State v. Macarelli

• Decision Date: 27 July 1977
• Docket Number: No. 76-445,76-445
• Citation: 118 R.I. 693,375 A.2d 944
• Parties: STATE v. Salvatore MACARELLI. M.P.
• Court: Rhode Island Supreme Court

Page 944

375 A.2d 944

118 R.I. 693

STATE v. Salvatore MACARELLI.

No. 76-445 M.P.

Supreme Court of Rhode Island.

July 27, 1977.

[118 R.I. 700] Julius C. Michaelson, Atty. Gen., Nancy Marks Rahmes, Special Asst. Atty. Gen., for State.

Barbara Hurst, Public Defender, John A. Macfadyen, Asst. Public Defender, for defendant-petitioner.

OPINION

KELLEHER, Justice.

The instant case raises a novel issue in this jurisdiction: Does an ameliorative statute passed during the pendency of a defendant's appeal necessitate a reduction in the defendant's sentence in conformity therewith?

The defendant (Macarelli) and three others were found guilty by a Superior Court jury of conspiring to corrupt various and sundry horse trainers at the Lincoln Downs Racetrack. The trial justice imposed a 5-year sentence upon Macarelli under authority of G.L. 1956 (1969 Reenactment) § 11-1-1 but stayed its execution pending appeal. We affirmed his conviction. ¹ Thereafter, Macarelli filed a timely motion in Superior Court for reduction of his sentence, presumably in accordance with Super.R.Crim.P. 35. The trial justice denied his motion. The time for appeal having lapsed, we granted this petition for certiorari.

In order to crystalize the contentions relevant to this petition, we deem it helpful to set forth the applicable statutes. As we have noted, Macarelli was originally sentenced to 5 years under § 11-1-1, which provided: ²

"Every act and omission which is an offense at common law, and for which no punishment is prescribed by this title, may be prosecuted and punished as an offense at common law. Every person who shall be convicted of any such offense at common law shall be imprisoned for a term not exceeding ten (10) years or be fined not exceeding five thousand dollars ($5,000)."

While Macarelli's appeal was pending before us, the General Assembly at its January 1975 session enacted the following statute:

"11-1-6. Conspiracy. Except as otherwise provided by law, every person who shall conspire with another to commit an offense punishable under the laws of this state, shall be subject to the same fine and imprisonment as pertain to the offense which such person shall have conspired to commit, provided, that imprisonment for such conspiracy shall not exceed ten (10) years."

An application of this statute to the underlying substantive offense of the conspiracy (§ 11-7-9 corruption of sports participant or official) with which Macarelli was charged would yield a maximum sentence of 2 years or a fine of $1,000. Macarelli claims that the trial justice should have reduced his sentence by employing the more lenient provisions of § 11-1-6.

The state, in taking a contrary position, relies on § 43-3-23, the so-called general savings statute, which, in its pertinent portions, provides:

"No suit, prosecution or indictment, pending at the time of the repeal of any statute for any offense committed * * * shall in any case be affected by such repeal, but such suit, prosecution or indictment, may be proceeded with, and such act shall be deemed to be in force for the purpose of prosecuting the same to final judgment and execution or sentence, as the case may be."

The state argues that § 11-1-6 is an implied repeal of the applicability of § 11-1-1 to conspiracy prosecutions, and, accordingly, § 43-3-23 controls. Macarelli, on the other hand, asserts that § 11-1-6 merely amends the penalty portion of § 11-1-1. Thus he argues that since § 43-3-23 speaks in terms of repeal rather than amendment, it is totally inapposite to his attempt to reduce the 5-year sentence. While recognizing that statutes affecting criminal prosecutions must be liberally construed in favor of the defendant, State v. Patriarca, 71 R.I. 151, 43 A.2d 54 (1945), we accept the state's contention that the savings statute is applicable to this case.

It is obvious that conspiracy charges will now come within the ambit of § 11-1-6. Section 11-1-1 provides that it is applicable to common law crimes for which no punishment is prescribed by this title. As § 11-1-6 now prescribes a specific punishment for the common law crime of conspiracy, the applicability of § 11-1-1 to such proceedings has been impliedly repealed, and the savings statute controls. See Atchley v. State, 473 P.2d 286 (Okl.Cr.1970). Having determined that the general savings statute would otherwise apply, we next consider defendant's contention that where the "amendatory act" mitigates punishment, the savings statute should not preclude defendant's possible benefit thereunder.

Clearly, in the absence of a retroactive provision, § 11-1-6 would not apply to a conviction reduced to final judgment prior to its passage. In the instant case, the act was passed prior to appellate review but after the jury verdict and imposition of sentence. In our view, a judgment of conviction is not final as long as the case is pending on appeal, and the defendant should have the opportunity to raise a statutory ameliorative change as part of his defense. State v. Harvey, 281 N.C. 1, 187 S.E.2d 706 (1972); State v. Pardon, 272 N.C. 72, 157 S.E.2d 698 (1967); see State v. Marzilli, 111 R.I. 392, 303 A.2d 367 (1973).

At common law if a penal statute was repealed without a reservation of its penalties, all criminal proceedings commenced thereunder abated. General savings statutes were enacted to remedy possible inequities growing out of that rule. State v. Lewis, 91 R.I. 110, 161 A.2d 209 (1960). Macarelli directs our attention to the cases of In re Estrada, 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948 (1965), and People v. Oliver, 1 N.Y.2d 152, 151 N.Y.S.2d 367, 134 N.E.2d 197 (1956), for the proposition that these savings statutes should be applied only in instances where punishment or prosecution of a defendant under the repealing, rather than the repealed, statute would result in obvious ex post facto problems. See also State v. Pardon, supra. Although the ex post facto problem is one of those areas that the savings statute is clearly meant to remedy, it by no means exhausts its applicability in other areas. See People v. Oliver, supra, 1 N.Y.2d at 161 n. 3, 151 N.Y.S.2d 367, 134 N.E.2d at 202 n. 3. The limited question, then, is what effect the savings statute has upon subsequent statutes mitigating the penalty for the crime charged.

Initially, we should note that our savings statute, barring other considerations, preserves the penalty (sentence) provisions of a repealed law "and such (repealed) act shall be deemed to be in force for the purpose of prosecuting the same to final judgment and execution or sentence, as the case may be." Section 43-3-23 (emphasis added). Thus, defendant's reliance on In re Estrada, supra, is of no assistance to his cause. The California Supreme Court in that case based its decision upon an interpretative analysis of its own savings statute. The court took a position that benefited the defendant because the savings statute did not specify under which law the penalty should be imposed as long as the offender was punished. In re Estrada, supra, 63 Cal.2d at 746-48, 48 Cal.Rptr. at 177, 408 P.2d at 953.

On the other hand, the rationale expressed by the court in the Oliver case contains no such equivocation but does represent what to us is a sound judicial philosophy. In Oliver, as here, the issue was what effect an ameliorative statute had upon a prosecution which, because of a savings clause, would otherwise be governed by the prior law. Section 43-3-23 clearly governs the...