Plaintiff: Glenn Sparr, Esq.
Defendant: Judy Davis, Esq.
this Court is Kirk Demers'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. Kirk
Demers, P1-1991-3226A (the underlying criminal case) is
unconstitutional in that it fails 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 10, 1991, Petitioner was indicted on two counts of
first degree sexual assault under G.L. 1956 §§
11-37-2 and 11-37-3, both counts alleged to have occurred
between July 20 and 21, 1991. On November 12, 1993,
Petitioner pled nolo contendere to both counts. As
to each count, he was sentenced to a ten year suspended
sentence, with ten years probation and various other
conditions. The trial justice ordered the sentences to
be served concurrently.
December 12, 2018, Petitioner filed a pro se
Application for Post-Conviction Relief, together with a
supporting memorandum asking this Court to vacate his
conviction in the underlying criminal case for first degree
sexual assault, alleging that his conviction is
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.
§ 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 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).
§ 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 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 that § 11-37-2 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.
was convicted of two counts 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,