Opinion
December 20, 1978.
PRESENT: Bevilacqua, C.J., Joslin, Kelleher, Doris and Weisberger, JJ.
CRIMINAL LAW. Motion for Reduction of Sentence. Absent any documentation which would support inference that there was no justification for defendant's ten-year sentence for committing an abominable and detestable crime against nature or that his sentence was grossly disparate from sentences generally imposed after similar convictions, defendant's motion for reduction of ten-year sentence would not be granted. Gen. Laws 1956, § 11-10-1; Rules of Criminal Procedure, rule 35.
Defendant, convicted of committing an abominable and detestable crime against nature, moved that his ten-year prison sentence be reduced. The Superior Court, Washington County, Bulman, J., denied motion, and defendant appealed. The Supreme Court, Kelleher, J., held that absent any documentation which would support any inference that there was no justification for sentence or that sentence was grossly disparate, motion would be denied.
Appealed denied and dismissed.
Julius C. Michaelson, Attorney General, John S. Foley, Special Assistant Attorney General, for plaintiff.
Charles H. Gifford III, Lawrence F. O'Donnell, Michael J. O'Donnell, for defendant.
The defendant, George C. Levitt, appeals from the Superior Court denial of a motion in which he asked that his 10-year sentence be reduced. The sentence was imposed after a jury found him guilty of committing an abominable and detestable crime against nature, to wit, fellatio. The events leading up to this conviction have been set forth in State v. Levitt, 118 R.I. 32, 371 A.2d 596 (1977).
The motion to reduce sentence was instituted pursuant to the pertinent provisions of Super. R. Crim. P. 35 and was heard by the trial justice who had imposed the 10-year sentence. At the hearing Levitt's counsel variously described the female complainant as an "incredible victim" and "a true daughter of Eve," adding that "this isn't the little Red Riding Hood in the woods that gets visited by a wolf." However, the trial justice, in reviewing the evidence which indicated that Levitt had threatened the complainant with a gun and tied her up, characterized Levitt's conduct as "sadistic and brutal."
In his appeal Levitt has filed a brief in which, under the section "Points Raised," his counsel lists "thirty-five (35) Incredible Facts." Later in the brief we find the assertion: "The disproportionate magnitude of sentence in light of the incredible facts of this case, rather than aiding in rehabilitation, or serving as deterrent, causes only bitterness, cynicism and contempt for our system of jurisprudence." While this language may be a masterpiece of rhetoric, it is a poor substitute for the discussion of the legal principles which should guide us in our consideration of Levitt's appeal.
An accused convicted of committing a crime against nature runs the risk of receiving a jail sentence which can range from a minimum of 7 years to a maximum of 20 years. General Laws 1956 (1969 Reenactment) § 11-10-1. In State v. Fortes, 114 R.I. 161, 330 A.2d 404 (1975), we recognized the inherent power of this court to review any alleged excessive sentence. Nevertheless, we said that this power would be used only in the exceptional case where the record positively points to the conclusion that there is no "justification" for the imposition of a sentence that is "grossly disparate" from a sentence generally imposed for a similar offense.
Levitt's repeated attacks on the complainant's credibility are of little assistance to us in our consideration of the issue which must be resolved when an individual challenges the denial of a Rule 35 motion. Here there is not one shred of documentation which would support any inference either that there is no justification for Levitt's 10-year sentence or that his sentence is "grossly disparate" from sentences generally imposed after similar convictions.
Since the defendant has fallen far short of fulfilling his burden under Fortes, his appeal is denied and dismissed.