May 3, 2017




                                                         Supreme Court

                                                         No. 2013-203-M.P.
                                                         (P1/82-500A)


              State                    :

               v.                      :

        Anthony Parrillo.              :




       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. 2013-203-M.P.
                                                                    (P1/82-500A)
                                                                    (Dissent begins on page 18)

                     State                       :

                       v.                        :

               Anthony Parrillo.                 :


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

                                     OPINION

       Chief Justice Suttell, for the Court. This Court issued a writ of certiorari to

review a Superior Court order denying the state’s request to adjudge Anthony Parrillo a

probation violator. The hearing justice’s decision to deny the state’s request was based

upon his finding that Parrillo was no longer on probation at the time that he allegedly

committed the offense of felony assault. For the reasons set forth in this opinion, we

vacate the order of the Superior Court and remand the case for further proceedings.

                                             I

                             Facts and Procedural History

       The pertinent facts in this case are not in dispute. In March 1982, Parrillo was

charged with two separate counts of murder. Later that year, a Superior Court jury found

him guilty of murder in the first degree on count 1 of the indictment and guilty of murder

in the second degree on count 2 of the indictment. Parrillo appealed to this Court, and in

1984 we vacated the judgment of conviction. State v. Parillo, 480 A.2d 1349, 1359 (R.I.




                                           -1-
1984).1 The case was remanded to the Superior Court where, on January 21, 1986,

Parrillo pled guilty to two counts of second-degree murder.        Significantly, per the

judgment of conviction and commitment, he was sentenced to thirty years, the first

twenty years to serve with “the remaining 10 years * * * suspended, probation for 10

years, said probation to commence upon [Parrillo’s] release from the [Adult Correctional

Institutions (ACI)], each count concurrent.”2

       On December 22, 1993, after receiving what appear to be credits for time served

pursuant to G.L. 1956 § 12-19-23 and for good behavior pursuant to G.L. 1956 § 42-56-

24,4 Parrillo was released from the ACI on parole. According to an affidavit by Parrillo,



1
  Although the 1984 case caption was spelled State v. Parillo, Parrillo appears to be the
correct spelling and is used herein.
2
  A transcript of the sentencing hearing was not before the Superior Court at the
probation violation hearing, nor is one before this Court.
3
  General Laws 1956 § 12-19-2(a) provides, in relevant part, that “if the punishment to be
imposed is imprisonment, the sentence or sentences imposed shall be reduced by the
number of days spent in confinement while awaiting trial and while awaiting sentencing
* * *.”
4
  General Laws 1956 § 42-56-24, as amended by P.L. 1976, ch. 290, § 1, in effect in 1986
provided:
                “The assistant director of adult services shall keep a record
                of the conduct of each prisoner, and for each month that a
                prisoner who has been sentenced to imprisonment for six
                (6) months or more and not under sentence to
                imprisonment for life appears by such record to have
                faithfully observed all the rules and requirements of the
                institutions and not to have been subjected to discipline,
                there shall, with the consent of the director of the
                department of corrections or his designee, upon
                recommendation to him [or her] by the assistant director of
                adult services be deducted from the term or terms of
                sentence of such prisoner the same number of days that
                there are years in the said term of his [or her] sentence;
                provided that when the sentence is for a longer term than
                ten (10) years, only ten (10) days shall be deducted for one
                (1) month’s good behavior; and provided, further, that in
                the case of sentences of at least six (6) months and less than


                                           -2-
on or about October 25, 1999, he was advised by his parole officer that his parole was

terminated and that his ten-year term of probation began as of that date. Ten years passed

without incident, and the Department of Corrections (DOC) informed Parrillo, in writing,

that his “file ha[d] expired on [October 24, 2009,]” and that “[a]ccording to available

records as of [that] date, [his] probation ha[d] been terminated * * *.” This information

was conveyed in a letter, dated December 14, 2009, under the letterhead of the “Adult

Probation and Parole” unit of the DOC and signed by Donna Broccoli, “[a]dministrative

[o]fficer” (2009 letter). Parrillo thereafter had no contact with the probation department.

       On December 17, 2011, Parrillo was arrested as a result of a physical altercation

that occurred at Club 295, a nightclub located on Atwells Avenue in Providence (2011



               one (1) year, one (1) day per month shall be so deducted;
               and provided, further, that for purposes of computing the
               number of days to be deducted for good behavior,
               consecutive sentences shall be counted as a whole sentence;
               and provided, further, that for every day a prisoner shall be
               shut up or otherwise disciplined for bad conduct, as
               determined by the assistant director of adult services
               subject to the authority of the director, there shall be
               deducted one (1) day from the time he [or she] shall have
               gained for good conduct; and provided, further, that the
               assistant director of adult services subject to the authority
               of the director, shall have the power to restore such lost
               good conduct time in whole or in part upon a showing by
               the prisoner of subsequent good behavior and disposition to
               reform; and provided, further, for each month that a
               prisoner who has been sentenced to imprisonment for six
               (6) months or more and not under sentence to
               imprisonment for life who has faithfully engaged in
               institutional industries there shall, with the consent of the
               director, upon the recommendations to him [or her] of the
               assistant director of adult services be deducted from the
               term or terms of sentence of such prisoner an additional
               two (2) days a month. Said two (2) days a month shall be
               deducted regardless of the length of the sentence of said
               prisoner.”


                                            -3-
incident). He was later charged with two counts of felony assault, conspiracy to commit

felony assault, and simple assault as a result of the 2011 incident.5 In addition, on

January 9, 2012, the state filed a probation violation report pursuant to Rule 32(f) of the

Superior Court Rules of Criminal Procedure.6 The state maintained that Parrillo had

failed to “keep the peace and be of good behavior” and that, as a consequence, he should

be adjudged a violator.

       Parrillo objected to the state’s Rule 32(f) violation report and filed a request to be

discharged from probation, to which the state objected. He sought a dismissal of the Rule

32(f) violation report on the grounds that “he was no longer on probation at the time of

either the alleged conduct or the filing of the violation notice, but instead that his

probation expired some time before that.” Parrillo attested that he “believed that [his]

probation should have ended at the earliest on December 20, 2003, but in any event [he]



5
  After a jury-waived trial before a Superior Court justice, Parrillo was convicted of
aiding and abetting one felony assault and of misdemeanor assault. The other felony
assault and the conspiracy counts were dismissed. A notice of appeal was filed on April
19, 2016.
6
  At the time, Rule 32(f) of the Superior Court Rules of Criminal Procedure provided
that:
                “The court shall not revoke probation or revoke a
                suspension of sentence or impose a sentence previously
                deferred except after a hearing at which the defendant shall
                be afforded the opportunity to be present and apprised of
                the grounds on which such action is proposed. The
                defendant may be admitted to bail pending such hearing.
                Prior to the hearing the State shall furnish the defendant
                and the court with a written statement specifying the
                grounds upon which action is sought under this
                subdivision.”
In 2016, Rule 32(f) was amended to include that “[n]o revocation shall occur unless the
[s]tate establishes by a fair preponderance of the evidence that the defendant breached a
condition of his/her probation or deferred sentence or failed to keep the peace or remain
on good behavior.”



                                           -4-
was not on probation after October 24, 2009,” and that he “conducted [him]self at all

times as though [he] was not on probation.” He claimed that he had relied on the

language used by the sentencing justice, i.e., that his ten-year probationary term would

“commence upon [his] release from the ACI,”           in addition to the DOC letter that

informed him that his probation had terminated on October 24, 2009—ten years after his

release from parole. He also argued, seemingly in the alternative, that the state should be

barred from seeking to revoke his probation because to hold otherwise would constitute a

violation of his due-process rights.

        A violation hearing was held on November 2, 2012, at which time Parrillo argued

that he was not “subject to being violated because his probation ha[d] already terminated”

in 2009. He maintained that it was “inconceivable” that the state could inform Parrillo

that his probation had ended, and then, years later, attempt to adjudge him a probation

violator.   In response, the state maintained its position that Parrillo was in fact on

probation at the time of the 2011 incident. Specifically, the state claimed that Parrillo’s

thirty-year sentence in 1986 meant that he would “finish serving the full term of his

sentence on January 22, 2016.”

        The hearing justice disagreed with the state and quashed the Rule 32(f) violation

report. The hearing justice rejected Parrillo’s argument that the doctrine of equitable

estoppel barred the state from seeking to adjudge him a violator, reasoning that “the

probation officer had no authority to modify [the sentence],” and that it was “absurd to

even attempt to apply the detrimental reliance [analysis] in the context of the facts of this

case.” However, the hearing justice held that the language of § 12-19-8 was clear in that

it granted the sentencing justice the authority to set the period of probation. Therefore, he




                                            -5-
concluded that the sentencing justice’s specification that probation would “commence

upon [Parrillo’s] release from the ACI” should be given effect.7          An order entered

denying the state’s request that Parrillo be adjudged a probation violator.

       The state subsequently filed a motion to reconsider and, on April 5, 2013, its

motion was heard.8 The hearing justice explained that his decision to deny and dismiss

the Rule 32(f) violation report was based on what he felt was “the only evidence of the

intent of the sentencing judge”—the clear language of the judgment of conviction that

articulated that the probationary term would “commence upon [Parrillo’s] release from

the ACI.” The hearing justice further explained that “[t]he [sentencing] judge could have

sentenced [Parrillo] to 30 years, 20 to serve, with the balance of the term suspended and

[Parrillo] placed on probation for that period of time[,] [but] [h]e did not.” Therefore, the

hearing justice denied the state’s motion to reconsider.       The state thereafter filed a

petition for a writ of certiorari, which this Court granted on May 27, 2014.

                                             II

                                   Standard of Review

       “This Court’s review ‘on writ of certiorari 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) (quoting State v. Shepard, 33 A.3d 158, 163 (R.I. 2011)). “Questions 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 (quoting Shepard, 33 A.3d at 163). “We

7
  The hearing justice did not specify if, in his view, the probation began upon Parrillo’s
release from the ACI or upon his completion of parole, but the hearing justice did find
that regardless of the operative date, at the time of the 2011 incident, Parrillo was not on
probation.
8
  We agree with the hearing justice that our Superior Court Rules of Criminal Procedure
provide no avenue for such a motion. Nevertheless, the hearing justice entertained the
motion.


                                            -6-
reverse only when we find pursuant to the petition that the [hearing justice] committed an

error of law.” Id. (quoting Shepard, 33 A.3d at 163). On certiorari, “[w]e do not weigh

the evidence.” Kedy v. A.W. Chesterton Co., 946 A.2d 1171, 1177 (R.I. 2008). “If

legally competent evidence exists to support th[e] determination, we will affirm it unless

one or more errors of law have so infected the validity of the proceedings as to warrant

reversal.” Id. (quoting Cullen v. Town Council of Lincoln, 893 A.2d 239, 244 (R.I.

2006)).

                                             III

                                         Discussion

          We first address the question of whether, as a matter of law, Parrillo was on

probation at the time of the 2011 incident. To do so, we must delve into the governing

statutory provisions and our jurisprudence interpreting such provisions, most recently

pronounced in Rose v. State, 92 A.3d 903 (R.I. 2014).            If Parrillo was indeed on

probation at that time, then we must determine if the hearing justice committed an error

of law in rejecting Parrillo’s equitable estoppel defense against the state.

                                              A

                             Parrillo’s Thirty-Year Sentence

          The determination of whether Parrillo was on probation at the time of the 2011

incident turns on the application and interplay of several statutory provisions, the first of

which is § 12-19-8. Section 12-19-8(a) provides, in relevant part, that the sentencing

court “may impose a sentence and suspend the execution of the sentence, in whole or in

part, or place the defendant on probation without the imposition of a suspended

sentence[,]” and that such “suspension shall place the defendant on probation for the time




                                             -7-
and on any terms and conditions that the court may fix.” We have interpreted § 12-19-8

as granting a sentencing justice a wide range of discretion when imposing a sentence so

long as that sentence does not conflict with any other statutory provision. See Rose, 92

A.3d at 909. Next at play are §§ 42-56-24 and 12-19-2(a). Section 42-56-24 authorizes

the DOC to mitigate a defendant’s sentence by rewarding a prisoner’s good behavior and

industriousness with credits towards his or her sentence (herein, good-time credits);

meanwhile, § 12-19-2(a) requires that “if the punishment to be imposed [at sentencing] is

imprisonment, the sentence or sentences imposed shall be reduced by the number of days

spent in confinement while awaiting trial and while awaiting sentencing” (herein, time-

served credit). This Court’s recent decision in Rose, 92 A.3d at 907-13, dealt with the

interplay of these statutory provisions in light of a mandatory-minimum sentence.

       In Rose, 92 A.3d at 907, this Court was tasked with deciding “[w]hat effect, if

any, [did the defendant’s] credits for (1) good time and (2) time served have on the total

length of his sentence[.]” Alexander Rose (Rose) had pled nolo contendere to one count

of first-degree child molestation and was sentenced to twenty years—the mandatory

minimum at that time pursuant to G.L. 1956 § 11-37-8.2.9 Rose, 92 A.3d at 905. At the

sentencing hearing, the Superior Court justice stated that: “the defendant [was] sentenced

to 20 years at the ACI, eight years to serve, credit retroactive to December 23, 1992, the

balance, 12 years, suspended, and upon release the defendant is placed on 12 years

probation.” Id. Rose was subsequently released from the ACI on parole on December 17,

1997, as a result of receiving time-served and good-behavior credits. Id. at 905-06. In

July 1999, Rose completed his parole without incident and, in 2010, he filed a petition for

9
 General Laws 1956 § 11-37-8.2 has since then been amended to a twenty-five-year
mandatory minimum sentence. See P.L. 2006, ch. 206, § 3.


                                           -8-
a writ of habeas corpus and an application for post-conviction relief—specifically

requesting to be discharged from probation. Id. at 906.           Rose asserted that his

probationary period ended in July 2011—twelve years after his successful completion of

parole.10 Rose relied on the sentencing justice’s assertion at sentencing that his twelve-

year probationary term would commence “upon release” from the ACI. Id. at 908.

       In our opinion affirming the dismissal of Rose’s petition, this Court analyzed the

language of § 42-56-24’s good-time credits. Rose, 92 A.3d at 907-11. We held that the

plain language of the good-time-credit statute suggested that the “only form of mitigation

contemplated in that provision [was] a reduction of the amount of time that a defendant

must spend incarcerated.” Id. at 908. Thus, any mitigation of Rose’s sentence under §

42-56-24 did not change or reduce his twenty-year sentence, but instead reduced the time

that he would be confined at the ACI. See Rose, 92 A.3d at 908. In response to Rose’s

argument that he relied on the statements made by the sentencing justice that he would be

on probation for twelve years “upon release from the ACI,” we acknowledged that:

              “Although we have previously interpreted § 12-19-8 as
              affording a trial justice the discretion to determine when a
              prisoner’s term of probation will commence, * * * we have
              also held that a sentencing justice’s pronouncement about
              the commencement of probation will not be given effect to
              the extent that it conflicts with another statutory provision.
                 “* * * [W]e conclude[d] that there [was] no authority
              which would allow the sentencing justice’s words to
              effectively reduce the total length of Rose’s sentence below
              the mandatory minimum.” Rose, 92 A.3d at 908, 909.

       In analyzing time-served credits pursuant to § 12-19-2(a), we held that although

Rose “intellectualized [his] situation differently than the defendant” in State v.

10
  In his filings, Rose had also argued that his probation ended on December 17, 2009—
twelve years after the date of his release from the ACI on parole. Rose v. State, 92 A.3d
903, 906 (R.I. 2014). At oral argument, he abandoned this position. Id. at 907.


                                          -9-
Bergevine, 883 A.2d 1158 (R.I. 2005) (mem.), in essence Rose sought the same outcome

that this Court rejected in Bergevine, i.e.,—that Rose’s probation start and end date be

dated back due to the fifteen-month credit that he received for time served. Rose, 92 A.3d

at 912. In Bergevine, we decisively rejected the defendant’s argument that he was not on

probation at the time of an alleged probation violation because the approximate nine-

month time-served credit made his ten-year sentence, including his probation, retroactive.

Bergevine, 883 A.2d at 1158-59. Accordingly, we concluded in Rose, as had the hearing

justice, that “neither Rose’s credits for good time nor his credits for time served entitled

him to an acceleration of the end date of his probationary term.” Rose, 92 A.3d at 912.

       In the case under review, the state argues that this Court should apply Rose and,

in view of its holding, reverse the hearing justice’s decision and his finding that Parrillo

was not on probation at the time of the 2011 incident. The state also argues that any

attempt to distinguish Rose from this case lacks merit.     In response, and in support of

Parrillo’s assertion that he was not on probation at the time of the 2011 incident, Parrillo

raises three key arguments. First, he argues that Rose is inapplicable to his case, as Rose

relied heavily on State v. Jacques, 554 A.2d 193 (R.I. 1989),11 and State v. Dantzler, 690

A.2d 338 (R.I. 1997),12 two cases that were decided after Parrillo’s 1986 sentencing.

Second, Parrillo argues that even if Rose is applicable, it is distinguishable from his case,

as Rose dealt with a mandatory minimum sentence and whether the words of a sentencing

justice, together with both the defendant’s good-time and time-served credits, could in

11
    In State v. Jacques, 554 A.2d 193, 196 (R.I. 1989), we first announced that a
probationary period began at imposition of a sentence, even if that meant at the
commencement of incarceration.
12
   In State v. Dantzler, 690 A.2d 338, 341-42 (R.I. 1997), we held that the trial court
could revoke a probationary term on the basis of criminal acts committed after imposition
of sentence but before the actual probationary portion of sentence commenced.


                                           - 10 -
effect lower the defendant’s sentence to less than the statutory minimum. However, here,

Parrillo argues that, unlike Rose, “there was no possibility that the combined length of

[the] time [he] will spend incarcerated and on probation will fall below [the minimum

mandatory term] if the sentencing justice’s words ‘upon release’ are allowed to control.”

Lastly, Parrillo argues that principles of estoppel apply as a matter of due process, barring

the state from seeking to adjudge him a probation violator.

       Rose is central to our analysis of the state’s petition and to our application of

good-time credits, time-served credits, and § 12-19-8 to this case. Here, Parrillo, like

Rose, claims that the sentencing justice’s pronouncement that his probationary term was

to begin “upon [his] release from the ACI” is binding pursuant to the authority granted to

a sentencing justice, implying that the clock on his probationary term should have started

ticking when he either was released on parole or had successfully completed parole. We

reject, however, Parrillo’s contention that Rose does not apply because it was predicated

on two decisions decided after he was sentenced. It is well established that a judicial

interpretation of a statute “relates back” to the date the statute was enacted and, unlike

legislative action, does not implicate ex post facto considerations. State v. Barber, 767

A.2d 78, 79-80 (R.I. 2001) (rejecting the defendant’s contention that Dantzler and

Jacques were inapplicable to his case because they were decided after he was sentenced).

       Moreover, this Court appreciates that here, unlike in Rose, if Parrillo’s probation

were to “commence upon [his] release from the ACI,” it would not reduce his sentence

below the mandatory minimum. See Rose, 92 A.3d at 909. The reduced sentence, which

would range between seventeen and twenty-three years, depending on the operative




                                           - 11 -
date,13 would be well above the ten-year mandatory-minimum for second-degree murder,

pursuant to G.L. 1956 § 11-23-2. It is our opinion, however, that this distinction does not

require us to stray away from our clearly articulated interpretation of the good-time and

time-served credit statutes enunciated in Rose, and the effect that these credits have on

the length of a defendant’s overall sentence, nor does this distinction warrant a different

outcome. Rose, 92 A.3d at 912, was clear—neither Parrillo’s “credits for good time nor

his credits for time served entitle[] him to an acceleration of the end date of his

probationary term[,]” because the DOC does not have the “power to modify the overall

length of a judicially imposed sentence * * *.” Id. at 911.14 The power to reduce a

sentence, either directly or indirectly, is reserved to the judiciary.15 Id.     Here, the

sentencing justice sentenced Parrillo to thirty years. Although § 12-19-8 permitted the

sentencing justice to suspend a portion of the sentence, as he chose to do, any suspended

or probationary period did not reduce the sentence from what he specifically articulated

was thirty years.



13
   If his probation were to begin upon his physical release from the ACI in 1993, his
sentence would end in 2003, seventeen years after it was imposed in 1986. If his
probation were to begin upon his release from parole in 1999, his sentence would end in
2009, twenty-three years after it was imposed.
14
   We are of the opinion that the dissent’s conclusion that the General Assembly has, by
statute, modified Parrillo’s sentence is incorrect and not supported by our well-settled
constitutional jurisprudence. The sentence imposed in this case is a final judgment of
conviction by the Superior Court. A final judgment may be reopened or amended only
according to law and in the exercise of judicial power. See Taylor v. Place, 4 R.I. 324,
363 (1856) (“the exercise of judicial power [is] prohibited to the general assembly”
pursuant to the Constitution of Rhode Island).
15
   A recent amendment to Rule 35 of the Superior Court Rules of Criminal Procedure
now provides a vehicle to amend a sentence. Rule 35(c) provides that: “At any time after
a defendant has served at least three (3) years of a term of probation in the community,
the probation unit of the department of corrections, either at a defendant’s request or
administratively, may review the defendant’s case history and recommend amending the
defendant’s sentence to terminate the defendant’s probation.”


                                          - 12 -
       Accordingly, because Parrillo was sentenced on January 21, 1986, to a thirty-year

term, and because the effect of his good-time or time-served credits reduced his period of

incarceration, but did not reduce the overall length of his sentence, his sentence officially

ended on January 21, 2016—thirty years later.            Consequently, the hearing justice

committed an error of law in finding that Parrillo was not on probation at the time of the

2011 incident. Because we hold that Parrillo was on probation and subject to being

adjudged a violator at the time of the 2011 incident, we must now address whether the

hearing justice committed an error of law when he held that the doctrine of equitable

estoppel did not bar the state from seeking to adjudge Parrillo a probation violator.

                                             B

                                   Equitable Estoppel

       Parrillo argues that the state should be estopped from seeking to adjudge him a

probation violator by invoking the doctrine of equitable estoppel because he relied, to his

detriment, on the representation made by the DOC in the form of the 2009 letter

informing him that he had completed his probationary term. Parrillo attested that he

“conducted [himself] at all times as though [he] was not on probation” in reliance to the

representation made. In response, the state insists that Parrillo has failed to meet the

necessary elements of the equitable estoppel doctrine.

       Necessary “to the successful invocation of the doctrine of equitable estoppel is the

establishment of: ‘[F]irst, an affirmative representation or equivalent conduct on the part

of the person against whom the estoppel is claimed which is directed to another for the

purpose of inducing the other to act or fail to act in reliance thereon; and secondly, that

such representation or conduct in fact did induce the other to act or fail to act to his




                                           - 13 -
injury.’” Faella v. Chiodo, 111 A.3d 351, 357 (R.I. 2015) (quoting Cigarrilha v. City of

Providence, 64 A.3d 1208, 1213 (R.I. 2013)). Moreover, the applicability of equitable

estoppel is dependent upon “[t]he facts and circumstances of each case.” Lerner v. Gill,

463 A.2d 1352, 1362 (R.I. 1983).

       “It must be emphasized that ‘[e]quitable estoppel is extraordinary relief, which

will not be applied unless the equities clearly [are] balanced in favor of the part[y]

seeking relief.’” Faella, 111 A.3d at 357 (quoting Sturbridge Home Builders, Inc. v.

Downing Seaport, Inc., 890 A.2d 58, 67 (R.I. 2005)). “Indeed, ‘equitable estoppel is not

a favored doctrine * * * [and should be] applied carefully and sparingly and only from

necessity. Each of the elements of estoppel must be proved with the requisite degree of

certainty; no element may be left to surmise, inference, or speculation.’” Id. (quoting 28

Am. Jur. 2d Estoppel and Waiver § 166 at 633 (2011)). “[T]he party seeking relief under

the doctrine of equitable estoppel bears the burden of proving the necessary elements.”

Id. at 358. “[W]hether a party ‘has [successfully] met [his or her] burden in a particular

case is an issue of fact’ to be resolved by the factfinder.” Id.

       This Court has acknowledged that, “[a]s a general rule, courts are reluctant to

invoke estoppel against the government on the basis of an action of one of its officers.”

Lerner, 463 A.2d at 1362. However, we have also

               “held that in proper circumstances a public agency may be
               estopped from denying representations made by its agents
               causing an individual to act to his detriment in reliance
               upon those statements. The facts and circumstances of each
               case must be closely scrutinized to determine whether
               justice requires the imposition of estoppel.” Id.16

16
  See State v. Bonsante, 112 R.I. 547, 548, 313 A.2d 134, 135 (1973) (“we should hold
that the state’s failure to award [the defendant] a speedy trial acts as a bar of estoppel to
any further prosecution for the same or another closely related offense”).


                                            - 14 -
          It is our opinion that the facts of this case do not present the “proper

circumstance” for the doctrine of equitable estoppel to apply against the state, and that

therefore the hearing justice’s finding that Parrillo’s equitable estoppel argument was

unpersuasive was not an error of law for several reasons.           First, although a DOC

administrative officer sent the 2009 letter to inform Parrillo that his probation had

terminated, this employee did not have the authority to decrease a judicially imposed

sentence. As we have previously noted, this authority is limited to the judiciary. See

Rose 92 A.3d at 910-11. Accordingly, neither the administrative agent nor any member

of the DOC had the power to determine when Parrillo had completed his probationary

period.

          Moreover, in Romano v. Retirement Board of the Employees Retirement System

of Rhode Island, 767 A.2d 35, 37-38 (R.I. 2001), a retiree sought to invoke the equitable

estoppel principle against the state which, through a retirement system counselor, had

provided wrong information regarding the retiree’s retirement benefits. The retiree’s

claims failed because neither the counselor nor the board’s executive director possessed

any authority to “vary or contradict” state law. Id. at 39 (contrary to information the

retiree received from the state employee, G.L. 1956 § 36-10-36(b) specifically provided,

in relevant part, that “[p]ension payments shall be suspended” when a state retiree is

employed or reemployed by a municipality).            Similarly, here, any statement that

Parrillo’s probationary period had ended in 2009, was not only in direct contradiction to

the judicially-imposed thirty-year sentence, it also contradicted §§ 42-56-24 and 12-19-

2(a), including the effect these credits had on the length of Parrillo’s sentence.




                                            - 15 -
       Moreover, the only evidence before the Superior Court was the 2009 letter sent

from the DOC administrative officer and Parrillo’s affidavit in which he attested that “he

conducted [him]self at all times as though [he] was not on probation.” Parrillo, who bore

the burden of proving the elements of equitable estoppel, presented no evidence that the

DOC employee intended to induce any specific behavior on his part, nor that his conduct

as it relates to the 2011 incident was somehow induced by the 2009 DOC letter. See

Faella, 111 A.3d at 357. Our law is clear that no element of the equitable estoppel claim

can be left to speculation, and, in any event, we agree with the hearing justice that to even

attempt to apply the doctrine of equitable estoppel to these facts is “absurd.” See id. It

would be preposterous for Parrillo to claim that a letter informing him that his

probationary period had ended in 2009 induced him to commit the alleged felony assault

in 2011, let alone for him to claim that the DOC employee actually intended to induce

him to commit such act as the doctrine of equitable estoppel requires.17

       Accordingly, it is our opinion that the hearing justice’s denial of Parrillo’s

equitable estoppel claim was not an error of law.

                                             C

                                       Due Process

       Parrillo’s equitable estoppel argument is firmly predicated upon principles of due

process. He first raised a due-process argument in his memorandum of law in opposition
17
   Parrillo attempts to shoehorn his criminal conduct into the precepts of equitable
estoppel by claiming that he “does not argue detrimental reliance on the [s]tate’s
representation in committing a new crime; the detrimental reliance was that regardless of
what he may have done, he would not suffer a resulting probation violation, and the
consequent further punishment for an old crime–a matter wholly separate from the
consequences of the underlying offense conduct.” Although we reject his efforts to
invoke the doctrine of equitable estoppel, this argument may be more appropriate on
remand. See Part III, C, infra.



                                           - 16 -
to the state’s notice of probation violation submitted to the Superior Court, in which he

asserted that “he ha[d] not been given fair warning that certain conduct [would] subject

him to the penalty associated with a probation violation. The due process transgression

[was] thus complete.” Although the hearing justice rejected Parrillo’s equitable estoppel

contentions, the hearing justice did not address the due-process argument, ruling rather

that Parrillo’s probationary term had terminated under the clear terms of the original

sentence.

       Before this Court, Parrillo again emphasizes the underpinnings of his estoppel

argument, stating that “[t]he application of principles of estoppel in the circumstances

present here is a straightforward matter of due process” and that “the principles of

fundamental fairness, which include due process and fair notice, could not be more in

play.”18 Because the trial court decided the case on other grounds, however, we are of

the opinion that this case should be remanded to the Superior Court so that a hearing

justice may address Parrillo’s contentions in the first instance, making such findings of

fact and conclusions of law as he or she sees fit. We do not intend hereby to restrict the

Superior Court should it deem it just to otherwise resolve this probation violation

proceeding.




18
  Parrillo also indicates that “[t]his issue was thoroughly explicated not long ago by the
Massachusetts Supreme Judicial Court in Commonwealth v. Ruiz, 453 Mass. 474, 903
N.E.2d 201 (2009).”


                                          - 17 -
                                            IV

                                       Conclusion

       For the reasons stated herein, we vacate the order of the Superior Court and

remand for further proceedings consistent herewith. The record shall be returned to the

Superior Court.



      Justice Flaherty with whom Justice Robinson joins, dissenting. I depart from

the majority’s interpretation of G.L. 1956 § 42-56-24 and G.L. 1956 § 12-19-2, and

would affirm the Superior Court’s decision that Parrillo’s probation had already ended

when he was charged with assault. Accordingly, I respectfully, but vigorously, dissent

from the majority’s opinion.

       A little more than two years ago, in Rose v. State, 92 A.3d 903 (R.I. 2014), this

Court was faced with an issue identical to the one presented in the case at bar, except for

one critical fact. In Rose, the majority held that good-time and time-served credits could

act only to reduce the time a defendant spent incarcerated, but could not reduce a

sentence below a statutorily imposed mandatory minimum. Id. at 908, 912. The majority

in Rose specifically left for another day the issue of what to do when a defendant’s

sentence is not up against a mandatory minimum. Id. at 913. That day has arrived.

       For the same reasons set forth in my dissent in Rose—which Justice Robinson

also joined—I do not agree with the majority’s opinion that extends Rose to all

probationers. In Rose, I dissented because, in my opinion, the majority incorrectly

interpreted two statutes: § 42-56-24 and § 12-19-2.         Rose, 92 A.3d at 914, 918.

Specifically, it was my opinion that, when the majority interpreted § 42-56-24, it

“focuse[d] on the word ‘sentence’ and equate[d] ‘sentence’ with ‘imprisonment.’” Rose,


                                          - 18 -
92 A.3d at 914. It was my view then, and it is now, that “nothing cited to by the majority

contravene[d] my conclusion that good-time credits reduce the entirety of [the] sentence

and not simply the period of incarceration.” Id. I also found fault with the majority’s

interpretation of § 12-19-2 on nearly identical grounds. Rose, 92 A.3d at 919. That

statute mandates that a “sentence or sentences imposed shall be reduced by the number of

days spent in confinement while awaiting trial and while awaiting sentencing * * *.”

Section 12-19-2(a). Like § 42-54-24, § 12-19-2 speaks of reducing the “sentence,” as

opposed to the period of incarceration.

       Now, the majority extends the holding in Rose to all probationers, finding that

good-time and time-served credits do not reduce the length of a defendant’s overall

sentence, irrespective of whether such a reduction would bring that sentence below a

mandatory minimum. I disagree because the statutes clearly say that good-time credits

should “be deducted from the term or terms of sentence of that prisoner * * *” and time-

served credits should be “reduced” from the sentence.       Both statutes are clear and

unambiguous. Notably, neither statute limits deductions or reductions to only the time of

incarceration.

       The gravamen of my dissent lies in the distinction between “sentence” and

“imprisonment.” In addition to incorporating my dissent in Rose, I also observe that

“sentence” is defined as “[t]he judgment that a court formally pronounces after finding a

criminal defendant guilty; the punishment imposed on a criminal wrongdoer.” Black’s

Law Dictionary 1569 (10th ed. 2014). Meanwhile, “imprisonment” is “[t]he act of

confining a person, [especially] in a prison.” Id. at 875. Accordingly, it is my opinion

that the only conclusion that can be drawn is that, when the General Assembly enacted




                                          - 19 -
the legislation in question and used the term “sentence,” it was referring to the entirety of

the judgment imposed against the defendant—i.e., both the period of incarceration and

the probationary period. And, when the General Assembly referred to “imprisonment,” it

spoke of only the period in which a defendant is incarcerated. Thus, when the General

Assembly mandated that good-time credits be “deducted” from a defendant’s “sentence”

and that a defendant’s “sentence * * * shall be reduced” by the amount of time served

while awaiting trial and sentencing, I am led to what I consider to be the obvious

conclusion that the General Assembly intended good-time and time-served credits to act

to reduce the entirety of a defendant’s sentence, and not just that defendant’s period of

incarceration.19

       Despite my dissent in Rose, I accept, as I must, that the holding in that case is

now the law in this state. Nevertheless, I do not believe that the holding in Rose is

applicable here because the issue before us is simply not the same; the reductions that

Parrillo received to his sentence did not bring that sentence below a mandatory minimum.

The majority’s opinion in Rose was, in substantial part, driven by the conflict between

G.L. 1956 § 11-37-8.2, which imposed a mandatory minimum sentence, and §§ 42-56-24

and 12-19-2, the good-time and time-served statutes. Here, no such conflict exists.

Accordingly, it is my opinion that the statutory interpretation that I endorsed in Rose

should control; under that interpretation, Parrillo’s probation would have ended by the

time of his December 2011 arrest. As a result, it is my opinion that the order of the

Superior Court should be affirmed.

19
   The majority says that the Department of Corrections has no authority to reduce a
sentence, but it is the General Assembly that set the sentence by statute. Through the
enactment of G.L. 1956 § 42-56-24 and G.L. 1956 § 12-19-2, the General Assembly has
modified the sentence, also by statute.


                                           - 20 -
STATE OF RHODE ISLAND AND                                  PROVIDENCE PLANTATIONS



                         SUPREME COURT – CLERK’S OFFICE

                                 OPINION COVER SHEET

Title of Case                        State v. Anthony Parrillo.
                                     No. 2013-203-M.P.
Case Number
                                     (P1/82-500A)
Date Opinion Filed                   May 3, 2017
                                     Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
                                     Indeglia, JJ.
Written By                           Chief Justice Paul A. Suttell

Source of Appeal                     Providence County Superior Court

Judicial Officer From Lower Court    Associate Justice Bennett R. Gallo
                                     For State:

                                     Lauren S. Zurier
                                     Department of Attorney General
Attorney(s) on Appeal
                                     For Defendant:

                                     Anthony M. Traini, Esq.
                                     John B. Harwood, Esq.




SU-CMS-02A (revised June 2016)
