State v. Fortes

• Decision Date: 10 January 1975
• Docket Number: No. 73-103-C,73-103-C
• Citation: 330 A.2d 404,114 R.I. 161
• Parties: STATE v. Alfred A. FORTES, Jr. A.
• Court: Rhode Island Supreme Court

Page 404

330 A.2d 404

114 R.I. 161

STATE v. Alfred A. FORTES, Jr.

No. 73-103-C.A.

Supreme Court of Rhode Island.

Jan. 10, 1975.

Richard J. Israel, Atty. Gen., Donald P. Ryan, Asst. Atty. Gen., R. Raymond Greco, Sp. Asst. Atty. Gen., for plaintiff.

William F. Reilly, Public Defender, Emanuel J. Lauria, Asst. Public Defender, for defendant.

OPINION

PAOLINO, Justice.

This appeal raises the question of whether this court has jurisdiction to review a sentence imposed by a justice of the Superior Court when it is alleged that the sentence is excessive although within the statutory limits. The question is one of first impression in this state.

The question presented arises in the context of the following facts. On April 8, 1968, the Grand Jury returned an indictment charging defendant with possession of marijuana in violation of G.L.1956 (1968 Reenactment) § 21-28-31, as amended. On April 23, 1968, he pleaded nolo contendere and was placed in unconditional unsupervised probation on condition that he enter the armed forces. On June 26, 1969, defendant again appeared before a justice of the Superior Court and withdrew his previous plea. He then pleaded nolo contendere and received a deferred sentence on the April 8, 1968 indictment for possession of marijuana.

On September 7, 1972, defendant was again brought before a justice of the Superior Court. This time he was charged with violating the terms of the deferred sentence which he received on June 26, 1969. At the violation hearing held in the Superior Court, the state produced uncontradicted evidence establishing that defendant had, without provocation, assaulted with intent to murder one, Richard Thomas Fielding, Jr. with a .45 automatic pistol. As a result of the assault Fielding was rendered a paraplegic.

In finding that defendant had violated the terms of his deferred snetence the trial justice discussed defendant's prior record as well as the circumstances surrounding the assault on Fielding. He noted that the uncontradicted evidence showed that defendant had committed several offenses, namely, possession of the .45 automatic pistol, the assault without provocation and with intent, apparently, to murder, ¹ and, in July 1972, his being in the hospital for an overdose of a narcotic drug. He also observed that nothing had been said in mitigation of defendant's breach, which he characterized as 'one of the most grievous' that he had ever heard since the was on the bench and as a 'completely unprovoked, unexplained assault with intent to murder.' He then said:

'I have been trying to think of whether there is any reason why the defendant should not be sentenced to the maximum of fifteen years, and I can find no reason, and for that reason the Court does enter judgment against the defendant and sentences him to a term of fifteen years at the Adult Correctional Institution(s).'

The case is before this court on defendant's appeal from the judgment finding him in violation of the deferred sentence previously imposed on June 26, 1969 and sentencing him to the Adult Correctional Institutions for 15 years.

On March 6, 1974, this case was reached for oral argument before this court. In the briefs submitted by defendant at that time, he contended that the trial justice abused his discretion by imposing a sentence of 15 years for defendant's violation of the terms of his deferred sentence. The defendant requested that we vacate the sentence imposed and remand the case to the Superior Court for a new revocation hearing before another justice of that court. Because the question of this court's authority to review sentences imposed by the Superior Court presented a question of first impression in this state, we requested counsel to prepare supplemental briefs on the issue of this court's jurisdiction to review a sentence imposed by a justice of the Superior Court on the ground that the sentence was excessive even though it was within the statutory limits. Additionally, we requested the preparation of a survey indicating the manner in which possession of marijuana cases have been disposed of for purposes of comparison with the disposition in the instant case. ² We continued the case to allow counsel time to prepare and file the supplemental briefs.

After the filing of the supplemental briefs we heard oral arguments on October 8, 1974.

Before considering the substantive issues raised by defendant, we address ourselves to the procedural questions raised by the state.

The state contends that any constitutional challenge to the sentence on the ground of cruel and unusual punishment is now waived because the question was never raised in the court below. The short answer to this argument is that defendant has not, either in his briefs or in oral argument, challenged the constitutionality of § 21-28-31 in this proceeding. Moreover, even if he had, on the view we take of this appeal, we would not reach or decide this issue.

With respect to defendant's contention that the trial justice abused his discretion when he imposed the 15-year sentence, the state argues that defendant did not make timely objection in the Superior Court to the entry of judgment finding him to be a violator of his deferred sentence nor did he object to the imposition of the 15-year sentence. Thus, the state concludes, defendant failed to comply with Super.R.Crim.P. 51 and therefore the objection is waived on appeal. ³ The record does not support the state's claim. A fair reading of the transcript of the revocation hearing indicates, though informally, defendant's objection to the entry of the judgment finding him to be in violation of his deferred sentence. The record also shows defendant's objection to the imposition of a sentence based on the new offense rather than on the charge of possession of marijuana. ⁴ This was broad enough to constitute an objection to the imposition of the 15-year sentence. We find there was substantial compliance by defendant with Rule 51.

Another argument presented by the state is that defendant should have followed the procedure outlined in Super.R.Crim.P. 35 by moving for a reduction of sentence in the Superior Court. ⁵ We are concerned here with the question of whether this court has jurisdiction to review the sentence imposed, not with the question of whether defendant should have sought relief in the first instance in the Superior Court under Rule 35.

Having disposed of the state's procedural questions, we address ourselves to the question raised by defendant.

I

We consider first the question of whether this court has jurisdiction to review a sentence legally imposed by a justice of the Superior Court but which is alleged to be excessive although within the statutory limits.

Although we know of no decision by this court wherein a sentence was reviewed on appeal, we are aware that this issue has arisen and has been decided in other jurisdictions. Some of these have acted under express statutory authority. ⁶

At least two jurisdictions have reviewed allegedly excessive sentences in the absence of express statutory authority. See State v. Hall, 87 N.J.Super. 480, 210 A.2d 74 (App.Div.1965); State v. Johnson, 67 N.J.Super. 414, 170 A.2d 830 (App.Div.1961); State v. Ward, 57 N.J. 75, 270 A.2d 1 (1970); State v. Tuttle, 21 Wis.2d 147, 124 N.W.2d 9 (1963).

In State v. Johnson, supra, the court reviewed the merits of the consecutive sentences imposed on the defendant following his conviction of rape and kidnapping. New Jersey, like Rhode Island, has no express statutory authority for appellate review of sentences. In Johnson the court put the issue as follows:

'This brings us face to face with the question whether this court has the power to modify the sentence imposed by the trial court. The question might rather be put in this fashion: Why has it been assumed that this court has no such power?' Id. 67 N.J.Super. at 424, 170 A.2d at 836.

The court answered the question by stating the following:

'Laying aside the question of sentence for the moment, we recall no exercise of discretion which today is not reviewable and which, if unlawfully prejudicial or 'abused,' may not be corrected by an appellate court.' Id. 67 N.J.Super. at 425, 170 A.2d at 836.

Then, after reviewing the history of appellate review of sentences in New Jersey, the court concluded 67 N.J.Super. at 432, 170 A.2d at 840 of its opinion that it had the right to revise a sentence 'where it is manifestly excessive, even though within authorized statutory limits.'

The Johnson holding was followed in State v. Hall, supra, where the court vacated and revised a sentence which had previously been imposed by the trial court.

Again, in 1970, in State v. Ward, supra, the Supreme Court of New Jersey considered the question of an alleged excessive sentence. The defendant was found guilty by a jury of possessing marijuana in violation of that state's statute, and was sentenced to serve a state prison term of two to three years and fined $100. The defendant was a first offender, and under the pertinent statute the trial court had discretionary power to impose a suspended sentence. The court stated as follows:

'Since it is conceded that defendant was a first offender, the trial court had the discretion to suspend sentence. Defendant urges that the trial judge misused his discretion in not following that course. It is clear that this Court has the power to review any exercise of the trial court's discretion, including the power to revise a prison sentence where it is manifestly excessive, even though within statutory limits. State v. Bess, 53 N.J. 10, 18-19, 247 A.2d 669 (1968). After reviewing the record and the probation report, we think the sentence was entirely too harsh.' Id. 57 N.J. at 81, 270 A.2d at 4.

The court then held that the sentence of 2-to-3-year terms in the state prison on first conviction of possession of marijuana was excessive, and revised the sentence to provide for a suspended...