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Supreme Court
No. 2004-314-C.A.
(W3/03-106A)
(W2/02-171A)
State                                                                                               :
v.                                                                                                  :
Mark D. Sampson.                                                                                    :
Present:  Williams, C.J., Goldberg, Flaherty, Suttell, and Robinson, JJ.
O P I N I O N
Justice Flaherty, for the Court.  The defendant, Mark D. Sampson, appeals the Superior
Court’s judgment following a probation violation hearing.   As grounds for this appeal, Sampson
argues that the hearing justice erred when he denied a request for a continuance to secure new
counsel, that the hearing justice should have recused, and that it was improper for the hearing
justice to order Sampson to serve three years of his previously suspended sentence, because one
of those years was founded on the justice’s determination that Sampson had testified falsely at
the hearing.   On April 29, 2005, this Court ordered the parties to show cause why these issues
should not summarily be decided.   After considering the parties’ arguments, we conclude that
cause has not been shown and we proceed to decide this case at this time without further briefing
or argument.
I
Facts and History
On June 26, 2002, Sampson pleaded nolo contendere to charges of breaking and entering
and domestic assault.  A Superior Court justice sentenced him to eight years, with nine months to
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serve and the remaining seven years and three months suspended, with probation.    After
Sampson had a domestic dispute with his ex-girlfriend on October 8, 2003, the state presented
him as a violator pursuant to Rule 32(f) of the Superior Court Rules of Criminal Procedure.   On
February 9, 2004, Sampson appeared for a probation revocation hearing in Superior Court, but
the hearing justice postponed the hearing for two days because the state’s witnesses were not
present.1
When Sampson’s violation hearing ultimately commenced on February 11, 2004, Jon
Lovoy, from the Office of the Public Defender, informed the hearing justice that Sampson
wished to personally address the court about a “technical issue.”   The hearing justice denied
defendant’s request because Sampson was represented by counsel; however, Sampson interjected
that he had a conflict of interest with Lovoy.   The hearing justice ordered him to sit, at which
point Sampson became unruly.   Sampson explained that “what I’m asking [Lovoy] to do, he
doesn’t want to do.”   After Sampson refused a further order to be seated, the hearing justice
ordered him removed from the courtroom.
With Sampson outside the courtroom, Lovoy explained that his client believed that he
had been improperly arraigned on charges arising from the domestic dispute.   Lovoy explained
to the hearing justice that he had refused to assert this argument because he was convinced that it
was without merit, nor was it relevant to the violation hearing.   The attorney also informed the
hearing justice that Sampson was dissatisfied with Lovoy’s representation, and further that
Sampson objected to appearing before the hearing justice because the justice recently had
1 The prosecutor informed the court that the probation violation hearing previously had been
delayed because Sampson resisted an interview with the public defender’s office concerning his
finances.   He further stated that a previously scheduled hearing had been delayed because Elisa
Catley, the complaining witness, had complications related to her pregnancy.
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presided over a jury trial involving Sampson’s brother in which a guilty verdict had been
returned.
After hearing Lovoy’s objections, the hearing justice had Sampson returned to the
courtroom, and allowed him to address the arraignment issue and further articulate his objections
with respect to Lovoy’s representation and the hearing justice’s supposed conflict.   Sampson
explained that when Lovoy previously had represented his brother, “he didn’t do his best job.”
After the defendant argued with the hearing justice, and again refused to sit at counsel table, the
justice held Sampson in contempt and he was once again escorted from the courtroom.   After a
short time, Sampson was returned to the courtroom and the hearing justice afforded him a brief
recess to consider whether he would either continue with Lovoy as his attorney or represent
himself.   After pausing to confer with the attorney, Sampson informed the hearing justice that he
was “all set.”  The hearing then commenced with Lovoy in place as Sampson’s counsel.
The incident giving rise to Sampson’s alleged probation violation stems from a domestic
dispute with Elisa Catley, the complaining witness in this case.2   Catley, a mother of five, and
Sampson had had a turbulent, off and on relationship that had produced at least one child. Catley
testified that on the evening of October 8, 2003, when she was six months pregnant, Sampson
drove to her home to retrieve his belongings because the two recently had separated.    In
anticipation of Sampson’s arrival, Catley set some, but not all, of his personal effects outside the
door.   However, when he arrived, Sampson claimed that he wished to retrieve his remaining
property from inside the home.   It his here that the stories of Sampson and Catley began to
diverge.
2   Sampson’s conviction on June 26, 2002, for breaking and entering and assault also involved a
domestic dispute with Catley.  As part of Sampson’s sentence, he was ordered to have no contact
with Catley.   Sampson was arrested on February 26, 2003, for violating the no contact order,
and, on March 13, 2003, Sampson was ordered to serve sixty days for violating his probation.
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According to Sampson, Catley willingly let him inside her home.   He claimed that once
he was inside, she began to scream at him, so he suggested that they go to the bedroom instead of
arguing in front of the children.  According to him, once they were in the bedroom, Catley began
yelling in his face and “trying to grab [his] stuff” as he peacefully tried to collect his belongings,
so he “kind of pushed her to the side.”
Catley’s testimony depicted a strikingly different scene.   She said that Sampson forced
his way into her home.   She also testified that rather than simply pushing her to the side,
Sampson slapped her on the left side of her head, leaving her dizzy and unable to hear in her left
ear, at which point she told him to leave.   After he left, Catley called the South Kingstown
police.   Officer Montafix Houghton’s testimony substantially corroborated Catley’s version of
events.  He testified that when he arrived at Catley’s home, she was trembling and crying, the left
side of her face was red and swollen, and she was having difficulty hearing in her left ear.
Officer Robert Costantino also testified that he met Catley at South County Hospital and
observed that the left side of her face was red.
At the close of testimony, the hearing justice found that Sampson had violated the terms
of his probation.   He continued the hearing for sentencing, and the parties reconvened on March
4, 2004, for that purpose.     In a “memorandum order,”3 the hearing justice found that the state
had presented credible evidence that Sampson was a violator.   He also stated that he believed
Sampson  had  lied  during  the  hearing  because  Sampson’s  testimony  contradicted  Catley’s
corroborated testimony, which the hearing justice believed to be credible.   The hearing justice
3  This Court recently disapproved of courts issuing documents styled memorandum orders
because this is not “‘a recognized title for a judicially authored document in our state court
practice.’”   See Connecticut Valley Homes of East Lyme, Inc. v. Bardsley, 867 A.2d 788, 794
n.7 (R.I. 2005).   However, we recognize that the hearing justice’s order was issued before the
above-cited case was published.
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sentenced Sampson to serve three years of his previously suspended sentence, explaining that
one of the three years was attributable to Sampson’s untruthful testimony at the hearing.
Sampson advances three arguments as grounds for this appeal.   First, Sampson urges that
the hearing justice abused his discretion when he denied Sampson’s request for a continuance to
obtain new counsel.   Second, Sampson maintains that the hearing justice should have recused
due to a conflict of interest.   Finally, Sampson contends that the hearing justice’s belief that
Sampson had testified untruthfully during the hearing was an improper basis for ordering him to
serve  an  additional  year  of  his  previously suspended sentence.    We consider each of his
arguments below.
II
Standard of Review
“[T]his                                                                                              [C]ourt's  review  of  a  hearing  justice's  decision  in  a  probation-violation
proceeding is limited to considering whether the hearing justice acted arbitrarily or capriciously
in finding a violation.”   State v. Rioux, 708 A.2d 895, 897 (R.I. 1998) (citing State v. Sparks,
667 A.2d  1250,  1251-52  (R.I.  1995)).                                                             “It is not the function of this  [C]ourt to weigh the
credibility of witnesses in a probation-violation hearing; that task is for the hearing justice to
perform.”  Id.
III
Discussion
A.  Continuance for Substitution of Counsel
Sampson  maintains  that  the  hearing  justice  improperly  denied  his  request  for  a
continuance to obtain new counsel.   At his hearing, Sampson told the hearing justice that he had
a  conflict  with  Lovoy  because                                                                    “[w]hat  I’m  asking  him  to  do,  he  doesn’t  want  to  do.”
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Specifically, Lovoy refused to raise an issue concerning the propriety of Sampson’s arraignment
because he believed the argument was without merit.   Sampson also expressed dissatisfaction
with Lovoy’s previous representation of Sampson’s brother on a felony charge.   The hearing
justice  disagreed  with  Sampson’s  assessment  of  his  court-appointed  attorney,  noting  that
“[Lovoy] does an outstanding job for his clients” and that he recently  “gave the best final
argument I have ever heard a defense counsel give.”
It is well settled that a decision to grant or deny a defendant’s request for a continuance to
secure new counsel “is left to the sound discretion of the trial justice and will not be disturbed on
appeal absent a clear abuse of discretion.”   State v. Greene, 726 A.2d 471, 472 (R.I. 1999)
(mem.) (citing State v. Bleau, 688 A.2d 642, 645 (R.I. 1995)).   This is especially true in a
probation revocation hearing “where a defendant enjoys the right to counsel, but where due
process rights are limited by virtue of the fact that the defendant has already been convicted of a
crime.”   Id.                                                                                           (citing State v. Desrosiers, 559 A.2d 641, 643 (R.I. 1989)).   In State v. Moran, 699
A.2d 20 (R.I. 1997), this Court outlined some of the factors that a trial justice should consider
when a defendant requests a continuance:
“the promptness of the continuance motion and the length of time
requested; the age and intricacy of the case; the inconvenience to
the parties, witnesses, jurors, counsel, and the court; whether the
request appears to be legitimate or merely contrived foot dragging;
whether the defendant contributed to the circumstances giving rise
to the request; whether the defendant in fact has other competent
and prepared trial counsel ready to pinch-hit; whether there are
multiple codefendants, making calendar control more difficult than
usual; and any other relevant factor made manifest by the record.”
Id. at 26.
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Sampson has not presented this Court with evidence that the hearing justice abused his
discretion or failed to consider these factors.4  Sampson’s request was made after the hearing had
begun, and a last-minute continuance would have been inconvenient for both the witnesses and
the court.   Officers Houghton and Costantino were both present to testify, as was Ms. Catley, a
mother of five children with a two-week old infant.  The legitimacy of Sampson’s request is also
questionable because he did not object to Lovoy’s representation until Lovoy refused to assert an
argument that he believed to be without merit.   Bustamante v. Wall, 866 A.2d 516, 524 (R.I.
2005) (“A defendant is entitled to appointment of an attorney with whom he can communicate
reasonably, but has no right to an attorney who will docilely do as he is told.”) (quoting United
States v. Moore, 706 F.2d 538, 540 (5th Cir.1983)).  Prior to his attorney’s reluctance to placidly
bow to his dubious instructions, Lovoy’s competence was otherwise unquestioned by Sampson.
The public defender appointed to represent defendant in this case was experienced and
highly competent.  He and the other attorneys in the Public Defender’s office are state employees
who dedicate themselves to indigent defense.   We are of the opinion that it is both unreasonable
and unfair to the taxpayers to be expected to underwrite the fees of private counsel based upon a
defendant’s unsupported conjecture about the competence or dedication of the public defender.5
Based on the foregoing, we are satisfied that the hearing justice did not abuse his
discretion in denying Sampson’s requested continuance.
B.  Recusal of Hearing Justice
4 Although we have given the benefit of the doubt to Sampson, we are not convinced that he
properly preserved his objection to going forward with Mr. Lovoy’s representation.   As set forth
above, the hearing justice allowed the defendant to confer with Lovoy after informing him that
he could be represented by the attorney or go forward pro se.   After huddling with Lovoy,
Sampson told the hearing justice that he was “all set,” a comment which, in our opinion, does not
convey a continuing objection.
5    As noted above, the hearing justice had high praise for the public defender in this case.
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Sampson further asserts that the hearing justice erred when he declined to recuse because
he recently had presided over the jury trial of Sampson’s brother.   During the hearing, the
prosecutor mistakenly referred to Sampson using his brother’s first name and, according to
Sampson, it is  “not hard to imagine” that the hearing justice also may have had difficulty
distinguishing Sampson from his brother.   Sampson also contends that “it is not beyond the
realm of possibility” that the recent conviction of his brother affected the hearing justice’s
assessment of defendant’s own credibility.
While the existence of bias or prejudice on behalf of a justice is proper grounds for
recusal, the person seeking recusal bears the burden of establishing a lack of real or apparent
impartiality.   In re Antonio, 612 A.2d 650, 653 (R.I. 1992).   A defendant’s subjective feelings
and unsupported accusations are not sufficient grounds for recusal.   See State v. Lessard, 754
A.2d 756, 759 (R.I. 2000) (mere accusations insufficient to require recusal); State v. Clark, 423
A.2d                                                                                                 1151,   1158                                 (R.I.   1980)   (subjective  feelings  of  defendant  are  not  proper  test  for
                                                                                                             disqualification  of  a  justice).                   Rather,  the  defendant  carries  a                                 “substantial  burden”  of
demonstrating that the justice is “affected by facts and events which were not pertinent nor
before the court.”   In re Yashar, 713 A.2d 787, 790 (R.I. 1998) (quoting State v. Nidever, 120
R.I. 767, 769-70, 390 A.2d 368, 370 (1978)).
Although Sampson contends that it is “not hard to imagine” and “not beyond the realm of
possibility” that his brother’s conviction may have influenced the hearing justice, imagination
and possibility are not the proper standards for establishing bias or prejudice.   Because Sampson
has failed to meet the burden of establishing facts and events that draw the hearing justice’s
impartiality into question, we affirm the hearing justice’s decision not to recuse.
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C.  Length of Sentence
As a final ground for this appeal, Sampson argues that the hearing justice erred when he
ordered him to serve three of the years remaining on his sentence because one of the three years
was based on the justice’s finding that Sampson testified untruthfully at the violation hearing.6  It
does not appear from the record that this issue was properly raised below.   However, even if we
accept that Sampson properly raised and preserved the issue for appeal, his argument on this
issue would be unavailing.   A hearing justice has “wide latitude in deciding whether a probation
violator’s suspended sentence should be removed in whole, in part, or not at all.”   State v.
Tucker, 747 A.2d 451, 454 (R.I. 2000).   We therefore reject Sampson’s argument and affirm the
decision of the hearing justice ordering the defendant to serve three years of his previously
imposed sentence.
IV
Conclusion
Based on the foregoing, the judgment of the Superior Court is affirmed and the papers in
this case are remanded to the Superior Court.
6 The hearing justice stated  “I’m vacating three years of the previously imposed suspended
sentence * * * .   I would indicate to Mr. Sampson that a year of that three years probably is
tenable to his conduct of committing perjury before this Court.”
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Supreme Court
No. 2004-314- C.A.
(W3/03-106A)
(W2/02-171A)
State                                                                        :
v.                                                                           :
Mark D. Sampson.                                                             :
NOTICE:   This opinion is subject to formal revision before publication in
the Rhode Island Reporter.   Readers are requested to notify the Opinion
Analyst, Supreme Court of Rhode Island, 250 Benefit Street, Providence,
Rhode  Island  02903,  at Tel.  222-3258 of any typographical or other
formal errors in order that corrections may be made before the opinion is
published.
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COVER SHEET
TITLE OF CASE:State v. Mark D. Sampson
DOCKET SHEET NO :2004-0314-C.A.
COURT:Supreme
DATE OPINION FILED:October 31, 2005
Appeal from
SOURCE OF APPEAL: SuperiorCounty:  Washington
JUDGE FROM OTHER COURT:    Judge Edwin J. Gale
JUSTICES:Williams, CJ., Goldberg, Flaherty, Suttell, and Robinson, JJ.
WRITTEN BY:Justice Francis X. Flaherty, for the Court
ATTORNEYS:
For Plaintiff :                                                          Lauren S. Zurier, Esq.
ATTORNEYS:
For Defendant:    Paula Rosin, Esq.
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