State v. Mark Amesbury

Supreme Court

No. 2023-122-C.A.
(P3/22-2632A)

State :

v. :

Mark Amesbury. :

ORDER

The defendant, Mark Amesbury, who is not represented by counsel, appeals

from a Superior Court order denying his appeal from a magistrate’s decision to deny

his motion to dismiss a criminal complaint alleging twenty-nine violations of fire

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

raised in this appeal should not be summarily decided. After carefully reviewing the

record, we conclude that cause has not been shown and that this case may be decided

without further briefing or argument. For the reasons set forth herein, we affirm the

order of the Superior Court.

On April 19, 2022, the state filed a twenty-nine-count criminal complaint

against defendant in District Court,1 citing G.L. 1956 § 23-28.3-9 as statutory

1
We note that the complaint is numbered from one to thirty, but skips number
twenty-eight; therefore, there are only twenty-nine counts in total.

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grounds for all offenses.2 The alleged violations took place at various addresses in

Pawtucket.

The defendant entered a plea of not guilty in District Court and waived his

right to a jury trial. He thereafter moved to dismiss the complaint, and his motion

was denied. He additionally moved to disqualify the judge, a request that also

appears to have been denied. The defendant then filed a motion to withdraw his

waiver of a jury trial, and the case was transferred to Superior Court in accordance

with Rule 23 of the District Court Rules of Criminal Procedure.3

After the case was docketed in Providence County Superior Court, defendant

filed a motion to dismiss the complaint, proffering several arguments in support of

his motion. The record reflects that defendant’s motion was denied after a hearing

before the general magistrate on October 26, 2022. The defendant then filed a

motion for an evidentiary hearing and a motion to reconsider. The defendant’s

2
General Laws 1956 § 23-28.3-9 provides in pertinent part that “any building owner
or lessee who violates or fails or refuses to comply with” fire safety statutes, codes,
or orders “shall be guilty of a misdemeanor * * *.”
3
Rule 23 of the District Court Rules of Criminal Procedure provides:

“If the defendant does not file a waiver within ten (10)
days of his or her initial appearance before the [District]
Court, or if the defendant is allowed, for good cause
shown, to withdraw his or her waiver after said ten-day
period, the clerk shall transmit the record in the case to the
clerk of the Superior Court for the county in which the
offense was committed.”

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motion to reconsider was denied after a hearing before the general magistrate on

December 16, 2022. Orders reflecting the denial of the motion to dismiss and the

motion to reconsider were entered on April 28, 2023, after the case had been certified

to this Court.

The defendant appealed the magistrate’s decision to a justice of the Superior

Court on December 28, 2022. Although defendant’s notice of appeal indicated that

he was appealing from an order entered on December 16, 2022—the motion to

reconsider—and does not reference the denial of his motion to dismiss on October

26, 2022, the hearing justice treated defendant’s appeal as an appeal from the denial

of both motions. The hearing justice agreed with the magistrate’s decision that the

case “‘screams for a trial’ to fully develop evidence and testimony for the finder of

fact to weigh.” The hearing justice denied defendant’s appeal, and defendant filed

a timely notice of appeal to this Court.

Before this Court, defendant argues that (1) the magistrate and hearing justice

“wrongfully treated [his] motion as a 9.1 Motion to Dismiss”; (2) the charges should

have been dismissed because “the [s]tate failed to produce the [j]oint report that is

required under Rhode Island Fire Code 7.1.11.2.1”; (3) double jeopardy applies; (4)

the “Pawtucket Fire Marshal cannot sign the inspection report and compliance order

based on hearsay”; and (5) defendant “cannot be criminal charged [sic] for a

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[c]ommercial [t]enant [a]lleged fire code violation.” None of the arguments raised

in this interlocutory appeal, however, are properly before us.

We first address the double-jeopardy argument raised by defendant.

“Ordinarily, a denial of a motion to dismiss a criminal action is not a final judgment

from which an appeal may be taken. However, when the motion to dismiss is based

upon double-jeopardy and collateral-estoppel grounds, [the Court] allow[s] an

immediate appeal.” State v. Minior, 175 A.3d 1202, 1206 (R.I. 2018) (quoting State

v. Wiggs, 635 A.2d 272, 275 (R.I. 1993)). Although defendant argues on appeal that

his case should have been dismissed on double-jeopardy grounds, he did not address

the issue in his Superior Court memoranda. Furthermore, defendant has failed to

provide this Court with a transcript of the hearings on his motion to dismiss and his

motion for reconsideration. Thus, whether defendant raised the issue of double

jeopardy orally at one of these hearings before the magistrate cannot be determined.

Article I, Rule 11(a) of the Supreme Court Rules of Appellate Procedure

provides, in part, that “[p]romptly after filing the notice of appeal the appellant shall

comply with the provisions of Rule 10(b) or (c) and shall take any other action

necessary to enable the clerk to assemble and transmit the record.” Art. I, Rule 11(a)

of the Supreme Court Rules. “Under this rule, it is the duty of the appellant ‘to

ensure that the record is complete and ready for transmission.’” Small Business Loan

Fund Corporation v. Gallant, 795 A.2d 531, 532 (R.I. 2002) (quoting Procopio v.

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PRM Concrete Corp., 711 A.2d 650, 651 (R.I. 1998) (mem.)). Indeed, “[i]n the

absence of a transcript, this Court cannot determine how the trial justice came to a

decision or, in turn, whether the trial justice erred in coming to that decision.”

Boulais v. DiPaola, 305 A.3d 1270, 1271 (R.I. 2024) (mem.).

The record, as transmitted to this Court, is devoid of any reference to the issue

of double jeopardy. “Consequently, we have ‘no alternative but to deny the appeal

and uphold the trial justice’s findings.’” Boulais, 305 A.3d at 1271 (quoting Palange

v. Palange, 243 A.3d 783, 784 (R.I. 2021) (mem.)).

The defendant’s remaining arguments are not properly before us because they

do not fall within an exception to the general rule against interlocutory appeals in

criminal cases. See Minior, 175 A.3d at 1206 (“It is well settled in this jurisdiction

that appeals from interlocutory orders are not permitted unless they fall within

certain well-defined exceptions.” (quoting Boranian v. Richer, 983 A.2d 834, 837

(R.I. 2009))).

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 24th 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. Mark Amesbury.

No. 2023-122-C.A.
Case Number
(P3/22-2632A)

Date Order Filed April 24, 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:

Yasmin D. Gamez
Attorney(s) on Appeal Department of Attorney General
For Defendant:

Mark Amesbury, pro se

SU-CMS-02B (revised November 2022)