State v. Brian Smith

Supreme Court

No. 2020-139-C.A.
(K2/16-637A)

State :

v. :

Brian Smith. :

ORDER

The defendant, Brian Smith,1 appeals from an order of the Kent County

Superior Court denying his motion for “credit for time served while awaiting

trial[.]”2 This case came before the Supreme Court pursuant to an order directing

the parties to show cause why the issues raised in this appeal should not be

summarily decided. After carefully considering the parties’ arguments (both written

and oral) and after reviewing the record, we are of the opinion that cause has not

1
The defendant appeared before this Court pro se, as was the case in the
Superior Court.
2
In a bench decision, the trial justice denied defendant’s motion for “credit for
time served while awaiting trial,” but no order was entered reflecting that denial. On
March 24, 2021, this Court ordered the case remanded for the entry of an order and
a separate judgment of conviction. Such an order and judgment were entered on
April 21, 2021.

-1-
been shown and that the appeal may be resolved without further briefing or

argument. For the reasons set forth below, we affirm the order of the Superior Court.

On April 4, 2016, defendant was found guilty in the Newport County Superior

Court on two counts of simple assault. On May 18, 2016, defendant received two

consecutive sentences of one year to serve for those convictions (the Newport

County case). The defendant was incarcerated pursuant to those sentences from

April 4, 2016 through October 1, 2017.

On December 14, 2016, in a matter unrelated to the Newport County case,

defendant appeared before the Providence County Superior Court and pled nolo

contendere to one count of second-degree child molestation; he was sentenced to ten

years, with two years to serve and eight years suspended, with probation (the

Providence County case). The defendant was incarcerated pursuant to that sentence

from April 4, 2016 until January 8, 2018.

On November 25, 2016, defendant was arraigned in the Kent County Superior

Court on four counts of second-degree child molestation (the Kent County case).

Approximately one year after the filing of the information, on December 14, 2017,

defendant pled nolo contendere in the Kent County case to two counts of second-

degree child molestation in violation of G.L. 1956 §§ 11-37-8.3 and 11-37-8.4. As

part of his plea, defendant agreed to two concurrent sentences of ten years, with six

years to serve retroactive to June 1, 2017 and four years suspended, with probation.

-2-
Almost two years later, on October 7, 2019, defendant filed in the Kent

County case a motion for “credit for time served awaiting trial.” At the initial

hearing on that motion, on October 31, 2019, defendant argued that, pursuant to

G.L. 1956 § 12-19-2(a),3 he was entitled to a credit to be “administratively applied

against [his] term of incarceration for the period of time from [his] arraignment until

the time of trial or sentencing.” Specifically, defendant contended that he was

entitled to credit for a “total of one year and 19 days,” representing the time spent

awaiting trial from November 25, 2016 to December 14, 2017 in the Kent County

case. Due to defendant’s having failed to send a copy of his motion to the

3
General Laws 1956 § 12-19-2(a) reads in pertinent part as follows:

“(a) 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; and provided, further, that in the case of a
person sentenced to a life sentence, the time at which he
or she shall become eligible to apply for parole shall be
reduced by the number of days spent in confinement while
awaiting trial and while awaiting sentencing * * *.”

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Department of Corrections, the trial justice continued the matter to December 6,

2019.4

At the hearing on December 6, 2019, defendant reiterated the above-

summarized arguments—namely, that he was entitled to a credit under § 12-19-2(a)

in connection with “the time served while awaiting trial and awaiting sentencing,”

which he contended should be automatically applied against his term of

incarceration. In opposition, the Department of Corrections argued that, because

defendant had been sentenced and was serving “on something” from May 18, 2016

through the date of his plea in the Kent County case on December 14, 2017,

§ 12-19-2(a) did not apply. The Department of Corrections further argued that,

under § 12-19-2(a), only those who, prior to trial and sentencing, were not already

serving a sentence would be entitled to the credit referenced in defendant’s motion.5

4
In the period between the hearing on October 31, 2019 and the further hearing
on December 6, 2019, defendant filed a motion relative to the Kent County case; it
was entitled “Supplemental Motion for Sentence Restructuring,” which was also
scheduled to be heard at the December hearing. In the later-filed motion, defendant
contended that there should be a “restructuring” of his sentence in the Kent County
case so that it would “run fully concurrently with the sentences of the other related
convictions.” However, in spite of the fact that defendant purports to be appealing
from his “motion for sentence restructuring,” the record contains only an order
denying defendant’s “motion for credit for time served awaiting trial[.]”
5
In response to the assertion by the Department of Corrections that defendant
was continuously sentenced “on something” from May 18, 2016 through the date on
which he pled in the Kent County case (December 14, 2017), defendant contended
that he had been granted parole in the Newport County case in September of 2016.
Accordingly, defendant argued that he had not been serving for a period of
-4-
The Department of Corrections stated that, had defendant “been held all this time

and * * * not been sentenced on anything, he would have been entitled to that

awaiting trial time[.]” The Department of Corrections emphasized, however, that

that was not what actually happened in this case, and it therefore contended that

defendant was not entitled to the credit that he sought.

The trial justice agreed with the argument of the Department of Corrections

and ruled that the provisions of § 12-19-2(a) did not apply to defendant’s “sentencing

circumstances.” Accordingly, the trial justice denied defendant’s motion for “credit

for time served while awaiting trial” in view of the fact that defendant was serving

pursuant to another sentence and was incarcerated during the time as to which he

claimed that he was entitled to a credit. The defendant filed a timely notice of appeal.

approximately three months, until his parole was revoked in December of that same
year. In reply, the Department of Corrections pointed out that the parole board had
at one time mistakenly determined that defendant was merely eligible for parole and
not released on parole. The Department of Corrections further averred, however,
that said determination by the parole board was predicated on a clerical error in that
there was an administrative notation to the effect that the sentences in the Newport
County case were concurrent, although they were in actuality consecutive. (The
Department of Corrections added that that clerical error was subsequently
corrected.) Accordingly, the Department of Corrections contended that defendant
was “not eligible for parole” and had in fact continued being incarcerated throughout
that three-month period.

-5-
In his papers before this Court, defendant relies on the same arguments as he made

below.6

It is well settled that “[t]he Legislature’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.

Wray, 101 A.3d 884, 887 (R.I. 2014) (internal quotation marks omitted); see State

v. Ilacqua, 765 A.2d 822, 824 (R.I. 2001) (“Such an individual is in limbo because

the time spent awaiting trial or sentence [can] not be credited towards any future

parole.”) (internal quotation marks omitted).

Here, the defendant was not in “a sort of limbo” during the time in which he

was held awaiting trial at the ACI in the Kent County case. Wray, 101 A.3d at 887.

On May 18, 2016, the defendant’s status had “changed from awaiting trial or

sentencing status to that of one serving a * * * prison sentence.” Id. at 888 (internal

quotation marks omitted). It is clear that the defendant had been serving his

sentences in both the Newport County and Providence County cases during the entire

period relative to which he contends that he is entitled to a credit. See State v.

6
On appeal, defendant raises several constitutional arguments which were not
raised below. As such, those arguments are not properly before us on appeal. See
Decathlon Investments v. Medeiros, 252 A.3d 268, 270 (R.I. 2021) (“According to
this Court’s well settled raise-or-waive rule, issues not properly presented before the
trial court may not be raised for the first time on appeal.”).
-6-
Skirvin, 113 R.I. 443, 447, 322 A.2d 297, 300 (1974) (“Even if [the defendant] could

have made bail at any time [during that period], he could not have left the prison.”).

As such, we are satisfied that the trial justice was correct in his ruling that the

provisions of § 12-19-2(a) were not applicable to this case.

Accordingly, we affirm the order of the Superior Court. The record shall be

returned to that tribunal.

Entered as an Order of this Court this 4th day of March 2022.

By Order,

/s/ Debra A. Saunders, Clerk

Clerk

-7-
STATE OF RHODE ISLAND
SUPREME COURT – CLERK’S OFFICE
Licht Judicial Complex
250 Benefit Street
Providence, RI 02903

ORDER COVER SHEET

Title of Case State v. Brian Smith.

No. 2020-139-C.A.
Case Number
(K2/16-637A)

Date Order Filed March 4, 2022

Suttell, C.J., Goldberg, Robinson, Lynch Prata, and
Justices
Long, JJ.

Source of Appeal Kent County Superior Court

Judicial Officer from Lower Court Associate Justice Daniel A. Procaccini

For State:

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

Brian Smith, Pro Se

SU-CMS-02B (revised June 2020)