The Rhode Island Supreme Court denied relief

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.

…we need not analyze Millette’s claim of ineffective assistance of counsel under the Strickland test because he has not raised any arguments before this Court that the performance by Sylvia or Lovett was constitutionally deficient. Rather, Millette has conceded that there is “no question of competency here.” Millette instead claims that he received per se ineffective assistance of counsel because Lovett was not licensed to practice law in Rhode Island due to his failure to pass the Rhode Island bar examination.

Although Lovett was not licensed to practice law in Rhode Island, the application of a rule of per se ineffective assistance of counsel would be misplaced here because the trial justice found that Millette was represented by Sylvia, who was licensed to practice law in Rhode Island, a finding that we will not disturb unless we conclude that it is clearly erroneous or that the trial justice overlooked or misconceived material evidence in reaching it. Dominick, 139 A.3d at 431. We perceive no such error. At the postconviction-relief hearing, the trial justice heard testimony from Millette and Sylvia that elicited the following pertinent facts regarding representation of Millette with respect to his 2012 pleas. Sylvia testified that Millette was aware that Sylvia was Lovett & Lovett’s “Rhode Island attorney,” and that he told Millette that he would represent him in the criminal matters against him. On September 8, 2009, Sylvia entered his appearance on Millette’s behalf. Sylvia met with Millette in court prior to Millette entering his 2012 pleas, and Sylvia informed Millette of the state’s plea offer. Sylvia discussed the state’s offer with Millette, continued negotiations with the state, and ultimately reached a resolution that disposed of the pending criminal matters. Sylvia then “went through” the plea form with Millette and discussed with him the rights that he was giving up by pleading nolo contendere. Additionally, on the plea form, Sylvia’s signature appears in the signature box entitled “WITNESS (Attorney for the Defendant)[.]” Based on the evidence adduced at the postconviction-relief hearing, we are of the opinion that the trial justice did not err in finding that Sylvia, not Lovett, represented Millette in the criminal matters that are the subject of Millette’s postconviction-relief application