Aguilar v. State, 082219 RISUP, PM-2019-0774

Docket Nº:PM-2019-0774
Opinion Judge:K. RODGERS, J.
Attorney:Glenn S. Sparr, Esq. For Plaintiff: Judy Davis, Esq. For Defendant:
Case Date:August 22, 2019
Court:Superior Court of Rhode Island




No. PM-2019-0774

Superior Court of Rhode Island, Providence

August 22, 2019

Glenn S. Sparr, Esq. For Plaintiff:

Judy Davis, Esq. For Defendant:



Before this Court is Demetrio Aguilar's (Petitioner) Application for Post-Conviction Relief (Application). Petitioner asserts that his conviction should be vacated because the statute under which he was convicted in State of Rhode Island v. Demetrio Aguilar, P1-2003-2176A (the underlying criminal case) is unconstitutional in that it fails to describe a crime and prescribe a penalty therein.

This Court's jurisdiction is pursuant to G.L. 1956 § 10-9.1-1. Having reviewed the parties' memoranda, and for the reasons set forth below, this Court finds that Petitioner's conviction was not unconstitutional. Accordingly, Petitioner's Application is denied.


Facts and Travel

On June 27, 2003, Petitioner was indicted on one count of first degree child molestation under G.L. 1956 §§ 11-37-8.1 and 11-37-8.2, which was alleged to have occurred between March 1 and April 30, 2002. On February 28, 2012, the indictment was amended to allege that the offense occurred between February 1 and April 30, 2002. On February 29, 2012, Petitioner pled guilty to the single count of first degree child molestation. On May 11, 2012, he was sentenced to fifty years, with twenty-five years to serve at the Adult Correctional Institutions (the ACI), the balance of twenty-five years suspended, with probation and various other conditions.

On January 28, 2019, Petitioner filed a pro se Application for Post-Conviction Relief together with a supporting memorandum asking this Court to vacate his conviction in the underlying criminal case for first degree child molestation, alleging that his conviction is unconstitutional.

With the agreement of the Attorney General and by Order dated February 22, 2019, this Court limited all arguments1 to "the constitutionality of a criminal statute which allegedly fails to state what constitutes the crime alleged and/or fails to provide for a penalty thereunder," and expressly allowed Petitioner to preserve his right to file one application for post-conviction relief subsequent to the instant Petition without the State raising the affirmative defenses of res judicata and/or laches, if Petitioner is so inclined to raise different issues in any such subsequent petition relating to the underlying criminal case.

On May 24, 2019, the Court provided notice to the State and Petitioner's court-appointed counsel that Petitioner's request for relief would be considered by this Court in the context of a summary disposition. The parties thereafter acknowledged that an evidentiary hearing was unnecessary to resolve the issues before this Court. On August 6, 2019, Petitioner's court-appointed counsel filed a Supplemental Memorandum in Support of Petitioner's Application for Post-Conviction Relief. The State filed an objection and supporting memorandum thereto on August 7, 2019.


Standard of Review

Under § 10-9.1-1, any person who has been convicted of a crime may file an application for post-conviction relief to challenge the constitutionality of his or her conviction. Sec. 10-9.1-1(a)(1). Unlike the proceedings afforded to Petitioner for his underlying conviction, post-conviction relief motions are civil in nature. Brown v. State, 32 A.3d 901, 908 (R.I. 2011). Accordingly, the applicant bears "'the burden of proving, by a preponderance of the evidence, that such [postconviction] relief is warranted.'" Motyka v. State, 172 A.3d 1203, 1205 (R.I. 2017) (quoting Anderson v. State, 45 A.3d 594, 601 (R.I. 2012)). Additionally, because Petitioner challenges the constitutionality of his conviction, Petitioner has the heightened burden of demonstrating unconstitutionality beyond a reasonable doubt. See State v. Beck, 114 R.I. 74, 77, 329 A.2d 190, 193 (1974).

When ruling on an application for post-conviction relief, if the court considers matters outside the pleadings, the court should "treat the [party's] motion as though it were a motion for summary disposition" as opposed to a motion to dismiss. Palmigiano v. State, 120 R.I. 402, 406, 387 A.2d 1382, 1385 (1978). As will be discussed, this Court has considered Petitioner's indictment and plea form, which are outside the pleadings in the instant civil action. Accordingly, this Court will review Petitioner's Application in the context of a summary disposition motion under § 10-9.1-6(c), which "'closely resembles' a grant of summary judgment under Rule 56 of the Superior Court Rules of Civil Procedure." Reyes v. State, 141 A.3d 644, 652 (R.I. 2016) (quoting Palmigiano, 120 R.I. at 405, 387 A.2d at 1384).

Under § 10-9.1-6(c), the court may grant summary disposition when it finds, based on "the pleadings, depositions, answers to interrogatories, and admissions and agreements of fact, together with any affidavits submitted, that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Sec. 10-9.1-6(c). The standard for granting summary disposition on an application for post-conviction relief is the same as in granting summary judgment under Super. R. Civ. P. 56(c)-the "trial justice must consider the affidavits and pleadings . . . in the light most favorable to the party against whom the motion is made." Palmigiano, 120 R.I. at 406, 387 A.2d at 1385. The trial justice may not resolve genuine issues of material fact or adjudge the weight or credibility of the evidence. Reyes, 141 A.3d at 653.



Petitioner asserts that his conviction violated his due process rights under both the Fifth and Fourteenth Amendments of the United States Constitution and article I, section 10 of the Rhode Island Constitution because the single statute of conviction, § 11-37-8.1, fails to state what conduct qualifies as a crime and fails to provide a penalty. In response, the State contends that Petitioner cannot prove that § 11-37-8.1 is unconstitutional beyond a reasonable doubt because Chapter 37 of Title 11 of the Rhode Island General Laws, when read as a whole, clearly and unambiguously provides a description of the criminalized conduct and states a penalty.

Petitioner was convicted of one count of first degree child molestation in violation of § 11-37-8.1. Section 11-37-8.1 provides: "A person is guilty of first degree child molestation sexual assault if he or she engages in sexual penetration with a person fourteen (14) years of age or under." Sec. 11-37-8.1.

The term "sexual penetration" as used throughout Title 11, Chapter 37 has been defined in § 11-37-1 as: "sexual intercourse, cunnilingus, fellatio, and anal intercourse, or any other intrusion, however slight, by any part of a person's body or by any object into the genital or anal openings of another person's body, or the victim's own body upon the accused's instruction, but emission of semen is not required." Sec. 11-37-1(8).

The penalty for first degree child molestation is set forth in § 11-37-8.2, which at all material times has provided: "Every person who shall commit first degree child molestation sexual assault shall be imprisoned for a period of not less than twenty (20) years and may be imprisoned for life." Sec. 11-37-8.2.2

As previously noted, Petitioner was charged in the indictment of violating both §§ 11-37-8.1 and 11-37-8.2.

A Statutory Construction and Due Process

The due process clauses of both the Fifth and Fourteenth Amendments of the United States Constitution and article I, section 10 of the Rhode Island Constitution provide that no person "shall . . . be deprived of life, liberty, or property" without being afforded due process of law. For a criminal statute to comply with constitutional due process requirements, "fair warning should be given to the world in language that the common world will...

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