## Facts

- David M. Tiernan, Jr. was charged with molesting a young girl and maintained his innocence, choosing to proceed to a public jury trial.
- The victim testified at trial about the abuse; the jury convicted Tiernan of two counts of second-degree child molestation.
- After conviction, Tiernan indicated he would appeal.
- At sentencing, Tiernan argued that his background, lack of prior record, and the nature of the offense supported a treatment- and counseling-based disposition rather than imprisonment.
- The prosecutor argued that treatment would not be effective unless Tiernan acknowledged wrongdoing, which he had not done, and urged a substantial prison sentence for punishment and deterrence.
- The trial justice imposed a twenty-year sentence with eight years to serve and twelve years suspended with probation, stating that he considered the standard sentencing considerations, including the nature of the offense and offender, punishment, rehabilitation, and deterrence.
- In explaining the sentence, the trial justice stated that treatment for this type of offender generally is not effective unless the offender accepts culpability, and noted Tiernan’s continued protestations of innocence as limiting rehabilitation prospects; the court therefore placed greater weight on punishment and deterrence.
- Tiernan sought appellate review of his sentence, but the Rhode Island Supreme Court required him to first pursue a motion to reduce sentence under Rule 35; his appeal was denied without prejudice.
- Tiernan then filed a timely Rule 35 motion to reduce sentence. At the hearing, Tiernan admitted guilt and expressed remorse, claiming that his own childhood experiences contributed to his prior inability to acknowledge what he did.
- The victim’s mother testified about the psychological harm and trauma to her daughter from both the molestation and the experience of testifying at trial.
- The trial justice denied the Rule 35 motion. In doing so, the trial justice remarked that Tiernan had made the child testify and then asserted a right to appeal despite knowing the child’s statements were true.
- Tiernan appealed the denial of his Rule 35 motion, arguing the court penalized him for exercising his Fifth Amendment privilege against self-incrimination and his Sixth Amendment right to a public jury trial.

## Issues

1. Did the trial justice improperly penalize Tiernan for exercising the Fifth Amendment privilege against self-incrimination by treating his pre–Rule 35 refusal to admit guilt as a basis to impose, or to maintain, a longer sentence?
2. Did the trial justice improperly penalize Tiernan for exercising the Sixth Amendment right to a public jury trial by referencing that the victim had to testify and that Tiernan pursued trial and appeal?

## Decision

- The Rhode Island Supreme Court affirmed the order denying Tiernan’s Rule 35 motion; the appeal was denied and dismissed.
- The court held the trial justice did not punish Tiernan for invoking the Fifth Amendment; the sentencing comments about denial of guilt were tied to rehabilitation prospects and the assessment that treatment would not be effective absent acceptance of responsibility.
- The court held the trial justice did not punish Tiernan for exercising his right to a public trial; remarks about the child’s testimony were treated as part of the offense’s seriousness, the harm to the victim, and the evaluation of Tiernan’s claimed remorse.
- The court found no abuse of discretion in denying Rule 35 relief because the record showed reliance on proper sentencing considerations rather than retaliation for the exercise of constitutional rights.

## Legal Principles

- A Rule 35 motion to reduce sentence seeks discretionary relief from an otherwise lawful sentence; appellate review focuses on whether the trial justice abused discretion or relied on improper factors.
- A sentencing court may not impose or maintain a harsher sentence as punishment for a defendant’s exercise of constitutional rights, including the Fifth Amendment privilege against self-incrimination or the Sixth Amendment right to trial.
- A sentencing court may consider the defendant’s attitude toward the offense—such as acceptance of responsibility, remorse, and the likelihood of rehabilitation—when selecting the appropriate sentencing goals.
- When treatment is offered as a sentencing objective, a court may consider whether treatment is likely to succeed, including whether the defendant has acknowledged wrongdoing, so long as the sentence is not used to penalize protected silence.
- A sentencing court may consider the harm to the victim, including the trauma associated with the offense and the effects of participation in the criminal process, as part of evaluating the nature and seriousness of the crime.
- Sentencing remarks are evaluated in context; references to trial-related events do not establish retaliation where the overall record shows the court relied on standard sentencing factors such as punishment, deterrence, rehabilitation prospects, and the gravity of the offense.

## Conclusion

State v. Tiernan holds that denying a Rule 35 sentence reduction was proper where the trial justice’s comments about Tiernan’s earlier denial of guilt and the victim’s trial testimony were used to assess rehabilitation prospects and victim harm, not to retaliate against Tiernan for exercising Fifth or Sixth Amendment rights; the Supreme Court therefore affirmed the refusal to reduce the lawful sentence.


State v. Tiernan, 645 A.2d 482 (1994)