January 27, 2021
Supreme Court
No. 2019-13-C.A. (P2/12-140A)
State :
v. :
Joseph Segrain. :
NOTICE: This opinion is subject to formal revision before publication in the Rhode Island Reporter. Readers are requested to notify the Opinion Analyst, Supreme Court of Rhode Island, 250 Benefit Street, Providence, Rhode Island 02903, at Telephone (401) 222-3258 or Email opinionanalyst@courts.ri.gov, of any typographical or other formal errors in order that corrections may be made before the opinion is published. Supreme Court
Present: Suttell, C.J., Goldberg, Flaherty, and Robinson, JJ.
OPINION
Justice Robinson, for the Court. The defendant, Joseph Segrain, seeks
review of an adjudication of a probation violation after a hearing that took place in
October of 2017 in light of new charges having been filed against him as the result
of a drive-by shooting. At the conclusion of the hearing, the hearing justice found
that the defendant had violated the terms and conditions of his probation, and she
proceeded to order him to serve the nine years remaining on a suspended sentence
which he had received as a result of an earlier conviction. The defendant contends
on appeal that his being ordered to serve the nine years remaining on his suspended
sentence was improperly based solely on the new charges, without due attention
being given to the original conviction for which he was on probation. This case
came before the Supreme Court for oral argument pursuant to an order directing
-1- the parties to show cause why the issues raised in this appeal should not be
summarily decided. After examining the written and oral submissions of the
parties, we are of the opinion that cause has not been shown and that the appeal
may be resolved without further briefing or argument. For the reasons set forth in
this opinion, we affirm the judgment of the Superior Court.
I
Facts and Travel
On January 10, 2012, defendant pled nolo contendere to one count of
possession of marijuana with intent to distribute.1 Following defendant’s plea, the
trial justice sentenced defendant to ten years of incarceration, with one year to
serve and nine years suspended, with probation. The defendant remained on
probation on January 9, 2017, when the events at issue in this case transpired;
following a shooting incident on that date (described below), defendant was
arrested and charged with various crimes. Subsequently, the state filed a notice of
1 The defendant also pled nolo contendere to one count of maintaining a common nuisance for the sale of controlled substances and received a three-year suspended sentence on that count. However, the plea as to that count has no relevance to the instant appeal.
-2- probation violation pursuant to Rule 32(f) of the Superior Court Rules of Criminal
Procedure, which gave rise to the instant case.2
On various dates between October 12 and October 25, 2017, a probation
violation hearing was held in the Superior Court. We recount below the salient
aspects of the hearing.
A
The Testimony of Dana Smith
The first witness to testify was Dana Smith, the official in charge of security
operations for the Superior Court. Mr. Smith testified that, on January 9, 2017, he
was working at the Licht Judicial Complex when he saw two men exit Courtroom
10, followed by Attorney Lauren Balkcom. It is clear from the record that those
two men were defendant and one John Laboy.3 Mr. Smith testified that, after
defendant was asked what business the two men had in the courthouse, defendant
2 The instant case deals only with defendant’s appeal from his probation violation sentence. The Court at this time is not addressing the charges stemming from the January 9, 2017 events. 3 According to the uncontradicted testimony adduced at the hearing, there are two gangs that are relevant to the instant case: Bucket East and Bucket West. The defendant and Mr. Laboy are members of the Bucket East gang. Certain of the other witnesses who testified in this matter are also members of the Bucket East gang. On the other hand, Carlos DePina and Nelson Barbosa, who are also referenced in this opinion, are members of the Bucket West gang. The two gangs are rivals.
-3- responded either “‘I’m here for my boy’” or “‘I’m here for * * * my brother,’” but
he provided no further information.
Mr. Smith, who was standing outside the door to Courtroom 10, testified
that during this conversation he noticed “four [other] gentlemen sitting in the back
of the courtroom” who “were kind of almost ducking * * *.” Mr. Smith testified
that Mr. Laboy, who had already left the courtroom, “turned toward the guys
sitting in the courtroom and made a hand gesture toward his throat.” Mr. Smith
stated that, at that point, he asked Mr. Laboy to leave the courthouse and that
defendant left shortly thereafter. Mr. Smith stated that, upon exiting onto Benefit
Street, defendant joined a group of approximately fifteen individuals, including
Mr. Laboy, who “went to the left, right to College Hill * * * [and] started walking
up the hill.”4 Mr. Smith further stated that the group proceeded to get into two cars
parked on College Street; he added that defendant sat in the driver’s seat of a blue
SUV-style BMW.
Mr. Smith further testified that, after defendant and his companions had left
the courthouse, the four men who had been seated in the back row of Courtroom
10 also left the courthouse. Mr. Smith stated that, between three and five minutes
4 The record reflects that Mr. Smith and other witnesses referred to the street on which defendant had parked his vehicle as “College Hill.” However, it is clear from Mr. Smith’s testimony and the record as a whole that all references to “College Hill” were intended to mean “College Street,” which street is located adjacent to the Providence County Superior Court. We shall hereinafter use the term “College Street.”
-4- after those four individuals had left, he heard gunshots and immediately proceeded
to the area from whence the shots had emanated. He stated that, upon arriving
there, he discovered that shots had been fired at a white vehicle; he added that an
ambulance had arrived and emergency personnel had already removed the victim
from the vehicle.
B
The Testimony of Attorney Lauren Balkcom
The next witness to testify was Attorney Lauren Balkcom. Attorney
Balkcom testified that, on January 9, 2017, she was at the Providence County
Superior Court representing Carlos DePina5 on charges unrelated to the present
case. She stated that Carlos was seated next to several companions6 in the back of
Courtroom 10. Those companions included Carlos’s cousin, Mathew DePina, and
Mathew’s brother, Jovan, and his cousin, Nelson Barbosa.7
5 We note at the outset that the surname of three individuals to whom we make reference in this opinion is DePina—those individuals are Carlos, Mathew, and Jovan. Mathew and Jovan are brothers; Carlos is their cousin. To avoid confusion, we will refer to each by his first name. In doing so, we intend no disrespect. 6 It is clear from the record that Carlos’s companions were at the courthouse to support him. None of them had a scheduled court date on January 9, 2017. 7 For purposes of consistency, we will also refer to Nelson by his first name. In doing so, we intend no disrespect.
-5- Attorney Balkcom testified that, after participating in a conference with a
trial justice relative to Carlos’s case, she spoke with Carlos in the back of the
courtroom. She testified that, while she was discussing Carlos’s case with him,
defendant entered the courtroom and sat in the space between Carlos and his
companions. Attorney Balkcom further testified that, after exchanging brief
remarks with defendant, she told him: “I can’t ask you to leave the courtroom, but I
will ask you to please leave my conversation * * *.” She noted that, before exiting
the courtroom, defendant looked in her and Carlos’s general direction and
“wav[ed] his hand back and forth across where his neck was.” Attorney Balkcom
also testified that another individual—who she later learned was Mr. Laboy—made
similar hand gestures from outside the courtroom door.
Attorney Balkcom testified that, inside the courtroom, one of Carlos’s
companions showed her a Facebook Live8 video on his cellular phone, which
depicted a group of people—one of whom she recognized as Mr. Laboy—standing
outside the Benefit Street entrance of the courthouse. She noted that, in the video,
Mr. Laboy made hand gestures similar to those she had observed him making
8 Facebook Live is a feature of Facebook, an online social networking platform, that allows users to “[g]o live on Facebook to broadcast a conversation, performance, Q&A or virtual event.” See https://facebook.com/formedia/ solutions/facebook-live (last visited January 25, 2021).
-6- earlier; she added that he also said: “F*** you. F*** your Public Defender lawyer.
F*** the West. We’re going to get you, boy * * *.”
Attorney Balkcom next testified that she went to the window of Courtroom
10, from which she saw the same group of individuals getting into two vehicles—
one of which was a blue SUV-style BMW. She further stated that she took
photographs of both vehicles when they drove down College Street, and she
identified defendant as the driver of the BMW. She added that, as she was
standing on the first floor preparing to leave the courthouse, she saw Mr. Smith
running out of the courthouse onto South Main Street. She stated that she followed
Mr. Smith across South Main Street toward the Crawford Street Bridge,9 where she
observed an individual—who she later learned was Mathew—being placed onto a
stretcher.
C
The Testimony of Mathew DePina
Mathew, the victim of the shooting, also testified at the hearing. Mathew
testified that, on January 9, 2017, he picked up Carlos, Jovan, and Nelson and
9 We note that Attorney Balkcom did not indicate the name of the bridge during her testimony, but only described its location. She stated as follows: “I ran across South Main Street and I ran over to where the bridge is. So if you go across South Main Street and there’s a big statute [sic] right outside, on the other side of the street I went to the left of that over towards that bridge.” Based on Attorney Balkcom’s detailed narrative, we infer that she was referring to the Crawford Street Bridge.
-7- drove them to the courthouse. Mathew testified that, after he parked the car near
the courthouse, the group proceeded to Courtroom 10 to be with Carlos. Mathew
stated that they sat in the back row of the courtroom.
Mathew testified that, while he and his companions were seated in the
courtroom, defendant entered the courtroom, accompanied by a group of
approximately ten individuals, and he sat directly between Nelson and Jovan.
Mathew stated that, after Attorney Balkcom asked defendant to leave the area, “he
did like a sniffle, a gesture, and after that called [Carlos’s] lawyer a public
attorney” before exiting the courtroom with the individuals who had accompanied
him.
Mathew testified that, while still inside the courtroom, he watched a
Facebook Live video on his cellular phone, which video showed “John Laboy and
the group of people that [had been] inside the courtroom.” In further describing
the video, Mathew said: “They was outside the courtroom doing gestures, hand
gestures, saying * * * f*** both my cousins, Nelson and Carlos, and everybody
from the West.”
Mathew testified that, when he returned to his car, he noticed defendant
driving a dark-colored SUV-style BMW nearby. Mathew stated that he left his
parking spot to pick up his cousins and brother and that, while driving, he noticed
that a vehicle was following him. He testified that, as he continued driving, he saw
-8- the BMW pull up alongside his car. Mathew stated that shots were fired and that
he was struck by bullets in the back, neck, and shoulder; he added that he
continued driving until he crashed his car into a snow bank.
D
The Testimony of Brandon Bates
Brandon Bates, a member of the Bucket East gang, also testified at the
hearing. He stated that, on January 9, 2017, he drove Mr. Laboy to the courthouse
because Mr. Laboy had a court date. He added that he parked his car on College
Street, a few spaces behind defendant’s BMW. Mr. Bates testified that, when he
arrived at the courthouse, he observed a number of individuals from the Bucket
East gang, including defendant. He stated that, when those individuals later exited
the courthouse, they remained on the steps in front of the Benefit Street entrance.
He specifically noted that the group was waiting for Carlos to leave because if
Carlos “tried something * * * we were going to have to beat him up.” Mr. Bates
added that they stood outside for twenty to thirty minutes before heading back to
their cars. Mr. Bates stated that he and Mr. Laboy got into Mr. Bates’s Nissan
Altima and that he saw defendant get into the driver’s seat of the BMW.
Mr. Bates testified that, while waiting for Carlos to leave the courthouse, he
parked his car near Mathew’s car, which Mr. Bates called a “Chevy,” and drove
around in another gang member’s car before returning to his own vehicle so as to
-9- leave the area. He noted that, when he arrived back at his car, the Chevy started
pulling out of its parking spot. Mr. Bates then stated that he followed the Chevy
and, shortly thereafter, defendant pulled his BMW up alongside the Chevy and
opened fire.
E
The Testimony of Samuel10
Sixteen-year-old Samuel testified at the hearing that, on January 9, 2017, he
was in Providence riding in a black BMW which was following a white Chevy.
Samuel stated that he saw defendant shoot into the white Chevy. He testified that
defendant then sped away from the scene.
F
The Hearing Justice’s Decision
In her bench decision at the close of the hearing, the hearing justice set forth
her factual findings. The hearing justice based her findings of fact on what she
deemed to be the credible testimony of a number of witnesses,11 as well as several
still photographs and videos that were entered into evidence as full exhibits.
10 We refer to the witness pseudonymously. 11 Although other witnesses also testified, the hearing justice specifically referred to the testimony of Dana Smith, Attorney Balkcom, Mathew DePina, Brandon Bates, and Samuel, as well as three additional witnesses—Geovanni Perez, Neil Clapperton, and Nathan Tek—whose testimonies we need not recount for the purposes of this appeal.
- 10 - Taking into account her factual findings and the evidence she deemed credible, the
hearing justice found that, on January 9, 2017, defendant acted in a “hostile and
aggressive manner” in Courtroom 10 due to his hostility toward Carlos, a member
of a rival gang. She found that, despite being asked to leave the area by security
officers, defendant and his fellow gang members “remained in the area in an effort
to have a violent confrontation with Carlos DePina when he left the
courthouse * * *.” The hearing justice further found that neither Carlos nor his
companions were interested in engaging in a confrontation with defendant or the
members of his gang; she found that, in fact, they demonstrated a strong desire to
avoid a confrontation. She found that defendant was the driver of the BMW and
that he discharged a firearm at the Chevy, causing Mathew to suffer serious
injuries. In view of these findings, the hearing justice ultimately declared
defendant a probation violator.
After hearing brief argument from counsel with respect to sentencing, the
hearing justice, in making her decision, focused on both the underlying 2012
conviction for possession of marijuana with intent to distribute, as well as the more
recent conduct that triggered the Rule 32(f) violation hearing. She further stated
that, in reaching a sentencing decision, a hearing justice “must consider the
possibilities for [d]efendant’s rehabilitation, deterrence to others[,] and
appropriateness of the punishment for the crime committed.” The hearing justice
- 11 - recognized the fact that defendant had not been convicted of any crimes since his
2012 conviction and that he had children at home. She nonetheless stated that
“[t]he severity of the new conduct is such that I feel the need to revoke his
remaining probation * * *.” Consequently, after noting that the 2012 sentence was
“a pretty generous one,” the hearing justice ordered defendant to serve the nine
years remaining on his previously imposed suspended sentence.
A judgment entered12 sentencing defendant to the nine years remaining on
his suspended sentence. The defendant timely filed a notice of appeal.
II
Standard of Review
It is well established that it is the duty of the court at a probation violation
hearing to determine “whether or not the defendant has breached a condition of his
or her probation by failing to keep the peace or remain on good behavior.” State v.
Ditren, 126 A.3d 414, 418 (R.I. 2015) (internal quotations marks omitted); see
State v. Fairweather, 138 A.3d 822, 826 (R.I. 2016). Pursuant to Rule 32(f) of the
Superior Court Rules of Criminal Procedure, as amended in 2016,13 the state must
12 No judgment is contained in the physical record transmitted to this Court, nor is one available in the electronic filing system. However, the docket reflects a judgment of conviction on October 25, 2017, and defendant has attached an undated and unsigned copy of the judgment to his Rule 12A statement. 13 We are cognizant of the fact that “a 2016 amendment to Rule 32(f) of the Superior Court Rules of Criminal Procedure increased the state’s burden of proof
- 12 - establish “by a fair preponderance of the evidence that the defendant breached a
condition of the defendant’s probation or deferred sentence or failed to keep the
peace or remain on good behavior.” State v. D’Amico, 200 A.3d 1068, 1071-72
(R.I. 2019) (emphasis added) (internal quotation marks omitted); see also Super. R.
Crim. P. 32(f).
We have stated that, “[i]n making this determination, the hearing justice
weighs the evidence and assesses the credibility of the witnesses.” State v. Prout,
116 A.3d 196, 202 (R.I. 2015) (internal quotation marks omitted). We have further
stated that deference should be accorded “to the assessment of the credibility of
witnesses made by a judicial officer who has had the opportunity to listen to live
testimony and to observe demeanor.” State v. Washington, 42 A.3d 1265, 1271
(R.I. 2012) (internal quotation marks omitted). This Court’s review is “limited to
considering whether the hearing justice acted arbitrarily or capriciously in finding a
violation.” State v. Beaudoin, 137 A.3d 726, 732 (R.I. 2016) (internal quotation
marks omitted); see Prout, 116 A.3d at 202.
such that it must now establish by a fair preponderance of the evidence that the defendant breached a condition of the defendant’s probation or deferred sentence or failed to keep the peace or remain on good behavior.” State v. D’Amico, 200 A.3d 1068, 1071-72 (R.I. 2019) (internal quotation marks omitted).
- 13 - III
Analysis
The defendant contends that the hearing justice erred in sentencing him to
serve the full nine years of a previously suspended sentence. In particular,
defendant points out that, in his view, after brief statements about defendant’s
background and character, the hearing justice “strayed in her analysis of
formulating an appropriate sentence by focusing solely on the charges that had
been alleged as a basis for the violation of probation.” The defendant further
contends that the hearing justice did not know the facts of the underlying case prior
to sentencing.
It is well established that “the unexecuted portion of a probationer’s
suspended sentence hangs over his or her head by the single horsehair of good
behavior, until such time as the term of probation expires.” State v. Parson, 844
A.2d 178, 180 (R.I. 2004); see State v. McKinnon-Conneally, 101 A.3d 875, 879
(R.I. 2014). When a defendant severs that single horsehair by violating the terms
and conditions of his or her probation, the hearing justice has “wide discretion to
determine whether to execute any or all of a defendant’s previously suspended
sentence.” McKinnon-Conneally, 101 A.3d at 879 (emphasis added); see Neufville
v. State, 172 A.3d 161, 165 (R.I. 2017). It is also well established that although a
hearing justice must focus primarily on the nature of the first offense, he or she
- 14 - may also consider the circumstances of the second offense. McKinnon-Conneally,
101 A.3d at 879; see Neufville, 172 A.3d at 166.
In our view, the hearing justice did not abuse her discretion by taking into
account the severity of defendant’s new conduct in sentencing defendant to the
nine years remaining on his previously suspended sentence. See State v. Simpson,
174 A.3d 1238, 1243-44 (R.I. 2018); Neufville, 172 A.3d at 165-66; State v.
Shepard, 33 A.3d 158, 166 (R.I. 2011); State v. Wisehart, 569 A.2d 434, 437-38
(R.I. 1990). We recognize that the hearing justice gave great weight to the gravity
of the charges precipitating the probation violation hearing, stating that “this
particular conduct while on probation would tend to suggest that [defendant] is not
a good candidate for rehabilitation.” We have found that consideration of the
severity of a defendant’s more recent wrongdoing as it relates to his or her ability
to be rehabilitated is a factor that may be appropriately considered in making a
sentencing determination. See Simpson, 174 A.3d at 1244; Shepard, 33 A.3d at
166; Wisehart, 569 A.2d at 438.
We also are not persuaded by defendant’s contention that the instant case is
directly comparable to our decision in State v. Fortes, 114 R.I. 161, 330 A.2d 404
(1975). In that case, the defendant had pled nolo contendere and received a
deferred sentence for possession of marijuana. Fortes, 114 R.I. at 162, 330 A.2d at
406. After finding that defendant had violated the terms of his deferred sentence
- 15 - by committing assault with intent to murder, the hearing justice entered judgment
against the defendant, sentencing him to fifteen years at the Adult Correctional
Institutions. Id. at 163, 330 A.2d at 406. After reviewing the record in that case,
this Court concluded that the sentence was “excessive” and was “unduly
influenced by the seriousness of the offense which precipitated the revocation
hearing and the resulting grievous injuries to the victim of that offense.” Id. at
173-74, 176, 330 A.2d at 411, 412.
We do not believe that the instant case is genuinely comparable to Fortes.
First, in the case now before this Court, the offense underlying defendant’s
probationary sentence is possession of marijuana with intent to distribute—an
offense for which a sentence of up to thirty years is available under the statute.14
Second, and perhaps more importantly, the hearing justice clearly stated that she
based her sentencing decision on several factors, namely: the seriousness of the
2012 conviction; the gravity of the more recent conduct; the possibility of
rehabilitation; and other traditional sentencing factors. We are persuaded that the
hearing justice in the instant case considered several appropriate factors in making
14 The defendant was charged and pled nolo contendere to possession of marijuana with intent to distribute under G.L. 1956 § 21-28-4.01(a)(4)(i). That section reads as follows: “Any person, except as provided for in subdivision (2) of this subsection, who violates this subsection with respect to: (i) A controlled substance, classified in schedule I or II, is guilty of a crime and, upon conviction, may be imprisoned for not more than thirty (30) years, or fined not more than one hundred thousand dollars ($100,000) nor less than three thousand dollars ($3,000), or both * * *.” Section 21-28-4.01(a)(4)(i) (emphasis added).
- 16 - her sentencing decision and that she did not rely solely on the new charges pending
against defendant.
Accordingly, we are of the opinion that, by executing the full nine years of
the defendant’s original suspended sentence, the hearing justice acted well within
her discretion.
IV
Conclusion
For the reasons set forth in this opinion, we affirm the judgment of the
Superior Court. The record may be returned to that tribunal.
Justice Lynch Prata and Justice Long did not participate.
Justice Flaherty participated in the decision but retired prior to its publication.
- 17 - STATE OF RHODE ISLAND SUPREME COURT – CLERK’S OFFICE Licht Judicial Complex 250 Benefit Street Providence, RI 02903
OPINION COVER SHEET
Title of Case State v. Joseph Segrain.
No. 2019-13-C.A. Case Number (P2/12-140A)
Date Opinion Filed January 27, 2021
Justices Suttell, C.J., Goldberg, Flaherty, and Robinson, JJ.
Written By Associate Justice William P. Robinson III
Source of Appeal Providence County Superior Court
Judicial Officer from Lower Court Associate Justice Netti C. Vogel
For State:
Owen Murphy Attorney(s) on Appeal Department of Attorney General For Defendant:
Christopher S. Gontarz, Esq.
SU-CMS-02A (revised June 2020)