Volume 183 — Atlantic Reporter, Third Series

The petitioner, Endoscopy Associates, Inc. (Endoscopy), appeals from a judgment of the Superior Court that reversed a decision by the Department of Health (the DOH) to grant an application for a Health Care Certificate of Need (CON). On January 10, 2013, Endoscopy applied for a CON with the DOH pursuant to the Health Care Certificate of Need Act of Rhode Island, G.L. 1956 chapter 15 of title 23, seeking to change its corporate structure from a physician ambulatory surgery center (PASC) to a freestanding ambulatory surgery center (FASC). As a PASC licensee, Endoscopy is limited to a physician-owned and -operated facility, and by converting to a FASC license, Endoscopy would be able to expand its corporate ownership to nonphysicians and have nonowner physicians practicing in the facility. A competing provider, Blackstone Valley Surgicare Acquisition, L.P., which operates as a FASC, intervened and filed a letter in opposition to Endoscopy's application. The DOH affirmed Endoscopy's CON application. Blackstone Valley requested administrative review of the DOH's decision and argued that Endoscopy's application did not identify an appropriate public need, as required. The matter came before a hearing officer of the Department of Administration (the DOA) the hearing officer reversed the decision of the DOH, and Endoscopy appealed to the Superior Court for judicial review. On appeal, the trial justice was concerned with whether Endoscopy's application was suitable for the CON application process. The trial justice remanded the application to the DOH to ascertain whether the CON application procedure could encompass Endoscopy's application. The trial justice also affirmed the DOA hearing officer's decision. Endoscopy filed for a writ of certiorari. The Supreme Court granted Endoscopy's petition for a writ of certiorari on February 23, 2016, and, in accordance with the trial justice's direction, remanded the papers to the DOH in order to ascertain whether Endoscopy's application was an appropriate avenue for relief under the CON process. The DOH responded and affirmed that Endoscopy's application was suitable for the CON application process. The DOH further concluded in its response that Endoscopy's application specifically required the agency to look to future public need, including current intelligent planning, and confirmed that its jurisdiction allows it to consider future public need in the approval of a CON application. The Supreme Court deemed the DOH's response to be well reasoned and within its statutory powers. Furthermore, the Supreme Court held that the DOH correctly applied its rules and regulations when it determined that the public need set forth in Endoscopy's application was appropriate. The Supreme Court concluded that there was substantial evidence supporting the DOH's decision to grant Endoscopy's CON application. Accordingly, the Supreme Court quashed the judgment of the Superior Court and affirmed the DOH's decision to grant Endoscopy's application for a CON.

The defendant, Brandon Alves, appealed from a Superior Court judgment of conviction on count 1, robbery in the first degree, and count 2, conspiracy. Alves was found guilty of both counts by a jury and sentenced to the Adult Correctional Institutions for fifteen years, with six years to serve and nine years suspended as to count 1, and ten years suspended as to count 2. Alves sought to have his conviction and sentence vacated and asked the Supreme Court to grant him a new trial on the grounds that the trial justice erred in admitting into evidence identification testimony and a photograph of defendant. The Supreme Court affirmed the judgment of the Superior Court and determined that the identification testimony was not hearsay and that introduction at trial and use by police of a single photograph of defendant was neither unnecessarily suggestive, nor did it implicate defendant's right to due process.

The plaintiffs appealed from a judgment of the Superior Court in favor of the defendant. The facts of the case were straightforward: the defendant had conducted a foreclosure sale on the plaintiffs' property in a manner that the plaintiffs alleged was not in compliance with the notice provisions set forth in G.L. 1956 §§ 34-27-4(a) and 34-27-4(b). At issue in this case was whether the plaintiffs, in opposing the defendant's motion for summary judgment, had met their burden to demonstrate a genuine issue of material fact as to whether the defendant complied with those statutes. The Supreme Court held that the plaintiffs had failed to do so, concluding that the defendant complied with §§ 34-27-4(a) and 34-27-4(b). Therefore, the judgment was affirmed.

The instant appeal challenged a Providence County Superior Court hearing justice's decision granting a motion to vacate an arbitration award in favor of the defendants, the Cumberland Town Employees Union and Norman Tremblay (Tremblay) (collectively, the union), brought by the Town of Cumberland (the town), and denying the union's cross-petition to confirm the same. The union argued that the Superior Court justice improperly held that the Workers' Compensation Act (WCA) prevented the parties from bringing the claim to arbitration. Further, the union asserted that Tremblay and the town's collective bargaining agreement (CBA) properly granted Tremblay a longer leave of absence than the WCA. The town countered that the dispute was not arbitrable because the WCA governed Tremblay's reinstatement, and the WCA gave exclusive jurisdiction over Tremblay's reinstatement to the Workers' Compensation Court. The Supreme Court held that the grievance was arbitrable because Tremblay brought his action in reliance on the CBA, and not on the WCA. Further, the Court concluded that the CBA between the union and the town could grant greater protection than the WCA. Accordingly, the Court vacated the Superior Court judgment and remanded with instructions to confirm the arbitration award.

Kevin Millette came before the Supreme Court on a writ of certiorari to review the judgment of the Superior Court that denied his application for postconviction relief. Specifically, Millette maintained that he was denied his constitutional right to effective assistance of counsel when he entered a plea to two criminal offenses and admitted to violating the terms of his probationary sentence. Millette argued that he received per se ineffective assistance of counsel because his defense counsel, Samuel Lovett, was not licensed to practice law in Rhode Island. Millette further averred that the involvement of Lovett's associate, John Sylvia, who was licensed in Rhode Island and who appeared in court with Millette, did not cure Lovett's lack of licensure because Sylvia was involved in covering up this fact. Millette also asserted that both attorneys had a conflict of interest in that they did not zealously defend his case for fear that it would prompt inquiry into the scheme to practice law without a license. The Supreme Court affirmed the judgment of the Superior Court. The Court held that the rule of per se ineffective assistance of counsel was inapplicable because the hearing justice had properly found that Sylvia, not Lovett, represented Millette with respect to his pleas. Further, the rule of per se ineffective assistance of counsel did not apply because the Court agreed with numerous other courts that have limited the rule's application to situations where a defendant's attorney was not licensed to practice law in any state here, however, Lovett was licensed to practice law in Massachusetts. The Supreme Court further rejected Millette's argument that both Lovett and Sylvia had a conflict of interest in Millette's representation, because Millette was represented by a licensed Rhode Island attorney, Sylvia. Having held that Millette failed to otherwise present any evidence that his representation was ineffective, the Court affirmed the judgment of the Superior Court denying Millette's application for postconviction relief.

<p> February Term, 2017 February 16, 2018 Motion for Reargument Denied March 14, 2018 </p>