State v. Tiernan

• Decision Date: 12 July 1994
• Docket Number: No. 92-461-C,92-461-C
• Citation: 645 A.2d 482
• Parties: STATE v. David M. TIERNAN, Jr. A.
• Court: Rhode Island Supreme Court

Page 482

645 A.2d 482

STATE v. David M. TIERNAN, Jr.

No. 92-461-C.A.

Supreme Court of Rhode Island.

July 12, 1994.

Jane M. McSoley, Asst. Atty. Gen., Providence, for plaintiff.

Richard M. Casparian, Public Defender, Paula Rosin, Chief Appellate Atty., Barbara Hurst, Deputy Public Defender, Providence, for defendant.

OPINION

WEISBERGER, Acting Chief Justice.

This case comes before us on appeal by the defendant, David M. Tiernan, Jr. (defendant), from the trial justice's denial of his motion pursuant to Rule 35 of the Superior Court Rules of Criminal Procedure to reduce his sentence. We deny his appeal and affirm the order entered by the trial justice.

The precise issue we confront in this appeal is the question of whether the trial justice improperly considered either defendant's exercise of his privilege against self-incrimination under the Fifth Amendment to the United States Constitution or his exercise of his right to a public trial guaranteed by the Sixth Amendment to the United States Constitution and article 1, section 10, of the Rhode Island Constitution. We answer this question in the negative. The facts related to defendant's appeal are as follows.

In November 1990 defendant was convicted of two counts of second-degree child molestation after a trial by jury in Superior Court. At the sentencing hearing defendant argued that in light of his background, the absence of any prior record, and the nature of the crime involved, he should be given a sentence involving only treatment and counseling rather than imprisonment. The prosecutor disagreed, arguing that such treatment would not be effective unless defendant acknowledged his wrongdoing, which defendant refused to do. As a matter of deterrence and punishment, the prosecutor urged the court to impose a lengthy jail sentence.

The trial justice agreed with the prosecutor, citing five factors that were considered in formulating his decision--"the nature of the offense and the offender, punishment, rehabilitation and deterrence." The trial justice explained that "some program of counseling could be effective if culpability is accepted, [but][t]he problem is [defendant's] continued protestations of innocence." The trial justice explained this comment, stating that "it is my understanding from everybody knowledgeable in this area that treatment is not effective unless and until the person being treated, the defendant, acknowledges guilt, and the defendant still protests his innocence, and has done so here in court." Therefore, the trial justice reasoned that since rehabilitation was improbable,

"[t]he Court is more concerned then with an appropriate punishment to satisfy what the Court will describe as defendant's debt to society and debt to this victim for his violation of law which will effectively operate to deter him in the future. * * * Consequently, punishment and deterrence are most important to the Court in this case when determining an appropriate sentence."

In light of the aforementioned factors, the trial justice sentenced defendant to two terms of twenty years, eight years to serve and twelve years suspended on each count, to be served concurrently.

The defendant appealed his sentence directly to this court. In an order dated April 16, 1992, we held that defendant's failure to bring a Rule 35 motion made his sentence unreviewable on direct appeal and accordingly we denied his appeal without prejudice. State v. Tiernan, 605 A.2d 1328 (R.I.1992).

Thereafter defendant filed a timely Rule 35 motion to reduce sentence. At the hearing on the motion, defendant presented the court with an admission of guilt and a profession of remorse--the key ingredients that the trial justice had found lacking at the time of the original sentencing with respect to defendant's potential for rehabilitation. The defendant attempted to justify his delayed acknowledgment of his crime by explaining that at the time of the sentencing hearing he had not yet come to terms with the sexual molestation that, he revealed to the court, he himself had endured in his own childhood. After hearing from defendant, the trial justice was presented with testimony from the victim's mother who painfully recounted the traumatic effect that the molestation and the trial had had upon her daughter.

After considering the testimony presented, the trial justice denied defendant's motion to reduce sentence and made the following observations:

"I was satisfied that [the victim] was telling the truth. * * * I also observed that little girl testify. [The defendant] sat there and required her to testify. She did, and although she was a little girl, she was believed by the jury and by me; and yet he stood up and indicated to me that he intended to pursue all of his rights of appeal, again, which I believe he had his right to do, everybody does. He did that knowing full well that what that little girl said from the stand was absolutely true and he let her go through it.

* * * * * *

"While I am somewhat moved by [defense counsel's] argument and even the defendant's own statements, I am not persuaded by them, not in the least. [Defense counsel] made a comment as to my comment during sentencing, that is, that rehabilitation, if it's to be successful, requires first an admission of guilt, especially in these kinds of cases. I made that comment in that context. While I may have taken [it] into consideration had he admitted his guilt, that is not to say that a jail term would still not be imposed. Rehabilitation doesn't necessarily mean that you walk free and that you don't get any time to serve, not in my view, in any event."

On appeal defendant challenges his sentence on the grounds that at both the sentencing hearing and the Rule 35 hearing the trial justice violated defendant's constitutional rights by considering improper factors. First, defendant claims that at the sentencing hearing the trial justice's decision was tainted by his consideration of the fact that defendant invoked his Fifth Amendment privilege against self-incrimination and he used that fact to justify the imposition of a lengthy sentence upon defendant. Then at the Rule 35 hearing, when defendant waived his Fifth Amendment right and admitted his guilt, defendant claims that the trial justice justified defendant's lengthy sentence with an alternative, but equally objectionable, fact--that defendant had exercised his right to stand trial and thereby forced his child victim to endure a painful court experience. The defendant cites to us in support of his assertions a plethora of cases from other jurisdictions.

The state takes the position that the trial justice's considerations at both the sentencing and the Rule 35 hearing were based upon permissible factors, as articulated by this court, and that under our deferential standard of review, the length of the sentence imposed was appropriate in light of the crime committed. The state asserts that defendant has taken the challenged portions of the trial justice's decision out of context and that when properly viewed, the comments evidence no penalization of defendant for exercising any right.

I

A motion to reduce sentence under Rule 35 is basically a plea by a defendant for leniency and, as such, is addressed to the sound discretion of the trial justice. State v. Byrnes, 456 A.2d 742, 744-45 (R.I.1983). Because of our strong policy against interfering with a trial justice's exercise of discretion with respect to such motions, State v. Giorgi, 121 R.I. 280, 282, 397 A.2d 898, 899 (1979), we shall interfere with the lower court's decision only in the rarest of cases, State v. Upham, 439 A.2d 912, 913 (R.I.1982). With this deferential standard of review in mind, we now turn to the applicable substantive law.

"A judge has no more difficult duty nor awesome responsibility than the pronouncement of sentence in a criminal case." State v. Crescenzo, 114 R.I. 242, 263, 332 A.2d 421, 433 (1975). To guide trial justices in carrying out this responsibility, we have identified the following factors as falling within the scope of constitutionally permissible sentencing considerations: (1) the severity of the crime, (2) the defendant's personal, educational, and employment background, (3) the potential for rehabilitation, (4) the element of societal deterrence, and (5) the appropriateness of the punishment. See State v. Gordon, 539 A.2d 528, 530 (R.I.1988); State v. Bertoldi, 495 A.2d 247, 253 (R.I.1985); State v. Ouimette, 479 A.2d 702, 705 (R.I.1984); Upham, 439 A.2d at 913; State v. Leonardo, 431 A.2d 1220, 1222 (R.I.1981).

Most of these factors are multidimensional and require a trial justice to reflect upon a variety of subsidiary factors. See Bertoldi, 495 A.2d at 253. For example, with respect to the element of rehabilitation, a trial justice may consider a "defendant's attitude toward society, his sense of remorse, as well as his inclination and capacity to take his place as an honest and useful member of society." Gordon, 539 A.2d at 530; see also Bertoldi, 495 A.2d at 253. Likewise, a defendant's giving of false testimony may be probative of his attitude toward society and consequently his prospects for rehabilitation. United States v. Grayson, 438 U.S. 41, 50-51, 98 S.Ct. 2610, 2616, 57 L.Ed.2d 582, 590 (1978) (defendant's "manipulative defiance of the law is not a cheerful datum for the prognosis a sentencing judge undertakes * * * however, a fact like the defendant's readiness to lie under oath before the judge who will sentence him would seem to be among the more precise and concrete of the available indicia")(quoting United States v. Hendrix, 505 F.2d 1233, 1236 (2d Cir.1974)); State v. Simpson, 520 A.2d 1281, 1285 (R.I.1987) (willingness to give false testimony may be taken into account during sentencing); Bertoldi, 495 A.2d at 253 ("defendant's willingness to take the stand and lie * * * is most assuredly a probative and important piece of information to consider when...