                                                                       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)
