Supreme Court

No. 2014-324-C.A.

(P1/07-1896AG)

(P1/06-776A)

State :

v. :

Michael Ciresi. :

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 

222-3258 of any typographical or other formal errors in order that 

corrections may be made before the opinion is published.
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 Supreme Court

No. 2014-324-C.A.

(P1/07-1896AG)

(P1/06-776A)

State :

v. :

Michael Ciresi. :

Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

O P I N I O N

Justice Indeglia, for the Court. The defendant, Michael Ciresi (Ciresi or defendant), 

appeals the denial of his motion to reduce his sentence. This case came before the Supreme 

Court on November 30, 2016, pursuant to an order directing the parties to appear and show cause 

why the issues raised in this appeal should not be summarily decided. After hearing the 

arguments of counsel and reviewing the parties’ memoranda, we are satisfied that cause has not 

been shown. Accordingly, we shall decide the appeal at this time without further briefing or 

argument. For the reasons set forth herein, we affirm the judgment of the Superior Court. 

I

Facts and Travel

The facts underlying this case are set forth in State v. Ciresi, 45 A.3d 1201, 1210 (R.I. 

2012), where this Court affirmed defendant’s nine-count criminal conviction. Those counts 

included: burglary, conspiracy to commit burglary, use of a firearm when committing a crime of 

violence, attempted larceny, receiving stolen goods, harboring a criminal, and obstructing justice. 

Id. The aggregate sentences for all of Ciresi’s convictions totaled thirty-five years, with twenty 
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years to serve and fifteen years suspended with probation, to run concurrently, and a ten-year 

suspended sentence to run consecutively.

1

 

On October 31, 2012, subsequent to our opinion, defendant moved to reduce his sentence 

pursuant to Rule 35 of the Superior Court Rules of Criminal Procedure. In his motion, Ciresi 

asserted that, since beginning his sentence, he has accepted responsibility for his decisions. He 

noted the numerous programs he has participated in and completed while incarcerated, including 

one leading to his receipt of a college degree. Ciresi maintained that his efforts to better himself 

while in prison “are demonstrative of the tenor and extent of his sincerity, his acceptance of 

responsibility, remorse and resolution to be an honest, useful member of society.” The defendant 

also referenced the hardship of parenting his two sons while in prison.

Ciresi then argued that his sentence violated the Eighth Amendment to the United States 

Constitution because it exceeded the guidelines set forth in the Superior Court Sentencing 

Benchmarks (the benchmarks). Specifically, he asserted that the sentence for one count of 

burglary (thirty-five years, with twenty to serve and fifteen suspended) exceeded benchmark 5’s

 1 For each of defendant’s nine convictions, the trial justice imposed the following sentences:

“(1) one year to serve for misdemeanor receipt of stolen goods; (2) 

ten years to serve for attempted larceny from the ATM machine; 

(3) five years to serve for the harboring of Darryl Streeper; (4) one 

year to serve for obstruction of justice; (5) thirty-five years, twenty 

years to serve and fifteen suspended, with probation, for the East 

Avenue burglary; (6) ten years to serve for conspiracy to commit 

the East Avenue burglary; (7) ten years to serve, consecutive to the 

East Avenue burglary sentence, but suspended, for the firearm 

charge; (8) ten years to serve for the Charles Street burglary; and 

(9) ten years to serve for conspiring to commit the Charles Street 

burglary. The trial justice directed that all of these sentences were 

to run concurrently aside from the firearm charge.” State v. Ciresi, 

45 A.3d 1201, 1210 (R.I. 2012).
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sentencing range.

2

 The defendant contended that his one-year sentence for receiving stolen 

goods and his ten-year sentence for attempted larceny also surpassed the guidelines set forth in 

benchmark 193 and benchmark 15,4 respectively. He argued that “a large departure [from the 

recommended guidelines] may be viewed as a ‘cruel and unusual’ [sic] in violation of the Eighth 

Amendment * * * .” The Defendant also cited to State v. Hall, 940 A.2d 645 (R.I. 2008), for the 

proposition “that all facts that increased the maximum sentence of a defendant, except for prior

convictions, must be found by a jury.” Id. at 657 (citing Blakely v. Washington, 542 U.S. 296, 

301 (2004)). In this regard, Ciresi argued that his severe sentence was based on the fact that he 

was a police officer when the crimes were planned and carried out, which was not proved to a 

jury. 

On May 12, 2014, a justice of the Superior Court heard the parties on Ciresi’s motion.5 

His attorney first noted defendant’s involvement and participation in various programs while 

incarcerated. He also asked the court to consider defendant’s sons, arguing that “it’s a very 

meaningful part of his life and one that he would very much like to connect with.” Before

defendant spoke, the hearing justice noted defendant’s decision not to allocute at his sentencing

because he intended to appeal the decision. Ciresi, appearing via video from prison, expressed 

regret and shame for his conduct, and said that he accepted responsibility for his actions.

 2 Benchmark 5 recommends a sentence of seven to ten years for breaking and entering an 

occupied dwelling without consent of the owner or tenant, at night, with or without a weapon. 3 Benchmark 19 suggests a sentence of “[l]ess than jail,” for a first offense of receiving stolen 

goods over $500. 

4 Benchmark 15 recommends a sentence of three to five years for a repeat offense of larceny 

over $500. Ciresi’s conviction for attempted larceny provides for “the same punishment which 

might have been inflicted if the attempted offense had been committed.” G.L. 1956 § 11-41-6. 

5 This Court notes that the hearing justice who heard defendant’s motion to reduce his sentence is 

the same justice of the Superior Court who presided over defendant’s original trial.
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In a decision dated May 30, 2014, the hearing justice denied Ciresi’s motion. He rejected 

defendant’s “rehabilitative advancement while an inmate” as a basis to reduce sentence, because 

“[p]roper inmate deportment * * * is expected” and also irrelevant in determining a motion to 

reduce a sentence. The hearing justice also rejected Ciresi’s argument concerning the hardship 

that his incarceration had on his sons, finding that “parenthood is simply not a justifiable excuse 

for dispensing with meaningful punishment for the commission of serious criminal offenses.” 

The hearing justice rejected defendant’s contention that his sentence was impermissibly 

long in comparison to the benchmarks because the guidelines’ recommendations are not 

mandatory. He noted that the benchmarks provide examples where guideline departure is 

appropriate, and he singled out three as applicable: (1) “circumstances of the commission of the 

crime,” (2) whether the crime was an “isolated offense,” and (3) “other substantial grounds” that 

might mitigate or aggravate culpability. With these in mind, the hearing justice noted that 

defendant did not merely commit an “isolated offense.” Rather, Ciresi committed five of the 

nine offenses on different occasions, planned two burglaries, and provided “tools of violence” 

for the commission of both. Citing to Ciresi, 45 A.3d at 1214, 1216, he found that defendant’s 

other convictions, coupled with additional bad acts,6 “demonstrated Ciresi’s pattern of 

cultivating and protecting criminal informants in his role as a police officer for his own financial 

and professional gain * * * [and] were segments of a common scheme or plan * * * .” The 

hearing justice rejected defendant’s assertion that his sentence was impermissibly long and found

it “commensurate with the gravity of the crimes he committed.” Accordingly, he denied the

motion to reduce sentence. 

 6 The additional bad acts that the hearing justice referenced included thirty-seven acts of 

defendant’s misconduct, which were brought out at the original trial. The hearing justice 

appended a list of those acts to his order.
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On June 12, 2014, Ciresi appealed the denial of his motion. He is challenging the 

constitutionality of the benchmarks, and raises two specific constitutional violations. First, he 

argues that his sentence violates the Sixth Amendment to the United States Constitution and 

article 1, section 15 of the Rhode Island Constitution because it relies on factual findings not 

proved to the jury. Second, Ciresi contends that the sentence constitutes cruel and unusual 

punishment, in contravention of the Eighth Amendment to the United States Constitution and 

article 1, section 8 of the Rhode Island Constitution. 

II

Standard of Review

“A motion to reduce sentence under Rule 35 is essentially a plea for leniency.” State v. 

Farooq, 115 A.3d 961, 964 (R.I. 2015) (quoting State v. Ruffner, 5 A.3d 864, 867 (R.I. 2010)). 

“The motion is addressed to the sound discretion of the trial justice, who may grant it if he or she 

decides ‘on reflection or on the basis of changed circumstances that the sentence originally 

imposed was, for any reason, unduly severe.’” State v. Mlyniec, 78 A.3d 769, 771 (R.I. 2013)

(quoting State v. Mendoza, 958 A.2d 1159, 1161 (R.I. 2008)). We have a “strong policy against 

interfering with a trial justice's discretion in sentencing matters,” and thus “our review of a trial 

justice's ruling on a Rule 35 motion is extremely limited.” State v. Rivera, 64 A.3d 742, 745 

(R.I. 2013) (quoting State v. Snell, 11 A.3d 97, 101 (R.I. 2011)). Accordingly, “we only will 

interfere with that discretion in rare instances when the trial justice has imposed a sentence that is 

without justification and is grossly disparate from other sentences generally imposed for similar 

offenses.” Farooq, 115 A.3d at 964 (quoting Ruffner, 5 A.3d at 867). 
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III

Discussion

A

Denial of Defendant’s Rule 35 Motion

On appeal, defendant challenges the hearing justice’s denial of his motion to reduce his 

sentence. He contends that “the court was not persuaded that a different sentence should result,” 

despite the hearing justice’s acknowledgment that defendant accepted responsibility for his 

conduct. Ciresi notes that he “presented information [at the Rule 35 proceeding] to inform the 

[hearing] justice’s understanding of potential for rehabilitation,” however, the hearing justice 

rejected his “proffer of post incarceration rehabilitation.”

In the present case, “[g]iven the vast discretion we afford to the trial justice’s sentencing 

judgment, we cannot reasonably conclude that the sentences here were ‘without justification and 

* * * grossly disparate from other sentences.’” Snell, 11 A.3d at 102 (quoting Ruffner, 5 A.3d at 

867). The hearing justice noted defendant’s arguments, including “his recent expressions of 

remorse along with his rehabilitative advancement while an inmate, as well as a desire to attend 

to his two children.” He rejected these arguments, noting that proper inmate behavior is 

expected and “not relevant to the determination of a motion to reduce sentence.” “[W]e cannot 

say that the trial justice abused his discretion when he left consideration of the defendant's good 

behavior and rehabilitative efforts while in prison to the parole board.” Ruffner, 5 A.3d at 868. 

Further, the hearing justice found defendant’s argument concerning family hardship 

“unavailing.” He acknowledged the negative impact of Ciresi’s incarceration on his children,

but held that it did not justify reducing the sentence imposed for his commission of serious 

crimes. Addressing defendant’s constitutional arguments, the hearing justice determined that the 
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sentence “is commensurate with the gravity of the crimes he committed.” Finally, the hearing 

justice articulated the reasons for defendant’s harsh punishment and concluded that “[t]he 

enormity of the crimes, the blatant nature of the misconduct, [and] * * * defendant’s callous 

disregard of his oath * * * all counsel toward reaffirmation of the sanctions originally levied.”

Accordingly, we conclude that the hearing justice “was well within his discretion to give and 

then confirm the instant punishment for [defendant] * * * .” Snell, 11 A.3d at 102.

B

Constitutional Challenges under Rule 35

The defendant also challenges the constitutionality of the benchmarks. He relies on 

Blakely, for its proposition that “any fact that increases the penalty for a crime beyond the 

prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable 

doubt.” Blakely, 542 U.S. at 301 (quoting Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)). 

Ciresi maintains that “this state’s system,” with regard to the benchmarks, “runs afoul of 

Blakely,” because facts underlying a departure from them should be submitted to a jury. 

Specifically, defendant raises two constitutional challenges. First, he maintains that “the 

Sentencing Court did not comply with the Sixth Amendment when it imposed a sentence 

exceeding the maximum Benchmark * * * .” He references the hearing justice’s consideration of

facts not proved to the jury, including thirty-seven uncharged bad acts. Second, Ciresi argues 

that his sentence’s departure from the benchmarks constitutes cruel and unusual punishment, in 

violation of the Eighth Amendment to the United States Constitution and article 1, section 8 of 

the Rhode Island Constitution. 

This Court, however, has never “countenanced a challenge to the constitutionality of a 

penal statute in the context of a Rule 35 motion * * * .” State v. Linde, 965 A.2d 415, 417 (R.I. 
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2009), as amended (Mar. 27, 2009). In Linde, the defendant argued, in part, that his mandatory 

and consecutive life sentence given under the anti-gun-violence statute violated the Eighth 

Amendment. Id. at 416. There, we held that the defendant’s challenge could not be raised 

through a Rule 35 motion, and we declined to reach the merits of his constitutional arguments. 

Id. at 417. Similarly, here, Ciresi challenges the constitutionality of departures from the 

benchmarks. Accordingly, we need not reach the merits of Ciresi’s constitutional challenges

because they are “not cognizable in the context of a motion to correct an illegal sentence under 

Rule 35 * * * .” Linde, 965 A.2d at 416.

1

Sixth Amendment

Nonetheless, even if defendant could raise constitutional challenges under Rule 35, his 

arguments lack merit. Ciresi’s Sixth Amendment challenge hinges on his assertion that the 

departure from the benchmarks violates the holding set forth in Blakely. Ciresi contends that the 

lower court’s consideration of facts not proved to the jury—including, thirty-seven uncharged

bad acts—violated the Sixth Amendment. 

However, Blakely is inapplicable here because Ciresi’s sentence did not exceed the 

statutory maximum. With respect to the burglary sentence challenged on appeal, G.L. 1956 § 

11-8-1 sets forth a maximum sentence of life in prison. Here, the sentence only exceeded the 

benchmark, and this Court has long held “that the benchmarks are not mandatory” and 

departures are allowed under certain circumstances. Snell, 11 A.3d at 102. In his order denying 

defendant’s motion, the hearing justice articulated three of those circumstances justifying

departure from the guidelines. Accordingly, defendant’s sentence does not violate the Sixth 

Amendment. 
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2

Eighth Amendment 

Ciresi’s Eighth Amendment argument rests on his assertion that the sentences fall outside 

of those set forth in the benchmarks. The defendant cites to McKinney v. State, 843 A.2d 463, 

470 (R.I. 2004), to support his argument that “too large of an upward departure [from the 

sentencing guidelines] may be viewed as ‘cruel and unusual’ * * * .” In McKinney, this Court 

recognized a “narrow proportionality principle” with respect to the Eighth Amendment, “such 

that a criminal sentence is excessive and unconstitutional if, inter alia, it ‘is grossly out of 

proportion to the severity of the crime.’” State v. Monteiro, 924 A.2d 784, 794 (R.I. 2007) 

(quoting McKinney, 843 A.2d at 467). “The overriding inquiry for determining ‘proportionality’ 

is whether the sentence is commensurate with the gravity of the crime.” Id. at 795 (quoting 

McKinney, 843 A.2d at 469). 

Ciresi argues that his sentence is cruel and unusual punishment because it departed from 

the benchmarks. However, since the benchmarks are not mandatory, the hearing justice was 

“bound only by the statutory limits.” Rivera, 64 A.3d at 746 (quoting Snell, 11 A.3d at 102). 

Here, the trial justice did comply with the statutory limits. Thus, although Ciresi’s sentence 

departed from the guidelines, it was well within the statutory mandate. 

Ciresi, as “[t]he party seeking reduction,” has not shown that his sentence is “grossly

disproportionate” to the crimes charged. Monteiro, 924 A.2d at 794 (quoting McKinney, 843 

A.2d at 473). “The gross disproportionality principle reserves a constitutional violation for only 

the extraordinary case,” and this is not such a case. Monteiro, 924 A.2d at 795 (quoting Lockyer 

v. Andrade, 538 U.S. 63, 77 (2003)). We therefore conclude that the sentence does not violate 

the Eighth Amendment. 
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IV

Conclusion

For the reasons stated herein, we affirm the judgment of the Superior Court. The record 

shall be returned to that tribunal.
RHODE ISLAND SUPREME COURT CLERK’S 

OFFICE

Clerk’s Office Order/Opinion Cover Sheet

TITLE OF CASE: State v. Michael Ciresi.

 

CASE NO: No. 2014-324-C.A.

(P1-07-1896AG)

(P1/06-776A)

COURT: Supreme Court

DATE OPINION FILED: January 6, 2017

JUSTICES: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

WRITTEN BY: Associate Justice Gilbert V. Indeglia

SOURCE OF APPEAL: Providence County Superior Court

JUDGE FROM LOWER COURT:

 Associate Justice Robert D. Krause

ATTORNEYS ON APPEAL:

 For State: Lauren S. Zurier

 Department of Attorney General

 

For Defendant: George J. West, Esq.