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Supreme Court
No. 2009-383-C.A.
(N1/05-233A)
State                                                                 :
v.                                                                    :
Ronald Barkmeyer.                                                     :
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.




Supreme Court
No. 2009-383-C.A.
(N1/05-233A)
State                                                                                                :
v.                                                                                                   :
Ronald Barkmeyer.                                                                                    :
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
O P I N I O N
Chief Justice Suttell, for the Court.   The defendant, Ronald Barkmeyer, appeals from a
Superior Court order denying his motion to reduce his sentence under Rule 35 of the Superior
Court Rules of Criminal Procedure.  As grounds for his appeal, the defendant argues that the trial
justice erred by (1) concluding that the defendant’s rehabilitative efforts and conduct in prison
were “irrelevant” and (2) “faulting” the defendant for not “admitting guilt in order to engage in
sex offender counseling.”   This case came before the Supreme Court for oral argument pursuant
to an order directing the parties to appear and show cause why the issues raised in this appeal
should not be summarily decided.    After reviewing the record and considering the parties’
written and oral submissions, we are satisfied that this appeal may be decided without further
briefing or argument.   For the reasons set forth in this opinion, we affirm the order of the
Superior Court.
I
Facts and Procedural History
A jury convicted defendant of first-degree child molestation for sexually assaulting his
eight-year-old stepdaughter, and the trial justice sentenced him to fifty years at the Adult
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Correctional  Institutions                                                                                 (ACI), with thirty years to serve and the remaining twenty years
suspended, with probation.   The trial justice also ordered defendant to register as a sex offender
and to attend the Sex Offender Treatment Program.   The defendant appealed his conviction, and
this Court affirmed the Superior Court judgment on June 20, 2008. State v. Barkmeyer, 949 A.2d
984, 991, 1008 (R.I. 2008).   Subsequently, defendant filed a petition for a writ of certiorari with
the United States Supreme Court, which was denied on December 8, 2008. Barkmeyer v. Rhode
Island, 129 S. Ct. 740 (2008) (mem.).
Thereafter, defendant timely moved for a reduced sentence based on Rule 35(a).1   A
hearing on the motion to reduce was held on August 21, 2009, before the same justice that
conducted defendant’s trial.   At this hearing, defendant presented testimony from Peter Loss, the
director of the Sex Offender Treatment Program at the Department of Corrections, and Anthony
Amaral, an adult counselor for the Department of Corrections.   Mr. Loss testified that defendant
twice applied for placement in the Sex Offender Treatment Program and was twice rejected
“because he did not take responsibility for his crime,” which is a prerequisite for placement in
the program.   Mr. Amaral’s testimony confirmed that admission into the treatment program
requires  an  inmate  to  admit  his  or  her  guilt,  and  he  clarified  that  if  defendant  were  to
acknowledge his responsibility for the crime, his eligibility for participation in the program
would be reevaluated by the Classification Board.
The defendant also testified on his own behalf.   He explained his past criminal history
and disciplinary infractions while in prison and described his current rehabilitative efforts.
Specifically,  defendant  testified  that  he  was  working  at  a  prison-ward  hospital  doing
1 Rule 35(a) of the Superior Court Rules of Criminal Procedure states, in pertinent part, that the
court “may reduce any sentence when a motion is filed 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.”
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“housecleaning” and also was working as a law librarian  “for the entire building at High
Security,” for which he had obtained a legal-research certificate.   The defendant further testified
that he had not participated in the Sex Offender Treatment Program because he was unwilling to
“admit [his] guilt and take responsibility for the crime.”  The defendant adamantly explained that
the  reason  he  refuses  to  accept  responsibility  for  the  molestation  is  because  he  has
postconviction-relief proceedings pending and is not willing to “ruin[] [his] Fifth Amendment
Rights as far as self-incrimination.”
The defendant’s attorney explained that the testimony elicited at this hearing was to
showcase defendant’s “rehabilitation process” at prison.   Ultimately, he argued that defendant’s
“extremely harsh sentence” should be reduced to “something less” because “defendant exercised
his right to a trial  *  *  * and did not testify and perjure himself.”   The trial justice denied
defendant’s motion, stating that “[s]ome cases are so repugnant in their facts, that they leave an
indelible scar on my mind and this is one of them.”   The trial justice acknowledged that he
imposed a “harsh sentence,” but upon reflection ultimately found it justified, describing it as “a
serious sentence for an abominable act.”
II
Standard of Review
This Court adheres to a “strong policy against interfering with a trial justice’s discretion
in sentencing matters.” State v. Chase, 9 A.3d 1248, 1254 (R.I. 2010) (quoting State v. Rossi,
771 A.2d 906, 908 (R.I. 2001) (mem.)).   As a result, “[o]ur review of a trial justice’s decision on
a Rule 35 motion ‘is extremely limited.’” Id. (quoting State v. Sifuentes, 667 A.2d 791, 792 (R.I.
1995)).   We will disturb a trial justice’s ruling on a motion to reduce “only when the sentence is
without justification.” Id. (quoting State v. Brown, 755 A.2d 124, 125 (R.I. 2000)).   Further,
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“[w]e have emphasized that the inherent power to review sentences should be utilized only in the
exceptional case * * * when the sentence is without justification and grossly disparate from
sentences generally imposed for similar offenses.” State v. Dyer, 14 A.3d 227, 227 (R.I. 2011)
(mem.) (quoting State v. Giorgi, 121 R.I. 280,  282, 397 A.2d  898, 899 (1979)).                          “It is the
defendant’s burden to show that the sentence imposed violates this standard.” Chase, 9 A.3d at
1254 (quoting State v. Cote, 736 A.2d 93, 94 (R.I. 1999) (mem.)).
III
Discussion
A
Defendant’s Rehabilitative Efforts
The defendant’s first argument on appeal is that the trial justice erred in concluding that
defendant’s work at the ACI was “irrelevant.”  Specifically, defendant asserts that the trial justice
erred in making the following statement:
“[The defendant] has done some work learning a little bit
about  the  law,  being  a  helper,  involved  in  the  laundry  and
housekeeping,  cleaning  up,  now  doing  legal  research,  perhaps
organizing  the  library  and  helping  other  inmates,  as  well  as
himself, learn about the law.   All of that is commendable but isn’t
that exactly what we expect of every person that is sentenced, that
they will rehabilitate themselves[?]”
To support this contention of error, defendant maintains that his  “affirmative rehabilitative
efforts” are distinctly different from “general good behavior while incarcerated” and are “subject
to consideration,” albeit not dispositive, on a motion to reduce sentence.
“In imposing sentence, a trial justice may consider numerous factors, including the
severity of the crime; the defendant’s personal, educational, and employment background; the
defendant’s  potential  for  rehabilitation;  societal  deterrence;  and  the  appropriateness  of  the
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punishment.” State v. Thornton, 800 A.2d 1016, 1044 (R.I. 2002); see also State v. Mollicone,
746 A.2d 135, 137-38 (R.I. 2000).   The trial justice, however, is not limited to these factors; “the
trial justice is bound only by the statutory parameters established by the Legislature.” Thornton,
800 A.2d at 1044.   This Court repeatedly has held that it is within a trial justice’s discretion to
reserve consideration of a defendant’s “good behavior and rehabilitative efforts while in prison
to the parole board.” State v. Ruffner, 5 A.3d 864, 868 (R.I. 2010); see also Thornton, 800 A.2d
at                                                                                                      1045; State v. Guzman,  794 A.2d  474,  476  (R.I.  2002)  (“Appropriate prison behavior is
expected of all inmates and is irrelevant to the factors considered by a trial justice when he or she
initially imposes a sentence.”).   Consequently, a trial justice is not required to consider or lend
“credit” to a defendant’s prison behavior when making a Rule 35 determination. Ruffner, 5 A.3d
at 866, 868.
In this case, the trial justice acknowledged defendant’s  “commendable” rehabilitative
work efforts; however, he was not persuaded that they amounted to “any substantial change in
circumstances” warranting a reduction in defendant’s sentence.   Instead, the trial justice properly
focused on the severity of defendant’s crime, which he referred to as a “truly * * * horrific,
unforgivable criminal act” and “as vile an act as [he could] envision,” ultimately warranting the
“harsh” sentence imposed.   We discern no error in this determination.   We previously have held,
and  will  further  emphasize,  that                                                                    “defendant’s  general  arguments  about  his  commendable
behavior during his incarceration can bear no fruit for the purposes of Rule 35 * * *.” Dyer, 14
A.3d at 228.   Accordingly, we are satisfied that the trial justice did not abuse his discretion in
failing to afford much, if any, weight to defendant’s prison behavior or rehabilitative efforts.
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B
Defendant’s Assertion of the Privilege Against Self-Incrimination
Lastly, defendant argues that he “should not have been put in a position of forfeiting his
privilege against self-incrimination and rendering it meaningless by admitting guilt in order to
engage in sex offender counseling,” and thus he asserts that the trial justice “erred when he
faulted [defendant] for not doing so.”   The record, however, does not support this contention.
The trial justice explicitly explained his consideration of defendant’s failure to participate in the
Sex Offender Treatment Program as follows:
“Now, lastly I come to the issue of whether or not the
defendant’s  failure  to  admit  that  he  committed  the  crime  is
somehow something I should consider.  And I state right now that I
don’t consider it at all.   It’s a neutral fact.   It’s a fact that I not
consider  * * * because it is true that first the defendant had an
appeal pending; then he had a review to the United States Supreme
Court,  which  [was]  ultimately denied;  he has  a pending post-
conviction relief.    And thus, I think he can make a good-faith
argument that he shouldn’t have to admit a crime while these legal
proceedings are ongoing.   But as has been said in case, after case,
after case, sometimes you have to give up certain rights, certain
constitutional rights, in order to afford yourself of other rights,
constitutional or otherwise.   And so it may be that [defendant] has
a right, to the extent that every other prisoner has a right, to
participate in the Sex Offender Program and he can’t be denied
that right.    But if he chooses to exercise a constitutional right
which he believes he had with respect to the Fifth Amendment and
not admit to any criminal acts, then he is certainly not in a position
to  complain  that  he  hasn’t  been  allowed  to  the  Sex  Offender
Program  and  any benefit  he might  * * *  directly or  indirectly
obtain as a result of participating.”
The trial justice made it abundantly clear that he treated defendant’s failure to participate in
treatment as a “neutral fact.”   The trial justice’s own words reveal that he accepted defendant’s
“good-faith” assertion of the Fifth Amendment privilege against self-incrimination and did not
hold such an assertion against defendant.   At the same time, the trial justice acknowledged that,
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in light of this averment, defendant could not reap the potential benefits of the Sex Offender
Treatment Program.   This is entirely different from the trial justice punishing defendant for
asserting a constitutional right. Cf. State v. Tiernan, 645 A.2d 482, 485-86 (R.I. 1994) (“To exact
a price or impose a penalty upon a defendant in the form of an enhanced sentence for invoking
[the privilege against self-incrimination] would amount to a deprivation of due process of law,
and that we shall not condone.”).
Although a defendant’s participation in a treatment program might well be credited by a
trial justice, a defendant’s lack of participation in such a program cannot be construed as a
positive factor such as would support a request for leniency.   Here, defendant was not punished
for failing to admit his crime; rather, the trial justice simply exercised his discretion not to
bestow upon defendant the leniency he requested.   We are completely satisfied that the trial
justice did not abuse his discretion in doing so.
The defendant bore a weighty burden in this case and ultimately failed to shoulder it
because he is unable to demonstrate “that this matter is among those rarest of cases that would
justify altering our strong policy against interference with the ruling of the trial justice.” Dyer, 14
A.3d at 228.   Accordingly, we conclude that the trial justice was well within his discretion to
give and then confirm defendant’s sentence.
IV
Conclusion
We often have said that a Rule 35 motion to reduce a sentence is “essentially a plea for
leniency.” Chase, 9 A.3d at 1253 (quoting State v. Mendoza, 958 A.2d 1159, 1161 (R.I. 2008)).
Absent  a  showing  that                                                                                  “‘the  sentence  is  without  justification  and  grossly  disparate  from
sentences generally imposed for similar offenses,’” Dyer, 14 A.3d at 227, such a motion may be
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granted if the court decides “on reflection or on the basis of changed circumstances that the
sentence originally imposed was, for any reason, unduly severe.” Chase, 9 A.3d at 1253 (quoting
Mendoza,  958 A.2d at  1161).    Here, the trial justice carefully considered the defendant’s
submissions, exercised his discretion appropriately, and emphatically concluded that the original
sentence was not unduly severe.
For the reasons stated in this opinion, we affirm the order of the Superior Court.   The
record shall be remanded to the Superior Court.
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RHODE ISLAND SUPREME COURT CLERK’S OFFICE
Clerk’s Office Order/Opinion Cover Sheet
TITLE OF CASE:                                       State v. Ronald Barkmeyer.
CASE NO:                                             No. 2009-383-C.A.
                                                     (N1/05-233A)
COURT:                                               Supreme Court
DATE OPINION FILED:   December 16, 2011
JUSTICES:                                            Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
WRITTEN BY:                                          Chief Justice Paul A. Suttell
SOURCE OF APPEAL:    Newport County Superior Court
JUDGE FROM LOWER COURT:
Associate Justice Edwin J. Gale
ATTORNEYS ON APPEAL:
For State:    Virginia M. McGinn
Department of Attorney General
For Defendant:    Lara E. Ewens
Office of the Public Defender

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