                                                   Supreme Court

                                                   No. 2012-201-C.A.
                                                   (K2/09-106A)


     State                    :

       v.                     :

Paul Castriotta.              :




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                                                               Supreme Court

                                                               No. 2012-201-C.A.
                                                               (K2/09-106A)


                   State                     :

                     v.                      :

              Paul Castriotta.               :


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

                                         OPINION

       Justice Flaherty, for the Court. The defendant, Paul Castriotta, appeals from an order

of the Superior Court that denied his motion to vacate judgment and sentence. On appeal before

this Court, Castriotta argues that his plea to criminal charges should be set aside because his

attorney did not inform him that the attorney was undergoing a personal struggle while he

continued to represent the defendant. On October 29, 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 vacate his judgment and

sentence.




                                              -1-
                                       Facts and Travel

       On July 15, 2008, defendant was alleged to have engaged in second-degree child

molestation with three persons under the age of fourteen at Goddard Park in Warwick, in

violation of G.L. 1956 § 11-37-8.3. The defendant was accused of touching each of the minors,

two of whom were sisters, on their buttocks for the purpose of his sexual gratification. On

February 24, 2009, defendant was charged with three counts of second-degree child molestation

and one count of driving with a suspended license in violation of G.L. 1956 § 31-11-18. He was

arraigned on March 6, 2009, and entered a plea of not guilty. On July 20, 2009, the date that his

trial was set to begin, defendant underwent a change of heart and switched his plea to one of nolo

contendere on the child-molestation charges. In consideration of defendant’s plea, the state

dismissed the charge of driving with a suspended license.        The trial justice conducted an

extensive plea colloquy with defendant, in which he acknowledged the facts alleged by the state

and indicated that he understood that once the judge accepted his plea, he would not be able to

change or withdraw it. At the conclusion of that colloquy, the trial justice determined that

defendant’s plea was knowing, voluntary, and intelligent, and he accepted defendant’s plea of

nolo contendere. 1

       Nonetheless, between the date of his plea and the date set for sentencing, defendant filed

a motion to withdraw his plea of nolo contendere. After conducting an extensive hearing, the

trial justice denied defendant’s motion on December 4, 2009. The trial justice then sentenced

defendant to three concurrent sentences of fifteen years at the Adult Correctional Institutions

(ACI), with five years to serve, and the balance suspended, with probation.          In addition,



1
  The trial justice did not sentence defendant on that day; however, there was an agreement
between the state, defendant, and the court that pending the receipt of a pre-sentence report,
defendant would receive a sentence of no greater than five years to serve.
                                              -2-
defendant was required to undergo alcohol and sex-offender counseling, and to register as a sex

offender upon his release from the ACI. 2

       On May 18, 2011, Castriotta filed a motion to vacate judgment and sentence. On May

26, 2011, a magistrate of the Superior Court heard the motion and denied it because the “exact

same motion had been presented” previously and had been denied. The defendant made a

suggestion that there was new evidence to present, but the magistrate said the new evidence was

“not presented here, and as a result of there being no extenuating circumstances and furthermore

with the sentencing judge having already decided this case, the motion is denied.”

                                      Standard of Review

       “A motion to withdraw a plea ‘is addressed to the sound judicial discretion of the court

and * * * a decision of the court thereon will not be disturbed by this [C]ourt unless there is a

clear abuse of discretion.’” State v. Vashey, 912 A.2d 416, 418 (R.I. 2006) (quoting State v.

Eason, 786 A.2d 365, 367 (R.I. 2001)).

                                            Discussion

       Before we may consider the merits of defendant’s appeal, we must first determine if this

matter is properly before us. Rule 32(d) of the Superior Court Rules of Criminal Procedure

provides that “[a] motion to withdraw a plea of guilty or of nolo contendere may be made only

before sentence is imposed or deferred or probation is imposed or imposition of sentence is

suspended.” As we have held previously, “[o]nce a defendant has entered a plea of guilty or of

nolo contendere and sentence has been imposed, any issue relating to the validity of the plea




2
  Although defendant’s initial attorney from the public defender’s office had coordinated to have
a second public defender represent defendant at the sentencing hearing, defendant rejected that
attorney and was represented by private counsel at the hearing on December 4, 2009.
                                               -3-
must be raised by way of postconviction relief.” Vashey, 912 A.2d at 418 (quoting State v.

Desir, 766 A.2d 374, 375 (R.I. 2001)).

       The record in this case is clear. The defendant filed a motion to withdraw his plea before

he was sentenced on December 4, 2009, but he did not appeal the trial justice’s denial of that

motion. He did not file his second motion, this time styled as a motion to vacate judgment and

sentence, until May 18, 2011, eighteen months after sentencing. 3        It is our firm opinion,

therefore, that defendant’s appeal is not properly before this Court.

       Despite the procedural bars to defendant’s appeal, we pause to briefly discuss the merits

of his arguments. After he had entered his plea, defendant’s first attorney informed him that he

had an “internal struggle with standing up at a sentencing hearing and minimizing what it was

that [defendant] had admitted that he had done * * * .” Evidently, a close relative of defendant’s

attorney had been the victim of a sexual assault that was similar in nature to the charge to which

defendant had pleaded. Castriotta argues on appeal that, as a result, he was not adequately

represented because that attorney should have advised him prior to the plea that he had an

internal struggle in continuing to represent him. The defendant argues that had he known of this

conflict, he would not have entered his nolo contendere plea, and thus, his plea was not

voluntarily and intelligently made.

       We conclude that this argument, even if properly made, is utterly without merit because

the record indicates that the alleged sexual assault on the relative of his counsel did not occur

until after the defendant had entered his plea. Castriotta entered his plea on July 20, 2009, and

defense counsel unequivocally testified at the initial hearing to withdraw the plea that the

incident involving the person close to him did not occur until August 13 or 17, 2009. As counsel

3
 According to the parties, defendant filed an application for postconviction relief on November
28, 2011, which is pending in the Superior Court.
                                                -4-
said at the motion hearing, “I couldn’t tell [the defendant] at the time he plead [sic] out, because

it hadn’t happened yet.” As a result, there appears to be no factual support for the defendant’s

claim that his attorney’s internal struggle should have compelled the court to vacate the judgment

and sentencing.

                                               Conclusion

       For the foregoing reasons, we affirm the order in favor of the state. The record shall be

remanded to the Superior Court.




                                               -5-
                            RHODE ISLAND SUPREME COURT CLERK’S OFFICE

                                  Clerk’s Office Order/Opinion Cover Sheet




TITLE OF CASE:        State v. Paul Castriotta.

CASE NO:              No. 2012-201-C.A.
                      (K2/09-106A)

COURT:                Supreme Court

DATE OPINION FILED: December 17, 2013

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

WRITTEN BY:           Associate Justice Francis X. Flaherty

SOURCE OF APPEAL:     Kent County Superior Court

JUDGE FROM LOWER COURT:

                      Associate Justice Edwin J. Gale

                      Magistrate Susan L. Kenny

ATTORNEYS ON APPEAL:

                      For State: Christopher R. Bush
                                 Department of Attorney General

                      For Defendant: Paul Castriotta, Pro Se
