Plaintiff: John E. Sullivan, III, Esq.
Defendant: Daniel P. Connors, Esq.
this Court is Jeffrey Leonard's (Leonard) appeal of a
Superior Court Magistrate's (the Magistrate) decision
finding that there was no "defect" in the Criminal
Information (the Information) charging Leonard with violating
G.L. 1956 § 31-27-2(d)(3)(i). Leonard asserts that the
Information is "defective" because the language of
the statute illustrates that he cannot be in violation of it.
Jurisdiction is pursuant G.L. 1956 § 8-2-11.1(d).
Facts and Travel
October 4, 2012, the State of Rhode Island (the State)
charged Leonard with violating § 31-27-2-the driving
under the influence (DUI) statute. Leonard pled guilty to
this charge on October 18, 2012. Less than a year later, on
May 23, 2013, the State charged Leonard with a second DUI
offense. Leonard pled guilty to this charge on July 11, 2013.
On September 1, 2017, the Rhode Island State Police stopped
Leonard for a third DUI offense. As a result of this third
offense, the State filed the Information on December 1, 2017
charging Leonard with being in violation of §
31-27-2(d)(3)(i). Before the Magistrate on January 12,
2018, Leonard objected to the Information. He claimed that he
could not be in violation of § 31-27-2(d)(3)(i) because
it required three convictions within a five-year period, and,
even if he was convicted on that day of the September 1, 2017
offense, he would not have three convictions within a
five-year period. The Magistrate denied Leonard's
objection, finding that Leonard fell within the statute's
coverage. Leonard appealed the Magistrate's
decision to this Court.
Standard of Review
Superior Court justice's review of a decision of a
magistrate is governed by § 8-2-11.1(d). Section
8-2-11.1(d) states, in pertinent part:
"A party aggrieved by an order entered by the . . .
magistrate shall be entitled to a review of the order by a
justice of the superior court. Unless otherwise provided in
the rules of procedure of the court, the review shall be on
the record and appellate in nature. The court shall, by rules
of procedure, establish procedures for review of orders
entered by the . . . magistrate, and for enforcement of
contempt adjudications of the . . . magistrate." Sec.
Rule 2.9(h) of the Superior Court Rules of Practice governs
this Court's review of the Magistrate's decision. The
"The Superior Court justice shall make a de
novo determination of those portions to which the appeal
is directed and may accept, reject, or modify, in whole or in
part, the judgment, order, or decree of the magistrate. The
justice, however, need not formally conduct a new hearing and
may consider the record developed before the magistrate,
making his or her own determination based on that record
whether there is competent evidence upon which the
magistrate's judgment, order, or decree rests. The
justice may also receive further evidence, recall witnesses
or recommit the matter with instructions." R.P. 2.9(h).
Court "shall not substitute [its] view of the evidence
for [the Magistrate's] even though a contrary conclusion
could have been reached, " if the record illustrates
that competent evidence supports the Magistrate's
findings. State v. Dennis, 29 A.3d 445, 450 (R.I.
2011) (citation omitted). The record, for purposes of the
appeal, includes "[t]he original papers and exhibits
filed with the Superior Court, the transcript of the
proceedings, and the docket entries[.]" R.P. 2.9(f).
argues that he cannot be in violation of §
31-27-2(d)(3)(i) because it requires three DUI convictions
within a five-year period. Specifically, Leonard argues that
even if he were to be convicted of the September 1, 2017 DUI
offense today, he would not have three DUI convictions within
a five-year period. Consequently, Leonard also argues that
this Court lacks jurisdiction over the September 1, 2017 DUI
offense because it would only be a misdemeanor. The State
argues that Leonard is in violation of §
31-27-2(d)(3)(i) because it requires only a third DUI
violation to occur within five years of the first DUI
conviction, not three DUI convictions within a five-year
period. The State contends that requiring three convictions