Supreme Court
In re Petitions for Writ of :
Certiorari Seeking Review of
Denials of Applications for :
Postconviction Relief.
ORDER
This Court has received more than forty nearly identical petitions for writ of certiorari filed
by individuals incarcerated at the Adult Correctional Institutions.1 All seek review of the Superior
Court’s denial of the respective petitioner’s postconviction-relief (PCR) application.2 The only
variation in the PCR applications, and the resulting petitions for writ of certiorari, are the factual
underpinnings and the statute(s) at issue. The arguments set forth are identical; none has merit.
Each petitioner argues that the statute criminalizing his conduct is unconstitutional because
the penalty for committing the offense is not contained in the statute criminalizing the conduct.
The petitioners challenge their convictions under a total of six statutes, all of which follow the
same format. The statutes are (1) G.L. 1956 § 11-23-1 (Murder); (2) G.L. 1956 § 11-37-2 (First
degree sexual assault); (3) G.L. 1956 § 11-37-4 (Second degree sexual assault); (4) G.L. 1956 §
1
The cases at issue are listed at Exhibit A, attached to this Order.
2
Justice Kristin E. Rodgers has been tasked with considering all such PCR applications. While
there are forty-one petitions for writ of certiorari pending in this Court, there are significantly more
similarly-styled PCR applications pending in the Superior Court. The state estimates that the
Superior Court has handled, or will handle, a total of one-hundred-and-twenty-three PCR
applications that advance the argument made in the present cases.
1
11-37-6 (Third degree sexual assault); (5) G.L. 1956 § 11-37-8.1 (First degree child molestation
sexual assault); and (6) G.L. 1956 § 11-37-8.3 (Second degree child molestation sexual assault).3
With respect to each of these statutes, the prohibited conduct is set forth in one section of
the chapter, and the penalty is set forth in the subsequent one. See, e.g., § 11-37-8.1 (“A person is
guilty of first degree child molestation sexual assault if he or she engages in sexual penetration
with a person fourteen (14) years of age or under.”); § 11-37-8.2 (“Every person who shall commit
first degree child molestation sexual assault shall be imprisoned for a period of not less than
twenty-five (25) years and may be imprisoned for life.”).
In the PCR applications, petitioners relied on jurisprudence both from this Court and others,
including State v. Maxie, 187 A.3d 330 (R.I. 2018) and State v. Footman, 196 A.3d 758 (R.I.
2018). We deem the cases relied on by petitioners to be distinguishable. In Maxie, and then in
Footman, this Court concluded that G.L. 1956 § 11-67-6, which was entitled “Sex trafficking of a
minor” and has since been repealed, was flawed in that it failed to state a crime.4 Footman, 196
A.3d at 763; Maxie, 187 A.3d at 341. This Court concluded that § 11-67-6 was “afflicted with an
3
Each petitioner, except for one, was convicted under one or more of these statutes. The exception
is Leo Morris, Jr. (No. 2019-283-M.P.), who was convicted of assault with intent to commit first
degree sexual assault, which does contain a penalty provision. See G.L. 1956 § 11-5-1 (“Every
person who shall make an assault with intent to commit murder, robbery, sexual assault, burglary,
or the abominable and detestable crime against nature, shall be imprisoned not exceeding twenty
(20) years nor less than one year.”) Nonetheless, Morris contends that the alleged unconstitutional
nature of the first-degree sexual assault statute, § 11-37-2, impacts the validity of his conviction.
4
In pertinent part, § 11-67-6 read:
(b) Any person who: (1) Recruits, employs, entices, solicits, isolates, harbors,
transports, provides, persuades, obtains, or maintains, or so attempts, any minor for
the purposes of commercial sex acts; or (2) Sells or purchases a minor for the
purposes of commercial sex acts; or (3) Benefits, financially or by receiving
anything of value, from participation in a venture which has engaged in an act
described in subdivision (1) or (2); or (c) Every person who shall commit sex
trafficking of a minor, shall be guilty of a felony and subject to not more than forty
(40) years imprisonment or a fine of up to forty thousand dollars ($40,000), or both.
(Emphasis added.)
2
obvious drafting error[,]” which was referred to by the parties as the “hanging or,” and that “no
amount of statutory construction * * * [could] fill the gap or repair the flaw created by the absence
of language setting forth a crime[.]” Maxie, 187 A.3d at 340, 341.
That is not the situation presented in the statutes at issue. The subject statutes do not
contain any such drafting errors. Rather, each is part of a clear statutory scheme in which the
prohibited conduct is plainly laid out in one section of a chapter in our general laws, and the penalty
is set forth in the subsequent section. We reject petitioners’ arguments that this arrangement
somehow renders the statutes without legal force and effect. None of the other cases cited by
petitioners, which are largely from other jurisdictions, convince us otherwise. For the reasons
specified herein, and for the reasons set forth in the Superior Court’s well-reasoned denials of the
PCR applications, we deny all of the petitions for writ of certiorari.
The petitions for writ of certiorari listed in Exhibit A, as prayed, are denied.
The petitioners’ motions for appointment of counsel, as prayed, are denied as moot.5
The petitioners’ motions to proceed in forma pauperis, as prayed, are granted.
These matters shall be closed.
Entered as an Order of this Court this 19th day of November 2019.
By Order,
_____________/s/______________
Clerk
5
All but one petitioner, Christian Buchanan (No. 2019-327-M.P.), filed a motion to proceed in
forma pauperis and a motion to have counsel appointed.
3
Exhibit A
1 SU-2019-250-MP Joseph Wilson v. State of Rhode Island
2 SU-2019-251-MP Lance Mosley v. State of Rhode Island
3 SU-2019-252-MP Freedom Thibodeau v. State of Rhode Island
4 SU-2019-253-MP Clinton Mulbah v. State of Rhode Island
5 SU-2019-254-MP Muhammad Farooq v. State of Rhode Island
6 SU-2019-255-MP John Depina v. State of Rhode Island
7 SU-2019-256-MP Santo Jensen v. State of Rhode Island
8 SU-2019-257-MP Peter Cole v. State of Rhode Island
9 SU-2019-258-MP Walter Perry v. State of Rhode Island
10 SU-2019-259-MP Aloysius Weah v. State of Rhode Island
11 SU-2019-260-MP Carlos Guzman v. State of Rhode Island
12 SU-2019-261-MP Dante Dutra v. State of Rhode Island
13 SU-2019-262-MP James Paola v. State of Rhode Island
14 SU-2019-263-MP Stephen Mattatall v. State of Rhode Island
15 SU-2019-265-MP Oscar Muralles v. State of Rhode Island
16 SU-2019-266-MP Juan Silva v. State of Rhode Island
17 SU-2019-267-MP Bruce McKay v. State of Rhode Island
18 SU-2019-269-MP Michael Powell v. State of Rhode Island
19 SU-2019-270-MP Anibal Acevedo v. State of Rhode Island
20 SU-2019-271-MP Gary Abruzzese v. State of Rhode Island
21 SU-2019-277-MP Anthony Deciantis v. State of Rhode Island
22 SU-2019-278-MP Fredwin Burgos v. State of Rhode Island
23 SU-2019-279-MP Samuel Fuentes v. State of Rhode Island
24 SU-2019-280-MP Kirk Demers v. State of Rhode Island
25 SU-2019-282-MP Javier Merida v. State of Rhode Island
26 SU-2019-283-MP Leo Morris, Jr. v. State of Rhode Island
27 SU-2019-284-MP Amilio Feliciano v. State of Rhode Island
28 SU-2019-285-MP James Hernandez v. State of Rhode Island
4
29 SU-2019-289-MP Edilsar Alvarado v. State of Rhode Island
30 SU-2019-290-MP Jaimeson Rushlow v. State of Rhode Island
31 SU-2019-291-MP Edward Berrios v. State of Rhode Island
32 SU-2019-292-MP Jeffrey Murray v. State of Rhode Island
33 SU-2019-295-MP Jayson Esposito v. State of Rhode Island
34 SU-2019-310-MP David Carpenter v. State of Rhode Island
35 SU-2019-311-MP Marco Ortiz, Sr. v. State of Rhode Island
36 SU-2019-312-MP Robert Gonder v. State of Rhode Island
37 SU-2019-327-MP Christian Buchanan v. State of Rhode Island
38 SU-2019-377-MP Nicholas Caterino v. State of Rhode Island
39 SU-2019-378-MP Demetrio Aguilar v. State of Rhode Island
40 SU-2019-382-MP Raymond Lynch v. State of Rhode Island
41 SU-2019-383-MP Miguel Panadero v. State of Rhode Island
5
STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS
SUPREME COURT – CLERK’S OFFICE
ORDER COVER SHEET
In re Petitions for Writ of Certiorari Seeking Review of Denials of
Title of Case
Applications for Postconviction Relief.
SU-2019-250-MP SU-2019-265-MP SU-2019-289-MP
SU-2019-251-MP SU-2019-266-MP SU-2019-290-MP
SU-2019-252-MP SU-2019-267-MP SU-2019-291-MP
SU-2019-253-MP SU-2019-269-MP SU-2019-292-MP
SU-2019-254-MP SU-2019-270-MP SU-2019-295-MP
SU-2019-255-MP SU-2019-271-MP SU-2019-310-MP
SU-2019-256-MP SU-2019-277-MP SU-2019-311-MP
Case Number
SU-2019-257-MP SU-2019-278-MP SU-2019-312-MP
SU-2019-258-MP SU-2019-279-MP SU-2019-327-MP
SU-2019-259-MP SU-2019-280-MP SU-2019-377-MP
SU-2019-260-MP SU-2019-282-MP SU-2019-378-MP
SU-2019-261-MP SU-2019-283-MP SU-2019-382-MP
SU-2019-262-MP SU-2019-284-MP SU-2019-383-MP
SU-2019-263-MP SU-2019-285-MP
Date Order Filed November 19, 2019
Justices Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
Providence County Superior Court
Source of Appeal
Judicial Officer Associate Justice Kristin E. Rodgers
From Lower Court
For Petitioners:
Glen S. Sparr, Esq.
Michael S. Pezzullo, Esq.
Kenneth G. Littman, Esq.
Attorney(s) on For State:
Appeal
Christopher R. Bush
Assistant Attorney General
Judy Davis
Special Assistant Attorney General
SU‐CMS‐02B (revised November 2016)