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Millette v. State

Supreme Court of Rhode Island

May 17, 2018

Kevin M. Millette
State of Rhode Island.

          Superior Court Kent County (PM 14-359), Bennett R. Gallo Associate Justice.

          Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.


          Paul A. Suttell Chief Justice.

         Claiming that his defense counsel, who was not licensed to practice law in Rhode Island, was engaging in unlawful conduct, Kevin Millette (Millette or applicant) argues that he was denied his constitutional right to counsel when he pled nolo contendere to two criminal offenses and admitted to violating his probationary sentence. Millette further maintains that his defense counsel's associate, who was licensed in Rhode Island and who appeared in court with Millette, was merely a "straw man" and thus complicit in the scheme to practice law without a license. We issued a writ of certiorari to review the Superior Court's denial of Millette's application for postconviction relief in this case of first impression. For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.

         I Facts and Travel

         On July 29, 2009, Millette was charged with obtaining money from Jeffrey Jillson under false pretenses with the intent to cheat or defraud Jillson (count 1) and intentionally appropriating Jillson's money (count 2) (the Jillson matter). Millette was also presented as an alleged violator of a probationary sentence he had received upon his prior conviction for the charge of obtaining money under false pretenses from Leo David. Millette failed to appear at court, and a warrant was issued. He was subsequently arrested out of state and arraigned on January 25, 2012. On April 10, 2012, Millette was charged in another criminal action with obtaining property from James Singleton under false pretenses with the intent to cheat or defraud Singleton (count 1) and intentionally appropriating Singleton's property (count 2) (the Singleton matter).

         On July 31, 2012, Millette pled nolo contendere to count 2 of the Jillson matter and to count 2 of the Singleton matter, and admitted to violating the terms of his probationary sentence.[1] Prior to accepting the pleas, the trial justice asked Millette if he had signed the plea affidavits, if he had read them and understood them, and if he had the opportunity to discuss them with his attorney before signing them-to all of which Millette responded in the affirmative. The trial justice further inquired whether Millette understood that he was giving up various rights by entering his pleas, and he again responded affirmatively. The trial justice was satisfied that Millette entered his nolo contendere pleas "knowingly and voluntarily with a full understanding of the nature and consequences of his plea and corresponding waiver of his constitutional rights[, ]" and accordingly the trial justice accepted the pleas. With respect to the Jillson matter, Millette was sentenced to twenty years in prison, with twelve years to serve and eight years suspended with probation; and, for the Singleton matter, Millette received a twenty-year suspended sentence with probation, to run consecutive to the first sentence.

         On December 16, 2013, Millette filed a pro se application for postconviction relief in the Superior Court. In support of his application, Millette maintained, in pertinent part, that he had received ineffective assistance of counsel because his lawyer, Samuel Lovett (Lovett), of the law firm Lovett & Lovett, was not licensed to practice law in Rhode Island.[2]

         On August 3, 2015, the same justice who presided over the 2012 plea proceedings held a hearing on Millette's application for postconviction relief. Millette stated that he first became a client of Lovett & Lovett in approximately 2002 or 2003, when he sought legal advice concerning a real estate transaction. He maintained that Lovett represented him in the real estate transaction. Millette testified that he again contacted Lovett & Lovett in 2004 because someone was going to press charges against him for obtaining money under false pretenses. When asked whether Lovett's ability to represent him in Rhode Island came up in their conversations, Millette replied in the negative.

         Millette then discussed the Jillson matter. Millette testified that a letter from an attorney who represented Jillson prompted him to contact Lovett, who assured him that he would resolve the matter and negotiate the dispute. Millette also testified about the involvement of John Sylvia (Sylvia), an attorney at Lovett & Lovett who was licensed to practice law in Rhode Island. With respect to the Jillson matter, Millette said that he met Sylvia at the Lovett & Lovett office, and that Sylvia told him that he would handle his arraignment because Lovett had to be in Massachusetts for another case. Millette testified that, following his arraignment, he spoke with Sylvia only once or twice, but that he had frequent contact with Lovett.

         On cross-examination, the state elicited the fact that Millette's 2012 pleas were not his first pleas in a criminal case. In 1999, Millette had entered pleas in three separate criminal cases and was represented by different counsel. Millette had also previously entered a plea in federal court and was represented by counsel other than Lovett. Additionally, Millette had entered a plea in Kent County Superior Court in 2004 and was represented by Sylvia.

         With respect to his 2012 pleas, Millette testified that he met with Lovett, Sylvia, and other attorneys the day before he entered his pleas, and Lovett advised him to take the plea deal. The state asked Millette whether Sylvia met with him in court and if Sylvia had informed him of the state's plea offer, to which Millette gave an affirmative reply. Millette and Sylvia discussed the state's offer and Sylvia made a counteroffer, according to Millette. He testified that, after continued negotiations, Sylvia and the state agreed upon a disposition that resolved the pending criminal matters. Millette testified that Sylvia then "went through" the plea form with him.

         Sylvia testified next. When asked whether he was aware that Lovett was not licensed to practice law in Rhode Island, he replied in the affirmative. Sylvia testified that he told Millette that he would represent him in the matter, and he stated that Millette "knew [he] was the Rhode Island attorney from the office." Regarding Millette's 2012 pleas, Sylvia testified that he discussed with Millette the rights that he was waiving by pleading nolo contendere, and said that he "put a checkmark next to each of the rights as [he] explained them * * *." Additionally, on the plea form, which was entered as a full exhibit, Sylvia's signature appears in the signature box entitled "WITNESS (Attorney for the Defendant)[.]"

         The trial justice then rendered his decision on Millette's application for postconviction relief. With respect to Millette's 2012 pleas, he determined there was "nothing whatsoever irregular about the proceedings." He found that Millette was aware of the charges against him and the consequences of his pleas when he pled nolo contendere. Further, the trial justice determined that Sylvia, not Lovett, represented Millette in regard to his 2012 pleas, and that there was no evidence that Sylvia's representation of Millette was ineffective. The ...

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