RHODE ISLAND CRIMINAL DEFENSE A Practice Manual – Appellate Review

RI Criminal Defense Practice Manual CoverRHODE ISLAND CRIMINAL DEFENSE
A Practice Manual, 4th Edition
© John E. MacDonald

PROBATION VIOLATION HEARINGS

Appellate Review

State v. Gautier, 774 A.2d 882 (R.I. 2001). A trial court’s finding of no violation may be reviewed by R.I.S.C. for abuse of discretion. In Gauthier, defendant was charged with violating a ten year suspended sentence based upon a new charge of murder. The trial justice did not believe the state’s eyewitness and ruled that Mr. Gauthier did not violate his probation. R.I.S.C. found that the trial judge misconceived his role at the probation violation hearing.

“…the state [can] seek and obtain appellate review in a criminal matter by petitioning this Court for a writ of certiorari where it appeared that an inferior court had improperly taken jurisdiction or had clearly abused its proper jurisdiction… This Court limits its review on certiorari to examining the record to determine if an error of law has been committed…We do not weigh the evidence presented below, but rather inspect the record to determine if any legally competent evidence exists therein to support the findings made by the trial justice.” Id. at 886.
It is the trial court’s duty to determine “only whether in [the defendant’s] conduct on the day in question had been lacking in the required good behavior expected and required by his probationary status…It is not the role of the hearing justice to determine the validity of the specific charge that formed the basis of the violation…” Rather, “pursuant to Rule 32(f), a showing that the defendant has failed to keep the peace and to remain on good behavior is sufficient to establish a probation violation.” Id. at 886-87.
State v. Crudup, 842 A.2d 1069, 1072 (R.I. 2004). When reviewing an appeal from a revocation hearing, the court considers only “whether the hearing justice acted arbitrarily or capriciously in finding a violation.”

State v. Jackson, 966 A.2d 1225 (R.I. 2009). At the probation violation hearing, it is the hearing justice’s duty to weigh the relevant, material evidence and assess the credibility of the witnesses. R.I.S.C. affords deference and will not “second-guess” the hearing justice’s findings of fact.

Hampton v. State, 786 A.2d 375 (R.I. 2001). Hearing justice did not violate due process by failing to advise defendant of the right to appeal his revocation adjudication. Although notice to defendant of his right to appeal is a right required in criminal proceedings, notification is not mandatory in civil proceedings such as a probation violation hearing. Private defense counsel also was not ineffective by failing to advise defendant of the right to appeal, when defendant could not show how he was prejudiced by the failure of his counsel to inform him.

State v. Seamans, 935 A.2d 618 (R.I. 2007). “Where, subsequent to a conviction of violation of probation, a defendant is criminally convicted for the same conduct underlying the violation of probation, his appeal from that judgment of violation of probation is rendered moot because there is no longer any live controversy about whether he engaged in the conduct for which his probation was violated.” “Quoting State v. Singleton,” 876 A.2d 1, 8 (Conn. 2005).

The term “criminally convicted” in this rule, adopted by R.I.S.C. in Seamans, applies equally to trial convictions and pleas, and does not distinguish between pleas of guilty or nolo contendere.
In this case, defendant was arrested for third-degree sexual assault and convicted for violation of his probation as a result. Defendant filed a timely appeal, and later plead nolo contendere to the charge of third-degree sexual assault. Then, when defendant’s appeal from the probation violation came before the R.I.S.C., the court declared the appeal moot because defendant’s nolo plea to third-degree sexual assault was “tantamount to an admission of fault with respect to the probation violation.” Based on the guilt implied by the plea, the court found no live controversy to review.
State v. Jones, 942 A.2d 982 (R.I. 2008). In 1997, defendant was sentenced to fifteen years suspended, with fifteen years probation. A probation violation in 2005 resulted in an order for defendant to serve three years of his suspended sentence. Defendant filed a motion to reduce that sentence under Rule 35. The trial court denied the motion and R.I.S.C. affirmed.

Defendant’s motion was time-barred. A motion to reduce sentence must be brought within 120-days of the original judgment. Once that window closes, the courts do not have jurisdiction to reduce the sentence and will not consider the motion on the basis of fairness. Only illegal sentences continuously remain open to correction.
Here, defendant’s original sentence was imposed in 1997. His violation of the sentence eight-years later did not create a new judgment. Therefore, eight-years removed from his “final judgment,” defendant was time-barred from moving for a sentence reduction in seeking relief from his new violation sentence.

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