                                                      Supreme Court

                                                      No. 2011-265-M.P.
                                                      (P2/07-3944A)


       State                     :

        v.                       :

Kenneth W. Keenan.               :




   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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                                                                    Supreme Court

                                                                    No. 2011-265-M.P.
                                                                    (P2/07-3944A)


                   State                       :

                     v.                        :

           Kenneth W. Keenan.                  :


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

                                          OPINION

       Justice Robinson, for the Court.        This Court granted the State of Rhode Island‘s

petition for a writ of certiorari seeking review of the Superior Court‘s grant of the defendant‘s

motion to reduce sentence pursuant to Rule 35 of the Superior Court Rules of Criminal

Procedure. Upon granting the petition for a writ of certiorari, this Court specifically instructed

the parties to address, inter alia, whether a motion to reduce sentence, once denied, may again be

brought by the defendant and/or considered by the trial justice.

       This case is 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 a

careful review of the record and after consideration of the parties‘ written and oral arguments, we

are satisfied that cause has not been shown and that this appeal may be decided at this time. For

the reasons set forth in this opinion, we quash the judgment of the Superior Court.




                                               -1-
                                                 I

                                        Facts and Travel

       On November 20, 2007, the Attorney General charged defendant Kenneth W. Keenan by

way of a criminal information with assault with a dangerous weapon in violation of G.L. 1956

§ 11-5-2 (count 1) and assault with intent to rob in violation of § 11-5-1 (count 2). On December

18, 2007, the Attorney General filed a notice stating that, if convicted of the offense(s) charged

in the criminal information, defendant would be subject to the imposition of an additional

sentence as a habitual offender.

       At a hearing before the Superior Court on February 23, 2009, defendant pled nolo

contendere to count 1; count 2 was dismissed pursuant to Rule 48(a) of the Superior Court Rules

of Criminal Procedure in exchange for defendant‘s plea with respect to count 1. The plea form,

which was signed by defendant and his counsel and was certified by the trial justice, included the

following language:

               ―I understand by changing my plea I will be giving up and waiving
               each and all of my rights as follows:

               ―* * *

               ―9. My right to file a motion for a reduction in sentence.‖

The trial justice accepted the nolo contendere plea, and he sentenced defendant to twenty years at

the Adult Correctional Institutions (ACI), with ten years to serve and ten years suspended with

probation.

       On May 21, 2009, defendant, acting pro se, filed the following items in the Superior

Court: a ―Motion to Preserve Rule #35 Under Rhode Island Criminal Procedure‖; a ―Motion to

Proceed Pro-Se‖; a ―Motion to Assign‖; a document entitled ―Writ of Habeas Corpus ad

Testificandum‖; a ―Motion for Correction and Modification of Sentence‖; and a ―Motion for



                                               -2-
Status Conference‖ on what he refers to therein as his motion for sentence reduction under Rule

35. On October 19, 2009, defendant appeared with counsel1 before the trial justice on what was

treated as defendant‘s motion to reduce sentence.         After argument was presented by the

prosecutor and by defendant‘s counsel, the trial justice made the following comment:

                      ―My belief is until the law is otherwise that while someone
               can waive that particular right [to seek reduction of their sentence]
               which is established by [c]ourt rule, this [c]ourt certainly has the
               inherent power to restore it to a defendant in the appropriate
               circumstances.‖

In rendering his decision2 on defendant‘s motion, the trial justice stated as follows:

               ―So I have in spite of the waiver reduced in at least one case to my
               recollection, restored it to a defendant in circumstances that I
               thought were appropriate.

                       ―I have to honestly say that at this time at this juncture in
               this case, I cannot do that. I cannot overlook the fact that I think it
               was a very fair and reasonable plea bargain made by the State at
               the time it was made, particularly in light of this defendant‘s record
               which is what it is. I‘m going to deny the motion to reduce his
               sentence. I will deny it without prejudice. * * * I doubt the Parole
               Board is going to parole in a few months the first time that he is
               there.

                       ―So I‘m not going to completely close the door to him ever
               returning here. Maybe somewhere down the road depending on
               how things unfold with the Parole Board or depending on how he
               continues to act and work behind the walls of the ACI I might be
               willing to take another look at this in the future. But, at this time
               based on the agreement that was made originally, it would be
               unfair to the State to consider restoring this ability to reduce the
               sentence to this defendant at this time. So, it is denied without
               prejudice.‖ (Emphases added.)




1
       Counsel for defendant filed an entry of appearance on September 20, 2009.
2
        The trial court file does not contain an order memorializing the denial of defendant‘s first
motion to reduce sentence. However, in addition to the decision reflected by the transcript, the
file contains a case note indicating that the motion had been ―denied without prejudice.‖


                                                -3-
On December 10, 2010—more than a year after the trial justice denied defendant‘s motion

without prejudice—defendant, through counsel, filed a motion to reduce sentence/assign

pursuant to Rule 35. In his motion, defendant requested that the trial justice ―assign for hearing a

Rule 35 motion previously filed by the Defendant.‖

       At the May 4, 2011 hearing on that motion, counsel for defendant argued that defendant

had ―done an exemplary job‖ in programs while at the ACI, although the parole board had

declined to grant him parole. Counsel reminded the trial justice that he had denied defendant‘s

previous motion to reduce sentence ―without prejudice giving the defendant the opportunity to

revisit this issue if not successful in front of the parole board.‖ Counsel added that defendant had

a ―health issue,‖ which counsel identified as addiction and depression. He represented to the

court that defendant had arranged for ―long-term residential treatment‖ and that he had not had

any infractions at the ACI.

       The state objected to the reduction of defendant‘s sentence on several grounds. The state

first argued that defendant had waived his right to move to reduce his sentence because of what

the state characterized as the ―unequivocal‖ waiver language in the plea form.            The state

additionally brought to the court‘s attention (1) defendant‘s lengthy criminal record; (2) the fact

that defendant was a probation violator at the time of the plea; and (3) the fact that the victim of

the assault(s) which led to defendant‘s arrest and eventual plea had been ―on board‖ with

defendant being sentenced to fifteen years to serve (a sentence which had been ―undercut‖ by the

prosecutor at the time of the plea).

       In rendering his decision, the trial justice summarized the positions of the parties and his

analysis supporting his decision. The trial justice indicated that he was ―not a fan‖ of the

provision in the plea form whereby the defendant making the plea explicitly waives the right to




                                               -4-
file a motion to reduce his or her sentence. (The printed text of the plea form indicates that the

defendant is ―giving up and waiving‖ an enumerated series of rights, including the ―right to file a

motion for a reduction in sentence.‖) The trial justice then stated:

               ―So, I am going to reduce Mr. Keenan‘s sentence by one year on
               the years to serve, so it is going to be a 20 year sentence, nine
               years to serve.‖

At that point in the hearing, defense counsel pointed out that ―[i]t has to be reduced, it has to be

19 years, the suspended probation has to remain the same.‖ The hearing continued as follows:

               ―THE COURT: 19 years, 9 years to serve.
               ―[DEFENSE COUNSEL]: Thank you very much, your Honor.
               ―[PROSECUTOR]: I will accept it. I don‘t know that we have to
               do it that way.
               ―THE COURT: Let‘s go off the record for a minute.
               ―(DISCUSSION OFF THE RECORD)
               ―THE COURT: All right. With respect to the sentence reduction
               in this case, so the record is abundantly clear, after thinking for a
               moment about how this sentence should be reduced, I‘m going to
               go back to my original sentence reduction which is the sentence
               will remain a 20 year sentence in total, he is going to serve 9 years.
                       I‘m reducing his sentence from 10 years to serve to 9 years
               to serve. 20 year sentence, 9 years to serve, 11 years suspended
               with probation.‖

The defendant‘s motion was therefore granted; his sentence was amended to twenty years, nine

years to serve, and eleven years suspended with probation.3 A note in a case action form in the

criminal file states that ―the term to serve has been reduced by 1 year.‖ An order and a judgment

indicating the grant of the motion were entered on December 2, 2011.

       The state petitioned this Court for a writ of certiorari, which was granted; the parties were

instructed to ―address inter alia on certiorari the issue of whether a [Rule] 35 motion to reduce




3
       We pause to note that, when passing on a motion to reduce sentence, a trial justice is not
authorized to suspend any portion of the sentence that a defendant has begun serving. See G.L.
1956 § 12-19-10; State v. O‘Rourke, 463 A.2d 1328 (R.I. 1983).


                                                -5-
sentence, once denied—whether with or without prejudice—can again be brought by the

defendant and/or considered by the trial justice.‖

                                                 II

                                       Standard of Review

       The issue before this Court on appeal is whether or not the trial justice erred in granting

defendant‘s motion to reduce sentence that was heard and decided by him on May 4, 2011. After

the grant of a petition for a writ of certiorari, our review is ―limited to examining the record to

determine if an error of law has been committed.‖ Huntley v. State, 63 A.3d 526, 530 (R.I.

2013) (internal quotation marks omitted). In that regard, ―[q]uestions of law * * * are not

binding upon the [C]ourt and may be reviewed to determine what the law is and its applicability

to the facts.‖ Id. at 530–31 (internal quotation marks omitted). With respect to a review of a

trial justice‘s decision on a motion made pursuant to Rule 35, we have often stated that ―[a]

motion to reduce sentence under Rule 35 is essentially a plea for leniency.‖ See State v. Ruffner,

5 A.3d 864, 867 (R.I. 2010) (internal quotation marks omitted). Moreover, because we ―adhere[]

to a strong policy against interfering with a trial justice‘s discretion in sentencing matters,‖ our

standard of review of a trial justice‘s decision on a Rule 35 motion is ―extremely limited.‖ See

State v. Barkmeyer, 32 A.3d 950, 952 (R.I. 2011) (internal quotation marks omitted).

                                                III

                                             Analysis

                                                 A

                                    Denial Without Prejudice

       When this Court granted the state‘s petition for a writ of certiorari, we explicitly

instructed the parties to address ―the issue of whether a [Rule] 35 motion to reduce sentence,




                                               -6-
once denied—whether with or without prejudice—can again be brought by the defendant and/or

considered by the trial justice.‖ The defendant states in his prebriefing statement to this Court

that, ―[a]t the conclusion of the first hearing, [the trial justice] did not make a final determination

regarding the appropriate sentence in Mr. Keenan‘s case. * * * Instead, the motion was ‗denied

without prejudice‘ and [the trial justice] specifically stated that he would not foreclose the

possibility of hearing from [defendant] again on his request.‖ In essence, defendant asserts that

the two hearings conducted by the trial justice actually dealt with the same motion to reduce

sentence. The state, even though specifically instructed to address that issue, does not argue that

the denial without prejudice barred the second hearing. Instead, the state points (in a footnote) to

the fact that the original motion was entitled ―Motion to Preserve Rule #35 Under Rhode Island

Criminal Procedure,‖ and it asserts that defendant therefore may not have filed ―an actual Rule

35 motion‖ within the statutory time frame.

       Black‘s Law Dictionary defines ―without prejudice‖ as meaning ―Without loss of any

rights; in a way that does not harm or cancel the legal rights or privileges of a party.‖ Black‘s

Law Dictionary 1740 (9th ed. 2009). The Supreme Court of the United States has addressed the

―primary meaning‖ of that phrase, in the context of a dismissal, as a ―dismissal without barring

the plaintiff from returning later, to the same court, with the same underlying claim.‖ Semtek

International Inc. v. Lockheed Martin Corp., 531 U.S. 497, 505 (2001). The Court in Semtek

proceeded to refer to the definition of ―dismissal without prejudice‖ in the then-current edition of

Black‘s Law Dictionary as a ―dismissal that does not bar the plaintiff from refiling the lawsuit

within the applicable limitations period.‖ Id. at 505–06 (quoting with approval Black‘s Law

Dictionary 482 (7th ed. 1999)); see also Mirpuri v. ACT Manufacturing, Inc., 212 F.3d 624,

628–29 (1st Cir. 2000) (discussing the preclusive effect of a dismissal without prejudice on the




                                                 -7-
ability to file an amended complaint); State v. Johnson, 26 A.3d 59, 67–68 (Conn. 2011)

(discussing the effect of a dismissal without prejudice of pending prosecutions).

       In this case, although no order entered reflecting the dismissal, it is clear that, on October

19, 2009, the trial justice ―denied without prejudice‖ what he treated as defendant‘s Rule 35

motion to reduce sentence.4 It is equally clear that Rule 35(a) provides that the trial court ―may

reduce any sentence when a motion is filed within one hundred and twenty (120) days after the

sentence is imposed * * *.‖ However, the Rule does not allow for reduction of any sentence

(other than an illegal one) if a motion is filed beyond that time.

       At the time of the first hearing, the trial justice clearly stated that he could not find a

reason to reduce defendant‘s sentence, and he denied the motion. In our view, that October 19,

2009 denial without prejudice of defendant‘s motion to reduce sentence acted as a ruling on that

motion—there was no further action that could have been taken on that motion after that point in

time. Although, on December 10, 2010, defendant filed a ―Motion to Reduce Sentence/Assign

Pursuant to Rule 35,‖ we consider that filing to be a new motion (notwithstanding the language

contained within the text of that motion)—which filing was not made within 120 days after

sentencing.5 Because the trial justice had disposed of the initial motion on October 19, 2009,

nothing was pending before the court to assign for determination, other than the December 10,

2010 filing. Accordingly, we hold that defendant‘s motion to reduce sentence pursuant to Rule

35 was not properly before the trial court in May of 2011 and should not have been heard or

4
      We are not persuaded by the state‘s argument that defendant‘s original motion was not a
―Rule 35 Motion to Reduce Sentence‖; to so rule would be to elevate form over substance,
something that we have repeatedly refused to do. See, e.g., New Harbor Village, LLC v. Town
of New Shoreham Zoning Board of Review, 894 A.2d 901, 905 (R.I. 2006).
5
        We need not and therefore shall not address in this opinion whether a Rule 35 motion,
once denied (whether with or without prejudice) may properly be brought again by a defendant
within the 120-day period set forth in Rule 35.


                                                -8-
decided by the trial justice. Therefore, the trial justice erred in granting the motion, and the

resulting judgment is invalid.

                                                B

                                 The State’s Remaining Contentions

       Given our determination that the defendant‘s motion was not properly before the trial

court in May of 2011, we need not reach the state‘s argument that the trial justice‘s decision

denied it the benefit of its plea bargain with the defendant.6 See Grady v. Narragansett Electric

Co., 962 A.2d 34, 42 n.4 (R.I. 2009) (referring to ―our usual policy of not opining with respect to

issues about which we need not opine‖); Calise v. Curtin, 900 A.2d 1164, 1169 (R.I. 2006)

(―[W]e leave this issue for another day in another case.‖). Similarly, we need not address the

state‘s argument that the trial justice erred in reducing the defendant‘s sentence based upon his

prison deportment. See Grady, 962 A.2d at 42 n.4; Calise, 900 A.2d at 1169.

                                                IV

                                            Conclusion

       For the reasons stated in this opinion, we quash the Superior Court‘s judgment modifying

the defendant‘s term to serve. The record in this case may be remanded to the Superior Court

with our decision endorsed thereon.




6
       We note that the waiver of one‘s right to file a motion to reduce sentence (in connection
with a disposition by a plea) is not embodied in a statute or a rule of court and that that issue,
given our disposition of this case, need not be addressed.


                                               -9-
                            RHODE ISLAND SUPREME COURT CLERK’S OFFICE

                                 Clerk’s Office Order/Opinion Cover Sheet




TITLE OF CASE:        State v. Kenneth W. Keenan.

CASE NO:              No. 2011-265-M.P.
                      (P2/07-3944A)

COURT:                Supreme Court

DATE OPINION FILED: June 26, 2013

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

WRITTEN BY:           Associate Justice William P. Robinson III

SOURCE OF APPEAL:     Providence County Superior Court

JUDGE FROM LOWER COURT:

                      Associate Justice Daniel A. Procaccini

ATTORNEYS ON APPEAL:

                      For State: Aaron L. Weisman
                                 Department of Attorney General

                      For Defendant: Lara E. Montecalvo
                                     Office of the Public Defender
