Bradshaw v. State, No. S08A1057.

CourtSupreme Court of Georgia
Writing for the CourtBenham
Citation284 Ga. 675,671 S.E.2d 485
PartiesBRADSHAW v. The STATE.
Docket NumberNo. S08A1057.
Decision Date25 November 2008
671 S.E.2d 485
284 Ga. 675
BRADSHAW
v.
The STATE.
No. S08A1057.
Supreme Court of Georgia.
November 25, 2008.

[671 S.E.2d 487]

Robert L. Persse, Statesboro, for appellant.

Richard A. Mallard, District Attorney, W. Scott Brannen, Assistant District Attorney, for appellee.

BENHAM, Justice.


Cedric Lavell Bradshaw was found guilty in a bench trial of failing to register as a convicted sex offender in that he had failed to provide his valid current address within 72 hours of changing his address. OCGA § 42-1-12(f). It being his second violation of the registration law,1 a mandatory sentence of life imprisonment was imposed. See OCGA § 42-1-12(n). Prior to his bench trial, appellant filed a motion to dismiss the indictment on the ground that the mandatory sentence of life imprisonment for a second conviction of failing to register constituted cruel and unusual punishment, in violation of the Eighth Amendment to the Constitution of the United States and Article I, Section I, Paragraph XVII of the 1983 Georgia Constitution.2 Appellant asserts on appeal that the trial court erred when it denied his motion and sentenced him to life imprisonment after having found him guilty.3

1. The State presented evidence that appellant had been serving a sentence in the county jail for statutory rape.4 Within 72 hours of his release, appellant registered as a sex offender with the Bulloch County Sheriff's Department and listed his sister's residence as his residential address. See OCGA § 42-1-12(f)(2). After investigating the given address, the sheriff's department informed

671 S.E.2d 488

Bradshaw by letter that he could not live at the registered address because that residence was within 1,000 feet of a children's recreation center. OCGA §§ 42-1-12(a)(3); 42-1-15(b). Bradshaw then provided his aunt's address as his residence. The sheriff's department told him that address was unacceptable because it was within 1,000 feet of a church. OCGA § 42-1-15(b). Bradshaw then provided the sheriff's department with a third address. Upon investigation six days later, the sheriff's department determined the address as given did not exist. The investigator found a nearby address which was occupied by a family friend of appellant who said appellant had inquired about living there, but was not residing there. When he could not locate appellant, the investigator contacted appellant's sister, which resulted in appellant's arrival at the jail where he was arrested for failing to abide by the registry law. Appellant testified he had inquired about living with the family friend but had been unable to contact the friend after their initial meeting, so he had stayed with his girlfriend while making efforts to establish contact with the friend. He did not provide the sheriff's department with his girlfriend's address as his residence.

The evidence presented during the bench trial was sufficient for a rational trier of fact to find appellant guilty beyond a reasonable doubt of failure to register as a sex offender. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. The issue before us is the constitutionality of the mandatory sentence of life imprisonment which the trial court was required to impose upon appellant after finding him guilty of the offense.5 The Eighth Amendment to the United States Constitution is applicable to the States through the Fourteenth Amendment (Robinson v. California, 370 U.S. 660, 667, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962)), and its "protection against excessive or cruel and unusual punishments flows from the basic `precept of justice that punishment for (a) crime should be graduated and proportioned to (the) offense.' [Cit.]" Kennedy v. Louisiana, ___ U.S. ___, 128 S.Ct. 2641, 2649, 171 L.Ed.2d 525 (2008). The Eighth Amendment "prohibits not only barbaric punishments, but also sentences that are disproportionate to the crime committed." Solem v. Helm, 463 U.S. 277, 284, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983); Lambeth v. State, 257 Ga. 15, 16, 354 S.E.2d 144 (1987) (the concept of "cruel and unusual punishment" embraces arbitrary and disproportionate sentences). The Eighth Amendment "contains a `narrow proportionality principle' that `applies to noncapital sentences. [Cit.]'" (Ewing v. California, 538 U.S. 11, 20, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003) (O'Connor, J., concurring)), and forbids "only extreme sentences that are `grossly disproportionate' to the crime." Harmelin v. Michigan, 501 U.S. 957, 1001, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (Kennedy, J., concurring).6

671 S.E.2d 489

In order to determine whether a sentence set by the legislature is grossly disproportionate, the court initially addresses "the gravity of the offense compared to the harshness of the penalty." Ewing v. California, supra, 538 U.S. at 28, 123 S.Ct. 1179; Humphrey v. Wilson, supra, 282 Ga. at 525, 652 S.E.2d 501. If a threshold inference of gross disproportionality is raised, and it is "the rare case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality" (Harmelin, supra, 501 U.S. at 1005, 111 S.Ct. 2680), the court then determines whether the inference of gross disproportionality is confirmed by a comparison of the defendant's sentence to sentences imposed for other crimes within Georgia and for the same crime in other jurisdictions. Id.

The U.S. Supreme Court has observed that there are "some common principles that give content to the uses and limits of proportionality review." Harmelin, supra, 501 U.S. at 998, 111 S.Ct. 2680 (Kennedy, J., concurring).

The first principle acknowledges that the fixing of penalties and prison sentences for specific crimes "involves a substantive penological judgment that, as a general matter, is properly within the province of legislatures, not courts." [Id.] The second principle recognizes that the Eighth Amendment does not mandate the adoption of any particular penological philosophy [e.g., goals of retribution, deterrence, incapacitation, and rehabilitation] [id., 501 U.S. at 999, 111 S.Ct. at 2703-04]. The third principle is an understanding that "marked divergences both in underlying theories of sentences and in the length of prescribed prison terms are the inevitable, often beneficial, result of the federal structure." [Id.]. Finally, the fourth principle is a belief that, to the maximum extent possible, proportionality review should be guided by "objective factors," including the framework established in Solem [v. Helm]. [Id., 501 U.S. at 1000, 111 S.Ct. at 2704-05].

Crosby v. State, 824 A.2d 894, 905-906 (Del. 2003).

(a) Citing the recognition in Humphrey v. Wilson, supra, 282 Ga. at 527, 652 S.E.2d 501, that the "most recent legislative enactments constitute the most objective evidence of a society's evolving standards of decency and how a society views a particular punishment," the State points out that the version of the statute at issue contains the latest legislative view, having been enacted in 2006. In Humphrey, this Court described the most recent legislative action, which modified the mandatory sentence imposed on the defendant after the defendant was sentenced, as a legislative determination that the sentence earlier imposed was grossly disproportionate to the crime committed by the defendant. Id. at 528-529, 652 S.E.2d 501. In contrast, in the case at bar, it is the legislature's most recent enactment that stands charged as imposing a sentence that is grossly disproportionate. The suggestion that in all cases the most recent legislative pronouncement on punishment is evidence of an evolving standard of decency that supports a determination that the punishment contained therein is not grossly disproportionate leads to the anomalous result that, as a matter of law, the most recent legislative pronouncement does not impose cruel and unusual punishment. While a statute is presumed constitutional unless it manifestly infringes upon a constitutional provision or violates the rights of the people, "[t]he mere fact that the Legislature has spoken on the issue of the [sentence to be imposed for a particular crime] does not preclude or in any manner limit this Court's evaluation of the [sentence] to determine whether it comports with the constitutional prohibition against cruel and unusual punishment." Dawson v. State, 274 Ga. 327, 328(2), 554 S.E.2d 137 (2001). We reiterate

671 S.E.2d 490

the observation we recently made in Terry v. Hamrick, 284 Ga. 24, 28, 663 S.E.2d 256 (2008), and decline "to engraft onto every statutory change enacted by the General Assembly an interpretation that the legislature is thus making a pronouncement of constitutional magnitude."

(b) With the Supreme Court's principles in mind, we begin our assessment of the gravity of appellant's crime, his failure to give a valid current address within 72 hours of having settled in a new residence. We examine "the harm caused or threatened to the victim or society, and the culpability of the offender[,]" noting that "nonviolent crimes are less serious than crimes marked by violence or the threat of violence." Solem v. Helm, supra, 463 U.S. at 292-293, 103 S.Ct. 3001. We also take into account "[t]he absolute magnitude of the crime. . . ." Id. at 293, 103 S.Ct. 3001. In enacting the 2006 version of the statute that sets out the sexual offender registry, the General Assembly declared that registration of sexual offenders was necessary to protect the public, described the sexual offender registry as a "requirement that complete and accurate information be maintained and accessible for use by law enforcement authorities, communities, and the public[,]" and observed that "[t]he designation of a person as a sexual offender . . . [is] simply a regulatory mechanism and status resulting from the conviction of certain crimes." Ga. L.2006, p. 379, § 1. The failure to update information on the sexual offender registry, itself...

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15 practice notes
  • State v. Mossman, No. 103,111.
    • United States
    • United States State Supreme Court of Kansas
    • July 27, 2012
    ...of his life if he fails to meet the sex offender registration requirement. In support of this contention, Mossman cites Bradshaw v. State, 284 Ga. 675, 671 S.E.2d 485 (2008). There, the defendant was released after serving a sentence for statutory rape and subsequently committed two violati......
  • Pepe-Frazier v. State, No. A14A2215.
    • United States
    • United States Court of Appeals (Georgia)
    • March 18, 2015
    ...cruel and unusual punishment, even though bodily injury was slight, given circumstances attendant upon offense); cf. Bradshaw v. State, 284 Ga. 675, 683(4), 671 S.E.2d 485 (2008) (holding that the imposition of a life sentence for failure to register as a sex offender constituted cruel and ......
  • In re Coley, No. S185303.
    • United States
    • United States State Supreme Court (California)
    • August 30, 2012
    ...sentence was grossly disproportionate and thus violated the Eighth Amendment. ( Id. at p. 889; see also Bradshaw v. State (2008) 284 Ga. 675, 671 S.E.2d 485, 488–493 [mandatory sentence of life imprisonment imposed under a recidivist sentencing provision for failure to comply with sex offen......
  • In re Coley, No. S185303.
    • United States
    • United States State Supreme Court (California)
    • August 30, 2012
    ...sentence was grossly disproportionate and thus violated the Eighth Amendment. ( Id. at p. 889; see also Bradshaw v. State (2008) 284 Ga. 675, 671 S.E.2d 485, 488–493 [mandatory sentence of life imprisonment imposed under a recidivist sentencing provision for failure to comply with sex offen......
  • Request a trial to view additional results
15 cases
  • State v. Mossman, No. 103,111.
    • United States
    • United States State Supreme Court of Kansas
    • July 27, 2012
    ...of his life if he fails to meet the sex offender registration requirement. In support of this contention, Mossman cites Bradshaw v. State, 284 Ga. 675, 671 S.E.2d 485 (2008). There, the defendant was released after serving a sentence for statutory rape and subsequently committed two violati......
  • Pepe-Frazier v. State, No. A14A2215.
    • United States
    • United States Court of Appeals (Georgia)
    • March 18, 2015
    ...cruel and unusual punishment, even though bodily injury was slight, given circumstances attendant upon offense); cf. Bradshaw v. State, 284 Ga. 675, 683(4), 671 S.E.2d 485 (2008) (holding that the imposition of a life sentence for failure to register as a sex offender constituted cruel and ......
  • In re Coley, No. S185303.
    • United States
    • United States State Supreme Court (California)
    • August 30, 2012
    ...sentence was grossly disproportionate and thus violated the Eighth Amendment. ( Id. at p. 889; see also Bradshaw v. State (2008) 284 Ga. 675, 671 S.E.2d 485, 488–493 [mandatory sentence of life imprisonment imposed under a recidivist sentencing provision for failure to comply with sex offen......
  • In re Coley, No. S185303.
    • United States
    • United States State Supreme Court (California)
    • August 30, 2012
    ...sentence was grossly disproportionate and thus violated the Eighth Amendment. ( Id. at p. 889; see also Bradshaw v. State (2008) 284 Ga. 675, 671 S.E.2d 485, 488–493 [mandatory sentence of life imprisonment imposed under a recidivist sentencing provision for failure to comply with sex offen......
  • Request a trial to view additional results

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