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McKay v. State

Superior Court of Rhode Island, Providence

June 20, 2019

BRUCE MCKAY
v.
STATE OF RHODE ISLAND

          For Plaintiff: Glenn Sparr, Esq.

          For Defendant: Judy Davis, Esq.

          DECISION

          K. RODGERS, J.

         Before 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.

         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 July 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.

         On 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).

         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 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.

         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 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.

         Petitioner 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. 11-37-8.1.

         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, but emission of semen is not required." Sec. 11-37-1(8).[2]

         The penalty for first degree child molestation is set forth in § 11-37-8.2, ...


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