May 1, 2019



                                                               Supreme Court

                                                               No. 2017-375-C.A.
                                                               (P1/04-1031A)

                   State                     :

                    v.                       :

              Javier Merida.                 :



              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
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                                                                  Supreme Court

                                                                  No. 2017-375-C.A.
                                                                  (P1/04-1031A)

                     State                      :

                      v.                        :

                Javier Merida.                  :


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

                                          OPINION

       Justice Indeglia, for the Court. The defendant, Javier Merida (Merida or defendant),

appeals pro se from an order of the Superior Court denying his motion to correct sentence, pursuant

to Rule 35 of the Superior Court Rules of Criminal Procedure. On February 28, 2019, 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 appeal should not be summarily decided. After hearing the parties’

arguments and reviewing the memoranda submitted by the parties, we are satisfied that cause has

not been shown. Accordingly, further briefing or argument is not required to decide this matter.

For the reasons explained herein, we affirm the order of the Superior Court.

                                                    I

                                         Facts and Travel

       This Court thoroughly recounted the underlying facts of this matter in our consideration of

defendant’s direct appeal and postconviction-relief appeal.1 Therefore, we only recount facts

relevant to this appeal and other facts necessary for context.




1
 See Merida v. State, 93 A.3d 545 (R.I. 2014) (postconviction-relief appeal); State v. Merida, 960
A.2d 228 (R.I. 2008) (direct appeal).
                                                -1-
       In May 2006, defendant was tried and convicted by a jury of two counts of first-degree

child molestation sexual assault, in violation of G.L. 1956 § 11-37-8.1, and one count of second-

degree child molestation sexual assault, in violation of § 11-37-8.3, for acts committed against his

granddaughter. State v. Merida, 960 A.2d 228, 230, 231 (R.I. 2008). On July 7, 2006, the trial

justice sentenced defendant to two forty-year terms of imprisonment, with twenty years to serve

and twenty years suspended, with probation, on the two first-degree child molestation sexual

assault counts; and one thirty-year term, with ten years to serve and twenty years suspended, with

probation, on the second-degree child molestation sexual assault count; all sentences were to be

served concurrently. Id. at 230.

       From May 2004 until his determination of guilt in May 2006, defendant was on what he

characterizes as “twenty-four hour electronic home confinement” as a condition of bail.2 In

October 2016, following the completion of defendant’s direct and postconviction-relief appeals,

he filed a “motion for correction of sentence” pro se, pursuant to Rule 35, which was later heard

by the same trial justice who presided over Merida’s trial. Merida also filed a motion to appoint

counsel for the hearing, but the trial justice denied the motion.

       At the hearing on his motion to correct his sentence, defendant argued that the twenty-four

months he spent on home confinement should be credited toward his overall sentence, pursuant to

G.L. 1956 § 12-19-2(a). Specifically, he argued that this Court’s opinion in State v. Quattrocchi,

687 A.2d 78 (R.I. 1996), established that home confinement was a form of “imprisonment” for

which credit could be given pursuant to § 12-19-2(a). The trial justice then reviewed several

relevant cases decided by this Court, taking time to explain each case to defendant and



2
 The record reveals that defendant’s motion to set bail was granted on May 10, 2004, and a pretrial
order was entered for pretrial community confinement pursuant to G.L. 1956 § 42-56-20.2,
specifying that “[e]lectronic monitoring devices shall be used.”
                                                -2-
distinguishing the cases based on their facts.3 Merida also argued that a prisoner, whom he knew,

had received credit toward his sentence for the time he spent on home confinement while awaiting

trial. However, at that hearing, defendant could not remember all the details of that case. The trial

justice therefore continued the hearing, at defendant’s request, so that defendant could obtain more

information regarding the case he had mentioned.

        One week later, on November 9, 2016, at the continued hearing, Merida argued that two of

his cellmates, Mr. Bagley and Mr. DePina, received credit for home confinement toward their

overall sentence. However, the trial justice found those cases distinguishable, explaining that, “[i]t

appears that Mr. Bagley was sentenced for bail violation and asked for credit for time served and

home confinement, but it wasn’t a sentencing after trial where he was held in home confinement

as a condition of bail prior to trial.” She further explained that Mr. DePina was sentenced after a

plea agreement with a “capped” plea, stating that, “if I did give him credit for time served in home

confinement, it was in accordance with an agreement whereby he agreed to plead guilty and he

pled guilty.” Having heard defendant’s arguments, the trial justice issued a bench decision denying

defendant’s request to receive credit for time spent on home confinement.

        Merida filed a timely notice of appeal on December 1, 2016.4 Before this Court, Merida

argues that: (1) the trial justice erred in her interpretation of case precedent, specifically our opinion




3
  Most of the cases that the trial justice discussed involved home confinement as a condition of
parole or a plea agreement. See Rose v. State, 92 A.3d 903, 905-06 (R.I. 2014); Curtis v. State,
996 A.2d 601, 602 (R.I. 2010). The only case that the trial justice found to be relevant to the issue
of whether home confinement should count as credit toward a completed sentence was a case from
the United States Court of Appeals for the First Circuit. See United States v. Zackular, 945 F.2d
423, 424-25 (1st Cir. 1991) (holding that a defendant is not entitled to credit toward an overall
sentence for a period spent in home confinement).
4
  This Court remanded the case to Superior Court for the entry of the order denying defendant’s
motion, and an order entered to that effect on November 8, 2018. The papers were returned to this
Court on November 15, 2018.
                                                  -3-
in Quattrocchi, arguing that the interpretation was inconsistent with the provisions of

§ 12-19-2(a); (2) his equal-protection rights were violated by virtue of the failure to award him

credit for his pretrial time on home confinement;5 and (3) the trial justice erred in denying his

motion to appoint counsel, given the complexity of the legal issues and the fact that English is

defendant’s second language.

                                                  II

                                        Standard of Review

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

Ciresi, 151 A.3d 750, 754 (R.I. 2017) (quoting State v. Farooq, 115 A.3d 961, 964 (R.I. 2015)).

“The motion is addressed to the sound discretion of the trial justice, who may grant it if he or she

decides on reflection or on the basis of changed circumstances that the sentence originally imposed

was, for any reason, unduly severe.” Id. (quoting State v. Mlyniec, 78 A.3d 769, 771 (R.I. 2013)).

“We have a ‘strong policy against interfering with a trial justice’s discretion in sentencing matters,’

and thus ‘our review of a trial justice’s ruling on a Rule 35 motion is extremely limited.’” Id.

(quoting State v. Rivera, 64 A.3d 742, 745 (R.I. 2013)). “Accordingly, ‘we only will interfere with

that discretion in rare instances when the trial justice has imposed a sentence that is without

justification and is grossly disparate from other sentences generally imposed for similar offenses.’”

Id. (quoting Farooq, 115 A.3d at 964). However, “[w]hen faced with the interpretation of statutes

and court rules upon review of a Rule 35 motion * * * we apply a de novo standard.” State v.

Bouffard, 35 A.3d 909, 916 (R.I. 2012); see also State v. Goncalves, 941 A.2d 842, 847 (R.I. 2008).




5
    Merida did not raise this particular argument below.
                                                 -4-
                                                 III

                                             Discussion

                                                  A

                                    Motion to Correct Sentence

       The defendant first asserts that the trial justice erred in denying his motion to correct

sentence pursuant to Rule 35. Specifically, defendant contends that he was entitled to twenty-four

months of credit for time that he spent on home confinement between the dates of May 11, 2004,

and May 9, 2006.         The defendant argues that, based on this Court’s interpretation of

“imprisonment” in Quattrocchi, home confinement is a form of imprisonment, and, therefore, his

overall sentence should be reduced by the two years he spent on home confinement while on bail

awaiting trial. He bases this contention on certain language in § 12-19-2(a), which provides, in

relevant part:

                 “Whenever it is provided that any offense shall be punished by a
                 fine or imprisonment, the court imposing punishment may, in its
                 discretion, select the kind of punishment to be imposed, and, if the
                 punishment is fine or imprisonment, its amount or term within the
                 limits prescribed by law; provided, 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 * * *.” (Emphasis added.)

       “We have previously held that the General Assembly’s enactment of the so-called dead-

time provisions of § 12-19-2 was a benevolent effort to assist the person who, because of an

inability to make bail, has been cast into a sort of limbo as he awaited the disposition of the charge

or complaint which had caused his incarceration.” State v. Ilacqua, 765 A.2d 822, 824 (R.I. 2001)

(brackets omitted) (quoting State v. Skirvin, 113 R.I. 443, 446, 322 A.2d 297, 299-300 (1974)).

“Such an individual is ‘in limbo because the time spent awaiting trial or sentence can not be

credited towards any future parole.’” Id. (brackets omitted) (quoting Skirvin, 113 R.I. at 446 n.1,

                                                -5-
322 A.2d at 300 n.1). This Court has previously stated that “the phrase ‘while awaiting trial and

while awaiting sentencing’ must be construed as embracing confinement time spent for any reason

whatsoever in connection with an offense for which a defendant is subsequently sentenced.” Id.

(quoting State v. Holmes, 108 R.I. 579, 582, 277 A.2d 914, 916 (1971)).

       In Holmes, we noted that § 12-19-2 “is subject to administrative rather than judicial

application.” Holmes, 108 R.I. at 585, 277 A.2d at 917. Thus, it is for the director of the ACI to

apply the provisions of § 12-19-2 and to give credits to those persons who were forced to await

trial in confinement prior to their conviction. See id. However, G.L. 1956 § 42-56-20.2(j), entitled

“No incarceration credit for persons awaiting trial[,]” states that “[n]o detainee shall be given

incarceration credit by the director [of the ACI] for time spent in community confinement while

awaiting trial.” (Emphasis added.) That provision specifically prohibits the director from granting

a person credit for time spent on home confinement prior to trial and prior to conviction.

       This Court has stated that, “when we are faced with statutory provisions that are in pari

materia, we construe them in a manner that attempts to harmonize them and that is consistent with

their general objective scope.” State v. Dearmas, 841 A.2d 659, 666 (R.I. 2004). Because both

§ 12-19-2 and § 42-56-20.2 govern sentencing of a person convicted of a crime, they may be read

together as part of a greater statutory sentencing scheme created by the General Assembly. See id.

Reading the two provisions together, it is clear that, if the accused is unable to make bail and must

await trial at the ACI, then, pursuant to § 12-19-2, the director of the ACI must grant credit for that

time if the accused is later convicted. On the other hand, if the accused makes bail and is able to




                                                 -6-
await trial in his home, then, pursuant to § 42-56-20.2(j), the director cannot give credit for that

time, even if the accused is confined in his home as a condition of bail.6

       Nevertheless, Merida argues that our opinion in Quattrocchi, where we held that “[w]e are

persuaded that home confinement is a form of imprisonment during which an employee’s liberty

is significantly restrained[,]” when read in conjunction with § 12-19-2, entitles him to a reduced

sentence for the time he spent on home confinement. Quattrocchi, 687 A.2d at 79. However, that

case involved an application of G.L. 1956 § 28-33-17.1(c) of the Workers’ Compensation Act,

which prohibits an injured employee from collecting workers’ compensation benefits “for any

period during which the employee was imprisoned as a result of a conviction of a criminal

offense.” Id. As such, Quattrocchi is inapplicable here, where an application of the plain meaning

of § 42-56-20.2(j) would bar the director of the ACI from awarding credit to a person convicted

of a crime for the time that the person spent on community confinement while awaiting trial.

       We also note that prohibiting credit for time spent on home confinement, as a condition of

bail, is consistent with the spirit of § 12-19-2(a). The purpose of that statute is to relieve those

persons who were unable to make bail from the burden of their confinement at the ACI before

trial. See Ilacqua, 765 A.2d at 824. That concern is inapplicable where, as here, the accused was

able to make bail and remain at home pending the outcome of trial. Therefore, we hold that the

trial justice’s interpretation of § 12-19-2(a) and § 42-56-20.2(j) was correct, and that Merida should

not be credited with the time he spent on home confinement.




6
 “[T]he right to bail, although guaranteed, is not absolute and may be granted subject to conditions
reasonably calculated to further the purpose of bail itself, that is, to ensure the presence of the
accused at court.” Bridges v. Superior Court, 121 R.I. 101, 105, 396 A.2d 97, 99 (1978).
                                                -7-
                                                 B

                                         Equal Protection

       For the first time on appeal, defendant contends that the trial justice’s failure to award him

custody credits for time served on home confinement, while purportedly awarding said credits to

others who were similarly situated, violated his due-process and equal-protection rights under the

United States Constitution and the Rhode Island Constitution. However, because defendant did

not raise this argument below, we deem it waived.

       The raise-or-waive rule is well settled in this state, and this Court generally “will not

consider on appeal an issue that was not raised before the trial court.” Harvey Realty v. Killingly

Manor Condominium Association, 787 A.2d 465, 466-67 (R.I. 2001). We have recognized that

the raise-or-waive rule “will not be disturbed unless ‘basic constitutional rights are concerned.’”

State v. Gomez, 848 A.2d 221, 237 (R.I. 2004) (quoting State v. Donato, 592 A.2d 140, 141 (R.I.

1991)). “To fall within this exception, the defendant must show: (1) that the error complained of

amounts to more than harmless error; (2) that a sufficient record exists to permit a determination

of the issue; and (3) that ‘counsel’s failure to raise the issue before trial must be premised upon a

novel rule of law that counsel could not reasonably have known during the trial.’” State v. Florez,

138 A.3d 789, 796 (R.I. 2016) (brackets omitted) (quoting Cronan ex rel. State v. Cronan, 774

A.2d 866, 878 (R.I. 2001)). However, because defendant has not identified any of the criteria to

this narrow exception to the raise-or-waive rule as applicable to his equal-protection claim, we

hold that his argument is waived.7



7
  Although we need not reach the issue because it was not raised below, we note, nonetheless, that
a review of the record fails to reveal any error. In each of the fact patterns that Merida offered to
the trial justice as examples of persons receiving credit for time spent on home confinement, the
defendant was provided credit as a condition of a plea, or in the context of parole. As the trial
justice illustrated at the hearing, the individuals who defendant argued received credit for home
                                                -8-
                                                 C

                                   Motion to Appoint Counsel

       Finally, defendant argues that his due-process rights were violated because he was not

provided counsel and, thus, he did not receive a full and fair evidentiary hearing. Specifically,

defendant argues that the trial justice erred in denying his motion to appoint counsel, given that

English is his second language and that he is not proficient enough to sufficiently argue the

complex issues involved in this case pro se.

       This Court has declined to extend Rule 44 of the Superior Court Rules of Criminal

Procedure,8 which requires the appointment of counsel in certain Superior Court proceedings, to a

sentence-reduction hearing under Rule 35, at least where issues of fundamental fairness and due

process are not implicated. See State v. Chase, 9 A.3d 1248, 1253 (R.I. 2010). However, in Chase,

“we [did] not address the question of whether the dictates of fundamental fairness and due process

might require [a] * * * defendant to be appointed counsel in a Rule 35 proceeding in an appropriate

case[,]” because the defendant had not raised that particular issue. Id. at 1254. While Merida does

raise due-process and fundamental-fairness concerns in the instant case, we nevertheless hold that

his arguments are without merit.

       We have followed the lead of the federal courts, which have held that “[a] criminal

defendant’s right to counsel ‘flows from different constitutional provisions, depending on the



confinement were not held at home as a condition of bail and, therefore, were not similarly situated
to defendant. Thus, defendant’s constitutional claim would have failed on the merits.
8
  Rule 44 of the Superior Court Rules of Criminal Procedure states that:

               “If a defendant appears in Superior Court without an attorney, the
               court shall advise the defendant of the defendant’s right to an
               attorney and assign an attorney to represent the defendant at every
               stage of the proceeding unless the defendant is able to obtain the
               defendant’s own attorney or elects to proceed without an attorney.”
                                               -9-
nature of the proceedings.’” Chase, 9 A.3d at 1252 (brackets omitted) (quoting United States v.

Palomo, 80 F.3d 138, 141 (5th Cir. 1996)). “More specifically, the Sixth Amendment to the United

States Constitution provides a criminal defendant with the right to counsel during all ‘critical

stages’ of a criminal prosecution, State v. Oliveira, 961 A.2d 299, 308-09 (R.I. 2008), ‘where

substantial rights of a criminal accused may be affected.’” Chase, 9 A.3d at 1252-53 (footnote

omitted) (quoting Mempa v. Rhay, 389 U.S. 128, 134 (1967)). “Additionally, the Due Process

Clause of the Fourteenth Amendment to the United States Constitution provides for a right to

counsel in certain postconviction proceedings when ‘fundamental fairness necessitates the

assistance of a trained advocate.’” Id. at 1253 (footnote omitted) (quoting Palomo, 80 F.3d at 141).

       Here, defendant argues that the trial justice should have appointed counsel to represent him

in connection with his motion to correct sentence because English is his second language and

because the issues involved in this case are complex. Moreover, defendant has filed requests for

counsel that show that he is indigent and cannot afford his own attorney. Nevertheless, a Rule 35

motion is not a “critical stage of a prosecution” where the Sixth Amendment right to counsel

attaches, because the proceeding occurs after a prosecution has been completed. See Oliveira, 961

A.2d at 308-09. As this Court has stated, a Rule 35 motion “is essentially a plea for leniency.”

See, e.g., Ciresi, 151 A.3d at 754 (quoting Farooq, 115 A.3d at 964). Additionally, the issue at

bar—whether § 12-19-2 afforded defendant time off his sentence for the time he spent on home

confinement—was not so complex as to require the appointment of counsel as a matter of

fundamental fairness and due process.

       In this case, a review of the record fails to reveal any error. The seasoned trial justice

clearly understood the struggles that a pro se defendant might face in a case such as this. She gave

the defendant every opportunity to present his case, and she conducted her own research into


                                               - 10 -
relevant statutes and caselaw that could have provided relief to the defendant. The trial justice

also granted the defendant a continuance to provide him an opportunity to further prepare and

strengthen his arguments in support of his request for relief. Moreover, she explained to the

defendant the factual distinctions between the defendant’s case and those of his cellmates who had

purportedly received credit for home confinement. Therefore, we hold that the trial justice was

well within her discretion in denying the defendant’s request for counsel in connection with his

motion to correct sentence, and this Court will not disturb that ruling.

                                                 IV

                                            Conclusion

        For the above-stated reasons, the order of the Superior Court is affirmed. We remand the

papers to that tribunal.




                                               - 11 -
STATE OF RHODE ISLAND AND                                     PROVIDENCE PLANTATIONS



                          SUPREME COURT – CLERK’S OFFICE

                                  OPINION COVER SHEET

Title of Case                         State v. Javier Merida.
                                      No. 2017-375-C.A.
Case Number
                                      (P1/04-1031A)
Date Opinion Filed                    May 1, 2019
                                      Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
                                      Indeglia JJ.
Written By                            Associate Justice Gilbert V. Indeglia

Source of Appeal                      Providence County Superior Court

Judicial Officer From Lower Court     Associate Justice Netti C. Vogel
                                      For State:

                                      Christopher R. Bush
Attorney(s) on Appeal                 Department of the Attorney General
                                      For Defendant:

                                      Javier Merida, Pro Se

 




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