State v. Rivera

• Citation: 64 A.3d 742
• Decision Date: 02 May 2013
• Docket Number: No. 2011–339–C.A.,2011–339–C.A.
• Parties: STATE v. Jose RIVERA.
• Court: United States State Supreme Court of Rhode Island

64 A.3d 742

STATE

v.Jose RIVERA.

No. 2011–339–C.A.

Supreme Court of Rhode Island.

May 2, 2013.

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

Catherine Gibran, Office of the Public Defender, for Defendant.

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

OPINION

Justice GOLDBERG, for the Court.

This case came before the Supreme Court on January 23, 2013, pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not summarily be decided. The defendant, Jose Rivera, appeals from the denial of a motion to reduce a sentence in accordance with Rule 35 of the Superior Court Rules of Criminal Procedure; he argues that the sentence he received upon conviction on multiple counts of first- and second-degree sexual assault and one count of simple assault against three developmentally disabled women is without justification and disproportionate to sentences imposed for similar crimes. After carefully considering the written submissions and arguments of counsel, we conclude that cause has not been shown and that the appeal may be decided at this time. We affirm the judgment.

Facts and Travel

This case involves numerous instances of sexual assault upon two developmentally disabled women and one instance of physical assault upon another developmentally disabled woman perpetrated by defendant, who was a bus driver serving individuals with disabilities. A detailed recitation of the facts is set forth in our decision affirming defendant's conviction. State v. Rivera, 987 A.2d 887, 892–95 (R.I.2010). We therefore recount only those facts necessary to our disposition of this appeal.

At the time of these offenses, defendant was employed as a bus driver in the RIde division of the Rhode Island Public Transit Authority. In that capacity, he drove five bus routes to the Adeline LaPlante Memorial Center (LaPlante Center), an organization providing services to individuals with developmental disabilities. The defendant's duties were to pick up the assigned passengers, transport them to the LaPlante Center, and assist them in boarding and disembarking from the bus.

In June and July of 2005, defendant sexually assaulted two of his female passengers and physically assaulted a third. The first victim, a thirty-seven-year-old LaPlante Center employee with a severe developmental disability, was assaulted on two occasions. Each time, defendant touched the victim's breasts and placed his penis on her vagina, all without her consent. The defendant also engaged in unconsented sexual contact with the breasts and vagina of his second victim, a twenty-two-year-old developmentally disabled woman. Finally, defendant touched the upper body of a third victim, a thirty-nine-year-old developmentally disabled woman, without her consent.

The defendant was indicted on two counts of first-degree sexual assault and two counts of second-degree sexual assault of the first victim, two counts of second-degree sexual assault of the second victim, and one count of second-degree sexual assault of the third victim. The jury returned a guilty verdict on all counts pertaining to the first two victims, and it found defendant guilty of the lesser-included offense of simple assault of the third victim. The trial justice sentenced defendant to life imprisonment on the first-degree sexual assault counts and concurrent terms of fifteen years to serve on the second-degree sexual assault counts involving the first victim. With respect to the second-degree sexual assault crimes against the second victim, the trial justice imposed two concurrent sentences of fifteen years, to run consecutively to the sentences imposed for the counts involving the first victim. Finally, the trial justice sentenced defendant to one year for the simple-assault conviction, consecutive to all other sentences. The cumulative result of defendant's sentences was life imprisonment, followed by a consecutive term of sixteen years to serve.

This Court affirmed defendant's conviction on February 12, 2010. On May 5, 2010, defendant timely filed a motion to reduce his sentence. At a hearing before the same trial justice on June 27, 2011, defendant argued that the sentence was disproportionate to the putative relevant sentencing benchmark—benchmark 35D of the Superior Court Sentencing Benchmarks—for first-degree child molestation of a mentally or physically disabled child, which recommends a sentence between twenty and thirty years to serve.¹ The defendant also cited State v. Gardiner, 895 A.2d 703, 704–06 (R.I.2006), a case involving the first-degree sexual assault of a developmentally disabled woman at a group home at the hands of a community-living aide where the defendant was sentenced to twenty years with eight to serve, and argued that the sentence imposed here was disproportionate to the sentences imposed in similar cases. Finally, in an attempt to show that defendant's sentence was excessive when compared to the sentences typically meted out by the trial justice, defendant introduced an exhibit containing a list of first-degree and second-degree child molestation and first-degree sexual assault cases, along with brief summaries of those cases, over which the trial justice had presided. Defense counsel recommended that defendant's sentence be reduced to twenty to thirty years to serve.

During the hearing, the trial justice inquired whether defendant wished to address the court. After being informed that defendant declined to do so, the trial justice noted that one of the factors impacting the sentence defendant received was his failure to express remorse or take responsibility for his actions, and the trial justice asked whether there had been any change in these circumstances. Defense counsel related that there had been a discussion between defendant and officials at the Adult Correctional Institutions concerning enrollment in sex-offender counseling but that, because defendant was housed in Maximum Security, he was prevented from participating in that treatment program.

For its part, the state highlighted the severity of the offenses, juxtaposed with the position of trust that defendant held with respect to his duty towards these individuals. The state argued that defendant's crimes were “unprecedented” and stressed that defendant never had accepted responsibility for his actions. Accordingly, the state argued against a sentence reduction.

The trial justice denied defendant's motion. The trial justice explained:

“[T]he fact that each of the victims in this case was developmentally disabled was the driving force behind the sentence imposed. Although the chronological age of each of the victims was that of an adult, the functional age was that of a child[,] and children as well as developmentally-disabled adults are similar in that they are both vulnerable * * *.”The trial justice further explained that he had “never been presented with a similar set of facts, either as to what happened or as to the type of victims involved” and that “the nature of the crimes was horrific,” “the victims, being all developmentally-disabled adults, * * * were obviously [the] most vulnerable,” and defendant, “who took advantage of his position of authority and trust as their, not only [their] driver, but really responsible adult while they were on that bus, raped [the first victim] and sexually assaulted [the second victim] and assaulted [the third victim].” Finally, the trial justice remarked that defendant still had not accepted responsibility for his actions, nor had he expressed remorse. For these reasons, the trial justice determined that the requested relief was unwarranted. The defendant appealed.

Standard of Review

A motion to reduce sentence under Rule 35(a) “is ‘essentially a plea for leniency’ * * * 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 originally imposed was, for any reason, unduly severe.’ ” State v. Chase, 9 A.3d 1248, 1253 (R.I.2010) (quoting State v. Mendoza, 958 A.2d 1159, 1161 (R.I.2008)); see also State v. Snell, 11 A.3d 97, 101 (R.I.2011); State v. Byrnes, 456 A.2d 742, 744 (R.I.1983). In line with our “strong policy against interfering with a trial justice's discretion in sentencing matters,” our review of a trial justice's ruling on a Rule 35 motion is extremely limited; we will interfere with the trial justice's decision only in those “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.” Snell, 11 A.3d at 101 (quoting State v. Ruffner, 5 A.3d 864, 867 (R.I.2010)); see also State v. Dyer, 14 A.3d 227, 227 (R.I.2011) (mem.). The defendant bears the burden to convince us that his or her sentence violates this standard. State v. Diefenderfer, 32 A.3d 931, 935 (R.I.2011); Snell, 11 A.3d at 101.

Analysis

In an effort to surmount the high hurdle that is a challenge to a denial of a motion to reduce a sentence, defendant assigns four errors to the trial justice's decision. First, defendant contends that his sentence is grossly disparate from the sentence called for by the relevant sentencing benchmark—benchmark 35D—which recommends a sentence between twenty and thirty years to serve. Second, defendant argues that his sentence is grossly disparate from the sentences imposed in similar cases generally and in similar cases over which the trial justice presided in particular. Third, defendant claims that the trial justice failed to give full consideration to the evidence defendant put forth to mitigate the severity of his sentence, including his long stint as a law-abiding citizen and the letters in support of defendant, which portrayed him as a “thoughtful, caring, hard-working gentleman who has always positively impacted the lives of others.” Finally...