*1 ready, able that he was anee must show part willing perform his ”). justice The trial credited
contract.’ him to be
buyer’s enabling efforts on the willing, able to close
ready, a reasonable time.
properties within that the seller had justice did not find
trial legitimate equitable de- articulable trial find no fault with the
fenses. We sur- equities
justice’s evaluation situation, uphold thus
rounding this per- parties to requiring the judgment
his agree- obligations under the
form their
ments.
Conclusion reasons, conclude
For these ordering specific not err in
trial did and sales
performance purchase Hence, judg-
agreements. we affirm the
ment, Supe- and remand the record
rior Court. Justice
Justice FLAHERTY and participate. did not
ROBINSON
STATE MARTINI.
Thomas
No. 2003-387-C.A. of Rhode Island.
Supreme Court
Nov.
fendant), charged was with con- 11-45-1, duct violation of G.L.1956 12-29-5, G.L.1956 12-29-2. The alleged information on 8, October 2002, refused having entry after been apartment his girlfriend he and shared, repeatedly defendant kicked and punched entered a door and then then- apartment through a basement window.1 Pursuant Zurier, Providence, Lauren Sandler visions of the Domestic Violence Preven- Plaintiff. 12-29-5, (DVPA), § tion Act defendant, Gibran, Providence, Catherine A. having previously been convicted of two Defendant. offenses, qualifying domestic violence was charged felony with a crime of domestic WILLIAMS, C.J., Present: violence. It undisputed GOLDBERG, FLAHERTY, SUTTELL, previously had been convicted of two do- ROBINSON, JJ. mestic violence offenses that are prerequi- for receiving sites the sentencing enhance-
OPINION 12-29-5(c).2 ments under GOLDBERG, Justice. 21, 2003, On January defendant moved This case came before Supreme to dismiss the criminal pursu- information 28, 2004, Court on September ant to Rule 9.1 of Superior Court an order directing parties Rules of appear Criminal Procedure. Relevant to why that, show cause appeal, argued the issues in this pursu- raised defendant appeal should not summarily be ant to decid- con- ed. After hearing arguments duct is classified as a counsel misdemeanor and, 12-29-5(c) and reviewing terms, § the memoranda its provides submitted by the parties, we are satisfied that anyone cause “convict- has not Accordingly, been shown. ed of an we shall as a misde- decide appeal the issues raised on meanor.” Consequently, at this ar- defendant ll-45-l(a) time. gued that a violation of exempt from the enhancements Facts and Travel §of 12-29-5. Court trial 3, 2002, On December criminal 19, infor- agreed, and on March she mation filed in Kent County Superior granted defendant’s motion to dismiss and Court, (de- defendant, Thomas Martini subsequently denied the state’s motion for 5, 1998, alleged The criminal information pled defen- 2. On March defendant nolo con- “intentionally, dant: knowingly, recklessly simple tendere to domestic assault and re- engagefd] fighting, threatening, violent or eight ceived ten months to serve and months previously tumultuous behavior and was con- 1, 1999, suspended sentence. On December felony victed of domestic assault on Decem- pled nolo contendere to as- 1, 1999, ber and domestic assault on March sentence, five-year sault and received a (a), 12-29-2, in violation of 11-45-1 year years suspended to serve and four the General Laws of Rhode sentence. Island, 1956, (Reenactment as amended 2000).“ cause probable its to establish timely appeal- burden The state reconsideration. charged was com that the believe affirm. ed. We that the defendant mitted and Issues Presented Fritz, it.” State v. *3 a that appeal,
On
the state asserts
2002)
A.2d
649
(citing
Aponte,
State v.
§ 11-
disorderly
under
12-12-1.7;
conduct conviction
(R.I.1994)
222
and
enhance
sentencing
45-1 is
to the
9.1).
a trial
We review
Super.R.Crim.P.
12-29-5(c).
§in
The state
ments
to
a criminal de
justice’s
grant
“decision
12-29-2(a),
that
provides
that
argues
examining
to dismiss
fendant’s motion
conduct “when
sup
findings are
justice’s
whether
family
member
or household
whether, in mak
by the evidence or
ported
as a domestic violence
qualifies
another”
misconceived
findings,
justice
ing those
DVPA,
and,
purposes
of the
Id. at
evidence.”
material
overlooked
subject to
a misdemeanor
a
Moreover,
presents
in a case that
688.
12-29-5(c).
sentencing
of
provisions
law,
statu
of
review “issues of
we
The state contends
cross-referenc
v.
de novo.” Machado
tory interpretation
DVPA,
provisions of the
ing
penalty
(R.I.2003).
State,
509, 512
839 A.2d
subject petty
intended to
“
is well settled that when
‘It
to
misdemeanors
unambig
and
a
is clear
language of
statute
12-29-5(c).
addition,
In
provisions
uous,
interpret
must
this Court
con
suggests
the state
defendant’s
of the
literally
give
and must
the words
of
12-29-2 and
struction
ordinary mean
statute their
rejected
principles
should be
under basic
”
DiCicco,
A.2d
ings.’ State v.
statutory
of
it would
construction because
(R.I.1998). Moreover,
significantly, in
in
Legislature’s
with the
inconsistent
(R.I.
Carter, 827 A.2d
643-44
pun
tent
domestic violence and
prevent
2003),
penal
of a
language
held that the
Lastly,
the state
repeat
ish
offenders.
narrowly,
penal
statute must be read
position produces
argues that defendant’s
in favor
strictly
must
construed
statutes
by allowing
an
result
offenders
absurd
defendant,
and that the
stat
provisions
escape
the enhanced
“
description
a
or defini
‘must contain
ute
12-29-2(e)
num
regard
of
without
to the
comprises
or conduct which
tion of the act
conduct
ber of convictions
stated
contemplated therein
the offense
§ 11-45-1.
”3
certainty.’
legal
Discussion
un-
A conviction
ll-45-l(a),
subjects
the offender
to der
addressing a motion
‘When
45—1(c):
information,
[Superior
penalties enumerated
dismiss
criminal
crime of
“[a]ny
found
person
required to examine the
Court]
imprisoned
disorderly conduct shall be
exhibits to
attached
information
(6) months, or
than six
of not more
has
term
whether the state
satisfied
determine
order,
vio
was not an enumerated
3.
State
offense,
qualifying as a second
2003),
of violat
lence
defendant was convicted
12-
of G.L.1956
pursuant protective order after
a domestic abuse
Therefore,
Carter,
($500) is declared to be a violation.” imposed, ments pay shall be ordered to added.) (Emphases ($25.00) twenty-five dollar assessment. Accordingly, penalty provisions set moneys All collected to this § forth in classify disorderly 11-45-1 con- section deposited general shall be as misdemeanor,” “petty duct as a as revenue.” (Emphases Section 12-29-5. a misdemeanor crime. added.) note, ll-45-l(d) however, Thus, “every person of or by providing, placed cross-references the DVPA convicted “[wjhere on provisions probation crime involving of ‘The Domestic domes- Act,’ 12-29-2, tic chapter Violence Prevention of violence” as defined title applicable, penalties are addition to penalties underlying for the offense, violation of this section shall also include mandatory penal- 12-29-5(a) penalties ty 12-29-5.” 12-29- 5(b).4 contrast, 12-29-5(c)(l) In to addition set forth in does provides: 4. Section of the DVPA or household mem- " includes, (1) (§ 'Domestic violence’ Simple but is not lim- ber another: assault 11- to, 5-3); 11-5-1, (2) (§§ following ited Felony crimes when assaults order, or homicide, a protective violation of “[e]very person convicted encompass in- was for a crime placed probation stalking. on We note violence,” to is limited volving engag- domestic but disorderly conduct for charged with punisha- of an offense persons “convicted violence, or threatening, “fighting, involving as a misdemeanor ble punching behavior” for tumultuous By its 12-29-2.”5 violence as defined residence. to his own kicking the door 12-29-5(c)(l) from its terms, excludes Furthermore, dis- disorderly conduct is that are not provisions offenses crimes enumerated tinct from the other narrowly, read as a misdemeanor. When amorphous particularly its do, language are constrained nature, Legislatures caused which has 12-29-5(e) recognition by a clear formulate a constitu- struggle courts that not all of the domestic tionally appropriate violence offenses enumerated vagueness is not are are misdemeanors. We satisfied 29—5(c)(1) See reclassify challenge. not serve to does or overbreadth Berber, conduct as misdemeanor R.I. *5 Invalidating purposes of the DVPA. Stat- Vagueness (1974); Dealing with Disor- utes Ordinances that one fundamental difference noteWe Conduct, 12 A.L.R.3d derly Persons and the other between (1967 § of these in 12-29-2 is that Mindful Supp.2004). crimes enumerated a necessarily not disorderly distinctions, agree conduct is with the dis- we cannot un- person. example, a For against to these crimes. approach sent’s an person § commit may der a by the state’s persuaded are not We disorderly by merely engag- act of conduct a phrase “misdemeanor argument and there “tumultuous behavior” as defined involving violence a may necessarily complainant a not be 29—5(c)(1), § 12-29-2,” a as used 12— a officer police violation of this statute or 12- by scope whose defined “term of art complainant a violation may serve as criminal of- The classification of 29-2.” exception of tres- of this statute. With controlling 11-1-2 is forth fenses set enumerated pass, the other crimes specifically sets unless by are crimes vio- a partic- different classification forth a against person: lence committed another not determine We will assault, vandalism, ular offense. assault, felony simple assault, suggests. state by implication child-snatching, kidnapping, sexual * * (2) *; under (4) jail 11-5-4); No sentence Disorderly conduct (§ 11-45-1).” suspended. can be this section (3) Nothing subsection shall in this 12-29-5(c)(d) provides: 5. Section limiting the discretion construed as (c)(1) Every an person convicted of au- impose sanctions judges to additional involving do- punishable as a misdemeanor sentencing. thorized violence as mestic defined section, (d) 'bat- purposes of this For the shall: pro- program' means terers intervention (i) imprisoned a second violation be For batterers gram which is certified (10) days and term of not less than ten for a oversight program standards intervention year. one not more than according to minimum stan- committee (ii) subsequent violation a third and For 12-29-5.1, dards, §§ 12-29- impris- guilty and be be deemed added.) 5.2, (Emphasis and 12-29-5.3.” year of not less than oned for term (10) years. than ten and not more reject argument ll-45-l(c) (disor- the state’s General Laws 1956 statute) “[Legislature clearly signal derly intended to conduct requires that “[a]ny petty that even person found misdemeanors were sub- of disor- ject imprisoned enhancement conduct shall be for a 29—5(c)” (6) months, term by amending of not more than six disorderly fined not more than statute in 1998 link it five hundred with the dollars ($500), or penalties both.” Under 11-1- provided in 12-29-5. The 2, petty Legislature’s misdemeanors are those decision include offenses penal- “punishable ties for a term set forth in 12-29-5 for (6) exceeding six months or a fine of conduct committed a family mem- ($500), more than five hundred dollars logically ber is consistent holding, with our * * both reading pro- When these because a defendant who commits a alone, visions there no misdemeanor crime of domestic violence is conduct is as a petty nonetheless However, misdemeanor. such a simplistic 12-29-5(a) vided 12-29- analysis belies the 5(b). Assembly’s leg- General Although a defendant accused of islative intent. mem- ber is not to the enhanced sentenc- It is well-established that when this ing provisions provided by 12-29-5(c), statute, interprets Court “our ultimate penalties provided by § goal give is to effect to the General As- * * * 12-29-5(b) still apply. Our is in holding sembly’s intent. The best evidence harmony legislative with a pre- intent to of such intent can found in *6 vent recidivism domestic violence of- language used in the statute.” State v. by requiring fenders counseling, even Grayhurst, 491, (R.I.2004) 852 A.2d 516 though the offender is not simultaneously (quoting Martone v. Johnston School subjected to the rather draconian threat of Committee, (R.I.2003)). 426, 824 A.2d 431 a felony prosecution up with to ten years If the statute is unclear or ambiguous, in in situations which the however, “glean we will the intent and third punisha- domestic violence is purpose of the ‘from a consid- petty ble as a misdemeanor. statute, eration of the keeping entire nature, object, mind [the] language and herein, For the reasons stated we affirm arrangement’ of to be con- judgment Superior Court. The Wells, 711, strued.” Stebbins v. 818 A.2d record shall be remanded to the (R.I.2003) Cirello, 715 (quoting Mottola Court. (R.I.2002)). 789 A.2d 423 WILLIAMS, Justice, Chief with whom Carter, State v. 827 A.2d Justice FLAHERTY joins, dissenting. (R.I.2003), we held that the DVPA is penal in nature. Under of lenity, the rule respectfully from dissent the holding acknowledge that two constructions of a in this case. We read the sen- possible, analy statute are then the tencing provisions of the Domestic Vio- sis must resolve favor of the defendant. (DVPA) lence Prevention Act applying Smith, misdemeanors, all including petty mis- 2001). Thus, demeanors. we would have remand-
ed so case, this case sen- however, § could be In this (DVPA tenced as a felon to G.L.1956 provision) unambigu- definitions ously 12-29-5. includes conduct as a that if a defendant is so provision apply if it involves crime of domestic violence in the crimes listed convicted of three member “one or household then the third provision, DVPA definition A.2d at See another.” felony re- will be considered (d) conviction disorderly con- Section of the under- of the classification gardless states that “[w]here duct statute lying crime. Pre- visions of ‘The Domestic Violence ** * applicable, are vention consis- is conduct statute Act/ The section shall penalties for violation DVPA, which purpose of the tent with the include the also importance recognize “is to 12-29-5(c)6 (en- society 12-29-5.” Section as a serious crime violence provision) requires sentencing hanced of domestic violence and to assure victims “[e]very person convicted of an of- protection from abuse which the maximum in- fense as a misdemeanor can enforce the law the law and those who domestic violence as defined volving Reading 12-29-1. provide.” Section shall provision] DPVA [the concert * ** subsequent viola- a third and no doubt about [f]or the DVPA leaves us with * * Assembly’s tion be deemed intent. Because the General has only possible interpretation, is no There there crimes; lenity has no application. been convicted of three domestic the rule of only goes to the classification of issue The enhanced those crimes. recidivist, directly and treats aimed at the be- harshly to deter future bad offenders disor- majority holds that because To that domestic disor- havior. conclude derly conduct misdemeanor guidelines derly conduct fails to invoke misdemeanor, conviction disor- sentencing provi- forth in the enhanced set conduct as third domestic domes- ignores potential harm to sion trigger the en- DVPA will very people the tic victims—the violence Car- provision. hanced Under protect. statute is intended to Under ter, held that a 827 A.2d at this Court *7 re- ruling, a defendant who majority’s qualifying would count the crime of domestic peatedly commits pay will continue it in the DVPA only if was enumerated intervention and attend batterer’s fines which includes disor- provision, definition courses, will never be sentenced but among a of ten other list criminal or prison. Although more time majority opinion reading crimes. But construed, strictly statutes must be crime of conjunction ignore such a construction should disorderly conduct would be excluded from meaning of the language, intent and provision. This is an the DVPA definition statute. illogical guts meaning that result DVPA, much Clearly, enacting majority’s puts too opinion The DVPA. Law all word: Black’s Assembly weight intended that misde- on one General misdemeanors) “[rjelatively Dictionary “petty” defines (including petty meanors Black’s Law Dic- or minor.” insignificant listed the DVPA and felonies majori- 12-29-5(a)-(b) underlying posed offense. for the Laws re- 6. General (a)-(b) applies anyone agrees a domestic 9-5 quires ty convicted of 12-2 intervention course offense attend batterer’s conduct. crime of im- pay $25 in addition the sentence (7th 1999). tionary 1166 ed. Accordingly, a the four classifications of crimes based on petty misdemeanor is a misdemeanor that govern. sentences would The DVPA defi- qualifies jail for less time or fines lower provision expressly nition “otherwise misdemeanors, relative to other but it is conduct, vide[s]” as defined still a “petty” misdemeanor. The word provision, “misdemeanor,” simply qualifies and there- within the DVPA and will be treated as a rightly fore is included in felony if the already offender has been sentencing provision. Although domestic twice convicted misdemeanors or felo- disorderly conduct is a petty classified as nies set forth in the DVPA definitions misdemeanor, Legislature explicitly provision.
recognized that in certain situations the reasons, For foregoing we would sentence, would require heftier reverse the decision of Court. specifically a prescribed sentence for felo- 45—1(d). nious conduct. See This
understanding is not inconsistent with distinguishes which between fel-
onies, misdemeanors, petty misdemeanors Significantly, violations. “[ujnless provided”
states that otherwise