State v. Peterson

FLANDERS, Justice,

concurring.

I agree with the Court’s conclusion that we should affirm the judgment in this case. I also agree with its analysis of the limitation of cross-examination issue and its determination that “no harm or prejudice in respect to the habitual criminal charge resulted to the defendant.” I also believe, however, that Justice Goldberg’s interpretation of the habitual-offender statute is sound. It appears to me that this statute, G.L.1956 § 12-19-21(b), which requires the Attorney General to file the requisite notice with the court “within forty-five (45) days of the arraignment, but in no case later than the date of the pretrial conference” means that the Attorney General has up to forty-five days to file this notice, unless the pretrial conference occurs before the expiration of the forty-five-day period. In this latter event, the statute requires the Attorney General to file the notice not “later than the date of the pretrial conference.”

A contrary reading of this statute — that is, one that would always allow the Attorney General to file such notice not “later than the date of the pretrial conference” — even when that conference occurs after the forty-five-day period has already expired — effectively reads the forty-five-day period right out of the statute. If the General Assembly had intended this result, then it would have left out any reference to filing the notice within a forty-five-day period and simply stated that the Attorney General had to do so “before or in no case later than the date of the pretrial conference.” But this is not how the General Assembly worded the statute.

It is a fundamental canon of statutory interpretation that a court must give effect to every word and every phrase in a statute according to its plain and ordinary meaning whenever it is possible and/or rational to do so. See Providence Journal Co. v. Rodgers, 711 A.2d 1131, 1134 (R.I.1998) (stating that when a court examines the language of a statute that is clear and unambiguous, it must interpret the statute literally and give the words their plain and ordinary meanings); Conrad v. Town of Narragansett Board of Canvassers, 420 A.2d 50, 52 (R.I.1980) (“[Ejach “word, sentence, or provision of a statute was intended for some useful purpose and has some force and effect.’ ”) (quoting Merciol v. New England Telephone & Telegraph Co., 110 R.I. 149, 153, 290 A.2d 907, 910 (1972)); 2A Norman J. Singer, Sutherland Statutory Construction § 46.06, at 119 (5th ed.1992). Only by interpreting this statute to require the state to file the requisite habitual-offender notice before the expiration of the forty-five-day period following the arraignment, or no later than the date of the pretrial conference, whichever occurs first, can we give meaning and effect to each word and phrase in the statute. Accordingly, for these reasons, I join in Justice Goldberg’s interpretation of the habitual-offender statute.

Nonetheless, I agree with the Court’s decision to affirm the trial justice’s ruling on this point because I do not believe that defendant suffered any prejudice in this case as a result of the state’s late filing of the habitual-offender notice. The grand jury returned the indictment here on July 16, 1993; defendant was arraigned in Superior Court on July 22; the forty-five-day period expired on September 5; the Attorney General filed with the court its notice of intention to present defendant for sentencing as a habitual offender on November 10; the pretrial conference occurred nine days later on November 19; and the trial did not proceed until some fifteen months after the notice was filed.

Under these circumstances, defendant “was in no way harmed or prejudiced by the lack of a documentary filing on the part of the state” within the period called for by the habitual-offender statute. State v. Tregaskis, 540 A.2d 1022, 1025 (R.I.1988) (holding that the failure to file the written notice required by the habitual-offender statute within the time period prescribed did not deprive the trial court of jurisdiction to hear the state’s habitual-offender petition, absent a showing of prejudice to the defendant).

Because defendant in this case was aware of the state’s intention to pursue habitual-offender sentencing for more than one week before the pretrial conference occurred and, in any event, for some fifteen months before the trial occurred, it does not appear to me that defendant suffered any cognizable prejudice because of the state’s technical noncompliance with the habitual-offender-notice deadline. Cf. State v. Desrosiers, 559 A.2d 641, 644 (R.I.1989) (refusing to vacate a probation-violation finding “because of technical noncompliance with” the notice provisions of Rule 32(f) of the Superior Court Rules of Criminal Procedure “when the defendant was in fact aware of the exact grounds for the alleged violation” in sufficient time to satisfy the dictates of due process).

Certainly, the defendant here had ample advance notice and opportunity to be heard after he became aware of the state’s intentions with respect to the habitual-offender statute and therefore, I do not believe he has any colorable due-process complaint in this regard.

In sum, I believe that if the state intends to rely on the habitual-offender statute, then it is technically required to file the requisite notice with the court within a forty-five-day period after the arraignment or no later than the pretrial conference, if the latter date occurs before the forty-five-day period expires. However, in this case, I do not believe that the state’s late filing of the notice after the forty-five-day period expired, but before the pretrial conference, caused this defendant to suffer any prejudice. Accordingly, I agree with the Court that the judgment here should be affirmed.