Preview:

Supreme Court
No.   2011-323-C.A.
(P2/00-849A)
State                                                                        :
v.                                                                           :
Curtis Isom.                                                                 :
NOTICE:   This opinion is subject to formal revision before publication in
the Rhode Island Reporter.   Readers are requested to notify the Opinion
Analyst, Supreme Court of Rhode Island, 250 Benefit Street, Providence,
Rhode  Island  02903,  at  Tel.  222-3258  of any typographical  or other
formal errors in order that corrections may be made before the opinion is
published.




Supreme Court
No.   2011-323-C.A.
(P2/00-849A)
State                                                                                                :
v.                                                                                                   :
Curtis Isom.                                                                                         :
Present:  Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
O P I N I O N
Justice Flaherty, for the Court.  The defendant, Curtis Isom, appeals from an order of a
Superior Court magistrate that denied his motion to vacate what he argued was an illegal
sentence that was imposed after he admitted to violating the terms and conditions of his
probation.  On appeal, the defendant argues that: (1) the magistrate who revoked five years of his
suspended sentence exceeded her authority in doing so; (2) the trial justice who subsequently
heard the defendant’s motion to vacate that sentence erred when he declined to address the
motion and instead returned it to the original sentencing magistrate to decide; (3) G.L. 1956 §
12-19-18 requires that the defendant’s sentence be quashed and his imprisonment terminated;
and (4) even if the revocation of five years of the defendant’s suspended sentence was proper,
the magistrate erroneously calculated the amount of time that remained suspended after those
five years.   For the reasons set forth in this opinion, we conclude that subsequent events have
caused much of this appeal to become moot, and we therefore decline to address its merits.
However, the parties do not dispute that the magistrate erroneously calculated the time remaining
on the defendant’s suspended sentence and probationary period, and, therefore, we remand the
- 1 -




matter to the Superior Court for a hearing to calculate the proper probationary period and
suspended sentence remaining.
I
Facts and Travel
On February 28, 2000, defendant pled nolo contendere to one count of breaking and
entering;  he  received  a  fifteen-year  sentence,  with  two  years  to  serve  and  the  remainder
suspended, with probation.   Over the next several years, the state filed five notices of probation
violation against defendant under Rule 32(f) of the Superior Court Rules of Criminal Procedure.1
The first, filed on August  19,  2002, resulted in defendant being adjudged a violator of his
probation, and three years of his remaining thirteen-year suspended sentence were revoked.   The
second, filed on March 14, 2006, resulted in another adjudication of violation against defendant,
and fifty days more of his suspended sentence were revoked.   No judgment was entered on the
third notice of violation; however, a fourth was filed on December  31,  2008, alleging that
defendant had violated G.L. 1956 § 11-8-2 by breaking and entering a residence.2   It is the
1  Rule                                                                                                 32(f)  of  the  Superior  Court  Rules  of  Criminal  Procedure,  entitled   “Revocation  of
Probation,” provides:
“The court shall not revoke probation or revoke a suspension of
sentence or impose a sentence previously deferred except after a
hearing at which the defendant shall be afforded the opportunity to
be present and apprised of the grounds on which such action is
proposed. The defendant may be admitted to bail pending such
hearing. Prior to the hearing the State shall furnish the defendant
and the court with a written statement specifying the grounds upon
which action is sought under this subdivision.”
2 General Laws 1956 § 11-8-2 provides:
“(a) Every person who shall break and enter at any time of the day
or night any dwelling house or apartment, whether the dwelling
house or apartment is occupied or not, or any outbuilding or garage
attached to or adjoining any dwelling house, without the consent of
the owner or tenant of the dwelling house, apartment, building, or
garage, shall be imprisoned for not less than two (2) years and not
- 2 -




disposition of that fourth violation that forms the basis of defendant’s appeal to this Court.3
On March  12,  2009, a hearing was held in the Superior Court on the fourth alleged
probation violation.   At that hearing, defendant and the state agreed that defendant would admit
to violating the terms and conditions of his probation and that five years of his suspended
sentence would be revoked.   Both sides also agreed that if the state were to pursue a case against
defendant on the new charge of breaking and entering that had precipitated the notice of
violation, then, in that case, the state would agree to a fifteen-year sentence on that charge, with
five years to serve, concurrent with the five years that defendant would serve for the probation
violation.   Later, in open court, the following exchange occurred between defendant and the
magistrate:
“THE COURT:   Okay. Thank you. Mr. Isom, did you have
plenty of time to discuss this with your lawyer.
“THE DEFENDANT:  Yes, ma’am.
more than ten (10) years for the first conviction, and for the second
and subsequent conviction shall be imprisoned for not less than
four (4) years and not more than fifteen (15) years, or fined not
more than ten thousand dollars ($10,000), or both.
“(b) Every person convicted pursuant to subsection (a) of this
section shall be ordered to make restitution to the victim of the
offense or to perform up to five hundred (500) hours of public
community restitution work, or both, or any combination of them
approved by the sentencing judge. The court may not waive the
obligation to make restitution and/or public community restitution
work. The restitution and/or public community restitution work
shall be in addition to any fine or sentence which may be imposed
and not in lieu of the fine or sentence.”
The fourth notice of violation was also filed in a separate matter in which
defendant had pled nolo contendere to driving a vehicle without the consent of the
owner in  2007, for which he received a three-year suspended sentence, with
probation.   That sentence was being served concurrently with the sentence that
was imposed in 2000 for breaking and entering.
3 The fifth notice of violation was filed on July 13, 2011, and resulted in another adjudication of
violation against defendant, and thirty months of his suspended sentence were revoked.
- 3 -




“THE COURT:   And you understand that you have a right to
the, a hearing on these violations?
“THE DEFENDANT:  Yes, ma’am.
“THE COURT:   And do you wish to give up your right to that
hearing today and admit to the violations?
“THE DEFENDANT:  Yes, ma’am.
“THE  COURT:     Okay.  Understanding  that  you’re  being
sentenced to five years to serve on those violations, retroactive to
the date of December 27th of last year?
“THE DEFENDANT:  Yes, ma’am.
“THE COURT:  Okay. Defendant admits and is declared to be a
violator. That sentence just mentioned is imposed.
“THE CLERK:    Five years, is that coming off one of the
specific cases * * *?
“[THE PROSECUTOR]:  That can come off of [the 2000 case],
and that would leave a balance of eight years suspended with
probation on that case. And the [2007] case may be continued on
the same.
“THE CLERK:  Thank you
“THE COURT:  All set.”
Judgment was entered on April 24, 2009, revoking five years of defendant’s previous suspended
sentence and retaining eight years of that suspended sentence, with probation.
Subsequently, defendant filed what he styled a motion for modification or reduction of
his sentence and a separate motion to vacate his sentence, in which he asserted that he “was
under the impression” that after admitting to the violation, the substantive charges and the
violation would be “wrapped up,” with both sentences of five years to run concurrently.   He
further contended that he never would have admitted to the violation if he knew that the new
charges that had been brought against him would not be prosecuted.    He argued that his
- 4 -




admission was therefore not knowing and voluntary and that the prosecutor and his attorney
“pushed” the deal on him.   He also argued that the sentencing magistrate “did not have the
authority to sign the entry of final judgment.”
The defendant’s motion came before a trial justice of the Superior Court on July 24,
2009; however, the trial justice did not take the matter up, but reassigned the motion to the
sentencing magistrate because she “[wa]s the proper party * * * hav[ing] taken the admission to
the violation in this particular matter.”  On August 12, 2009, the sentencing magistrate conducted
a hearing on defendant’s motions.   At that hearing, she reviewed the transcript of the March 12,
2009 probation violation hearing, in which defendant indicated that he understood the agreement
that the parties had reached and that he had been afforded  “plenty of time” to discuss the
proposed disposition of the violation with his attorney.   The sentencing magistrate then denied
defendant’s motions, and an order to that effect was entered on September  6,  2011.    The
defendant timely appealed to this Court.   Then, significant to our consideration, on February 28,
2013—the day this case was argued before us—counsel candidly informed this Court that
defendant was to be released from prison on the next day, March 1, 2013.
II
Standard of Review
“The sole issue for consideration at a probation-violation hearing is ‘whether or not the
defendant has breached a condition of his or her probation by failing to keep the peace or remain
on good behavior.’” State v. Gilbert, 984 A.2d 26, 29 (R.I. 2009) (quoting State v. Tetreault, 973
A.2d 489, 491 (R.I. 2009)).   In reviewing “a hearing justice’s decision in a probation violation
proceeding,” it is not the function of this Court to weigh the credibility of witnesses, but rather,
our review is “limited to considering whether the hearing justice acted arbitrarily or capriciously
- 5 -




in finding a violation.” State v. Sylvia, 871 A.2d 954, 957 (R.I. 2005) (quoting State v. Rioux,
708 A.2d 895, 897 (R.I. 1998)); see also State v. McLaughlin, 935 A.2d 938, 942 (R.I. 2007).
Additionally, we review questions of law, including constitutional questions and those
concerning  statutory  interpretation,  de  novo.  Rhode  Island  Mobile  Sportfishermen,  Inc.  v.
Nope’s Island Conservation Association, Inc., 59 A.3d 112, 118 (R.I. 2013); State v. Lopez, 45
A.3d 1, 11 (R.I. 2012).
III
Discussion
In the past, this Court has held that we                                                              “first must address the threshold issue of
justiciability before we may entertain the merits of the parties’ substantive arguments.” City of
Cranston v. Rhode Island Laborers’ District Council, Local 1033, 960 A.2d 529, 533 (R.I. 2008).
“If this Court’s judgment would fail to have a practical effect on the existing controversy, the
question is moot, and we will not render an opinion on the matter.” Id.   Furthermore, “[a] case is
moot if it raised a justiciable controversy at the time the complaint was filed, but events
occurring after the filing have deprived the litigant of an ongoing stake in the controversy.” Id.
(quoting Seibert v. Clark, 619 A.2d 1108, 1110 (R.I. 1993)).
Moreover, we have held that “the completion of a prisoner’s sentence renders his or her
appeal from the revocation of a term of supervised release moot.” State v. Cosores, 891 A.2d
893, 894 (R.I. 2006) (mem.); see also State v. Jones, 969 A.2d 676, 679 n.3 (R.I. 2009).   In this
case, the parties agree that, because defendant has been released from prison, the issues that were
raised about his admission of probation violation and the length of time that he was required to
serve for violation of the terms and conditions of his probation are moot.
- 6 -




The  only  issue  that  remains  is  whether  the  sentencing  magistrate  erred  when  she
calculated the time that remains on the defendant’s suspended sentence and probation.   The state
concedes  that  the  sentencing  magistrate  did,  in  fact,  err  when  she  made  that  calculation.
Therefore, we shall remand this matter to the Superior Court for a hearing to recalculate the
length of time that remains on the defendant’s suspended sentence and probation.
IV
Conclusion
For the reasons stated herein, the defendant’s appeal is granted in part and denied in part.
The matter is remanded to the Superior Court for proceedings consistent with this opinion.
- 7 -




RHODE ISLAND SUPREME COURT CLERK’S OFFICE
Clerk’s Office Order/Opinion Cover Sheet
TITLE OF CASE:                                          State v. Curtis Isom.
CASE NO:                                                No. 2011-323-C.A.
                                                        (P2/00-849A)
COURT:                                                  Supreme Court
DATE OPINION FILED:   April 11, 2013
JUSTICES:                                               Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia JJ.
WRITTEN BY:                                             Associate Justice Francis X. Flaherty
SOURCE OF APPEAL:    Providence County Superior Court
JUDGE FROM LOWER COURT:
Associate Justice William E. Carnes, Jr.
Magistrate Susan L. Revens
ATTORNEYS ON APPEAL:
For State:  Aaron L. Weisman
Department of Attorney General
For Defendant:  Susan B. Iannitelli, Esq.

Download 11-323.pdf

Rhode Island Law