Angelo Ramirez v. State of Rhode Island

Supreme Court
No. 2006-229-Appeal.
(PM 06-2723)
Angelo Ramirez 	:
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. 2006-229-Appeal.
(PM 06-2723)
Angelo Ramirez 	:
v. 	:
State of Rhode Island. 	:
Present: Williams, C.J., Goldberg, Flaherty, Suttell, and Robinson, JJ.
O P I N I O N
Justice Suttell, for the Court. The applicant, Angelo Ramirez, appeals from the denial
of 	his 	third 	application 	for 	postconviction 	relief, 	contending 	he 	was 	deprived 	of 	those
constitutional 	rights 	that 	guard 	against 	ineffective 	assistance 	of 	counsel 	and 	multiple
punishments for the same offense. 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 be summarily decided. 	After reviewing the record and considering the memoranda
and arguments of the parties, we conclude that this case may be decided without the necessity of
further briefing or argument. For the reasons set forth in this opinion, we affirm the judgment of
the Superior Court.
The facts that resulted in Ramirez’s underlying conviction are set forth more fully in
State v. Ramirez, 786 A.2d 368 (R.I. 2001) (Ramirez I). 	On May 17, 1996, Ramirez was
involved in a high-speed car chase in pursuit of one Willie Washington. Ramirez fired gunshots
at Washington’s vehicle, but he missed and mistakenly shot a four-year-old girl, Mayri-Mar
Colon, while she was playing on the sidewalk with her brother Christopher. 	As we noted in
Ramirez I:

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“At [Ramirez’s] trial, the state proceeded upon a theory of
transferred intent to murder. 	The state maintained that while the
defendant 	intended 	to 	murder 	Washington, 	that 	intent 	was
transferred to Mayri-Mar when he randomly shot her instead. 	In
his jury instructions, the trial justice informed the jury that the
theory of transferred intent also applied to the two charges of
assault with a deadly weapon * * *. The jury found the defendant
guilty of assaulting Mayri-Mar with intent to murder; assaulting
Christopher with a dangerous weapon; unlawfully discharging a
firearm from a motor vehicle in a manner creating substantial risk
of death or serious physical harm to another; and, unlawfully
carrying an unlicensed firearm.” Id. at 372.
The trial justice sentenced Ramirez to an aggregate sentence of fifty years in prison, twenty of
which were suspended, with probation. Id. at 371.
After this Court affirmed Ramirez’s conviction on direct appeal, id. at 375, Ramirez filed
a pro se application for postconviction relief in Superior Court. Ramirez claimed that the trial
justice erred by not providing the jury with the statements of the prosecution’s key witness and
that his attorney’s conduct rose to the level of ineffective assistance by not asking the trial
justice to provide the jury with the witnesses’ testimony. 	Counsel was appointed to represent
Ramirez, and after a hearing, the trial justice denied the application.1 On July 6, 2005, Ramirez
filed a second postconviction-relief application, which the trial justice also denied, finding that
it was “without basis, and shall not now be considered.”
Ramirez filed a third application for postconviction relief on May 18, 2006. 	This time,
with the assistance of counsel, he raised claims not presented in his first postconviction-relief
application.2 Ramirez’s third application included new ineffective-assistance-of-counsel claims:
that his trial counsel did not adequately prepare for trial, neglected to call key witnesses, failed to
1 The Superior Court justice who presided at Ramirez’s trial was the same justice who decided
all three applications for postconviction relief.
2 The substance of Ramirez’s second postconviction-relief application does not appear in the
record.

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challenge the competency of the state’s key witness, and failed to challenge Ramirez’s
conviction of assault with a dangerous weapon. 	Ramirez also argued that his double-jeopardy
rights were violated because the jury convicted him of assault with intent to murder, as well as
the lesser included offense of assault with a dangerous weapon. Ramirez further argued that no
evidence was presented at trial to support his conviction of assaulting Christopher Colon with a
dangerous weapon and that his long sentence constituted cruel and unusual punishment under the
Rhode Island and United States Constitutions. On June 13, 2006, the state filed an answer and a
motion to dismiss the application. 	Ramirez responded by filing an objection to the motion to
dismiss, 	as 	well 	as 	a 	twenty-eight 	page 	memorandum 	to 	support 	his 	application 	for
postconviction relief.
The trial justice denied the application by an order entered on July 14, 2006. The order
said in part: “After Angelo Ramirez’ two previous applications for post-conviction relief were
denied * * *, he entreats this Court to consider yet a third petition. Ramirez is entitled to no such
consideration at this juncture, and this Court finds that the interests of justice do not invite any
such consideration.” Ramirez filed a motion to vacate or reconsider the order, which was denied
summarily on July 21, 2006. He then timely filed a notice of appeal.3
Ramirez raises two issues on appeal. 	First, he contends that he was unconstitutionally
convicted and punished twice for the same offense. 	Ramirez reasons that Washington was the
intended victim of both the charges of assault with intent to murder and assault with a dangerous
weapon. Ramirez contends that the doctrine of transferred intent properly was applied to Mayri-
3 Ramirez’s notice of appeal indicates that he is appealing from both the order denying his
application for postconviction relief and the order denying his motion to vacate. Because he has
not pressed the latter appeal in his written submissions, we deem his appeal from the July 21,
2006 order waived. Barbato v. Paul Revere Life Insurance Co., 794 A.2d 470, 473 (R.I. 2002)
(“issues raised at trial but not briefed on appeal are deemed waived”).

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Mar because she was struck by a bullet, but that transferred intent cannot apply to her brother
Christopher because the assault with a dangerous weapon was completed when Ramirez fired the
gun at Washington, the intended victim. 	Ramirez’s second argument on appeal focuses on his
allegations of ineffective assistance of counsel, viz., that his trial lawyer abandoned him until the
weekend before trial, failed to present the testimony of a key defense witness, and failed to
object to or move to dismiss the charge of assault with a dangerous weapon.
In denying Ramirez’s third application for postconviction relief, the trial justice cited
G.L. 1956 § 10-9.1-8, which provides:
“All grounds for relief available to an applicant at the time he or
she commences a [postconviction review] proceeding * * * must
be raised in his or her original, or a supplemental or amended,
application. Any ground finally adjudicated or not so raised * * *
may not be the basis for a subsequent application, unless the court
finds that in the interest of justice the applicant should be permitted
to assert such a ground for relief.”
This Court previously has stated that § 10-9.1-8 codifies the doctrine of res judicata for
postconviction-relief applications. See, e.g., Miguel v. State, 924 A.2d 3, 4-5 (R.I. 2007) (mem.);
Figueroa v. State, 897 A.2d 55, 56-57 (R.I. 2006) (mem.); Taylor v. Wall, 821 A.2d 685, 688
(R.I. 2003). Section 10-9.1-8’s procedural bar means that a “judgment on the merits in the first
case not only is conclusive with regard to the issues that were actually determined but also
precludes reconsideration of all other issues that might have been raised in the prior proceeding.”
Figueroa, 897 A.2d at 56-57 (quoting Carillo v. Moran, 463 A.2d 178, 182 (R.I. 1983)). Under
§ 10-9.1-8, parties cannot bring forth new claims in subsequent applications that could have
been, but were not, raised in the first postconviction-relief application—absent an “interest of
justice” showing. Section 10-9.1-8; Miguel, 924 A.2d at 4; State v. DeCiantis, 813 A.2d 986, 993
(R.I. 2003).

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Here, 	Ramirez 	raised 	claims 	for 	the 	first 	time 	in 	his 	third 	postconviction-relief
application, yet he provided scant reason why such arguments could not have been raised in
either his first or second application. See DeCiantis, 813 A.2d at 992-93; Vorgvongsa v. State,
785 A.2d 542, 547 (R.I. 2001). 	We are satisfied, as was the trial justice, that § 10-9.1-8 bars
consideration of his new claims.4
For the reasons stated herein, we affirm the judgment of the Superior Court.
4 Although we agree with the trial justice that G.L. 1956 § 10-9.1-8 precludes consideration of
Ramirez’s third application for postconviction relief, we are troubled by the summary manner in
which the application was denied. 	We previously have held that § 10-9.1-6(b) requires that an
applicant be given an opportunity to reply to a court’s proposed dismissal. Corners v. State, 922
A.2d 176, 176 (R.I. 2007) (mem.). Because we concur with the hearing justice that in this case
the interests of justice do not overcome the bar of res judicata, however, we need not vacate and
remand to provide Ramirez the opportunity to respond to the proposed dismissal, but we caution
the trial bench to provide an applicant for postconviction relief with a meaningful opportunity to
respond to a proposed dismissal.

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COVER SHEET
TITLE OF CASE: 	Angelo Ramirez v. State of Rhode Island
DOCKET SHEET NO.:2006-229-A
COURT:Supreme
DATE OPINION FILED:November 2, 2007
Appeal from
SOURCE OF APPEAL: 	SuperiorCounty: Providence
JUDGE FROM OTHER COURT: 	Judge Robert D. Krause
JUSTICES:Williams, 	CJ., Goldberg, Flaherty, Suttell, and Robinson, JJ.
WRITTEN BY: 	Justice Paul A. Suttell, for the Court
ATTORNEYS:
For Plaintiff: 	Joseph R. Palumbo, Jr., Esq.
ATTORNEYS:
For Defendant: 	Christopher R. Bush, Esq.