State v. Diefenderfer

• Decision Date: 14 December 2011
• Docket Number: No. 2010–30–C.A.,2010–30–C.A.
• Citation: 32 A.3d 931
• Parties: STATE v. Roy DIEFENDERFER.
• Court: Rhode Island Supreme Court

32 A.3d 931

STATE

v.Roy DIEFENDERFER.

No. 2010–30–C.A.

Supreme Court of Rhode Island.

Dec. 14, 2011.

Christopher R. Bush, Department of Attorney General, for State.

Janice M. Weisfeld, Office of the Public Defender, for Defendant.

Present: SUTTELL, C.J., GOLDBERG, FLAHERTY, ROBINSON, and INDEGLIA, JJ.

OPINION

Chief Justice SUTTELL, for the Court.

The defendant, Roy Diefenderfer, appeals from a Superior Court order denying his motion to reduce his sentence. As grounds for his appeal, the defendant argues that the hearing justice—a different justice from the one who originally sentenced the defendant—did not apply the correct standard in denying the defendant's sentence-reduction motion. Specifically, the defendant asserts that the hearing justice erroneously applied the appellate standard of review. This case came before the Supreme Court pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not summarily be decided. After considering the parties' written and oral submissions and reviewing the record, we conclude that cause has not been shown and that this case may be decided without further briefing or argument. For the reasons set forth in this opinion, we vacate the order of the Superior Court and remand this case for a new hearing on the defendant's motion to reduce.

IFacts and Procedural History

In April 2002,¹ defendant participated in a criminal subterfuge that involved setting up a fake jewelry store in a shopping plaza and arranging appointments with wholesale jewelry salesmen for the alleged purpose of stocking the store, with the actual purpose being to rob the unsuspecting salesmen upon their arrival. As the scheme unfolded, two victims were indeed robbed, bound and gagged, and kept in a closet, and a third victim narrowly escaped the same fate.

As a result of this venture, defendant was charged with two counts of first-degree robbery, three counts of conspiracy to commit robbery, two counts of kidnapping, one count of assault of a person over sixty years of age, and one count of larceny of a firearm. Two of defendant's accomplices, Elaine Thomas and William Thomas, testified against him at trial. On May 25, 2005, a jury convicted defendant on all charges except for larceny of a firearm, and on October 5, 2005, defendant received the following sentences, all of which were to run concurrently: (1) thirty years, with fifteen years to serve and the remainder suspended, with probation, for each robbery conviction; (2) ten years to serve for each conspiracy conviction; (3) twenty years, with ten years to serve and the remainder suspended, with probation, for each kidnapping conviction; and (4) five years to serve for the assault conviction. A judgment of conviction was entered on October 24, 2005.

The defendant appealed his convictions to this Court, but we found his claims of error unavailing and affirmed the Superior Court judgment on May 8, 2009. State v. Diefenderfer, 970 A.2d 12, 35 (R.I.2009). Thereafter, on September 3, 2009, defendant timely moved for a reduced sentence based on Rule 35(a) of the Superior Court Rules of Criminal Procedure.² In his motion, defendant urged that his sentence be reduced because of his good behavior at the Adult Correctional Institutions (ACI), the extreme hardship that his family has endured during his incarceration, and the lesser degree of guilt, vis-à-vis his accomplices, in the crimes for which he was sentenced.

A hearing on defendant's sentence-reduction motion was held on October 28, 2009. Presiding at the hearing was a different justice from the one who originally sentenced defendant.³ At the hearing, defendant incorporated by reference and expanded upon the arguments that he outlined in his motion. Specifically, defendant argued that “the likelihood that [he] will be rehabilitated is excellent,” given that he has not had any disciplinary infractions while incarcerated. The defendant also pointed out that he served twenty-five months in home confinement prior to his conviction “without a single problem.” The defendant asserted that he had “no prior convictions” and a single “deferred sentence” that dated back twenty-six years and essentially amounted to being “young and stupid with [a] * * * drinking problem.” In addition, defendant expressed remorse about his involvement in the criminal scheme. He explained that he agreed to participate only after William Thomas, his brother-in-law, told him that he was having mortgage problems and asked for his help, claiming that the scheme's backers would “break [Williams's] legs” if he did not follow through with it. The defendant argued that he was a minor player in this ruse—having become involved in it just two days before its execution—and that even the victims, during their trial testimony, “seemed to be trying to take as much blame away from [defendant] through their explanation of what happened.” The defendant emphasized that despite his lesser degree of culpability vis-à-vis his accomplices, he received a longer sentence than they did.⁴

In addition to delineating his arguments, defendant noted that the standard on a motion to reduce is “basically a plea for leniency.” The defendant acknowledged that he was at a “disadvantage” on this motion because he was not facing the sentencing justice. Despite this, defendant urged that the hearing justice not simply defer to the sentence given by the sentencing justice, but rather the hearing justice should exercise his own discretion with respect to this motion, as if he had been the sentencing justice himself.

In objecting to defendant's motion, the state argued at the sentence-reduction hearing that even if the hearing justice “were to accept everything that the defendant has said * * * as true, it [did] not give [the hearing justice] the legal authority to adjust the defendant's sentence down.” The state elaborated as follows:

“[The hearing justice] does not have, contrary to what the defense might argue, unfettered discretion to simply listen and reduce a sentence. The Rhode Island Supreme Court has said that although a Rule 35 motion is a plea for leniency, the Court cannot tinker with a sentence because [it may] simply * * * have sympathy for the defendant or the defendant has done well after his incarceration in the ACI.”

The state then pointed out that this Court has maintained a strong policy against interfering with a trial justice's discretion in a sentencing matter. Citing State v. Ferrara, 818 A.2d 642 (R.I.2003), it stated that a sentence will only be interfered with “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. at 644 (quoting State v. Rossi, 771 A.2d 906, 908 (R.I.2001) (mem.)). The state, further quoting from Ferrara, added that “[a] manifestly excessive sentence is defined as one which is ‘disparate from sentence[s] generally imposed for similar offenses when the heavy sentence imposed is without justification.’ ” Id. (quoting Rossi, 771 A.2d at 908). The state asserted that it was defendant's burden to show that the sentence imposed violates this standard and that defendant failed to do so.

At the conclusion of the October 28, 2009 hearing, the hearing justice averred that the state “ha[d] set forth the standard * * * for a trial justice who did not preside at a trial.” He noted that this was the standard “that this motion need[ed] to be judged in” and scheduled the entry of his decision for December 3, 2009.

On December 3, 2009, the hearing justice denied defendant's sentence-reduction motion. The hearing justice stated that after a review of the record, “[i]t appear[ed] that if there was a minor player in this particular incident, [defendant] was the most minor of the players.” The hearing justice then stated, however, that although at the outset, the “relative culpability” argument “seemed very appealing,” the sentencing justice “was aware of this precise argument on the day of the sentencing.” After reviewing in detail the sentencing justice's comments at the sentencing proceeding, the hearing justice noted that a motion to reduce sentence “is essentially a plea for leniency.” He then stated that the two cases submitted to him by the state, State v. Morris, 863 A.2d 1284 (R.I.2004), and Ferrara, “stand for the proposition [that] there's a very strong policy against interfering with a trial justice's discretion in sentencing matters, and [that] the Supreme Court will only interfere in what they categorize, in their words, the instance where the sentence imposed is * * * without justification * * * [and] grossly disparate from the other sentences generally imposed for similar offenses.”

The hearing justice noted that he could not “make a finding that the sentence is grossly disparate” or that it is “without justification.” He went on to say that although he “fully underst[ood]” and was “somewhat impressed” with defendant's “relative culpability argument,” he would not “speculate” about what the sentencing justice “might have done” in this situation.⁵ According to the hearing justice, “it * * * appear[ed] to be unlawful for [him] to reduce [defendant's] sentence,” but a parole board could “properly consider [the factors] in this particular matter.” Saying that he took “no satisfaction” in doing so, the hearing justice denied defendant's sentence-reduction motion. The defendant appealed on December 8, 2009, and an order denying defendant's motion was entered on January 26, 2010.⁶

IIStandard of Review

A Rule 35 motion is “essentially a plea for leniency.” State v. Ruffner, 5 A.3d 864, 867 (R.I.2010) (quoting State v. Mendoza, 958 A.2d 1159, 1161 (R.I.2008)). “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...