(Footnote omitted.) State v. McGehearty, R.I., 394 A.2d 1348, 1352 (1978); see Mastracchio v. Houle, R.I., 416 A.2d 116 (1980); State v. Pope, R.I., 414 A.2d 781 (1980); State v. Duggan, R.I., 414 A.2d 788 (1980); Infantolino v. State, R.I., 414 A.2d 793 (1980). Although McGehearty involved the failure of a defendant's trial counsel to raise an issue at the trial level rather than the failure of a defendant's appellate counsel to present an issue on direct appeal, McGehearty applies with equal force to the latter situation.

Consistent with this Court's case law, however, other courts have treated a lengthy or overnight unobjected-to no-communication order itself as a denial of the assistance of counsel, without requiring a showing of an intent by the defendant or counsel to speak with each other but for the order. See, e.g., United States v. Torres, 997 F.3d 624, 627 (5th Cir. 2021) (direct appeal involving unobjected-to order); Martin, 991 A.2d at 795 (same); see also Mastracchio v. Houle, 416 A.2d 116, 117, 122 (R.I. 1980) (postconviction case involving objected-to order where defense counsel moved to be allowed to speak with defendant during weekend-long recess but advised that he did not at the time anticipate needing to do so). The latter approach, which is undeniably consistent with the Sixth Amendment right to counsel, the Maryland Declaration of Rights, and case law of the Supreme Court of the United States and this Court, is the approach that, absent an exception to the principle of stare decisis , we must follow.

In Rhode Island, criminal cases involving the issue of retroactive or prospective application of a new rule have focused on the same issue with which the federal cases have been concerned. In Mastracchio v. Houle, ___ R.I. ___, 416 A.2d 116 (1980), we were faced with the issue of the propriety of a trial justice's forbidding a defendant in a criminal case to confer with his lawyer during a weekend recess that fell between the last days upon which defendant was being cross-examined. Subsequent to the defendant's conviction and during the pendency of the defendant's appeal on this issue, the United States Supreme Court announced its decision in Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976), holding that in a similar case, such a deprivation of access to an attorney violated a defendant's Sixth Amendment rights.

Id. at 92, 96 S.Ct. at 1337, 47 L.Ed.2d at 601. This court had occasion to follow Geders in Mastracchio v. Houle, R.I., 416 A.2d 116 (1980). In Mastracchio, the defendant was not permitted to talk with his attorney about his trial during a weekend recess.

Giving the term "application" its natural meaning, a filing that purports to be an application for State post-conviction or other collateral review with respect to the pertinent judgment or claim must set forth the grounds upon which it is based, and must state the relief desired; it must attack collaterally the relevant conviction or sentence. See Mastracchio v. Houle, 416 A.2d 116, 117 (R.I. 1980) (The Act "provides the exclusive remedy to be utilized for appropriate collateral attack upon a criminal conviction on any ground of alleged error . . . available under common-law or statutory postconviction remedies."). Therefore, in the absence of an explicit request for post-conviction relief as specified in § 10-9.1-4, we interpret O'Neil to hold that a motion for the appointment of counsel fails to initiate post-conviction proceedings and, thus, fails to give life to an application for post-conviction review: "It does not appear that the motions filed by [the petitioner] should be interpreted as a request for post-conviction relief. . . . [The petitioner] mentions post conviction relief in his motion to appoint counsel, but he did not seek that relief in the motion for modification of his sentence."

Other states following the per se rule are Illinois: People v. Noble, 42 Ill.2d 425, 248 N.E.2d 96 (1969); District of Columbia: Jackson v. United States, 420 A.2d 1202 (D.C. 1979); Mississippi: Pendergraft v. State, 191 So.2d 830 (Miss. 1966), and Tate v. State, 192 So.2d 923 (Miss. 1966); New York: People v. Hagen, 86 A.D.2d 617, 446 N.Y.S.2d 91 (1982, 2d Dept.); Pennsylvania: Commonwealth v. Logan, 456 Pa. 508, 325 A.2d 313 (1974), Commonwealth v. Werner, 214 A.2d 276 (1965), and Commonwealth v. Barber, 250 Pa. Super. 427, 378 A.2d 1011 (1977); and Rhode Island: Mastracchio v. Houle, 416 A.2d 116 (R.I. 1980). We have explored the possibility that the instruction in this case, "don't talk about your testimony," is appropriate because it is narrowly tailored to prevent coaching.

Some state courts have formulated per se reversal rules since Geders. See, e.g., Jackson v. United States, 420 A.2d 1202 (D.C. 1979) (ban on consultation about testimony during luncheon recess); Stripling v. State, 349 So.2d 187 (Fla.App. 1977) (blanket restriction imposed during luncheon recess); People v. Hagen, 86 App. Div.2d 617, 446 N.Y.S.2d 91 (1982); Commonwealth v. Barber, 250 Pa. Super. 427, 429, 378 A.2d 1011 (1977), citing Commonwealth v. Logan, 456 Pa. 508, 325 A.2d 313 (1974); Mastracchio v. Houle, 416 A.2d 116 (R. I. 1980). Other state courts, however, in addressing recesses shorter than Geders have required a showing of specific prejudice.

We expressly rejected application of a stricter test in State v. McGehearty, 394 A.2d at 1352.See Mastracchio v. Houle, R.I., 416 A.2d 116, 120 (1980). Until the Sandstrom decision, the Supreme Court had never held that instructions such as the one in issue here violated the mandate of the Fourteenth Amendment.

In view of recent cases from this court, however, the state concedes that the defendant cannot be convicted of both the felony murder and the underlying felonies as this would constitute double jeopardy. State v. Innis, R.I., 391 A.2d 1158, 1167 n. 7 (1978), rev'd on other grounds, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980); State v. Doyon, R.I., 416 A.2d 130 (1980); Mastracchio v. Houle, R.I., 416 A.2d 116 (1980). Nor can the defendant be convicted of two crimes where identical elements were required to establish both crimes.

Section 10-9.1-1(b)." Mastracchio v. Houle, R.I., 416 A.2d 116, 117 (1980). Our Supreme Court has told the instant defendants directly that their attack upon their convictions on the claim of defense counsel's actual ineffectiveness in providing them with assistance is appropriately made under the provisions of the foregoing statute.