State v. Tiernan

605 A.2d 1328 (1992)

STATE v. David M. TIERNAN, Jr.

No. 91-354-C.A.

Supreme Court of Rhode Island.

April 16, 1992.

James E. O'Neil, Atty. Gen., Jane McSoley, Sp. Asst. Atty. Gen., Jeffrey Greer, Asst. Atty. Gen., for plaintiff.

*1329 Richard Casparian, Public Defender, Barbara Hurst, Paula Rosin, Asst. Public Defenders, for defendant.

This case came before the court on April 8, 1992, pursuant to an order directing both parties to appear and show cause why the issues raised by this appeal should not be summarily decided. The defendant, David M. Tiernan, Jr., appeals from a twenty-year sentence entered by the trial justice after a jury found defendant guilty on two counts of second-degree child molestation.

On appeal defendant asserts that he was unlawfully sentenced when the trial justice rejected a less-than-jail option because of defendant's refusal at sentencing to acknowledge his guilt of the crimes charged. The defendant claims that the trial justice erred in determining that defendant's suitability for a less-than-jail sentence was governed by defendant's willingness to acknowledge remorse and guilt.

The defendant argues that his sentence is reviewable on direct appeal. The State responds that defendant's appropriate remedy is to seek review from the trial court pursuant to Rule 35 of the Superior Court Rules of Criminal Procedure. After considering the arguments and memoranda of counsel we are of the opinion that defendant has not shown cause why his appeal from sentencing is reviewable on direct appeal.

Accordingly, the defendant's appeal is denied without prejudice, and defendant may petition the trial court for sentencing review pursuant to Rule 35.