Supreme Court
No. 2012-226-C.A.
(P1/09-3671A)
State :
v. :
Kathleen McKinnon-Conneally. :
NOTICE: This opinion is subject to formal revision before
publication in the Rhode Island Reporter. Readers are requested to
notify the Opinion Analyst, Supreme Court of Rhode Island, 250
Benefit Street, Providence, Rhode Island 02903, at Telephone 222-
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corrections may be made before the opinion is published.
Supreme Court
No. 2012-226-C.A.
(P1/09-3671A)
State :
v. :
Kathleen McKinnon-Conneally. :
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
OPINION
Chief Justice Suttell, for the Court. The defendant, Kathleen McKinnon-Conneally, 1
appeals from a Superior Court judgment finding her to be in violation of the terms of her
probation and sentencing her to serve the eight and one-half years remaining on her previously
suspended sentence. On appeal, the defendant argues that the hearing justice imposed an
excessive sentence for her probation violation. This case came before the Supreme Court
pursuant to an order directing the parties to appear and show cause why the issues raised in this
appeal should not be summarily decided. After considering the parties’ written and oral
submissions and reviewing the record, we conclude that cause has not been shown and that this
case may be decided without further briefing or argument. For the reasons set forth in this
opinion, we affirm the judgment of the Superior Court.
I
Facts and Travel
On March 23, 2010, defendant pled nolo contendere to one count of second-degree
robbery. She was sentenced to ten years at the Adult Correctional Institutions (ACI) with
1
Throughout the record of this case, defendant’s last name is listed intermittently as “McKinnon
Conneally” and “McKinnon-Conneally.” It is unclear which format is correct.
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eighteen months to serve, which term to serve was stayed pending her completion of mental
health and substance abuse counseling, and eight and one-half years suspended, with probation.
Although it is not entirely clear from the record, the stay on the eighteen-month term to serve
was apparently removed on February 1, 2011, and defendant was incarcerated at the ACI until
her release on November 30, 2011. On December 19, 2011, defendant was arrested by the West
Warwick Police Department on charges of first-degree robbery and conspiracy to commit first-
degree robbery, based on an incident reported on December 1, 2011. On December 22, 2011, the
state filed a violation notice against defendant pursuant to Rule 32(f) of the Superior Court Rules
of Criminal Procedure for allegedly violating the terms of her probation. The Superior Court
conducted a combined probation-violation and bail hearing on February 9, 2012.
At the hearing, complaining witness Carol Riddle testified that she went into a West
Warwick package store on the night of December 1, 2011, to buy a beverage and withdraw cash
from an ATM. 2 According to Riddle, defendant initiated a conversation with her and then
invited her to listen to karaoke music playing in a bar next door. Riddle testified that, after
drinking a couple of shots of liquor and some beer, she was ready to go home, but defendant
suggested that they go someplace else to get something to eat and to “hang out.” Once the two
women were outside the bar, defendant’s friend Andrew Jordan (“A.J.”) appeared and the three
began walking on a main road. Riddle recalled that defendant suggested cutting through an alley
so that they could reach their next destination more quickly. Once they were in the alley, A.J.
knocked Riddle to the ground with a blow to her head and then punched her in the face before
demanding that she give him the personal identification number for her ATM card. Riddle
recalled that defendant was also demanding the personal identification number as she dumped
2
Riddle testified that she had some short-term memory problems due to a brain surgery she
underwent prior to the December 1, 2011 incident.
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the contents of Riddle’s purse onto the ground. Riddle convinced defendant and A.J. that she
had to call her sister to get the personal identification number. Riddle testified that defendant
and A.J. “let her up” and that they started “picking up stuff” that “had poured out of [Riddle’s]
purse.” The items that Riddle picked up included her “ID card” and “[defendant’s] ID card.”
Riddle testified that she put both ID cards in her bra. The three went to a bar, where Riddle told
the bartender to call the police. One of the responding officers, Patrolwoman Trenna Hemond,
testified that, when she met with Riddle at the bar, Riddle was emotionally upset. After speaking
with Officer Hemond, Riddle was taken to Kent Hospital, where she realized that she was
missing $70, a carton of cigarettes, and some prescription medication from her purse. A nurse at
the hospital asked Riddle what was in her bra, and Riddle removed both ID cards. 3 Officer
Hemond met with Riddle the next day at the West Warwick police station, where Riddle signed a
statement of her account of the events from the previous evening.
The hearing justice found that defendant had violated the conditions of her probation by
failing to keep the peace and maintain good behavior, and he set bail at $100,000 with surety on
the new charges of first-degree robbery and conspiracy to commit first-degree robbery. The
Superior Court held a sentencing hearing on February 29, 2012. Susan Rivera, a social
caseworker with the Department of Children, Youth & Families (DCYF), testified that
defendant’s then one-year-old son was in foster care because defendant had been incarcerated at
the ACI and placement with a family member was not an option. Rivera testified that she had
observed defendant interacting with her son during supervised visits at the ACI. While
defendant had substance abuse and mental health issues to work through, Rivera was not
concerned about defendant’s parenting skills and was hoping to reunify defendant with her son
3
The defendant’s ID card was admitted as an exhibit at the combined probation-violation and
bail hearing.
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when she was discharged from the ACI. Rivera also testified that she warned defendant that if
she was arrested again during the first year of her release from the ACI, then DCYF could move
to terminate her parental rights. Rivera stated that if defendant was sentenced to more than eight
months on her probation-violation conviction, then DCYF would move to terminate her parental
rights to her son.
Andrea Reis, a social worker with Project Connect at DCYF, testified that she had many
opportunities to observe defendant interacting with her son during supervised visits at the ACI
and that she had no parenting concerns based on these observations. Reis also testified that
defendant “had a diagnosis of DDHD [sic], psychosis, [Post-Traumatic Stress Disorder] and
anxiety and depression disorder.” The defendant testified that she had not engaged in the acts of
which she was accused, but that she knew she had not kept the peace because she had solicited
illegal drugs. She further testified that she had been cooperative during the entire probation-
violation process and that she did not want to lose her son.
The hearing justice commented that he found defendant’s actions on the night of
December 1, 2011, to be predatory given that Riddle’s apparent “ability to respond [and] react to
things [had been] compromised” by her previous “brain operation.” He also commented that
defendant had been released from the ACI less than forty-eight hours prior to the incident
leading to the violation hearing. The hearing justice imposed the previously suspended eight and
one-half years from defendant’s ten-year sentence for her conviction of second-degree robbery in
2010.
The defendant timely appealed from the judgment of conviction declaring her to be a
probation violator, arguing that the hearing justice’s decision was arbitrary and capricious and
that the imposition of the entire eight and one-half-year suspended sentence was an abuse of
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discretion. After defendant submitted her prebriefing statement, however, she entered a plea of
nolo contendere to the charges of first-degree robbery and conspiracy. 4 Based on this plea, the
state moved to dismiss defendant’s appeal as moot. We granted the state’s motion with respect
to the issue of whether defendant was properly declared a violator, but denied the motion with
respect to whether the sentence ordered for the probation violation was excessive. Therefore, the
only issue on appeal is whether the hearing justice abused his discretion when he ordered that
defendant’s suspended sentence be executed in its entirety. 5
II
Standard of Review
A trial justice has wide discretion to determine whether to execute any or all of a
defendant’s previously suspended sentence. State v. Roberts, 59 A.3d 693, 697 (R.I. 2013); State
v. Lancellotta, 35 A.3d 863, 869 (R.I. 2012). Therefore, our review of a probation-violation
sentence is for an abuse of discretion only. Roberts, 59 A.3d at 697.
4
After defendant pled nolo contendere to first-degree robbery, she was sentenced to twenty years
at the Adult Correctional Institutions, with eight and one-half years to serve, and eleven and one-
half years suspended, with probation. This sentence was to run concurrently with the eight and
one-half years that defendant was ordered to serve for her probation violation. On defendant’s
nolo contendere plea to the count for conspiracy, she was sentenced to ten years suspended, with
probation.
5
The state contends that this issue is not properly before this Court because defendant did not
first challenge her sentence in the Superior Court by filing a motion to correct or reduce her
sentence pursuant to Rule 35 of the Superior Court Rules of Criminal Procedure. We have
previously stated, however, that the revocation of probation results in the execution of a
previously imposed sentence and not in the imposition of a new sentence. State v. Brown, 821
A.2d 695, 696 n.2 (R.I. 2003). Therefore, defendant’s appeal from the execution of the
previously suspended eight and one-half years is properly before us for review.
-5-
III
Discussion
The defendant argues that the sentence ordered is excessive because the hearing justice
ignored the sentencing benchmark for the 2010 conviction for second-degree robbery,
defendant’s mental health diagnoses, and defendant’s substance abuse problems.
It is well settled that “the unexecuted portion of a probationer’s suspended sentence
hangs over his or her head by the single horsehair of good behavior, until such time as the term
of probation expires.” State v. Parson, 844 A.2d 178, 180 (R.I. 2004). When a defendant is
found to have violated the terms and conditions of his or her probation, “[G.L. 1956] § 12-19-9
grants violation-hearing justices wide latitude in deciding whether a probation violator’s
suspended sentence should be removed in whole, in part, or not at all.” 6 State v. Tucker, 747
A.2d 451, 454 (R.I. 2000). When a hearing justice is deciding how much of a previously
suspended sentence to execute, his or her primary focus should be on the nature of the first
offense. State v. Pires, 525 A.2d 1313, 1314 (R.I. 1987). The circumstances of the second
offense, however, may also be taken into account. Id.
Here, the hearing justice advised the defendant that he was not sentencing her for the
conduct that formed the basis for the probation violation. As he correctly noted, the only
6
General Laws 1956 § 12-19-9 provides in pertinent part:
“Upon a determination that the defendant has violated the terms
and conditions of his or her probation the court, in open court and
in the presence of the defendant, may remove the suspension and
order the defendant committed on the sentence previously
imposed, or on a lesser sentence, or impose a sentence if one has
not been previously imposed, or may continue the suspension of a
sentence previously imposed, as to the court may seem just and
proper.”
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concern relative to the new charges was that she had failed to keep the peace. The hearing
justice also acknowledged that the sole issue to be resolved at the sentencing hearing was the
“portion, if any, of the [suspended] sentence [the defendant] should be required to serve.” The
hearing justice explicitly referred to the circumstances of the offense underlying the sentence
imposed for the 2010 conviction for second-degree robbery and the indication in the police
report that the defendant had engaged in physical violence during that incident as well. It
appeared to the hearing justice that the defendant had preyed on Riddle’s apparent vulnerability.
The hearing justice repeatedly commented that the defendant had been released from the ACI
less than forty-eight hours before engaging in conduct that violated the terms of her probation
and that this conduct was similar in nature to that for which she was originally sentenced. The
hearing justice further noted that the defendant had been fortunate to have been ordered to serve
only eighteen months of the original ten-year sentence. After carefully considering the record in
this case in light of the hearing justice’s broad discretion to determine the extent to which a
suspended sentence will be executed, or not, we are satisfied that the hearing justice did not
abuse his discretion in executing the remaining eight and one-half years of the defendant’s
previously suspended sentence. See Parson, 844 A.2d at 180; Tucker, 747 A.2d at 454.
IV
Conclusion
For the reasons stated herein, we affirm the judgment of the Superior Court. The record
shall be returned to the Superior Court.
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RHODE ISLAND SUPREME COURT CLERK’S OFFICE
Clerk’s Office Order/Opinion Cover Sheet
TITLE OF CASE: State v. Kathleen McKinnon-Conneally.
CASE NO: No. 2012-226-C.A.
(P1/09-3671A)
COURT: Supreme Court
DATE OPINION FILED: November 10, 2014
JUSTICES: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
WRITTEN BY: Chief Justice Paul A. Suttell
SOURCE OF APPEAL: Providence County Superior Court
JUDGE FROM LOWER COURT:
Associate Justice Walter R. Stone
ATTORNEYS ON APPEAL:
For State: Lauren S. Zurier
Department of Attorney General
For Defendant: David D. Prior, Esq.
State v. Kathleen McKinnon-Conneally
Combined Opinion