February 11, 2022
Supreme Court
No. 2019-215-M.P. (PM 15-4499)
Sebastian Wells Atryzek :
v. :
State of Rhode Island. :
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, Robinson, Lynch Prata, and Long, JJ.
OPINION
Justice Goldberg, for the Court. This case came before the Supreme Court
on October 7, 2021, following the grant of the state’s petition for writ of certiorari
seeking review of a decision by the Superior Court that granted an application for
postconviction relief by the applicant, Sebastian Atryzek (Atryzek), and vacated four
criminal convictions for failure to register as a sexual offender in violation of G.L.
1956 chapter 37.1 of title 11. The state contends that the trial justice erroneously
limited the scope of this Court’s remand in Atryzek v. State, 197 A.3d 334 (R.I. 2018)
(Atryzek I); erred in concluding that Atryzek had no duty to register as a sex offender;
and, as a result, erred in vacating Atryzek’s convictions for failing to register in 2009,
2010, 2012, and 2013. For the reasons set forth in this opinion, we affirm in part
‐1‐ and quash in part the judgment of the Superior Court and declare that Atryzek is no
longer required to register as a sex offender in Rhode Island.
Facts and Travel
On February 18, 1993, seventeen-year-old Atryzek entered a plea of guilty to
the rape and abuse of a child in the Commonwealth of Massachusetts, in violation
of Mass. Gen. Laws ch. 265, § 23 (1974). A fifteen-year suspended sentence, with
five years’ probation, was imposed. The record discloses that Atryzek’s sentence
and probation for that conviction ended on June 19, 2000. Atryzek relocated to
Rhode Island, and on four separate occasions in 2009, 2010, 2012, and 2013, the
state charged Atryzek with failure to register as a sex offender in violation of Rhode
Island’s Sexual Offender Registration and Community Notification Act (the
registration act), codified in chapter 37.1 of title 11 of the general laws.1 Those
charges led to Atryzek’s pleas of nolo contendere (1) on February 2, 2012, for the
2009, 2010, and 2012 charges, for which he was sentenced to five years at the Adult
Correctional Institutions, with ten months to serve and fifty months suspended, with
1 The case numbers for the criminal charges are P2/09-2042A; P2/10-740A; P2/12- 425A; and P2/13-1293A. In P2/09-2042A and P2/13-1293A, Atryzek, after changing his residence, was charged with failing to notify the police department within twenty-four hours of establishing a new residence. In P2/10-740A, he was charged with failing to register within twenty-four hours after being released from the ACI. In P2/12-425A, Atryzek waived indictment or information and pled guilty of failing to notify and register an address change.
‐2‐ probation; and (2) on August 26, 2013, to the 2013 charge, resulting in a sentence of
seven years, with five years to serve and two years suspended, with probation.
On October 14, 2015, Atryzek filed an application for postconviction relief in
the Superior Court seeking to vacate all four convictions because, he contended, he
was not under an obligation to register as a sex offender at the time of the charged
offenses and therefore was being wrongfully detained at the ACI. In response, the
state maintained that the 1992 version of G.L. 1956 § 11-37-16, which was in effect
at the time of Atryzek’s underlying 1993 Massachusetts conviction and has since
been repealed and replaced, gave rise to a lifetime duty to register for Atryzek
because, the state argued, § 11-37-16 was silent as to a time limitation on the duty
to register. See § 11-37-16, as amended by P.L. 1992, ch. 196, § 1 (effective July 21,
1992). This was the only defense raised by the state at that time. The trial justice
denied relief and declared that § 11-37-16, the controlling statute, “unambiguously
impose[d] a lifetime registration duty on sex offenders convicted prior to the
enactment of § 11-37.1-4 on July 24, 1996[,]” including Atryzek, who was convicted
in 1993, when the 1992 enactment was the operative statute.
Atryzek filed a petition for writ of certiorari to obtain review of the Superior
Court’s denial of his application for postconviction relief, which petition we granted.
See Atryzek I, 197 A.3d at 335. While Atryzek I was pending, this Court decided
State v. Gibson, 182 A.3d 540 (R.I. 2018), which resolved the question of which
‐3‐ statute applied to the duration of a sex offender’s duty to register that arose under
the former statute, § 11-37-16, which, as noted by the trial justice in passing on the
application for postconviction relief, had been subsequently repealed and replaced,
on July 24, 1996, by P.L. 1996, ch. 104, § 3. See Gibson, 182 A.3d at 544. In Gibson,
we held that, after § 11-37-16 was repealed, the newly enacted savings clause set
forth in § 11-37.1-18 of the registration act preserved an offender’s duty to register
but was silent as to the duration of the registration requirement. Id. This Court
looked to an iteration of § 11-37.1-4(a) of the registration act, as amended in 2003,
as the operative statute governing the duration of an offender’s duty to register.2 Id.
at 548, 549. Based on that calculation, we determined that the offender in Gibson
had a duty to register for “ten (10) years from the expiration of sentence for the
offense * * *.” Id. at 549 (citing P.L. 2003, ch. 162, § 1; P.L. 2003, ch. 170, § 1;
§ 11-37.1-4(a)).
After Gibson was decided, the state and Atryzek submitted supplemental
memoranda to address Gibson’s effect, if any, on the issues pending in Atryzek I.
Atryzek I, 197 A.3d at 336. The state changed course from its original argument that
Atryzek’s lifetime duty to register arose from § 11-37-16, submitting instead that the
durational changes in § 11-37.1-4 did not apply to Atryzek because, the state
2 General Laws 1956 § 11-37.1-4 governs duration and frequency of the duty to register under the registration act.
‐4‐ contended, Atryzek was convicted of an “aggravated offense[,]” giving rise to a
lifetime duty to register pursuant to §§ 11-37.1-2 and 11-37.1-4(c), statutes that were
enacted in 1999, six years after Atryzek’s conviction.3 Id. In the alternative, the state
claimed, Atryzek’s 2009 and 2010 convictions for failure to register, in violation of
§ 11-37.1-10, as amended by P.L. 2008, ch. 155, § 1; P.L. 2008, ch. 189, § 1; and
P.L. 2008, ch. 202, § 1 (effective July 2, 2008), constituted new offenses requiring
registration, and, based on those convictions, Atryzek had an obligation to register
at the time he committed the 2013 offense.4 Id. at 338.
3 Section 11-37.1-3 governs who is required to register, and § 11-37.1-2 contains definitions for purposes of the registration act. These statutes are part of an amalgamation of statutory amendments that are quite cumbersome. In 1999, the General Assembly enacted P.L. 1999, ch. 255, § 1, which added a registration requirement under § 11-37.1-3 for anyone who committed an “aggravated offense” as defined in § 11-37.1-2(J), which definition is currently found at § 11-37.1-2(b). By virtue of that 1999 amendment, § 11-37.1-3(a) provided that “[a]ny person who * * * (D) has committed an aggravated offense as defined in section 11-37.1-2 * * * shall be required to register * * * for the time period specified in section 11-37.1-4[,]” which was “for the life of that person.” At that time, § 11-37.1-2(J) defined an “aggravated offense[,]” in part, as “involving sexual penetration of victims who are fourteen (14) years of age or under.” 4 Section 11-37.1-10 contains the penalties for failure to register under the registration act. Section 11-37.1-10(a) provides that:
“Any person who is required to register or verify his or her address or give notice of a change of address or residence who knowingly fails to do so shall be guilty of a felony and, upon conviction, be imprisoned not more than ten (10) years, or fined not more than ten thousand dollars ($10,000), or both.”
‐5‐ This Court held that the issues in Atryzek I “fit[] squarely within the ambit of
our holding in Gibson[,]” and, thus, like Gibson, Atryzek’s duty to register was
governed by § 11-37-16, and the duration of that requirement was controlled by
§ 11-37.1-4(a), “for a period of ten (10) years from the expiration of sentence for the
offense” which gave rise to Atryzek’s obligation to register. Atryzek I, 197 A.3d at
337, 338 (quoting § 11-37.1-4(a), as amended by P.L. 2003, ch. 162, § 1; P.L. 2003,
ch. 170, § 1 (effective July 10, 2003)). Nevertheless, based on the record before us
in Atryzek I, we were unable to determine precisely when Atryzek’s sentence expired
and whether his convictions for failure to register in violation of § 11-37.1-10 further
extended that time period. Id. at 338. Thus, we quashed the judgment of the Superior
Court and remanded the case for further proceedings in light of our holding in
Gibson. Id.
Significantly, in Atryzek I, because the state consistently maintained in the
Superior Court that Atryzek’s lifetime duty to register stemmed from the now-
repealed and replaced § 11-37-16, and not from chapter 37.1 of title 11, we
unequivocally declared that the state had “waived any argument that Atryzek has a
lifetime duty to register on the theory that his underlying conviction amounted to an
Section 11-37.1-9 sets forth registration triggering events, such as change in a person’s residence into the state and within the state. See § 11-37.1-9(b), (d), (e).
‐6‐ ‘aggravated offense.’” Atryzek I, 197 A.3d at 337. We do not depart from that
holding.
On remand in Superior Court, the parties submitted supplemental memoranda.
Atryzek argued that he had no duty to register as a sex offender when he entered
pleas of nolo contendere in the 2012 and 2013 cases; he also sought a declaration
that he was no longer required to register as a sexual offender and the dismissal of
any related pending felony charges.5 The state, on remand, again asserted that
Atryzek has a lifetime duty to register and, in the alternative, that his three
convictions in 2012 constituted new offenses that gave rise to a new duty to register,
independent of the underlying 1993 Massachusetts conviction. However, the trial
justice determined that the state’s arguments were beyond the scope of this Court’s
remand. In addition, the Superior Court justice found that Atryzek’s obligation to
register as a sex offender expired on June 19, 2010, and that the convictions in 2012
and 2013 for the four failure-to-register charges occurred after Atryzek’s duty to
register had expired. As a result, the trial justice vacated Atryzek’s convictions for
all four offenses. An order entered on June 21, 2019, memorializing the trial
justice’s decision, and judgment in favor of Atryzek entered on that same date. The
5 The state has filed two additional criminal informations against Atryzek for failing to register as a sex offender in 2017 and 2018; P2/18-1615A and P2/19-3780A. Although these cases are not before us, our holding today should resolve them.
‐7‐ state filed a petition for writ of certiorari seeking review of the trial justice’s
determinations, which this Court granted on January 21, 2020.6
Standard of Review
A party aggrieved by a final judgment entered in response to a postconviction-
relief application may seek review “by filing a petition for writ of certiorari * * *.”
General Laws 1956 § 10-9.1-9. “Our review of a case on certiorari is limited to an
examination of the record to determine if an error of law has been committed.” State
v. Poulin, 66 A.3d 419, 423 (R.I. 2013) (quoting State v. Greenberg, 951 A.2d 481,
489 (R.I. 2008)). “In addition to examining the record for judicial error, ‘we inspect
the record to discern if there is any legally competent evidence to support the
findings of the hearing justice below.’” Id. (quoting Brown v. State, 841 A.2d 1116,
1121 (R.I. 2004)). “This Court will not disturb a trial justice’s factual findings made
on an application for post-conviction relief absent clear error or a showing that the
trial justice overlooked or misconceived material evidence in arriving at those
findings.” Chapdelaine v. State, 32 A.3d 937, 941 (R.I. 2011) (quoting Gordon v.
State, 18 A.3d 467, 473 (R.I. 2011)).
6 While we, in granting the state’s petition for certiorari, directed the parties to address whether the issue of Atryzek’s lifetime duty to register under the state’s “aggravated offense” theory was barred by the doctrine of res judicata, a review of that legal theory is unnecessary based on our decision herein. See infra n.7.
‐8‐ Discussion
Before this Court, the state first argues that the trial justice erred in vacating
the convictions in the 2009 and 2010 cases, in which Atryzek’s failure to register
occurred prior to the expiration of his duty to register, on June 19, 2010. Second,
the state argues that the trial justice erred in construing the scope of this Court’s
remand as precluding consideration of whether Atryzek’s convictions from the 2009
and 2010 cases triggered a new duty to register.7 We address these issues seriatim.
I
The 2009 and 2010 Offenses
On remand, the trial justice vacated Atryzek’s four convictions for failure-to-
register offenses that were alleged to have occurred in 2009, 2010, 2012, and 2013.
With respect to the 2009 and 2010 offenses, the trial justice found that, because
Atryzek’s duty to register had expired on June 19, 2010, and Atryzek’s pleas of nolo
contendere for those cases were entered on February 2, 2012—after his registration
requirement expired—“when those convictions did enter, there was no duty to
register.” The state argues that the trial justice erred in vacating the 2009 and 2010
convictions based on his finding that Atryzek had no obligation to register when he
7 To its credit, the state, at oral argument before this Court, expressly declined to pursue its contention that Atryzek committed an aggravated offense, triggering a lifetime duty to register. Indeed, among the myriad concerns about that issue, in Atryzek I this Court declared it to be waived.
‐9‐ pled guilty and was convicted on February 2, 2012. Rather, as the state contends,
“the correct inquiry * * * is whether Atryzek had a duty to register when he failed to
register,” in 2009 and 2010, prior to the expiration of his registration requirement
on June 19, 2010. (Emphasis added.) We agree.
“We review questions of statutory interpretation de novo.” State v. Brown,
140 A.3d 768, 775 (R.I. 2016) (brackets omitted) (quoting State v. Hazard, 68 A.3d
479, 485 (R.I. 2013)). “When the statute expresses a clear and unambiguous
meaning, the task of interpretation is at an end and this Court will apply the plain
and ordinary meaning of the words set forth in the statute.” State v. Marsich, 10 A.3d
435, 440 (R.I. 2010) (brackets omitted) (quoting State v. Smith, 766 A.2d 913, 924
(R.I. 2001)).
Pursuant to § 11-37.1-18, the obligation to register for “[a]ny person who
pursuant to the provisions of former § 11-37-16 had a duty to register” was preserved
and governed by the provisions of chapter 37.1 of title 11. Anyone convicted of a
“criminal offense against a victim who is a minor[,]” § 11-37.1-3(a)(1), is obligated
to “annually register * * * for a period of ten (10) years from the expiration of
sentence for the offense[.]” Section 11-37.1-4(a). In Gibson, we declared this
language to be “clear and unambiguous[.]” See Gibson, 182 A.3d at 548.
“The existence of a legal duty is purely a question of law,” Kuzniar v. Keach,
709 A.2d 1050, 1055 (R.I. 1998), which this Court reviews de novo. See, e.g.,
‐ 10 ‐ Haviland v. Simmons, 45 A.3d 1246, 1256 (R.I. 2012); State v. Lopez-Navor, 951
A.2d 508, 510-11 (R.I. 2008). Having determined that Atryzek was convicted in
1993 and that his registration mandate ran for “ten (10) years from the expiration of
sentence for th[at] offense[,]” we remanded the case for a limited purpose and
directed the trial justice to determine when his Massachusetts sentence expired.
Atryzek I, 197 A.3d at 338.
Thus, the trial justice was tasked with determining (1) the expiration of
Atryzek’s sentence and correlating termination of his duty to register; and (2)
whether Atryzek was under a duty to register at the time of the various convictions
for which he sought relief.8 See Atryzek I, 197 A.3d at 338. On remand, the trial
justice found that Atryzek’s sentence for the 1993 Massachusetts conviction expired
on June 19, 2000, and that his requirement to register terminated on June 19, 2010.
The trial justice also found that the 2009 and 2010 charges were filed before June
19, 2010, but that Atryzek was convicted by plea in 2012, after the registration
requirement had expired.9
8 Whether a person breaches a legal duty “is a question of fact that must be resolved by the fact-finder[,]” Martin v. Marciano, 871 A.2d 911, 919 (R.I. 2005), which is a function of the trial justice in the context of a postconviction-relief application. See, e.g., Jolly v. Wall, 59 A.3d 133, 138 (R.I. 2013). 9 Specifically, the trial justice found that the criminal information for the 2009 offense was filed on June 30, 2009, and that the criminal information for the 2010 offense was filed on March 5, 2010.
‐ 11 ‐ The offenses of failure to register were alleged to have occurred on May 22,
2009, and January 28, 2010, respectively. Because the prosecution for those crimes
commenced before June 19, 2010, the offenses occurred while Atryzek still had a
duty to register. Accordingly, the trial justice erred when he vacated the convictions
based on the finding that Atryzek had no duty to register when he was convicted in
2012, rather than focusing on the dates the offenses occurred. Consequently, we
quash that portion of the trial justice’s June 21, 2019 order and judgment that vacated
Atryzek’s convictions in P2/09-2042A and P2/10-740A.
II
New Independent Duty to Register
The trial justice also declined to entertain the state’s argument that Atryzek’s
convictions in 2012, for the 2009 and 2010 offenses, gave rise to a new duty to
register, and determined that “the duration of the new offenses are beyond the scope”
of this Court’s remand. Atryzek argues before this Court that the state did not raise
the claim that he had a new independent duty to register in the initial postconviction
relief proceedings and, thus, the claim should be deemed waived. For its part, the
state contends that, in Atryzek I, this Court contemplated that the question of whether
Atryzek had a new duty to register, independent of the 1993 conviction, would be
addressed on remand. The state advances the theory that, because Atryzek was
convicted in 2012 for the charges of failure to register filed in 2009 and 2010, the
‐ 12 ‐ statutes then in effect provided that the 2012 convictions triggered an entirely new
requirement to register for a period of ten years—in addition to the registration
requirement from the 1993 conviction, which requirement ended in June 2010.10
According to the state, the 2009 and 2010 cases created a new duty to register that
arose as a result of Atryzek’s pleas of nolo contendere in 2012, and, the state argues,
this theory could serve as the basis for Atryzek’s conviction in the 2013 case.11 We
reject this contention.
It is well established that, absent narrow exceptions, “a litigant cannot raise
an objection or advance a new theory on appeal [or on certiorari] if it was not raised
before the trial court.” Cusick v. Cusick, 210 A.3d 1199, 1203 (R.I. 2019) (quoting
Rohena v. City of Providence, 154 A.3d 935, 938 (R.I. 2017)). This practice serves
important dual purposes. See State v. Burke, 522 A.2d 725, 731 (R.I. 1987). “Not
only does the rule serve judicial economy by encouraging resolution of issues at the
10 We shall refer herein to Atryzek’s registration mandate based on the 1993 conviction as the “initial requirement.” 11 Presumably, the criminal informations filed in 2018 and 2019, see supra at n.5, emanated from a failure to register under this purported new duty to register; a conviction in those cases would result in yet another registration requirement, under the state’s theory—potentially leading to a continuum of registration requirements on the installment plan, with no end in sight for an accused whose initial requirement arose pursuant to a guilty plea in 1993, when he was seventeen years old.
‐ 13 ‐ trial level, it also promotes fairer and more efficient trial proceedings by providing
opposing counsel with an opportunity to respond appropriately to claims raised.” Id.
In 1993, when Atryzek was convicted of statutory rape in Massachusetts, this
state’s law mandated that any person who was “convicted in another state of first
degree sexual assault which if committed in this state would constitute a violation of
[chapter 37 of title 11] shall * * * register” as a sex offender upon moving to Rhode
Island. Section 11-37-16, as amended by P.L. 1992, ch. 196, § 1 (effective July 21,
1992). As discussed supra, in 1996 the registration act, set forth in chapter 37.1 of
title 11, repealed and replaced the registration requirements of § 11-37-16, and
provided for a savings clause contained in § 11-37.1-18. See P.L. 1996, ch. 104,
§§ 1, 3. In 2008, after Atryzek served his sentence for the 1993 conviction and his
probation ended (approximately fifteen years after Atryzek’s initial requirement
arose and eight years after his sentence expired), the General Assembly amended the
definition of the criminal offense under which Atryzek’s conviction befell in the
registration act. See P.L. 2008, ch. 155, § 1; P.L. 2008, ch. 202, § 1.
Specifically, in 2008, the General Assembly amended the definition of
“[c]riminal offense against a victim who is a minor” as contained in § 11-37.1-2 to
also include a conviction for failure to register in violation of § 11-37.1-10. See P.L.
2008, ch. 155, § 1; P.L. 2008, ch. 202, § 1. Any person convicted of this newly
defined “criminal offense” of failure to register was required to register as a sex
‐ 14 ‐ offender for ten years beyond the expiration of the sentence for that new offense.
See §§ 11-37.1-3(a) and 11-37.1-4(a), as amended (2008). Nevertheless, the General
Assembly, in 2018, repealed that part of the definition, and a conviction for failing
to register under § 11-37.1-10, standing alone, no longer qualifies as a “[c]riminal
offense against a victim who is a minor[.]”12 See P.L. 2018, ch. 157, § 1; P.L. 2018,
ch. 259, § 1; see also § 11-37.1-2(f).
However, the statutory definition of the crime or criminal offense against a
victim who is a minor was amended in 2008 to include a conviction for failing to
register in violation of § 11-37.1-10, and that definition remained in effect until
§ 11-37.1-2 was amended in 2018.13 Therefore, the state contends, Atryzek’s
failure-to-register convictions for the 2009 and 2010 offenses fall under the then-
existing definition of “[c]riminal offense against a victim who is a minor” and
12 Pursuant to § 11-37.1-3(a)(9), a conviction for failure to register as a sex offender under § 11-37.1-10 gives rise to a registration requirement of an unspecified duration, but it does not change the definition of the original criminal offense. This is the current state of the law. 13 In State v. Gibson, 182 A.3d 540 (R.I. 2018), in response to the defendant’s ex post facto challenge to the registration act’s amendments, which extended the duration of his duty to register, this Court made clear that, although the duty to register “follows as a consequence of a criminal conviction, sexual offender registration and notification is a civil regulatory process.” Gibson, 182 A.3d at 554 (quoting State v. Germane, 971 A.2d 555, 593 (R.I. 2009)). As a “civil regulatory scheme,” a retroactive extension of the defendant’s duty to register in Gibson did not implicate Rhode Island’s ex post facto clause. Id. at 555 (emphasis added). It is a much different circumstance when the General Assembly attempts to redefine a failure-to-register offense as a criminal offense against a minor victim.
‐ 15 ‐ triggered a new duty to register for ten years from the expiration of the sentences for
those offenses. See §§ 11-37.1-2; 11-37.1-3; 11-37.1-10.
Although the state has valiantly attempted to persuade this Court of the
correctness of its argument, we are not convinced. While Atryzek I was pending in
this Court, and after our decision in Gibson, the state attempted to assert new theories
justifying a continuing registration requirement, including that, because the
definition of the criminal offense of sexual offense against a minor had been
amended in 2008, as set forth supra, Atryzek’s failure-to-register convictions
triggered an obligation to register.14 We reject these arguments under our well-
settled raise-or-waive jurisprudence.
14 For instance, in its supplemental memorandum after our decision in Gibson, the state argued that, because the convictions for failure to register in 2009 and 2010 triggered a new obligation to register, Atryzek was required to register at the time he was charged in 2012 and 2013 for failure to register. On remand, the state again advanced this argument, in the same truncated manner; for instance, the parties submitted supplemental memoranda to the Superior Court, and the state asserted that “since the General Assembly amended R.I. Gen. Laws § 11-37.1-2 in 2008 to provide that a conviction for failing to register as a sex offender, see R.I. Gen. Laws § 11-37.1-10, gave rise to a duty to register as a sex offender, Atryzek would have had a duty to register as a sex offender in 2012 and 2013 based on his 2009 and 2010 failure to register convictions irrespective of whether he still had a duty to register based on his 1992 [sic] Massachusetts conviction.” Until the instant petition, the state had made no mention of an argument under the additional sections of the registration act it now points to, such as §§ 11-37.1-3(a)
‐ 16 ‐ Notably, in the initial postconviction-relief proceedings, the state never raised
the argument that the 2008 statutory changes, providing that the failure to register
was a “[c]riminal offense against a victim who is a minor[,]” could serve to amend
the definition of Atryzek’s criminal offense for which he was convicted in 1993. In
Atryzek I, the trial court and this Court were faced with the state’s claims that
Atryzek’s registration requirements arose from his underlying 1993 conviction. In
Atryzek I, this Court was unable to determine the duration of Atryzek’s initial
requirement or whether failing to register “further extended Atryzek’s duty [under
the initial requirement] to register” beyond the ten years from the expiration of his
sentence for the 1993 conviction. Atryzek I, 197 A.3d at 338 (emphasis added).
and 11-37.1-4(a), or of its argument that these provisions collectively require a person convicted of a criminal offense against a victim who is a minor, which at the time included a conviction for failing to register, to register for ten years from the expiration of sentence for the failure-to-register offense. In its brief before this Court, the state argues that,
“Applying the plain language of R.I. Gen. Laws §§ 11-37.1-3(a), 11-37.1-2(e)(7), and 11-37.1-10 in effect at the time, Atryzek’s February 2, 2012, convictions for failing to register as a sex offender triggered or gave rise to a duty to register as a sex offender independent of his Massachusetts conviction[,] * * * [the duration of which] runs for ten years from the expiration of the * * * sentences [for failing to register imposed in 2012] or until February 2, 2027.”
‐ 17 ‐ Neither this Court nor the trial court contemplated an entirely new registration
requirement that was not based on Atryzek’s original offense.15
Critically, the criminal informations for the failure-to-register offenses at
issue in this case, as well as the judgments of conviction and the notices to register
that were provided to Atryzek, reflect that his registration obligations arose from his
underlying 1993 conviction and nothing else. In addition, the case file for P2/13-
1293A reveals that Atryzek was released from prison on May 23, 2012. At that time,
Atryzek was provided with a “Notice of Duty to Register” by the Department of
Corrections, providing that he had a duty to register based on his conviction for
statutory rape, pursuant to § 11-37.1-18, and not for failing to register under any
other iteration of the registration act. Significantly, neither the plea forms nor the
judgments of conviction for the cases before us reflect any conditions to Atryzek’s
sentences, such as an additional ten-year registration requirement as a sex offender
for violation of § 11-37.1-10, from which Atryzek could enter a knowing and
intelligent plea. Additionally, there is no suggestion in any of the records before this
15 In Gibson, this Court acknowledged that the 2008 amendment to the definition of a “[c]riminal offense against a victim who is a minor” in § 11-37.1-2 included a conviction for failure to register in violation of § 11-37.1-10; we decided to “leave that issue for another day.” Gibson, 182 A.3d at 558 n.18.
‐ 18 ‐ Court that Atryzek was advised at the time of the pleas that his convictions would
give rise to new registration requirements for an additional ten years.
Nevertheless, in its papers before this Court, the state has articulated a laundry
list of statutes that it deems applicable to its new duty-to-register theory.16 The state
now submits that, applying §§ 11-37.1-2(e)(7) (2008), 11-37.1-10, 11-37.1-3(a), and
11-37.1-4(a) together, Atryzek’s 2012 convictions for failing to register gave rise to
a new registration requirement, independent of his initial requirement, which would
run for ten years from the expiration of his five-year sentence from the 2009, 2010,
and 2012 cases, and that his 2013 conviction gave rise to yet another new duty to
register for ten years from the expiration of his seven-year sentence from the 2013
conviction. We decline to engage in such a connect-the-dots analysis.
The determination of whether Atryzek had a new and independent registration
requirement that arose not from the actual sexual-assault conviction in 1993, but
rather from the convictions for failure to register in 2009 and 2010, is a significant
question of law that was neither advanced before the trial court in the initial
postconviction-relief proceedings, nor properly advanced before this Court. See
Kuzniar, 709 A.2d at 1055 (“The existence of a legal duty is purely a question of
16 Whereas in Atryzek I and on remand in the Superior Court, the state asserted that § 11-37.1-2(e)(7) (2008) and § 11-37.1-10 applied, here, the state asserts that §§ 11-37.1-2(e)(7) (2008), 11-37.1-10, 11-37.1-3(a), and 11-37.1-4(a) together create a new duty, as the failure to register was, at the time of Atryzek’s failure-to- register offenses, considered a “[c]riminal offense against a victim who is a minor[.]”
‐ 19 ‐ law, and the court alone is required to make this determination.”). Based on the
record before this Court, a new duty to register was not set forth in the criminal
informations, the plea forms, the plea proceedings, or the judgments of conviction.
Further, there is no suggestion that this circumstance was explained to the accused
at the time of the plea. Thus, the state’s opportunity to establish, to the satisfaction
of the trial justice and this Court, in a connect-the-dots fashion, that the 2008
amendment to the definition of a “[c]riminal offense against a victim who is a minor”
applies to a long-expired 1993 conviction and sentence and, if so, whether a
conviction for failing to register results in new, additional, or expanded registration
obligations, has long passed.17
Notwithstanding the state’s waiver, and despite the undisputed facts that
Atryzek’s registration obligations expired on June 19, 2010, we pause to discuss the
concerns that underlie this new registration requirement.
In 2008, the General Assembly redefined the criminal conduct that gave rise
to Atryzek’s initial requirement to register by adding a conviction for failure to
17 Because, as noted herein, the definition of a “[c]riminal offense against a victim who is a minor” under § 11-37.1-2 including a violation of failing to register under § 11-37.1-10 was repealed in 2018, the common law rule of abatement may be applicable to any pending charges. Cf. State v. Mullen, 740 A.2d 783, 786 (R.I. 1999) (holding that “it is inconsistent with the intent of the Legislature to prosecute acts that are no longer criminal offenses * * * [because] [i]t is fundamentally unfair to prosecute an individual for prior conduct that would now not constitute a violation of law”).
‐ 20 ‐ register to the definition of “[c]riminal offense against a victim who is a minor[.]”
Section 11-37.1-2(e) (2008) (current version at § 11-37.1-2(f)); see P.L. 2008, ch.
155, § 1. As a result, one who failed to register could be said to have been convicted,
under § 11-37.1-10, of a “[c]riminal offense against a victim who is a minor[,]” even
if the original offense did not involve a minor at all. Thus, a person convicted for
failure to register—which is not a sexual offense—would nonetheless be required to
register as having committed a sexual offense against a victim who is a minor. The
application of such a provision deserves nothing less than a full opportunity to be
heard. The appropriate time to begin such a challenge should be in the charging and
pretrial stages of the prosecution, beginning with notice to the accused.
Before us, the state argues that, in Atryzek I, this Court contemplated that the
trial court would entertain this new theory on remand. We disagree. “Our cases
make clear that the [trial] courts * * * that receive our remand orders may not exceed
the scope of the remand or open up the proceeding to legal issues beyond the
remand.” Willis v. Wall, 941 A.2d 163, 166 (R.I. 2008). In Atryzek I, we remanded
the action for the determination of when the expiration of Atryzek’s sentence for the
Massachusetts offense occurred and, thus, when the duration of his duty to register
for that offense terminated. See Atryzek I, 197 A.3d at 338. We included in the
factfinding process an inquiry into whether failing to register “further extended
Atryzek’s duty to register[,]” based on the 1993 conviction, not whether failing to
‐ 21 ‐ register created a new registration requirement. Id. (emphasis added). Such an
inquiry would “open up the proceeding to legal issues beyond the remand[,]” Willis,
941 A.2d at 166; thus, the trial justice properly precluded this new legal theory from
his review.
Finally, the state has conceded that, under its theory, there would have been a
gap in Atryzek’s duty to register from June 19, 2010, when his registration obligation
from the 1993 conviction ended, until February 2, 2012, when Atryzek entered pleas
of nolo contendere to the failure-to-register offenses. We are hard-pressed to
contemplate that the Legislature anticipated an intermittent registration requirement
based on statutory amendments to the underlying offense. The possibility of a new
duty to register based on Atryzek’s failure-to-register convictions in 2012 would
have opened the door, as counsel for Atryzek has cogently argued, to further inquiry
into whether Atryzek entered knowing and voluntary pleas in 2012 and 2013, and of
the effectiveness of his counsel at the time. See Rodrigues v. State, 985 A.2d 311,
313-14 (R.I. 2009) (discussing Rule 11 of the Superior Court Rules of Criminal
Procedure, codifying the manner in which a plea proceeding must be conducted in
the Superior Court). Thus, the trial justice did not err in declining to address the
effect, if any, of the failure-to-register convictions on Atryzek’s duty to register.
What is clear is Atryzek is under no obligation to register as a sex offender in Rhode
Island.
‐ 22 ‐ Conclusion
For the reasons stated herein, we quash in part and affirm in part the judgment
of the Superior Court. We quash that portion of the judgment that vacated the
convictions for the 2009 and 2010 offenses. The remainder of the judgment is
affirmed. The papers in this case shall be returned to the Superior Court with our
decision endorsed thereon.
‐ 23 ‐ STATE OF RHODE ISLAND SUPREME COURT – CLERK’S OFFICE Licht Judicial Complex 250 Benefit Street Providence, RI 02903
OPINION COVER SHEET
Title of Case Sebastian Wells Atryzek v. State of Rhode Island.
No. 2019-215-M.P. Case Number (PM 15-4499)
Date Opinion Filed February 11, 2022
Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Justices Long, JJ.
Written By Associate Justice Maureen McKenna Goldberg
Source of Appeal Providence County Superior Court
Judicial Officer from Lower Court Associate Justice William E. Carnes, Jr.
For Applicant:
Carl J. Ricci, Esq. Attorney(s) on Appeal For State:
Christopher R. Bush Attorney General Department
SU-CMS-02A (revised June 2020)