Sullivan Whitehead & DeLuca LLP

Life Without Possibility of Parole, Consecutive Life and Consecutive Twenty Year Sentences Upheld by RI Supreme Court

Paul Sullivan — Tue, 15 May 2012 13:57:56 +0000

In April of 2005, veteran Providence Police Officer Detective Allen was shot dead at the Providence Police Station during an interrogation of a suspect arrested for assault and attempted robbery of an elderly woman eighty-four years in age. The suspect, Esteban Carpio, eventually optted for a trial. Upon conviction he was sentenced to Life with no possibility of parole for the murder of Det. Allen. This sentence was followed by a consecutive Life sentence for the discharge of a firearm during a crime of violence and a consecutive twenty years for felony assault with a dangerous weapon. Among the several issues raised by Defendant Carpio was that he was incorrectly sentenced to Life with no possibility of parole. The RI Supreme Court disagreed and affirmed the convictions and sentences. See the complete opinion: State v. Carpio

Supreme Court Upholds Family Court Order For Sale of Property to Satisfy Child Support Arrearage

Paul Sullivan — Tue, 01 May 2012 14:18:35 +0000

The Rhode Island Supreme Court has upheld the decision of the Family Court ordering that respondent sell his property to satisfy child support arrearage. In a case that has been in the court for over 5 years, the appellant, proceeding pro se, was made to sell his assets via appointment of a commissioner. His home and boat were ordered sold. He was also ordered to liquidate his insurance policies. The appellant had raised three issues before the Rhode Island Supreme Court: (1) the Family Court lacked jurisdiction to enter the appealed orders; (2) it was error for the Family Court to order the sale of his home; and (3) various judicial improprieties occurred in the Family Court throughout the course of the litigation. He lost on all three. His home was sold at the appraised market value. See entire opinion at court’s website: Jo-An Krivitsky v. Brian D. Krivitsky, No. 10-267 (April 17, 2012)

We Can Be Strip Searched, Even For Minor Offenses

Paul Sullivan — Thu, 05 Apr 2012 22:30:59 +0000

The United States Supreme Court has made it absolutely clear that anyone that is placed under arrest for any offense can be stripped searched by the arresting authority. See Florence v. Board of Chosen Freeholders of County of Burllington. Opinion

No Right of Allocution for Probation Violators

Paul Sullivan — Mon, 02 Apr 2012 19:36:21 +0000

The Rhode Island Supreme Court has clarified that Probation Violators do not have a right to allocution when presented on violation of probation hearings unless facing consecutive sentences. The Court clarified its position from an earlier Opinion that the courts should probably allow allocutions in an effort to provide informed sentencing. The Court remained steadfast that only when there is consecutive sentencing is the sentencing court required to provide the right of allocution. See State of RI v. Yoneiry Delarosa, No. 11-12 (March 29, 2012) 2011-12-C.A.

A Battle Brews in the Rhode Island Supreme Court over Deferred Sentence Expungement

Paul Sullivan — Wed, 28 Mar 2012 13:35:16 +0000

Three cases are set for full briefing in the Rhode Island Supreme Court. At issue is a recent statute (R.I. Gen. Laws § 12-19-19(c)) allowing for the immediate expungement and sealing of records of individuals sentenced to deferred sentences. Among the arguments is one based on separation of powers doctrine. The superior court has found in a couple of cases the statute unconstitutional because by its enactment and execution the legislature is exercising judicial power. At odds seems to be the statute’s provision of exonerating an individual that has already admitted guilt or no contenst. As opined by Justice Rodgers in State v. Warzycha III, P1-2002-1291A: This is certainly an “alteration of a decision” made by the trial justice who accepted the plea as a knowing and voluntary admission of guilt or no contest in accordance with the trial court’s obligations…” The three cases set for full briefing are State v. Briggs, 2011-47 C.A. and State v. Mathias 2011-50 C.A. which have been consolidated and State v. Morrice 2011-52 C.A.

U.S. Supreme Court Finds Ineffective Assistance Caused Defendant to Go to Trial

Paul Sullivan — Mon, 26 Mar 2012 14:20:13 +0000

Defendant was offerred a deal for a guilty plea with a sentence of a little over 4 years in the Michigan State Court System, with the dismissal of 3 of 4 counts. Defendant pled guilty and was awaiting sentence. His attorney informed him that he could overcome the burden of guilt at trial and pursuaded the defendant to go to trial after the defendant had entered his guilty plea. Defendant withdrew his plea and opted to go to trial. The jury returned guilty findings on all counts and defendant was sentenced in excess of 12 years. Defendant argued that his attorney was ineffective, that had it not been for attorney’s ineffectiveness he would not have withdrawn his guilty plea and that the outcome would have been different. The United States Supreme Court agreed and determined that the remedy was for the State to reoffer the original plea. See the entire decision at: Lafler v. Cooper, 10-209

RI Supreme Court Reverses Verdict That Had Gone RIPTA’s Way

Paul Sullivan — Thu, 08 Mar 2012 18:03:19 +0000

The Rhode Island Supreme Court has found that a view to the accident site and resulting discussion and testing constituted evidence not introduced at trial and not permissible under the Rules of Evidence. Jurors were allowed to go to the accident site, test a bar that allowed for the light to change, discuss it among themselves and more. The Court reasoned that even the untimely objection survived the raise-or-waive rule. Read the entire opinion at: Yi Gu v. Rhode Island Public Transit Authority et al., No. 2010-73 (March 5, 2012)

Police Officer’s Affidavit In Support of Warrant Not Invalid

Paul Sullivan — Thu, 01 Mar 2012 14:25:14 +0000

The United States Supreme Court has reversed The Ninth Circuit Court of Appeals’ decision which held police officer liable for invalid warrant and the resulting civil rights intrusion. The Court recognized limited instances when a warrant can be construed as defective but that was not the case in this action. The officer had his affidavit in support of warrant reviewed by his supervisor, another officer and the district attorney before submitting to the magistrate that approved the warrant. See Messerschmidt v. Millender, Docket No. 10-704, decided February 22, 2011.

Rhode Island Divorce – Distribution of the Marital Estate

Paul Sullivan — Sun, 26 Feb 2012 03:24:44 +0000

In Rhode Island, the trial judge responsible for equitably distributing property in a divorce engages in a three-step process. The judge first must determine which assets are marital property, second must consider the factors set forth in R.I. Gen. Laws § 15-5-16.1(a), and finally, the judge must distribute the property. The § 15-5-16.1(a) factors that the judge considers are as follows:

(1) The length of the marriage;

(2) The conduct of the parties during the marriage;

(3) The contribution of each of the parties during the marriage in the acquisition, preservation, or appreciation in value of their respective estates;

(4) The contribution and services of either party as a homemaker;

(5) The health and age of the parties;

(6) The amount and sources of income of each of the parties;

(7) The occupation and employability of each of the parties;

(8) The opportunity of each party for future acquisition of capital assets and income;

(9) The contribution by one party to the education, training, licensure, business, or increased earning power of the other;

(10) The need of the custodial parent to occupy or own the marital residence and to use or own its household effects taking into account the best interests of the children of the marriage;

(11) Either party’s wasteful dissipation of assets or any transfer or encumbrance of assets made in contemplation of divorce without fair consideration; and

(12) Any factor which the court shall expressly find to be just and proper.

If you need help with a family law issue, including divorce, child custody, or child support, call us at (401) 861-9900. We can help.

Unauthorized Practice of Law

Paul Sullivan — Fri, 10 Feb 2012 14:50:34 +0000

The Rhode Island Supreme Court declines to limit union non-lawyers representation at labor arbitration hearings. The Unauthorized Practice of Law Committee had found a technical violation by the union but sought guidance from the Rhode Island Supreme Court. The Court declined based on several grounds but predominately the Court reasoned the long-standing practice to allow non-lawyers representation, usually someone approved by the unions. The Court’s opinion was thorough and includes a national historical analysis of non-lawyer representation during arbitration hearings as well an informed discourse on Rhode Island’s history. See full Opinion at In re Town of Little Compton, No. 11-101 (February 9, 2012).