The Supreme Court of Rhode Island quashed the orders of the Superior Court that summarily dismissed an indigent first-time applicant’s request for postconviction relief because the Superior Court failed to determine whether the applicant, who did not specifically ask for the appointment of counsel, intended to proceed pro se and if so, whether the waiver of the right to counsel was made knowingly, voluntarily, and intelligently.  

Background

Charles Pona was indicted on March 3, 2000, on first-degree murder, carrying a pistol without a license, and attempted arson of a motor vehicle for the circumstances surrounding the killing of Hector Feliciano. Jennifer Rivera, age fifteen, who lived near where Feliciano was killed, told police that she saw Pona running from the murder scene after she heard gunshots. Rivera gave a formal statement, identified Pona in a photo array, and testified against him at his bail hearing. Rivera was ultimately subpoenaed to testify for the State at Pona’s trial. On the eve of the trial, while out on bond, Pona orchestrated the execution style murder of Rivera.

On July 20, 2000, Pona was found guilty of first-degree murder, carrying a firearm without a license, and the attempted arson of a motor vehicle for the Feliciano murder. He was sentenced to life in prison for the murder plus a concurrent 10 year sentence on the other two charges. Pona was also found guilty of murder and associated charges for Rivera’s murder on November 12, 2003.

On appeal, the Rhode Island Supreme Court overturned the convictions for Rivera’s murder because of improperly admitted evidence. After a retrial, he was again convicted of Rivera’s murder on April 20, 2010, and sentenced to life in prison, to be served consecutively with his sentence for the Feliciano murder, plus an additional 10-year sentence to run consecutively for the other charges in connection with Rivera’s murder.

Pona submitted applications for postconviction relief for both of his murder convictions along with a form entering his appearance pro se. The applications alleged that the Superior Court fraudulently obtained jurisdiction over Pona during his arraignment, transforming him from a natural person to an artificial person. The State submitted boilerplate answers to both applications in which it largely ignored his allegations and asserted the affirmative defenses of laches and res judicata. The hearing justice subsequently issued a notice of intention to dismiss Pona’s applications pursuant to G.L. 1956 § 10-9.1-6, pending Pona’s response based on § 10-9.1-6(b).

The hearing justice did not hold a hearing on the matter but instead issued an order dismissing the applications, concluding that Pona’s strange contentions “were entirely devoid of any basis or ground upon which to seek postconviction relief.” The hearing justice also noted that Pona did not request an attorney and entered his appearances pro se on both applications. Pona then timely filed a petition for a writ of certiorari that included a request for appointment of counsel. The Office of the Public Defender then entered its appearance on his behalf.

Analysis

On appeal before the Court, Pona argued that he was denied his statutory right to counsel as a first-time applicant for postconviction relief under § 10-9.1-5. He argued that the word “shall” in the statute necessarily dictates that he should have been appointed counsel before his applications were summarily dismissed, and he further argued that he had no opportunity to request counsel because his applications were summarily dismissed without a hearing. He also argued that his initial pro se filings did not relinquish his right to have an attorney appointed to represent him. Therefore, he was denied meaningful review of his applications.

The State argued that Pona’s claim lacked substantive merit. It further argued that his statutory rights were not violated because he did not request an attorney, and there is no legal authority that an attorney must be appointed for a first-time postconviction relief applicant who does not request one. The State distinguished Campbell v. State, 56 A.3d 448 (R.I. 2012) (“requiring the appointment of counsel before an applicant’s claims are dismissed … ensures that the applicant is provided with a meaningful opportunity to reply”), by noting that the applicant in Campbell asked for the appointment of counsel, unlike Pona who never did so.

The Court framed the issue before it as whether an indigent first-time applicant for postconviction relief is entitled to counsel only “upon request,” i.e., whether the failure to ask for the appointment of counsel constitutes a waiver of that right. In criminal cases, a defendant may waive his right to counsel if the waiver is “given voluntarily, knowingly, and intelligently.” State v. Holdsworth, 798 A.2d 917 (R.I. 2002). Courts examine the totality of the circumstances when evaluating a waiver of the right to counsel. Bryant v. Wall, 896 A.2d 704 (R.I. 2006). The Court explained that the “gravamen of our holding in Campbell was that counsel must be appointed prior to summary dismissal of even a seemingly meritless application.”

Turning to the present case, the Court observed that there no hearing was conducted to verify that Pona indeed intended to proceed pro se or assess whether his waiver of counsel was knowing, voluntary, and intelligent. See Bryant. The Court explained that he “should have been presented to the Superior Court to determine whether it was his intention to proceed pro se, and if that decision was knowing, intelligent, and voluntary.” Although § 10-9.1-6(b) does not mandate a hearing for summary dismissal, a hearing justice must ensure that an applicant’s waiver is knowing, voluntary, and intelligent, according to the Court.

Conclusion

Accordingly, because the Superior Court never determined whether Pona intended to proceed pro se or evaluate whether his decision to do so was made knowingly, voluntarily, and intelligently, the Court quashed the orders of the Superior Court. See: Pona v. State, 329 A.3d 485 (R.I. 2025).  

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