State v. Whiting

• Decision Date: 27 May 2015
• Docket Number: No. 2012–362–C.A.,2012–362–C.A.
• Citation: 115 A.3d 956
• Parties: STATE v. John WHITING.
• Court: Rhode Island Supreme Court

115 A.3d 956

STATE

v.John WHITING.

No. 2012–362–C.A.

Supreme Court of Rhode Island.

May 27, 2015.

Aaron L. Weisman, Department of Attorney General, for State.

John B. Reilly, Esq., Providence, for Defendant.

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

OPINION

Justice INDEGLIA, for the Court.

The defendant, John Whiting, appeals from a judgment of conviction for felony larceny in violation of G.L.1956 §§ 11–41–1 and 11–41–5 and criminal solicitation in violation of G.L.1956 § 11–1–9. For the reasons set forth in this opinion, we affirm the judgment of conviction.

IFacts and Travel

The critical facts surrounding defendant's convictions are not in dispute in this appeal. We therefore proceed to trace only the series of events necessary to the disposition of the legal issue at hand.

On November 22, 2011, defendant was charged by information with stealing over $500 in violation of §§ 11–41–1 and 11–41–5 (count 1) and soliciting another to receive stolen goods in violation of § 11–1–9 (count 2).¹ The information was later amended on May 11, 2012, to reflect the appropriate dates and locations when and where the alleged criminal activity took place. Subsequently, on June 8, 2012, the Governor signed into law an act amending § 11–41–5 to increase the threshold for felony larceny from $500 to $1,500. See P.L. 2012, ch. 176, §§ 1, 3.

Soon afterwards, defendant's case proceeded to a bench trial in the Providence County Superior Court starting on June 18, 2012, without either party or the trial justice being aware of the amendment to the statute. After the close of both the state's and defense's cases-in-chief, but before the trial justice rendered his decision, defense counsel apprised the trial justice of the amendment to the statute. Defense counsel then sought to have the larceny count amended and the solicitation charge dismissed or, in the alternative, amended. The state demurred, arguing that any change in the law should be applied only prospectively and that defendant, who had already been charged by the time the law was amended, should not benefit from the legislative change.

The trial justice agreed with the state and proceeded with the counts as charged. Both parties gave their closing arguments, and the trial justice rendered his decision from the bench on July 2, 2012. The trial justice found that the evidence was clear that the amount of money in question was $714. Accordingly, the trial justice found that defendant was guilty of having committed larceny over $500 (count 1) and having solicited another to commit a felony (i.e., receive stolen goods over $500) (count 2).

Just prior to sentencing on September 14, 2012, the trial justice entertained a motion to reconsider his decision denying defendant's request to amend the charges in light of the changes to § 11–41–5. The motion was denied, and the trial justice proceeded to sentencing. The defendant was sentenced to five years imprisonment, with six months to serve, the remaining four and one-half years suspended with probation on count 1, and the same sentence to run concurrently on count 2.² A final judgment of conviction was later entered, and thereafter defendant timely appealed.

On appeal, defendant argues that the legislative intent behind the amendment to § 11–41–5, increasing the threshold for felony larceny from $500 to $1,500 was to reclassify offenses under $1,500 from felonies to misdemeanors. Further, he argues that the amendment was ameliorative in nature and should inure to the benefit of defendants, including those whose cases were still pending on appeal when the statute was amended. The state counters, arguing that the general savings clause, G.L.1956 § 43–3–23,³ permits the prosecution and sentencing of defendant in accordance with the pre-amendment version of § 11–41–5.

IIStandard of Review

It is well settled that “we review questions of statutory interpretation de novo. ” State v. Morris, 92 A.3d 920, 924 (R.I.2014) (quoting Campbell v. State, 56 A.3d 448, 454 (R.I.2012) ). In conducting such a review, “our ultimate goal is to give effect to the purpose of the act as intended by the Legislature.” State v. Oster, 922 A.2d 151, 160 (R.I.2007) (quoting Webster v. Perrotta, 774 A.2d 68, 75 (R.I.2001) ).

IIIDiscussion

Under the common law rule of abatement, in the absence of a savings clause, the unqualified repeal of a criminal statute resulted in the discharging of all proceedings under the repealed statute. The first reported case in Rhode Island to apply the rule of abatement was State v. Fletcher, 1 R.I. 193 (1846). In Fletcher, the defendant committed an offense in December of 1845, but was not indicted until March of 1846. In the interim, the statute under which the defendant had been charged had been amended. Accordingly, this Court quashed the indictment.

In response to the application of the rule of abatement, the General Assembly enacted a general savings clause set forth in § 43–3–23. The effect of Rhode Island's general savings clause was first examined in State v. Lewis, 91 R.I. 110, 114, 161 A.2d 209, 212 (1960). In Lewis, 91 R.I. at 112, 161 A.2d at 210, the defendant allegedly operated an automobile while under the influence of intoxicating liquor in violation of G.L.1956 § 31–27–2 on May 22, 1959. On September 1, 1959, § 31–27–2 was amended. In light of this amendment, on September 23, 1959, the defendant moved to dismiss the case arguing that the provisions of the new statute were different from what he had been charged with and pointing out that the repealing act did not contain a specific savings clause. Lewis, 91 R.I. at 112, 161 A.2d at 211. The state argued that the amendment did not create a new and different offense and that, alternatively, § 43–3–23 authorized maintenance of the prosecution under the pre-amended form of the act. Lewis, 91 R.I. at 113–14, 161 A.2d at 211–12.

The Court found that the state's second argument regarding the general savings clause was dispositive and therefore, only addressed that argument.

Lewis, 91 R.I. at 114, 161 A.2d at 212. The Court stated that the purpose of a savings clause was to abrogate the common law rule of abatement such that a savings clause “authorize[s] the continuance of prosecutions that were pending at the time of the repeal of the prior act.” Id. at 115, 161 A.2d at 212. In particular, the Court stated that the general savings clause was enacted “to save the necessity of the burdensome formality of attaching an identical saving [s] clause to all repealing legislation.” Id. (quoting State ex rel. Ackerly v. Shepherd, 202 Iowa 437, 210 N.W. 476, 476 (1926) ).

While we have recognized that certain ameliorative statutes may be applied retroactively, such retroactive application may occur only if applying the general savings clause “would be clearly repugnant to the express provisions of the repealing statute.” Lewis, 91 R.I. at 115, 161 A.2d at 212. We have further clarified that such a determination “should be considered on a case-by-case basis.” State v. Mullen, 740 A.2d 783, 786 (R.I.1999). In making that determination, we must consider the language of the repealing statute and the nature of the amendment. Additionally, we must always be cognizant of the general presumption that “statutes will be given prospective application unless otherwise provided.” State v. Briggs, 58 A.3d 164, 168 (R.I.2013) (quoting In re Alicia S., 763 A.2d 643, 646 (R.I.2000) ).

In State v. Babbitt, 457 A.2d 1049, 1055 (R.I.1983), the defendant was charged in January of 1980 with transporting another for indecent purposes in violation of G.L.1956 § 11–34–5. While his charges were pending, the statute was amended “by adding the requirement that the proscribed conduct be conducted ‘for pecuniary gain.’ ” Babbitt, 457 A.2d at 1055 (quoting § 11–34–5 ). Because the scope of the amended statute did not cover the defendant's conduct, his convictions on those counts were vacated. Id. at 1056.

Similarly, in Mullen, 740 A.2d at 784, the defendant was charged with committing abominable and detestable crimes against nature “with mankind” pursuant to G.L.1956 § 11–10–1. While his charges were pending, the statute was amended to remove the “with mankind” component from the ambit of proscribable conduct, thereby effectively decriminalizing sodomy. Mullen, 740 A.2d at 784–85. On appeal, the majority⁴ held that “the trial justice was correct in determining that it was the manifest intention of the Legislature to decriminalize the act of sodomy between consenting adults.” Id. at 786. Accordingly, the majority reasoned that it would be “inconsistent with the intent of the Legislature to prosecute acts that are no longer criminal offenses,” and upheld the dismissal of the counts arising under the repealed statute. Id. At bottom, the majority opined that it would be “fundamentally unfair to prosecute an individual for prior conduct that would now not constitute a violation of law.” Id. Unlike the circumstances in Babbitt and Mullen, here, at all relevant times, defendant's conduct was, and remains, criminal. There was no intention to pardon the type of act committed by defendant.

The defendant's reliance on State v. Macarelli, 118 R.I. 693, 375 A.2d 944 (1977), also misses the mark. In Macarelli, 118 R.I. at 694, 375 A.2d at 945, the defendant had been found guilty by a Superior Court jury of conspiring to corrupt horse trainers. The underlying substantive offense, G.L.1956 § 11–7–9 “Corruption of sports participant or official,” carried a maximum sentence of two years imprisonment or a fine of $1,000. Macarelli, 118 R.I. at 695, 375 A.2d at 946. Notwithstanding this maximum, the defendant was sentenced to five years imprisonment under G.L.1956 § 11–1–1, which at the time provided:

“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

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