Plaintiff: Glenn Sparr, Esq.
Defendant: Judy Davis, Esq.
RODGERS, MAGISTRATE J.
this Court is Muhammad Farooq'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.
Muhammad Farooq, P1-2011-1105A (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.
Facts and Travel
April 15, 2011, Petitioner was indicted on one count of first
degree sexual assault under G.L. 1956 §§ 11-37-2
and 11-37-3, one count of assault with a dangerous weapon
under § 11-5-2, and one count of second degree sexual
assault under §§ 11-37-4 and 11-37-5, all of which
were alleged to have occurred on November 2, 2008. On January
26, 2012, after a jury-waived trial, the trial justice found
Petitioner guilty on all three counts. On March 22, 2012, as
to the count of first degree sexual assault, he was sentenced
to thirty years, with eighteen years to serve at the Adult
Correctional Institutions (ACI), the balance of twelve years
suspended, with probation and various other conditions. As to
the count of assault with a dangerous weapon, he was
sentenced to ten years, with one year to serve at the ACI,
the balance of nine years suspended, with probation. As to
the count of second degree sexual assault, he was sentenced
to fifteen years, with five years to serve at the ACI, the
balance of ten years suspended, with probation. The trial
justice ordered the sentences to be served concurrently.
April 10, 2013, Petitioner filed a motion to reduce his
sentence which was denied on March 7, 2014. Petitioner
appealed the denial decision to the Rhode Island Supreme
Court and the Supreme Court affirmed. State v.
Farooq, 115 A.3d 961 (R.I. 2015).
October 26, 2018, Petitioner filed a pro se Motion
to Vacate Judgment of Conviction in the underlying criminal
case pursuant to Rule 35 of the Superior Court Rules of
Criminal Procedure and an Application for Post-Conviction
Relief, together with a supporting memorandum asking this
Court to vacate his conviction for first and second degree
sexual assault, alleging that his conviction is
unconstitutional. This Court will address his request for
relief in the context of Post-Conviction Relief, wherein his
request under Rule 35 of the Superior Court Rules of Criminal
Procedure is not appropriate. See 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 8, 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 29,
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.
Standard of Review
§ 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 [postconviction] 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,
§§ 11-37-2 and 11-37-4, 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 §§ 11-37-2 and 11-37-4 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 sexual assault in
violation of § 11-37-2. Section 11-37-2 provides:
"A person is guilty of first degree sexual assault if he
or she engages in sexual penetration with another person, and
if any of the following circumstances exist:
"(1) The accused, not being the spouse, knows or has
reason to know that the victim is mentally incapacitated,
mentally disabled, or physically helpless.
"(2) The accused uses force or coercion.
"(3) The accused, through concealment or by the element
of surprise, is able to overcome the victim.
"(4) The accused engages in the medical treatment or
examination of the victim for the purpose of sexual arousal,
gratification, or stimulation." Sec. 11-37-2.
term "sexual penetration" as used throughout Title
11, Chapter 37 has been ...