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Caterino v. State

Superior Court of Rhode Island, Providence

August 23, 2019

NICHOLAS CATERINO
v.
STATE OF RHODE ISLAND

          For Plaintiff: Glenn S. Sparr, Esq.

          For Defendant: Judy Davis, Esq.

          DECISION

          K. RODGERS, MAGISTRATE J.

         Before this Court is Nicholas Caterino'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. Nicholas Caterino, P2-2016-1989A (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 July 1, 2016, Petitioner was charged by criminal information with one count of third degree sexual assault under G.L. 1956 § 11-37-6, which was alleged to have occurred between September 1 and 30, 2015, and one count of third degree sexual assault under § 11-37-6, which was alleged to have occurred between October 1 and 31, 2015. On September 26, 2018, Petitioner pled nolo contendere to both counts. As to the first count of third degree sexual assault, he was sentenced to five years, with one year to serve at the Adult Correctional Institutions (ACI), the balance of four years suspended, with probation and various other conditions. As to the second count of third degree sexual assault, he was sentenced to a two-and-a-half year suspended sentence with probation. The trial justice ordered the sentences to be served consecutively.

         On February 5, 2019, Petitioner filed a pro se Application for Post-Conviction Relief, together with a supporting memorandum asking this Court to vacate his conviction for third degree sexual assault in the underlying criminal case, alleging that his conviction is unconstitutional.

         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 May 6, 2019, Petitioner's court-appointed counsel filed a Supplemental Memorandum in Support of Petitioner's Application for Post-Conviction Relief. 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. The State filed an objection and supporting memorandum thereto on August 5, 2019.

         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 criminal information 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 single statute of conviction, § 11-37-6, 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 § 11-37-6 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 two counts of third degree sexual assault in violation of § 11-37-6. Section 11-37-6 provides:

"A person is guilty of third degree sexual assault if he or she is over the age of eighteen (18) years and engaged in sexual penetration with another person over the age of fourteen (14) years and under the age of consent, ...

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