Plaintiff: Glenn Sparr, Esq.
Defendant: Judy Davis, Esq.
this Court is Gary Abruzzese'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.
Gary Abruzzese, W1-2008-0312A (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 convictions were not unconstitutional.
Accordingly, Petitioner's Application is denied.
August 8, 2008, Petitioner submitted a petition to waive
indictment and pled guilty to two counts of first degree
child molestation under G.L. 1956 § 11-37-8.1, both
counts alleged to have occurred on August 27, 2007. As to
each count he was sentenced to forty years, with twenty-five
years to serve at the Adult Correctional Institutions (the
ACI), the balance of fifteen years suspended, with probation
and various other conditions. The trial justice ordered the
sentences to be served concurrently.
November 21, 2018, Petitioner filed a pro se Motion
to Vacate Judgement 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 7, 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 27,
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 waiver 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,
§ 11-37-8.1, 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 § 11-37-8.1
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 child molestation
in violation of § ...