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Hernandez v. State

Superior Court of Rhode Island, Providence

June 7, 2019

JAMES HERNANDEZ
v.
STATE OF RHODE ISLAND

          For Plaintiff: Glenn Sparr, Esq.

          For Defendant: Judy Davis, Esq.

          DECISION

          K. RODGERS, J.

         Before this Court is James Hernandez's (Petitioner) Application for Post-Conviction Relief (Application). Petitioner asserts that his convictions should be vacated because the statutes under which he was convicted in State of Rhode Island v. James Hernandez, P2-2006-1354A and State of Rhode Island v. James Hernandez, P1-2018-1450A (the underlying criminal cases) are unconstitutional in that they fail 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 convictions were not unconstitutional. Accordingly, Petitioner's Application is denied.

         I

         Facts and Travel

         On April 28, 2006, in State v. James Hernandez, P2-2006-1354A, Petitioner was charged by criminal information with seven counts: two counts of second degree child molestation under G.L. 1956 §§ 11-37-8.3 and 11-37-8.4, alleged to have occurred between June 29 and December 31, 2004; two counts of second degree child molestation under G.L. 1956 §§ 11-37-8.3 and 11-37-8.4, alleged to have occurred between January 1 and June 27, 2005; one count of third degree sexual assault under §§ 11-37-6 and 11-37-7, alleged to have occurred between July 1 and September 1, 2005; and two counts of second degree sexual assault under §§ 11-37-4 and 11-37-5, alleged to have occurred on October 30, 2005 and between March 30, 1998 and March 30, 1999, respectively. On June 13, 2007, Petitioner pled nolo contendere to one count of second degree child molestation that occurred between June 29 and December 31, 2004; one count of second degree child molestation that occurred between January 1 and June 27, 2005; two counts of second degree sexual assault, and one count of third degree sexual assault. The remaining two counts were dismissed pursuant to Super. R. Crim. P. 48(a). As to each of the counts of second degree child molestation and second degree sexual assault, he was sentenced to nine years suspended, with probation and various other conditions. As to the count of third degree sexual assault, he was sentenced to five years suspended, with probation. The trial justice ordered each sentence to be served concurrently.

         On December 11, 2015, Petitioner was charged by the Barrington Police with two counts of first degree child molestation in violation of § 11-37-8.1. See State of Rhode Island v. James Hernandez, Criminal Complaint 62-15-13018.[1] On or about May 31, 2018, Petitioner submitted a petition to waive indictment for those two counts of first degree child molestation.[2] Immediately thereafter, Count one charging Petitioner with first degree child molestation was amended to first degree sexual assault under § 11-37-2. On June 4, 2018, Petitioner pled nolo contendere to one count of first degree sexual assault, and the second count of first degree child molestation was dismissed pursuant to Super. R. Crim. P. 48(a). On the same date, he was sentenced to twenty-five years, with four years and six months to serve at the ACI, the balance of twenty years and six months suspended, with probation and various other conditions.

         On November 2, 2018, Petitioner filed a single pro se Motion to Vacate Judgment of Conviction in both underlying criminal cases, together with a supporting memorandum asking this Court to vacate his convictions for first degree sexual assault, second degree sexual assault, third degree sexual assault, and second degree child molestation pursuant to Rule 35 of the Superior Court Rules of Criminal Procedure, alleging that his convictions are unconstitutional. On January 8, 2019, 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).

         With the agreement of the Attorney General and by Order dated February 22, 2019, this Court limited all arguments[3] 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 in each underlying criminal case 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 either or both underlying criminal cases.

         On March 12, 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.

         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 criminal information, waiver, and plea forms, 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.

         II

         Analysis

         Petitioner asserts that his convictions 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, 11-37-4, 11-37-6, and 11-37-8.3, fail to state what conduct qualifies as a crime and fail to provide penalties. In response, the State contends that Petitioner cannot prove that §§ 11-37-2, 11-37-4, 11-37-6, 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 the penalties for each crime.

         Petitioner was convicted of one count of first degree sexual assault in violation of § 11-37-2.[4] 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 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 ...

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