Plaintiff: Glenn Sparr, Esq.
Defendant: Judy Davis, Esq.
RODGERS, MAGISTRATE J.
this Court is Anibal Acevedo'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.
Anibal Acevedo, P1-2010-3274A (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
October 28, 2010, Petitioner was indicted on five counts of
first degree child molestation under G.L. 1956 §§
11-37-8.1 and 11-37-8.2, and five counts of second degree
child molestation under §§ 11-37-8.3 and 11-37-8.4,
all alleged to have occurred between January 1, 2001 and May
15, 2005. On January 30, 2013, one count of second degree
child molestation was dismissed pursuant to Super. R. Crim.
P. 48(a). On February 5, 2013, a jury found Petitioner guilty
of two counts of first degree child molestation and three
counts of second degree child molestation. The trial justice
granted Petitioner's Motion for Judgment of Acquittal as
to three counts of first degree child molestation and one
count of second degree child molestation. On April 22, 2013,
as to each count of first degree child molestation, he was
sentenced to twenty years to serve at the Adult Correctional
Institutions (ACI), the balance of ten years suspended, with
probation and various other conditions. As to each count of
second degree child molestation, he was sentenced to fifteen
years to serve at the ACI, the balance of ten years
suspended, with probation and various other conditions. 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. Acevedo, 92 A.3d 167 (R.I. 2014).
November 20, 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 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 6, 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.
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,
§§ 11-37-8.1 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 two counts 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 instruction, but
emission of semen is not required." Sec. 11-37-1(8).
penalty for first degree child molestation is set forth in
§ 11-37-8.2, ...