State v. Danny Restitullo

Supreme Court

No. 2023-197-C.A.
(P3/20-3517ADV)

State :

v. :

Danny Restitullo. :

ORDER

The defendant, Danny Restitullo, who is not represented by counsel, appeals

from a final order of the Superior Court denying his appeal of a magistrate’s

acceptance of his nolo contendere plea. Before this Court, the defendant contends

that (1) his plea was invalid and (2) he is not guilty of the underlying domestic simple

assault. This Court directed the parties to appear and show cause why the issues

raised in this appeal should not be summarily decided. After considering the parties’

submissions and reviewing the record, we conclude that cause has not been shown

and that this case may be decided without further briefing or argument.1 For the

reasons set forth in this order, we affirm the order of the Superior Court.

On November 11, 2020, the Pawtucket Police Department arrested defendant

and charged him, by criminal complaint, with domestic simple assault and battery

1
The state indicated that it would waive oral argument and rest upon its written
submissions.

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and domestic disorderly conduct. The defendant was released on a surety bond the

following day.

On December 3, 2020, defendant pleaded nolo contendere to the assault

charge before a District Court magistrate. The magistrate imposed a one-year

suspended sentence, with probation. The state moved to dismiss the disorderly

conduct charge pursuant to Rule 48(a) of the District Court Rules of Criminal

Procedure. The defendant appealed to the Superior Court on December 7, 2020.

In October 2021, the state filed a bail violation notice against defendant, and

he was held without bail thereafter. On November 18, 2021, defendant again entered

a plea of nolo contendere to the assault charge, this time before a Superior Court

magistrate. The plea form, signed by defendant and his attorney, certified that

defendant understood that his plea would waive certain rights, including his rights

to appeal “any verdict or finding of guilt” and “the sentence imposed” to this Court.

At the plea hearing, defendant assented to the state’s proffer that it could have

proven beyond a reasonable doubt that “on or about November 11th of 2020,”

defendant “did commit an assault and/or battery upon the body of” the complaining

witness, who is the mother of defendant’s child. The magistrate engaged in a

colloquy with defendant as to his plea, eventually concluding that defendant pled

“knowingly, intelligently[,] and voluntarily * * *.”

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As had the District Court magistrate, the Superior Court magistrate imposed

a one-year suspended sentence, with probation. The magistrate also required that

defendant complete domestic violence classes and abide by a no-contact order. A

judgment of conviction entered on February 23, 2022.

On December 8, 2021, defendant prematurely appealed the judgment of the

Superior Court magistrate, pursuant to G.L. 1956 § 8-2-11.1(d). A Superior Court

justice denied defendant’s appeal in an order dated April 26, 2023. Citing the signed

plea form and defendant’s colloquy with the magistrate, the trial justice found “no

grounds on which [d]efendant can appeal his sentence” because defendant “freely

and voluntarily entered a plea of nolo contendere” and “freely and voluntarily

waived his right to appeal.”

The defendant filed a timely notice of appeal to this Court on May 3, 2023.

Before this Court, defendant asserts that, on the date of the plea, he was “suffer[ing]

from depression and anxiety.” He recounts that, when his attorney “presented [him]

with a ‘deal,’” he “didn’t have time to process what was going on” and “was

intimidated by the process * * *.” He maintains that he is “not guilty of assaulting

anyone” and that his “rights were violated and continue to be violated.”

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The defendant also claims that the complaining witness “tried to drop the

charges and was unable to speak to anyone,” averring that “[s]he signed an affidavit

stating that she wasn’t assaulted by” him.2

The state argues that defendant’s claims are not properly before us. In the

alternative, it suggests that defendant’s appeal should be denied because the record

does not support a claim that his plea was anything other than knowing, voluntary,

and intelligent.

“General Laws 1956 §§ 8-2-11.1(e) and 8-2-39(f) provide that final orders of

the Superior Court entered in a proceeding to review an order of a magistrate may

be appealed to the Supreme Court.” DiCarlo v. State, 212 A.3d 1191, 1195 (R.I.

2019) (quoting State v. Rosenbaum, 114 A.3d 76, 80 (R.I. 2015)). “On appeal, this

Court will not disturb the factual determinations of the Superior Court justice unless

he or she made clearly erroneous findings or misconceived or overlooked material

2
The affidavits in question were first filed in the Superior Court only after the trial
justice rendered his decision denying defendant’s appeal and thus can play no role
in our review. See Article I, Rule 10(a) of the Supreme Court Rules of Appellate
Procedure (“[T]he papers and exhibits filed in the trial court and the transcript of
proceedings * * * shall constitute the record on appeal in all cases.”); Ouimette v.
State, 785 A.2d 1132, 1139 (R.I. 2001) (noting that an affidavit filed after the
decision under review was not part of the appellate record).
The defendant also requests that this Court order a “new trial based upon
newly discovered evidence.” As discussed herein, under the circumstances of the
case at bar, any such motion must be brought in an application for postconviction
relief in the first instance. See G.L. 1956 § 10-9.1-1.

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evidence.” Id. (quoting Rosenbaum, 114 A.3d at 80). “We will, however, review

questions of law de novo.” Id. (quoting Rosenbaum, 114 A.3d at 80).

“[I]n reviewing the trial justice’s legal determinations, this Court has a

‘prerogative to affirm a determination of a trial justice on grounds different from

those enunciated in his or her decision[.]’” Miller v. Metropolitan Property and

Casualty Insurance Co., 111 A.3d 332, 339 (R.I. 2015) (quoting John Marandola

Plumbing & Heating Co. v. Delta Mechanical, Inc., 769 A.2d 1272, 1275 (R.I.

2001)).

Rule 32(d) of the Superior Court Rules of Criminal Procedure provides that

“[a] motion to withdraw a plea of * * * nolo contendere may be made only before

sentence is imposed * * * or imposition of sentence is suspended.” (Emphasis

added.) Because defendant did not timely seek to withdraw his plea in accordance

with that rule, any challenge to the plea’s validity is properly the subject of an

application for postconviction relief, not an appeal to the trial justice or this Court.

See State v. Rocchio, 101 A.3d 858, 859 (R.I. 2014) (“[O]nce a defendant has entered

a plea of * * * nolo contendere and sentence has been imposed, any issue relating to

the validity of the plea must be raised by way of postconviction relief.”) (quoting

State v. Castriotta, 80 A.3d 854, 856 (R.I. 2013)).

Moreover, defendant’s claim of actual innocence was not raised to the trial

justice below and is therefore waived for appellate review. “[T]his Court’s

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‘raise-or-waive rule precludes us from considering at the appellate level issues not

properly presented before the trial court.’” State v. Gamache, 297 A.3d 67, 79 (R.I.

2023) (quoting State v. Merida, 960 A.2d 228, 236 (R.I. 2008)).

That is not to say, however, that the defendant should have presented his claim

of actual innocence to the trial justice. To the contrary, “[a] plea of * * * nolo

contendere to a charged offense operates as a waiver of the defendant’s right to

appeal his conviction of that offense.” State v. Feng, 421 A.2d 1258, 1263 n.5 (R.I.

1980). Similar to the defendant’s challenge to the validity of his plea, an application

for postconviction relief is the proper vehicle to request a remedy under these

circumstances. See G.L. 1956 § 10-9.1-1(b) (charging that postconviction relief

under this chapter is the exclusive remedy for collateral attack of a conviction not

otherwise reviewable “incident to the proceedings in the trial court” or through direct

appellate review).

For the reasons stated herein, we affirm the order of the Superior Court. The

record shall be returned to the Superior Court.

Entered as an Order of this Court this day of April, 2024.

By Order,

____________________________
Clerk

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STATE OF RHODE ISLAND
SUPREME COURT – CLERK’S OFFICE
Licht Judicial Complex
250 Benefit Street
Providence, RI 02903

ORDER COVER SHEET

Title of Case State v. Danny Restitullo.

No. 2023-197-C.A.
Case Number
(P3/20-3517ADV)

Date Order Filed April 11, 2024

Suttell, C.J., Goldberg, Robinson, Lynch Prata, and
Justices
Long, JJ

Source of Appeal Providence County Superior Court

Judicial Officer from Lower Court Associate Justice Brian P. Stern

For State:

Devon Flanagan Hogan
Attorney(s) on Appeal Department of Attorney General
For Defendant:

Danny Restitullo, pro se

SU-CMS-02B (revised November 2022)