                                                                   Supreme Court

                                                                   No. 2013-74-Appeal.


            Jeremy M. Motyka                   :

                     v.                        :

           State of Rhode Island.              :


                                        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 State v. Motyka, 893 A.2d 267 (R.I. 2006). 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 Shatney v. State, 755

A.2d 130 (R.I. 2000).

       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 Shatney, 755 A.2d at 136.




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        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 postconviction 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.


        Entered as an Order of this Court, this 24th day of April, 2014.

                                                     By Order,



                                                     ___________/s/_________________
                                                                Clerk




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                          RHODE ISLAND SUPREME COURT CLERK’S OFFICE

                               Clerk’s Office Order/Opinion Cover Sheet




TITLE OF CASE:      Jeremy M. Motyka v. State of Rhode Island.

CASE NO:            No. 2013-74-Appeal.

COURT:              Supreme Court

DATE ORDER FILED:   April 24, 2014

JUSTICES:           Goldberg, Flaherty, Robinson, and Indeglia, JJ.

WRITTEN BY:         N/A – Court Order

SOURCE OF APPEAL:   Newport County Superior Court

JUDGE FROM LOWER COURT:

                    Associate Justice Melanie Wilk Thunberg

ATTORNEYS ON APPEAL:

                    For Applicant: Christopher S. Gontarz, Esq.

                    For State: Jeanine P. McConaghy
                               Department of Attorney General
