For
Plaintiff: Glenn Sparr, Esq.
For
Defendant: Judy Davis, Esq.
DECISION
K.
RODGERS, J.
Before
this Court is Edward Berrios'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.
Edward Berrios, P1-2014-2970A (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
October 2, 2014, Petitioner was indicted on one count of
first degree child molestation under G.L. 1956 §§
11-37-8.1 and 11-37-8.2, and three counts of second degree
child molestation under §§ 11-37-8.3 and 11-37-8.4,
all of which were alleged to have occurred between July 22
and 23, 2014. On December 3, 2015, Petitioner nolo
contendere to one count of second degree child
molestation. The remaining charges were dismissed pursuant to
Super. R. Crim. P. 48(a). On December 3, 2015, he was
sentenced to fifteen years, with seven years to serve at the
Adult Correctional Institutions (ACI), the balance of eight
years suspended, with probation and various other conditions.
On
October 31, 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 second degree child molestation,
alleging that his conviction is unconstitutional. On December
18, 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).
With
the agreement of the Attorney General and by Order dated
February 22, 2019, this Court limited all
arguments[1] 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.
On
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.
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,
§ 11-37-8.3, 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 § 11-37-8.3
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.
Petitioner
was convicted of one count of second degree child molestation
in violation of § 11-37-8.3. Section 11-37-8.3 provides:
"A person is guilty of a second degree child molestation
sexual assault if he or she engages in sexual contact with
another person fourteen (14) years of age or ...