Supreme Court
No. 2024-347-C.A. (K2/16-637A)
State :
v. :
Brian Smith. :
ORDER
This case came before the Supreme Court on appeal by the defendant, Brian
Smith (defendant or Smith), from a Superior Court order denying his request for
declaratory and injunctive relief filed in the context of an ongoing criminal
proceeding, in which the defendant had entered a plea of nolo contendere to two
counts of second-degree child molestation. Having reviewed the parties’
arguments, we conclude that cause has not been shown and proceed to decide the
appeal at this time. We affirm. The facts underlying Smith’s conviction are set
forth more fully in Rhode Island Department of Attorney General v. Smith, 330
A.3d 38 (R.I. 2025).
On February 10, 2015, defendant was charged by way of criminal
information, N2/15-45A (the Newport case)—alleging one count of simple assault
and one count of second-degree child molestation arising from an incident that
occurred on or about July 19, 2014. See Smith, 330 A.3d at 42. “After a jury trial, -1- on April 4, 2016, Smith was found guilty of the lesser-included offense of simple
assault and the second count of simple assault.” Id. “Smith was sentenced to serve
two years at the Adult Correctional Institutions.” Id.
During the pendency of Smith’s Newport case, however, “on November 2,
2015, an additional charge of second-degree child molestation was brought against
[Smith] by way of criminal information, P2/15-3448A (the Providence case), after
[his] niece came forward and alleged that he had sexually assaulted her in 2004,
when she was nine years old.” Smith, 330 A.3d at 42. In the Providence case,
“[defendant] entered a plea of nolo contendere to one count of second-degree child
molestation and [he] was sentenced to ten years at the ACI with two years to serve,
eight years suspended, and ten years’ probation.”1 Id.
Approximately one year later, on November 17, 2016, defendant was charged
with four counts of second-degree child molestation in the underlying case,
K2/16-637A (the Kent case). The defendant pled nolo contendere to two of the
four second-degree child molestation charges in Kent County Superior Court on
1 Pursuant to the Sexual Offender Registration and Community Notification Act, defendant’s plea in the Providence case, P2/15-3448A, “triggered Smith’s case for the board’s determination of [his] risk to reoffend.” Rhode Island Department of Attorney General v. Smith, 330 A.3d 38, 42, 43 (R.I. 2025).
-2- December 14, 2017.2 A judgment of conviction in the Kent case entered on April
21, 2021.
On or about November 29, 2017, before defendant entered a plea in the Kent
case, the “[Sex Offender Board of Review] classified Smith as a level III sex
offender and determined that his risk to reoffend was ‘HIGH,’” in accordance with
the provisions of the Sexual Offender Registration and Community Notification
Act, G.L. 1956 chapter 37.1 of title 11. Smith, 330 A.3d at 43. “While imprisoned
at the ACI, Smith received written notice detailing the board’s proposed
sex-offender classification [and] the conditions concerning a level III classification
* * *.” Id. Smith challenged the board’s level III classification, and the state moved
to affirm the board’s decision. Id.
Meanwhile, during Smith’s period of incarceration, he filed a “Motion for
Declaratory Judgment & Request for Injunctive Relief” in the Kent case,
challenging the calculations of his good-time and meritorious service credit on
sentences from previous convictions. This motion was not filed as a separate civil
proceeding, but in the context of a pending criminal case. It is undisputed that Smith
was released from incarceration in November 2021.
2 The two remaining second-degree child molestation charges were dismissed pursuant to Rule 48(a) of the Superior Court Rules of Criminal Procedure. Super. R. Crim. P. 48(a).
-3- A hearing was held on June 28, 2023, before a justice of the Superior Court.
The defendant raised three issues: (1) “[W]hich enactment of [G.L. 1956
§ 42-56-26] shall apply for the determination of [his] meritorious service credit
throughout [his] term of incarceration?”; (2) “Whether or not the Department of
Corrections is within its authority to deny meritorious service credit otherwise
earned during the last 60 days of [his] term of incarceration”; and (3) “[W]hether or
not * * * participation in programs which earn meritorious service credit can be
capriciously terminated without cause.” The state argued that the matter was moot
because defendant had not been incarcerated since November 2021—
approximately one year and seven months before the hearing in June 2023.
The trial justice issued a bench decision on September 6, 2024, finding that
“Mr. Smith is now out of jail and remains on probation until 2027. * * * [T]he
[d]efendant’s motion is improperly before the [c]ourt as it was filed in the * * *
criminal case [K2/16-637A] and should have been initiated in a separate civil
proceeding.” Accordingly, the trial justice denied and dismissed defendant’s
motion for declaratory relief without prejudice to his filing of an appropriate civil
action. The trial justice further determined that, even if properly before the court,
“[d]efendant’s claim is not ripe for decision because he is out of prison and still on
probation.”
-4- Before this Court, defendant asserts that the trial justice erred in “denying
and dismissing the motion based upon a procedural defect which had no practical
impact” and that, his claim was, in fact, ripe for decision. Specifically, he contends
that his termination from a program deprived him of additional credit; that the ACI’s
policy to deny service credit for the final sixty days of a sex-offender’s sentence
was improper; and that the disaggregation of his sentence for the calculation of
good-time credits was contrary to law. Lastly, in defendant’s supplemental
briefing, Smith further asserts that the trial justice “violate[d] his fundamental right
to a remedy for harm caused, as explicitly mandated in the Rhode Island State
Constitution, Article I, Section 5 and also violate[d] the statutory right to such a
remedy as promulgated by the [Rhode Island] General Assembly and codified at
[G.L. 1956 §] 9-30-2.”
The state refutes several of defendant’s arguments and, notably, objects on
mootness grounds. The state submits that the trial justice appropriately denied
defendant’s motion because defendant completed the term he was sentenced to
serve in the Kent case and the matter became moot. For the reasons that follow,
we affirm the trial justice’s denial of defendant’s motion on two grounds: the claim
was not made in an appropriate civil action and the issues raised are not ripe for
review.
-5- First, Smith’s motion for declaratory judgment was improperly filed under
the Kent criminal case, K2/16-637A. “The purpose of Rule 57 [of the Superior
Court Rules of Civil Procedure] is to make it clear that actions for declaratory relief
pursuant to [§ 9-30-1] are to be conducted as other civil actions under the rules.”
See Robert B. Kent et al., Rhode Island Civil Procedure § 57:1 (April 2025 Update)
(emphasis added). Therefore, we conclude that Smith improperly filed a civil
motion under a criminal case, and that for the reasons stated infra, such motion is
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Supreme Court
No. 2024-347-C.A. (K2/16-637A)
State :
v. :
Brian Smith. :
ORDER
This case came before the Supreme Court on appeal by the defendant, Brian
Smith (defendant or Smith), from a Superior Court order denying his request for
declaratory and injunctive relief filed in the context of an ongoing criminal
proceeding, in which the defendant had entered a plea of nolo contendere to two
counts of second-degree child molestation. Having reviewed the parties’
arguments, we conclude that cause has not been shown and proceed to decide the
appeal at this time. We affirm. The facts underlying Smith’s conviction are set
forth more fully in Rhode Island Department of Attorney General v. Smith, 330
A.3d 38 (R.I. 2025).
On February 10, 2015, defendant was charged by way of criminal
information, N2/15-45A (the Newport case)—alleging one count of simple assault
and one count of second-degree child molestation arising from an incident that
occurred on or about July 19, 2014. See Smith, 330 A.3d at 42. “After a jury trial, -1- on April 4, 2016, Smith was found guilty of the lesser-included offense of simple
assault and the second count of simple assault.” Id. “Smith was sentenced to serve
two years at the Adult Correctional Institutions.” Id.
During the pendency of Smith’s Newport case, however, “on November 2,
2015, an additional charge of second-degree child molestation was brought against
[Smith] by way of criminal information, P2/15-3448A (the Providence case), after
[his] niece came forward and alleged that he had sexually assaulted her in 2004,
when she was nine years old.” Smith, 330 A.3d at 42. In the Providence case,
“[defendant] entered a plea of nolo contendere to one count of second-degree child
molestation and [he] was sentenced to ten years at the ACI with two years to serve,
eight years suspended, and ten years’ probation.”1 Id.
Approximately one year later, on November 17, 2016, defendant was charged
with four counts of second-degree child molestation in the underlying case,
K2/16-637A (the Kent case). The defendant pled nolo contendere to two of the
four second-degree child molestation charges in Kent County Superior Court on
1 Pursuant to the Sexual Offender Registration and Community Notification Act, defendant’s plea in the Providence case, P2/15-3448A, “triggered Smith’s case for the board’s determination of [his] risk to reoffend.” Rhode Island Department of Attorney General v. Smith, 330 A.3d 38, 42, 43 (R.I. 2025).
-2- December 14, 2017.2 A judgment of conviction in the Kent case entered on April
21, 2021.
On or about November 29, 2017, before defendant entered a plea in the Kent
case, the “[Sex Offender Board of Review] classified Smith as a level III sex
offender and determined that his risk to reoffend was ‘HIGH,’” in accordance with
the provisions of the Sexual Offender Registration and Community Notification
Act, G.L. 1956 chapter 37.1 of title 11. Smith, 330 A.3d at 43. “While imprisoned
at the ACI, Smith received written notice detailing the board’s proposed
sex-offender classification [and] the conditions concerning a level III classification
* * *.” Id. Smith challenged the board’s level III classification, and the state moved
to affirm the board’s decision. Id.
Meanwhile, during Smith’s period of incarceration, he filed a “Motion for
Declaratory Judgment & Request for Injunctive Relief” in the Kent case,
challenging the calculations of his good-time and meritorious service credit on
sentences from previous convictions. This motion was not filed as a separate civil
proceeding, but in the context of a pending criminal case. It is undisputed that Smith
was released from incarceration in November 2021.
2 The two remaining second-degree child molestation charges were dismissed pursuant to Rule 48(a) of the Superior Court Rules of Criminal Procedure. Super. R. Crim. P. 48(a).
-3- A hearing was held on June 28, 2023, before a justice of the Superior Court.
The defendant raised three issues: (1) “[W]hich enactment of [G.L. 1956
§ 42-56-26] shall apply for the determination of [his] meritorious service credit
throughout [his] term of incarceration?”; (2) “Whether or not the Department of
Corrections is within its authority to deny meritorious service credit otherwise
earned during the last 60 days of [his] term of incarceration”; and (3) “[W]hether or
not * * * participation in programs which earn meritorious service credit can be
capriciously terminated without cause.” The state argued that the matter was moot
because defendant had not been incarcerated since November 2021—
approximately one year and seven months before the hearing in June 2023.
The trial justice issued a bench decision on September 6, 2024, finding that
“Mr. Smith is now out of jail and remains on probation until 2027. * * * [T]he
[d]efendant’s motion is improperly before the [c]ourt as it was filed in the * * *
criminal case [K2/16-637A] and should have been initiated in a separate civil
proceeding.” Accordingly, the trial justice denied and dismissed defendant’s
motion for declaratory relief without prejudice to his filing of an appropriate civil
action. The trial justice further determined that, even if properly before the court,
“[d]efendant’s claim is not ripe for decision because he is out of prison and still on
probation.”
-4- Before this Court, defendant asserts that the trial justice erred in “denying
and dismissing the motion based upon a procedural defect which had no practical
impact” and that, his claim was, in fact, ripe for decision. Specifically, he contends
that his termination from a program deprived him of additional credit; that the ACI’s
policy to deny service credit for the final sixty days of a sex-offender’s sentence
was improper; and that the disaggregation of his sentence for the calculation of
good-time credits was contrary to law. Lastly, in defendant’s supplemental
briefing, Smith further asserts that the trial justice “violate[d] his fundamental right
to a remedy for harm caused, as explicitly mandated in the Rhode Island State
Constitution, Article I, Section 5 and also violate[d] the statutory right to such a
remedy as promulgated by the [Rhode Island] General Assembly and codified at
[G.L. 1956 §] 9-30-2.”
The state refutes several of defendant’s arguments and, notably, objects on
mootness grounds. The state submits that the trial justice appropriately denied
defendant’s motion because defendant completed the term he was sentenced to
serve in the Kent case and the matter became moot. For the reasons that follow,
we affirm the trial justice’s denial of defendant’s motion on two grounds: the claim
was not made in an appropriate civil action and the issues raised are not ripe for
review.
-5- First, Smith’s motion for declaratory judgment was improperly filed under
the Kent criminal case, K2/16-637A. “The purpose of Rule 57 [of the Superior
Court Rules of Civil Procedure] is to make it clear that actions for declaratory relief
pursuant to [§ 9-30-1] are to be conducted as other civil actions under the rules.”
See Robert B. Kent et al., Rhode Island Civil Procedure § 57:1 (April 2025 Update)
(emphasis added). Therefore, we conclude that Smith improperly filed a civil
motion under a criminal case, and that for the reasons stated infra, such motion is
not ripe for our review.
Second, it is well settled that “as a general rule, a necessary predicate to a
court’s exercise of its jurisdiction is an actual justiciable controversy.” State v.
Gaylor, 971 A.2d 611, 613 (R.I. 2009); see also Perron v. Treasurer of City of
Woonsocket, 121 R.I. 781, 786, 403 A.2d 252, 255 (1979) (“[A]ny individual
seeking declaratory relief must present the court with a viable controversy.”). “This
Court will not ordinarily entertain an abstract question or render an advisory
opinion.” Gaylor, 971 A.2d at 613. “We have ‘long recognized the need, apart from
certain exceptional circumstances, to confine judicial review only to those cases
that present a ripe case or controversy.’” Riley v. Narragansett Pension Board, 275
A.3d 545, 556 (R.I. 2022) (deletion omitted) (quoting City of Cranston v. Rhode
Island Laborers’ District Council, Local 1033, 960 A.2d 529, 533 (R.I. 2008)).
“[A] claim is not ripe for adjudication if it rests upon contingent future events that
-6- may not occur as anticipated, or indeed may not occur at all.” Id. (quoting Gaylor,
971 A.2d at 614).
Here, the defendant was released from the ACI in November 2021. The
parties appeared before the trial justice in June 2023, at which time the defendant
was no longer incarcerated. After having considered the parties’ arguments and
review of the record, we are of the opinion that the defendant’s claims are not ripe
for our review. The defendant is no longer incarcerated and, therefore, is not subject
to a reduced period of incarceration based on his claimed meritorious service or
good-time credit. However, because the defendant continues to serve his
probationary sentence until 2027, we deem his claims not ripe for review rather than
moot. Were the defendant to violate the terms and conditions of probation, and
return to the ACI, a claim for meritorious service and good-time credit may be
brought in an appropriate proceeding. See Riley, 275 A.3d at 556.
For the reasons stated herein, we affirm the order of the Superior Court. The
papers may be remanded to the Superior Court.
Entered as an Order of this Court this ____ day of _________, 2026.
By Order, ____________________ Clerk
-7-