
    Jeremy M. MOTYKA v. STATE of Rhode Island.
    No. 2013-74-Appeal.
    Supreme Court of Rhode Island.
    April 24, 2014.
    Christopher S. Gontarz, Esq.
    Jeanine P. McConaghy, Department of Attorney General.
   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 Superi- or 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.

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 post-conviction 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.  