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March 18, 2026 Get Citation Alerts Download PDF Add Note

State v. Johnny Xaykosy

Supreme Court of Rhode Island

• Citations: None known

• Docket Number: 2023-0255-C.A.

• Opinion

• Authorities (19)

• Cited By (0)

• Summaries (0)

• Similar Cases (12.7K)

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Syllabus

The defendant, Johnny Xaykosy, appealed from a Superior Court judgment of conviction for second-degree murder and discharging a firearm during a crime of violence, resulting in the death of Nikolas DiPanni. The defendant contended that the trial justice erred by refusing to instruct on the lesser-included offense of voluntary manslaughter and that the sentence imposed was excessive. The Supreme Court concluded that the defendant's own testimony failed to suggest he was in fear, terror, or anger that was sufficient to rise to the necessary element of "sudden heat of passion." See State v. Ventre, 811 A.2d 1178, 1184 (R.I. 2002). The Supreme Court further concluded that the defendant's singular statement that he became "terrified" was insufficient to establish that he "acted out of a sudden and uncontrollable passion." See State v. Ruffner, 911 A.2d 680, 688 (R.I. 2006). Therefore, the Supreme Court held that the trial justice did not err in declining to provide an instruction on the lesser-included offense of voluntary manslaughter. With respect to the defendant's contention that the sentence the trial justice imposed was excessive, the Supreme Court determined that the defendant failed to raise this issue pursuant to Rule 35 of the Superior Court Rules of Criminal Procedure. Therefore, the Supreme Court declined to review the merits of the defendant's claim, as it was not properly before the Court. Accordingly, the Supreme Court affirmed the judgment of the Superior Court.

Combined Opinion

Supreme Court

No. 2023-255-C.A.
(P1/21-2390AG)

State :

v. :

Johnny Xaykosy. :

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 Telephone (401) 222-3258 or
Email: opinionanalyst@courts.ri.gov, of any
typographical or other formal errors in order that
corrections may be made before the opinion is published.
Supreme Court

No. 2023-255-C.A.
(P1/21-2390AG)

State :

v. :

Johnny Xaykosy. :

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

OPINION

Justice Goldberg, for the Court. The defendant, Johnny Xaykosy

(defendant or Xaykosy), is before the Court on appeal from a Superior Court

judgment of conviction for second-degree murder and discharging a firearm during

a crime of violence, resulting in the death of Nikolas DiPanni (decedent or

DiPanni).1 Prior to trial, the defendant entered pleas of guilty to two additional gun

charges that did not come before the jury. The defendant contends that the trial

justice erred by refusing to instruct on the lesser-included offense of voluntary

manslaughter; and that the sentence imposed was excessive. For the reasons

1
The spelling of the decedent’s name varies throughout the record. We adopt the
spelling used in the trial transcripts. We intend no disrespect.
-1-
discussed herein, we reject the defendant’s claims of error and affirm the judgment

of conviction.

Facts and Travel

We note at the outset that defendant asserted the defense of self-defense

before the jury. This Court observed in State v. Tribble, 428 A.2d 1079 (R.I. 1981),

that “the very essence of the defense of self-defense is how the defendant perceived

the situation at the time of the incident in question.” Tribble, 428 A.2d at 1085.

Therefore, we focus our analysis on defendant’s trial testimony and supplement the

relevant facts with the testimony of other witnesses.

The evidence at trial was clear, defendant was a longtime drug dealer.

Xaykosy admitted that he had been selling drugs since 2014; and in 2017 he entered

a plea of nolo contendere to a charge of possession with the intent to deliver cocaine,

and he received a sentence of four years suspended, with probation.2 It is also

undisputed that in the late evening of April 22, 2021, defendant fatally shot the

decedent in the chest on the heels of a drug transaction during which he sold cocaine

to Cynthia McLintock (McLintock), a long-time customer, and the decedent’s

girlfriend.

2
At the time of the incident on April 22, 2021, defendant was currently serving his
probationary sentence from the 2017 conviction.
-2-
Earlier in the day, on April 22, 2021, defendant and McLintock arranged a

transaction in which defendant agreed to sell McLintock drugs for DiPanni’s use.

The defendant maintained throughout trial that he did not know the decedent before

the transaction that led to DiPanni’s death on April 22, 2021. Later that evening,

defendant arrived at an agreed-upon location, in a silver Toyota—a vehicle

McLintock recognized from past drug transactions with defendant. McLintock

arrived in a Chevrolet, along with the decedent and their friend, Nicholas Nevola

(Nevola). McLintock exited the Chevrolet and met defendant in his vehicle, where

the two briefly engaged in light conversation. To avoid looking suspicious,

defendant and McLintock proceeded to drive around Providence in order to

consummate the transaction. Apparently, this did not sit well with the decedent.

As they were driving, defendant noticed a vehicle following the Toyota and could

hear an individual screaming. Eventually, McLintock was able to identify DiPanni

as the person yelling loudly.

According to defendant, McLintock used his cell phone to call the decedent,

and he immediately heard a male voice “calling [McLintock] a name and

threatening her.” McLintock kept the device on speakerphone. The defendant

testified that the decedent threatened McLintock, stating that “[h]e was going to

f* * * her up, [and] beat her f* * ing a *,” and he continued to berate McLintock

with expletives. The defendant testified that he told McLintock to tell the decedent

-3-
to relax and that there was a vehicle behind them, at which point, the decedent

exclaimed, “Oh, that’s me, you fat b* * *h.”

After the decedent threatened McLintock, he made additional threats, laden

with expletives, toward defendant. Although defendant maintained that he did not

respond to the decedent’s comments, McLintock testified that “[defendant] had said

to me, ‘I got something for this motherf* * *er,’ and [that the decedent] heard

[defendant] say that.” Although defendant admitted that he said, “I had something

for him,” defendant denied having ever called the decedent the profanity. The

defendant testified that he intended to bribe the decedent with more cocaine in order

to calm him down because he was worried about the threats the decedent made

toward McLintock. Knowing DiPanni was upset, defendant testified that prior to

McLintock exiting the vehicle, he promised her that he would not get out of his

vehicle, nor would he fight with the decedent.

At trial, defense counsel presented a surveillance video of defendant’s

vehicle during the transaction and shortly thereafter. According to defendant, once

McLintock had the drugs in hand, he brought his vehicle to a complete stop, with

his foot on the brake. McLintock returned defendant’s cell phone and paid cash for

the drugs. Once McLintock exited the vehicle, defendant kept his foot on the

brake—never placing the vehicle in park—and began counting the cash proceeds.

The defendant related that he was “relaxed the whole time.” Meanwhile, after

-4-
McLintock exited his vehicle, he could hear the decedent’s screams become louder

as the decedent approached his vehicle. With his foot on the brake, defendant

locked his doors, but opened the window on the passenger side in order to “defuse

the situation because [McLintock] clearly didn’t defuse it.” The decedent

approached defendant’s passenger door, grabbed the handle of the locked vehicle,

and yelled “I’ll f* * ing kill you” and “Get out of the f * *ing car, tough guy.”

Moments later, defendant testified, he became terrified when he saw what he

believed to be a firearm in the decedent’s right hand; so he reached down, grabbed

his own firearm, and fired one shot in the direction of the decedent.3

It was then that defendant fled the scene, tossed the firearm into “a wooded

area * * * [w]ithin like Providence/Cranston borderline,” and headed straight home.

The defendant did not make an emergency call to 911 at the scene, nor upon

returning home. In fact, when he arrived home, defendant emptied his vehicle of

his drug supply, searched for shell casings, and disposed of the single shell casing

that was ejected upon firing. According to defendant, he was unaware the decedent

3
At trial, defendant testified that as the decedent approached his vehicle, he noticed
the decedent holding an object in his right hand, and that it “seem[ed] like [he was]
concealing something, and I thought it was a gun.” According to Providence Police
Detective Thomas Richards, a bottle of Dunkin’ Donuts creamer was found at the
scene. Nonetheless, defendant maintained that he could not identify the item, stating
“I thought it was a gun. That’s the first thing I thought of” because “[the decedent]
just threatened me that he was going to f* * *ing kill me.”

-5-
had died until he saw the news the next day. Despite learning of the decedent’s

death, Xaykosy never turned himself into the police because, he claimed, he “wasn’t

in the right state of mind. [He] was still shocked.”

On the evening of April 23, 2021, the day after the homicide, police officers

found Xaykosy driving around Providence; and he was arrested. The defendant

subsequently was indicted by a grand jury and charged with four counts—murder;

discharging a firearm while committing a crime of violence, to wit, murder;

carrying a pistol without a license; and possession of a firearm having been

previously convicted of a crime of violence. As noted, Xaykosy pled guilty to

counts 3 and 4 before trial but also acknowledged the pleas during his trial.

At the close of evidence, defendant requested a voluntary manslaughter

instruction. With explicit findings, the trial justice denied defendant’s request,

concluding:

“The record before me demonstrates that the defendant
was very calm and well collected. By his own testimony,
he boasted on direct examination that he was ‘relaxed the
whole time.’ Even when [the decedent], although he knew
him only as [McLintock’s] friend or boyfriend, was
screaming and unnerving [McLintock], the defendant told
her, ‘Relax. It’s not a big deal,’ trying to calm her down.

“Indeed, he explained his comment, ‘I have something for
him’ ‘excluding the motherf’er’ sobriquet[], as not at all
retaliation with his weapon, but instead some extra cocaine
to placate [the decedent].

-6-
“Returning to [State v. Ruffner, 911 A.2d 680 (R.I. 2006)],
I repeat what the Court said there, ‘An act of self-defense
can be committed cooly [sic] and deliberately. By
contrast, a claim of heat of passion presupposes that the
defendant had acted unreasonably on account of intense
emotional excitement.’ It’s [Ruffner, 911 A.2d at 688 n.3].

“I do not find that ‘intense emotional excitement’ here in
this case. When [the decedent] approached the
defendant’s car, Mr. Xaykosy was not at all distracted or
disturbed by [the decedent’s] prior hollering. Instead, the
defendant was apparently simply relieved to have his cell
phone returned, and otherwise simply sat in his car
counting the proceeds of the cocaine sales he just
completed with [McLintock], instead of driving away, as
he said he could have, without obstruction. * * *

“But under my sense of the record, as a front-row
observer, there was no adequate provocation as, after all,
the defendant did not appear or recount that he had been
particularly, if at all, very bothered or concerned about [the
decedent’s] yelling. The defendant was only concerned
with [McLintock’s] well-being rather than his own.

“He recounted that he was relaxed, he tried to calm
[McLintock] down, and he even was ready to offer
DiPanni extra cocaine as a way to defuse the situation
* * *.”

In reliance on State v. Garcia, 883 A.2d 1131 (R.I. 2005), and State v.

Winston, 105 R.I. 447, 252 A.2d 354 (1969), the trial justice concluded that there

was “neither the requisite adequate provocation nor the heat of passion which are

essential predicates for a voluntary manslaughter instruction, and I shall therefore

not offer it to the jury.” Defense counsel objected to the trial justice’s ruling.

-7-
A jury found defendant guilty of second-degree murder and discharging a

firearm during a crime of violence, to wit, murder, resulting in the death of DiPanni.

With respect to count 1, the trial justice sentenced Xaykosy to life in prison for

second-degree murder; and as to count 2, Xaykosy was sentenced to serve a second

consecutive life sentence for using a firearm to commit murder. On count 3,

defendant was sentenced to serve an additional ten years suspended and ten years

of probation, consecutive to count 4 to which defendant was sentenced to serve five

years, consecutive to count 2. The defendant filed a premature but valid notice of

appeal on April 18, 2023.4 Thereafter, a judgment of conviction entered on April

19, 2023. Additional relevant facts will be set forth as necessary.

Standard of Review
“This Court reviews ‘jury instructions on a de novo basis.’” State v. Isom, 251

A.3d 1, 6 (R.I. 2021) (quoting State v. Ros, 973 A.2d 1148, 1166 (R.I. 2009)). “It is

well established that, on review, we examine jury instructions in their entirety to

ascertain the manner in which a jury of ordinary intelligent lay people would have

understood them.” Id. (quoting Ros, 973 A.2d at 1166). “This Court will not

examine a single sentence apart from the rest of the instructions, but rather the

4
“[T]his Court will treat a premature appeal as timely filed.” State v. Forlasto, 217
A.3d 489, 492 n.4 (R.I. 2019) (quoting State v. Diamante, 83 A.3d 546, 548 n.5 (R.I.
2014)).
-8-
challenged portions must be examined in the context in which they were

rendered.” Id. (quoting Ros, 973 A.2d at 1166).

Analysis

Voluntary Manslaughter Instruction

On appeal, defendant argues that the trial justice erred as a matter of law in

denying his request for an instruction on voluntary manslaughter. Xaykosy relies

on the recent case of State v. Esdel, 317 A.3d 756 (R.I. 2024), asserting that the

facts presented in the case at bar are analogous to the facts presented in Esdel and

that the trial justice ignored the fact that the decedent approached defendant’s car

with what appeared to be a firearm. Therefore, defendant argues, the trial justice

erred in refusing to instruct on voluntary manslaughter. The defendant is mistaken.

“When determining whether a trial justice’s refusal to give an instruction was

warranted, ‘this Court will examine the record in the case and determine whether the

evidence justifies such an instruction.’” State v. Fry, 130 A.3d 812, 820 (R.I. 2016)

(quoting State v. Motyka, 893 A.2d 267, 281 (R.I. 2006)). “In making this

determination, our review is limited to ‘ascertaining whether an actual and adequate

dispute exists as to the distinguishing element between the lesser and greater

offenses in question.’” Id. (quoting Motyka, 893 A.2d at 281). In State v. Gautier,

950 A.2d 400 (R.I. 2008), we observed that, “[i]n determining whether the evidence

calls for a lesser-included-offense instruction, the trial justice should not weigh the

-9-
credibility of the testimony; rather, he or she should consider whether, at the very

least, some minimal evidence exists that, if credited by the jury, could support a

conviction for the lesser-included offense.” Gautier, 950 A.2d at 414 (emphasis

added) (quoting State v. McGuy, 841 A.2d 1109, 1112 (R.I. 2003)).

“A trial justice commits prejudicial error when he or she refuses to give a

jury instruction that the evidence entitles the defendant to receive.” McGuy, 841

A.2d at 1112. On the other hand, this Court has also stated that a trial justice “should

not instruct the jury on a lesser-included offense when the evidence wholly fails to

support such a charge.” Id.

In Ruffner, this Court recognized that the element of malice aforethought is

the distinguishing factor between voluntary manslaughter and murder. See Ruffner,

911 A.2d at 686. “Murder, both first and second degree, is ‘the unlawful killing of

a human being with malice aforethought.’” Id. (brackets omitted) (quoting G.L. 1956

§ 11-23-1). Whereas “[v]oluntary manslaughter is a lesser-included offense within

the crime of murder, and is defined as ‘an intentional homicide without malice

aforethought committed in a sudden heat of passion as a result of adequate legal

provocation.’” Id. (emphasis added) (brackets omitted) (quoting State v. Ortiz, 824

A.2d 473, 486 (R.I. 2003)).

“Voluntary manslaughter is an intentional homicide that does not include the

element of malice aforethought by reason of one or more mitigating factors.” State

• 10 - v. Ventre, 811 A.2d 1178, 1184 (R.I. 2002). “The usual view of voluntary

manslaughter thus presupposes an intent to kill (or perhaps an intent to do serious

injury or to engage in very reckless conduct), holding that in spite of the existence

of this bad intent the circumstances may reduce the homicide to manslaughter.”

Ortiz, 824 A.2d at 486 (quoting Wayne R. LaFave, Criminal Law § 7.10(a) at 704

(3d ed. 2000)). Significantly, however, conduct that is wanton and reckless also

“can supply the element of malice that is necessary to raise homicide to the level of

common-law murder.” State v. Iovino, 524 A.2d 556, 558 (R.I. 1987). This is so

because malice aforethought “consists of an unjustified disregard for the possibility

of death or great bodily harm and an extreme indifference to the sanctity of human

life.” State v. McGranahan, 415 A.2d 1298, 1302 (R.I. 1980).

In order for a homicide to amount to voluntary manslaughter, the element of

adequate provocation, which “arises, inter alia, when the defendant reasonably fears

imminent death or serious bodily harm,” must be present. See Ruffner, 911 A.2d at

686. This Court has stated that “[h]eat-of-passion manslaughter exists when: ‘(1)

the provocation is so gross as to cause the ordinary reasonable man to lose his

self-control and to use violence with fatal results, and (2) the defendant is deprived

of his self-control under the stress of such provocation and committed the crime

while so deprived.’” Id. (brackets and deletions omitted) (quoting Garcia, 883 A.2d

at 1137-38). We also recognize that “heat of passion may be aroused by fear and

• 11 - terror as well as anger.” Ventre, 811 A.2d at 1184 (brackets omitted) (quoting State

v. Fetzik, 577 A.2d 990, 995 (R.I. 1990)).

In Esdel, the defendant was stopped at a traffic light at an intersection in

Pawtucket. See Esdel, 317 A.3d at 761. He was trapped when the vehicles

surrounding him “came to an abrupt stop; [and] several individuals—some of whom

were armed—exited their vehicles, and quickly surrounded defendant, who

remained inside his vehicle.” Id. Within seconds, Esdel was encircled by several

individuals, and he testified that he “felt boxed in,” and “cornered,” believing that

“[his] life was over at that point.” Id. at 763. He reached into his bag, grabbed a

revolver, and raised his right arm, firing a single shot out the passenger side

window, killing the decedent. Id. at 761. In addition to Esdel’s testimony, a video

from a Grubhub food delivery driver, who witnessed the altercation, was presented

to the jury, evidencing the approximately four to five vehicles surrounding Esdel’s

vehicle. Id. at 761 n.2.

In light of this evidence, this Court recognized that “[t]he credibility of

[Esdel’s] testimony is committed to the jury; and, if believed, this evidence can

serve to negate the element of malice aforethought for second-degree murder.”

Esdel, 317 A.3d at 768. “With respect to the element of ‘sudden heat of passion,’”

we further concluded that if believed, there was “more than a scintilla of evidence

that defendant acted in a sudden heat of passion prompted by fear such that a jury

• 12 - could find defendant was so ‘deprived of his self-control’ under the stress of such

provocation that led him to quickly lean over to * * * grab the revolver, and let off

a single warning shot.” Id. at 768-69.

Contrary to defendant’s arguments, Esdel is distinguishable. The evidence in

Esdel indicated that the defendant was in fear for his life and that “the decedent’s

prior hostile history with [the] defendant—who was known to carry a firearm—are

factors that could lead [Esdel] to fire the weapon in the heat of passion on sudden

provocation.” Esdel, 317 A.3d at 769. The evidence in this case does not correspond

to the facts in Esdel. We conclude that Xaykosy’s testimony fails to present

sufficient evidence to support a finding that he acted in a sudden heat of passion as

a result of adequate provocation. See id. at 766.

Significantly, the facts in Esdel suggest that bad blood existed between the

defendant and the decedent, who made a threat to kill the defendant on a prior

occasion. See Esdel, 317 A.3d at 769. This served as “minimal evidence” necessary

to support a conviction for voluntary manslaughter. Id. (emphasis omitted); see also

Gautier, 950 A.2d at 414. In the case at bar, there was no prior relationship between

defendant and the decedent; nor was there any evidence at trial that the decedent

made any threats toward defendant before their fateful encounter.

• 13 - Turning to the events leading to the shooting, we are of the opinion that

evidence to support the element of adequate provocation, sufficient to warrant an

instruction for voluntary manslaughter, is lacking.

On the evening of April 22, 2021, McLintock and defendant drove around

Providence near Allens Avenue to complete their transaction. During the drive,

defendant testified that McLintock borrowed his cell phone to call the decedent.

The decedent quickly answered the call and began threatening McLintock, stating

that he was going to beat her, lacing his threats with expletives. He also threatened

to “f* * * [defendant] up” and smash his windows with even more expletives. The

defendant heard these threats because the phone call was on speakerphone. Yet

defendant did not respond to the decedent’s verbal threats, but instead, suggested

McLintock tell him “to relax” and that “[t]here [was] a car behind us” to which the

decedent responded, “Oh, that’s me, you fat b* * *h.” Once the transaction was

consummated, defendant testified that he promised McLintock that he would

remain in the vehicle, stating something to the effect of “I [have] something for him

• * *.” The defendant testified that he kept his foot on the brake, never placing the

vehicle in park, and remained in his vehicle to count the proceeds. While counting

his cash, defendant heard the decedent yelling, and as he drew near, defendant

locked his doors, and rolled down the window so as to “defuse the situation because

[McLintock] clearly didn’t defuse it.” The decedent reached for defendant’s door

• 14 - handle, and threatened defendant, stating “I’ll f* * *ing kill you,” and “Get out of

the f* * *ing car, tough guy.” It was at this moment, defendant testified, that he

became terrified and saw what he believed to be a weapon in the decedent’s right

hand. Xaykosy reached down, grabbed his firearm, and without looking at the

decedent, he fired one shot toward the decedent. It was after he fired his weapon

that defendant took his foot off the brake, and fled the scene.

In reviewing defendant’s testimony, we “apply an objective standard to

determine whether an alleged provocation is legally sufficient” to warrant an

instruction on voluntary manslaughter. See McGuy, 841 A.2d at 1113. Based on

these facts, we are satisfied that the trial justice appropriately denied defendant’s

request for a voluntary manslaughter instruction.

The facts this Court considered in Esdel to determine whether an instruction

of voluntary manslaughter was warranted differ from the facts and circumstances

presented here. The defendant was calmly counting his money, there were no prior

threats or bad blood between these individuals, and defendant had a clear means of

escape. Therefore, it is our view that the trial justice did not err when he determined

that there was insufficient evidence to support a finding of adequate provocation or

sudden heat of passion.

We further observe that defendant’s own testimony defeats the necessary

element of “sudden heat of passion.” The defendant’s testimony fails to suggest

• 15 - that he was “aroused by fear and terror as well as anger” while he was calmly

counting his money. See Ventre, 811 A.2d at 1184 (quoting Fetzik, 577 A.2d at

995). Again, despite defendant’s singular statement that he became “terrified” as

the decedent approached his vehicle, he opened the window and never took his foot

off the brake. Therefore, defendant’s statement that he was “terrified” is not

sufficient to establish that he “acted out of a sudden and uncontrollable passion.”

Ruffner, 911 A.2d at 688.

“[T]his Court has repeatedly recognized that ‘a trial justice is not required to

instruct the jury on a lesser-included offense when the evidence presented at trial

completely fails to support such a charge.’” Fry, 130 A.3d at 820 (brackets omitted)

(quoting Motyka, 893 A.2d at 285). Accordingly, the trial justice did not err when

he rejected defendant’s request to give a voluntary manslaughter instruction to the

jury.

The Sentencing

The defendant raises a second issue on appeal, arguing that the trial justice

erred by imposing an excessive sentence. The defendant contends that the life

sentence on the second-degree murder conviction was discretionary and that,

therefore, when the trial justice imposed such sentence he erred. The defendant

seeks to distinguish murder in the first degree from that of murder in the second

degree. In State v. Monteiro, 924 A.2d 784 (R.I. 2007), this Court upheld the

• 16 - constitutionality of mandatory consecutive life sentences in the context of a

first-degree murder. See Monteiro, 924 A.2d at 795. The defendant asserts that this

is a case of first impression because this Court has not yet addressed consecutive

life sentences within the context of murder in the second degree. The state objects

on the ground that defendant does not contend that the life sentence for the

second-degree murder conviction was illegal or unconstitutional. Significantly, the

state further asserts that defendant’s argument, that the trial justice erred by

imposing an excessive sentence, is not ripe for this Court’s review. We agree.

This Court has often declared “that the appropriate procedure for challenging

an improper or illegal sentence is to seek a revision of that sentence initially in the

Superior Court pursuant to Rule 35 of the Superior Court Rules of Criminal

Procedure.” State v. Ducharme, 601 A.2d 937, 946 (R.I. 1991) (emphasis added);

see also Super. R. Crim. P. 35. “In the absence of such a motion and determination

thereof in the Superior Court, this [C]ourt will not consider issues involving the

legality or propriety of a sentence.” State v. Bucci, 430 A.2d 746, 749 (R.I. 1981);

see also State v. Lee, 502 A.2d 332, 335 (R.I. 1985) (“This [C]ourt has

unequivocally stated that the appropriate procedure for challenging an improperly

or illegally imposed sentence is not to appeal directly to the Supreme Court but to

seek revision of the sentence initially in the Superior Court under [Rule 35].”).

• 17 - Because the defendant failed to raise a Rule 35 motion before a justice of the

Superior Court, we “will not consider issues involving the legality or propriety” of

the sentence imposed by the trial justice. See Bucci, 430 A.2d at 749. To the extent

the defendant maintains his conviction and sentence are constitutionally infirm, an

application for postconviction relief is the proper avenue of relief. Therefore, the

defendant’s appellate argument concerning his sentence is not properly before this

Court.

Conclusion

For the reasons stated, we affirm the judgment of conviction. The papers in

this case may be remanded to the Superior Court.

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

OPINION COVER SHEET

Title of Case State v. Johnny Xaykosy.

No. 2023-255-C.A.
Case Number
(P1/21-2390AG)

Date Opinion Filed March 18, 2026

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

Written By Associate Justice Maureen McKenna Goldberg

Source of Appeal Providence County Superior Court

Judicial Officer from Lower Court Associate Justice Robert D. Krause

For State:

Christopher R. Bush
Attorney(s) on Appeal Department of Attorney General
For Defendant:

Michael S. Pezzullo, Esq.