Court]: Well, I’ve read the stipulation and, certainly,
[applicant] can agree that the [c]ourt base its decision upon the
documents that he has filed along with any oral arguments that the
[s]tate’s attorney wishes to make.   However, I would not conclude
that because of his disability, he’s prohibited from doing more than
that.   Clearly, the [c]ourt has today an interpreter here who can
4 According to the docket sheet, this stipulation was filed with the Superior Court on June 12,
2006.
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assist [applicant].   So, I’ll not base the stipulation on [applicant’s]
disability because I feel that that can be accommodated.
“Other than that, I certainly would be inclined to make any
decision based upon what has been submitted to the [c]ourt to date.
So, if that’s agreeable to you, [applicant], we can do that.
“[The Applicant]: Yes.
“[The Interpreter]: Yes.”
Accordingly,  the  hearing  justice  issued  a  ruling  based  upon  his  review  of  applicant’s
postconviction-relief application, the state’s argument in opposition thereto, as well as the no-
merit memorandum submitted by Ms. Ciresi with which Mr. Millea had concurred.
In his ruling, the hearing justice outlined and considered each of the five issues raised by
applicant.    First, the hearing justice reviewed applicant’s contention that his codefendant’s
statement was presented to the jury for inspection.   After adopting the findings of Ms. Ciresi, he
determined that the state did not attempt to introduce the codefendant’s confession and that there
was no indication in the trial transcript that such statements were presented or provided to the
jury.   As a result, he found no merit in applicant’s contention of error in that regard.   Next, the
hearing justice addressed applicant’s allegation of ineffective assistance of counsel.   He again
adopted Ms. Ciresi’s findings—namely that applicant’s trial attorneys5 had made the necessary
efforts to investigate and interview potential trial witnesses and, therefore, he determined that
applicant’s trial attorneys were effective in their representation.
Finally, the hearing justice considered applicant’s two contentions of legal error: first,
that the trial justice had a duty to determine whether applicant wished to waive his right to testify
and, second, that his confession was obtained in violation of his constitutional rights.   The
hearing justice stated that the law clearly does not impart a duty upon a trial justice “to make an
inquiry of represented defendants as to whether they choose to testify or not.”   As a result, the
5 The applicant was represented at trial by two assistant public defenders.
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hearing justice found no legal error in the trial justice’s not having done so.   Similarly, he
discerned no merit in applicant’s claim for postconviction relief concerning his confession
because such confession had been suppressed by the trial justice.   Accordingly, the hearing
justice denied Sifuentes’ application for postconviction relief.
At the end of the hearing, applicant indicated that he had “some paperwork” he wanted to
submit to the court.   After applicant had done so, the hearing justice indicated that applicant had
filed  an  appeal  of  the  hearing  justice’s  decision  contending  that  his  postconviction-relief
application had been denied without a hearing in violation of Shatney v. State, 755 A.2d 130
(R.I. 2000).   The hearing justice in turn stated: “I’ll leave it to the Supreme Court to make a
decision on this, but we started this hearing by pointing out that [applicant] had exhausted all
claims  with  regard  to  a hearing,  had  stipulated  that  the                                         [c]ourt  decide it  based  upon the
documents that were presented to the [c]ourt” and further that “we went through great pains to
make sure that [applicant] got the hearing that [he] wanted and it was [his] choice to go about
this proceeding in the way that we did today.”
Ultimately, on August 2, 2006, an order was entered denying Sifuentes’ application for
postconviction relief.6   Thereafter, applicant petitioned this Court for a writ of certiorari, which
we granted on January 21, 2010.
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.” Gordon v. State, 18 A.3d 467, 473 (R.I. 2011) (quoting Young v. State, 877
6 Pursuant to § 10-9.1-7 and § 10-9.1-9, this order constitutes a final judgment appealable to this
Court.
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A.2d  625,  628  (R.I.  2005)); see also  § 10-9.1-1(a)(1).                                                “This Court will not disturb a trial
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.” Gordon, 18 A.3d at 473 (quoting Bustamante v. Wall, 866 A.2d 516, 522 (R.I. 2005)).
However, we will “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.” Id. (quoting Bustamante, 866 A.2d at 522).
III
Discussion
The applicant asserts that  “[i]t could be argued  * * * that the post conviction justice
accepted  the  memoranda  of  investigating  counsel  in  lieu  of  evidence  especially regarding
[a]pplicant’s stated desire to testify.”7   In turn, the state counters that applicant “had agreed that
the action could be determined on the materials filed * * *, thus, [he can] hardly complain on
appeal that the proceeding proceeded in the manner he agreed to.”  In any event, the state argues,
an evidentiary hearing is not necessarily required after a no-merit memorandum has been filed.
Further, the state asserts “that a trial justice has no duty to admonish a represented-defendant of
his constitutional right to testify;” therefore, even if there was merit to applicant’s procedural
claim of error, as a matter of law, applicant could not have prevailed on his postconviction-relief
application.
A postconviction-relief application may be dismissed summarily in accordance with
§ 10-9.1-6(b), which provides:
7 To support this contention of error, applicant states that he had wanted to testify at trial, but that
“his counsel advised him not to testify” and that  “[n]owhere in the discussion of the post
conviction attorney’s investigations is it noted whether two investigating attorneys who wrote
Shatney memoranda determined if trial counsel did not permit testimony.”
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“When a court is satisfied, on the basis of the application,
the answer or motion, and the record, that the applicant is not
entitled to post conviction relief and no purpose would be served
by  any  further  proceedings,  it  may  indicate  to  the  parties  its
intention to dismiss the application and its reasons for so doing.
The  applicant  shall  be  given  an  opportunity  to  reply  to  the
proposed dismissal.   In light of the reply, or on default thereof, the
court may order the application dismissed or grant leave to file an
amended  application  or  direct  that  the  proceedings  otherwise
continue.   Disposition on the pleadings and record is not proper if
there exists a genuine issue of material fact.”8
Thus, when a trial justice is satisfied “on the basis of the application, the answer or motion, and
the record” before him or her that the applicant is not entitled to postconviction relief, he or she
may dismiss the case summarily without an evidentiary hearing, so long as the applicant is
provided “an opportunity to reply to the proposed dismissal.” Id.; Sosa v. State, 949 A.2d 1014,
1017 (R.I. 2008).                                                                                      “If the applicant’s reply reveals that there are no genuine issues of material
fact in dispute, then an evidentiary hearing need not be provided and the court can proceed to
rule on the application without a hearing.” O’Neil v. State,  814 A.2d  366,  367  (R.I.  2002)
(mem.).
In this case, applicant was provided with all the process that he was due. See Sosa, 949
A.2d at 1017 (stating that providing the defendant an opportunity to respond to the state’s motion
to dismiss “was all the process that [the defendant] was due”).   More importantly, applicant was
provided with the precise proceeding he himself had requested.   In his stipulation, applicant
explicitly  invited  the  hearing  justice  to  consider  his  memorandum  in  support  of  his
postconviction-relief application and stated a desire to forgo oral argument “due to his disability
and limited knowledge of the law.”   The hearing justice thoughtfully considered this request,
8 Similarly, § 10-9.1-6(c) states: “The court may grant a motion by either party for summary
disposition of the application when it appears * * * that there is no genuine issue of material fact
and the moving party is entitled to judgment as a matter of law.”
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specifically noting that an interpreter was present in court to assist applicant should he wish to
make an oral argument.   The hearing justice then expressly stated that he was inclined to make a
decision based upon the submissions he had received to date, and he asked applicant whether that
was agreeable to him, to which applicant, as well as his interpreter, responded “[y]es.”  Thus, the
hearing justice properly notified applicant of his willingness and inclination to issue a summary
decision  on  applicant’s  postconviction-relief  application  and  gave  applicant  an  adequate
opportunity to reply. Cf. State v. Frazar, 776 A.2d 1062, 1064 (R.I. 2001) (mem.) (holding that it
was reversible error for a hearing justice to fail to notify a defendant of the proposed dismissal of
his postconviction-relief application without a hearing).   At that time, if applicant wished instead
to proceed with an evidentiary hearing, it was incumbent upon him to make such a request.
Rather, applicant’s reply amounted to a reiteration of his prior asserted desire to forgo oral
argument and proceed on the papers duly submitted.
It was entirely within the hearing justice’s discretion to grant the applicant’s wish and
then to proceed by summarily dismissing Sifuentes’ application for postconviction relief.9 See
Brown v. State, 32 A.3d 901, 909 (R.I. 2011) (“If the applicant’s reply reveals that there are no
genuine issues of material fact in dispute, then an evidentiary hearing need not be provided and
the court can proceed to rule on the application without a hearing.” (quoting O’Neil, 814 A.2d at
9 To the extent that applicant’s argument before this Court can be interpreted as challenging the
merits of the hearing justice’s denial of his postconviction-relief application—viz., that his trial
counsels provided ineffective assistance in failing to allow applicant to testify and that the trial
justice erred in not “establish[ing] [applicant’s] waiver of his right to testify” on the record—
such challenge is also unavailing.   This Court is satisfied that even if applicant had met his
burden of proving that his counsels acted deficiently in advising him not to testify, applicant
would have been unable to establish the requisite showing of prejudice because there was
overwhelming evidence at applicant’s trial establishing his guilt beyond a reasonable doubt. See
Brown v. State, 964 A.2d 516, 541 (R.I. 2009).   Similarly, as concerns any error alleged on the
part of the trial justice, this Court previously has held that a trial justice is under no duty to sua
sponte ensure that a represented defendant is knowingly, voluntarily, and intelligently waiving
his right to testify. Brennan v. Vose, 764 A.2d 168, 171, 172 (R.I. 2001).
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367)).   Accordingly, under the circumstances presented herein, we conclude that the hearing
justice adequately followed the procedures set forth in Rhode Island’s Postconviction Remedy
Statute,  chapter                                                                                  9.1  of  title   10,  and  properly  denied  the  applicant’s  postconviction-relief
application.
IV
Conclusion
In accordance with the foregoing, we affirm the judgment of the Superior Court denying
Sifuentes’ application for postconviction relief.   The record shall be remanded to the Superior
Court.
Justice Indeglia did not participate.
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RHODE ISLAND SUPREME COURT CLERK’S OFFICE
Clerk’s Office Order/Opinion Cover Sheet
TITLE OF CASE:                                          Rudy Sifuentes v. State of Rhode Island.
CASE NO:                                                No. 2010-7-M.P.
                                                        (PM 04-2037)
COURT:                                                  Supreme Court
DATE OPINION FILED:   May 7, 2012
JUSTICES:                                               Suttell, C.J., Goldberg, Flaherty, and Robinson, JJ.
WRITTEN BY:                                             Chief Justice Paul A. Suttell
SOURCE OF APPEAL:    Providence County Superior Court
JUDGE FROM LOWER COURT:
Associate Justice Gilbert V. Indeglia
ATTORNEYS ON APPEAL:
For Applicant:    Susan B. Iannitelli, Esq.
For State:    Aaron L. Weisman
Department of Attorney General

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