Preview:

STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS
NEWPORT, S.C.                                                                                   SUPERIOR COURT
(FILED - July 7, 2010)
STATE OF RHODE ISLAND                                                                           :
:
v.                                                                                              :                N2-2004-0274A
:
CARL WHITE                                                                                      :
DECISION
GALE, J.    The matter before the Court involves two interrelated cases, the above-
captioned matter which was originally resolved in 2004, and the case of State v. Carl
White, W2-2007-0042A, a case in which the single count criminal information similarly
alleged that White knowingly possessed child pornography in his home on September 27,
2006.
I
Facts and Travel
The instant case involved a criminal information in which Defendant White was
charged with two counts of violating G.L. Section 11-9-1.3B2 (possession of images of
child pornography).   White entered a plea of nolo contendere to count 1 on December 6,
2004.   In exchange for his plea, the State dismissed the second count and White was
allowed to participate in the deferred sentence agreement program.   See G.L. Section 12-
19-19.   On January 26, 2007, the State filed a violation report consistent with its practice
regarding probation as well as deferred sentence agreement violation allegations.   See
Super. R. Crim. Pro 32(f).  The factual basis for the violation filing was the discovery and
subsequent warrantless seizure of alleged child pornography at the home of the defendant
in late September 2006.
White  was  initially  held  without  bail  as  an  alleged  violator.     Bail  was
1




subsequently set on February 7, 2007; the Defendant posted the requisite portion of the
surety bail in cash and was released on February 14, 2007.   Although the case stood in a
posture of an alleged violation of a deferred sentence agreement, Defendant filed a
motion to suppress1, alleging that the September search of his home and the seizure of
evidence were in violation of the Fourth Amendment.   Similar motions were later filed in
the “new case” concerning which he was arraigned on March 19, 2007.   Bail was set in
N2-2007-0042.    It was immediately posted and the defendant again released.
After the taking of substantial evidence on April 27 and May 1, 2007, this Court
issued a written decision on June 7, 2007 in which it announced that the evidence seized
from the Defendant’s home by the Rhode Island State Police would be suppressed for the
purpose of the pending criminal case.   However, that decision was not dispositive of the
pending violation.   Nor did this Court intend that the decision have any effect on the
course of the violation matter.
After  several  continuances  evidence  was  taken  on  July                                           19  and   20,   2007,
concerning the factual basis of White’s alleged violation of deferred sentence.   At the
conclusion of the hearing, this Court found the defendant to be a violator, held him
without bail and ordered a pre-sentence report to be completed by September 7th.   The
basis of the violation finding was the evidence introduced during the hearings, not the
mere  accusation  contained  in  the  information  filed  as  N2-2007-0042.    Finally,  on
September 20, 2007, this Court sentenced Defendant to a full sentence of five years, the
first three years to serve to be followed by two years suspended sentence with probation.
1 The suppression remedy generally afforded to defendants in criminal prosecutions does not apply to
violation matters.  See State v. Texter, 896 A.2d 40, 43 (R.I. 2006).
2




2   Meanwhile, on July 26, 2007, the State elected to dismiss the 2007 case pursuant to
Super. R. Crim. Pro. 48(a).
White failed to file a timely appeal of this Court’s finding that he violated the
terms of his deferred sentence agreement or the sentence imposed as a result.   He has
recently filed for relief in the Superior Court through his Motion to Quash and Vacate
Finding of Violation of Deferred Sentence Pursuant to G.L. Section 12-19-18.   The State
filed a written objection.   Brief oral argument was heard on May 17, 2010.   Accordingly,
the issue presented by Defendant’s motion is ripe for decision.
II
Analysis
In this case, the parties’ arguments stem from their varying interpretations of §
12-19-183, which provides:
(a)   Whenever   any   person   has   been   sentenced   to
imprisonment for violation of a deferred sentence by reason
of the alleged commission of a felony and the grand jury
has failed to return any indictment or an information has
not been filed on the charge which was specifically alleged
to have constituted the violation of the deferred sentence
the sentence to imprisonment for the alleged violation of
the deferred sentence shall, on motion made to the court on
behalf  of  the  person  so  sentenced,  be  quashed,  and
imprisonment  shall  be  immediately  terminated,  and  the
deferred sentence shall have same force and effect as if no
sentence to imprisonment had been imposed.4
2 The Court also added certain express conditions regarding the probationary period.
3 The Court is mindful that the parties submitted their memorandum in this matter prior to the recent
amendment to § 12-19-18 on June 12, 2010.   However, after review, the Court notes the amendment to §
12-19-18 added enumerated sections (a), (b), and (c).   Section 12-19-18(a) embodies § 12-19-18 prior to
amendment and is the same unaltered language of the statute prior to amendment.  Sections 12-19-18(b)-(c)
do not deal with a deferred sentence and are not pertinent to this Court’s analysis.   Moreover, there is
nothing in the language of the statute that indicates it is intended to apply retroactively.    See Theta
Properties v. Ronci Realty Co, Inc.,                                                                        814  A.2d  907,  915  (R.I.  2003)  (“Generally, statutes and their
amendments are  ‘to operate prospectively unless it appears by clear, strong language or by necessary
implication that the Legislature intended to give the statute retroactive effect.’”) (Citation omitted).
4 The portions of   § 12-19-18(b)-(c) provide the following:
3




At the outset, White argues any finding of a violation cannot stand in light of the
State’s dismissal of the 2007 case.   White contends that without the evidence obtained
from the illegal search and seizure of his computer, a criminal information could not have
issued.  According to White, because the criminal information filed against him is based
solely upon the alleged probable cause that emanated from
the computer and the evidence contained on the computer
[was illegally seized]  .  .                                                                 . the only evidence introduced
against  Mr.  White  during  the  violation  proceeding  was
obtained from this illegal search and seizure and the finding
was based solely upon the introduction of illegally obtained
evidence.
As a result, White argues the dismissal of the underlying charge in the 2007 case is the
equivalent of failing to indict and/or proceed by way of criminal information under § 12-
(b)  Whenever  any  person,  after  an  evidentiary  hearing,  has  been
sentenced to imprisonment for violation of a suspended sentence or
probationary period by reason of the alleged commission of a felony or
misdemeanor said sentence of imprisonment   shall, on a motion made
to the court on behalf of the person so sentenced, be quashed, and
imprisonment shall be terminated when any of the following occur on
the  charge  which  was  specifically  alleged  to  have  constituted  the
violation:
(1) After trial person is found “not guilty” or a motion for judgment of
acquittal or to dismiss is made and granted pursuant to Superior or
District Court Rule of Criminal Procedure 29;
(2) After hearing evidence, a ‘no true bill’ is returned by the grand jury;
(3) After consideration by an assistant or special assistant designated by
the attorney general, a ‘no information’ based upon lack of probable
cause is returned;
(4) A motion to dismiss is made and granted pursuant to the Rhode
Island  general  laws  Sec.                                                                  12-12-1.7  and/or  Superior  Court  Rule  of
Criminal Procedure 9.1; or
(5) The charge fails to proceed in District or Superior Court under
circumstances where the state is indicating a lack of probable cause, or
circumstances where the state or its agents believe there is doubt about
the culpability of the accused.
(c)  This  section  shall  apply  to  all  individuals  sentenced  to
imprisonment for violation of a suspended sentence or probationary
period by reason of the alleged commission of a felony or misdemeanor
and shall not alter the ability of the court to revoke a suspended
sentence or probationary period for an allegation of conduct that does
not rise to the level of criminal conduct. (emphasis added)
4




19-18.   Moreover, White contends that ruling the illegally obtained evidence must be
suppressed in a criminal prosecution, but allowing the same evidence to be introduced to
demonstrate a violation of his deferred sentence amounts to legal error.   In support of his
position, White cites to the case of Board of License Commissioners of the Town of
Tiverton v. Pastore, for the proposition that the state cannot “avail itself of the fruits of an
illegal search in order to impose sanctions upon those persons whose constitutional rights
have been violated.”   463 A.2d 161, 164 (R.I. 1983).
Further, White asserts that any argument § 12-19-18 does not apply in this case
because a criminal information was filed is misplaced.   White alleges this argument
defies  the  intent  of                                                                            §  12-19-18’s  provisions  and  is  illogical  because   “there  is  no
procedural mechanism to suppress evidence obtained in violation of the United States and
Rhode Island Constitutions prior to the filing of a formal proceeding.”
Conversely, the State argues that  § 12-19-18 simply does not provide for the
quashing and dismissal of a deferred sentence violation when the State decides to dismiss
a criminal information after the granting of a defendant’s motion to suppress.   According
to the State, because it did file a criminal information, the plain language of § 12-19-18
“plainly  cannot  bear  the  weight                                                                [White]  ascribes  to  it”  as  nothing  in  White’s
memorandum “countermands the plain reading of R.I.G.L. § 12-19-18.”   Additionally,
the State asserts the Defendant’s reliance on Pastore is misplaced because the case does
not speak to § 12-19-18 and may no longer be good law in light of the Rhode Island
Supreme Court’s decision in Texter.   As a result, the State contends “it should be clear . .
. that there is no legal basis upon which to grant [White’s] motion to vacate and quash.”
Our Supreme Court has stated that “[t]he construction of legislative enactments is
5




a matter reserved for the courts.”   State v. Greenberg, 951 A.2d 481, 489 (R.I. 2008)
(quoting Brennan v. Kirby, 529 A.2d 633, 637 (R.I. 1987)).   When the language of a
statute is clear and unambiguous on its face, the task of statutory interpretation is at an
end and this Court must give the words of the statute their plain and ordinary meaning.
State v. Menard, 888 A.2d 57, 60 (R.I. 2005); see also State v. Smith, 766 A.2d 913, 924
(R.I. 2001).   This Court “‘will not broaden statutory provisions by judicial interpretation
unless such interpretation is necessary and appropriate in carrying out the clear intent or
defining the terms of the statute.’”   Mendard, 888 A.2d at 60 (quoting Gem Plumbing &
Heating Co. v. Rossi, 867 A.2d 796, 811 (R.I. 2005)).   When a statute is ambiguous and
susceptible to more than one interpretation, this Court must                                    “‘glean the intent and
purpose of the Legislature ‘from a consideration of the entire statute, keeping in mind
[the] nature, object, language and arrangement’ of the provisions to be construed.’”
Castelli v. Carcieri, 961 A.2d 277, 282 (R.I. 2008) (quoting In re Advisory Opinion to the
Governor, 668 A.2d 1246, 1248 (R.I. 1996)).
Here, White contends § 12-19-18 mandates the quashing and dismissal of his
deferred sentence violation because the State dismissed the 2007 case pursuant to Super.
R. Crim. Pro. 48(a).   After review, this Court is satisfied the clear and unambiguous
language of § 12-19-18(a) provides for the quashing and dismissal of a deferred sentence
violation only where “the grand jury has failed to return any indictment or an information
has not been filed on the charge which was specifically alleged to have constituted the
violation of the deferred sentence.” (Emphasis added).  It is undisputed the State did file a
criminal information against White in this case.   As such, by its very terms, § 12-19-18
does not provide White with a basis to quash and vacate his deferred sentence.  Ascribing
6




the interpretation proposed by White to § 12-19-18 ignores the plain language of the
statute and unnecessarily broadens its statutory provisions.  See Menard, 888 A.2d at 60.
Additionally, this Court is of the opinion that the appropriate avenue for White to
pursue a review of his violation hearing and sentence was through an appeal pursuant to
R.I. Sup. Ct., art. I R. (4) (b).   Under R.I. Sup. Ct., art. I R. 4(b), White had twenty days
to appeal his violation hearing and the sentence imposed to the Rhode Island Supreme
Court. However, in this case, the twenty day period for White to file an appeal has
already lapsed.   As a result, rather than pursue a review through an appeal, White chose
to move to quash and vacate his sentence pursuant to § 12-19-18, despite the statute’s
plain and unambiguous language.
Moreover, this Court also notes White’s contention that it was legal error for the
Court to consider evidence obtained as a result of the illegal search and seizure as part of
his violation hearing is unavailing.   As a preliminary matter, the exclusionary rule does
not apply to violation proceedings.   See Texter, 896 at 43 (quoting State v. Spratt, 120
R.I. 192, 195, 386 A.2d 1094, 1095-96 (1978)) (stating “‘the potential benefit to society
from refusing to extend the exclusionary rule to revocation hearings outweighs any harm
resulting from that refusal’”).    Moreover, the Court also notes White’s reliance on
Pastore, which extends the exclusionary rule to a liquor license revocation proceeding, is
misplaced.    See Pastore,  463 A.2d at  164.    Pastore does not address the clear and
unequivocal language of § 12-19-18, and was decided before the Rhode Island Supreme
Court’s decision in Texter.    Further, this Court also notes the determination White
violated the terms of his deferred sentence was not based “solely” upon the information
garnered from the illegal search and seizure.   In particular, in reaching its determination
7




the Court relied on the testimony of White’s probation officer, who viewed the images of
child  pornography  prior  to  contacting  the  Portsmouth  Police  which  department
summoned the State Police to Defendant’s home.   See Hampton v. State, 786 A.2d 375,
379 (R.I. 2001) (“The hearing justice's only responsibility is to determine, according to
the Rule 32(f) requirements, whether he or she is reasonably satisfied that the defendant
has violated one or more of the terms of his or her probation.”).   That testimony alone
was sufficient to conclude that White failed to keep the peace and remain of good
behavior. See State v. McCarthy, 945 A.2d 318, 327 (R.I. 2008).
III
Conclusion
Based on the foregoing, the Defendant’s Motion to Quash and Vacate Finding of
Violation of deferred sentence pursuant to § 12-19-18 is denied.
8

Download 04-0274.pdf

Rhode Island Law