Providence County Superior Court No. P1/04-3386A Associate
Justice Daniel A. Procaccini
State: Jane M. McSoley Department of Attorney General
Defendant: Lara E. Montecalvo, Alec Miran
Present: Suttell, C.J., Goldberg, Flaherty, and Robinson, JJ.
Maureen McKenna Goldberg Associate Justice
case came before the Court on October 3, 2018, pursuant to an
order directing the parties to appear and show cause why the
issues raised in this appeal should not be summarily decided.
The defendant, James Oliveira, appeals from a Superior Court
order that denied his motion to reduce a sentence, filed in
accordance with Rule 35 of the Superior Court Rules of
Criminal Procedure. After a thorough review of the record and
consideration of the parties' arguments, we conclude that
cause has not been shown and that the appeal may be decided
without further briefing or argument. For the reasons set
forth herein, we affirm the order of the Superior Court
denying defendant's motion to reduce sentence.
facts of the underlying case are set forth in detail in
State v. Oliveira, 961 A.2d 299 (R.I. 2008)
(Oliveira I), and State v. Oliveira, 127
A.3d 65 (R.I. 2015) (Oliveira II). Accordingly, the
Court recites only those facts relevant to this appeal.
October 29, 2004, a grand jury indicted defendant on two
counts of first-degree child molestation sexual assault, in
violation of G.L. 1956 § 11-37-8.1, for sexually
assaulting his six- year-old grandson by anal penetration. On
September 19, 2006, a Superior Court jury convicted defendant
on one count of first-degree child molestation sexual assault
and acquitted defendant on the second count. The trial
justice sentenced defendant to sixty years' imprisonment,
with forty years to serve and the remainder suspended, with
probation. This conviction was vacated on appeal, and the
case was remanded for a new trial. Oliveira I, 961
A.2d at 319. At a second trial, before a different trial
justice, defendant again was convicted on one count of
first-degree child molestation sexual assault. He was
sentenced to life imprisonment, and this Court affirmed the
conviction. Oliveira II, 127 A.3d at
defendant filed a Rule 35 motion to reduce the sentence, on
the ground that the life sentence imposed after the second
trial was unconstitutional. The defendant argued that it was
improper for a second trial justice to depart from the
original forty-year term to serve due to defendant's
disciplinary record at the Adult Correctional Institutions.
The defendant also argued that the trial justice erred
because, while he commented upon defendant's disciplinary
record, the trial justice failed to make clear "that
[the record] was the reason why he imposed a life
sentence." The state disagreed, and argued in opposition
to the motion to reduce that there was ample evidence in the
record to support the trial justice's sentencing
decision, including conduct by defendant that occurred after
the first conviction was vacated.
denying defendant's Rule 35 motion, the trial justice
acknowledged that, although he "could have been more
explicit in using * * * direct language" when departing
from defendant's first sentence and imposing a life
sentence following his second conviction, this omission was
not fatal to his sentencing decision. The trial justice found
that the fourteen disciplinary infractions that defendant had
committed between defendant's first conviction and his
second trial were "very disturbing" because every
infraction "fell into the moderate to high category of
disciplinary violations according to the Department of
Corrections Code of Conduct." The trial justice also
explained that, during the sentencing hearing, he had
"clearly characterized that collection of infractions as
demonstrating * * * that this defendant, in the [c]ourt's
view, was antisocial, disrespectful of authority, rules, and
boundaries." Finally, the trial justice recounted his
sentencing remarks about the impact this crime has had on the
young complainant's life. The defendant's grandson
was six years of age at the time of the offense.
defendant timely appealed.
motion to reduce a sentence under Rule 35 "is
essentially a plea for leniency[.]" State v.
Rivera, 64 A.3d 742, 745 (R.I. 2013) (quoting State
v. Chase, 9 A.3d 1248, 1253 (R.I. 2010)). "The
motion is addressed to the sound discretion of the trial
justice, who may grant it if he or she decides on reflection
or on the basis of changed circumstances that the sentence
originally imposed was, for any reason, unduly severe."
State v. Mlyniec, 78 A.3d 769, 771 (R.I. 2013)
(quoting State v. Mendoza, 958 A.2d 1159, 1161 (R.I.
2008)). We have a "strong policy against interfering
with a trial justice's discretion in sentencing
matters," and thus "our review of a trial
justice's ruling on a Rule 35 motion is extremely
limited." Rivera, 64 A.3d at 745 (quoting
State v. Snell, 11 A.3d 97, 101 (R.I. 2011)).
Accordingly, we will interfere with that discretion only in
"rare instances when the ...