Providence County No. (PM 15-4499) Superior Court William E.
Carnes Associate Justice
Petitioner: Carl J. Ricci, Esq.
State of Rhode Island: Christopher R. Bush Department of
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and
Francis X. Flaherty Associate Justice.
Atryzek seeks review of a Superior Court judgment denying his
application for postconviction relief. This case came before
the Supreme Court for oral argument on October 2, 2018,
pursuant to an order directing the parties to appear and show
cause why the issues raised should not summarily be decided.
After hearing the arguments of counsel and examining the
memoranda filed on behalf of the parties, we quash the
judgment of the Superior Court and remand the case for
further factfinding in light of our opinion in State v.
Gibson, 182 A.3d 540 (R.I. 2018).
Facts and Travel
February 18, 1993, seventeen year old Atryzek pled guilty to
the rape of a child in the Commonwealth of Massachusetts, in
violation of Mass. Gen. Laws ch. 265, § 23. He was
sentenced to fifteen years' suspended imprisonment, with
a term of supervised probation that was to terminate on June
19, 2000. He was also assessed as a Level I Sex Offender. At
some point after his conviction, Atryzek moved to Rhode
Island with his family, but he did not register as a sex
offender in accordance with G.L. 1956 chapter 37.1 of title
11. Those omissions led to his being charged with failing to
register in 2009, 2010, and again in 2012. On February 2,
2012, Atryzek pled nolo contendere to all three charges; he
was sentenced to five years' imprisonment, ten months of
which were to be served at the Adult Correctional
Institutions, with the remaining fifty months suspended, with
probation. In 2013, Atryzek once again was charged with, and
again pled nolo contendere to, failing to comply with the sex
offender registration statute. For this latest charge,
Atryzek was sentenced to seven years' incarceration, with
five years to serve and two years suspended, with probation.
2015, Atryzek filed an application for postconviction relief
from his 2013 conviction, which a Superior Court magistrate
denied. Atryzek appealed that ruling to a justice of the
Superior Court, and he also filed a new application for
postconviction relief from convictions for the 2009, 2010,
and 2012 charges. In a written opinion dated May 5, 2016, the
Superior Court justice denied postconviction relief with
respect to all four convictions. In that decision, the
hearing justice held that Atryzek had a lifetime duty to
register under the sex offender registration statute that was
in place at the time of the underlying offense and that his
claims of ineffective assistance of counsel were
unsubstantiated. Atryzek petitioned this Court for the
issuance of a writ of certiorari, which we granted on June
Standard of Review
to G.L. 1956 § 10-9.1-1, postconviction 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.'" Duvere v. State, 151 A.3d 314,
317 (R.I. 2017) (quoting Lamoureux v. State, 93 A.3d
958, 961 (R.I. 2014)). An applicant for postconviction relief
bears the "burden of proving, by a preponderance of the
evidence, that such [postconviction] relief is
warranted[.]" Navarro v. State, 187 A.3d 317,
325 (R.I. 2018) (quoting Motyka v. State, 172 A.3d
1203, 1205 (R.I. 2017)). "This Court will not disturb a
[hearing] justice's factual findings made on an
application for post[ ]conviction relief absent clear error
or a showing that the [hearing] justice overlooked or
misconceived material evidence in arriving at those
findings." Id. (quoting Chapdelaine v.
State, 32 A.3d 937, 941 (R.I. 2011)).
this Court, Atryzek first argued that G.L. 1956 §
11-37-16, the 1992 sex offender registration statute that was
in place at the time of his underlying conviction, was silent
as to the duration of his registration requirement and
therefore was ambiguous. As a result, he argued, the rule of
lenity required that the registration period be no longer
than that provided for in the 1992 statute's immediate
successor statute, § 11-37.1-4, enacted in 1996, which
required sex offenders to register "for a period of ten
(10) years subsequent to the date of conviction[.]"
See P.L. 1996, ch. 104, § 1. Of significance is
the fact that we considered and disposed of this very issue
in Gibson, discussed below-a case that was decided
during the pendency of our review in this case. See
Gibson, 182 A.3d at 548-49.
light of our decision in Gibson, Atryzek submitted a
supplemental memorandum, which recognized that the duration
of his registration requirement is governed by the current
incarnation of § 11-37.1-4, which was enacted in 2003.
He now argues that, therefore, his duty to register expired
ten years after his supervised probation ended in 2000,
requiring, at least, the vacation of his 2012 and 2013
convictions for failure to register. Atryzek also argues that
he received ineffective assistance of counsel when he pled
nolo contendere to his four ...