Kevin M. Millette
State of Rhode Island.
Superior Court Kent County (PM 14-359), Bennett R. Gallo
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and
A. Suttell Chief Justice.
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.
Facts and Travel
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).
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. 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.
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.
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.
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.
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.
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.
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)[.]"
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