November 21, 2018



                                                                     Supreme Court

                                                                     No. 2017-104-C.A.
                                                                     (P1/04-3386A)


                         State                    :

                          v.                      :

                    James Oliveira.               :




                    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
                    222-3258 of any typographical or other formal errors in order that
                    corrections may be made before the opinion is published.
                                                                   Supreme Court
                                                                   No. 2017-104-C.A.
                                                                   (P1/04-3386A)


                    State                      :

                     v.                        :

              James Oliveira.                  :


                   Present: Suttell, C.J., Goldberg, Flaherty, and Robinson, JJ.

                                          OPINION

       Justice Goldberg, for the Court. This case came before the Court on October 3, 2018,

pursuant to an order directing the parties to appear and show cause why the issues raised in this

appeal should not be summarily decided.            The defendant, James Oliveira, appeals from a

Superior Court order that denied his motion to reduce a sentence, filed in accordance with

Rule 35 of the Superior Court Rules of Criminal Procedure. After a thorough review of the

record and consideration of the parties’ arguments, we conclude that cause has not been shown

and that the appeal may be decided without further briefing or argument. For the reasons set

forth herein, we affirm the order of the Superior Court denying defendant’s motion to reduce

sentence.

                                        Facts and Travel

       The facts of the underlying case are set forth in detail in State v. Oliveira, 961 A.2d 299

(R.I. 2008) (Oliveira I), and State v. Oliveira, 127 A.3d 65 (R.I. 2015) (Oliveira II).

Accordingly, the Court recites only those facts relevant to this appeal.

       On October 29, 2004, a grand jury indicted defendant on two counts of first-degree child

molestation sexual assault, in violation of G.L. 1956 § 11-37-8.1, for sexually assaulting his six-



                                                -1-
year-old grandson by anal penetration. On September 19, 2006, a Superior Court jury convicted

defendant on one count of first-degree child molestation sexual assault and acquitted defendant

on the second count. The trial justice sentenced defendant to sixty years’ imprisonment, with

forty years to serve and the remainder suspended, with probation. This conviction was vacated

on appeal, and the case was remanded for a new trial. Oliveira I, 961 A.2d at 319. At a second

trial, before a different trial justice, defendant again was convicted on one count of first-degree

child molestation sexual assault. He was sentenced to life imprisonment, and this Court affirmed

the conviction. Oliveira II, 127 A.3d at 85.1

       Subsequently, defendant filed a Rule 35 motion to reduce the sentence, on the ground that

the life sentence imposed after the second trial was unconstitutional. The defendant argued that

it was improper for a second trial justice to depart from the original forty-year term to serve due

to defendant’s disciplinary record at the Adult Correctional Institutions. The defendant also

argued that the trial justice erred because, while he commented upon defendant’s disciplinary

record, the trial justice failed to make clear “that [the record] was the reason why he imposed a

life sentence.” The state disagreed, and argued in opposition to the motion to reduce that there

was ample evidence in the record to support the trial justice’s sentencing decision, including

conduct by defendant that occurred after the first conviction was vacated.

       In denying defendant’s Rule 35 motion, the trial justice acknowledged that, although he

“could have been more explicit in using * * * direct language” when departing from defendant’s

first sentence and imposing a life sentence following his second conviction, this omission was



1
  This is not defendant’s first conviction. In State v. Oliveira, 576 A.2d 111 (R.I. 1990),
defendant’s convictions for first-degree and second-degree child molestation sexual assault in
1988 were vacated, and defendant entered a plea of nolo contendere to two counts of second-
degree child molestation sexual assault. He was sentenced to two eight-year sentences, to run
concurrently, with two years to serve and the balance suspended, with probation.
                                                -2-
not fatal to his sentencing decision.     The trial justice found that the fourteen disciplinary

infractions that defendant had committed between defendant’s first conviction and his second

trial were “very disturbing” because every infraction “fell into the moderate to high category of

disciplinary violations according to the Department of Corrections Code of Conduct.” The trial

justice also explained that, during the sentencing hearing, he had “clearly characterized that

collection of infractions as demonstrating * * * that this defendant, in the [c]ourt’s view, was

antisocial, disrespectful of authority, rules, and boundaries.” Finally, the trial justice recounted

his sentencing remarks about the impact this crime has had on the young complainant’s life. The

defendant’s grandson was six years of age at the time of the offense.

       The defendant timely appealed.

                                       Standard of Review

       A motion to reduce a sentence under Rule 35 “is essentially a plea for leniency[.]” State

v. Rivera, 64 A.3d 742, 745 (R.I. 2013) (quoting State v. Chase, 9 A.3d 1248, 1253 (R.I. 2010)).

“The motion is addressed to the sound discretion of the trial justice, who may grant it if he or she

decides on reflection or on the basis of changed circumstances that the sentence originally

imposed was, for any reason, unduly severe.” State v. Mlyniec, 78 A.3d 769, 771 (R.I. 2013)

(quoting State v. Mendoza, 958 A.2d 1159, 1161 (R.I. 2008)). We have a “strong policy against

interfering with a trial justice’s discretion in sentencing matters,” and thus “our review of a trial

justice’s ruling on a Rule 35 motion is extremely limited.” Rivera, 64 A.3d at 745 (quoting State

v. Snell, 11 A.3d 97, 101 (R.I. 2011)). Accordingly, we will interfere with that discretion only in

“rare instances when the trial justice has imposed a sentence that is without justification and is

grossly disparate from other sentences generally imposed for similar offenses.” Id. (quoting

Snell, 11 A.3d at 101).



                                                -3-
                                           Discussion

       Before this Court, defendant contends, as he did below, that the trial justice abused his

discretion by imposing a sentence significantly longer than the sentence imposed after

defendant’s first conviction. Specifically, defendant claims that, when the trial justice departed

from the first sentence after retrial, imposing a sentence of life imprisonment, he violated

defendant’s right to due process because the court essentially punished defendant for

successfully appealing his first conviction. This argument is without merit.

       It is well established that “a corollary of the power to retry a defendant is the power, upon

the defendant’s reconviction, to impose whatever sentence may be legally authorized, whether or

not it is greater than the sentence imposed after the first conviction.” North Carolina v. Pearce,

395 U.S. 711, 720 (1969); see State v. Mattatall, 603 A.2d 1098, 1118 (R.I. 1992) (“Reversal of

the original conviction nullifies the previous sentence, thereby clearing the slate for the

imposition of a completely new sentence.”). This is because, by vacating the first conviction, the

sentence that was imposed is also vacated, thus allowing for the imposition of a completely new

sentence following a new conviction. State v. Simpson, 520 A.2d 1281, 1285 (R.I. 1987) (citing

Pearce, 395 U.S. at 721). The trial justice on retrial may depart from the original sentence and

impose a harsher sentence based on “events subsequent to the first trial that may have thrown

new light upon the defendant’s life, health, habits, conduct, and mental and moral propensities.”

Id. (quoting Pearce, 395 U.S. at 723); see also Mattatall, 603 A.2d at 1118-19.

       We hasten to add, however, that the United States Supreme Court has declared that

“[d]ue process of law * * * requires that vindictiveness against a defendant for having

successfully attacked his first conviction must play no part in the sentence he receives after a

new trial.” Pearce, 395 U.S. at 725. The record in the case at bar discloses that defendant



                                               -4-
conceded that there was no vindictiveness by the trial justice when he imposed the life sentence

after the second trial. Indeed, there is no evidence of vengeful or spiteful sentencing on the part

of the second trial justice when he departed from the first sentence. Rather, the second trial

justice affirmatively placed his reasons for imposing the longer sentence on the record.

Furthermore, in the context of the second trial, which, again, was presided over by a different

trial justice than the first trial, any suggestion of vindictiveness based on the successful appeal of

the first conviction would be entirely speculative. See Texas v. McCullough, 475 U.S. 134, 139

(1986) (explaining that the possibility of vindictiveness is speculative where the second sentence

is imposed by a different trial justice who has “no motivation to engage in self-vindication”

(quoting Chaffin v. Stynchcombe, 412 U.S. 17, 27 (1973))). We therefore are satisfied that the

sentence imposed by the trial justice in this case was not motivated by vindictiveness.

       A thorough examination of the record also reveals that the trial justice gave ample

consideration to events that occurred after the first trial that shed light upon defendant’s “life,

health, habits, conduct, and mental and moral propensities.” Pearce, 395 U.S. at 723 (quoting

Williams v. New York, 337 U.S. 241, 245 (1949)).            Specifically, at the February 6, 2013

sentencing hearing, the trial justice cited fourteen separate instances of misconduct by defendant

at the ACI and in the Superior Court cellblock. Before he imposed the sentence, the trial justice

concluded that “defendant’s conduct while housed at the ACI demonstrates that he is antisocial

and disrespectful of authority, rules, and boundaries”; the trial justice proceeded to delve into a

description of each infraction, noting that all fourteen fell into the “moderate to high” category as

to the seriousness of disciplinary violations.

       Accordingly, after due consideration of all the Pearce factors, we are of the opinion that

the trial justice properly decided to impose the maximum sentence permitted under the statute in



                                                 -5-
this case.2 The defendant has failed to demonstrate that the trial justice imposed the sentence

without justification, or that the sentence was “grossly disparate from other sentences generally

imposed for similar offenses.” Snell, 11 A.3d at 101 (quoting State v. Coleman, 984 A.2d 650,

654 (R.I. 2009)). We hold that the trial justice was “well within his discretion to give and then

confirm the instant punishment for [defendant.]” Id. at 102.

                                               Conclusion

       For the reasons stated herein, we affirm the order of the Superior Court. The record shall

be returned to the Superior Court.



       Justice Indeglia did not participate.




2
 General Laws 1956 § 11-37-8.2 provides: “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.”
                                                  -6-
STATE OF RHODE ISLAND AND                                  PROVIDENCE PLANTATIONS



                         SUPREME COURT – CLERK’S OFFICE

                                 OPINION COVER SHEET

Title of Case                        State v. James Oliveira.
                                     No. 2017-104-C.A.
Case Number
                                     (P1/04-3386A)
Date Opinion Filed                   November 21, 2018

Justices                             Suttell, C.J., Goldberg, Flaherty, and Robinson, JJ.

Written By                           Associate Justice Maureen McKenna Goldberg

Source of Appeal                     Providence County Superior Court

Judicial Officer From Lower Court    Associate Justice Daniel A. Procaccini
                                     For State:

                                     Jane M. McSoley
                                     Department of Attorney General

                                     For Defendant:
Attorney(s) on Appeal
                                     Lara E. Montecalvo
                                     Office of the Public Defender

                                     Alec Miran
                                     Rule 9 Practitioner




SU-CMS-02A (revised June 2016)
