State v. Alicea

• Decision Date: 18 November 2022
• Docket Number: P2-2018-3891A
• Parties: STATE OF RHODE ISLAND v. LYDIA ALICEA
• Court: Superior Court of Rhode Island

STATE OF RHODE ISLAND v. LYDIA ALICEA

No. P2-2018-3891A

Superior Court of Rhode Island, Providence

November 18, 2022

For Plaintiff: Gabrielle R. Perlmutter, Esq.

For Defendant: Michael A. DiLauro, Esq.

DECISION

MONTALBANO, J.

Before this Court is Lydia Alicea's (Ms. Alicea) appeal of a Superior Court Magistrate's (the Magistrate) decision dated June 15-16, 2022 finding that Ms. Alicea violated her deferred sentencing agreement, and thereafter sentenced Ms Alicea to three years of probation and $1,300 in restitution. Jurisdiction is pursuant to G.L. 1956 § 8-2-11.1(d).

I Facts and Travel

On June 19, 2020, Defendant Lydia Alicea pled nolo contendere to a charge of obtaining property by false pretenses under G.L 1956 § 11-41-4. (Disposition, dated June 19, 2020.) On that same date, Ms. Alicea entered into a deferred sentencing agreement (DSA) for a period of two years pursuant to G.L. 1956 § 12-19-19. (State's Ex. 1 DSA, June 19, 2020.) One of the fifteen conditions of Ms. Alicea's DSA, relevant to this appeal, is that Ms. Alicea agreed to pay restitution in the amount of $1,800.00. Id. ¶ 12 ("SPECIAL CONDITIONS: Restitution of $1800.00"); see also id. ¶ 7 ("I will make all payments of monies as directed by the court.").

On May 27, 2022, the Attorney General's Office (the State), filed a 32(f) Violation Report (the Report) in anticipation of the expiration of Ms. Alicea's deferred sentence. (32(f) Violation Report, May 27, 2022.) The Report alleged that Ms. Alicea had not attempted to pay any restitution and thus failed to comply with a specific condition outlined in her DSA. Id. The Report further noted that Ms. Alicea's DSA was set to expire on June 18, 2022. Id. On June 9, 2022, Ms. Alicea made a payment of $500.00 toward her restitution; however, a majority of the balance remained outstanding. (State's Ex. 2, Certified Copy of Restitution Payments^[1].) Ms. Alicea was then referred to the Public Defender's Office and a violation hearing was scheduled. (Clerk's Note, June 9, 2022.)

On June 15, 2022, prior to the expiration of Ms. Alicea's DSA, Ms. Alicea was before the Magistrate for a technical violation hearing on her deferred sentence for failure to comply with the restitution condition. (Hr'g Tr. 4-16, June 15, 2022.) The Magistrate found Ms. Alicea to be in violation of her DSA. Id. 7:17-18. The following day, the Magistrate converted Ms. Alicea's deferred sentence to three years of probation and required the payment of the remaining restitution amount of $1,300, requiring monthly payments of $36.15. (Hr'g Tr. 28:25, 29:1-6, June 16, 2022.) However, given the minimal financial information submitted by Ms. Alicea, the Magistrate also allowed Ms. Alicea to reserve the right to a hearing regarding her ability to pay the restitution. Id. 27:4-11.

On June 17, 2022, pursuant to § 8-2-11.1(d) and 2.9(h) of the Superior Court Rules of Practice, Ms. Alicea timely filed an appeal of the Magistrate's decision.^[2] (Appeal of Magistrate's Decision, June 17, 2022.) On July 29, 2022 Ms. Alicea filed a motion to stay the Magistrate's decision as well as restitution payments during the pendency of this appeal. (Def.'s Mot. Stay, July 29, 2022.). The appeal was assigned to Associate Justice Montalbano on August 24, 2022. (Order, Aug. 24, 2022.) On September 16, 2022, a judgment of civil liability with regard to Ms. Alicea's restitution was entered and her restitution payments were stayed during the pendency of this appeal. (Judgment of Civil Liability-Restitution, Sept. 16, 2022; Order, Sept. 20, 2022.) Ms. Alicea filed her appellate memorandum (Def.'s Mem.) on October 6, 2022, and the State filed its memorandum (State's Mem.) on October 20, 2022. Oral arguments took place on November 17, 2022.

II

Standard of Review

Review of a Magistrate's Decision

A Superior Court Justice's review of a decision of a magistrate is governed by § 8-2-11.1(d) which provides, in pertinent part:

"A party aggrieved by an order entered by the . . . magistrate shall be entitled to a review of the order by a justice of the superior court. Unless otherwise provided in the rules of procedure of the court, the review shall be on the record and appellate in nature. The court shall, by rules of procedure, establish procedures for review of orders entered by the . . . magistrate." Section 8-2-11.1(d).

Rule 2.9(h) of the Superior Court Rules of Practice presently governs the review standard, and provides:

"The Superior Court justice shall make a de novo determination of those portions to which the appeal is directed and may accept, reject or modify, in whole or in part, the judgment, order or decree of the magistrate. The justice, however, need not formally conduct a new hearing and may consider the record developed before the magistrate, making his or her own determination based on that record whether there is competent evidence upon which the magistrate's judgment, order or decree rests. The justice may also receive further evidence, recall witnesses or recommit the matter with instructions." R.P. 2.9(h).

The record on appeal includes "[t]he original papers and exhibits filed with the Superior Court, the transcript of the proceedings, and the docket entries." R.P. 2.9(f).

III Analysis

A Review of the Record and Relevant Procedural and Statutory Provisions

Superior Court Rules of Criminal Procedure 32(f) dictates the procedures which must be followed in proving, finding, and revoking a deferred sentence based on a violation of the deferred sentencing agreement, and provides in pertinent part:

"The court shall not revoke probation or revoke a suspension of sentence or impose a sentence previously deferred except after a hearing at which the defendant shall be afforded the opportunity to be present and apprised of the grounds on which such action is proposed . Prior to the hearing the State shall furnish the defendant and the court with a written statement specifying the grounds upon which action is sought under this subdivision. No revocation shall occur unless the State establishes by a fair preponderance of the evidence that the defendant breached a condition of the defendant's probation or deferred sentence or failed to keep the peace or remain on good behavior." Super. R. Crim. P. 32(f).

Rhode Island's statutory scheme governing the court's powers when a defendant has violated the terms of his or her deferred sentencing agreement is outlined in § 12-19-19. Subsection (b) provides in pertinent part: "A violation of any condition set forth by the written deferral agreement shall violate the terms and conditions of the deferment of sentence and the court may impose a sanction or impose sentence." Section 12-19-19(b) (emphasis added). Subsection (c) as well as §§ 12-1.3-2 and 12-1.3-3 dictate a unique aspect of entering into a deferred sentencing agreement, in that a defendant is eligible for consideration of expungement if the defendant completes all the terms of the deferred sentencing agreement, including payment in full of any restitution.^[3] Sections 12-19-19(c), 12-1.3-2, 12-1.3-3.

In this case, the Magistrate made her determination as to Ms. Alicea's deferred sentence violation and subsequent sentencing in accordance with the aforementioned procedures and statutes. The Magistrate found that the State filed its 32(f) Violation Report on May 27, 2022 and thereby provided Ms. Alicea with a written statement specifying the grounds upon which the violation was based, i.e., that Ms. Alicea had not attempted to pay any restitution since entering into her DSA on June 19, 2020. (Super. R. Crim. P. 32(f); the Report, May 27, 2022; (Hr'g Tr. 12:7-9, 13:25, June 15, 2022.) Subsequently, Ms. Alicea was afforded a hearing, before the expiration of her DSA, to present evidence and witnesses in response to the State's allegation that Ms. Alicea had violated her deferred sentence for failure to comply with the condition of paying the restitution in full. (Hr'g Tr. 4-16, June 15, 2022); Super. R. Crim. P. 32(f) ("The court shall not revoke probation or revoke a suspension of sentence or impose a sentence previously deferred except after a hearing at which the defendant shall be afforded the opportunity to be present and apprised of the grounds on which such action is proposed.").

During the technical violation hearing on June 15, 2022, the full exhibits demonstrated that Ms. Alicea had paid $500.00 toward her restitution, and that her deferred sentence was conditioned upon her paying $1800.00. (State's Ex. 2, Certified Copy of Restitution Payments; State's Ex. 1, DSA ¶ 12.) The Magistrate found that the exhibits established that Ms. Alicea had not paid the full restitution amount agreed upon in her DSA, and articulated that "[T]he purposes of this 32(f) [hearing] is solely to establish whether or not [Ms. Alicea] violated what was stipulated to. There's only $500 paid. The condition of the deferred [agreement] was $1,800." (Hr'g Tr. 10:16-20, June 15, 2022.) Accordingly, the Magistrate appropriately determined that based on the exhibits, "[t]he 32(f) standard has been met. The fair preponderance of the evidence is that the deferred agreement was not met . . . the Court has found that she has not paid the restitution. So that is in violation of the Deferred Sentencing Agreement." (Hr'g Tr. 14:15-18, 12:7-9, June 15, 2022.)

After finding that Ms. Alicea had violated her deferred sentence the Magistrate appropriately imposed sentence pursuant to the relevant statutory provisions. Sections 12-19-2, 12-19-14, 12-19-19.^[4] Upon the finding of a violation of any condition set forth in a written deferred sentence agreement, the court may impose a sentence within the limits prescribed by law, which is precisely what the Magistrate did...