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Rushlow v. State

Superior Court of Rhode Island, Providence

June 18, 2019

JAIMESON RUSHLOW
v.
STATE OF RHODE ISLAND

          Providence County Superior Court

          For Plaintiff: Glenn Sparr, Esq.

          For Defendant: Judy Davis, Esq.

          DECISION

          K. RODGERS, J.

         Before this Court is Jaimeson Rushlow'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. Jaimeson Rushlow, P1-2008-2606A (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 August 29, 2008, Petitioner was indicted on one count of domestic burglary under G.L. 1956 §§ 11-8-1 and 12-29-5, two counts domestic first degree sexual assault under §§ 11-37-2, 11-37-3 and 12-29-5, and one count of domestic assault with intent to commit sexual assault under §§ 11-5-1 and 12-29-5, all of which were alleged to have occurred between June 19-20, 2008. On February 1, 2010, a jury found Petitioner guilty of one count of domestic first degree sexual assault, as set forth in Count two of the indictment, and one count of domestic assault with intent to commit sexual assault, as set forth in Count four of the indictment. The jury found Petitioner not guilty on one count of domestic first degree sexual assault and one count of domestic burglary. On March 30, 2010, as to the count of domestic first degree sexual assault, he was sentenced to thirty-five years, with fifteen years to serve at the Adult Correctional Institutions (ACI), the balance of twenty years suspended, with probation and various other conditions. As to the count of domestic assault with intent to commit sexual assault, he was sentenced to twenty years, with ten years to serve at the ACI, the balance of ten years suspended, with probation and various other conditions. The trial justice ordered the sentences to be served concurrently. Petitioner appealed his conviction to the Rhode Island Supreme Court and the Supreme Court affirmed. State v. Rushlow, 32 A.3d 892 (R.I. 2011).

         On October 15, 2012, Petitioner filed an application for post-conviction relief claiming he was denied effective assistance of counsel, which was denied on May 16, 2018. Rushlow v. State, PM-2012-5341.

         On October 29, 2018, Petitioner filed the instant pro se Application for Post-Conviction Relief, together with a supporting memorandum asking this Court to vacate his conviction for domestic[1] first degree sexual assault, alleging that his conviction is unconstitutional.[2] 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," without the State raising the affirmative defenses of res judicata and/or laches.

         On March 11, 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 indictment, which is 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 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.

         Petitioner was convicted of one count 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, mentally ...

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