                                                       Supreme Court

                                                       No. 2015-0123-C.A.
                                                       (P2/07-1875A)




        State                     :

          v.                      :

Sharif K. Fairweather.            :




    NOTICE: This opinion is subject to formal revision before
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    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. 2015-123-M.P.
                                                                     (P2/07-1875A)


                   State                       :

                     v.                        :

           Sharif K. Fairweather.              :

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

                                          OPINION

       Justice Robinson, for the Court. The defendant, Sharif K. Fairweather, seeks review of

an adjudication of a probation violation that was entered after a hearing in the Providence

County Superior Court on April 8, 2014.1 At the conclusion of that hearing, the hearing justice

found that Mr. Fairweather had violated the terms and conditions of his probation, and he

ordered him to serve seventy-two months of the seventy-eight months remaining on the

suspended sentence that he had received as a result of an earlier conviction. The defendant

contends that the hearing justice acted arbitrarily and capriciously in finding that he had violated

the terms and conditions of his probation. The defendant also challenges as “excessive” the fact

that the hearing justice executed seventy-two months of the original sentence. This case came

before the Supreme Court pursuant to an order directing the parties to appear and show cause

why the issues raised in this petition should not be summarily decided. After a close review of

the record and careful consideration of the parties’ arguments (both written and oral), we are




1
        This case is before us pursuant to this Court’s having granted defendant’s petition for a
writ of certiorari on May 28, 2015.
                                               -1-
satisfied that cause has not been shown and that the issues raised in this petition may be decided

at this time.

        For the reasons set forth in this opinion, we quash the writ and affirm the judgment of the

Superior Court.

                                                 I

                                        Facts and Travel

        On February 19, 2008, a judgment entered sentencing defendant to a seven-year

suspended sentence with probation, after he had pled nolo contendere to one count of breaking

and entering a dwelling. Subsequently, on June 29, 2012, after defendant had been found to be

in violation of his probation, a judgment entered sentencing him to six months to serve, leaving

seventy-eight months of his suspended sentence remaining. The defendant was still on probation

on March 21 and 22, 2014, which is when the events at issue in this case transpired.

        On March 24, 2014, the state filed a notice of probation violation pursuant to Rule 32(f)

of the Superior Court Rules of Criminal Procedure alleging that defendant had failed to comply

with a condition of his probation by “fail[ing] to keep the peace and be of good behavior;” it is

that notice of probation violation that gave rise to the instant case.      On April 8, 2014, a

probation-violation hearing was held in the Superior Court. We recount below the salient

aspects of that hearing.

                                                A

                              The Testimony of Clarissa Randall

        Clarissa Randall testified that in March of 2014 she and Sharif Fairweather were

“boyfriend and girlfriend” and she was “about seven months” pregnant with his child. She stated

that, around 5:00 p.m. on what would have been March 21, she went to the house on Rhodes



                                               -2-
Street in Providence which was the residence of Mr. Fairweather, whom she had not seen for

over a month. She said that, after she arrived, defendant “came upstairs, greeted [her] for a few

minutes, [and] went back downstairs,” while she remained upstairs in his bedroom, where she

stayed until about 8:30 or 9:00 when she went down to the kitchen to prepare some food. Ms.

Randall further testified that defendant came into the kitchen in order to “check[]” on her and

stayed for fifteen minutes. She stated that, after the food was prepared, she returned upstairs to

eat it and then went to sleep.

       Ms. Randall testified that, around 3:00 a.m. on the next morning, she was awakened by

defendant, who was yelling; she described him as being “intoxicated.” She stated that she told

defendant that she was going to go home if he was going to argue with her. She added that

defendant “got mad” and that she told him that she was leaving; she stated that he then grabbed

her by her neck and slammed her into the wall. She said that she hit her head and her back

against the wall and felt pain in her neck and in her lower back. She further testified that

defendant picked up a knife and told her that he would kill her, causing her to feel threatened.

Ms. Randall testified that she then left the house, walked to the corner of the street, and called

the police, who met her at that corner. She said that she told an officer that she had hurt her back

and head; she added that a rescue vehicle was called to transport her to the hospital.

       On cross-examination, Ms. Randall testified that, shortly after she arrived at the Rhodes

Street house, she encountered a woman named “Elaine,” who told her that, on an earlier day, a

woman who was a potential tenant had come to the house to look at a room and that defendant

“was trying to help the [woman] to get into the place.”




                                                -3-
                                                 B

                            The Testimony of Officer Joseph Pineau

       Joseph Pineau, an officer in the Providence Police Department, testified that, on March

22, he was instructed to report to a domestic disturbance and that, while he was en route, he was

“flagged down” by a female, who he came to learn was Ms. Randall. He stated that Ms. Randall

told him what had happened and that a rescue vehicle was called to transport her to the hospital.

       Officer Pineau further testified that he, along with two other officers, went to the Rhodes

Street house, where he and one of the other officers arrested defendant. Officer Pineau stated

that, in the course of being arrested, defendant was “pull[ing] away” and was “cussing [the

officers], telling [them] that he was going to * * * assault [them].”

       On cross-examination, Officer Pineau stated that he “could not [one] hundred percent say

that [defendant] was intoxicated” at the time in question. Officer Pineau also acknowledged on

cross-examination that, in a “Providence Incident Report” prepared after he had gone to the

hospital to inquire about Ms. Randall, he had indicated that Ms. Randall’s injuries were “non-

conclusive.”

                                                 C

                              The Testimony of Sharif Fairweather

       Mr. Fairweather testified that, after Ms. Randall arrived at the Rhodes Street house, they

watched television together in his room for a short time. He testified that she then went

downstairs to prepare food and that he eventually went downstairs for two or three minutes in

order to “check on” her. He testified that he then returned upstairs to finish watching a movie

and that he thereafter went back downstairs to JB’s room. (JB was a friend of defendant who

lived on the first floor of the Rhodes Street house.)



                                                -4-
         The defendant further testified that he did not see Ms. Randall again until he returned to

his bedroom a “few hours” later, at which point, she “got mad” and pointed out that she had been

at the house for seven hours while defendant had been with his friends and not with her. It was

his testimony, however, that he had spent two to three hours with Ms. Randall out of the seven

hours.

         Mr. Fairweather testified that a woman named Elaine (who he said was JB’s wife and

who “stay[ed]” with JB at the Rhodes Street house) had told Ms. Randall “something about a girl

moving in [to the Rhodes Street house].” He stated that he told Ms. Randall that he “didn’t try to

have [the woman] moved in;” he added that he told Ms. Randall that a friend of his had

introduced the woman at issue to JB, who “was telling her about the room.” The defendant said

that there ensued a “heated argument” between Ms. Randall and him with respect to the female

potential tenant.

         The defendant testified that he had never: “put [his] hand around Ms. Randall’s throat;”

“rip[ped] her off the bed;” “[thrown] her against the wall;” “possess[ed] a steak knife;” or “[held]

a steak knife in a threatening manner toward Ms. Randall.” He said that their argument never

became “physical.” He also asserted that she had “said what she said” as a reaction to his

suggestion that they should end their relationship; he added that she reacted to that suggestion by

getting “mad” and that she then “ripped [his] ring off, threw it on the floor, [and] walked out the

door.” The defendant testified that, after the argument with Ms. Randall, he went downstairs for

a while and that, when he returned to the bedroom, Ms. Randall was no longer there.




                                                -5-
                                                D

                                The Hearing Justice’s Decision

       In his bench decision, the hearing justice began by reviewing the testimony of each of the

witnesses. He stated that he was “impressed by Ms. Randall,” who he said had been “forthright

in testifying about the events that occurred that night.” He noted that she appeared to be a “good

person in the sense [that] she didn’t seem to have any axe to grind or she didn’t seem to have any

motive of getting even.”    He further noted that there was no variance between her direct

testimony and her testimony on cross-examination; he found her to be credible. The hearing

justice also found Officer Pineau to be credible. In contrast, the hearing justice noted that

defendant was unable to “keep his story straight, even between direct examination and cross-

examination as to what actually happened * * *.” He also stated that defendant had a “motive to

lie and to paint the most favorable picture * * *.” In view of these findings, the hearing justice

found that Mr. Fairweather had violated his probation as he had “failed to keep the peace and be

of good behavior on or about March 22, 2014 * * *.” He specifically pointed to defendant’s

actions in “assaulting Ms. Clarissa Randall and also [in] resisting arrest and being disorderly

with the police * * *.”

       After hearing argument from counsel with respect to sentencing, the hearing justice

reviewed defendant’s record, taking note of (inter alia) the crime for which he had received the

seven-year suspended sentence in 2008. The hearing justice indicated that the record reflected

that, since receiving that suspended sentence, defendant had been presented as a probation

violator on numerous occasions as a result of assaults that he had committed—“particularly on

women with whom he’s in a relationship or had a relationship.” The hearing justice twice

alluded to one particular instance, in which a woman with whom defendant had been in a



                                              -6-
relationship was found with “visible bruises and abrasions and contusions about her face,” which

the woman said were the result of defendant having assaulted her. The hearing justice further

noted that defendant had received “lenient treatment throughout the course of his criminal

career” and that the “little punishment” that had been meted out to him had not “in any way,

shape, or form deterred Mr. Fairweather, because he continues to engage in this type of behavior

* * *.” The hearing justice did recognize that at one point in time there had been a “hiatus” in

defendant’s criminal activity; but he added that he did not know whether that “hiatus” was the

result of defendant staying “out of trouble” or of not being “caught as he had been in the past.”

The hearing justice stated that he could “only draw one conclusion”—namely, that defendant

“cannot comport himself within the confines of the law or keep the peace and be of good

behavior.” Consequently, the hearing justice ordered defendant to serve seventy-two months of

the seventy-eight months remaining on his previously imposed suspended sentence with the

balance of six months remaining suspended with probation.           Thereafter, defendant filed a

petition for a writ of certiorari, which this Court granted.

                                                  II

                                        Standard of Review

       It is well established that the sole issue for the court to consider at a probation-violation

hearing is “whether or not the defendant has breached a condition of his or her probation by

failing to keep the peace or remain on good behavior.” State v. Ditren, 126 A.3d 414, 418 (R.I.

2015) (internal quotation marks omitted); see State v. Prout, 116 A.3d 196, 202 (R.I. 2015).

Additionally, the state’s burden of proof at a probation-violation hearing is “much lower than

that which exists in a criminal trial[:] the state need only show that reasonably satisfactory

evidence supports a finding that the defendant has violated his or her probation.” State v.



                                                 -7-
Washington, 42 A.3d 1265, 1271 (R.I. 2012) (internal quotation marks omitted); see State v.

Beaudoin, No. 2012-325-C.A., 2016 WL 1637813 at *4 (R.I. April 26, 2016).

       We have stated that in “determining whether or not a defendant has committed a

probation violation, the hearing justice is charged with weighing the evidence and assessing the

credibility of the witnesses.” Ditren, 126 A.3d at 418 (internal quotation marks omitted); see

State v. Raso, 80 A.3d 33, 42 (R.I. 2013).2 We have further stated that deference should be

accorded to “the assessment of the credibility of witnesses made by a judicial officer who has

had the opportunity to listen to live testimony and to observe demeanor.” Washington, 42 A.3d

at 1271 (internal quotation marks omitted); see State v. Gibson, 126 A.3d 427, 431 (R.I. 2015);

State v. Jensen, 40 A.3d 771, 778 (R.I. 2012).

       This Court’s review of a finding of probation violation is “limited to considering whether

the hearing justice acted arbitrarily or capriciously in finding a violation.” Prout, 116 A.3d at

202 (internal quotation marks omitted); see Gibson, 126 A.3d at 431.




2
        We have spoken as follows with respect to the nature of our review of a hearing justice’s
credibility determination in the context of a probation-violation hearing:

              “When * * * an inquiry as to whether defendant [has] violated his
              probation turns on a determination of credibility, and after
              considering all the evidence, the hearing justice accepts one
              version of events for plausible reasons stated and rationally rejects
              another version, this Court can safely conclude that the hearing
              justice did not act unreasonably or arbitrarily in finding that a
              probation violation has occurred.” State v. Shepard, 33 A.3d 158,
              164 (R.I. 2011) (internal quotation marks omitted).
                                                 -8-
                                                III

                                            Analysis

                                                A

                             The Finding of a Probation Violation

       The defendant contends that the hearing justice erred in finding that he had violated the

conditions of his probation. More specifically, he contends that the “hearing justice acted

arbitrarily and capriciously in finding a violation solely based mainly on Clarissa Randall’s

testimony which was uncorroborated in the record and was motivated by jealousy and bias.” In

defendant’s view, Ms. Randall was “jealous and demoralized” due to his “essentially ignor[ing]”

her on March 21, which he contends gave her reason to “fabricate an allegation against [him].”

He also points to the following facts as showing that the hearing justice’s credibility assessment

of Ms. Randall was “unsupportable:” (1) the fact that she claimed that defendant was intoxicated

when the March 22 scene took place, whereas defendant asserts that Officer Pineau testified that

he did not see signs of intoxication; (2) the fact that she testified that the assault by defendant

was physically violent, whereas “no police officers or hospital workers saw injuries on her

body;” and (3) the fact that she asserted that defendant threatened her with a steak knife, but, as

defendant alleges, “the officers did not check to see if there was one present in [his] room.” The

defendant also contends that the hearing justice’s assessment of defendant’s “version of events

was little more than cursory.”     Finally, defendant contends that the “hearing justice acted

arbitrarily and capriciously when he found that [defendant] failed to be of good behavior in his

encounter with the Providence police because [his] conduct did not rise to the level of failure to

keep the peace.”




                                               -9-
       The record reflects that the hearing justice scrutinized Ms. Randall’s testimony, assessed

her credibility, and ultimately accepted her version of events. See Ditren, 126 A.3d at 418. The

hearing justice found her to be “credible” and “forthright in testifying about the events that

occurred that night.” He noted that her testimony did not vary between direct examination and

cross-examination, and he commented that she appeared to be a “good person in the sense [that]

she didn’t seem to have any axe to grind or she didn’t seem to have any motive of getting

even * * *.” After scrutinizing the record, we are unable to say that the hearing justice lacked

plausible reasons for accepting Ms. Randall’s version of events. See State v. Shepard, 33 A.3d

158, 164 (R.I. 2011).

       We perceive no merit in defendant’s contention that the hearing justice’s credibility

determination was “unsupportable” due, in part, to the fact that Ms. Randall testified that

defendant was “intoxicated,” whereas, according to defendant, Officer Pineau testified that he

did not observe signs of intoxication in defendant. We note that, even if the testimony of these

two witnesses was inconsistent, “it would not preclude a determination that the witnesses were

credible.” State v. Lopez, 129 A.3d 77, 85 (R.I. 2016); see Jensen, 40 A.3d at 781. Moreover,

Officer Pineau did not testify that Mr. Fairweather was not intoxicated, but rather that he “could

not [one] hundred percent say that [defendant] was intoxicated * * *.” We similarly find

meritless defendant’s contention that Ms. Randall’s credibility is undermined by the fact that,

although she stated that he was physically violent towards her, “no police officers or hospital

workers saw injuries on her body * * *.”         Not every act of physical violence results in

perceptible injuries. We also note that, while Officer Pineau testified at the hearing that he had

stated in a “Providence Incident Report” that Ms. Randall’s injuries were “non-conclusive,” the

text of the report itself actually states that Ms. Randall’s injuries “were not conclusively known



                                              - 10 -
at the time of th[e] report.” Likewise, we are not persuaded by defendant’s contention that the

hearing justice’s determination that Ms. Randall was credible is undermined by the fact that the

police did not find the knife that she said defendant held during the events in question. We note

that Officer Pineau’s report states that defendant had “refused to give Police access” to his

second-floor apartment.

       The hearing justice also reviewed Mr. Fairweather’s testimony and assessed his

credibility. See Ditren, 126 A.3d at 418. In contrast to the hearing justice’s determination with

respect to the credibility of Ms. Randall, the hearing justice noted that defendant had a “motive

to lie and to paint the most favorable picture * * *.” He further noted that defendant seemed

unable to “keep his story straight, even between direct examination and cross-examination as to

what actually happened * * *.” It is our view that the hearing justice’s rejection of defendant’s

version of the events was by no means irrational. See Shepard, 33 A.3d at 164.

       After a careful review of the record, it is clear that the hearing justice had plausible

reasons to accept Ms. Randall’s version of the events and to reject defendant’s version; in our

judgment, the hearing justice’s findings were more than sufficient to constitute a basis for

concluding that defendant had not kept the peace and been of good behavior. See id. at 165. We

perceive no basis for holding that the hearing justice acted arbitrarily or capriciously in

determining that defendant had violated the terms and conditions of his probation.

       Given our conclusion that the hearing justice did not act arbitrarily or capriciously in

determining that defendant had violated the terms and conditions of his probation in view of his

interactions with Ms. Randall, we need not reach the issue of whether his subsequent interactions

with the police would also have provided a sufficient basis for such a determination.




                                              - 11 -
                                                 B

                             The Hearing Justice’s Further Ruling

       The defendant contends that the sentence meted out to him by the hearing justice was

“excessive;” he further contends that the “hearing justice erred when he sentenced [him] based

on considerations unrelated to his original offense * * *.” In particular, defendant points to the

fact that, in his view, the “hearing justice was swayed by a previous unrelated [Rule] 32(f)

presentment regarding a case not before him, which he referenced twice in his sentencing.”

Additionally, defendant points to the fact that the hearing justice “looked to the thickness of [his]

file” and noted the “lenient treatment” that defendant had previously received as a factor in his

decision to execute seventy-two months of defendant’s suspended sentence. The defendant

further contends that the “hearing justice neglected to consider * * * that the vast majority of Mr.

Fairweather’s charges on the ‘Criminal History Record’ attached by the state to the [Rule] 32(f)

package were from 1997 or before * * *.”

       It is well established that a hearing justice has “wide discretion to determine whether to

execute any or all of a defendant’s previously suspended sentence.”            State v. McKinnon-

Conneally, 101 A.3d 875, 879 (R.I. 2014); see State v. Roberts, 59 A.3d 693, 697 (R.I. 2013).

This Court’s “review of a probation-violation sentence is for an abuse of discretion only.”

McKinnon-Conneally, 101 A.3d at 879.

       We recognize that the hearing justice did consider defendant’s criminal record and

previous Rule 32(f) presentments—with particular attention to one of those. With respect to

defendant’s contacts with the criminal justice system, the hearing justice stated that the court

could “only draw one conclusion, and that is that [defendant] cannot comport himself within the

confines of the law or keep the peace and be of good behavior * * *.” The hearing justice further



                                               - 12 -
stated that the “lenient treatment” defendant had received in the past had “not in any, way, shape,

or form deterred Mr. Fairweather, because he continues to engage in this type of behavior * * *.”

In our view, the hearing justice did not abuse his discretion in considering defendant’s prior

record as it relates to his ability to be rehabilitated, which is a factor to be considered in

sentencing. See Shepard, 33 A.3d at 165-66; State v. Jackson, 966 A.2d 1225, 1230 (R.I. 2009);

State v. Sylvia, 871 A.2d 954, 958-59 (R.I. 2005) (per curiam); State v. Wisehart, 569 A.2d 434,

437 (R.I. 1990).

       Furthermore, in spite of defendant’s argument to the contrary, the record indicates that, in

determining defendant’s sentence, the hearing justice did consider the fact that the majority of

defendant’s prior incidents at issue had occurred in 1997 or before. The hearing justice explicitly

stated that there had been a “hiatus” in defendant’s criminal activity.

       It is clear to us that, after adjudicating the defendant to be a violator, the hearing justice

did not abuse his discretion in fashioning the defendant’s sentence.         The hearing justice’s

execution of seventy-two months of the defendant’s suspended sentence was not “excessive” and

did not constitute an abuse of discretion. See McKinnon-Conneally, 101 A.3d at 879-80. After

reviewing the record, it is our view that the hearing justice properly considered the defendant’s

lack of amenability to rehabilitation and did in fact recognize that the majority of the defendant’s

prior offenses had taken place at an earlier time before fashioning the defendant’s sentence.

                                                 IV

                                            Conclusion

       For the reasons set forth in this opinion, we quash the writ and affirm the judgment of the

Superior Court. We remand this case to the Superior Court with our decision endorsed thereon.




                                               - 13 -
                                 RHODE ISLAND SUPREME COURT CLERK’S
                                               OFFICE

                                 Clerk’s Office Order/Opinion Cover Sheet




TITLE OF CASE:        State v. Sharif K. Fairweather.

CASE NO:              No. 2015-123-C.A.
                      (P2/07-1875A)

COURT:                Supreme Court

DATE OPINION FILED: June 3, 2016

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 Stephen P. Nugent

ATTORNEYS ON APPEAL:

                      For State: Lauren S. Zurier
                                 Department of Attorney General

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

                                       Hayley Hutchins
                                       Rule 9 Student Attorney
