Providence County Superior Court
Bonzagni, Esq., John M. Moreira, Esq. For Plaintiff
Jeffrey D. Peckham, Esq. Kara J. Maguire, Esq. For Defendant
day before Christmas, and just before his seventeenth
birthday in 2013, Jose Lopez, with encouragement from two of
his Chad Brown gang friends, murdered Ryan Almeida, a rival
East Side gang member, in front of his mother's home.
Shooting Almeida was retaliation for the East Side gang
having killed Lopez's cousin six months earlier.
Lopez's two cohorts pled guilty and testified for the
state at his January 2015 jury trial. Lopez was convicted of
first degree murder, discharging a firearm resulting in
death, and conspiracy to commit murder. His motion for a new
trial was denied on February 11, 2015.
required by statute, this Court sentenced Lopez to a
mandatory life term for first degree murder and an obligatory
consecutive life sentence for the death-by-firearm offense.
Over the state's objection, the Court suspended a
ten-year consecutive term on the conspiracy count and imposed
a like period of probation instead. Both life sentences are
parolable. Lopez's conviction has been affirmed,
State v. Lopez, 149 A.3d 459 (R.I. 2016), and the
disturbing facts of the case, which the Supreme Court labeled
"chilling, " are fully set forth therein.
a motion under Rule 35, Super. R. Cr. P., Lopez complains
that the two consecutive life terms are constitutionally
infirm. He entreats this Court to vacate those sentences,
hold a hearing in order to examine youth-related and other
factors, and reconsider imposition of the life terms because
he was a juvenile when he killed Ryan Almeida. For procedural
as well as substantive reasons, his request is denied.
motion is void ab initio because it is procedurally
flawed. The Rhode Island Supreme Court has held that a
defendant may not utilize Rule 35 to advance a constitutional
challenge to his sentence. State v. Linde, 965 A.2d
(R.I. 2009) (Linde II). Lopez maintains, however,
that Linde II does not apply to his motion and that,
even if it does, that case was wrongly decided by the Supreme
Court and he is still entitled to relief. He is mistaken.
"35. Correction, decrease or
increase of sentence. (a)
Correction or reduction of sentence. The court may
correct an illegal sentence at any time. The
court may correct a sentence imposed in an illegal
manner and it may reduce any sentence when a motion
is filed within one hundred and twenty (120) days after the
sentence is imposed, or within one hundred and twenty (120)
days after receipt by the court of a mandate of the Supreme
Court of Rhode Island issued upon affirmance of the judgment
or dismissal of the appeal, or within one hundred and twenty
(120) days after receipt by the court of a mandate or order
of the Supreme Court of the United States issued upon
affirmance of the judgment, dismissal of the appeal, or
denial of a writ of certiorari. The court shall act on the
motion within a reasonable time, provided that any
delay by the court in ruling on the motion
shall not prejudice the movant. The court may reduce a
sentence, the execution of which has been suspended, upon
revocation of probation." (Emphasis added.)
illegal sentence is "one that is not authorized by the
statute establishing the punishment that may be imposed for
the particular crime or crimes." State v.
Texieira, 944 A.2d 132, 143 (R.I. 2008); State v.
Murray, 788 A.2d 1154, 1155 (R.I. 2001) ("An
illegal sentence is one that when imposed is at variance with
the statute proscribing [sic] the punishment that
may be imposed for the particular crime or crimes.").
See State v. DeCiantis, 813 A.2d 986, 990-91 (R.I.
2003) (discussing the distinction between an illegal sentence
and an illegally imposed sentence, and defining an illegal
sentence as "one which has been imposed after a valid
conviction but is not authorized under law" (internal
quotation marks omitted), noting that the failure to provide
the defendant his right of allocution under Rule 32 is an
example of an illegally imposed sentence).
notion that his consecutive life sentences are
"illegal" is simply wrong. As prescribed by
Texieira and Murray, those prison terms
comport in every way with the sentencing statutes. First
degree murder mandates a life sentence, and if that killing
resulted from the discharge of a firearm, a consecutive life
sentence must follow. Challenging the "legality" of
those sentences under Rule 35 on constitutional grounds is
plainly impermissible under Linde II:
"[W]e never have countenanced a challenge to the
constitutionality of a penal statute in the context of a Rule
35 motion; nor have we declared that a sentence imposed
pursuant to an unconstitutional statute, which is not the
case here, is illegal as contemplated by Rule 35 and we
decline to do so now." Linde II, 965 A.2d at
so, argues Lopez, the two consecutive life terms nonetheless
transgress Rule 35 because they were allegedly "imposed
in an illegal manner." The Court disagrees. The entirety
of the manner by which sentence was imposed was assiduously
followed. At its core, Lopez's quarrel is really not with
any impermissible manner by which the life sentences
were imposed; rather, it is the essence of the
punishment he laments and which, he says, is
constitutionally flawed. Pursuing that complaint under Rule
35, however, is precisely what Linde II
of whether Lopez's claim is premised on a demand to
correct a purportedly illegal sentence, or whether it is
couched in terms of unbuttoning consecutive life sentences
which he suggests were illegally imposed, it is the view here
that under Linde II any professed distinction
creates no room within Rule 35 to pursue alleged
constitutional infirmities in those sentences. Accordingly,
this Court "need not reach the merits of [Lopez's]
constitutional challenges because they are 'not
cognizable'" under Rule 35. State v.
Ciresi, 151 A.3d 750, 755 (R.I. 2017) (quoting Linde
II, 965 A.2d at 416).
residual argument-that Linde II was somehow wrongly
decided-has no legs whatsoever in the Superior Court.
'"It is well settled that an opinion of [the Supreme
Court] declares the law in Rhode Island and that law must be
followed by the lower courts of our judicial system,
regardless of whether that court or any of its judges agree
or disagree with our holding."' Motyka v.
State, 172 A3d 1203, 1208 (RI 2017) (Indeglia, J,
concurring) (quoting Univ. of R.I. v. Dep't of
Emp't and Training, 691 A.2d 552, 555 (R.I.
for procedural reasons alone, Lopez's motion must fail.
Nonetheless, even if Lopez could raise constitutional
challenges under Rule 35, his arguments lack merit.
contends that a series of holdings by the United States
Supreme Court which have eliminated the death penalty for
juveniles and diminished a juvenile's exposure to a life
without parole sentence should also be favorably extended to
him because, he says, his consecutive, parolable life
sentences amount to a de facto term of life without
parole. He is mistaken.
in 2005, the United States Supreme Court examined the
fundamental differences between juveniles and adults and
concluded that juvenile offenders should not suffer the death
penalty and that, unless entirely incorrigible, they do not
deserve the second harshest penalty of life without the
possibility of parole. Roper v. Simmons, 543 ...