Jeremy M. Motyka v. State of Rhode Island
91 A.3d 351
R.I.
2014
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Thomas J. Howard, Jr., Pro Se.

Supreme Court of Rhode Island.

April 24, 2014

351

Christopher S. Gontarz, Esq. Jeanine P. McConaghy, Department of Attorney General.

ORDER

On March 14, 2014, this Court‘s Disciplinary Counsel filed a petition pursuant to Article III, Rule 6(e) of the Supreme Court Rules of Disciplinary Procedure requesting that the court order the respondent Thomas J. Howard, Jr., to file an answer to a disciplinary complaint. Counsel informed this Court that the respondent had failed to answer the complaint despite several requests that he do so.

On March 24, 2014, we entered an order reprimanding the respondent for his failure to answer that complaint and directing him to file his answer within ten days. The order further provided that his failure to do so would result in his suspension from the practice of law. The respondent was served with that order on March 26, 2014. The respondent has failed to file his answer and is in willful defiance of this Court‘s order.

Accordingly, it is ordered that the respondent, Thomas J. Howard, Jr., is suspended from engaging in the practice of law in this state, effective immediately, and until further order of this Court.

Jeremy M. MOTYKA v. STATE of Rhode Island.

No. 2013-74-Appeal.

Supreme Court of Rhode Island.

April 24, 2014.

351

ORDER

This case was assigned for oral argument on the Supreme Court‘s May 6, 2014 Show Cause Calendar, the parties having been directed to appear and show cause why the issues raised by the appellant, Jeremy M. Motyka (applicant), in this appeal from the denial of his application for post-conviction relief should not summarily be decided. The applicant is serving a sentence of life imprisonment without the possibility of parole after a conviction for a murder committed in a manner involving torture and aggravated battery. See . The state has conceded that the trial justice failed to articulate any findings or conclusions concerning the grounds raised in the application, in accordance with the procedure set forth in .

On April 18, 2014, the appellee, State of Rhode Island, filed with this Court, a concession of error, conceding that the Superior Court hearing justice did not provide applicant with an opportunity “to be heard on whether any arguable basis exists to proceed with the application” for post-conviction relief after the filing of a two-page no-merit memorandum by appointed counsel in accordance with .

Although applicant was provided with counsel, the record also reflects that he engaged in vigorous advocacy on his own behalf, such that the trial justice was confronted with “overlap and duplicity” among the various filings by the applicant. This Court accepts the state‘s concession of error with respect to the manner in which this case was decided in the Superior Court, and we vacate the judgment denying postconviction relief issued in the Superior Court. We remand this case for a new hearing with present counsel as his attorney. We note, however, that applicant may not have it two ways—he is entitled to the able assistance of a court-appointed lawyer or he can elect to represent himself as a pro se litigant, but not both.

Accordingly, the judgment denying post-conviction relief entered in the Superior Court is vacated and the case is remanded to the Superior Court for further proceedings consistent with this order.

Chief Justice SUTTELL did not participate.

STATE v. Byron W. DE WELDON.

No. 2007-290-C.A.

Supreme Court of Rhode Island.

April 25, 2014.

352

Jane M. McSoley, Department of Attorney General. John Sylvia, Esq.

ORDER

On April 19, 2004, the defendant pleaded nolo contendere to third-degree sexual assault and possession of cocaine. On the same day, the defendant received a sentence of five years imprisonment for the sexual-assault count, all of which was suspended, with probation, and a consecutive one-year sentence for possession of cocaine, with thirty days to serve and the remainder suspended.

A little over a year later, on July 5, 2005, defendant filed a motion to vacate his plea. We note that a motion to vacate a plea after a defendant has been sentenced is procedurally improper. See . The hearing justice apparently treated the motion as an application for postconviction relief, which she denied in a decision filed on May 18, 2006. A judgment reflecting that denial was entered on June 21, 2006. Although defendant purportedly appeals from that judgment, he did not file a notice of appeal.

On September 4, 2007, defendant filed a handwritten letter in which he wrote that he wished to appeal a ruling that the hearing justice made on August 8, 2007. At that time, no order had been entered memorializing any ruling from that date. On October 28, 2009, however, an order denying defendant‘s application for postconviction relief was entered nunc pro tunc to August 8, 2007. Even if that order was the ruling being challenged in this appeal, the notice of appeal of that order was untimely.

The defendant did not appeal the denial of his motion to vacate his plea. Accordingly, we conclude that this matter is not properly before us. See Article I, Rule 3(a) of the Supreme Court Rules of Appellate Procedure; see also (” ‘Rule 3(a) makes clear that failure to file a timely notice of appeal renders any purported appeal invalid[.]’ * * * No rule exists