State v. Victor Tavares

Opinion

Supreme Court

No. 2023-362-C.A. (P1/06-506B)

State :

v. :

Victor Tavares. :

ORDER The defendant, Victor Tavares, who is not represented by counsel, appeals

from a Superior Court order denying his motion for expungement of two

convictions. This Court directed the parties to appear and show cause why the issues

raised in this appeal should not be summarily decided. After considering the parties’

written and oral submissions, and carefully reviewing the record, we conclude that

cause has not been shown and that this case may be decided without further briefing

or argument. For the reasons set forth herein, we affirm the order of the Superior

Court.

On February 10, 2006, a Providence County grand jury indicted defendant on

two counts of first-degree robbery in violation of G.L. 1956 § 11-39-1 and two

counts of conspiracy pursuant to G.L. 1956 § 11-1-6 (the 2006 action). On August

-1- 2, 2007, defendant pled nolo contendere to one count of first-degree robbery and one

count of conspiracy.

Subsequently, defendant was indicted on two counts of first-degree sexual

assault in violation of G.L. 1956 § 11-37-2 and one count of conspiracy. A jury

convicted defendant of these three charges. Pursuant to Rule 32(f) of the Superior

Court Rules of Criminal Procedure, the state submitted a report averring that the

conduct described in the 2018 indictment violated defendant’s probation originating

from the 2006 action. The defendant was determined to be in violation of his

probation and was sentenced accordingly.

On December 5, 2022, defendant filed a motion for expungement in the 2006

action, stating that the 2006 action was never true-billed by the grand jury nor read

in open court and that G.L. 1956 § 12-1.3-2(a) violates both the United States and

state constitutions given that it excludes violent offenders. In a bench decision

following a hearing, the Superior Court denied defendant’s motion on March 7,

2023, determining that defendant’s motion was akin to a petition for postconviction

relief and should have been filed as such. The defendant then appealed that

determination.1 An order reflecting the hearing justice’s decision entered on March

15, 2023.

1 Because the order denying defendant’s motion entered on March 15, 2023, and the notice of appeal was submitted on March 14, 2023, defendant’s appeal was -2- On appeal, defendant challenges the constitutionality of the expungement

statute. During oral argument, defendant acknowledged that he was challenging his

underlying conviction on constitutional grounds. The defendant certainly has a right

to be heard on a purported violation of his constitutional rights. See G.L. 1956

§ 10-9.1-1. His vehicle to do so, however, is not a motion for expungement. In fact,

this Court has previously denied a similar attempt by defendant to challenge his

underlying conviction in a probation violation stemming from his sexual assault

conviction. See State v. Tavares, 251 A.3d 895, 897 (R.I. 2021) (mem.) (“[T]he

proper method for defendant to contest the procedures surrounding his plea in the

underlying case is through an application for postconviction relief in that case.”).

Postconviction-relief petitions exist squarely for those who allege a violation of their

constitutional rights and who accordingly seek a vacation of their conviction(s). See

§ 10-9.1-1.

Furthermore, we perceive no error in the hearing justice’s denial of the motion

to expunge. Section 12-1.3-2(a) is not applicable to defendant, who plainly is not a

first offender and whose convictions for crimes of violence currently stand. State v.

Badessa, 869 A.2d 61, 65-66 (R.I. 2005); see § 12-1.3-1(1) (defining crime of

violence).

premature. However, the premature notice of appeal is valid because the final order was later entered. State v. Rolle, 84 A.3d 1149, 1154 n.6 (R.I. 2014). -3- For the reasons stated herein, we affirm the order of the Superior Court. The

record shall be returned to the Superior Court.

Entered as an Order of this Court this day of October, 2024.

By Order,

__________________________ Clerk

-4- 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 of Rhode Island v. Victor Tavares.

No. 2023-362-C.A. Case Number (P1/06-506B)

Date Order Filed October 21, 2024

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

Source of Appeal Providence County Superior Court

Judicial Officer from Lower Court Associate Justice Joseph A. Montalbano

For State:

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

Victor A. Tavares, pro se

SU-CMS-02B (revised November 2022)