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Menard v. R.I. Department of Corrections

Superior Court of Rhode Island

May 12, 2014

LEROY MENARD
v.
R.I. DEPARTMENT OF CORRECTIONS, DIRECTOR A.T. WALL and R.I. PAROLE BOARD, CHAIRPERSON KENNETH WALKER

Newport County Superior Court

For Plaintiff: Leroy Menard, pro se

For Defendant: John E. Corrigan, Esq.

DECISION

VAN COUYGHEN, J.

This matter is before the Court on A.T. Wall, et al.'s (Respondents) motion to dismiss the application for post-conviction relief of Applicant Leroy Menard (Mr. Menard). For the reasons set forth herein, Respondents' motion to dismiss is granted. Jurisdiction is pursuant to G.L. 1956 § 10-9.1-6.

I

Facts

Mr. Menard was convicted of first-degree robbery in 1994. Additional factual background of the robbery conviction may be found in State v. Menard, 669 A.2d 536 (R.I. 1996) (Menard I), in which the Rhode Island Supreme Court affirmed Mr. Menard's conviction. The factual background of that case is not pertinent to this matter.

Mr. Menard filed his first application for post-conviction relief in 1999, which was docketed in Newport County Superior Court as case number NM-1999-0049. Mr. Menard was represented by counsel for that application: first by court-appointed counsel and then by private counsel. See Menard v. State, No. NM-1999-0049, slip op. 1 (R.I. Super. June 7, 2002) (Thompson, J.) (Menard II). Mr. Menard's first application for post-conviction relief was denied. Id. at 15.

This case represents Mr. Menard's second petition for post-conviction relief. The current controversy revolves around whether or not Mr. Menard is entitled to receive credit against his sentence for the time he spent at liberty while on parole. He also alleges that his due process rights were violated when the parole board failed to afford him a hearing when it eliminated the time he spent on parole from the time served on his sentence.

Pursuant to chapter 8 of title 13 of the Rhode Island General Laws, Mr. Menard has been released on parole five times, beginning in November of 2005 and ending in his most recent release in May of 2011.[1] Each time, his parole permit was revoked. Mr. Menard's application for post-conviction relief alleges that his sentence was unlawfully extended and recomputed by the inclusion of 1436 days served on parole.[2] According to Mr. Menard, by requiring him to serve the 1436 days, Respondents extended his sentence without authority to do so. Additionally, Mr. Menard argues that he should have received an administrative hearing prior to the determination that he would not receive credit toward his sentence for the 1436 days while on parole. Mr. Menard has requested that this Court order Respondents to cease extending his sentence, to restore the time spent on parole to the time served on his sentence, and to provide Mr. Menard with an administrative hearing.

II

Procedural Posture

Upon receipt of Respondents' motion to dismiss, this Court duly notified Mr. Menard that it intended to dismiss his petition. In a letter dated July 3, 2013, this Court provided Mr. Menard with the legal basis for its opinion and invited a written response. On July 15, 2013, Mr. Menard provided his thirty-page response, which this Court reviewed. The motion to dismiss was argued on November 4, 2013, and all parties were given the opportunity to fully present their respective positions. After review of the arguments and papers filed, it is clear to this Court ...


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