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Supreme Court
No. 2003-606-C.A.
(P2/97-351A)
State                                                                                           :
v.                                                                                              :
Keith Burke.                                                                                    :
Present:  Williams, C.J., Goldberg, Flaherty, Suttell, and Robinson, JJ.
O P I N I O N
PER CURIAM.   This case came before the Supreme Court on April 5, 2005,
pursuant to an order directing the parties to appear and show cause why the issues raised
in this appeal should not summarily be decided.   The defendant appeals from a Superior
Court order denying his motion to reduce his sentence for felony witness intimidation
with an enhanced penalty as a habitual offender.   After hearing arguments of counsel and
reviewing the memoranda submitted by the parties, we are satisfied that cause has not
been shown.  Accordingly, we shall decide the appeal at this time. We affirm.
I
A
Conviction and Sentencing for Witness Intimidation1
In June 1996, after assaulting his wife, Deborah Burke (Deborah), and destroying
a vase, defendant was arrested and charged with assault and battery and malicious
damage.   At the time, defendant was on probation, having recently completed a prison
sentence on unrelated charges, and therefore, the state sought to have him declared a
1 The facts reported herein were adopted, in large part, from the facts set forth in State v.
Burke, 811 A.2d 1158 (R.I. 2002) (Burke I).
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probation violator.   On September 6, 1996, just before his probation violation hearing
was to begin, he committed the offense of witness intimidation.
The facts disclosed that a disinterested witness, Kathleen O’Brien  (O’Brien),
while outside the courthouse, observed defendant yelling at Deborah “that if the state
didn’t have any witnesses[, then] they couldn’t go forward with the case” and if “you
don’t drop the charges I am going to beat the f * * * out of you and they will find you
half dead.”   O’Brien reported the incident, and on September 24, 1996, the state charged
defendant with felony witness intimidation.   One day after defendant’s arraignment, the
state served notice that it would pursue the imposition of an enhanced penalty under the
habitual offender statute, G.L. 1956 § 12-19-21.2   The state listed two predicate offenses
on its notice:   breaking and entering a dwelling without consent of the tenant (P2/92-
1715A) and larceny of goods valued in excess of $500 (P2/93-3967A).3
At a pretrial hearing, the state moved to amend the habitual offender notice to
replace the breaking and entering conviction with another of defendant’s convictions,
2 General Laws 1956 § 12-19-21, provides, in pertinent part:
“(a) If any person who has been previously convicted in this or any other
state of two (2) or more felony offenses arising from separate and distinct
incidents and sentenced on two (2) or more occasions to serve a term in
prison is, after the convictions and sentences, convicted in this state of any
offense punished by imprisonment for more than one year, that person
shall be deemed a ‘habitual criminal.’   * * *
“(b) Whenever it appears a person shall be deemed a  ‘habitual
criminal,’  the  attorney  general,  within  forty-five                                       (45)  days  of  the
arraignment, but in no case later than the date of the pretrial conference,
may  file  with  the  court  a notice specifying that the defendant, upon
conviction,  is  subject  to  the  imposition  of  an  additional  sentence  in
accordance with this section * * *.”
3 In case number P2/92-1715A, defendant was charged with felony breaking and entering,
but he later pled guilty to a lesser charge.   In case number P2/93-3967A, defendant pled
guilty to stealing bushes from a nursery in Johnston.   He appeared before the Superior
Court and entered into a plea agreement, under which he received a ten-year suspended
sentence and was ordered to pay $1,200 in restitution.
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namely, for assault of a person over the age of sixty (P2/91-4083A).   The state had
discovered  that,  pursuant  to  a  plea  agreement,  defendant  had  been  convicted  of
misdemeanor trespass instead of the felony breaking and entering in P2/92-1715A.   The
trial justice granted the motion, and the felony assault conviction served as one of the two
predicate felony offenses required to establish habitual offender status.
A jury found defendant guilty of felony witness intimidation.   The trial justice
sentenced Burke to serve five years in prison on the underlying charge, plus an additional
fifteen years as a habitual offender.   The defendant appealed to this Court and challenged
several pretrial rulings by the trial justice.   He also contested his habitual offender status,
arguing that he received only a suspended sentence for one of his predicate offenses.
In State v. Burke, 811 A.2d 1158, 1161 (R.I. 2002) (Burke I), this Court affirmed
the sentence.   We concluded that the trial justice did not abuse his discretion by denying
defense counsel’s motion to withdraw nor did he err by granting the state’s motion to
amend the criminal information or the habitual offender notice.   Id. at 1165-66, 1168.   In
addition,  we  held  that                                                                          “a  suspended  sentence  is  the  imposition  of  a  term  of
imprisonment[,] which is then suspended,” and therefore, a suspended sentence may be
used to satisfy the requirements of the habitual offender statute.  Id. at 1169.
B
Posttrial Motions
After his conviction was affirmed by this Court, defendant filed a host of motions
to reduce and/or correct his sentence for witness intimidation, as well as a motion to
vacate his sentence for larceny in P2/93-3967A.   He challenged the use of the larceny
conviction as a basis for habitual offender status, arguing, yet again, that a suspended
sentence cannot serve as a predicate offense for purposes of the habitual offender statute
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and that he was told he would not serve any jail time for that conviction.  Also, defendant
moved to vacate the larceny conviction and its use as a predicate offense, contending he
was not afforded his right of allocution during the plea colloquy.   In addition, defendant
asserted that his sentence should be reduced because the fifteen-year enhancement under
the habitual offender statute was grossly disproportionate to the witness intimidation
sentence.
The hearing justice denied defendant’s motion to vacate his larceny sentence,
finding that, even if defendant had been deprived of his right of allocution, the sentence
would have been legal, albeit illegally imposed.   The remedy, therefore, would be for the
court to correct the sentence, not vacate it, and a motion to correct must be filed within
120 days of sentencing.4   Moreover, the hearing justice suggested that defendant may
have waived his right of allocution when, during the plea colloquy, the trial justice
reviewed the sentence and asked him whether he understood the agreement.
Furthermore, after considering defendant’s plea for leniency, the hearing justice
denied the motions to reduce and/or correct.   He found that because he had refused to
vacate the predicate larceny conviction there was no basis for a sentence reduction.   The
trial justice rejected defendant’s argument that the fifteen-year sentence enhancement
4 Rule 35(a) of the Superior Court Rules of Criminal Procedure provides, in pertinent
part:
“The court may correct a sentence imposed in an illegal manner and it
may reduce any sentence when a motion is filed within one hundred and
twenty (120) days after the sentence is imposed, or within one hundred
and 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, or within one hundred and twenty (120) days after
receipt by the court of a mandate or order of the Supreme Court of the
United States issued upon affirmance of the judgment, dismissal of the
appeal, or denial of a writ of certiorari.”
It had been almost nine years since defendant was sentenced in case P2/93-3967A.
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under the habitual offender statute was excessive, finding it without merit:   “Although the
underlying basis for imposing a sentence for habitual offender depended upon the two
prior  felony  convictions,  this  defendant  has  a  long  and  extensive  record  of  law
violations.”   He went on to say that “the enhancement has nothing to do with the original
underlying offense[;] * * * his underlying offense[] is the culmination of [a] habitual
offender career, and is a serious culmination in any event.”
II
Issues on Appeal
Before this Court, defendant argues that the fifteen-year sentence he received as a
habitual offender was grossly disproportionate and excessive, particularly given that
witness intimidation is not a “truly heinous or unique” crime.   He next contends that the
state failed to prove his prior convictions and imprisonments, as required under the
habitual offender statute.   In addition, defendant again argues that he was not sentenced
to serve a term in prison for the larceny conviction but that, instead, the trial justice
deferred sentencing for that offense.   Finally, defendant asserts that his sentence in the
predicate larceny offense was illegal.
The only issue properly before this Court, however, is whether the trial justice
erred  by  denying  defendant’s  motion  to  reduce  his  witness  intimidation  sentence.
Following the hearing on Burke’s posttrial motions, defendant filed only one notice of
appeal, citing the denial of his motion to reduce.   However, for the sake of completeness,
we will address all of defendant’s issues.
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III
A
Motion to Reduce Sentence as a Habitual Offender
A motion for reduction of sentence “is essentially a plea for leniency.”   State v.
Ferrara, 818 A.2d 642, 644 (R.I. 2003) (quoting State v. Kilburn, 809 A.2d 476, 480 (R.I.
2002)).   In our jurisprudence, there is a “‘strong policy against interfering with a trial
justice’s discretion in sentencing matters.’”   Id.   Therefore, our review of a trial justice’s
ruling on a motion to reduce is limited.  State v. Morris, 863 A.2d 1284, 1286 (R.I. 2004)
(citing Ferrara, 818 A.2d at 644).   We will not disturb a trial justice’s ruling on a motion
under Rule  35 of the Superior Court Rules of Criminal Procedure, except  “‘in rare
instances  when’  the  sentence  imposed  is  one                                                  ‘without  justification  and  is  grossly
disparate from other sentences generally imposed for similar offenses.’”   Id. at 1287
(quoting Ferrara, 818 A.2d at 644).
The defendant asserts that his fifteen-year sentence under the habitual offender
statute  is  grossly  disproportionate  to  the  five-year  sentence  imposed  for  witness
intimidation.    This argument is wholly without merit.    First, defendant received the
maximum sentence for the underlying offense - five years imprisonment.   General Laws
1956 § 11-32-5(b).   In contrast, under the habitual offender statute, defendant could have
received  twenty-five  years,  instead of  a  fifteen-year  sentence.    Section 12-19-21(a).
Moreover, we agree with the hearing justice that the seriousness of witness intimidation
cannot be understated.  As the hearing justice eloquently explained:
“[T]his  defendant  has  undermined  one  of  the  basic
foundations of the justice system.  Doing justice even in the
most  heinous  of  offenses,  murder,  kidnapping,  or  rape,
depends upon witnesses taking the witness stand and telling
the  truth,  whether  those  witnesses  be  eyewitnesses,
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character witnesses, expert witnesses, forensic witnesses,
documentary witnesses, the list could go on and on.
“If we don’t have witnesses who come forward to testify
about what they saw, what they heard, what they observed,
and what they concluded from the things they, or other
people[,] saw, observed[,] or heard, our system collapses.
“We can’t do justice unless there are witnesses for the
prosecution  and,  where  they  exist,  witnesses  for  the
defense, if the defendant elects to call witnesses.
“Interfering with witnesses[,]                                                                *  *  * in the case of this
defendant[,] * * * is the culmination of a criminal career.
It’s the culmination of a life’s experience that taught, if
nothing else, that if you try hard enough you can get away
with almost anything.   That was the basis of the overall
sentencing here.”
We are in complete agreement with this reasoning and conclude that defendant’s
sentence was justified and not grossly disproportionate.
B
Burden of Proof under the Habitual Offender Statute
The defendant asserts that the state failed to satisfy its burden of proof, under the
habitual offender statute, that there were two prior convictions and prison sentences.   He
argues that the judgment of conviction for his predicate larceny conviction “does not
contain language commonly used to denote a term of imprisonment.”   The state contends
that defendant could have raised this argument in Burke I and, therefore, is barred from
litigating it now, under the doctrine of res judicata.  We agree.
As discussed above, in Burke I, 811 A.2d at 1169, we affirmed the trial justice’s
decision to add a fifteen-year enhancement penalty to defendant’s five-year sentence for
witness  intimidation.  Res  judicata  promotes  judicial  economy  and  consistency  of
judgments by barring parties who have had their day in court from adjudicating issues
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that either were already decided or should have been raised in a previous action.  Plunkett
v. State, 869 A.2d 1185, 1187-88 (R.I. 2005).   When, as here, the claims are the same, to
wit,  a  challenge  to  defendant’s  sentence  under  the  habitual  offender  statute,  claim
preclusion “‘precludes the relitigation of all the issues that were tried or might have been
tried in the original suit.’”   Id. at 1188.   The defendant’s opportunity to challenge the
state’s application of the habitual offender statute came and went in Burke I.
C
Defendant’s Motions to Correct the Witness Intimidation Sentence
1
Suspended Sentence or Deferred Sentencing?
The defendant asserts that the habitual offender statute does not apply to his
witness intimidation conviction because, at the time he committed the offense, he had
been sentenced to only one prison term.   He contends that sentencing on his conviction
for larceny over $500 was deferred because the trial justice did not specify the amount of
prison time defendant would have to serve if he violated the terms of his probation.   We
decline defendant’s invitation to revisit our decision in Burke I.
The defendant cannot avoid the result of Burke I by disguising his suspended
sentence argument as a deferred sentencing agreement.  In Burke I, 811 A.2d at 1169, we
rejected “defendant’s assertion that the statute is not applicable to him because he had
served prison time on only one of the predicate felony convictions at the time he
intimidated Deborah.”   As discussed above, defendant is barred from raising this issue a
second time under principles of res judicata.   Furthermore, we remain convinced that the
trial justice handed down a suspended sentence for defendant’s larceny conviction, for
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which he later was declared a probation violator and incarcerated.   This satisfies the
requirements of a predicate offense for purposes of the habitual offender statute.5  Id.
2
Right of Allocution
Lastly, defendant contends that the hearing justice erred by denying his motion to
vacate the larceny sentence and, therefore, by denying his motion to correct the witness
intimidation sentence.   The defendant asserts that the larceny sentence should be vacated
because he was denied his right of allocution.  The hearing justice found that, under State
v.  DeCiantis,                                                                                  813  A.2d  986,  991-92  (R.I.   2003),  defendant  was  time-barred  from
challenging his larceny conviction for lack of opportunity to allocute.6   It is well settled
that “[t]his Court reviews questions of law de novo.”   Boscia v. Sharples, 860 A.2d 674,
679 (R.I. 2004) (citing LePage v. Babcock, 839 A.2d 1226, 1229 (R.I. 2004)).
5 At the sentencing hearing for defendant’s larceny conviction, the trial justice said that
defendant was to be “placed upon a ten-year suspended sentence.”                                (Emphasis added.)
He then confirmed that defendant understood the plea bargain.  At the end of the hearing,
the trial justice warned defendant:
“Mr. Burke, you have some ten years to persuade me that I have done the
right thing this afternoon.
“* * *
“I’m going to direct the Clerk to put a note in each of these files to which
you have entered guilty pleas that in the event you are ever detained or
arrested, charged with a violation of the terms and conditions of your
probation and suspended sentence, that you are to be brought before me. *
* * [I]f I’m reasonably satisfied that you have, in fact, violated the terms
and conditions of your probation, I tell you, as surely as the sun sets in the
West, that I’m going to send you to jail for a long time.”                                      (Emphasis
added.)
6 We note that there is no issue with the timeliness of defendant’s motion to reduce with
respect to the sentence on appeal - his sentence for witness intimidation and enhanced
penalty as a habitual offender.   The defendant’s motion to reduce was filed within 120
days of our affirmance of the sentence in Burke I.
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In DeCiantis, 813 A.2d at 991-92, we held that a motion justice erred in vacating
a sentence based on the court’s failure to afford the defendant his right of allocution.  The
defendant moved to correct his sentence approximately fifteen years after we affirmed his
conviction.   Id. at 988.   Under Rule 35, an illegal sentence can be corrected at any time,
but a court has a limited window in which to correct an illegally imposed sentence.  Id. at
990.   The reporter’s notes to Rule 35 identifies a sentence imposed without affording the
defendant the right of allocution as an example of an illegally imposed sentence.   Id. at
991.
This argument is but another attack on the defendant’s habitual offender status.
Under DeCiantis, as a matter of law, the defendant’s remedy, after being sentenced for
larceny over  $500, purportedly without the opportunity to allocute, was a motion to
correct the sentence within 120 days of its imposition.   The defendant’s motion to vacate
the larceny sentence is untimely, and therefore, the court below properly denied it.7   The
attack is unsuccessful.
7 Moreover, we are not convinced that defendant was denied the right of allocution.   As
the hearing justice noted in denying defendant’s motion to vacate his larceny sentence:
“[The trial justice] inquire[d], ‘It is my understanding, Mr. Burke, that you
will be placed upon a ten[-]year suspended sentence as to each of these
two cases.   Those sentences will run concurrently.   In addition to the
normal terms and conditions of your suspended sentence and probationary
term, you will be required to make restitution in the amount of $1,200 to
the victim in the larceny case.    Do you understand that?’    And the
defendant responds:                                                                             ‘Yes, Your Honor.’   Is that not impliedly a waiver of
the right of allocution?   Is that not the time for the defendant to say, ‘But
can’t you do something less for me?’   He’s being invited to speak, isn’t
he?”
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IV
Conclusion
For the reasons set forth herein, the order is affirmed, and the papers in the case
are remanded to the Superior Court.
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Supreme Court
No. 2003-606-C.A.
(P2/97-351A)
State                                                         :
v.                                                            :
Keith Burke.                                                  :
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  Telephone  222-3258  of  any  typographical  or
other formal errors in order that corrections may be made
before the opinion is published.
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COVER SHEET
TITLE OF CASE:   State v. Keith Burke
DOCKET NO:                                                                 2003-0606-Appeal
COURT:                                                                     Supreme
DATE OPINION FILED:   June 30, 2005
Appeal from
SOURCE OF APPEAL:    Superior                                              County:    Providence
JUDGE FROM OTHER COURT:      Judge Richard J. Israel
JUSTICES:  Williams, C.J., Goldberg, Flaherty, Suttell and Robinson, JJ.
Not Participating -
Concurring in part -
Dissenting in part   -
WRITTEN BY:      Per Curiam
ATTORNEYS:
For Petitioner  Lauren Sandler Zurier, Esq.
ATTORNEYS:
For Respondent  Paula Lynch, Esq.
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