Preview:

Supreme Court
No.   2001-149-M.P.
(P1/83-418A)
State                                                                                                :
v.                                                                                                   :
Anthony DeCiantis.                                                                                   :
Present:  Williams, C.J., Lederberg, Bourcier, Flanders, and Goldberg, JJ.
O P I N I O N
Flanders, Justice.   The distinction between an illegal sentence and one that was illegally
imposed lies at the heart of this case.   Under Rule 35(a) of the Superior Court Rules of Criminal
Procedure:
“The court may correct an illegal sentence at any time.   The court
may correct a sentence imposed in an illegal manner * * * within
one hundred twenty (120) days after the sentence is imposed, or
within one hundred twenty (120) days after receipt by the court of
a mandate of the Supreme Court of Rhode Island issued upon
affirmance of the judgment or dismissal of the appeal * * *.”
Petitioning for certiorari, the state asks us to reverse a recent Superior Court order that
vacated the consecutive life sentence of the respondent, convicted serial murderer Anthony
DeCiantis (DeCiantis).   Seventeen years after the court imposed this sentence, a Superior Court
motion justice granted DeCiantis’s motion to vacate it, ruling that it was void because the
original sentencing justice failed in 1984 to afford DeCiantis his right of allocution before he
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imposed the sentence.1   The state contends that the motion justice improperly allowed DeCiantis
to invoke Rule 35 in seeking to vacate his sentence because the 120-day period for filing a
motion to correct an illegally imposed sentence expired many years ago.   DeCiantis, however,
argues that the motion justice properly determined that his allocutionless sentence was not
merely illegally imposed, but also illegal.   Therefore, he contends, under Rule 35 the court could
correct it at any time by vacating the illegal sentence.
Because  the  Superior  Court  sentenced  DeCiantis  to  a  permissible  consecutive  life
sentence for having committed the crime of murder — albeit without first affording him his right
of allocution — it imposed a legal sentence for this crime in an illegal manner.   Such a sentence
could be corrected only if DeCiantis filed a timely motion to do so within the limited 120-day
period specified in Rule 35.  But he failed to do so.  Thus, because DeCiantis’s motion to correct
the sentence was untimely under Rule 35, we reverse, quash the order that vacated the sentence,
and reinstate the challenged sentence and conviction.
Travel and Facts
In 1984, a jury found DeCiantis guilty of first-degree murder.   State v. DeCiantis, 501
A.2d 365, 366 (R.I. 1985).   Thereafter, the Superior Court trial justice ordered a presentence
report and held a sentencing hearing at which he sentenced DeCiantis to serve a term of life
imprisonment, one that was to run consecutive to his previous life sentence for committing other
murders.   The court did so, however, without first affording DeCiantis his right of allocution.
See Super.R.Crim.P. 32(a)(1) and R.I. Const. art. 1, sec. 10.   Upon discovering his mistake, the
1                                                                                                     Rule                                                                            32(a)(1)  of  the  Superior  Court  Rules  of  Criminal  Procedure  codified  the
                                                                                                      constitutional right of allocution, providing, in pertinent part, as follows:
                                                                                                      “Before  imposing  sentence  the  court                                                                                                                             *  *  *  shall  address  the
                                                                                                      defendant personally and ask the defendant if he or she wishes to
                                                                                                      make a statement in his or her own behalf and to present any
                                                                                                      information in mitigation of punishment.”
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sentencing justice immediately recalled DeCiantis to the courtroom and informed him that he
had failed to give him an opportunity to address the court on his own behalf before the court
imposed the sentence.   Super.R.Crim.P.32(a)(1).   Although DeCiantis’s attorney had addressed
the court on behalf of his client before the court pronounced the sentence, the sentencing justice
belatedly gave DeCiantis the opportunity, in the presence of his attorney, to address the court
himself.   After DeCiantis briefly did so, however, the sentencing justice did not vacate the
sentence or resentence him, but merely adjourned without taking further action.
DeCiantis appealed his conviction to this Court, but we affirmed.  DeCiantis, 501 A.2d at
369.    He also filed several post-conviction-relief applications  — none of which, however,
challenged the propriety of his sentencing.    DeCiantis v. State,  666 A.2d  410  (R.I.  1995);
DeCiantis v. State, 599 A.2d 734 (R.I. 1991).   Ultimately, though, in 2000 — approximately
fifteen years after this Court affirmed his conviction — DeCiantis moved to correct his sentence
under Rule 35 and also to dismiss the indictment that led to his conviction, citing the alleged lack
of a speedy trial.
DeCiantis argued to the Superior Court that his 1984 consecutive life sentence should be
vacated because the sentencing justice failed to afford him his right of allocution.   According to
DeCiantis’s interpretation of Rule 35, this omission was fatal to the legality of the sentence and
required the court, per Rule 35(a), to correct such an illegal sentence “at any time.”   Moreover,
according  to  DeCiantis,  this  sentencing  error  also  undermined  the  validity  of  his  murder
indictment.  In response, the state argued that the sentencing justice simply imposed the sentence
in an improper manner, that it was not illegal or void, and that the Rule 35 motion to correct the
sentence was untimely because DeCiantis had filed it long after the 120-day period specified in
the rule had expired.   After hearing these arguments, the motion justice agreed with DeCiantis
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and ruled that the sentence was illegal.   Consequently, he vacated the consecutive-life sentence,
set the matter down for resentencing, and ordered a presentence report.   But the motion justice
also denied DeCiantis’s motion to dismiss the indictment, concluding that the state had not
violated his right to a speedy trial.
The state then petitioned this Court to issue a writ of certiorari to review the order
vacating the sentence.   In due course, we granted the petition, issued the writ, and stayed the
resentencing proceedings.
Analysis
“This Court limits its review on certiorari ‘to examining the record to determine if an
error of law has been committed.’”   City of Providence v. S & J 351, Inc., 693 A.2d 665, 667
(R.I. 1997) (per curiam) (quoting Matter of Falstaff Brewing Corp. Re: Narragansett Brewery
Fire, 637 A.2d 1047, 1049 (R.I. 1994)).                                                              “We do not weigh the evidence presented below, but
rather inspect the record to determine if any legally competent evidence exists therein to support
the findings made by the trial justice.”   Id.; see also Gregson v. Packings & Insulations Corp.,
708 A.2d 533, 535 (R.I. 1998).
In this case, the Superior Court motion justice properly found that the sentencing justice
erred in 1984 when he sentenced DeCiantis to serve a consecutive life term for committing his
third murder without first affording him the right of allocution.   Even though he heard from the
prosecution and from DeCiantis’s attorney, the sentencing justice acknowledged that he failed to
afford DeCiantis the personal opportunity to address the court on his own behalf before the court
sentenced him.   Upon realizing his mistake, the sentencing justice arranged for DeCiantis to be
brought back into the courtroom, where he belatedly afforded him the opportunity to address the
court.  The court did so, however, without vacating the previously imposed sentence and without
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resentencing DeCiantis after he exercised his right of allocution.   When the sentencing justice
personally asked DeCiantis if there was anything he wished to say, DeCiantis replied:                  “You
sentence me; you send me downstairs.   You made the error.   You’re correcting the error.   What
right do I have?   What right do you have to do that there, because you misled the record. * * *
You sentenced me to life.                                                                              * * * I’m not guilty of no crime, no murder.”   After DeCiantis
finished speaking, the sentencing justice simply adjourned the hearing without resentencing him
or taking any other action.
“The right of allocution in this state is a right of constitutional dimension.”   State v.
Brown, 528 A.2d 1098, 1105 (R.I. 1987).  Article 1, section 10, of the Rhode Island Constitution
guarantees all persons accused of crimes in this state the liberty to speak on their own behalf
before the court pronounces a sentence against them.2  Thus, the law is settled in this jurisdiction
that criminal defendants have the constitutional right to address the sentencing judge before he or
she pronounces the sentence.   See R.I. Const. art. 1, sec. 10; Super.R.Crim.P. 32; Brown, 528
A.2d at 1105.3                                                                                         “Rule 32(a) [of the Federal Rules of Criminal Procedure, the federal analogue to
2                                                                                                      Article 1, section 10, of the Rhode Island Constitution provides in pertinent part: “In all
criminal prosecutions; accused persons * * * shall be at liberty to speak for themselves * * *.”
3                                                                                                      This Court has construed the constitutional right of allocution as follows:
“[T]he constitutional liberty includes the right of an accused, as he stands at the
bar after conviction awaiting imposition of sentence, to bring to the attention of
the court those matters which one in his position could at common law have
spoken when inquiry was made as to why sentence should not be imposed.
“ * * *
“[This] liberty is a precious one.   That it cannot be denied does not mean
that it can be availed of without restriction or that its enjoyment is not subject to
reasonable regulation.   Abridgement, however, should be exercised with care and
caution and curtailment should not take place until the accused, or counsel, or
both if appropriate, have had a fair and full opportunity to bring to the court’s
attention all information germane and of possible assistance in the determination
of the sentence to be imposed.   No hard or fast rule can be adopted.   What is
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Super. R. Crim. P. 32] requires a * * * judge before imposing sentence to afford every convicted
defendant an opportunity personally to speak in his [or her] own behalf.”   Hill v. United States,
368 U.S. 424, 426, 82 S.Ct. 468, 470, 7 L.Ed. 2d 417, 420 (1962); Green v. United States, 365
U.S.  301,  304-05,  81 S.Ct.  653,  655,  5 L.Ed.  2d  670,  673-74  (1961)  (allowing defendant’s
counsel the opportunity to speak does not satisfy the right of allocution); Brown, 528 A.2d at
1105  (remanding the case for resentencing because after pronouncing the sentence the trial
justice asked the defendant if he had anything to say); State v. Nicoletti, 471 A.2d 613, 618 (R.I.
1984) (holding that it was insufficient for the trial justice to rely upon a presentence report and
then afford the defendant the opportunity to speak after sentencing him); Robalewski v. Superior
Court,  97 R.I.  357,  361,  197 A.2d  751,  754  (1964)  (holding that the court’s denial of the
defendant’s request to be given a reasonable opportunity to explain incidents not of record and
which were brought into issue by the assistant attorney general was an abuse of discretion).
In this case, the sentencing justice did not afford DeCiantis the personal opportunity to
address the court until after he pronounced the consecutive life sentence.   Although he quickly
realized  his  mistake  and  belatedly  recalled  DeCiantis  to  the  courtroom  to  afford  him  the
opportunity to speak, the sentencing justice did not vacate the original sentence nor did he
resentence DeCiantis after he exercised his right of allocution.   Because the sentencing justice
failed to do so, the court violated DeCiantis’s right of allocution at the 1984 sentencing hearing.
See Rule  32(a)(1)  (“[b]efore imposing sentence the court  *  *  * shall address the defendant
personally and ask the defendant if he or she wishes to make a statement in his or her own behalf
reasonable in one case may be unreasonable in another.    Each case must be
decided on its facts and in each instance the adoption of limitations is subject to a
judicial discretion.”   Robalewski v. Superior Court, 97 R.I. 357, 360, 197 A.2d
751, 753-54 (1964).
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and to present any information in mitigation of punishment”).   Accordingly, the motion justice
properly so found in 2001.
But the motion justice also ruled that the court’s denial of DeCiantis’ right of allocution
caused the sentence to be illegal and, thus, correctible at any time.   In reaching this conclusion,
he relied primarily on this Court’s 1964 decision in Robalewski and on his interpretation of
article 1, section 10, of the Rhode Island Constitution.   In Robalewski, 97 R.I. at 362, 197 A.2d
at 755, the Court on certiorari reviewed “the legality of the sentencing procedure,” concluding
that “the sentence of the Superior Court was illegal and void” id. at 363, 197 A.2d at 755,
because the “petitioner was denied his constitutional liberty to speak in his own behalf” before
the court sentenced him for escaping from prison.   Id. at 361, 197 A.2d at 754.   In relying on
Robalewski, however, the motion justice overlooked the fact that, with this Court’s approval, the
Superior Court adopted Rule 35 after this Court decided Robalewski, and thereby adopted the
distinction embodied therein between illegal sentences and illegally imposed sentences.
Although Rule 35 permits the Superior Court to correct an illegal sentence at any time, it
can correct an illegally imposed sentence only within a 120-day period after the sentence is
imposed or after this Court has affirmed the judgment of conviction or dismissed the defendant’s
appeal.4   See Rule 35.   The Reporter’s Notes to Rule 35 distinguish between an illegal sentence
and an illegally imposed sentence, as follows:
4                                                                                                      Federal practice and procedure under the analogous federal rule is consistent with our
interpretation of Rule 35 of the Superior Court Rules of Criminal Procedure.   See Charles Alan
Wright, Federal Practice and Procedure:  Criminal 2d, § 585 at 395-97 (2nd ed. 1982):
“In [Hill v. United States], ‘the [Supreme] Court held that neither
§ 2255  nor                                                                                            [Federal  Rule  of  Criminal  Procedure]  Rule                                           35
permitted  an attack  on a  legal  sentence  imposed  in  an illegal
manner, over the protest of four dissenting justices who objected to
‘such a begrudging interpretation of Rule 35.’ * * * In 1966 Rule
35 was amended by adding language permitting the court to correct
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“For purposes of the rule, an ‘illegal sentence’ is one which has
been imposed after a valid conviction but is not authorized under
law.   It includes, e.g., a sentence in excess of that provided by
statute,  imposition  of  an  unauthorized  form  of  punishment,  a
judgment that does not conform to the oral sentence.                                                     * * * [But] a
sentence illegally imposed is one that does not conform to the
procedures   required   by   these   rules   for   imposition   of
sentence* * *.” (Emphases added.)
The reporter’s notes to Rule 35 explicitly state that an example of an illegally imposed sentence
is: “failure to accord a defendant his right of allocution under Rule 32.”5   In State v. Tucker, 747
A.2d  451,  454  (R.I.  2000),  this  Court  held  that  ordering  a  continuation  of  a  defendant’s
remaining suspended sentence and ordering him to serve a portion of his original sentence in
prison was not an illegal sentence.   We provided an example of an illegal sentence; to wit:
adding an additional probationary period to an original sentence.6  Id.
On April 26, 1972, approximately eight years after it decided Robalewski, this Court
approved the Superior Court Rules of Criminal Procedure, including Rules 32 and 35, which
a sentence imposed in an illegal manner.   The amendment was
specifically intended  to  overrule  the  holding in                                                     [Hill].    If the
challenge  is  to  the  illegality  of  the  manner  of  imposition  of
sentence, the motion must be made within the time limits provided
by the rule for a reduction of sentence. * * * The [Hill] decision
clearly establishes that denial of the right of allocution does not
make the sentence itself illegal, and the shorter time for a motion
claiming illegality in the imposition of the sentence will apply if
this is the defect.”                                                                                     (Emphasis added.)
5                                                                                                        Even in the 1976 edition of the Superior Court Rules of Criminal Procedure the example
provided for a sentence illegally imposed is the denial of the right of allocution.   See Rule 35,
Reporter’s Notes (1976).
6                                                                                                        Even more recently, in December 2001, we stated that an illegal sentence was “one that
when imposed is at variance with the statute pr[e]scribing the punishment that may be imposed
for the particular crime or crimes.”   State v. Murray, 788 A.2d 1154, 1155 (R.I. 2001) (mem.).
Here, DeCiantis’s consecutive life sentence was not at variance with the statute prescribing the
punishment that may be imposed for this particular crime of murder.  Thus, it was not illegal.
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became effective on September 1, 1972.7   See Order dated April 26, 1972; see also Letendre v.
Rhode Island Hospital Trust Co., 74 R.I. 276, 281, 60 A.2d 471, 474 (1948) (explaining that “[a]
rule of court, if promulgated under a proper exercise of judicial power to make rules for practice
and procedure within that court, is given the same force and effect as a statute”).   Rule 35
distinguished for the first time between an illegally imposed sentence and an illegal sentence, a
rule-based distinction that did not exist when this Court decided Robalewski in 1964.   Because
this Court approved Rule  35 after it decided Robalewski and because the Superior Court
sentenced DeCiantis in  1984 when Rule  35 was in effect, Rule  35 takes precedence and
supersedes any statements in Robalewski that are contrary to the rule.
For this reason, we are of the opinion that the motion justice erred in relying on
Robalewski to vacate the sentence in this case and in finding that the sentencing justice’s failure
to afford DeCiantis his right of allocution before the sentencing rendered DeCiantis’s sentence
illegal and void.   On the contrary, under Rule 35 the denial of this right did not render the
sentence illegal; rather, all it signified was that a legal sentence had been illegally imposed.   In
other words, the sentencing justice imposed a legal sentence on DeCiantis in an illegal manner.
As clearly stated in the reporter’s notes to Rule 35, the denial of the right of allocution before
sentencing is an example of an illegally imposed sentence.   Because the law permitted the
sentencing justice to impose on DeCiantis a consecutive life sentence for murder, such a
sentence was not itself illegal.8   DeCiantis, 501 A.2d at 366 (jury found DeCiantis guilty of
murder in the first degree).    Given the concurrent life sentences previously imposed upon
7                                                                                                       General Laws 1956 § 8-6-2(a) provides that “[t]he rules of the superior, family, district
court and the traffic tribunal shall be subject to the approval of the supreme court.   Such rules,
when effective, shall supercede any statutory regulation in conflict therewith.”
8                                                                                                       General Laws 1956 § 11-23-2(a) provides that: “[e]very person guilty of murder in the
first degree shall be imprisoned for life.”
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DeCiantis for committing other murders, the sentencing justice possessed the discretion to
impose either a consecutive or another concurrent life sentence on this defendant.9    Thus,
DeCiantis’ consecutive life sentence, which was a proper form of punishment for his third
conviction for first-degree murder, was not an illegal sentence and the court’s mistake in failing
to afford DeCiantis his right of allocution simply caused the sentence to be illegally imposed, but
not illegal and void.
For this reason, DeCiantis’s reliance on Robalewski, and on the Brown and Nicoletti
decisions — as well as on Leonardo v. State, 444 A.2d 876 (R.I. 1982) — is unavailing.   Unlike
this case, Leonardo involved a petition for post-conviction relief — not a Rule 35 motion.   And
no  one  argued  in  Leonardo  that  the  sentencing  challenge  was  untimely  or  barred  by  the
petitioner’s failure to raise the allocution-denial issue in a previous petition.  Further, both Brown
and Nicoletti examined the legality of the sentencing process on the defendants’ direct appeals
from  their  convictions                                                                                 —  but  not,  as  here,  on  a  Rule  35  motion  filed  many  years  after
DeCiantis’s direct appeal had concluded.
In addition, DeCiantis has waived any right he may have had to seek post-conviction
relief based on the denial of his right of allocution.10  Even were we to assume, without deciding,
9                                                                                                        General Laws 1956 § 12-19-5 provides that:
“Whenever any person is convicted of any offense punishable by
imprisonment, when that person is under sentence of imprisonment
on a previous conviction, the court passing the subsequent sentence
may sentence the person to the term of imprisonment provided by
law, to commence at the completion of the term under the previous
sentence or sentences.”
10                                                                                                       General Laws 1956 § 10-9.1-1 provides in pertinent part:
“(a)   Any person who has been convicted of, or sentenced for, a
crime, a violation of law, or a violation of probationary or deferred
sentence status and who claims:
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that DeCiantis could have raised this issue in the first post-conviction-relief application that he
filed in 1985, he failed to do so.   Once he filed that application and litigated it to judgment
without challenging the legality of his sentence, “[a]ny ground * * * not so raised * * * may not
be the basis for a subsequent application, unless the court finds that in the interest of justice the
applicant should be permitted to assert such a ground for relief.”11   G.L. 1956 § 10-9.1-8.  Under
§ 10-9.1-8:
“All  grounds  for  relief  available  to  an  applicant                                                [for  post-
conviction relief] at the time he or she commences a proceeding
under this chapter must be raised in his or her original, or a
supplemental  or  amended,  application.     Any  ground  finally
adjudicated  or  not  so  raised,  or  knowingly,  voluntarily  and
intelligently  waived  in  the  proceeding  that  resulted  in  the
conviction or sentence or in any other proceeding the applicant has
taken to secure relief, may not be the basis for a subsequent
application, unless the court finds that in the interest of justice the
applicant should be permitted to assert such a ground for relief.”
(1)   That the conviction or the sentence was in violation of
the constitution of the United States or the constitution or laws of
this state;
(3)   That the sentence exceeds the maximum authorized by
law, or is otherwise not in accordance with the sentence authorized
by law;
“(b)  *  *  * may institute, without paying a filing fee, a
proceeding under this chapter to secure [post-conviction] relief.”
(Emphases added.)
11                                                                                                      To date, DeCiantis has prosecuted three different post-conviction-relief applications to
judgment, and his counsel informed us at oral argument that he now is prosecuting yet another
such application.   He filed his first post-conviction-relief application in 1985, arguing that the
trial justice not only erred when he instructed the jury, but also that DeCiantis was the victim of
ineffective assistance of counsel.   The Superior Court denied this application and this Court
affirmed the judgment on appeal.   DeCiantis v. State, 599 A.2d 734, 735 (R.I. 1991).   In 1988, a
hearing justice granted his second post-conviction-relief application and decreed that DeCiantis
would be eligible for parole on his two concurrent life sentences.   DeCiantis v. State, 666 A.2d
410, 411 (R.I. 1995).  Lastly, a hearing justice denied his 1993 post-conviction-relief application,
indicating that DeCiantis thereafter would not be eligible for parole until he served ten years on
his concurrent sentences and an additional ten years on his consecutive sentence.   Id. at 411-12.
This Court on appeal affirmed the judgment of the Superior Court.  Id. at 413.
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Thus, because DeCiantis failed to raise the denial of his right of allocution when he filed
his first post-conviction-relief application without raising this issue, such a ground cannot form
the basis for a later application — “unless the court finds that in the interest of justice” the
applicant should be permitted to do so.   But DeCiantis has failed to provide us with any reasons
why his belated challenge to the 1984 sentencing could not have been raised in connection with
any of his three previous post-conviction-relief applications, let alone via a timely Rule  35
motion.   In short, there do not appear to be any reasons why, in the interest of justice, DeCiantis
should be permitted to assert such a ground for relief at this late date.
Conclusion
Rule 35 clearly states that a court can correct an illegally imposed sentence only within
120 days after the sentencing or within 120 days after receipt by the court of a mandate from this
Court, issued upon affirmance of the judgment or dismissal of the appeal.   See Rule 35; State v.
Letourneau, 446 A.2d 746, 748 (R.I. 1982) (emphasizing “that the 120-day time period set forth
in Rule 35 is jurisdictional and may not be enlarged”); see also United States v. Ramsey, 655
F.2d 398, 401 (D.C. Cir. 1981) (finding defendant unable to correct a sentence imposed in an
illegal manner because more than  120 days had passed).    DeCiantis exceeded the  120-day
jurisdictional limit because he filed his Rule 35 motion to correct his sentence in 2000 — sixteen
years after his 1984 sentencing and fifteen years after this Court affirmed his conviction in 1985.
Thus, the motion justice erred in vacating the sentence because the motion to correct the sentence
was not only untimely under Rule 35, but it was also barred by § 10-9.1-8’s waiver rule, which
codifies the doctrine of res judicata as applied to petitions for post-conviction relief.
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For these reasons, we grant the petition for certiorari, quash the Superior Court’s order,
reinstate the original sentence, and remand the papers in this case to the Superior Court with our
decision endorsed thereon.
Justice Lederberg participated in all proceedings but deceased prior to the filing of this
opinion.
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COVER SHEET
TITLE OF CASE:                                                                                        State v. Anthony DeCiantis
DOCKET NO:                                                                                            2001-149-M.P.
COURT:                                                                                                Supreme
DATE OPINION FILED:   January 16, 2003
Appeal from
SOURCE OF APPEAL:    Superior                                                                         County: Providence
JUDGE FROM OTHER COURT:                                                                               Nugent, J.
JUSTICES:  Williams, C.J., Lederberg, Flanders, and Goldberg, JJ.
Not Participating
Dissenting
Justice Lederberg participated in all proceedings but deceased prior to the filing of this opinion.
WRITTEN BY:                                                                                           Per Curiam
ATTORNEYS:                                                                                            Aaron L. Weisman
For Plaintiff
ATTORNEYS:                                                                                            Marie T. Roebuck
For Defendant
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