Plaintiff: Glenn S. Sparr, Esq.
Defendant: Judy Davis, Esq.
RODGERS, MAGISTRATE J.
this Court is Javier Merida'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.
Javier Merida, P1-2004-1031A (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.
Facts and Travel
April 1, 2004, Petitioner was indicted on six counts: Count
one charging him with first degree child molestation under
G.L. 1956 §§ 11-37-8.1 and 11-37-8.2, which was
alleged to have occurred between January 1, 1992 and January
1, 1998; Count two charging him with first degree child
molestation under §§ 11-37-8.1 and 11-37-8.2, which
was alleged to have occurred between June 1 and 30, 2002;
Count three charging him with second degree child molestation
under §§ 11-37-8.3 and 11-37-8.4, which was alleged
to have occurred between January 1, 2001 and January 20,
2004; and Counts four through six charging him with first
degree child molestation under §§ 11-37-8.1 and
11-37-8.2, all of which were alleged to have occurred between
January 1, 2001 and January 20, 2004. Count two of the
indictment was later amended to first degree sexual assault
under §§ 11-37-2 and 11-37-3. Prior to trial,
Counts one and two were dismissed pursuant to Super. R. Crim.
P. 48(a). On May 9, 2006, a jury found Petitioner guilty of
Counts three, four and five, charging him with two counts of
first degree child molestation that occurred between January
1, 2001 and January 1, 2004, and one count of second degree
child molestation that occurred between January 1, 2001 and
January 30, 2004. The jury found Petitioner not guilty of
Count six, charging him with one count of first degree child
molestation, alleged to have occurred between January 1, 2001
and January 1, 2004. On July 7, 2006, as to each count of
first degree child molestation, he was sentenced to forty
years, with twenty 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 second degree child molestation, he was sentenced to
thirty years, with ten years to serve at the ACI, the balance
of twenty 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. Merida, 960 A.2d 228 (R.I. 2008).
February 13, 2009, Petitioner filed a previous application
for post-conviction relief alleging ineffective assistance of
counsel on various grounds, which was denied on December 6,
2011. Merida v. State, PM-2009-0900. Petitioner
appealed that decision, and the Supreme Court affirmed.
Merida v. State, 93 A.3d 545 (R.I. 2014).
October 18, 2016, Petitioner filed a pro se Motion
to Correct Sentence pursuant to Rule 35 of the Superior Court
Rules of Criminal Procedure seeking credit for time he spent
on home confinement, which was denied on November 9, 2016.
Petitioner appealed that decision, and the Supreme Court
affirmed. State v. Merida, 206 A.3d 687 (2019).
November 20, 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 conviction is
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," without the State raising the
affirmative defenses of res judicata and/or
3, 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 May 6, 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.
Standard of Review
§ 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, 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).
§ 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 ...