Plaintiff: Glenn Sparr, Esq.
Defendant: Judy Davis, Esq.
this Court is Bruce McKay's (Petitioner) Application for
Post-Conviction Relief (Application). Petitioner asserts that
his conviction should be vacated because the statutes under
which he was convicted in State of Rhode Island v. Bruce
McKay, P1-2009-2396A (the underlying criminal case) are
unconstitutional in that they fail 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.
30, 2009, Petitioner was indicted on fourteen counts: two
counts of second degree child molestation under G.L. 1956
§§ 11-37-8.3 and 11-37-8.4, both of which were
alleged to have occurred between January 1, 1988 and January
1, 1991; four 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 January 1, 1991 and August
30, 1994; and three counts of second degree child molestation
under §§ 11-37-8.3 and 11-37-8.4 and five counts of
first degree child molestation under §§ 11-37-8.1
and 11-37-8.2, all of which were alleged to have occurred
between August 30, 1994 and December 18, 1995. On July 12,
2010, Petitioner pled nolo contendere to the
following: Count one charging him with second degree child
molestation that occurred between January 1, 1988 and January
1, 1991; Count three charging him with second degree child
molestation that occurred between January 1, 1991 and August
30, 1994; and Counts ten and twelve, both charging him with
first degree child molestation that occurred between August
30, 1994 and December 18, 1995. The remaining ten counts were
dismissed pursuant to Super. R. Crim. P. 48(a). As to each of
the counts of first degree child molestation, he was
sentenced to forty years, with fifteen years to serve at the
Adult Correctional Institutions (ACI), the balance of
twenty-five years suspended, with probation. As to each of
the counts of second degree child molestation, he was
sentenced to thirty years, with fifteen years to serve at the
ACI, the balance of fifteen years suspended, with probation
and various other conditions. The trial justice ordered all
sentences to be served concurrently.
October 22, 2018, Petitioner filed a pro se Motion
to Vacate Judgment of Conviction in the underlying criminal
case pursuant to Rule 35 of the Superior Court Rules of
Criminal Procedure and an Application for Post-Conviction
Relief, together with a supporting memorandum asking this
Court to vacate his convictions for first degree and second
degree child molestation, alleging that his convictions are
unconstitutional. This Court will address his request for
relief in the context of Post-Conviction Relief, wherein his
request under Rule 35 of the Superior Court Rules of Criminal
Procedure is not appropriate. See 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 10, 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 statutes of conviction,
§§ 11-37-8.1 and 11-37-8.3, fail to state what
conduct qualifies as a crime and fail to provide a penalty.
In response, the State contends that Petitioner cannot prove
that §§ 11-37-8.1 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 a penalty.
was convicted of two counts of first degree child molestation
in violation of § 11-37-8.1. Section 11-37-8.1 provides:
"A person is guilty of first degree child molestation
sexual assault if he or she engages in sexual penetration
with a person fourteen (14) years of age or under." Sec.
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, but emission
of semen is not required." Sec.
penalty for first degree child molestation is set forth in
§ 11-37-8.2, ...