Hernandezv.State

STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS PROVIDENCE, SC. SUPERIOR COURTJun 7, 2019
C.A. No. PM-2019-0735 (R.I. Super. Jun. 7, 2019)

C.A. No. PM-2019-0735

06-07-2019

JAMES HERNANDEZ v. STATE OF RHODE ISLAND

ATTORNEYS: For Plaintiff: Glenn Sparr, Esq. For Defendant: Judy Davis, Esq.


DECISION K. RODGERS , J. Before this Court is James Hernandez's (Petitioner) Application for Post-Conviction Relief (Application). Petitioner asserts that his convictions should be vacated because the statutes under which he was convicted in State of Rhode Island v. James Hernandez, P2-2006-1354A and State of Rhode Island v. James Hernandez, P1-2018-1450A (the underlying criminal cases) are unconstitutional in that they fail to describe a crime and prescribe a penalty therein.

This Court's jurisdiction is pursuant to G.L. 1956 § 10-9.1-1. Having reviewed the parties' memoranda, and for the reasons set forth below, this Court finds that Petitioner's convictions were not unconstitutional. Accordingly, Petitioner's Application is denied.

I

Facts and Travel

On April 28, 2006, in State v. James Hernandez, P2-2006-1354A, Petitioner was charged by criminal information with seven counts: two counts of second degree child molestation under G.L. 1956 §§ 11-37-8.3 and 11-37-8.4, alleged to have occurred between June 29 and December 31, 2004; two counts of second degree child molestation under G.L. 1956 §§ 11-37-8.3 and 11-37-8.4, alleged to have occurred between January 1 and June 27, 2005; one count of third degree sexual assault under §§ 11-37-6 and 11-37-7, alleged to have occurred between July 1 and September 1, 2005; and two counts of second degree sexual assault under §§ 11-37-4 and 11-37-5, alleged to have occurred on October 30, 2005 and between March 30, 1998 and March 30, 1999, respectively. On June 13, 2007, Petitioner pled nolo contendere to one count of second degree child molestation that occurred between June 29 and December 31, 2004; one count of second degree child molestation that occurred between January 1 and June 27, 2005; two counts of second degree sexual assault, and one count of third degree sexual assault. The remaining two counts were dismissed pursuant to Super. R. Crim. P. 48(a). As to each of the counts of second degree child molestation and second degree sexual assault, he was sentenced to nine years suspended, with probation and various other conditions. As to the count of third degree sexual assault, he was sentenced to five years suspended, with probation. The trial justice ordered each sentence to be served concurrently.

On December 11, 2015, Petitioner was charged by the Barrington Police with two counts of first degree child molestation in violation of § 11-37-8.1. See State of Rhode Island v. James Hernandez, Criminal Complaint 62-15-13018. On or about May 31, 2018, Petitioner submitted a petition to waive indictment for those two counts of first degree child molestation. Immediately thereafter, Count one charging Petitioner with first degree child molestation was amended to first degree sexual assault under § 11-37-2. On June 4, 2018, Petitioner pled nolo contendere to one count of first degree sexual assault, and the second count of first degree child molestation was dismissed pursuant to Super. R. Crim. P. 48(a). On the same date, he was sentenced to twenty-five years, with four years and six months to serve at the ACI, the balance of twenty years and six months suspended, with probation and various other conditions.

Petitioner's suspended and probationary sentence that was imposed following his June 13, 2007 plea in State v. James Hernandez, P2-2006-1354A was violated as a result of the December 11, 2015 charges. Three years of his previously suspended sentence was removed and he was ordered to serve that time at the Adult Correctional Institutions (the ACI).

The waiver form appears to be executed by the Petitioner on May 31, 2018, although it was not accepted by the trial justice until June 4, 2018. The waiver form does not specify the offense dates where indicated, and the criminal complaint also fails to identify the alleged offense dates of either count of first degree child molestation. Petitioner has not raised any issues in the instant action that would warrant confirmation of the offense dates in order to decide this matter.

On November 2, 2018, Petitioner filed a single pro se Motion to Vacate Judgment of Conviction in both underlying criminal cases, together with a supporting memorandum asking this Court to vacate his convictions for first degree sexual assault, second degree sexual assault, third degree sexual assault, and second degree child molestation pursuant to Rule 35 of the Superior Court Rules of Criminal Procedure, alleging that his convictions are unconstitutional. On January 8, 2019, by agreement of the Office of the Attorney General and Petitioner's court-appointed counsel, this Court ordered Petitioner's Motion to Vacate to be converted to the instant Petition for Post-Conviction Relief in order that his request under Rule 35 would not suffer the same fate as in State v. Linde, 965 A.2d 415, 416 n.2 (R.I. 2009) (refusing to reach merits of a constitutional challenge in the context of a Rule 35 motion to correct an illegal sentence).

With the agreement of the Attorney General and by Order dated February 22, 2019, this Court limited all arguments to "the constitutionality of a criminal statute which allegedly fails to state what constitutes the crime alleged and/or fails to provide for a penalty thereunder," and expressly allowed Petitioner to preserve his right to file one application for post-conviction relief in each underlying criminal case subsequent to the instant Petition without the State raising the affirmative defenses of res judicata and/or laches, if Petitioner is so inclined to raise different issues in any such subsequent petition relating to either or both underlying criminal cases.

This Court has been tasked with adjudicating the largely identical arguments raised by approximately ninety defendants to date who are serving time at the ACI for offenses including, but not limited to, varying degrees of sexual assault and child molestation, murder, kidnapping, robbery, indecent solicitation, and assault with intent to commit specified felonies. Indeed, the large majority of the filings in each of the roughly ninety cases appear to be the same photocopies of Petitioner's original filing herein with spaces provided to "fill in the blank" for information pertinent to this Petitioner, or a similar argument with similar citations. In many instances, the trial justice presiding over the respective cases is still an active member of the bench, and there may be meritorious issues that said trial justice would be required to adjudicate outside this Court's purview. Accordingly, this Court—with the State's agreement—has carved out the constitutional issues raised by this Petitioner and others from other matters that have been or may be raised in an application for post-conviction relief. It is with this context in mind that this Court—with the State's agreement—ordered that each petitioner should be permitted to raise the constitutional issue addressed herein without losing his one bite at the proverbial post-conviction relief apple in each underlying criminal case.

On March 12, 2019, Petitioner's court-appointed counsel filed a Supplemental Memorandum in Support of Petitioner's Application for Post-Conviction Relief. The State filed an objection and supporting memorandum thereto on March 29, 2019. On May 24, 2019, the Court provided notice to the State and Petitioner's court-appointed counsel that Petitioner's request for relief would be considered by this Court in the context of a summary disposition. The parties thereafter acknowledged that an evidentiary hearing was unnecessary to resolve the issues before this Court.

II

Standard of Review

Under § 10-9.1-1, any person who has been convicted of a crime may file an application for post-conviction relief to challenge the constitutionality of his or her conviction. Sec. 10-9.1-1(a)(1). Unlike the proceedings afforded to Petitioner for his underlying conviction, post-conviction relief motions are civil in nature. Brown v. State, 32 A.3d 901, 908 (R.I. 2011). Accordingly, the applicant bears "'the burden of proving, by a preponderance of the evidence, that such [postconviction] relief is warranted.'" Motyka v. State, 172 A.3d 1203, 1205 (R.I. 2017) (quoting Anderson v. State, 45 A.3d 594, 601 (R.I. 2012)). Additionally, because Petitioner challenges the constitutionality of his conviction, Petitioner has the heightened burden of demonstrating unconstitutionality beyond a reasonable doubt. See State v. Beck, 114 R.I. 74, 77, 329 A.2d 190, 193 (1974).

When ruling on an application for post-conviction relief, if the court considers matters outside the pleadings, the court should "treat the [party's] motion as though it were a motion for summary disposition" as opposed to a motion to dismiss. Palmigiano v. State, 120 R.I. 402, 406, 387 A.2d 1382, 1385 (1978). As will be discussed, this Court has considered Petitioner's criminal information, waiver, and plea forms, which are outside the pleadings in the instant civil action. Accordingly, this Court will review Petitioner's Application in the context of a summary disposition motion under § 10-9.1-6(c), which "'closely resembles' a grant of summary judgment under Rule 56 of the Superior Court Rules of Civil Procedure." Reyes v. State, 141 A.3d 644, 652 (R.I. 2016) (quoting Palmigiano, 120 R.I. at 405, 387 A.2d at 1384).

Under § 10-9.1-6(c), the court may grant summary disposition when it finds, based on "the pleadings, depositions, answers to interrogatories, and admissions and agreements of fact, together with any affidavits submitted, that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Sec. 10-9.1-6(c). The standard for granting summary disposition on an application for post-conviction relief is the same as in granting summary judgment under Super. R. Civ. P. 56(c)—the "trial justice must consider the affidavits and pleadings . . . in the light most favorable to the party against whom the motion is made." Palmigiano, 120 R.I. at 406, 387 A.2d at 1385. The trial justice may not resolve genuine issues of material fact or adjudge the weight or credibility of the evidence. Reyes, 141 A.3d at 653.

II

Analysis

Petitioner asserts that his convictions violated his due process rights under both the Fifth and Fourteenth Amendments of the United States Constitution and article I, section 10 of the Rhode Island Constitution because the statutes of conviction, §§ 11-37-2, 11-37-4, 11-37-6, and 11-37-8.3, fail to state what conduct qualifies as a crime and fail to provide penalties. In response, the State contends that Petitioner cannot prove that §§ 11-37-2, 11-37-4, 11-37-6, and 11-37-8.3 are unconstitutional beyond a reasonable doubt because Chapter 37 of Title 11 of the Rhode Island General Laws, when read as a whole, clearly and unambiguously provides a description of the criminalized conduct and states the penalties for each crime.

Petitioner was convicted of one count of first degree sexual assault in violation of § 11-37-2. Section 11-37-2 provides:

Petitioner does not contend that any other version of § 11-37-2 is applicable here. In the absence of a specific date of the offense to which he pled nolo contendere to first degree sexual assault on June 4, 2018, this Court will apply the current version of the statute.

"A person is guilty of first degree sexual assault if he or she engages in sexual penetration with another person, and if any of the following circumstances exist:


"(1) The accused, not being the spouse, knows or has reason to know that the victim is mentally incapacitated, mentally disabled, or physically helpless.

"(2) The accused uses force or coercion.

"(3) The accused, through concealment or by the element of surprise, is able to overcome the victim.

"(4) The accused engages in the medical treatment or examination of the victim for the purpose of sexual arousal, gratification, or stimulation." Sec. 11-37-2.


The term "sexual penetration," as used throughout Title 11, Chapter 37 has been defined in § 11-37-1 as:

"sexual intercourse, cunnilingus, fellatio, and anal intercourse, or any other intrusion, however slight, by any part of a person's body or by any object into the genital or anal openings of another person's body, or the victim's own body upon the accused's instruction, but emission of semen is not required." Sec. 11-37-1(8).


The penalty for first degree sexual assault is set forth in § 11-37-3, which states:

"Every person who shall commit sexual assault in the first degree shall be imprisoned for a period not less than ten (10) years and may be imprisoned for life." Sec. 11-37-3.


Petitioner was also convicted of two counts of second degree sexual assault in violation of § 11-37-4. Section 11-37-4 provides:

Section 11-37-4 has been amended since October 30 2005 and March 30, 1998 through March 30, 1999, the date and date ranges of the offenses to which he pled nolo contendere. P.L. 2014, ch. 157, § 1, effective June 23, 2014; P.L. 2014, ch. 164, § 1, effective June 23, 2014. Thus, this Court will refer only to the earlier version of the statute in effect at that time.

"A person is guilty of a second degree sexual assault if he or she engages in sexual contact with another person and if any of the following circumstances exist:


"(1) The accused knows or has reason to know that the victim is mentally incapacitated, mentally disabled or physically helpless.

"(2) The accused uses force or coercion.

"(3) The accused engages in the medical treatment or examination of the victim for the purpose of sexual arousal, gratification or stimulation." Sec. 11-37-4.


The term "sexual contact" as used throughout Title 11, Chapter 37 has been defined in § 11-37-1 as:

"the intentional touching of the victim's or accused's intimate parts, clothed or unclothed, if that intentional touching can be

reasonably construed as intended by the accused to be for the purpose of sexual arousal, gratification, or assault." Sec. 11-37-1(7).


The penalty for second degree sexual assault is set forth in § 11-37-5, which at all material times has provided:

"Every person who shall commit sexual assault in the second degree shall be imprisoned for not less than three (3) years and not more than fifteen (15) years." Sec. 11-37-5.


Petitioner was also convicted of two counts of second degree child molestation in violation of § 11-37-8.3. Section 11-37-8.3 provides:

"A person is guilty of a second degree child molestation sexual assault if he or she engages in sexual contact with another person fourteen (14) years of age or under." Sec. 11-37-8.3.


The penalty for second degree child molestation is set forth in § 11-37-8.4, which at all material times has provided:

"Every person who shall commit second degree child molestation sexual assault shall be imprisoned for not less than six (6) years nor more than thirty (30) years." Sec. 11-37-8.4.


Finally, Petitioner was convicted of one count of third degree sexual assault in violation of § 11-37-6. Section 11-37-6 provides:

"A person is guilty of third degree sexual assault if he or she is over the age of eighteen (18) years and engaged in sexual penetration with another person over the age of fourteen (14) years and under the age of consent, sixteen (16) years of age." Sec. 11-37-6.


The penalty for third degree sexual assault is set forth in § 11-37-7, which at all material times has provided:

"Every person who shall commit sexual assault in the third degree shall be imprisoned for not more than five (5) years." Sec. 11-37-7.


As previously noted, in P2-2006-1354A, Petitioner was charged in the criminal information of violating §§ 11-37-4 and 11-37-5, §§ 11-37-6 and 11-37-7, as well as §§ 11-37-8.3 and 11-37.8.4.

A

Statutory Construction and Due Process

The due process clauses of both the Fifth and Fourteenth Amendments of the United States Constitution and article I, section 10 of the Rhode Island Constitution provide that no person "shall . . . be deprived of life, liberty, or property" without being afforded due process of law. For a criminal statute to comply with constitutional due process requirements, "fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed." McBoyle v. United States, 283 U.S. 25, 27 (1931); see also United States v. Lanier, 520 U.S. 259, 265 (1997). The test to determine if a criminal statute provides sufficient notice is whether '"that law[] give[s] the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly."' State v. Russell, 890 A.2d 453, 460 (R.I. 2006) (quoting Grayned v. City of Rockford, 408 U.S. 104, 108 (1972)). Thus, it falls upon the Legislature to adequately describe both '"the forbidden conduct and a prescribed penalty."' State v. Maxie, 187 A.3d 330, 340 (R.I. 2018) (quoting 1 Wayne R. LaFave et al., Substantive Criminal Law § 1.2(d) at 18 (3d ed. Oct. 2018 update)).

This case is not a void for vagueness case. The issue before this Court is simply whether or not having a penalty provision in a statute following the statute setting forth the proscribed conduct is constitutional. To that end, our Supreme Court has made it clear that if a statute does not provide a penalty, a conviction under the statute cannot stand. State v. DelBonis, 862 A.2d 760, 768 (R.I. 2004) (dismissing a defendant's conviction because the statute failed to provide a penalty for specific conduct for which defendant was charged); State v. Berberian, 112 R.I. 745, 315 A.2d 743 (1974) (dismissing a defendant's conviction when the city never established a schedule of fines for parking violations); State v. Tessier, 100 R.I. 210, 211, 213 A.2d 699, 699 (1965) (dismissing a defendant's conviction for violating a city ordinance because "the ordinance as it appears on the record before [the court] d[id] not fix a penalty"). Additionally, the court may not step into the shoes of the Legislature to fill in gaps. Maxie, 187 A.3d at 341 ("This Court does not draft laws, it interprets and construes them. We simply cannot construe that which is not there to be construed."); DelBonis, 862 A.2d at 768 ("No authority exists for this Court or the trial court in a criminal case 'to supplement or to amend a statute enacted by the General Assembly.'"); see also United States v. Evans, 333 U.S. 483, 486 (1948) (holding that "[i]n our system, so far at least as concerns the federal powers, defining crimes and fixing penalties are legislative, not judicial, functions").

When interpreting a statute, the "ultimate goal [of the Court] is to give effect to the General Assembly's intent." Olamuyiwa v. Zebra Atlantek, Inc., 45 A.3d 527, 534 (R.I. 2012); see also Brennan v. Kirby, 529 A.2d 633, 637 (R.I. 1987) (holding that the court's role is "to determine and effectuate the Legislature's intent and to attribute to the enactment the meaning most consistent with its policies or obvious purposes"). Accordingly, if a statute is clear and unambiguous, this Court must construe the statute literally as to give effect to its plain meaning. State v. Diamante, 83 A.3d 546, 550 (R.I. 2014); State v. Briggs, 934 A.2d 811, 814 (R.I. 2007); see also Martone v. Johnston Sch. Comm., 824 A.2d 426, 431 (R.I. 2003) ("The best evidence of [the General Assembly's] intent can be found in the plain language used in the statute."). However, if the statutory language is susceptible to more than one reasonable meaning and thus, is ambiguous, "'this Court will employ our well-established maxims of statutory construction in an effort to glean the intent of the Legislature.'" Balmuth v. Dolce for Town of Portsmouth, 182 A.3d 576, 580 (R.I. 2018) (quoting In re Proposed Town of New Shoreham Project, 25 A.3d 482, 505 (R.I. 2011)) (internal quotation marks omitted).

Unlike remedial statutes that must be liberally construed, "'penal statutes must be strictly construed in favor of the party upon whom a penalty is to be imposed.'" State v. Carter, 827 A.2d 636, 644 (R.I. 2003) (quoting State v. Calise, 478 A.2d 198, 200 (R.I. 1984)). Thus, a penal statute "'must be read narrowly . . . and [the] defendant must be given the benefit of any reasonable doubt as to whether the act charged is within the meaning of the statute.'" Id. at 643-44 (quoting State v. Simmons, 114 R.I. 16, 18, 327 A.2d 843, 845 (1974)).

It is well-settled that statutes related in subject matter and enacted by the same jurisdiction are considered in pari materia and should "be read in relation to each other." Such v. State, 950 A.2d 1150, 1156 (R.I. 2008). "[S]tatutes in pari materia should be considered together in order that they may be in harmony with each other and consistent with their general scope and purpose." State v. St. Pierre, 118 R.I. 45, 51, 371 A.2d 1048, 1051 (1977) (reading numerous possessory offenses in separate statutes as falling within the ambit of "larceny" when strictly construing statute of limitation for larceny in favor of defendant). The Court '"must consider the entire statute as a whole; individual sections must be considered in the context of the entire statutory scheme, not as if each section were independent of all other sections."' State v. Briggs, 58 A.3d 164, 168 (R.I. 2013) (quoting Mendes v. Factor, 41 A.3d 994, 1002 (R.I. 2012)); State v. Poulin, 66 A.3d 419, 423 (R.I. 2013) (considering consecutive statutes G.L. 1956 §§ 12-1-12 and 12-1-12.1 to determine eligibility for sealing a criminal sentence). "[U]nder no circumstances will this Court 'construe a statute to reach an absurd result.'" Mendes, 41 A.3d at 1002 (quoting Generation Realty, LLC v. Catanzaro, 21 A.3d 253, 259 (R.I. 2011)); State v. Flores, 714 A.2d 581, 583 (R.I. 1998).

Petitioner asserts that his statutes of conviction, §§ 11-37-2, 11-37-4, 11-37-6, and 11-37-8.3, fail to provide penalties and therefore, a conviction under these statutes cannot stand. See Pet'r's Mem. at 6-9; Pet'r's Supp. Mem at 11-19. The cases upon which Petitioner relies, however, are distinguishable from the case at bar.

In Maxie, the case upon which Petitioner principally relies, the defendant was convicted of sex trafficking of a minor pursuant to § 11-67-6. 187 A.3d at 331. The version of § 11-67-6 in effect on the date the crime allegedly occurred read, in pertinent part, as follows:

"(b) Any person who:

"(1) Recruits, employs, entices, solicits, isolates, harbors, transports, provides, persuades, obtains, or maintains, or so attempts, any minor for the purposes of commercial sex acts; or

"(2) Sells or purchases a minor for the purposes of commercial sex acts; or

"(3) Benefits, financially or by receiving anything of value, from participation in a venture which has engaged in an act described in subdivision (1) or (2); or

"(c) Every person who shall commit sex trafficking of a minor, shall be guilty of a felony and subject to not more than forty (40) years imprisonment or a fine of up to forty thousand dollars ($40,000), or both." Sec. 11-67-6.


The Legislature has since repealed § 11-67-6. P.L. 2017, ch. 232, § 1, effective July 18, 2017; P.L. 2017, ch. 260, § 1, effective July 19, 2017.

The section describing the prohibited conduct, § 11-67-6(b), consisted of an incomplete sentence ending with what the parties and the court referred to as a "hanging or." Maxie, 187 A.3d at 338-39. The defendant asserted that his conviction under § 11-67-6 could not stand because, as a result of the "hanging or," the statute of conviction failed to state a crime. Id. at 339. Our Supreme Court agreed and concluded that the unambiguous language of § 11-67-6 failed to state a crime because "it [wa]s missing one of the two essential components of an effective criminal statute—the statement that the acts that it describes are crimes." Id. at 340. The court reasoned that the statute included a drafting error that could not be remedied by statutory construction because "[the court] simply cannot construe that which is not there to be construed." Id. at 341. The court also emphasized that "the power to define crimes rests not with [the] Court, but with the General Assembly." Id.

In DelBonis, the Supreme Court reversed the defendant's conviction for driving under the influence of drugs or alcohol because the applicable statute failed to state a penalty for the prohibited conduct the defendant was found to have violated. 862 A.2d at 769. The statute in effect at that time was § 31-27-2, as amended by P.L. 2000, ch. 264, § 1 (effective July 13, 2000), which provided for a penalty based upon the level of the operator's blood alcohol content (BAC). Id. at 765-66. The defendant, however, refused to submit to a Breathalyzer test and therefore his BAC was not determined. Id. at 762. The defendant was nonetheless accused of operating under the influence of drugs or alcohol "to a degree which rendered the person incapable of safely operating a vehicle" as then set forth in § 31-27-2(b)(1). Id. at 766. Recognizing the attempt by the Legislature to amend the statute, the court reasoned:

Section 31-27-2 has since been amended to rectify the issues raised in DelBonis.

"[T]he 2000 amendment was a comprehensive revision of the state's DUI statute. Not only were the elements of the offense redefined and classified according to the driver's blood alcohol level, but also the penalty provisions were amended significantly and were explicitly linked to the operator's BAC. Every penalty provision set forth in the amendment was based on the operator's BAC, but there was no penalty provision for a DUI offense in which the driver was found to be intoxicated 'to a degree which rendered the person incapable of safely operating a vehicle.' Section 31-27-2(b)(1). We deem this omission determinative to the case before this Court." DelBonis, 862 A.2d at 765 (emphasis added).

Thus, the court concluded that "[i]t is the obligation of the trial court and the duty of this Court to dismiss a criminal complaint based on a statute that does not contain a penalty provision." Id. at 770 (citing Tessier, 100 R.I. at 211, 213 A.2d at 700).

In Tessier, the defendant was convicted of violating a municipal ordinance for acting in a disorderly manner. 100 R.I. at 211, 213 A.2d at 699. Although not raised on appeal, the Supreme Court vacated the conviction and directed that the trial court dismiss the criminal complaint because "the [municipal] ordinance as it appear[ed] on the record before us [did] not fix a penalty" for the offensive conduct with which defendant was charged. Id. In State ex rel. Campbell v. Fortier, the court reaffirmed its holding in Tessier and "reverse[d] the defendants' convictions because no penalty provision appear[ed] in the record." 122 R.I. 559, 560, 409 A.2d 1223, 1224 (1980). In Campbell, the defendants were convicted of parking on a sidewalk in violation of a city traffic regulation that did not state a penalty within the same provision nor reference a separate penalty provision. Id. n.*. The court dismissed the defendants' convictions due to the state's failure to introduce the penalty provision of the regulation into evidence. Id.

This case is also distinguishable from State of New Jersey v. Fair Lawn Service Ctr., upon which Petitioner relies. See Pet'r's Supp. Mem. at 8-9. In that case, the court held that a person could not be convicted under the state's disorderly conduct statute because the legislature failed to provide a penalty. 20 N.J. 468, 474, 120 A.2d 233, 236 (1956). After quoting the statute under which the defendant was convicted, the court noted that "[n]either this section nor the ensuing sections . . . contain any statutory penalty." Id. at 471, 120 A.2d at 235 (emphasis added). The court reasoned that "while it may be said that it is to be presumed that the Legislature would not denounce certain acts without providing a penalty, [] penal consequences cannot rest upon a mere presumption." Id. at 472, 120 A.2d at 235. Here, unlike in Fair Lawn, the penalties for violating §§ 11-37-2, 11-37-4, 11-37-6, and 11-37-8.3 are provided in the very next sections. See id; cf. §§ 11-37-3, 11-37-5, 11-37-7, and 11-37-8.4. Thus, there is no need to presume what penal consequences the Legislature intended to impose for a violation thereof.

Here, unlike in Maxie, DelBonis, Tessier, Campbell and Fair Lawn, §§ 11-37-2, 11-37-4, 11-37-6, and 11-37-8.3 contain no gap or drafting error that would require this Court to redraft the statutes and thus exceed its powers, nor is the record before this Court bereft of penalty provisions. The prohibited conduct is plainly laid out in §§ 11-37-2, 11-37-4, 11-37-6, and 11-37-8.3, and the penalties for committing first degree sexual assault, second degree sexual assault, third degree sexual assault, and second degree child molestation are clearly established in §§ 11-37-3, 11-37-5, 11-37-7, and 11-37-8.4. Each pair of statutory provisions are part of the same statutory scheme, are closely related in subject matter inasmuch as they both address the same specific crime, and are considered in pari materia and therefore, must be read in relation to each other. Such, 950 A.2d at 1156. To read §§ 11-37-2, 11-37-4, 11-37-6, and 11-37-8.3 in isolation, as Petitioner would have this Court do, would be contrary to legislative intent as the criminal statutes would have no force or effect and lead to an absurd result. See Flores, 714 A.2d at 583 (upholding trial judge's consideration of § 11-37-16 and § 11-37.1-18 in concluding that defendant must register as a sex offender). When the statutory sections are read together, as this Court is required to do, the Legislature's intent is clear as to the conduct that is proscribed and the penalties for such conduct.

Petitioner also argues that §§ 11-37-2, 11-37-4, 11-37-6, and 11-37-8.3 fail to indicate if the offenses are felonies or misdemeanors and that they also fail to establish the criminal character of those crimes. Pet'r's Supp. Mem. at 27. As to Petitioner's first assertion, there is no requirement that a criminal statute identify the crime as a felony or misdemeanor. See 1 Wayne R. LaFave et al., Substantive Criminal Law § 1.6(a) (3d ed. Oct. 2018 update) ("[I]n the United States most criminal statutes defining specific crimes do not themselves label as felonies or misdemeanors the crimes which they describe, leaving the matter to be determined by reference to the punishment provided (according to the place or to the length of confinement)."); see also State v. Wolford Corp., 689 N.W.2d 471, 473 (Iowa 2004) ("It is not essential for a criminal statute to include language that the violation of the statute constitutes a misdemeanor or felony."). In Rhode Island, crimes are classified as a felony, a misdemeanor or a petty misdemeanor based on the possible punishment, as set forth in § 11-1-2. It is unnecessary that each criminal statute under Rhode Island law further identify the offense as a felony, misdemeanor or petty misdemeanor. As to Petitioner's second assertion, the statutory phrase "is guilty of," as stated in §§ 11-37-2, 11-37-4, 11-37-6, and 11-37-8.3, clearly establishes the criminal nature of the crimes. The word "guilty," means "justly chargeable with or responsible for a usually grave breach of conduct or a crime." Guilty, MERRIAM-WEBSTER.COM, https://www.merriam-webster.com/dictionary/guilty. A person of ordinary intelligence would clearly understand that the conduct described in §§ 11-37-2, 11-37-4, 11-37-6, and 11-37-8.3 is punishable as a crime. See Russell, 890 A.2d at 460. Accordingly, this Court rejects Petitioner's argument that §§ 11-37-2, 11-37-4, 11-37-6, and 11-37-8.3 fail to declare that a violation thereof constitutes a crime in general or a felony more specifically.

B

The Separate Penalty Provision Is Not Unconstitutional

Beyond the general premise that Petitioner would like this Court to ignore the existence of §§ 11-37-3, 11-37-5, 11-37-7, and 11-37-8.4, each entitled "Penalty for [the crime described in the previous statute]," Petitioner contends that there are only three ways in which a penalty provision for a criminal offense passes constitutional muster: (1) within the same all-encompassing paragraph-like statute that defines the prohibited conduct; (2) within a single statute that has multiple subsections including the prohibited conduct and the penalty in different subsections; or (3) if cross-referenced in the statute identifying the criminal conduct. See Pet'r's Mem. at 2; Pet'r's Supp. Mem. at 19-22. There is no such hard and fast rule as Petitioner asserts. Instead, §§ 11-37-3, 11-37-5, 11-37-7, and 11-37-8.4, following §§ 11-37-2, 11-37-4, 11-37-6, and 11-37-8.3, are an acceptable structure of specifying the prohibited conduct and the prescribed penalties for a person of ordinary intelligence to understand both what is prohibited and what the penalties are so that he may act accordingly. See Russell, 890 A.2d at 460; see also 1 Wayne R. LaFave et al., Substantive Criminal Law § 1.2(d) (3d ed. Oct. 2018 update).

Indeed, the Supreme Court has recognized that a criminal penalty for specified conduct "may be provided by a separate enactment." State v. Kalian, 122 R.I. 443, 444, 408 A.2d 610, 611 (1979). The Kalian Court held: "Unquestionably a criminal statute is of no force and effect if no penalty whatsoever is provided for its violation, but there is no necessity that the penalty be included within the same proviso." Id.; see also 22 C.J.S. Criminal Law: Substantive Principles § 24 (March 2019 update) ("Generally, a criminal statute without a penalty clause is of no force and effect, so that no conviction may be had thereunder; however, it is not necessary that the same act which defines the crime also provides its penalty.").

There is also no legal authority for the proposition that a state criminal statute must cross-reference a separate penalty provision, as Petitioner repeatedly contends. See Pet'r's Mem. at 2; Pet'r's Supp. Mem. at 19-22. As recognized by the renowned Professor Wayne R. LaFave, to whom Petitioner also cites, see Pet'r's Supp. Mem. at 19-22, criminal statutes are formatted in various ways:

"In many cases the section of the statute which describes the forbidden conduct concludes with a statement of the punishment; or perhaps one section sets forth the forbidden conduct and the next section the punishment. Sometimes, however, the statute forbidding the conduct may refer to another statute for the punishment, such as the rather common statute which provides that whoever commits embezzlement (defining it) shall be punishable as if he committed larceny, and the larceny statute provides for a certain penalty of fine or imprisonment. . . . In all of these cases there is little difficulty in concluding that, since the statutes set forth both forbidden conduct and criminal penalty, the legislature has created a crime." See 1 Wayne R. LaFave et al., Substantive Criminal Law § 1.2(d) (3d ed. Oct. 2018 update) (emphasis added).


Thus, Prof. LaFave, upon whom Petitioner relies, endorses the practice of identifying the forbidden conduct in one section of a statutory scheme and the punishment in the next section for the legislature to have properly created a crime. This is squarely the issue before this Court. It is wholly acceptable and proper for the General Assembly to describe the conduct in §§ 11-37-2, 11-37-4, 11-37-6, and 11-37-8.3 and set forth the penalties for such conduct in §§ 11-37-3, 11-37-5, 11-37-7, and 11-37-8.4.

C

Petitioner's Criminal Information and Pleas Evidence Knowledge of the Penalties

Importantly, in P2-2006-1354A, Petitioner was charged in the criminal information of violating §§ 11-37-4 and 11-37-5, §§ 11-37-6 and 11-37-7, as well as §§ 11-37-8.3 and 11-37.8.4. Under article I, section 10 of the Rhode Island Constitution a person criminally accused has the right "to be informed of the nature and cause of the accusation." See State v. Domanski, 57 R.I. 500, 504, 190 A. 854, 857 (1937) (recognizing that "[t]he accused undoubtedly has the constitutional right to be clearly informed of the accusation against him so that he may defend the same and later plead a conviction or acquittal in bar of a subsequent charge for the same offense"). As Petitioner's criminal information included both the statutory references for the criminal conduct for which he was charged with committing and the statutory reference to the possible penalties, he received fair notice "of the nature and cause of the accusation" to enable him to defend his case. See R.I. CONST. art. I, § 10. A person of ordinary intelligence does not need to go on a hunt to find a penalty when it was expressly provided in one of the two statutes he was charged with violating in each particular count of his criminal information. See Russell, 890 A.2d at 460.

This Court notes that Petitioner's criminal information in P2-2006-1354A complies with the requirements of Super. R. Crim. P. 7(c) and § 12-12-1.4. --------

In P2-2006-1354A, Petitioner entered into a nolo contendere plea to two counts of second degree sexual assault, one count of third degree sexual assault, and two counts of second degree child molestation. In P1-2018-1450A, Petitioner waived indictment for the acts which were charged as two counts of first degree child molestation, and there has been no challenge to that waiver as being anything but knowingly, intelligently and voluntarily entered by Petitioner. He thereafter entered into a nolo contendere plea to one count on an amended charge of first degree sexual assault. In each instance, a plea form was presented to and ultimately executed by the trial judge after finding that Petitioner's nolo contendere plea was a knowing, voluntary and intelligent waiver of his rights, that Petitioner understood the consequences of his plea, and that there was a factual basis to support the plea as to each count to which he pled. The plea forms reflect the maximum sentences for the crimes of first degree sexual assault, second degree sexual assault, third degree sexual assault, and second degree child molestation. It is illogical to now assert that Petitioner was somehow unaware of the penalties he faced for the offenses with which he was charged, including the amended charge in Count one in P1-2018-1450A, and to which he pled nolo contendere.

* * *

In sum, the Legislature provided fair notice of the consequences of committing the conduct proscribed in §§ 11-37-2, 11-37-4, 11-37-6, and 11-37-8.3 as the penalties for first degree sexual assault, second degree sexual assault, third degree sexual assault, and second degree child molestation are clearly provided in the following sections, §§ 11-37-3, 11-37-5, 11-37-7, and 11-37-8.4, which must be read together. See Such, 950 A.2d at 1156; see also Poulin, 66 A.3d at 423; Briggs, 58 A.3d at 166. Additionally, Petitioner's criminal information in P2-2006-1354A stated that he was being charged under both §§ 11-37-4 and 11-37-5, §§ 11-37-6 and 11-37-7, as well as §§ 11-37-8.3 and 11-37.8.4, and the plea forms which Petitioner executed in both underlying criminal cases further reveal the maximum penalties of first degree sexual assault, second degree sexual assault, third degree sexual assault, and second degree child molestation. For all the reasons discussed in Sections III.A-C, supra, this Court finds that Petitioner was afforded due process, that he acknowledged the maximum penalties he faced for the offenses to which he pled nolo contendere, and that his conviction for one count of first degree sexual assault in P1-2018-1450A and his conviction for two counts of second degree sexual assault, one count of third degree sexual assault, and two counts of second degree child molestation in P2-2006-1354A are constitutionally sound.

IV

Conclusion

For the reasons set forth herein, this Court finds that there are no genuine issues of material fact that exist, and that Petitioner has failed to prove by any standard—beyond a reasonable doubt as to the unconstitutionality of his convictions or by the preponderance of evidence that he is entitled to post-conviction relief—that his request for relief should be granted. Petitioner's convictions under §§ 11-37-2, 11-37-4, 11-37-6, and 11-37-8.3 are not rendered unconstitutional because the proscribed criminal conduct and penalties are stated in two separate statutory provisions. In any event, the plea forms executed by Petitioner and entered by the trial judge acknowledged the maximum penalties for the offenses to which he pled nolo contendere. Accordingly, Petitioner's request for post-conviction relief in both underlying criminal cases is denied.

Counsel for the State shall prepare an appropriate order and judgment.

ATTORNEYS:

For Plaintiff: Glenn Sparr, Esq. For Defendant: Judy Davis, Esq.