                                                   Supreme Court

                                                   No. 2012-154-C.A.
                                                   (K1/06-725A)


    State                     :

      v.                      :

Brian Mlyniec.                :




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                                                               Supreme Court

                                                               No. 2012-154-C.A.
                                                               (K1/06-725A)


                   State                      :

                    v.                        :

              Brian Mlyniec.                  :


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

                                         OPINION

       Justice Flaherty, for the Court. The defendant, Brian Mlyniec, appeals from an order

of the Superior Court that denied his motion to reduce sentence under Rule 35 of the Superior

Court Rules of Criminal Procedure. On appeal before this Court, Mlyniec argues that the

hearing justice erred when he denied the motion because the defendant has the potential to be

rehabilitated. On October 2, 2013, this case came before the Supreme Court pursuant to an order

directing the parties to appear and show cause why the issues raised should not summarily be

decided. We have considered the record and the written and oral submissions of the parties,

conclude that cause has not been shown, and proceed to decide the appeal without further

briefing or argument. For the reasons set forth in this opinion, we affirm the order of the

Superior Court denying the defendant’s motion to reduce sentence.

                                       Facts and Travel

       The disturbing facts of the underlying case are set forth in State v. Mlyniec, 15 A.3d 983,

986-94 (R.I. 2011). However, in summary, Mlyniec was convicted of the murder of Kelly



                                              -1-
Anderson by strangulation after he plied her with alcohol, bound her with a television cable

against her will, and sexually assaulted her. Id. at 1001. On July 3, 2008, a jury found defendant

guilty of first-degree murder in violation of G.L. 1956 § 11-23-1. Mlyniec, 15 A.3d at 993. The

jury later found that the murder involved aggravated battery. Id. After denying defendant’s

motion for a new trial, the trial justice sentenced defendant to the maximum sentence of life

imprisonment without parole pursuant to § 11-23-2(4). Mlyniec, 15 A.3d at 993. The defendant

appealed his conviction to this Court, and we affirmed after conducting an independent review of

the sentence. Id. at 1002-03. On June 29, 2011, defendant filed a motion to reduce his sentence

pursuant to Rule 35. A second justice of the Superior Court denied the motion to reduce his

sentence. The defendant filed a timely appeal to this Court.

                                       Standard of Review

       We have stated on many occasions that “[a] motion to reduce sentence under Rule 35 is

‘essentially a plea for leniency.’” State v. Ruffner, 5 A.3d 864, 867 (R.I. 2010) (quoting State v.

Mendoza, 958 A.2d 1159, 1161 (R.I. 2008)). “The motion is addressed to the sound discretion

of the trial justice, who may grant it if he or she decides ‘on reflection or on the basis of changed

circumstances that the sentence originally imposed was, for any reason, unduly severe.’”

Mendoza, 958 A.2d at 1161 (quoting State v. Furtado, 774 A.2d 38, 39 (R.I. 2001)). This Court

consistently has followed a “strong policy against interfering with a trial justice’s discretion in

sentencing matters.” State v. Tavera, 936 A.2d 599, 600 (R.I. 2007) (mem.) (quoting State v.

Ferrara, 818 A.2d 642, 644 (R.I. 2003)). Accordingly, our review of a trial justice’s denial of a

motion to reduce sentence is “extremely limited.” Furtado, 774 A.2d at 39. Indeed, we will

disturb such a decision only “‘in rare instances when’ the sentence imposed is one ‘without

justification and is grossly disparate from other sentences generally imposed for similar



                                                -2-
offenses.’” State v. Burke, 876 A.2d 1109, 1112 (R.I. 2005) (quoting State v. Morris, 863 A.2d

1284, 1287 (R.I. 2004)). “The defendant has ‘the burden of showing that the sentence imposed

violated this standard.’” Mendoza, 958 A.2d at 1162 (quoting Furtado, 774 A.2d at 39).

                                            Analysis

       Before the justice who heard the motion, defendant argued that he was not the same

person that he had been at the time of the death of the victim, and he pressed the hearing justice

to give him the opportunity for rehabilitation so that he could someday be released from

incarceration. The defendant also contended before the hearing justice that he was now sober,

that he attended Alcoholics Anonymous meetings in prison, and that he was working on

becoming a better person. The defendant maintained that he had “painfully reflect[ed]” on his

actions, and he expressed remorse and sorrow for them.

       At the Rule 35 hearing, defendant maintained that the root cause of his troubles was

alcoholism and that he had come to understand the pain he had caused to others. However, when

he denied the motion, the hearing justice noted that defendant had not accepted responsibility for

the murder of the victim. Although defendant told the court that he was “whole-heartedly grief

stricken that [the victim] died as well as sincerely sorry to [the victim’s] family for [his]

despicable behavior,” the hearing justice noted that defendant maintained that the victim’s death

was an accident. In a letter to his probation officer before sentencing, defendant wrote, “Without

any doubt in my mind, [the victim] was playing ‘Russian Roulette’ with her life, and I believe

that no matter who she was with, her death was imminent.” Mlyniec, 15 A.3d at 1003. Despite

his arguments, the hearing justice denied Mlyniec’s motion, saying that although “the sentence is

extremely harsh, the most harsh that our state can afford, the gravity of the offense is




                                              -3-
commensurate with the harshness of the sentence given here. There is a line that protects

society. The sentence is appropriate.”

       When a trial justice imposes a sentence on a criminal defendant after trial, he considers a

variety of factors, including the severity of the offense, the defendant’s personal, educational,

and employment background, the potential for rehabilitation, societal deterrence, and the

appropriateness of punishment. 1 See State v. Tiernan, 645 A.2d 482, 484 (R.I. 1994). A Rule 35

motion provides the trial justice with the discretion to reduce a sentence based on the notion that

the “passage of time may find the sentencing judge in a more sympathetic or receptive frame of

mind.” State v. Diefenderfer, 32 A.3d 931, 936 (R.I. 2011) (quoting State v. Byrnes, 456 A.2d

742, 745 (R.I. 1983)). Here, the hearing justice gave due consideration to the trial justice’s

findings, quoting them at length, but he nonetheless denied the motion, noting that “it is too late

for [defendant] to change as it is too late for [the victim].” The hearing justice discussed his

obligation to reflect on the appropriateness of the verdict in the “cool of the evening” when

deciding whether or not to reduce defendant’s sentence. The hearing justice noted that defendant

had expressed some remorse when he was sentenced, but then, as was the case at the hearing on

the motion to reduce, defendant had failed to acknowledge that his actions resulted in the murder

of Ms. Anderson. The hearing justice also aptly observed that this Court had affirmed Mlyniec’s

sentence after conducting an independent review as we are bound to do pursuant to G.L. 1956 §

12-19.2-5. On appeal, defendant argues that the trial justice abused his discretion in denying the

motion to reduce his sentence to life imprisonment with the possibility of parole.




1
  Of note, the trial justice had retired before the motion to reduce sentence was heard. However,
the justice who did hear it had the discretion to reduce defendant’s sentence after a thorough
review of the record.
                                               -4-
        We are “loath to interfere with a trial justice’s discretionary resolution of a Rule 35

motion * * * .” Mendoza, 958 A.2d at 1162 (quoting State v. Smith, 676 A.2d 765, 767 (R.I.

1996)). We have held that “the power [to reduce a sentence] should be exercised only when the

sentence is without justification and grossly disparate from sentences generally imposed for

similar offenses.” State v. Giorgi, 121 R.I. 280, 282, 397 A.2d 898, 899 (1979) (emphasis

added). It is our opinion that defendant has failed to direct our attention to any way in which the

hearing justice abused his discretion, failed to properly consider the trial justice’s findings, or

was deficient in his consideration of the arguments before him. 2

        The hearing justice was mindful of the brutal, senseless, and horrific nature of the

defendant’s crime as well as the defendant’s reluctance to bear full responsibility for the victim’s

murder. In our opinion, the hearing justice exercised his discretion appropriately, and his ruling

should not be disturbed.

                                                Conclusion

        The order of the Superior Court is affirmed. The papers in this case may be remanded to

that tribunal.

        Justice Indeglia did not participate.




2
  Indeed, in his written argument to this Court, defendant seems to invite us to undertake de novo
review of the arguments raised in the Superior Court. In light of our well-established standard of
review, we decline to do so.
                                                   -5-
                            RHODE ISLAND SUPREME COURT CLERK’S OFFICE

                                 Clerk’s Office Order/Opinion Cover Sheet




TITLE OF CASE:        State v. Brian Mlyniec.

CASE NO:              No. 2012-154-C.A.
                      (K1/06-725A)

COURT:                Supreme Court

DATE OPINION FILED: November 5, 2013

JUSTICES:             Suttell, C.J., Goldberg, Flaherty, and Robinson, JJ.

WRITTEN BY:           Associate Justice Francis X. Flaherty

SOURCE OF APPEAL:     Kent County Superior Court

JUDGE FROM LOWER COURT:

                      Associate Justice Jeffrey A. Lanphear

ATTORNEYS ON APPEAL:

                      For State: Lauren S. Zurier
                                 Department of Attorney General

                      For Defendant: Lara E. Montecalvo
                                     Office of the Public Defender
