Providence County Superior Court.
For Plaintiff: Dawn L. Huntley, Esq.
For Defendant: Jeanine McConaghy, Esq.
Before this Court is Sebastian Wells Atryzek's (Mr. Atryzek) Application for Post Conviction Relief (Application) from three pleas of nolo contendere entered before this Court, P2-2009-2042A, P2-2010-0740A, and P2-2012-0425A. Also before this Court is an appeal of a Special Magistrate's decision denying a preceding Application for Post Conviction Relief from a plea of nolo contendere entered before the Magistrate, P2-2013-1293A. Mr. Atryzek requests that this Court vacate and set aside all of his convictions for failure to register as a sex offender in violation of G.L. 1956 §§ 11-37.1-9 and 11-37.1-10. Mr. Atryzek alleges that he had no duty to register as a sex offender and that his decision to plead nolo contendere to the charged violations was prejudiced by the deficient performance of his counsel. Jurisdiction is pursuant to G.L. 1956 § 10-9.1-2(a).
Facts and Travel
On February 18, 1993, at the age of seventeen years old, Mr. Atryzek pled guilty to and was convicted in the Commonwealth of Massachusetts of "Rape and abuse of child" under M.G.L.A. 265 § 23 (1993 Mass. Conviction). (Appl. for Post Conviction Relief at 2.) Mr. Atryzek was assessed as a Level I Sex Offender, the lowest assessment level, and was sentenced to probation and supervision, terminating on June 19, 2000. Id. Shortly after his conviction, Mr. Atryzek moved with his adoptive parents to live in Rhode Island (State). Id. On April 11, 2005, a Justice of the Massachusetts Superior Court ordered the destruction of records relating to Mr. Atryzek's 1993 Mass. Conviction. Id. at 4.
On or about June 18, 2009, the State filed a one count criminal information charging Mr. Atryzek with failure to register as a sex offender in violation of §§ 11-37.1-9 and 11-37.1-10 (P2-2009-2042A). Id. at 2. On both March 4, 2010 and February 2, 2012, the State, again, charged Mr. Atryzek with "Failure to Register" (P2-2010-0740A, P2-2012-0425A). Id.
Before this Court on February 2, 2012, represented by attorney Judith Crowell, Mr. Atryzek pled nolo contendere to P2-2009-2042A, P2-2010-0740A, and P2-2012-0425A (collectively, 2012 Convictions). Id. at 3. Mr. Atryzek received a sentence of five years at the Adult Correctional Institute (ACI), ten months to serve, fifty months suspended/probation. Id. The 2012 Convictions stemmed from the 1993 Mass. Conviction, despite the destruction of Mr. Atryzek's records in 2005.
On or about May 6, 2013, the State filed its fourth criminal information charging Mr. Atryzek with "Failure to Register" in violation of §§ 11-37.1-9 and 11-37.1-10 (P2-2013-1293A). Id. On August 16, 2013, represented by attorney Kenneth Shea, Mr. Atryzek pled nolo contendere to P2-2013-1293A. A Special Magistrate sentenced Mr. Atryzek to seven years at the ACI, five years to serve, two years suspended/probation (2013 Conviction). Id. Mr. Atryzek is currently being held in the custody of the ACI, having served over two years of the 2013 Conviction.
Mr. Atryzek previously filed an Application for Post Conviction Relief in the matter of Sebastian Wells Atryzek v. State of Rhode Island, No. PM-2014-2239 (filed May 5, 2014) (2014 PCR Application). Id. at 3-4. The 2014 PCR Application alleged that because Mr. Atryzek's records from his 1993 Mass. Conviction had been destroyed in 2005, he no longer had a duty to register in any jurisdiction. On November 20, 2014, Special Magistrate McBurney denied Mr. Atryzek's request for relief, and an appeal was taken. Id. at 4. On October 15, 2015, counsel for Mr. Atryzek withdrew the arguments made in the 2014 PCR Application.
Subsequently, Mr. Atryzek filed an Application for Post Conviction Relief in the matter of Sebastian Wells Atryzek v. State of Rhode Island, No. PM-2015-5345 (2015 PCR Application). In the 2015 PCR Application, Mr. Atryzek requested relief from his plea of nolo contendere to P2-2013-1293A. The Special Magistrate denied Mr. Atryzek's request and Mr. Atryzek timely filed this appeal of the Special Magistrate's decision.
Coinciding with that appeal, Mr. Atryzek filed this Application for Post Conviction Relief from his pleas of nolo contendere that occurred before this Court on February 2, 2012- P2-2009-2042A, P2-2010-0740A, and P2-2012-0425A.
Mr. Atryzek argues that his duty to register as a sex offender in Rhode Island stemmed from § 11-37-16, the statute in effect at the time of his 1993 Mass. Conviction. Sec. 11-37-16 has been nominally repealed by § 11-37.1-4. Mr. Atryzek argues that § 11-37-16 is silent as to the duration of the registration requirement and thus ambiguous. In claiming that § 11-37-16 is ambiguous, Mr. Atryzek submits that this Court should apply the Rule of Lenity to find that his duty to register is controlled by § 11-37.1-4, which imposes a duty on sex offenders to register for ten years subsequent to the date of conviction. Consequently, Mr. Atryzek argues that applying the Rule of Lenity leads to the conclusion that his duty to register expired in February of 2003, and therefore, the subsequent charges and convictions for failure to register were erroneous and must be set aside.
Subsequent to filing this Application, Mr. Atryzek amended the Application to add the claim of ineffective assistance of counsel. Mr. Atryzek maintains that his duty to register as a sex offender expired in February of 2003 and counsel should have argued this point, but instead, advised him to plead guilty to the charges. Mr. Atryzek submits that counsel was so deficient in advising him to plead to the charged violations that he was, effectively, denied his right to a fair hearing. This Court held an evidentiary hearing concerning Mr. Atryzek's claim of ineffective assistance of counsel on April 18, 2016. Further facts will be discussed as needed, infra.
Standard of Review
"[P]ostconviction relief is available to any person who has been convicted of a crime and who thereafter alleges either that the conviction violated the applicant's constitutional rights or that the existence of newly discovered material facts requires vacation of the conviction in the interest of justice." Page v. State, 995 A.2d 934, 942 (R.I. 2010); see also § 10-9.1-1. "An applicant for such relief bears '[t]he burden of proving, by a preponderance of the evidence, that such relief is warranted' in his or her case." Brown v. State, 32 A.3d 901, 907 (R.I. 2011) (quoting State v. Laurence, 18 A.3d 512, 521 (R.I. 2011)). Postconviction relief motions are civil in nature and thus governed by all the applicable rules and statutes governing civil cases. Ferrell v. Wall, 889 A.2d 177, 184 (R.I. 2005).
Mr. Atryzek files this Application on four bases: (1) the Rhode Island Superior Court has no jurisdiction to impose the sentences relating to the 2012 and 2013 Convictions; (2) the registration statute in effect at the time of Mr. Atryzek's conviction is ambiguous, and the Rule of Lenity dictates that this Court resolve the ambiguity in Mr. Atryzek's favor by concluding that the duration of registration under the statute is not for life; (3) Mr. Atryzek had no duty to register under Rhode Island law, and thus, charges should never have been brought; and (4) Mr. Atryzek's decision to plead nolo contendere to the charged violations was prejudiced by ineffective assistance of counsel.