April 23, 2018



                                                                           Supreme Court


                         State                     :


                          v.                       :                       No. 2015-108-M.P.
                                                                           (P2/12-2199A)
                   Frederick Gibson                :



                   Frederick Gibson                :


                          v.                       :                       No. 2016-149-Appeal.
                                                                           No. 2017-317-M.P.
                 State of Rhode Island             :                       (PM 14-4730)


                 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 Tel. 222-3258 of any typographical or other
                 formal errors in order that corrections may be made before the opinion is
                 published.
                                                                              Supreme Court




                       State                        :


                        v.                          :                         No. 2015-108-M.P.
                                                                              (P2/12-2199A)
                Frederick Gibson.                   :


                Frederick Gibson                    :


                        v.                          :                         No. 2016-149-Appeal.
                                                                              No. 2017-317-M.P.
                                                                              (PM 14-4730)
              State of Rhode Island.                :

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

                                           OPINION

       Justice Flaherty, for the Court.         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

                                                -1-
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)

1
  Because of the considerable overlap of the issues presented in these cases, we consolidated
Gibson’s petition for a writ of certiorari and his appeal from the denial of his application for
postconviction relief. Gibson’s challenge to the denial of postconviction relief comes to us on
appeal, not certiorari, because he filed his notice of appeal prior to the 2015 amendment to G.L.
1956 § 10-9.1-9 requiring an applicant seeking review of a final judgment regarding
postconviction relief to do so “by filing a petition for writ of certiorari * * *.” See P.L. 2015, ch.
91, § 1; P.L. 2015, ch. 92, § 1. Still, final judgment in the Superior Court did not enter until July
7, 2015, shortly after that amendment’s date of enactment. In what appears to be an attempt to
ensure that the appeal of his application for postconviction relief was procedurally proper,
Gibson filed a petition for a writ of certiorari and a motion to consolidate, which we granted.

                                                -2-
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



2
  Deriving its name from North Carolina v. Alford, 400 U.S. 25 (1970), “[t]he Alford plea
enables a trial justice to accept a defendant’s guilty plea even though the defendant maintains his
or her innocence as long as the state presents a factual basis for the plea other than the
defendant’s own admission.” State v. Baptista, 632 A.2d 343, 344 n.1 (R.I. 1993). Nevertheless,
“[a]lthough a criminal defendant may be relieved of the embarrassment of admitting
participation in the crime or comforted by the fact that he or she has maintained his innocence
* * * the result is abundantly clear: the defendant stands convicted of the crime.” Mattatall v.
State, 947 A.2d 896, 899 n.4 (R.I. 2008) (quoting Armenakes v. State, 821 A.2d 239, 242 (R.I.
2003)).
3
  Under G.L. 1956 § 11-37-8.3, “[a] person is guilty of a second degree child molestation sexual
assault if he or she engages in sexual contact with another person fourteen (14) years of age or
under.”
4
  Prior to its repeal, G.L. 1956 § 11-37-16(a) stated that:

               “Any person who since July 1, 1992 has been, or shall hereafter be,
               convicted of any offense in violation of this chapter * * * shall,
               within sixty (60) days after [July 1, 1992], or within thirty (30)
               days of coming into any city or town in which such person shall
               reside, register with the chief of police of said city or town.”

                                               -3-
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

5
  The pertinent subsection, § 11-37.1-9(d), which governs the duty of sex offenders who change
their residence within the state of Rhode Island, provides that:

               “A person who has been convicted of an offense which requires
               registration under this chapter and who changes his or her
               residence address to another city or town in Rhode Island, shall
               notify the local law enforcement agency in the city or town from
               which the person is moving before the person establishes residence
               in the new location, and shall register with the local law
               enforcement agency in the city or town in which the person is
               moving not later than twenty-four (24) hours after the person
               establishes residence in the new city or town. A person who has
               been convicted of an offense which requires registration under this
               chapter and who changes his or her residence within a city or town
               in Rhode Island shall notify the local law enforcement agency in
               the city or town not later than twenty-four (24) hours after the
               person changes the residence within the city or town.”

                                                  -4-
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,




                                                -5-
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

6
  Although Gibson’s appeal of the hearing justice’s decision was premature, because a final
judgment was entered several months thereafter, his appeal is considered timely. See State v.
Austin, 114 A.3d 87, 94 n.9 (R.I. 2015).
7
  Section 11-37.1-10 prescribes the penalties for the failure to comply with the Registration Act.
8
  Gibson moved to dismiss pursuant to Rule 9.1 of the Superior Court Rules of Criminal
Procedure, a motion that the magistrate sua sponte converted to one brought pursuant to Rule
12(b)(2). Neither Gibson nor the state has taken issue with the magistrate’s sua sponte
conversion of the motion to dismiss.

                                                -6-
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


9
  That case was United States v. Stevens, 598 F. Supp. 2d 133, 143 (D. Me. 2009), as amended
(Feb. 19, 2009), aff’d, 640 F.3d 48 (1st Cir. 2011), vacated on other grounds, 565 U.S. 1255
(2012). For the reasons articulated in this opinion, with respect to whether Gibson has a lifetime
duty to register, we are not, with all due respect to that court, persuaded by the reasoning set
forth in that decision.


                                              -7-
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



                                                -8-
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



                                                -9-
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 and replaced § 11-37-16, the General Assembly not only preserved the duty to register
10
   Looking at the Registration Act as a whole, we also note that the crime for which Gibson was
convicted—second-degree child molestation sexual assault in violation of § 11-37-8.3—is
defined in § 11-37.1-3(a)(1) as “a criminal offense against a victim who is a minor[,]” bringing
Gibson within the universe of persons whose annual duty to register is governed by § 11-37.1-
4(a). See § 11-37.1-4(a) (stating that “[a]ny person required to register under § 11-37.1-3(a)(1)
* * * shall annually register * * * for a period of ten (10) years from the expiration of sentence
for the offense * * *”); § 11-37.1-3(a)(1) (requiring “[a]ny person who, in this or any other
jurisdiction * * * has been convicted of a criminal offense against a victim who is a minor” to
register as a sex offender “for the time period specified in § 11-37.1-4”); § 11-37.1-2(e)(3)
(defining a “[c]riminal offense against a victim who is a minor” to include “[a]ny violation of
* * * [§] 11-37-8.3”).

                                               - 10 -
from that statute, but it also imposed the provisions of the new enactment, including the duration

of registration. 11 Therefore, it is our opinion that Gibson’s duty to register is for a period of ten

years, not a lifetime.

        The next question we must address is, ten years from when? We do not agree with

Gibson that the duration of his duty to register was fixed as of the enactment of the Registration

Act in 1996. As we explained above, in 1997 and again in 2003, the General Assembly amended

the durational period contained in § 11-37.1-4(a), extending it from, in 1996, “ten (10) years

subsequent to the date of conviction” to, in 1997, “ten (10) years subsequent to the date of

release from confinement or placement on parole, supervised release or probation” and, as of

2003, “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; see also § 11-

37.1-4(a).   Those amendments extended Gibson’s duty to register beyond 2004, and, in

accordance with the provisions of the present version of the Registration Act, see § 11-37.1-18,

Gibson’s duty to register is “ten (10) years from the expiration of sentence for the offense * * *.”

Section 11-37.1-4(a).

        Accordingly, it is our opinion that the magistrate was correct in denying Gibson’s motion

to dismiss the 2012 charge for failing to notify in violation of §§ 11-37.1-9 and 11-37.1-10.

However, we differ from the reasoning on which the magistrate based his decision. Instead, we

hold that § 11-37.1-18 preserved Gibson’s duty to register, not its duration. Thus, in accordance




11
  We offer no opinion as to whether the duration of the duty to register under the former § 11-
37-16 was a lifetime. Because the duration of Gibson’s duty to register was shoehorned into the
Registration Act by virtue of § 11-37.1-18, we need not reach that issue.

                                                - 11 -
with § 11-37.1-18, the duration of Gibson’s duty to register is controlled by § 11-37.1-4(a).

Simply put, he does not have a lifetime duty to register. 12

       In reaching this conclusion, however, we do acknowledge that there has been

understandable uncertainty on this issue based on this Court’s previous language in Flores—

language on which the magistrate relied in his decision. As the magistrate noted, in Flores, “this

Court conclude[d] that petitioner 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. Moreover, it is true that this Court “reach[ed] [that] conclusion by noting that the

registration requirements of chapter 37.1 of title 11 [did] not apply to petitioner by the clear and

express language of the public law that enacted that statute.”          Id.   However, Flores is

distinguishable from this case. The petitioner in Flores argued that, because of the timing of his

conviction and the effective date of the Registration Act in 1996, he had no duty to register

whatsoever. 13 Id. at 582. Here, however, Gibson contested the duration of his duty to register,

not the duty itself. Thus Flores resolved an issue distinct from the issue with which we are

confronted here.

       Despite this Court’s language in Flores regarding the interplay between the effective date

of the 1996 Registration Act and that particular petitioner’s duty to register, we are firm in our

view that the provisions of the Registration Act control here. It would be wholly inconsistent to

hold that the provisions of the Registration Act are effective as to Gibson’s duty to register but

ineffective as to the conditions of his duty to register, including its duration. The specific
12
   Because we hold that Gibson’s duty to register is not a lifetime, we need not address Gibson’s
alternative argument that due process demands he receive a hearing to show that he is not at risk
of reoffending.
13
   In essence, the petitioner in Flores argued that the statute requiring his registration, § 11-37-
16, had been repealed and that its replacement, the Registration Act, was by its unambiguous
terms applicable only to those who had committed their offenses after July 24, 1996. State v.
Flores, 714 A.2d 581, 582 (R.I. 1998).

                                                - 12 -
language of § 11-37.1-18 preserving Gibson’s duty to register—a duty that preceded the passage

of the Registration Act—trumps the general language of the 1996 public law setting forth the

effective date of the Registration Act.        See Foster Glocester Regional School Building

Committee v. Sette, 996 A.2d 1120, 1126 (R.I. 2010) (“[T]his Court * * * adheres to the rule of

statutory construction that when faced with ‘competing statutory provisions that cannot be

harmonized, we adhere to the principle that the specific governs the general * * *.’” (quoting

Felkner v. Chariho Regional School Committee, 968 A.2d 865, 870 (R.I. 2009))).

                                                 III

                                       Postconviction Relief

                                                  A

                         Gibson’s Application for Postconviction Relief

       In 2014, Gibson filed an application for postconviction relief seeking to vacate his three

failure-to-notify convictions from 2007, 2009, and 2010. In his application, Gibson challenged

his convictions on constitutional grounds. His primary contention was that each of those failure-

to-notify convictions violated the ex post facto clause, pointing out two grounds as to why those

convictions were constitutionally infirm. First, based on Gibson’s contention that the duration of

his duty to register was not for the remainder of his life, but for only ten years, he argued that the

General Assembly unconstitutionally extended his duty to register when it amended the

Registration Act in 1997 and 2003. According to Gibson, the duration of his duty to register was

set under the 1996 version of § 11-37.1-4, which required him to register “for a period of ten (10)

years subsequent to the date of conviction * * *.” See P.L. 1996 ch. 104, § 1. Under that

formula, Gibson argued that his duty to register expired in 2004 and that his subsequent

convictions in 2007, 2009, and 2010 for failing to notify constituted unconstitutional retroactive



                                                - 13 -
punishment in violation of the ex post facto clause. However, the hearing justice dispatched

Gibson’s argument by holding that he had a lifetime duty to register under the since-repealed

§ 11-37-16, the registration statute in existence at the time of the second-degree child

molestation sexual assault in 1993.

       Second, Gibson argued that the 1996 Registration Act unconstitutionally increased the

punishment for the crime of failure to register or notify from a misdemeanor to a felony. As

Gibson pointed out, under the 1992 Act, failure to notify was a misdemeanor, but, in 1996, under

the Registration Act, it became a felony. See § 11-37-16(g) (1994 Reenactment); P.L. 1996, ch.

104, § 1. Nevertheless, the hearing justice held that there was no constitutional violation. She

reasoned that at the time Gibson committed each criminal offense of failing to notify—in 2007,

2009, and again in 2010—the punishment for the offense was already in place.               As she

explained, there was no retroactive punishment because the “penalty for failing to [notify] did

not change after [Gibson] was charged with the criminal offense of failing to [notify].” The ten-

year penalty was added to § 11-37.1-10 in 2003—at least three years prior to Gibson’s first

failure-to-notify offense in 2006, an offense for which he was convicted in 2007.

       However, before turning to the merits of Gibson’s ex post facto arguments, we must

briefly summarize the history of the Registration Act.

                                                 B

                                History of the Registration Act

       In 1992, the General Assembly enacted § 11-37-16, as enacted by P.L. 1992, ch. 196, § 1,

imposing on sex offenders a duty to register. Section 11-37-16 provided, in pertinent part, that:

               “Any person who since July 1, 1992, has been, or shall hereafter
               be, convicted of any offense in violation of this chapter * * * shall,
               within sixty (60) days after [July 1, 1992], or within thirty (30)
               days of coming into any city or town in which such person shall


                                               - 14 -
               reside, register with the chief of police of said city or town.”
               Section 11-37-16(a) (1994 Reenactment); see P.L. 1992, ch. 196,
               § 1.

The punishment for the failure to register was specified in § 11-37-16(g): “Any person required

to register under this section who violates any of its provisions is guilty of a misdemeanor and

shall be sentenced to serve a term of ninety (90) days in jail and thereafter serve one (1) year

probation.” See P.L. 1992, ch. 196, § 1 (emphasis added).

       Four years later, in 1996, the General Assembly repealed § 11-37-16 and replaced it with

the Registration Act, chapter 37.1 of title 11. See P.L. 1996, ch. 104, §§ 1, 3. 14 As this Court

has remarked, “[i]t is apparent that chapter 37.1 of title 11 has established a registration scheme

that is more stringent and applies more broadly than the previous version.” Flores, 714 A.2d at

584. In addition to preserving the duty to register of offenders whose duty originated under the

former § 11-37-16, the Registration Act also, in § 11-37.1-4, contained a durational period for

the duty to register for certain offenders. See P.L. 1996, ch. 104, § 1. As originally enacted in

1996, § 11-37.1-4(A) stated: “Any person required to register under section 11-37.1-3, shall

annually register with a designated state law enforcement agency for a period of ten (10) years

subsequent to the date of conviction for such offense or offenses * * *.” See P.L. 1996, ch. 104,

§ 1 (emphasis added).

       Moreover, the Registration Act also enhanced the penalty for the criminal offense of the

failure to register or notify. Under the 1992 Act, codified as § 11-37-16, the failure to register or

notify was a misdemeanor. See P.L. 1992, ch. 196, § 1. However, under the 1996 Registration

Act, it became a felony. See P.L. 1996, ch. 104, § 1. As the 1996 version of § 11-37.1-10(A)
14
   Our Legislature was not alone in enacting stringent registration requirements and broad
community notification provisions. As we noted in Flores, 714 A.2d at 582, the 1996
Registration Act was in part “modeled after Megan’s Law[,]” a law that “[b]y 1996, every State,
the District of Columbia, and the Federal Government had enacted some variation of * * *.”
Smith v. Doe I, 538 U.S. 84, 90 (2003).

                                               - 15 -
provided, “[a]ny person who is required to register or verify his or her address, who knowingly

fails to do so, shall be guilty of a felony and upon conviction be imprisoned not more than two

(2) years or fines not more than two thousand dollars ($2,000) or both.” See P.L. 1996, ch. 104,

§ 1 (emphasis added).

       In 1997, the General Assembly acted again. This time, it amended § 11-37.1-4(a),

changing the expiration of the duration of an offender’s obligation to register from “a period of

ten (10) years subsequent to the date of conviction” to “a period of ten (10) years subsequent to

the date of release from confinement or placement on parole, supervised release or probation

* * *.” See P.L. 1997, ch. 156, § 1. The language of that ten-year durational period changed a

final time in 2003, when the General Assembly amended § 11-37.1-4(a) to provide that the duty

to register for “[a]ny person required to register under section 11-37.1-3(a)(1) or (2)” runs “for a

period of ten (10) years, from the expiration of sentence for the offense * * *.” See P.L. 2003,

ch. 162, § 1; P.L. 2003, ch. 170, § 1. Since that amendment, the duration of the duty to register

as stated in § 11-37.1-4(a) has not changed.

       The durational language of § 11-37.1-4(a) was not the only section that the General

Assembly amended in 2003. As discussed above, that year, it also increased the penalties for the

criminal offense of failing to register or notify. See P.L. 2003, ch. 162, § 1; P.L. 2003, ch. 170,

§ 1. Whereas the 1996 version of the Registration Act made the failure to comply with its

provisions a felony, punishable by up to two years in prison and/or a fine of $2,000, after the

2003 amendment, the penalties provision read: “Any person who is required to register or verify

his or her address, 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.” P.L. 2003, ch. 162, § 1; P.L. 2003, ch. 170, § 1 (emphasis added).



                                               - 16 -
        To summarize: In 1996, an offender required to register under § 11-37.1-3 had a duty to

register for ten years from the date of his conviction; in 1997, that offender had a duty to register

for ten years from the date of release from confinement or placement on parole, supervised

release, or probation; and, finally, since 2003, the offender has had a duty to register for ten years

from the expiration of the sentence. Moreover, in 1992, an offender who failed to register was

guilty of a misdemeanor, subject to “a term of ninety (90) days in jail and thereafter * * * one (1)

year probation”; in 1996, an offender who failed to register was guilty of a felony, subject to up

to two years in jail and/or fines of up to $2,000; and since 2003, an offender who fails to register

is guilty of a felony, subject to up to ten years in jail and/or fines of up to $10,000.

                                                   C

                                           Waiver by Plea

        As a threshold matter, the state contends that we should not entertain Gibson’s

constitutional arguments. As explained above, Gibson has, on three separate occasions, been

convicted of failing to notify in violation of § 11-37.1-9. Each conviction—in 2007, 2009, and

2010—was the result of a plea of nolo contendere. For that reason, the state argues that Gibson

is severely limited in his ability to launch a collateral attack against those convictions in his

application for postconviction relief. According to the state, because Gibson entered those pleas,

he waived his right to argue that his 2007, 2009, and 2010 convictions are constitutionally

defective. In the state’s view, Gibson is limited to contending that his three pleas were the result

of ineffective assistance of counsel.

        We have long adhered to the proposition “that the decision to enter a plea of nolo

contendere * * * ‘is not one to be taken lightly.’” 15 Guerrero v. State, 47 A.3d 289, 300 (R.I.

15
  “In Rhode Island, a plea of nolo contendere is treated as a guilty plea.” Guerrero v. State, 47
A.3d 289, 300 n.12 (R.I. 2012) (quoting Cote v. State, 994 A.2d 59, 63 (R.I. 2010)).

                                                 - 17 -
2012) (quoting Cote v. State, 994 A.2d 59, 63 (R.I. 2010)). Generally, “in the case of someone

who has entered a plea of nolo contendere, ‘[t]he sole focus of an application for post-conviction

relief * * * is the nature of counsel’s advice concerning the plea and the voluntariness of the

plea.” Id. at 300 (quoting Gonder v. State, 935 A.2d 82, 87 (R.I. 2007)). “That said, although

the general rule is that ‘a plea of [nolo contendere] waives all nonjurisdictional defects, * * * [it]

does not bar appeal of claims that the applicable statute is unconstitutional * * *.’” Torres v.

State, 19 A.3d 71, 79 (R.I. 2011) (quoting United States v. Broncheau, 597 F.2d 1260, 1262 n.1

(9th Cir. 1979)); see also Guerrero, 47 A.3d at 300 n.l3.

       So, while the state is correct that, generally, Gibson would be limited to arguing over “the

nature of counsel’s advice concerning [his 2007, 2009, and 2010] plea[s] and the voluntariness of

[those] plea[s,]” here, he is not; because he attacks the constitutionality of a statute, the exception

to that general rule applies. Guerrero, 47 A.3d at 300, 300 n.13; Torres, 19 A.3d at 79. Thus, he

retains the right to assert as-applied challenges to the constitutionality of (1) the 1997 and 2003

amendments to § 11-37.1-4(a) and (2) the Registration Act’s enhancement of the penalty for

failing to comply with its provisions from a misdemeanor to a felony in 1996. Those are

assertions “that the applicable statute[s] [are] unconstitutional * * *.” Torres, 19 A.3d at 79.

                                                  D

                                        Standard of Review

       Generally, “[w]hen reviewing the denial of postconviction relief, this Court affords great

deference to the hearing justice’s findings of fact and will not disturb his or her ruling absent

clear error or a showing that the [hearing] justice overlooked or misconceived material

evidence.” Camacho v. State, 58 A.3d 182, 185 (R.I. 2013) (quoting Higham v. State, 45 A.3d




                                                - 18 -
1180, 1183 (R.I. 2012)). However, we “will review de novo any determination pertaining to an

issue concerning an applicant’s constitutional rights.” Id.

                                                 E

                                            Discussion

       The United States and Rhode Island Constitutions each prohibit the enactment of ex post

facto laws. U.S. CONST. art. 1, § 10; R.I. CONST. art. 1, § 12. 16 As the United States Supreme

Court has explained, the ex post facto clause “is aimed at laws that ‘retroactively alter the

definition of crimes or increase the punishment for criminal acts.’” California Department of

Corrections v. Morales, 514 U.S. 499, 504 (1995) (quoting Collins v. Youngblood, 497 U.S. 37,

43 (1990)). Likewise, we have “held that a violation of the ex post facto clause occurs when

there is a ‘retrospective application of law that disadvantages an offender by altering the

definition of criminal conduct or increasing the punishment for the crime.’” State v. Pereira, 973

A.2d 19, 32 (R.I. 2009) (quoting Town of West Warwick v. Local 1104, International Association

of Firefighters, AFL-CIO, CLC, 745 A.2d 786, 788 (R.I. 2000)). 17 “It is black letter law that the

16
   Article 1, section 10 of the United States Constitution states that “[n]o state shall * * * pass
any * * * ex post facto law * * *.” Similarly, article 1, section 12 of the Rhode Island
Constitution states that “[n]o ex post facto law * * * shall be passed.” “This Court construes the
ex post facto clauses of the federal and Rhode Island constitutions in a like manner.” State v.
Pereira, 973 A.2d 19, 32 n.7 (R.I. 2009).
17
   It has long been understood that there are four categories of laws that the ex post facto clause
prohibits:

               “1st. Every law that makes an action done before the passing of
               the law, and which was innocent when done, criminal; and
               punishes such action. 2d. Every law that aggravates a crime, or
               makes it greater than it was, when committed. 3d. Every law that
               changes the punishment, and inflicts a greater punishment, than the
               law annexed to the crime, when committed. 4th. Every law that
               alters the legal rules of evidence, and receives less, or different,
               testimony, than the law required at the time of the commission of
               the offence, in order to convict the offender.” Pereira, 973 A.2d at
               32-33 n.8 (quoting State ex rel. Webb v. Cianci, 591 A.2d 1193,

                                               - 19 -
ex post facto clause in both our state and federal constitutions only prohibit retroactive penal

legislation.” State v. Germane, 971 A.2d 555, 593 (R.I. 2009) (emphasis in original) (quoting

Local 1104, International Association of Firefighters, AFL-CIO, CLC, 745 A.2d at 788).

                                                1

                 The Extension of the Duration of Gibson’s Duty to Register

       Gibson first contends that, in extending his duty to register beyond the period set forth in

the 1996 version of the Registration Act, the state has imposed an increased retroactive

punishment in violation of the ex post facto clause. Gibson reasons that, in 1993, when the

offense that precipitated his 1994 conviction for second-degree child molestation sexual assault

occurred, he had a duty to register in accordance with the since-repealed § 11-37-16. As

discussed above, in 1996, however, his duty to register—preserved by the savings clause set

forth in § 11-37.1-18—became governed by the Registration Act, chapter 37.1 of title 11. Under

the Registration Act, as it was constituted in 1996, the duty to register for an offender like

Gibson was limited to “ten (10) years subsequent to the date of conviction * * *.” See P.L. 1996,

ch. 104, § 1. Gibson argues that the duration of his duty to register became fixed as of that time,

meaning that his duty to register expired in 2004, ten years from the date of his conviction.

Thus, Gibson reasons that, in 1997, when the General Assembly extended the duty to register to

“ten (10) years subsequent to the date of release from confinement or placement on parole,

supervised release or probation[,]” and again in 2003 to “ten (10) years, from the expiration of

sentence for the offense[,]” it impermissibly increased a punishment—the duty to register—

annexed to his original crime of second-degree child molestation sexual assault. According to

               1214-15 (R.I. 1991)); see also Calder v. Bull, 3 U.S. 386, 390-91
               (1798).

Gibson focuses on the third category: he alleges an increase in punishment from the one initially
annexed to the sex offense of 1993.

                                              - 20 -
Gibson, because his duty to register should have expired in 2004, his convictions for failing to

notify in 2007, 2009, and 2010 are unconstitutional because they violate the ex post facto clause.

       Under our caselaw, however, Gibson’s argument that the duration of his duty to register

amounted to an unconstitutional extension of his punishment does not pass muster. There is a

distinction between the imposition of a duty to register as a sex offender, which we have held to

be a civil, nonpunitive regulatory measure, and the criminal offense of failing to register or

notify. As this Court explained in Germane, “[a]though it follows as a consequence of a criminal

conviction, sexual offender registration and notification is a civil regulatory process.” Germane,

971 A.2d at 593. In Germane, we held that the retroactive imposition of the duty to register did

not implicate “the Rhode Island ex post facto clause because the registration requirement is

simply part of a nonpunitive, civil regulatory scheme.” Id. The United States Supreme Court

has held likewise with respect to the federal ex post facto clause. See Smith v. Doe I, 538 U.S.

84, 105-06 (holding that Alaska’s sex-offender registration act, modeled after Megan’s Law, was

“nonpunitive, and its retroactive application [did] not violate the Ex Post Facto Clause”). Thus,

the duty to register and the civil, nonpunitive regulatory conditions attached to that duty did not

implicate the ex post facto clause’s prohibition on retroactive penal legislation in Germane.

       In our opinion, we face precisely the same situation here. Gibson’s core contention is

that the combination of changes to the Registration Act transformed his requirement to register

from a civil regulation to a criminal punishment. The duration of his duty to register went from

(arguably) a lifetime, under the former § 11-37-16, to 2004 (ten years from the date of his

conviction) under the 1996 Registration Act, to 2009 (ten years from his release or the beginning

of his parole, supervised release or probation) under the 1997 amendment, and to 2019 (ten years

from the expiration of his fifteen-year sentence, imposed in 1994) under the 2003 amendment.



                                              - 21 -
However, it is our firm opinion that the ex post facto clause is not implicated here because the

duration of his duty to register is merely a condition attached to a civil, nonpunitive regulatory

measure. See Germane, 971 A.2d at 593. The extension of his obligation to register from 1996

onward is the product of the General Assembly’s fine-tuning a civil regulatory scheme, not the

imposition of retroactive punishment. As the United States Supreme Court has noted, the federal

ex post facto clause “does not preclude a State from making reasonable categorical judgments

that conviction of specified crimes should entail particular regulatory consequences.” Doe I, 538

U.S. at 103-04. We conclude that the same is true of the Rhode Island ex post facto clause; the

extension of the expiration of Gibson’s duty to register from 2004 to 2019 does not transform a

civil, nonpunitive regulatory requirement into retroactive penal legislation. See id.; Germane,

971 A.2d at 593.

       Our opinion on this issue gains support from the “intent-effects” test that the United

States Supreme Court has applied in determining whether sex-offender registration and

notification requirements implicate the ex post facto clause. Under this test, a court first “must

ascertain whether the legislature meant the statute to establish ‘civil’ proceedings.” Doe I, 538

U.S. at 92 (citation omitted). This requires us to discern the intent of the Legislature:

               “If the intention of the legislature was to impose punishment, that
               ends the inquiry. If, however, the intention was to enact a
               regulatory scheme that is civil and nonpunitive, we must further
               examine whether the statutory scheme is ‘so punitive either in
               purpose or effect as to negate [the State’s] intention to deem it
               civil.’” Id. (citation omitted).

Furthermore, “only the clearest proof will suffice to override legislative intent and transform

what has been denominated a civil remedy into a criminal penalty.” Id. (quoting Hudson v.

United States, 522 U.S. 93, 100 (1997)).




                                                - 22 -
       This Court previously has explained that the overall purpose of the Registration Act is

civil and nonpunitive:

               “It is evident that the purpose of the Registration Act is not to
               punish the offending [individual], but rather to protect the safety
               and general welfare of the public. Supplying the names and
               addresses of sex offenders to law enforcement agencies enables the
               agencies to deal more successfully with the serious problem of
               recidivist sex offenders. * * * [T]he proceeding remains
               rehabilitative, rather than punitive * * *.” Germane, 971 A.2d at
               593 (quoting In re Richard A., 946 A.2d 204, 213 (R.I. 2008)).

In our judgment, with respect to the first prong of the “intent-effects” test, see Doe I, 538 U.S. at

92-93, the intent behind the specific amendments extending Gibson’s duty to register was

similarly civil and nonpunitive. See Germane, 971 A.2d at 593. In extending the duration of the

duty to register by amendment in 1997 and 2003, the General Assembly intended not to impose

punishment, but merely to further the civil, nonpunitive sex-offender registration and notification

scheme. As we concluded in Germane, we are of the opinion that this was done in furtherance of

“protect[ing] the safety and general welfare of the public[,]” not for the purpose of imposing

further punishment on Gibson. Id. (quoting In re Richard A., 946 A.2d at 213).

       Having concluded that the General Assembly’s intent was nonpunitive, we turn next to

the “effects” part of the analysis; that is, “whether the statutory scheme is ‘so punitive either in

purpose or effect as to negate [the General Assembly’s] intention to deem it civil.’” See Doe I,

538 U.S. at 92. The United States Supreme Court has identified seven factors that serve as

“useful guideposts” in analyzing whether the effects of a law are sufficiently punitive to

overcome a legislature’s nonpunitive intent. Id. at 97 (quoting Hudson, 522 U.S. at 99). Known

as the “Mendoza-Martinez factors,” they are: whether the law (1) “has been regarded in our

history and traditions as a punishment”; (2) “imposes an affirmative disability or restraint”; (3)

“promotes the traditional aims of punishment”; (4) “has a rational connection to a nonpunitive


                                               - 23 -
purpose”; (5) “is excessive with respect to this purpose”; (6) “comes into play on a finding of

scienter”; and (7) “whether the behavior to which it applies is already a crime[.]” Id. at 97, 105.

Accordingly, our analysis must be whether, after applying those factors, the General Assembly’s

extension of Gibson’s duty to register evidences a punitive effect or purpose so onerous as to

negate its intent to enact a civil, nonpunitive statutory scheme. See id. at 92, 97.

       It is our considered opinion that the Mendoza-Martinez factors do not militate in

Gibson’s favor. Since we first addressed this issue in 2008, we have considered the registration

requirement itself to be nonpunitive. See In re Richard A., 946 A.2d at 213. We are not

persuaded that the extension of the duration of Gibson’s registration requirement by amendments

to the Registration Act in 1997 and 2003 strays from that historically nonpunitive intent.

Furthermore, the duration of the duty to register neither “imposes an affirmative disability or

restraint” on Gibson nor does it “promote[] the traditional aims of punishment.” See Doe I, 538

U.S. at 97. In addition, of particular import, extending the duty to register is not so excessive as

to stray from the requirement’s purposes, which are to curb recidivism and protect the public.

See id.; Germane, 971 A.2d at 593. Finally, the last two factors are of no significance here; there

is no issue of scienter, and it is well settled that the registration requirement and the duration

attached thereto flow from the commission of a criminal, sexual offense. See Doe I, 538 U.S. at

105. Therefore, there is no punitive effect as applied to Gibson, nor were the amendments in

furtherance of a punitive purpose. Gibson’s argument that those amendments violate the ex post

facto clause of either the federal or state constitutions must therefore fail.

       We do pause to note, however, that although Gibson’s constitutional right against the

passage of ex post facto laws has not been violated by the amendments that have been enacted to

date, this does not foreclose the possibility that there is some threshold that the General



                                                 - 24 -
Assembly could someday cross that might lead to a different conclusion. In fact, the New

Hampshire Supreme Court recently held that its state’s sex-offender registration act was so

punitive in its effects on an offender that it negated the civil, nonpunitive purpose of the

legislation. In Doe v. State, 111 A.3d 1077 (N.H. 2015), that court applied the “intent-effects”

test to several changes in New Hampshire’s onerous sex-offender registration and notification

statute.     Doe, 111 A.3d at 1093-1100.      While “[n]o one amendment or provision [was]

determinative, * * * the aggregate effects of the statute” compelled the court to hold that the

statute “ha[d] a punitive effect as applied to the [offender].” Id. at 1100. The court emphasized

that two requirements of the statute were particularly punitive: the lifetime registration

requirement and the requirement that the offender register in person. Id. at 1094, 1096, 1100.

           We are satisfied that the extended duration of Gibson’s duty to register pales in

comparison with the situation that was held to be constitutionally deficient in Doe. First, in

contrast to the history of Gibson’s duty to register, the first iteration of New Hampshire’s

registration statute was passed four years after the Doe offender’s probation ended. Doe, 111

A.3d at 1082. Further, Gibson, unlike the offender in Doe, has not been subjected to a cascading

effect of onerous registration requirements.      For example, it was significant to the New

Hampshire Supreme Court that the offender there, unlike Gibson, was required to register in

person four times per year, a requirement that he had no opportunity to alleviate under the

registration statute. Id. at 1094-95, 1096. Also, contrary to Gibson’s present scenario, the law in

New Hampshire imposed on the offender a lifetime duty to register, a duration that the court

considered particularly excessive in light of the fact that the offender had not reoffended. See id.

at 1100. While Gibson, too, has not reoffended, he does not, in our opinion, have a lifetime duty

to register.    Moreover, the offender in Doe suffered from a serious permanent disability,



                                               - 25 -
furthering the court’s conclusion that the more onerous changes to the registration statute had

constrained his ability to change addresses. Id. at 1082.

       Those facts, when churned through the “intent-effects” analytical framework, weigh far

more heavily in the Doe offender’s favor than they do in Gibson’s. This is especially true

because we do not believe that the extension of Gibson’s duty to register is excessive in relation

to the nonpunitive purpose underlying the 1997 and 2003 amendments. See Doe, 111 A.3d at

1100 (stating that “[a] number of courts give greatest weight” to the factor that asks whether the

law “appears excessive in relation to the alternative purpose assigned” (citations omitted)).

Gibson is not subject to a lifetime duty to register, nor must he register in person multiple times

per year. See id. at 1100. We conclude that the extension of Gibson’s duty to register is an

example of the General Assembly’s modification of the civil, nonpunitive regulatory

requirements of the Registration Act, and nothing more.

                                                  2

      The Penalty for Failure to Register or Notify: From a Misdemeanor to a Felony

       Gibson also argues that the General Assembly’s enhancement of the punishment for

failing to notify from a misdemeanor to a felony violates the ex post facto clause. Again, we

disagree. It is true that in 1993, when the offense that precipitated his 1994 conviction for

second-degree child molestation sexual assault occurred, the failure to register as a sex offender

or notify local law enforcement was a misdemeanor, punishable by ninety days in jail and one

year probation. See P.L. 1992, ch. 196, § 1. It is also true that, in 1996, the failure to register or

notify became a felony, punishable by up to two years in jail and fines of up to $2,000, see P.L.

1996, ch. 104, § 1, penalties which were increased in 2003 when the sentence for failing to




                                                - 26 -
register or notify became up to ten years in jail and fines of up to $10,000. See § 11-37.1-10(a);

P.L. 2003, ch. 162, § 1; P.L. 2003, ch. 170, § 1.

       However, what Gibson’s argument overlooks is that at the times when he failed to notify

in multiple years, leading to his convictions in 2007, 2009, and 2010, the punishment for that

crime already was in full force and effect. See §§ 11-37.1-9, 11-37.1-10(a); P.L. 2003, ch. 162,

§ 1; P.L. 2003, ch. 170, § 1. Furthermore, his failures to notify were offenses separate and apart

from the second-degree child molestation sexual assault of 1993, rendering them insufficiently

annexed to that crime as to trigger a violation of the ex post facto clause. See State v. Pelz, 765

A.2d 824, 830-31 (R.I. 2001). Therefore, there has been no retroactive punishment and no ex

post facto violation. See Pereira, 973 A.2d at 32. Accordingly, as applied to Gibson, the

amended statutory framework does not violate the ex post facto clause.

                                                  IV

                                            Conclusion

        For the reasons set forth above, we affirm in part and quash in part the decision of the

magistrate on the motion to dismiss. We affirm that part of the decision denying the motion to

dismiss, but reverse the magistrate’s ruling that Gibson has a lifetime duty to register as a sex

offender. With respect to the application for postconviction relief, we affirm the judgment

denying relief, but reverse the hearing justice’s ruling that Gibson’s obligation to register is for

the remainder of his life. 18 The papers in this case are remanded to the Superior Court for further

proceedings not inconsistent with this opinion.

18
   We note that the hearing justice who denied Gibson’s application for postconviction relief
concluded that Gibson’s duty to register, if not a lifetime in length, will expire in November
2030. She reached that conclusion based upon her interpretation of a 2008 amendment to a
provision of the definitional section of chapter 37.1 by the General Assembly. See § 11-37.1-
2(e)(8) (defining the term “[c]riminal offense against a victim who is a minor” to include “[a]ny
violation of § 11-37.1-10”); P.L. 2008, ch. 155, § 1; P.L. 2008, ch. 202, § 1; see also § 11-37.1-

                                               - 27 -
10(a) (“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.”). We leave that issue for another day.

                                             - 28 -
STATE OF RHODE ISLAND AND                                  PROVIDENCE PLANTATIONS



                         SUPREME COURT – CLERK’S OFFICE

                                 OPINION COVER SHEET

                                     State v. Frederick Gibson.
Title of Case
                                     Frederick Gibson v. State of Rhode Island.
                                     No. 2015-108-M.P.
                                     (P2/12-2199A)
Case Number
                                     No. 2016-149-Appeal.
                                     No. 2017-317-M.P.
                                     (PM 14-4730)
Date Opinion Filed                   April 23, 2018
                                     Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
                                     Indeglia, J.
Written By                           Associate Justice Francis X. Flaherty

Source of Appeal                     Providence County Superior Court

                                     Magistrate John F. McBurney III
Judicial Officer From Lower Court
                                     Associate Justice Kristin E. Rodgers

                                     For State:

                                     Aaron L. Weisman
                                     Department of Attorney General
Attorney(s) on Appeal
                                     For Petitioner/Defendant:

                                     Susan B. Iannitelli, Esq.




SU-CMS-02A (revised June 2016)
