C.A. No. KM-2019-0101 (R.I. Super. Jun. 7, 2019)

C.A. No. KM-2019-0101



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

DECISION K. RODGERS , J. Before this Court is James Paola's (Petitioner) Application for Post-Conviction Relief (Application). Petitioner asserts that his conviction should be vacated because the statutes under which he was convicted in State of Rhode Island v. James Paola, K1-2006-0628A (the underlying criminal case) 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 conviction was not unconstitutional. Accordingly, Petitioner's Application is denied.


Facts and Travel

On October 24, 2006, Petitioner was indicted on one count of first degree child molestation under G.L. 1956 §§ 11-37-8.1 and 11-37-8.2, two counts of second degree child molestation under §§ 11-37-8.3 and 11-37-8.4, and four counts of first degree sexual assault under §§ 11-37-2 and 11-37-3, all alleged to have occurred between January 1, 2001 and February 28, 2006. On September 28, 2007, the trial justice dismissed one count of first degree sexual assault and one count of second degree child molestation. On September 22, 2008, a jury found Petitioner guilty of one count of first degree child molestation, one count of second degree child molestation, and one count of the lesser offense of third degree sexual assault under § 11-37-6. The jury found Petitioner not guilty as to the other two counts of sexual assault. On November 24, 2008, as to the count of first degree child molestation, he was sentenced to thirty years, with eighteen years to serve at the Adult Correctional Institutions (the ACI), the balance of twelve years suspended, with probation and various other conditions. As to the count of second degree child molestation, he was sentenced to thirty years, with five years to serve at the ACI, the balance of twenty-five years suspended, with probation. As to the count of third degree sexual assault, he was sentenced to five years to serve at the ACI. The trial justice ordered the sentences to be served concurrently. Petitioner appealed his convictions to the Rhode Island Supreme Court and the Supreme Court affirmed. State v. Paola, 59 A.3d 99 (R.I. 2013).

On November 19, 2018, Petitioner filed a pro se Motion to Vacate Judgment of Conviction in the underlying criminal case, together with a supporting memorandum asking this Court to vacate his conviction for first and second degree child molestation pursuant to Rule 35 of the Superior Court Rules of Criminal Procedure, alleging that his conviction is unconstitutional. On December 12, 2018, 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).

Petitioner does not challenge his conviction for third degree child molestation.

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 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 the underlying criminal case.

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.

On March 7, 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 28, 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.


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 [post-conviction] 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 indictment, which is 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.



Petitioner asserts that his conviction 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, §§ 11-37-8.1 and 11-37-8.3, fail to state what conduct qualifies as a crime and fail to provide a penalty. In response, the State contends that Petitioner cannot prove that §§ 11-37-8.1 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 a penalty.

Petitioner was convicted of one count of first degree child molestation in violation of § 11-37-8.1. Section 11-37-8.1 provides:

"A person is guilty of first degree child molestation sexual assault if he or she engages in sexual penetration with a person fourteen (14) years of age or under." Sec. 11-37-8.1.

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 child molestation is set forth in § 11-37-8.2, which at all material times provided:

"Every person who shall commit first degree child molestation sexual assault shall be imprisoned for a period of not less than twenty (20) years and may be imprisoned for life." Sec. 11-37-8.2.

Section 11-37-8.2 has been amended since January 1, 2001 through February 28, 2006, the date range of the offenses of which he was found guilty after trial. P.L. 2006, ch. 206, § 3, effective June 28, 2006; P.L. 2006, ch. 207, § 3, effective June 28, 2006. Thus, this Court will refer only to the earlier version of the statute in effect at that time.

Petitioner was also convicted of one count 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 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 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.

As previously noted, Petitioner was charged in the indictment of violating both §§ 11-37-8.1 and 11-37-8.2, as well as §§ 11-37-8.3 and 11-37.8.4.


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, §§ 11-37-8.1 and 11-37-8.3, fail to provide a penalty and therefore, a conviction under either statute cannot stand. See Pet'r's Mem. at 6-9; Pet'r's Supp. Mem. at 11-18. 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. 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 §§ 11-37-8.1 and 11-37-8.3 are provided in the very next sections. See id.; cf. §§ 11-37-8.2 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, §§ 11-37-8.1 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 §§ 11-37-8.1 and 11-37-8.3, and the penalties for committing first degree and second degree child molestation are clearly established in §§ 11-37-8.2 and 11-37-8.4. These statutory provisions are part of the same statutory scheme, are closely related in subject matter inasmuch as they both address the crimes of first degree and second degree child molestation, and are considered in pari materia and therefore, must be read in relation to each other. Such, 950 A.2d at 1156. To read §§ 11-37-8.1 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 §§ 11-37-8.1 and 11-37-8.3 fail to indicate if the offenses are a felony or misdemeanor and that they also fail to establish the criminal character of those crimes. Pet'r's Supp. Mem. at 21-22, 26-27. 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 first degree [or second degree] child molestation," as stated in both §§ 11-37-8.1 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, A person of ordinary intelligence would clearly understand that the conduct described in §§ 11-37-8.1 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 §§ 11-37-8.1 and 11-37-8.3 fail to declare that a violation thereof constitutes a crime in general or a felony more specifically.


The Separate Penalty Provision Is Not Unconstitutional

Beyond the general premise that Petitioner would like this Court to ignore the existence of § 11-37-8.2, entitled "Penalty for first degree child molestation sexual assault," and § 11-37-8.4, entitled "Penalty for second degree child molestation," 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 18-21. There is no such hard and fast rule as Petitioner asserts. Instead, § 11-37-8.2, following § 11-37-8.1, and § 11-37-8.4, following § 11-37-8.3, are acceptable structures of specifying the prohibited conduct and the prescribed penalty for a person of ordinary intelligence to understand both what is prohibited and what the penalty is 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 20-22. As recognized by the renowned Professor Wayne R. LaFave, to whom Petitioner also cites, see Pet'r's Supp. Mem. at 18-21, 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 §§ 11-37-8.1 and 11-37-8.3 and set forth the penalties for such conduct in §§ 11-37-8.2 and 11-37-8.4.


Petitioner's Indictment Informed Him of the Penalty Provision

Importantly, Petitioner was charged in the indictment of violating both §§ 11-37-8.1 and 11-37-8.2, 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 indictment included both the statutory reference 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 wherein the penalty statutes were expressly stated in each of the two separate counts of his indictment for which he was found guilty. See Russell, 890 A.2d at 460.

This Court notes that Petitioner's indictment complies with the requirements of Super. R. Crim. P. 7(c) and § 12-12-1.4. --------

* * *

In sum, the Legislature provided fair notice of the consequences of committing the conduct proscribed in §§ 11-37-8.1 and 11-37-8.3 as the penalties for first degree and second degree child molestation are clearly provided in the following sections, §§ 11-37-8.2 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 indictment stated that he was being charged under both §§ 11-37-8.1 and 11-37-8.2, as well as §§ 11-37-8.3 and 11-37-8.4. For all the reasons discussed in Sections III.A-C, supra, this Court finds that Petitioner was afforded due process and that his conviction for one count of first degree child molestation and one count of second degree child molestation is constitutionally sound.



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 conviction or by the preponderance of evidence that he is entitled to post-conviction relief—that his request for relief should be granted. Petitioner's conviction under §§ 11-37-8.1 and 11-37-8.3 was not rendered unconstitutional because the proscribed criminal conduct and penalties are stated in two separate statutory provisions. In any event, the indictment charging him with first degree and second degree child molestation expressly charged him with violating both §§ 11-37-8.1 and 11-37-8.2 and §§ 11-37-8.3 and 11-37-8.4. Accordingly, Petitioner's request for post-conviction relief is denied.

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


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