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Murray v. State

Superior Court of Rhode Island, Providence

June 7, 2019

JEFFREY MURRAY
v.
STATE OF RHODE ISLAND

          For Plaintiff: Jeffrey Murray, Pro Se

          For Defendant: Judy Davis, Esq.

          DECISION

          K. RODGERS, J.

         Before this Court is Jeffrey Murray's (Petitioner) Application for Post-Conviction Relief (Application). Petitioner asserts that his conviction should be vacated because the statute under which he was convicted in State of Rhode Island v. Jeffrey Murray, P1-1999-2303A (the underlying criminal case) is unconstitutional in that it fails to describe a crime and prescribe a penalty therein.

         This 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.

         I

         Facts and Travel

         On July 9, 1999, Petitioner was indicted on one count of first degree sexual assault in violation of G.L. 1956 § 11-37-2 and § 11-37-3, and one count of felony assault with a dangerous weapon in violation of § 11-5-2, both of which were alleged to have occurred on March 5, 1999. On April 18, 2000, Petitioner pled guilty to both counts. On the count of first degree sexual assault, he was sentenced to twenty years, with five years to serve at the Adult Correctional Institutions (the ACI), the balance of fifteen years suspended, with probation and various other conditions. On the Count of felony assault with a dangerous weapon, he was sentenced to ten years at the ACI, all suspended, with probation, to run concurrent with the sentence on the Count of first degree sexual assault. Petitioner was adjudged to be a violator of his sentence on at least six occasions, the last adjudication having taken place in January 2016, following a violation hearing before another justice of this Court, the removal of thirteen years of his suspended sentence imposed on the first degree sexual assault Count, and an order that he serve those thirteen years at the ACI.[1]

         On October 17, 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 sexual assault pursuant to Rule 35 of the Superior Court Rules of Criminal Procedure, alleging that his conviction is unconstitutional. By Order dated December 12, 2018, and with agreement of the Office of the Attorney General, this Court ordered Petitioner's Motion to Vacate to be converted to the instant Application 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).

         On January 15, 2019, Petitioner filed a Supplemental Memorandum in Support of Petitioner's Application for Post-Conviction Relief. In addition to the constitutional infirmities that will be addressed herein, Petitioner also argues in his Supplemental Memorandum that he is entitled to relief based upon the nature and cause of the accusation, the variance of proof, and ineffective assistance of counsel, and he further argues that the State's answer to his original filing was deficient in numerous ways. With the agreement of the Attorney General and by Order dated February 22, 2019, this Court limited all arguments[2] 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," without the State raising the affirmative defenses of res judicata and/or laches.

         On February 27, 2019, the State filed a Motion to Sever eight issues raised in Petitioner's Supplemental Memorandum pursuant to the Court's February 22, 2019 Order limiting arguments to the constitutional issues. On March 12, 2019, this Court entertained oral argument on the Motion to Sever, with Petitioner appearing pro se. In a bench decision on that date, this Court ordered that the issues of the nature and cause of the accusation, the variance of proof, and ineffective assistance of counsel would be severed from this Court's consideration.[3] Additionally, at the March 12, 2019 hearing, this Court provided notice to Petitioner in open court that Petitioner's request for relief would be considered in the context of a summary judgment motion in accordance with § 10-9.1-6(c) and Rule 56(c) of the Superior Court Rules of Civil Procedure. Petitioner did not object to the Court's consideration of the constitutional issues raised in the context of a summary disposition.

         On March 15, 2019, the State filed an objection and supporting memorandum to Petitioner's original filing and supplemental memorandum.

         II

         Standard of Review

         Under § 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, 193 (1974).

         When 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 and plea form, which are 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).

         Under § 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 653.

         III

         Analysis

         Petitioner 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 single statute of conviction, § 11-37-2, fails to state what conduct qualifies as a crime and fails to provide a penalty. In response, the State contends that Petitioner cannot prove the statute is 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 and because the indictment itself provided clear notice to Petitioner that he was being charged under both §§ 11-37-2 and 11-37-3.

         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.

         The term "sexual penetration," as used throughout Title 11, Chapter 37, was defined in 1999 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).[4]

         The penalty for first degree sexual assault is set forth in § 11-37-3, which at all times has provided:

"Every person who shall commit sexual assault in the first degree shall be imprisoned for a period not less than ten (10) years and may be imprisoned ...

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