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State v. Gibson

Supreme Court of Rhode Island

April 23, 2018

State
v.
Frederick Gibson. Frederick Gibson
v.
State of Rhode Island.

          Providence County Superior Court (P2/12-2199A) (PM 14-4730), Magistrate John F. McBurney III Associate Justice Kristin E. Rodgers

          For State: Aaron L. Weisman Department of Attorney General

          For Petitioner/Defendant: Susan B. Iannitelli, Esq.

          Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

          OPINION

          Francis X. Flaherty Associate, Justice.

         The petitioner/defendant, Frederick Gibson, was convicted of second-degree child molestation sexual assault, and, as a sex offender, he became obligated to register with and notify local authorities when he changed his residence from town to town in the state of Rhode Island. But one thorny issue to be determined in these consolidated cases is the duration of that obligation. Is he required to register for life, as the state argues, or for a period of ten years, as he maintains? An equally vexing question that must be addressed by this Court in this case of first impression is whether changes to the law requiring Gibson to register-namely, two amendments to G.L. 1956 § 11-37.1-4(a), which governs the duration and frequency of registration, and an increase in the punishment for the failure to comply with the sex-offender registration laws-violate the ex post facto clauses of the United States and Rhode Island Constitutions.

         Gibson seeks review on certiorari of a decision of a magistrate of the Superior Court denying his motion to dismiss a 2012 charge for failing to notify law enforcement of a change in residence, in violation of §§ 11-37.1-9 and 11-37.1-10. In denying Gibson's motion to dismiss, the magistrate determined that Gibson had a lifetime duty to register; therefore, his duty to register had not expired, and the 2012 charge would not be dismissed. Also, Gibson appeals from a judgment embodying a decision of a justice of the Superior Court denying his application for postconviction relief from three failure-to-notify convictions in 2007, 2009, and 2010, in violation of § 11-37.1-9.[1] The hearing justice in the postconviction relief matter also found that Gibson was burdened by a lifetime duty to register. In addition, she ruled that Gibson's three failure-to-notify convictions did not violate the ex post facto clause.

         For the reasons set forth in this opinion, we affirm both the magistrate's denial of Gibson's motion to dismiss and the judgment of the Superior Court denying Gibson's application for postconviction relief. However, in so doing, we deviate slightly from the reasoning on which the decision and judgment were based. We depart from the conclusions of the magistrate and the hearing justice that Gibson has a lifetime duty to register. Rather, we hold that, in accordance with the language of §§ 11-37.1-18 and 11-37.1-4(a), Gibson's duty to register expires "ten (10) years from the expiration of sentence for the offense * * *." Section 11-37.1-4(a). We also hold that Gibson's prior failure-to-notify convictions in 2007, 2009, and 2010 do not run afoul of the ex post facto clause.

         I

         Facts and Travel

         On November 18, 1994, Gibson entered an Alford plea[2] to a charge of second-degree child molestation sexual assault, in violation of § 11-37-8.3.[3] As a consequence of his plea, he received a fifteen-year sentence, with four and a half years to serve and the balance suspended, with probation. Under the provisions of § 11-37-16, a statute that the General Assembly had enacted in 1992, Gibson was required to register as a sex offender.[4] In 1996, the General Assembly repealed § 11-37-16 and enacted a more comprehensive registration regime entitled the "Sexual Offender Registration and Community Notification Act, " chapter 37.1 of title 11 (the "Registration Act"). See P.L. 1996, ch. 104, §§ 1, 3. Although the Registration Act repealed and replaced § 11-37-16, it also preserved the duty to register of persons, like Gibson, whose duty to register had arisen under the repealed statute:

"Any person who pursuant to the provisions of former § 11-37-16 had a duty to register under that section after having been convicted of any violation of the provisions of chapter 37 of this title, or for a conviction in another state of first degree sexual assault which if committed in this state would constitute a violation of chapter 37 of this title, shall have the duty to register in accordance with the provisions of this chapter. Nothing in this section shall be construed to abrogate any duty to register which exists or existed under the provisions of former § 11-37-16." Section 11-37.1-18.

         Over a decade later, in 2007, Gibson was charged with failing to notify local law enforcement of his change in residence, in violation of § 11-37.1-9.[5] To that charge, Gibson pleaded nolo contendere, and he was sentenced to a five-year suspended sentence, with probation. Although this was Gibson's first conviction for failing to notify in accordance with the Registration Act, it would not be his last. In both 2009 and 2010, Gibson-for a second and third time, respectively-pleaded nolo contendere to failing to notify in violation of § 11-37.1-9. For his 2009 failure-to-notify conviction, Gibson received a three-year sentence, with ninety days to serve and the balance suspended with probation. For his 2010 transgression, he received a ten-year sentence, with six months to serve and the balance suspended with probation. Thus, by the close of 2010, Gibson had been convicted on three separate occasions of failing to notify in accordance with the Registration Act.

         Finally, in July 2012, Gibson was charged for a fourth time with failing to notify in violation of §§ 11-37.1-9 and 11-37.1-10. To this charge, though, Gibson did not plead nolo contendere. Rather, he moved to dismiss the criminal information, arguing that his duty to register as a sex offender had expired in 2004-ten years from the date of his conviction in 1994 and well before the 2012 charge. However, a magistrate of the Superior Court decided otherwise. In a written decision, the magistrate denied Gibson's motion to dismiss, concluding that Gibson was saddled with a lifetime duty to register. Gibson then filed a petition for a writ of certiorari with this Court, seeking review of the magistrate's decision. We granted his petition.

         Several months after the magistrate denied his motion to dismiss, Gibson filed an application for postconviction relief from his three prior failure-to-notify convictions that had occurred in 2007, 2009, and 2010. Before a justice of the Superior Court, Gibson made the same argument that he had raised in his motion to dismiss: the duration of his duty to register was limited to ten years, not for the remainder of his life. He further argued that his prior failure-to-notify convictions violated the ex post facto clauses of the United States and Rhode Island Constitutions because (a) amendments to the Registration Act impermissibly extended the duration of his duty to register, and (b) the Registration Act increased the punishment for failing to comply with the sex-offender registration laws from a misdemeanor to a felony. After two hearings on the matter, the hearing justice denied Gibson's application for postconviction relief, determining first that Gibson had a lifetime duty to register, and second that there was no violation of the ex post facto clause. Gibson appealed that ruling to this Court.[6]

         The issues before this Court are twofold: whether the duration of Gibson's duty to register lasts ten years or for the rest of his life, and whether Gibson's 2007, 2009, and 2010 failure-to-notify convictions violate the ex post facto clause.

         II

         Motion to Dismiss: The Duration of Gibson's Duty to Register

         The first issue Gibson presents to this Court is whether the duration of his duty to register as a sex offender is for a lifetime or is limited to ten years. Significantly, he does not dispute his duty to register. The question for this Court is whether the duration of Gibson's duty to register is governed by either the repealed § 11-37-16-the registration statute in effect in 1993, the year of the underlying sex offense-or chapter 37.1 of title 11-the registration statute he has been convicted of violating on three separate and subsequent occasions.

         As noted above, in 2012, Gibson was charged by criminal information with, for the fourth time, failing to notify in violation of §§ 11-37.1-9 and 11-37.1-10.[7] He moved to dismiss the criminal information, [8] arguing to the magistrate that his duty to register expired in 2004, ten years from the date of his conviction for second-degree child molestation sexual assault. The state, on the other hand, argued that Gibson's duty to register was without expiration. According to the state, that was so because the statute in effect at the time of his conviction in 1994, the former § 11-37-16, mandated a lifetime duty to register. In the alternative, the state also argued that Gibson's duty to register, as a consequence of the child molestation conviction, even if not for life, would not expire until at least November 2019, ten years after the expiration of his sentence for second-degree child molestation sexual assault, in accordance with § 11-37.1-4(a).

         In a written decision, the magistrate denied Gibson's motion to dismiss, holding that the statute in effect at the time of his plea, § 11-37-16, burdened him with lifetime registration. Relying on an opinion from the United States District Court for the District of Maine that interpreted the repealed Rhode Island statute, the magistrate held that the clear and unambiguous language of § 11-37-16 imposed a lifetime duty to register, because it lacked a durational requirement.[9] Then, quoting from this Court's opinion in State v. Flores, 714 A.2d 581 (R.I. 1998), the magistrate reasoned that Gibson, who was charged with a crime prior to the enactment of the Registration Act in 1996, "must register as a sex offender pursuant to the registration requirements in effect at the time he was charged, that is, pursuant to § 11-37-16." Flores, 714 A.2d at 583. For those reasons, the magistrate concluded that Gibson had a lifetime duty to register under § 11-37-16, and he denied Gibson's motion to dismiss the 2012 charge.

         A

         Standard of Review

         Whether Gibson has a lifetime or ten-year duty to register is a question of statutory interpretation, a matter that we review de novo. State v. Santos, 870 A.2d 1029, 1031 (R.I. 2005) ("When faced with questions of statutory interpretation, this Court approaches the matter on a de novo basis."). "[W]hen the language of a statute is clear and unambiguous, this Court must interpret the statute literally and must give the words of the statute their plain and ordinary meanings." Id. at 1032 (quoting Accent Store Design, Inc. v. Marathon House, Inc., 674 A.2d 1223, 1226 (R.I. 1996)). If, however, the language of a statute is ambiguous, this Court turns to "our well-established maxims of statutory construction in an effort to glean the intent of the Legislature." Town of Warren v. Bristol Warren Regional School District, 159 A.3d 1029, 1039 (R.I. 2017) (quoting Bucci v. Lehman Brothers Bank, FSB, 68 A.3d 1069, 1078 (R.I. 2013)).

         B

         Discussion

         We are confronted with a nettlesome question: Which statute controls the duration of Gibson's duty to register-the repealed § 11-37-16, which was silent with respect to the durational limit on the duty to register, arguably imposing a lifetime duty to register, or § 11-37.1-4(a), which limits the duty to register of certain offenders to "a period of ten (10) years from the expiration of sentence"? Gibson, who does not dispute that he was under a duty to register, argues that the ten-year duration contained in § 11-37.1-4(a) controls. However, he further argues that the duration of his duty to register was set as of 1996, when the version of the Registration Act in effect at that time stated that the duty to register for offenders such as him ran "for a period of ten (10) years subsequent to the date of conviction * * *." See P.L. 1996, ch. 104, § 1. According to Gibson, because his conviction for second-degree child molestation sexual assault was in 1994, his duty to register concluded ten years later, in 2004.

         The state does not agree. It first posits that the duration of Gibson's duty to register is governed by § 11-37-16, the statute in effect at the time of the sex offense. Under the state's interpretation of that statute, Gibson has a lifetime duty to register because he was convicted in 1994, and because the statute was silent on the issue of how long an offender must register. Indeed, the state maintains that § 11-37.1-4 applies by its specific and unambiguous terms only to offenses occurring after its enactment in 1996.

         In the alternative, the state contends that the duration of Gibson's duty to register, if governed by chapter 37.1 of title 11, ends in 2019, ten years from the expiration of his fifteen-year sentence, pursuant to the terms of the current version of § 11-37.1-4, and not, as Gibson maintains, ten years from the date of his 1994 conviction, under the terms of the since-amended 1996 version of that section.

         According to Gibson, his duty to register expired in 2004. But, to accept that argument would require us to ignore changes to § 11-37.1-4(a) that extended the duration of the duty to register for those subject to its terms from "ten (10) years subsequent to the date of conviction" to "ten (10) years subsequent to the date of release from confinement or placement on parole, supervised release or probation" to the current requirement of "ten (10) years from the expiration of sentence for the offense * * *." See P.L. 1996, ch. 104, § 1; P.L. 1997, ch. 156, § 1; P.L. 2003, ch. 162, § 1; P.L. 2003, ch. 170, § 1.

         With respect to the state's argument that there is a lifetime obligation, it does not escape us that we cannot overlook the specific language of § 11-37.1-18, which provides, in pertinent part, that:

"Any person who pursuant to the provisions of former § 11-37-16 had a duty to register under that section after having been convicted of any violation of the provisions of chapter 37 of this title * * * shall have the duty to register in accordance with the provisions of this chapter." (Emphasis added.)

         That language preserves only Gibson's duty to register, not its duration. See § 11-37.1-18. To complicate matters further, the 1996 Registration Act included a general provision that it "shall apply to those persons who are convicted of an offense requiring registration * * * which was committed after the effective date of [the Registration Act]." See P.L. 1996, ch. 104, § 4 (emphasis added). Of course, the sex offense to which Gibson later pled was in 1993, three years prior to the effective date of the Registration Act. See Flores, 714 A.2d at 583.

         After considering the thoughtful arguments of counsel, we are persuaded that a slightly different rationale resolves the question of the duration of Gibson's duty to register. Starting with § 11-37.1-18, it is clear to us that, in enacting the Registration Act, the Legislature preserved Gibson's duty to register because he had an obligation to do so under the former § 11-37-16. Therefore, in our opinion the passage of the Registration Act did not free Gibson from the responsibility to register. However, the General Assembly's mandate that offenders "shall have the duty to register in accordance with the provisions of [chapter 37.1 of title 11]" included the ten-year duration period set forth in § 11-37.1-4(a). Section 11-37.1-18 (emphasis added). It is important to note that the savings clause in § 11-37.1-18 says nothing about the duration of the duty to register. Id. ("Nothing in this section shall be construed to abrogate any duty to register which exists or existed under the provisions of former § 11-37-16." (Emphasis added.)). This clear and unambiguous language constrains us to conclude that, in accordance with chapter 37.1, the duration of Gibson's duty to register is governed by § 11-37.1-4(a).[10] In other words, when it repealed ...


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