Sebastian Wells Atryzek v. State of Rhode Island

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

No. 2019-215-M.P.
(PM 15-4499)

Sebastian Wells Atryzek :

v. :

State of Rhode Island. :

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.

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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.

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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.

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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)