State v. Lopez

• Decision Date: 02 April 2018
• Docket Number: NO. P1/14-1482AG,P1/14-1482AG
• Parties: STATE OF RHODE ISLAND v. JOSE LOPEZ
• Court: Rhode Island Superior Court

STATE OF RHODE ISLAND v. JOSE LOPEZ

NO. P1/14-1482AG

STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS PROVIDENCE, SC. SUPERIOR COURT

April 2, 2018

DECISION

KRAUSE, J. On the day before Christmas, and just before his seventeenth birthday in 2013, Jose Lopez, with encouragement from two of his Chad Brown gang friends, murdered Ryan Almeida, a rival East Side gang member, in front of his mother's home. Shooting Almeida was retaliation for the East Side gang having killed Lopez's cousin six months earlier. Lopez's two cohorts pled guilty and testified for the state at his January 2015 jury trial. Lopez was convicted of first degree murder, discharging a firearm resulting in death, and conspiracy to commit murder. His motion for a new trial was denied on February 11, 2015.

As required by statute, this Court sentenced Lopez to a mandatory life term for first degree murder and an obligatory consecutive life sentence for the death-by-firearm offense. Over the state's objection, the Court suspended a ten-year consecutive term on the conspiracy count and imposed a like period of probation instead. Both life sentences are parolable. Lopez's conviction has been affirmed, State v. Lopez, 149 A.3d 459 (R.I. 2016), and the disturbing facts of the case, which the Supreme Court labeled "chilling," are fully set forth therein.

Through a motion under Rule 35, Super. R. Cr. P., Lopez complains that the two consecutive life terms are constitutionally infirm. He entreats this Court to vacate those sentences, hold a hearing in order to examine youth-related and other factors, and reconsider imposition of the life terms because he was a juvenile when he killed Ryan Almeida. For procedural as well as substantive reasons, his request is denied.

I

Lopez's motion is void ab initio because it is procedurally flawed. The Rhode Island Supreme Court has held that a defendant may not utilize Rule 35 to advance a constitutional challenge to his sentence. State v. Linde, 965 A.2d 415, 417 (R.I. 2009) (Linde II).¹ Lopez maintains, however, that Linde II does not apply to his motion and that, even if it does, that case was wrongly decided by the Supreme Court and he is still entitled to relief. He is mistaken.

Rule 35(a) provides:

"35. Correction, decrease or increase of sentence. (a) Correction or reduction of sentence. The court may correct an illegal sentence at any time. The court may correct a sentence imposed in an illegal manner and it may reduce any sentence when a motion is filed within one hundred and twenty (120) days after the sentence is imposed, or within one hundred and twenty (120) days after receipt by the court of a mandate of the Supreme Court of Rhode Island issued upon affirmance of the judgment or dismissal of the appeal, or within one hundred and twenty (120) days after receipt by the court of a mandate or order of the Supreme Court of the United States issued upon affirmance of the judgment, dismissal of the appeal, or denial of a writ of certiorari. The court shall act on the motion within a reasonable time, provided that any delay by the court in ruling on the motion shall not prejudice the movant. The court may reduce a sentence,the execution of which has been suspended, upon revocation of probation." (Emphasis added.)²

An illegal sentence is "one that is not authorized by the statute establishing the punishment that may be imposed for the particular crime or crimes." State v. Texieira, 944 A.2d 132, 143 (R.I. 2008); State v. Murray, 788 A.2d 1154, 1155 (R.I. 2001) ("An illegal sentence is one that when imposed is at variance with the statute proscribing [sic] the punishment that may be imposed for the particular crime or crimes."). See State v. DeCiantis, 813 A.2d 986, 990-91 (R.I. 2003) (discussing the distinction between an illegal sentence and an illegally imposed sentence, and defining an illegal sentence as "one which has been imposed after a valid conviction but is not authorized under law" (internal quotation marks omitted), noting that the failure to provide the defendant his right of allocution under Rule 32 is an example of an illegally imposed sentence).

Lopez's notion that his consecutive life sentences are "illegal" is simply wrong. As prescribed by Texieira and Murray, those prison terms comport in every way with the sentencing statutes. First degree murder mandates a life sentence, and if that killing resulted from thedischarge of a firearm, a consecutive life sentence must follow.³ Challenging the "legality" of those sentences under Rule 35 on constitutional grounds is plainly impermissible under Linde II:

"[W]e never have countenanced a challenge to the constitutionality of a penal statute in the context of a Rule 35 motion; nor have we declared that a sentence imposed pursuant to an unconstitutional statute, which is not the case here, is illegal as contemplated by Rule 35 and we decline to do so now." Linde II, 965 A.2d at 417.

Even so, argues Lopez, the two consecutive life terms nonetheless transgress Rule 35 because they were allegedly "imposed in an illegal manner." The Court disagrees. The entirety of the manner by which sentence was imposed was assiduously followed. At its core, Lopez's quarrel is really not with any impermissible manner by which the life sentences were imposed; rather, it is the essence of the punishment he laments and which, he says, is constitutionally flawed. Pursuing that complaint under Rule 35, however, is precisely what Linde II precludes.⁴

Regardless of whether Lopez's claim is premised on a demand to correct a purportedly illegal sentence, or whether it is couched in terms of unbuttoning consecutive life sentences which he suggests were illegally imposed, it is the view here that under Linde II any professed distinction creates no room within Rule 35 to pursue alleged constitutional infirmities in those sentences. Accordingly, this Court "need not reach the merits of [Lopez's] constitutionalchallenges because they are 'not cognizable'" under Rule 35. State v. Ciresi, 151 A.3d 750, 755 (R.I. 2017) (quoting Linde II, 965 A.2d at 416).

Lopez's residual argument—that Linde II was somehow wrongly decided—has no legs whatsoever in the Superior Court. '"It is well settled that an opinion of [the Supreme Court] declares the law in Rhode Island and that law must be followed by the lower courts of our judicial system, regardless of whether that court or any of its judges agree or disagree with our holding."' Motyka v. State, 172 A.3d 1203, 1208 (R.I. 2017) (Indeglia, J., concurring) (quoting Univ. of R.I. v. Dep't of Emp't and Training, 691 A.2d 552, 555 (R.I. 1997)).⁵

Accordingly, for procedural reasons alone, Lopez's motion must fail. Nonetheless, even if Lopez could raise constitutional challenges under Rule 35, his arguments lack merit.

II

Lopez contends that a series of holdings by the United States Supreme Court which have eliminated the death penalty for juveniles and diminished a juvenile's exposure to a life without parole sentence should also be favorably extended to him because, he says, his consecutive, parolable life sentences amount to a de facto term of life without parole. He is mistaken.

Beginning in 2005, the United States Supreme Court examined the fundamental differences between juveniles and adults and concluded that juvenile offenders should not suffer the death penalty and that, unless entirely incorrigible, they do not deserve the second harshest penalty of life without the possibility of parole. Roper v. Simmons, 543 U.S. 551 (2005), Graham v. Florida, 560 U.S. 48 (2010), and Miller v. Alabama, 567 U.S. 460 (2012).

In Roper, a defendant was sentenced to death for a murder committed when he was seventeen years old. After outlining ways in which juvenile offenders differ from their adult counterparts, the Court banned the imposition of death sentences for juveniles. Five years later, in Graham, after considering the case of a sixteen-year-old who had been sentenced to life without parole for an armed burglary, the Court held that juveniles could not be sentenced to a nonparolable term for nonhomicide offenses.

In Miller, the Court examined an Eighth Amendment challenge by two fourteen-year-old offenders who had been ordered to serve mandatory life sentences without parole as a result of their murder convictions. The Supreme Court held that unless the trial court first considered mitigating circumstances, it could not impose the state's harshest penalty, a mandatory nonparolable life term, on a juvenile homicide offender.

Finally, in Montgomery v. Louisiana, ___ U.S. ___, 136 S. Ct. 718 (2016), the Court extended Miller retroactively, holding that a nonparolable life sentence is unconstitutional for all juvenile offenders except for the rare one "whose crime reflects irreparable corruption" or "permanent incorrigibility." Montgomery, 136 S. Ct. at 734 (quoting Miller, 567 U.S. at 479-80).

* * *

Roper, Graham and Miller targeted only the harshest and most severe sentences which can be imposed. Graham, 560 U.S. at 69 (noting that "life without parole is the second mostsevere penalty permitted by law"); Miller, 567 U.S. at 460, 465, 475 (viewing a life without parole sentence as an "ultimate penalty * * * akin to the death penalty"). In Graham, the Court said: "The State does not execute the offender sentenced to life without parole, but the sentence alters the offender's life by a forfeiture that is irrevocable." Graham, 560 U.S. at 69. Manifestly, Lopez's parolable sentences are not "irrevocable," and, certainly, they do not approach Rhode Island's most severe sentence of life without parole. See State v. Carpio, 43 A.3d 1, 13 (R.I. 2012). Those nonparolable terms are designated for a finite assortment of first degree murders with particularized circumstances limned by § 11-23-2.⁶ That extreme sentence was never in play in this case. Lopez was ordered to serve consecutive life sentences for first degree murder and for discharging a firearm resulting in the...