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STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS
PROVIDENCE, SC.                                                                              SUPERIOR COURT
(FILED:  NOVEMBER 9, 2011)
STATE OF RHODE ISLAND                                                                        :
:
V.                                                                                           :                                                                                      C.A. NO. P2-05-2265A
:
ROBERT CONTI                                                                                 :
DECISION
PROCACCINI, J.     This matter comes before the Court on the motion of Defendant
Robert Conti (the “Defendant”) to correct illegal sentence pursuant to Rule 35 of the
Superior Court Rules of Criminal Procedure.  The State of Rhode Island (the “State”) has
objected to this motion.   For the reasons set forth below, this Court denies Defendant’s
motion to correct illegal sentence.
I
FACTS & TRAVEL
On May 10, 2006, the Defendant pled nolo contendere to one count of Indecent
Solicitation of a Child in violation of   R.I. Gen. Laws 1956 § 11-37-8.8.   Although on
that date, the crime of Indecent Solicitation of a Child was not listed among the offenses
requiring the Defendant to register as a sex offender, the crime became a registerable
offense in 2008 when the General Assembly amended § 11-37.1-3 to include § 11-37-8.8.
The State contends that the Defendant must register as a sex offender because of
his                                                                                          2006  plea.    The  Defendant  asserts  that  the  Rhode  Island  Sex  Offender  and
Community Notification requirements are a violation of his constitutional right to due




process and subjecting him to the registration requirement would violate the ex post facto
clause of both the United States and Rhode Island Constitutions.
II
DISCUSSION
Under the Rule 35 framework, this Court must deny the Defendant’s motion.   A
motion to correct an illegal sentence simply is not the appropriate vehicle to obtain the
relief sought.   The rule provides an avenue for the Court to adjust an illegal sentence,
which, for the purposes of the rule, is a sentence which has been imposed after a valid
conviction  but  is  not  authorized  under  law.    See                                                    2  Wright,  Federal  Practice  and
Procedure, at  552-53  (1969).1    An illegal sentence would be one in excess of that
provided by statute, the imposition of an unauthorized form of punishment, or a judgment
that does not conform to the oral sentence.  Id.
Here, the amended statute’s registration requirement is neither a sentence, nor is it
“punishment.”   With respect to registration as compared to sentencing, the Rhode Island
Supreme Court has determined that registration is merely a “civil regulatory process.”
State v. Germane, 971 A.2d 555, 593 (R.I. 2009); In re Richard A., 946 A.2d 204, 213
(R.I. 2008).  As such, it is not in and of itself a sentence for the purposes of Rule 35.
In denying this motion, the Court is not expressing any opinion with respect to
other available avenues of relief.  The constitutional arguments made are better suited for
different  proceedings.     Rule                                                                            35  provides  only  limited  relief  under  very  narrow
parameters; this matter does not properly fall within those parameters.   Thus the Court is
constrained to deny the motion.
1 The “Historical Notes” following the rule make clear that Rule 35 “is basically the same as its federal
counterpart.”
2




The  Court  is  troubled  by  the  chronology  of  events  and  understands  the
Defendant’s dismay at finding himself in this situation.   However, because the Court is
duty-bound to deny the motion to correct illegal sentence, it is not appropriate for the
Court to delve into matters which are not properly before it.
III
CONCLUSION
For the foregoing reasons, the Defendant’s motion is denied.
3

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Rhode Island Law