Plaintiff: Glenn Sparr, Esq.
Defendant: Judy Davis, Esq.
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.
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.
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).
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).
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.
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.
§ 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,
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).
§ 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
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.
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.
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 ...