                                                   Supreme Court

                                                   No. 2014-324-C.A.
                                                   (P1/07-1896AG)
                                                   (P1/06-776A)

     State                    :

      v.                      :

Michael Ciresi.               :



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,
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                                                                    Supreme Court

                                                                    No. 2014-324-C.A.
                                                                    (P1/07-1896AG)
                                                                    (P1/06-776A)

                   State                      :

                     v.                       :

              Michael Ciresi.                 :

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

                                          OPINION

       Justice Indeglia, for the Court. The defendant, Michael Ciresi (Ciresi or defendant),

appeals the denial of his motion to reduce his sentence. This case came before the Supreme

Court on November 30, 2016, 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 hearing the

arguments of counsel and reviewing the parties’ memoranda, we are satisfied that cause has not

been shown. Accordingly, we shall decide the appeal at this time without further briefing or

argument. For the reasons set forth herein, we affirm the judgment of the Superior Court.

                                                  I

                                        Facts and Travel

       The facts underlying this case are set forth in State v. Ciresi, 45 A.3d 1201, 1210 (R.I.

2012), where this Court affirmed defendant’s nine-count criminal conviction. Those counts

included: burglary, conspiracy to commit burglary, use of a firearm when committing a crime of

violence, attempted larceny, receiving stolen goods, harboring a criminal, and obstructing justice.

Id. The aggregate sentences for all of Ciresi’s convictions totaled thirty-five years, with twenty




                                               -1-
years to serve and fifteen years suspended with probation, to run concurrently, and a ten-year

suspended sentence to run consecutively. 1

          On October 31, 2012, subsequent to our opinion, defendant moved to reduce his sentence

pursuant to Rule 35 of the Superior Court Rules of Criminal Procedure. In his motion, Ciresi

asserted that, since beginning his sentence, he has accepted responsibility for his decisions. He

noted the numerous programs he has participated in and completed while incarcerated, including

one leading to his receipt of a college degree. Ciresi maintained that his efforts to better himself

while in prison “are demonstrative of the tenor and extent of his sincerity, his acceptance of

responsibility, remorse and resolution to be an honest, useful member of society.” The defendant

also referenced the hardship of parenting his two sons while in prison.

          Ciresi then argued that his sentence violated the Eighth Amendment to the United States

Constitution because it exceeded the guidelines set forth in the Superior Court Sentencing

Benchmarks (the benchmarks). Specifically, he asserted that the sentence for one count of

burglary (thirty-five years, with twenty to serve and fifteen suspended) exceeded benchmark 5’s




1
    For each of defendant’s nine convictions, the trial justice imposed the following sentences:

                 “(1) one year to serve for misdemeanor receipt of stolen goods; (2)
                 ten years to serve for attempted larceny from the ATM machine;
                 (3) five years to serve for the harboring of Darryl Streeper; (4) one
                 year to serve for obstruction of justice; (5) thirty-five years, twenty
                 years to serve and fifteen suspended, with probation, for the East
                 Avenue burglary; (6) ten years to serve for conspiracy to commit
                 the East Avenue burglary; (7) ten years to serve, consecutive to the
                 East Avenue burglary sentence, but suspended, for the firearm
                 charge; (8) ten years to serve for the Charles Street burglary; and
                 (9) ten years to serve for conspiring to commit the Charles Street
                 burglary. The trial justice directed that all of these sentences were
                 to run concurrently aside from the firearm charge.” State v. Ciresi,
                 45 A.3d 1201, 1210 (R.I. 2012).



                                                  -2-
sentencing range. 2 The defendant contended that his one-year sentence for receiving stolen

goods and his ten-year sentence for attempted larceny also surpassed the guidelines set forth in

benchmark 19 3 and benchmark 15, 4 respectively. He argued that “a large departure [from the

recommended guidelines] may be viewed as a ‘cruel and unusual’ [sic] in violation of the Eighth

Amendment * * * .” The Defendant also cited to State v. Hall, 940 A.2d 645 (R.I. 2008), for the

proposition “that all facts that increased the maximum sentence of a defendant, except for prior

convictions, must be found by a jury.” Id. at 657 (citing Blakely v. Washington, 542 U.S. 296,

301 (2004)). In this regard, Ciresi argued that his severe sentence was based on the fact that he

was a police officer when the crimes were planned and carried out, which was not proved to a

jury.

        On May 12, 2014, a justice of the Superior Court heard the parties on Ciresi’s motion. 5

His attorney first noted defendant’s involvement and participation in various programs while

incarcerated. He also asked the court to consider defendant’s sons, arguing that “it’s a very

meaningful part of his life and one that he would very much like to connect with.” Before

defendant spoke, the hearing justice noted defendant’s decision not to allocute at his sentencing

because he intended to appeal the decision. Ciresi, appearing via video from prison, expressed

regret and shame for his conduct, and said that he accepted responsibility for his actions.




2
  Benchmark 5 recommends a sentence of seven to ten years for breaking and entering an
occupied dwelling without consent of the owner or tenant, at night, with or without a weapon.
3
  Benchmark 19 suggests a sentence of “[l]ess than jail,” for a first offense of receiving stolen
goods over $500.
4
  Benchmark 15 recommends a sentence of three to five years for a repeat offense of larceny
over $500. Ciresi’s conviction for attempted larceny provides for “the same punishment which
might have been inflicted if the attempted offense had been committed.” G.L. 1956 § 11-41-6.
5
  This Court notes that the hearing justice who heard defendant’s motion to reduce his sentence is
the same justice of the Superior Court who presided over defendant’s original trial.


                                               -3-
       In a decision dated May 30, 2014, the hearing justice denied Ciresi’s motion. He rejected

defendant’s “rehabilitative advancement while an inmate” as a basis to reduce sentence, because

“[p]roper inmate deportment * * * is expected” and also irrelevant in determining a motion to

reduce a sentence. The hearing justice also rejected Ciresi’s argument concerning the hardship

that his incarceration had on his sons, finding that “parenthood is simply not a justifiable excuse

for dispensing with meaningful punishment for the commission of serious criminal offenses.”

       The hearing justice rejected defendant’s contention that his sentence was impermissibly

long in comparison to the benchmarks because the guidelines’ recommendations are not

mandatory.    He noted that the benchmarks provide examples where guideline departure is

appropriate, and he singled out three as applicable: (1) “circumstances of the commission of the

crime,” (2) whether the crime was an “isolated offense,” and (3) “other substantial grounds” that

might mitigate or aggravate culpability. With these in mind, the hearing justice noted that

defendant did not merely commit an “isolated offense.” Rather, Ciresi committed five of the

nine offenses on different occasions, planned two burglaries, and provided “tools of violence”

for the commission of both. Citing to Ciresi, 45 A.3d at 1214, 1216, he found that defendant’s

other convictions, coupled with additional bad acts, 6 “demonstrated Ciresi’s pattern of

cultivating and protecting criminal informants in his role as a police officer for his own financial

and professional gain * * * [and] were segments of a common scheme or plan * * * .” The

hearing justice rejected defendant’s assertion that his sentence was impermissibly long and found

it “commensurate with the gravity of the crimes he committed.” Accordingly, he denied the

motion to reduce sentence.



6
  The additional bad acts that the hearing justice referenced included thirty-seven acts of
defendant’s misconduct, which were brought out at the original trial. The hearing justice
appended a list of those acts to his order.


                                               -4-
       On June 12, 2014, Ciresi appealed the denial of his motion. He is challenging the

constitutionality of the benchmarks, and raises two specific constitutional violations. First, he

argues that his sentence violates the Sixth Amendment to the United States Constitution and

article 1, section 15 of the Rhode Island Constitution because it relies on factual findings not

proved to the jury. Second, Ciresi contends that the sentence constitutes cruel and unusual

punishment, in contravention of the Eighth Amendment to the United States Constitution and

article 1, section 8 of the Rhode Island Constitution.

                                                 II

                                       Standard of Review

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

Farooq, 115 A.3d 961, 964 (R.I. 2015) (quoting State v. Ruffner, 5 A.3d 864, 867 (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.” State v. Rivera, 64 A.3d 742, 745

(R.I. 2013) (quoting State v. Snell, 11 A.3d 97, 101 (R.I. 2011)). Accordingly, “we only will

interfere with that discretion 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.” Farooq, 115 A.3d at 964 (quoting Ruffner, 5 A.3d at 867).




                                                -5-
                                                 III

                                             Discussion

                                                  A

                              Denial of Defendant’s Rule 35 Motion

       On appeal, defendant challenges the hearing justice’s denial of his motion to reduce his

sentence. He contends that “the court was not persuaded that a different sentence should result,”

despite the hearing justice’s acknowledgment that defendant accepted responsibility for his

conduct. Ciresi notes that he “presented information [at the Rule 35 proceeding] to inform the

[hearing] justice’s understanding of potential for rehabilitation,” however, the hearing justice

rejected his “proffer of post incarceration rehabilitation.”

       In the present case, “[g]iven the vast discretion we afford to the trial justice’s sentencing

judgment, we cannot reasonably conclude that the sentences here were ‘without justification and

* * * grossly disparate from other sentences.’” Snell, 11 A.3d at 102 (quoting Ruffner, 5 A.3d at

867). The hearing justice noted defendant’s arguments, including “his recent expressions of

remorse along with his rehabilitative advancement while an inmate, as well as a desire to attend

to his two children.”     He rejected these arguments, noting that proper inmate behavior is

expected and “not relevant to the determination of a motion to reduce sentence.” “[W]e cannot

say that the trial justice abused his discretion when he left consideration of the defendant's good

behavior and rehabilitative efforts while in prison to the parole board.” Ruffner, 5 A.3d at 868.

       Further, the hearing justice found defendant’s argument concerning family hardship

“unavailing.” He acknowledged the negative impact of Ciresi’s incarceration on his children,

but held that it did not justify reducing the sentence imposed for his commission of serious

crimes. Addressing defendant’s constitutional arguments, the hearing justice determined that the




                                                 -6-
sentence “is commensurate with the gravity of the crimes he committed.” Finally, the hearing

justice articulated the reasons for defendant’s harsh punishment and concluded that “[t]he

enormity of the crimes, the blatant nature of the misconduct, [and] * * * defendant’s callous

disregard of his oath * * * all counsel toward reaffirmation of the sanctions originally levied.”

Accordingly, we conclude that the hearing justice “was well within his discretion to give and

then confirm the instant punishment for [defendant] * * * .” Snell, 11 A.3d at 102.

                                               B

                           Constitutional Challenges under Rule 35

       The defendant also challenges the constitutionality of the benchmarks. He relies on

Blakely, for its proposition that “any fact that increases the penalty for a crime beyond the

prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable

doubt.” Blakely, 542 U.S. at 301 (quoting Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)).

Ciresi maintains that “this state’s system,” with regard to the benchmarks, “runs afoul of

Blakely,” because facts underlying a departure from them should be submitted to a jury.

       Specifically, defendant raises two constitutional challenges. First, he maintains that “the

Sentencing Court did not comply with the Sixth Amendment when it imposed a sentence

exceeding the maximum Benchmark * * * .” He references the hearing justice’s consideration of

facts not proved to the jury, including thirty-seven uncharged bad acts. Second, Ciresi argues

that his sentence’s departure from the benchmarks constitutes cruel and unusual punishment, in

violation of the Eighth Amendment to the United States Constitution and article 1, section 8 of

the Rhode Island Constitution.

       This Court, however, has never “countenanced a challenge to the constitutionality of a

penal statute in the context of a Rule 35 motion * * * .” State v. Linde, 965 A.2d 415, 417 (R.I.




                                              -7-
2009), as amended (Mar. 27, 2009). In Linde, the defendant argued, in part, that his mandatory

and consecutive life sentence given under the anti-gun-violence statute violated the Eighth

Amendment. Id. at 416. There, we held that the defendant’s challenge could not be raised

through a Rule 35 motion, and we declined to reach the merits of his constitutional arguments.

Id. at 417.   Similarly, here, Ciresi challenges the constitutionality of departures from the

benchmarks. Accordingly, we need not reach the merits of Ciresi’s constitutional challenges

because they are “not cognizable in the context of a motion to correct an illegal sentence under

Rule 35 * * * .” Linde, 965 A.2d at 416.

                                               1

                                      Sixth Amendment

       Nonetheless, even if defendant could raise constitutional challenges under Rule 35, his

arguments lack merit. Ciresi’s Sixth Amendment challenge hinges on his assertion that the

departure from the benchmarks violates the holding set forth in Blakely. Ciresi contends that the

lower court’s consideration of facts not proved to the jury—including, thirty-seven uncharged

bad acts—violated the Sixth Amendment.

       However, Blakely is inapplicable here because Ciresi’s sentence did not exceed the

statutory maximum. With respect to the burglary sentence challenged on appeal, G.L. 1956 §

11-8-1 sets forth a maximum sentence of life in prison. Here, the sentence only exceeded the

benchmark, and this Court has long held “that the benchmarks are not mandatory” and

departures are allowed under certain circumstances. Snell, 11 A.3d at 102. In his order denying

defendant’s motion, the hearing justice articulated three of those circumstances justifying

departure from the guidelines. Accordingly, defendant’s sentence does not violate the Sixth

Amendment.




                                              -8-
                                                2

                                      Eighth Amendment

       Ciresi’s Eighth Amendment argument rests on his assertion that the sentences fall outside

of those set forth in the benchmarks. The defendant cites to McKinney v. State, 843 A.2d 463,

470 (R.I. 2004), to support his argument that “too large of an upward departure [from the

sentencing guidelines] may be viewed as ‘cruel and unusual’ * * * .” In McKinney, this Court

recognized a “narrow proportionality principle” with respect to the Eighth Amendment, “such

that a criminal sentence is excessive and unconstitutional if, inter alia, it ‘is grossly out of

proportion to the severity of the crime.’” State v. Monteiro, 924 A.2d 784, 794 (R.I. 2007)

(quoting McKinney, 843 A.2d at 467). “The overriding inquiry for determining ‘proportionality’

is whether the sentence is commensurate with the gravity of the crime.” Id. at 795 (quoting

McKinney, 843 A.2d at 469).

       Ciresi argues that his sentence is cruel and unusual punishment because it departed from

the benchmarks. However, since the benchmarks are not mandatory, the hearing justice was

“bound only by the statutory limits.” Rivera, 64 A.3d at 746 (quoting Snell, 11 A.3d at 102).

Here, the trial justice did comply with the statutory limits. Thus, although Ciresi’s sentence

departed from the guidelines, it was well within the statutory mandate.

       Ciresi, as “[t]he party seeking reduction,” has not shown that his sentence is “grossly

disproportionate” to the crimes charged. Monteiro, 924 A.2d at 794 (quoting McKinney, 843

A.2d at 473). “The gross disproportionality principle reserves a constitutional violation for only

the extraordinary case,” and this is not such a case. Monteiro, 924 A.2d at 795 (quoting Lockyer

v. Andrade, 538 U.S. 63, 77 (2003)). We therefore conclude that the sentence does not violate

the Eighth Amendment.




                                              -9-
                                              IV

                                          Conclusion

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

shall be returned to that tribunal.




                                             - 10 -
                                 RHODE ISLAND SUPREME COURT CLERK’S
                                               OFFICE

                                 Clerk’s Office Order/Opinion Cover Sheet




TITLE OF CASE:        State v. Michael Ciresi.

CASE NO:              No. 2014-324-C.A.
                      (P1-07-1896AG)
                      (P1/06-776A)

COURT:                Supreme Court

DATE OPINION FILED: January 6, 2017

JUSTICES:             Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

WRITTEN BY:           Associate Justice Gilbert V. Indeglia

SOURCE OF APPEAL:     Providence County Superior Court

JUDGE FROM LOWER COURT:

                      Associate Justice Robert D. Krause

ATTORNEYS ON APPEAL:

                      For State: Lauren S. Zurier
                                 Department of Attorney General

                      For Defendant: George J. West, Esq.
