State v. DeWitt, 88-181-C

• Citation: 557 A.2d 845
• Decision Date: 14 April 1989
• Docket Number: No. 88-181-C,88-181-C
• Court: United States State Supreme Court of Rhode Island
• Parties: STATE v. Frederick E. DeWITT. A.

Page 845

557 A.2d 845

STATE v. Frederick E. DeWITT.

No. 88-181-C.A.

Supreme Court of Rhode Island.

April 14, 1989.

James E. O'Neil, Atty. Gen., Annie Goldberg, Asst. Atty. Gen., for plaintiff.

Barbara Hurst, and Paula Rosin, Asst. Public Defenders, for defendant.

OPINION

WEISBERGER, Justice.

This case comes before us on appeal by the defendant from an order of the Superior Court both granting the state's motion to correct sentence and denying the defendant's motion to reduce sentence. We affirm the order of the trial justice granting the state's motion to correct sentence and vacate the trial justice's order denying the defendant's motion to reduce sentence. The facts of the case insofar as pertinent to this appeal are as follows.

On July 7, 1977, a Providence County grand jury returned a six count indictment against defendant, Frederick E. DeWitt. On March 17, 1978, defendant was convicted by a jury in the Superior Court on three counts including robbery, arson, and assault with the intent to commit murder. On May 8, 1978, the trial justice sentenced defendant to life imprisonment for the robbery conviction, twenty years for the conviction of assault with intent to murder, and ten years for the conviction of arson. All sentences were to run concurrently. The defendant filed a timely appeal, which was denied by this court. State v. DeWitt, 423 A.2d 828 (R.I.1980). The defendant began serving his sentence in 1978.

On January 17, 1981, defendant filed a motion for reduction of sentence pursuant to Rule 35 of the Superior Court Rules of Criminal Procedure, which was subsequently granted by the trial justice on July 1, 1981. The sentence for robbery was modified from life imprisonment by suspending that portion of the sentence in excess of fifteen years. The trial justice further provided for twenty years probation upon defendant's release. The sentence for assault with intent to murder was modified from twenty years imprisonment by suspending that portion of the sentence in excess of fifteen years, with five years probation upon defendant's release. The arson count was not modified.

In January of 1987, defendant was paroled from the Adult Correctional Institutions. However, later that year defendant was arrested for alleged parole violations, including assault with intent to murder, robbery, and entry with intent to commit larceny. At this juncture the state moved to correct the sentence as previously modified and to reimpose the original life sentence. The state's motion was based on this court's decision in State v. O'Rourke, 463 A.2d 1328 (R.I.1983), which declared that a trial court lacks authority to suspend a sentence previously imposed in whole or in part, once a defendant has begun to serve the same. On September 21, 1987, the trial justice vacated the reduction and reimposed the original sentence of life imprisonment, relying on O'Rourke. On January 19, 1988, defendant filed a second motion to reduce the life sentence under Rule 35, which motion was denied for lack of timeliness on February 4, 1988.

This appeal presents two issues: (1) Did the trial justice err in reimposing defendant's original sentence in 1987? (2) Did the trial justice err in refusing to hear, for lack of timeliness, defendant's subsequent motion to reduce?

I

The defendant's challenge to the trial justice's decision to reimpose his original sentence is premised on two grounds. First, defendant argues that he had a legitimate interest and expectation in the finality of the reduced sentence because the state failed to attempt to correct the sentence reduction until six years after the modification (four years after our decision in O'Rourke was filed). The defendant argues that in reimposing his life sentence, the trial justice was fundamentally unfair, in violation of the ex post facto clause of the United States Constitution and his due process rights as enunciated in Breest v. Helgemoe, 579 F.2d 95 (1st Cir.1978). Second, defendant argues that because the state delayed in seeking to reimpose his life sentence, it is now estopped because he relied on the reduction in sentence and his parole status.

A. Due Process

In vacating defendant's suspension of sentence, the trial justice relied upon this court's decision in State v. O'Rourke, supra. There, we analyzed the relationship among G.L.1956 (1981 Reenactment) § 12-19-8, § 12-19-10, and Rule 35. Under § 12-19-8, "[e]xcept where the suspension of sentence shall otherwise be prohibited by law," the Superior Court may "impose a sentence and suspend the execution thereof, in whole or in part." Section 12-19-10 states that "[i]mprisonment pursuant to a sentence, once commenced, shall not be subject to suspension." Rule 35 in pertinent part states:

"The court may correct an illegal sentence at any time. The court may correct a sentence imposed in an illegal manner and it may reduce any sentence within one hundred twenty (120) days after sentence is imposed, or within one hundred 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* * * ."

In O'Rourke we decided that under the plain language of § 12-19-10 the trial justice lacked the authority to suspend any part of a defendant's sentence pursuant to a motion to reduce under Rule 35 once he had begun serving the same, and that such a purported suspension was null and void. We concluded that Rule 35 has no effect upon the meaning or application of § 12-19-10. 463 A.2d at 1331. Once a defendant begins to serve a sentence, "the option of suspending some part of the sentence [is] no longer available." Id. at 1332. Here, as in O'Rourke, suspension by the trial justice took place after defendant commenced serving his sentence. Our decision in O'Rourke does not lose its force or effect because the state allowed four years to lapse (subsequent to the date of our opinion in O'Rourke ) before seeking to correct defendant's sentence.

Here, defendant's sentence was suspended after he began serving the sentence, a procedure that is clearly forbidden by § 12-19-10. Accordingly, the suspension constituted an invalid order, which could not give rise to any legitimate expectation under the due process clause on defendant's part regarding the completion of his suspended sentence.

Additionally, defendant's reliance on Breest, supra, is without merit. The First Circuit Court of Appeals in Breest suggested in dictum that the power of a sentencing court to correct an illegal sentence

"must be subject to some temporal limit. * * * After a substantial period of time, therefore, it might be fundamentally unfair, and thus violative of due process for a court to alter even an illegal sentence in a way which frustrates a prisoner's expectations by postponing his parole eligibility or release date far beyond that originally set." 579 F.2d at 101.

In Lerner v. Gill, 463 A.2d 1352 (R.I.1983), we considered the First Circuit's decision in Breest and held that this language constituted "pure dicta" and was too speculative to justify the defendant's due process claim. Id. at 1362. We further pointed out in Lerner that many courts "have held that an illegal sentence may be altered or corrected at any time." Id. United States v. Bynoe, 562 F.2d 126, 129 (1st Cir.1977); Burns v. United States, 552 F.2d 828, 831 (8th Cir.1977); People v. Favors, 42 Colo. App. 263, 264, 600 P.2d 78, 79 (1979); State v. Fry, 61 Haw. 226, 230, 602 P.2d 13, 16 (1979); Coles v. State, 290 Md. 296, 303, 429 A.2d 1029, 1032 (1981); State v. Burkhart, 566 S.W.2d 871, 873 (Tenn.1978); cf. State v. Delmondo, 67 Haw. 531, 696 P.2d 344 (1985) (There may be circumstances under which it may violate due process to correct even an illegal sentence.).

It should be noted that Rule 35 of the Superior Court Rules of Criminal Procedure specifically states that "[t]he court may correct an illegal sentence at any time." The terms of this rule, which has the force of law, would certainly militate against the existence of a protectable interest in the vitality of an illegal sentence based solely upon passage of time. G.L.1956 (1985 Reenactment) § 8-6-2.

The defendant also cites authority from the states of Connecticut, Hawaii, and the United States Court of Appeals for the Fourth Circuit supporting time restrictions placed upon a sentencing court's power to correct an illegal disposition. However, such authority is neither persuasive nor binding upon this court.

B. Ex Post Facto Clause

The defendant argues that the trial justice's application of § 12-19-10 in vacating his suspended sentence constituted an unlawful ex post facto application of law citing Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964).

The ex post facto clause had historically been applied only to acts of the Legislature and not to judicial or administrative interpretation of such legislative acts. Ross v. Oregon, 227 U.S. 150, 33 S.Ct. 220, 57 L.Ed. 458 (1913). An exception to this general rule was set forth in Bouie. In that case the South Carolina Supreme Court construed a trespass statute so as to expand narrow and precise statutory language in such a fashion as to make the defendants subject to a criminal penalty in circumstances that were not foreseeable by a reading of the statutory language itself. Justice Brennan held for the majority that a criminal statute must give fair warning of the conduct that it proscribes. He went on to state that fair warning can be denied not only by "vague statutory language but also from an unforeseeable and retroactive judicial expansion of narrow and precise statutory language." Bouie, 378 U.S. at 352, 84 S.Ct. at 1702, 12 L.Ed.2d at 899. On the contrary, our opinion in O'Rourke simply applied clear and unequivocal language contained in § 12-19-10. Our interpretation was not only foreseeable, but inevitable.

In Lerner v. Gill we examined and discussed...