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Morris v. State

Superior Court of Rhode Island, Newport

June 28, 2019

LEO MORRIS
v.
STATE OF RHODE ISLAND

          For Plaintiff: Glenn S. Sparr, Esq.

          For Defendant: Judy Davis, Esq.

          DECISION

          K. RODGERS, J.

         Before this Court is Leo Morris's (Petitioner) Application for Post-Conviction Relief (Application). Petitioner asserts that his convictions should be vacated because the statutes under which he was convicted in State of Rhode Island v. Leo Morris, Jr., N1-1984-0110A and N2-2000-0338A (the underlying criminal cases) 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 convictions were not unconstitutional. Accordingly, Petitioner's Application is denied.

         I

         Facts and Travel

         On April 13, 1984, in State v. Leo Morris, Jr., N1-1984-0110A, Petitioner was indicted on one count of first degree sexual assault under G.L. 1956 §§ 11-37-2 and 11-37-3, which was alleged to have occurred on January 16, 1984. On November 15, 1984, the single count was amended from first degree sexual assault to assault with intent to commit first degree sexual assault under § 11-5-1. Petitioner did not object to that amendment and thereafter Petitioner pled nolo contendere to Count one, as amended. He was sentenced to twelve years, with four years to serve at the Adult Correctional Institutions (ACI), the balance of eight years suspended, with probation.[1]

         On November 17, 2000, in State v. Leo Morris, Jr., N2-2000-0338A, Petitioner was charged by criminal information with one count of breaking and entering of a dwelling under § 11-8-2, and one count of assault with intent to commit sexual assault under § 11-5-1, both of which were alleged to have occurred on June 17, 2000. On January 11, 2001, Petitioner pled nolo contendere to both counts. As to the count of assault with intent to commit sexual assault, he was sentenced to twenty years, with eight years to serve at the ACI, the balance of twelve years suspended, with probation and various other conditions. As to the count of breaking and entering of a dwelling, he was sentenced to five years suspended with probation. The trial justice ordered the sentences to be served consecutively.

         On January 14, 2019, Petitioner filed a pro se Application for Post-Conviction Relief, together with a supporting memorandum asking this Court to vacate his convictions in the underlying criminal cases for assault with intent to commit first degree sexual assault, [2] alleging that his convictions are unconstitutional.[3]

         With the agreement of the Attorney General and by Order dated February 22, 2019, this Court limited all arguments[4] 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 either or both of the underlying criminal cases.

         On March 9, 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 April 4, 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 convictions, 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 convictions, 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, criminal information, and plea forms, 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 convictions 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 his statute of conviction, § 11-5-1 as well as § 11-37-2, the statute he was originally indicted under in N1-1984-0110A and the statute describing the specific felony for which both his convictions for assault with intent to commit specified felonies under § 11-5-1 are based, fail to state what conduct qualifies as a crime and fail to provide a penalty. In response, the State notes that Petitioner was convicted and sentenced under § 11-5-1, which clearly describes the prohibited conduct and provides a penalty within the same statutory section, and thus his arguments relating to § 11-37-2 are misplaced. Nonetheless, 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.

         A

         Constitutionality of § 11-5-1

         Petitioner was convicted in each of the two underlying criminal cases of assault with intent to commit sexual assault in violation of § 11-5-1. Section 11-5-1 provides:

"Every person who shall make an assault with intent to commit murder, robbery, sexual assault, burglary, or the abominable and detestable crime against nature, shall be imprisoned not exceeding twenty (20) years nor less than one year." Sec. 11-5-1.

         Section 11-5-1 does not raise the same constitutional challenge that Petitioner asserts as to § 11-37-2, as the penalty for committing assault with intent to commit specified felonies is clearly provided in the same section as the proscribed conduct. Thus, Petitioner's arguments relating to his convictions for each of the two counts of assault with intent to commit first degree sexual assault under § 11-5-1 must fail.

         B

         Constitutionality of § 11-37-2

         Petitioner was not convicted of first degree sexual assault under § 11-37-2 in either underlying criminal case, nor was he sentenced as such. As § 11-37-2 is not applicable to Petitioner's convictions, it is unnecessary for this Court to address the constitutionality of § 11-37-2 herein.

         Even if this Court were to consider the constitutionality of § 11-37-2, for the reasons discussed below, § 11-37-2 is not rendered unconstitutional because the penalty for first degree sexual assault is provided ...


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