State v. O'Rourke

Decision Date03 August 1983
Docket NumberNo. 82-234-C,82-234-C
Citation463 A.2d 1328
PartiesSTATE v. Gary O'ROURKE. A.
CourtRhode Island Supreme Court
OPINION

BEVILACQUA, Chief Justice.

This is an appeal from the execution of a previously imposed suspended sentence following an adjudication that the defendant violated the terms of his probation. The suspended sentence and the period of probation were allegedly imposed pursuant to a motion to reduce sentence. The defendant is before us on appeal, alleging several errors in both the decision on the motion to reduce and the subsequent violation order.

The underlying facts are not in dispute. On November 14, 1975, an indictment was filed charging defendant with robbery in violation of G.L.1956 (1981 Reenactment) § 11-39-1. After arraignment, defendant was committed without bail pending the trial. A Superior Court jury found defendant guilty as charged on March 5, 1976, and defendant was again committed without bail pending sentencing. The trial justice, on July 6, 1976, sentenced defendant to twenty years' imprisonment and committed defendant to the Adult Correctional Institutions (ACI).

The defendant filed a timely motion to reduce his sentence under Rule 35 of the Superior Court Rules of Criminal Procedure. The trial justice who had sentenced defendant heard this motion and granted it on December 14, 1977. In his bench decision, the trial justice concluded:

"I will, therefore, grant the motion to reduce. I am going to suspend 10 years of the 20 years. I am going to cut it right in half. So, 10 years to serve and 10 years suspended."

The written judgment and docket-sheet entry stated that the motion to reduce was granted and that defendant was committed to the ACI for ten years. There is no mention of a suspended sentence or probation.

On March 14, 1980, defendant was released on parole from the ACI. On September 10, 1980, he was presented to the Superior Court as an alleged violator of a probationary term allegedly imposed on December 14, 1977, as a result of defendant's motion to reduce.

At the violation hearing, 1 the trial justice rejected defendant's contention that pronouncement of a suspension did not indicate that probation was also imposed, stating:

"Well, a suspended sentence is always accompanied by a period of probation. * * * I will assume that the judge intended that the period of probation would be ten years to commence upon Mr. O' Rourke's release from prison, which would mean that at the time of this incident * * * September 7, 1980, the defendant was on a period of ten years probation with a ten-year suspended sentence." 2

After the violation hearing, the trial justice on September 26, 1980, found defendant to be a violator and ordered him to serve ten years at the ACI consecutively to the original ten-year term. The defendant appeals from this judgment.

On September 26, 1980, the state filed a motion to correct the judgment of conviction, and that corrected judgment was entered backdated to December 14, 1977. That judgment indicated that defendant's motion to reduce was granted and defendant

"is ordered to serve the first 10 years, the remaining 10 years are suspended, probation for 10 years, said probation to commence upon defendant's release from the A.C.I."

The docket sheet was similarly altered to reflect the new backdated judgment of conviction.

The circumstances of this case raise the threshold question of whether a trial justice, on a motion to reduce sentence pursuant to Rule 35, has the authority to suspend any part of a sentence that a defendant has begun serving. Our resolution of this question is dispositive of this case, and it is therefore unnecessary to address the other issues raised by the parties.

The state contends that Rule 35 "tempers" or provides a limited exception to G.L.1956 (1981 Reenactment) § 12-19-10 by permitting a defendant a period of 120 days after imposition of sentence in which to file a motion to reduce that sentence. The state argues that suspension and probation are methods of reducing a sentence which are available to the trial justice regardless of whether or not a defendant has commenced serving his sentence.

The defendant asserts that he cannot be adjudged a probation violator because the trial justice on the motion to reduce did not impose a valid probationary period. The defendant therefore contends that either the reduced sentence of ten years to serve without any suspension or probation should be affirmed or the ten-year probation reflected in the corrected judgment should be ordered to commence as of the date of filing of the correction.

The authority of the Superior Court to suspend a sentence is governed by statute. General Laws 1956 (1981 Reenactment) § 12-19-8 provides in part that

"[e]xcept where the suspension of sentence shall otherwise be prohibited by law, whenever any defendant shall appear for sentence before the superior or district court, the court may impose a sentence and suspend the execution thereof, in whole or in part, or place the defendant on probation without the imposition of a suspended sentence. The suspension shall place the defendant on probation for such time and on such terms and conditions as the court may fix."

Section 12-19-10 provides that

"[i]mprisonment pursuant to a sentence, once commenced, shall not be subject to suspension by the superior court."

One of the well-established rules of statutory construction in Rhode Island is that the words of the statute shall be given their plain and ordinary meaning unless a different meaning is obvious on the face of the statute. See Roadway Express, Inc. v. Rhode Island Commission for Human Rights, R.I., 416 A.2d 673, 674 (1980); State v. Healy, R.I., 410 A.2d 432, 434 & n. 6 (1980). When the language used by the Legislature is free of ambiguity and conveys a definite and sensible meaning that does not contradict an evident legislative purpose, this court shall not extend or interpret those words but shall apply them literally. Citizens for Preservation of Waterman Lake v. Davis, R.I., 420 A.2d 53 (1980); Rhode Island Chamber of Commerce v. Hackett, R.I., 411 A.2d 300 (1980).

The language of §§ 12-19-8 and 12-19-10 is clear and unambiguous, and we shall therefore apply it literally. Section 12-19-8 grants the Superior Court the authority to suspend sentence and/or place a defendant on probation at the time the defendant appears for sentencing except when suspension is otherwise prohibited by law. Section 12-19-10 is one restriction on this general grant of authority which, by its plain language, absolutely prohibits suspension of a sentence of imprisonment once it is commenced.

In view of the clear language and intent of §§ 12-19-8 and 12-19-10, we cannot agree with the state's assertion that Rule 35 "tempers" the effect of § 12-19-10. Rule 35 states in part that

"[t]he court may correct a sentence imposed in an illegal manner and it may reduce any sentence within one hundred twenty (120) days after the sentence is imposed * * *." (Emphasis added.)

There is no express language in Rule 35 which authorizes suspension or probation after sentence is imposed. We shall not imply such authority because to do so would contradict the purpose of § 12-19-10 and ignore the different objectives of the use of suspension and probation and the reduction of a sentence under Rule 35.

The Legislature has provided by statute several methods of mitigating a defendant's sentence: suspension, probation, good-time credits, parole, and executive clemency. Repetition and overlap of these methods should be avoided. Section 12-19-10 operates to limit a court's authority over a defendant when he begins serving his sentence, thereby allowing a body such as the parole board, which is in a better position to evaluate a defendant's progress while in prison, to decide whether to mitigate a defendant's sentence. 3

A motion to reduce pursuant to Rule 35 allows a trial justice to evaluate whether the sentence originally imposed is unduly severe under the circumstances and to consider any new information or circumstances that may arise within the 120-day period. The reduction contemplated by Rule 35 is a shortening of the period of imprisonment, not a conditional postponement. Suspension and probation were intended as methods of avoiding the detrimental effects of the prison environment and the stigma attached to the service of a term of imprisonment for an individual who the sentencing justice determines would be better rehabilitated by remaining in the outside world. United States v. Murray, 275 U.S. 347, 357-58, 48 S.Ct. 146, 149, 72 L.Ed. 309, 313 (1928). Therefore, in order to achieve the desired objective, suspension and probation must be employed prior to commencement of the term of imprisonment, that is, at the...

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