State v. Kenner
| Decision Date | 17 June 2022 |
| Docket Number | 2021-101-C.A.(W1/12-298A), No. 2021-102-C.A.(W2/13-248A) |
| Citation | 276 A.3d 357 |
| Parties | STATE v. Charles KENNER. |
| Court | Rhode Island Supreme Court |
Virginia M. McGinn, Department of Attorney General, for State.
Ferenc Karoly, Esq., for Defendant.
Present: Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Long, JJ.
In these consolidated appeals, the defendant, Charles Kenner, appeals from two judgments of the Superior Court finding him to be in violation of the terms of his probation and sentencing him to serve portions of previously imposed suspended sentences. These cases came before the Supreme Court pursuant to an order directing the parties to appear and show cause why the issues raised in these appeals should not be summarily decided. After considering the parties’ written and oral submissions and reviewing the record, we conclude that cause has not been shown and that these appeals may be decided without further briefing or argument. For the reasons stated in this opinion, we affirm the judgments of the Superior Court.
In 2012, defendant was charged with four counts of first-degree sexual assault, four counts of first-degree child molestation sexual assault, and one count of second-degree child molestation sexual assault (the 2012 case). In 2013, defendant was charged with one count of entering a dwelling with felonious intent (the 2013 case). The defendant subsequently pled nolo contendere to one count of first-degree sexual assault and one count of breaking and entering.1 In the 2012 case, defendant was sentenced to fifteen years at the Adult Correctional Institutions, with eight years to serve and the remaining seven years suspended, with probation. In the 2013 case, defendant was sentenced to five years at the ACI with the entire sentence suspended, with probation. The sentences were to run concurrently.
On December 21, 2020, the state filed notices of probation violation in both underlying cases, pursuant to Rule 32(f) of the Superior Court Rules of Criminal Procedure. On March 31, 2021, a justice of the Superior Court held a combined violation and bail hearing for the new 2020 charge. The hearing was also consolidated with a hearing on probation-violation charges against Jason Shepard, who was alleged to have also been involved in the incident giving rise to the notices of probation violation filed against defendant. During the hearing, two witnesses testified about the incident and some of the following events. We now summarize the salient evidence presented at the hearing.
The first witness to testify was Nicholas Dubois. Dubois testified that on November 27, 2020, he agreed to meet with Shepard, known to him as Jay, to trade shoes for drugs. Dubois stated that at around 11:30 a.m. he drove his vehicle to the agreed-upon location, where he observed defendant, Shepard, and a woman arrive together in a gray SUV. According to Dubois, defendant was familiar to him because he had seen him "a couple of other times[,]" including on at least one occasion as part of a prior drug transaction.
Dubois testified that defendant and Shepard then got into Dubois's vehicle, where defendant tried on the shoes. According to Dubois, after about ten minutes of being in the car together, defendant, who was sitting behind Dubois, choked Dubois with the crook of his elbow and held something—at times Dubois stated the object was a knife—up to Dubois's throat.2 Dubois initially testified that, while defendant choked him, Shepard was in the passenger seat threatening to stab Dubois if he moved; however, Dubois later testified that it was defendant who threatened to stab him if he moved.
Dubois further testified that Shepard ultimately did stab him, in multiple places, and hit him in the eye, and the state introduced as exhibits photographs of Dubois's injuries. According to Dubois, after being stabbed by Shepard, he began fighting Shepard, and eventually he was pushed into the passenger seat, where defendant again choked him from behind. Dubois testified that Shepard then began driving Dubois's vehicle and that, eventually, after some struggle, Dubois was able to jump out of the vehicle. According to Dubois, defendant and Shepard then drove away in Dubois's car.
Dubois further testified that, after exiting his vehicle, he called 911 and reported his vehicle as stolen. Dubois stated that, due to his injuries, he spent the night at Rhode Island Hospital, where he spoke with detectives about the incident. Dubois also testified that he identified both defendant and Shepard in a photographic lineup.
Dubois further testified that he struggled with substance-abuse issues, and that he had a criminal record. Dubois also testified that he was on probation when the incident occurred.
The second and final witness to testify was Detective Robert Malaragno. Detective Malaragno testified that he spoke with Dubois about the incident in his capacity as a Providence police officer. Detective Malaragno further testified that, based on the information Dubois provided him, he identified defendant and Shepard as suspects. According to Det. Malaragno, he then put together a photographic array that included defendant and Shepard, and Dubois identified both individuals as having been involved in the incident.
The defendant rested without presenting any evidence. After hearing the testimony, the hearing justice delivered a bench decision.
The hearing justice began by stating that the evidence was "relatively straightforward." He found that Dubois was a "frequent purchaser" of drugs around the time of the incident and that he communicated with Shepard to set up a trade for drugs. He further found that defendant and Shepard entered Dubois's vehicle, and that after they talked for a while, the "interaction * * * turned violent[.]"
With respect to defendant's role, the hearing justice found that the testimony was "relatively inconsistent" as to whether defendant had a knife. He found, however, that defendant was present during the incident and did engage in some activity. The hearing justice found that defendant "choked [Dubois] with his arm around his neck and said something like, ‘Don't move or I'll stab you.’ " The hearing justice further found that Dubois identified defendant in a photographic array, as well as in court, and that the attack was corroborated by Dubois's injuries as memorialized in the photographic exhibits presented by the state. Ultimately, the hearing justice held that the evidence was "straightforward" and "preponderant" that defendant failed to keep the peace and be of good behavior.
The hearing justice ordered defendant to concurrently serve six years of his suspended sentence in the 2012 case, with the remaining one-year balance suspended, with probation, and five years of his suspended sentence in the 2013 case, representing the entirety of that suspended sentence. Separate judgments of conviction on the probation violation entered in each case on April 21, 2021. These appeals resulted.
Initially, we must decide whether each appeal is properly before us. The defendant filed a notice of appeal in the 2012 case on April 1, 2021. Although final judgment did not enter until April 21, 2021, this Court has repeatedly held that "a premature notice of appeal will be considered timely so long as a final judgment is entered thereafter." State v. Lamontagne , 231 A.3d 1132, 1138 n.2 (R.I. 2020) (quoting State v. Souto , 210 A.3d 409, 415 n.8 (R.I. 2019) ). Therefore, defendant's appeal of the 2021 judgment in the 2012 case was timely and is properly before us.
However, no notice of appeal was ever filed in the 2013 case. Although the notice of appeal filed in the 2012 case listed both cases as being appealed, demonstrating an intention by defendant to appeal both probation-violation convictions, defendant asserts that the notice of appeal was "inadvertently only filed" in the 2012 case and was not filed in the 2013 case.3
This Court's rules require a properly filed notice of appeal for each case, even in consolidated cases. Article I, Rule 3 of the Supreme Court Rules of Appellate Procedure; Martin v. Lilly , 505 A.2d 1156, 1159 (R.I. 1986). Nonetheless, "[i]n the absence of statutory jurisdiction, this Court has discretion in determining whether to grant petitions for certiorari." State v. Bienaime , 263 A.3d 77, 83 (R.I. 2021) (brackets omitted) (quoting Davis v. Rhode Island Board of Regents for Education , 121 R.I. 473, 477, 399 A.2d 1247, 1249 (1979) ). Therefore, because defendant clearly demonstrated an intent to appeal both cases in a timely fashion because both case numbers were indeed listed on the notice of appeal filed in the 2012 case, we will exercise our discretion and "nevertheless review this case as though defendant had filed a common law petition for writ of certiorari so that we may avoid depriving defendant of the opportunity to seek review of his criminal conviction." State v. Sanchez , 206 A.3d 115, 121 n.6 (R.I. 2019).
Accordingly, we proceed to the merits of defendant's argument on both 2021 judgments, in the 2012 case and the 2013 case.
On appeal, defendant contends that the hearing justice erred in finding that he failed to keep the peace and be of good behavior and therefore that he violated his probation. Specifically, defendant argues that the testimony the hearing justice relied on was inconsistent and that Dubois was not credible as a witness. Additionally, defendant avers that the hearing justice erred by conflating defendant with Shepard, as defendant asserts that there was enough evidence to find that Shepard had violated his probation, but not enough evidence to find that defendant had violated his probation.
"At a probation-violation hearing, the sole issue for a hearing justice is whether the defendant has breached a condition of his or her probation by failing to keep the peace or remain on good behavior."...
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