State v.James Oliveira , 195 A.3d 1088 ( 2018 )

November 21, 2018
Supreme Court
No. 2017-104-C.A.
(P1/04-3386A)
State :
v. :
James Oliveira. :
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. 2017-104-C.A.
(P1/04-3386A)
State :
v. :
James Oliveira. :
Present: Suttell, C.J., Goldberg, Flaherty, and Robinson, JJ.
OPINION
Justice Goldberg, for the Court. This case came before the Court on October 3, 2018,
pursuant to an order directing the parties to appear and show cause why the issues raised in this
appeal should not be summarily decided. The defendant, James Oliveira, appeals from a
Superior Court order that denied his motion to reduce a sentence, filed in accordance with
Rule 35 of the Superior Court Rules of Criminal Procedure. After a thorough review of the
record and consideration of the parties’ arguments, we conclude that cause has not been shown
and that the appeal may be decided without further briefing or argument. For the reasons set
forth herein, we affirm the order of the Superior Court denying defendant’s motion to reduce
sentence.
Facts and Travel
The facts of the underlying case are set forth in detail in State v. Oliveira, 961 A.2d 299(R.I. 2008) (Oliveira I), and State v. Oliveira, 127 A.3d 65 (R.I. 2015) (Oliveira II).
Accordingly, the Court recites only those facts relevant to this appeal.
On October 29, 2004, a grand jury indicted defendant on two counts of first-degree child
molestation sexual assault, in violation of G.L. 1956 § 11-37-8.1, for sexually assaulting his six-
-1-
year-old grandson by anal penetration. On September 19, 2006, a Superior Court jury convicted
defendant on one count of first-degree child molestation sexual assault and acquitted defendant
on the second count. The trial justice sentenced defendant to sixty years’ imprisonment, with
forty years to serve and the remainder suspended, with probation. This conviction was vacated
on appeal, and the case was remanded for a new trial. Oliveira I, 961 A.2d at 319. At a second
trial, before a different trial justice, defendant again was convicted on one count of first-degree
child molestation sexual assault. He was sentenced to life imprisonment, and this Court affirmed
the conviction. Oliveira II, 127 A.3d at 85.1
Subsequently, defendant filed a Rule 35 motion to reduce the sentence, on the ground that
the life sentence imposed after the second trial was unconstitutional. The defendant argued that
it was improper for a second trial justice to depart from the original forty-year term to serve due
to defendant’s disciplinary record at the Adult Correctional Institutions. The defendant also
argued that the trial justice erred because, while he commented upon defendant’s disciplinary
record, the trial justice failed to make clear “that [the record] was the reason why he imposed a
life sentence.” The state disagreed, and argued in opposition to the motion to reduce that there
was ample evidence in the record to support the trial justice’s sentencing decision, including
conduct by defendant that occurred after the first conviction was vacated.
In denying defendant’s Rule 35 motion, the trial justice acknowledged that, although he
“could have been more explicit in using * * * direct language” when departing from defendant’s
first sentence and imposing a life sentence following his second conviction, this omission was
1
This is not defendant’s first conviction. In State v. Oliveira, 576 A.2d 111 (R.I. 1990),
defendant’s convictions for first-degree and second-degree child molestation sexual assault in
1988 were vacated, and defendant entered a plea of nolo contendere to two counts of second-
degree child molestation sexual assault. He was sentenced to two eight-year sentences, to run
concurrently, with two years to serve and the balance suspended, with probation.
-2-
not fatal to his sentencing decision. The trial justice found that the fourteen disciplinary
infractions that defendant had committed between defendant’s first conviction and his second
trial were “very disturbing” because every infraction “fell into the moderate to high category of
disciplinary violations according to the Department of Corrections Code of Conduct.” The trial
justice also explained that, during the sentencing hearing, he had “clearly characterized that
collection of infractions as demonstrating * * * that this defendant, in the [c]ourt’s view, was
antisocial, disrespectful of authority, rules, and boundaries.” Finally, the trial justice recounted
his sentencing remarks about the impact this crime has had on the young complainant’s life. The
defendant’s grandson was six years of age at the time of the offense.
The defendant timely appealed.
Standard of Review
A motion to reduce a sentence under Rule 35 “is essentially a plea for leniency[.]” State
v. Rivera, 64 A.3d 742, 745 (R.I. 2013) (quoting State v. Chase, 9 A.3d 1248, 1253 (R.I. 2010)).
“The motion is addressed to the sound discretion of the trial justice, who may grant it if he or she
decides on reflection or on the basis of changed circumstances that the sentence originally
imposed was, for any reason, unduly severe.” State v. Mlyniec, 78 A.3d 769, 771 (R.I. 2013)
(quoting State v. Mendoza, 958 A.2d 1159, 1161 (R.I. 2008)). We have a “strong policy against
interfering with a trial justice’s discretion in sentencing matters,” and thus “our review of a trial
justice’s ruling on a Rule 35 motion is extremely limited.” Rivera, 64 A.3d at 745 (quoting State
v. Snell, 11 A.3d 97, 101 (R.I. 2011)). Accordingly, we will interfere with that discretion only in
“rare instances when the trial justice has imposed a sentence that is without justification and is
grossly disparate from other sentences generally imposed for similar offenses.” Id. (quoting
Snell, 11 A.3d at 101).
-3-
Discussion
Before this Court, defendant contends, as he did below, that the trial justice abused his
discretion by imposing a sentence significantly longer than the sentence imposed after
defendant’s first conviction. Specifically, defendant claims that, when the trial justice departed
from the first sentence after retrial, imposing a sentence of life imprisonment, he violated
defendant’s right to due process because the court essentially punished defendant for
successfully appealing his first conviction. This argument is without merit.
It is well established that “a corollary of the power to retry a defendant is the power, upon
the defendant’s reconviction, to impose whatever sentence may be legally authorized, whether or
not it is greater than the sentence imposed after the first conviction.” North Carolina v. Pearce,
395 U.S. 711, 720 (1969); see State v. Mattatall, 603 A.2d 1098, 1118 (R.I. 1992) (“Reversal of
the original conviction nullifies the previous sentence, thereby clearing the slate for the
imposition of a completely new sentence.”). This is because, by vacating the first conviction, the
sentence that was imposed is also vacated, thus allowing for the imposition of a completely new
sentence following a new conviction. State v. Simpson, 520 A.2d 1281, 1285 (R.I. 1987) (citing
Pearce, 395 U.S. at 721). The trial justice on retrial may depart from the original sentence and
impose a harsher sentence based on “events subsequent to the first trial that may have thrown
new light upon the defendant’s life, health, habits, conduct, and mental and moral propensities.”
Id. (quoting Pearce, 395 U.S. at 723); see also Mattatall, 603 A.2d at 1118-19.
We hasten to add, however, that the United States Supreme Court has declared that
“[d]ue process of law * * * requires that vindictiveness against a defendant for having
successfully attacked his first conviction must play no part in the sentence he receives after a
new trial.” Pearce, 395 U.S. at 725. The record in the case at bar discloses that defendant
-4-
conceded that there was no vindictiveness by the trial justice when he imposed the life sentence
after the second trial. Indeed, there is no evidence of vengeful or spiteful sentencing on the part
of the second trial justice when he departed from the first sentence. Rather, the second trial
justice affirmatively placed his reasons for imposing the longer sentence on the record.
Furthermore, in the context of the second trial, which, again, was presided over by a different
trial justice than the first trial, any suggestion of vindictiveness based on the successful appeal of
the first conviction would be entirely speculative. See Texas v. McCullough, 475 U.S. 134, 139
(1986) (explaining that the possibility of vindictiveness is speculative where the second sentence
is imposed by a different trial justice who has “no motivation to engage in self-vindication”
(quoting Chaffin v. Stynchcombe, 412 U.S. 17, 27 (1973))). We therefore are satisfied that the
sentence imposed by the trial justice in this case was not motivated by vindictiveness.
A thorough examination of the record also reveals that the trial justice gave ample
consideration to events that occurred after the first trial that shed light upon defendant’s “life,
health, habits, conduct, and mental and moral propensities.” Pearce, 395 U.S. at 723 (quoting
Williams v. New York, 337 U.S. 241, 245 (1949)). Specifically, at the February 6, 2013
sentencing hearing, the trial justice cited fourteen separate instances of misconduct by defendant
at the ACI and in the Superior Court cellblock. Before he imposed the sentence, the trial justice
concluded that “defendant’s conduct while housed at the ACI demonstrates that he is antisocial
and disrespectful of authority, rules, and boundaries”; the trial justice proceeded to delve into a
description of each infraction, noting that all fourteen fell into the “moderate to high” category as
to the seriousness of disciplinary violations.
Accordingly, after due consideration of all the Pearce factors, we are of the opinion that
the trial justice properly decided to impose the maximum sentence permitted under the statute in
-5-
this case.2 The defendant has failed to demonstrate that the trial justice imposed the sentence
without justification, or that the sentence was “grossly disparate from other sentences generally
imposed for similar offenses.” Snell, 11 A.3d at 101 (quoting State v. Coleman, 984 A.2d 650,
654 (R.I. 2009)). We hold that the trial justice was “well within his discretion to give and then
confirm the instant punishment for [defendant.]” Id. at 102.
Conclusion
For the reasons stated herein, we affirm the order of the Superior Court. The record shall
be returned to the Superior Court.
Justice Indeglia did not participate.
2
General Laws 1956 § 11-37-8.2 provides: “Every person who shall commit first degree child
molestation sexual assault shall be imprisoned for a period of not less than twenty-five (25) years
and may be imprisoned for life.”
-6-
STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS
SUPREME COURT – CLERK’S OFFICE
OPINION COVER SHEET
Title of Case State v. James Oliveira.
No. 2017-104-C.A.
Case Number
(P1/04-3386A)
Date Opinion Filed November 21, 2018
Justices Suttell, C.J., Goldberg, Flaherty, and Robinson, JJ.
Written By Associate Justice Maureen McKenna Goldberg
Source of Appeal Providence County Superior Court
Judicial Officer From Lower Court Associate Justice Daniel A. Procaccini
For State:
Jane M. McSoley
Department of Attorney General
For Defendant:
Attorney(s) on Appeal
Lara E. Montecalvo
Office of the Public Defender
Alec Miran
Rule 9 Practitioner
SU-CMS-02A (revised June 2016)