Harsher sentence on remand not vindictive.


Byline: R.I. Lawyers Weekly Staff

The Rhode Island Supreme Court has upheld the life sentence imposed on a defendant who had successfully appealed his previous conviction for child molestation but was again found guilty after a retrial.

The defendant, James Oliveira, argued that the harsher sentence meted out by the second trial judge was unconstitutional.

Oliveira had been indicted by a grand jury for sexually assaulting his 6-year-old grandson. A Superior Court jury convicted Oliveira of first-degree child molestation sexual assault, and the trial judge sentenced him to 60 years in prison, with 40 years to serve and the remainder suspended, with probation.

However, that conviction was vacated on appeal.

At a second trial before a different judge, the defendant was again convicted of first-degree child molestation sexual assault and was sentenced to life imprisonment.

Oliveira subsequently filed a motion to reduce his sentence under Rule 35 of the Superior Court Rules of Criminal Procedure, which was denied.

Appealing that ruling to the state Supreme Court, the defendant claimed that the second judge, by departing from the first sentence and imposing life imprisonment after retrial, violated the defendant's right to due process by essentially punishing him for the successful appeal of his first conviction.

Writing for the high court, Justice Maureen McKenna Goldberg disagreed.

Citing the U.S. Supreme Court, Goldberg said, "It is well established that 'a corollary of the power to retry a defendant is the power, upon the defendant's reconviction, to impose whatever sentence may be legally...

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