Sentencing

RHODE ISLAND CRIMINAL DEFENSE
A Practice Manual, 4th Edition
© John E. MacDonald

PROBATION VIOLATION HEARINGS

State v. Heath, 659 A.2d 116 (R.I. 1995). After sentencing the defendant to a jail term for violating his probation, the judge failed to mention the remaining portion of the suspended sentence. Defendant was later violated on this suspended sentence and he moved to dismiss arguing he was no longer on a suspended sentence. R.I.S.C. was not persuaded.
State v. Traudt, 679 A.2d 330 (R.I. 1996). Facing a violation of probation for failure to pay restitution, defendant agreed to extend his probation an additional two years to avoid incarceration. During that extension, defendant was violated and incarcerated for failure to pay. R.I.S.C. reversed and dismissed the violation on the grounds that a probationary period cannot be extended beyond the original sentence, even with the consent of defendant. Defendant remains civilly liable to pay the restitution.

“We are of the opinion that the parties in this action cannot enter into an agreement to extend defendant’s probation period beyond that which was originally imposed by the sentencing justice.” Id. at 331.
State v. Studman, 468 A.2d 918 (R.I. 1983). Defendant received separate suspended sentences for charges with no mention as to whether they were to run consecutive or concurrent. These sentences were later violated and ordered to run consecutive to each other. R.I.S.C. reversed. See also, State v. Taylor, 473 A.2d 290 (R.I. 1984).

“… when two or more sentences to be served in the same institution are imposed at the same time, such sentences run concurrently unless expressly ordered otherwise.” Id. at 919 (citing Pelliccia v. Sharkey, 292 A.2d 862, 865 (R.I. 1972)).
“…when two or more sentences are not expressly stated as being consecutive, the presumption is that they were imposed to be served concurrently.” Id.
“The original sentence is controlling and binding upon a justice that later revokes the sentence. The intention of the justice who originally imposed the suspended sentences is controlling and that the justice who finds a violation of probationary status and executes the sentence is bound by the initial determination.” State v. Taylor, 473 A.2d at 323.
State v. Fortes, 330 A.2d 404 (R.I. 1975). Defendant’s deferred sentence for possession of marijuana was later revoked based upon new charges of assault with intent to murder. The trial judge sentenced defendant to 15 years to serve based upon the serious nature of the assault charge. R.I.S.C. reversed and remanded for a new sentencing hearing.

“A violation hearing…was not held for the purpose of punishing defendant for the new offense. Although the latter is the precipitating cause for the revocation hearing, it should play no part in determining the extent of the penalty to be imposed on the charge on which sentence had formerly been deferred. Punishment for the new offense must await the disposition of the case in which the new offense is charged.” Id. at 411-12.
State v. Pires, 525 A.2d 1313 (R.I. 1987). In a case with facts similar to Fortes, R.I.S.C. slightly modifies Fortes. A judge sentencing a defendant for violating his probation must be “guided principally” by the first offense and use the sentencing benchmarks range when imposing sentence.

“We have never held that the trial justice must completely ignore the nature of the second offense when imposing a sentence for a probation violation. However, we have held that the trial justice should be guided principally by consideration of the nature of the first offense. We believe that the benchmarks promulgated as policy for sentencing by the Superior Court provide acceptable guidance and a reasonable range for the imposition of a sentence at a violation hearing.” Id. at 1314.
State v. Koliscz, 636 A.2d 1329 (R.I. 1994). Defendant’s Alford plea to a burglary charge in Connecticut could be used as grounds to violate his Rhode Island probation. An Alford plea constitutes an adjudication that may later be revoked, regardless of whether defendant maintains his innocence.

In re Lamarine, 527 A.2d 1133 (R.I. 1987). Rule 37 of the District Court Rules of Criminal Procedure, which allows for a de novo appeal of a sentence, does not apply to a probation violation hearing. Once the court finds defendant to be a violator, he is not sentencing defendant, he is merely executing a previously imposed sentence.

State v. Deluca, 692 A.2d 689 (R.I. 1997). A trial judge may order defendant to serve a suspended sentence consecutive to an intervening federal sentence. Defendant was on state suspended sentences when he was charged and convicted on federal offenses. The state court adjudicated him a violator based upon the new crimes and ordered defendant to serve five years consecutive to the federal sentence. R.I.S.C. affirmed.

State v. LaRoche, 883 A.2d 1151, 1154 (R.I. 2005). “When the state seeks to revoke probation based upon a failure to pay restitution, the sentencing court must inquire into the reasons for the noncompliance. If the probationer has made sincere efforts to legally acquire the necessary money, but remains unable to comply with a restitution obligation, then the court must consider alternate measures of punishment other than incarceration. On the other hand, if the probationer has either refused to pay or has not made ‘sufficient bona fide efforts’ to acquire the resources to pay, then the sentencing court may revoke probation and impose a prison sentence.” Citing Bearden v. Georgia, 461 U.S. 660, 672 (1983).

The burden of proof is on the defendant to satisfy the trial court that he made “sufficient bona fide efforts” to comply with court-ordered restitution obligation, particularly if it is undisputed that the defendant has not fulfilled that condition of probation.
State v. Jones, 969 A.2d 676, 681 (R.I. 2009). Allocution is a constitutional right for defendants in Rhode Island, but the right is not afforded to defendants before sentencing at a probation revocation hearing. “This is because a probation-revocation hearing is not part of the criminal prosecution process, but is instead a civil proceeding.”

However, for situations in which the hearing justice intends to impose consecutive sentences or to impose a sentence on more than one case, “the better practice is to permit counsel to address the court concerning any factors which may assist the court in fashioning a sentence that as to the court may seem just and proper.” Id. (quoting State v. Ratchford, 732 A.2d 120, 123 (R.I. 1999)); accord State v. Nania, 786 A.2d 1066, 1069 (R.I. 2001).

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RHODE ISLAND CRIMINAL DEFENSE A Practice Manual – Sentencing

Sentencing