Gregory v. Sexual Offender Registration Review Bd.

Citation784 S.E.2d 392
Decision Date21 March 2016
Docket NumberNo. S15A1718.,S15A1718.
Parties GREGORY v. SEXUAL OFFENDER REGISTRATION REVIEW BOARD.
CourtSupreme Court of Georgia

Joseph Scott Key, Miller & Key, PA, McDonough, Robert G. Rubin, Peters, Rubin & Sheffield, P.A., Atlanta, for appellant.

Hye Min Park, Asst. Atty. Gen., Samuel S. Olens, Atty. Gen., Patricia B. Attaway Burton, Deputy Atty. Gen., Joseph J. Drolet, Sr. Asst. Atty. Gen., Department of Law, for appellee.

BLACKWELL

, Justice.

The Fourteenth Amendment of the United States Constitution forbids the State to "deprive any person of life, liberty, or property without due process of law," and in this case, we consider what process, if any, is constitutionally due a person whom the State seeks to classify as a "sexually dangerous predator" under the Georgia sexual offender registration laws, OCGA § 42–1–12 et seq.1

Scott Gregory is a convicted sexual offender, and in 2013, the Sexual Offender Registration Review Board classified him as a sexually dangerous predator. See OCGA § 42–1–14(a). Gregory timely asked the Board to reevaluate his classification, see OCGA § 42–1–14(b), but the Board denied his request. Gregory then petitioned the Superior Court of Fulton County for judicial review of his classification, see OCGA § 42–1–14(c), but the superior court affirmed the decision of the Board. In the course of these administrative and judicial proceedings, Gregory had opportunities to submit favorable documentary evidence to both the Board and the superior court, but he never has been afforded an evidentiary hearing on the question of his classification. Gregory appeals from the judgment of the superior court,2 asserting that the refusal of an evidentiary hearing is inconsistent with the constitutional guarantee of due process.3 We agree, and for that reason, we reverse the judgment below and remand for further proceedings consistent with this opinion.

1. In June 2009, Gregory used a computer to broadcast lewd images over the Internet to a person who was, Gregory believed, a teenage girl.4 As a result, Gregory was convicted in 2012 of obscene Internet contact with a child, see OCGA § 16–12–100.2(e)(1)

,5 and for this felony, he was sentenced to imprisonment, followed by a term of probation.6 For the purposes of the Georgia sexual offender registration laws, obscene Internet contact with a child is a "dangerous sexual offense," see OCGA § 42–1–12(a)(10)(B) (xvii),7 and any person convicted of a "dangerous sexual offense" is a "sexual offender." See OCGA § 42–1–12(a)(20)(A).8

Gregory is, therefore, a sexual offender subject to the sexual offender registration laws.

Those laws require every sexual offender convicted of a dangerous sexual offense on or after July 1, 1996 to fulfill certain registration requirements, see OCGA § 42–1–12(e)(2)

,9 including a requirement that such an offender register annually with the sheriff of his county of residence. See OCGA § 42–1–12(f)(4).10 Sheriffs are required to maintain lists of registered sexual offenders and to make the lists available for public inspection. See OCGA § 42–1–12(i)(3)

. Sheriffs also must submit these lists to the Georgia Bureau of Investigation, see OCGA § 42–1–12(i)(2), which furnishes the lists annually to schools, daycare facilities, and long-term care facilities for children throughout the State. See OCGA § 42–1–12(l )(1–3). Many sexual offenders subject to the registration requirements also are prohibited from residing within 1,000 feet of a childcare facility, church, school, or "area where minors congregate,"11 see OCGA § 42–1–15(b),12 and from working or volunteering at any childcare facility, church, school, or business located within 1,000 feet of a childcare facility, church, or school. See OCGA § 42–1–15(c)(1).13 To the extent that a sexual offender is subject to these registration requirements and residency and employment restrictions, it is his conviction alone that renders him subject to the requirements and restrictions.

Additional requirements and restrictions may attach, however, upon a finding that a sexual offender presents a significant risk of committing additional dangerous sexual offenses. The sexual offender registration laws require the Board14 to assess "the likelihood that a sexual offender will engage in another crime against a victim who is a minor or a dangerous sexual offense," OCGA § 42–1–14(a)(1)

, and to classify sexual offenders according to that assessment. See OCGA § 42–1–14(a)(2). There are three classifications. A "Level I risk assessment classification" signifies that "the sexual offender is a low sex offense risk and low recidivism risk for future sexual offenses." OCGA § 42–1–12(a)(12). A "Level II risk assessment classification" means that "the sexual offender is an intermediate sex offense risk and intermediate recidivism risk for future sexual offenses," and it is the default classification for sexual offenders. OCGA § 42–1–12(a)(13). A "sexually dangerous predator" classification indicates that the sexual offender is "at risk of perpetrating any future dangerous sexual offense." OCGA § 42–1–12(a)(21)(B). In assessing and classifying a sexual offender, the Board may rely upon a variety of information provided by prosecuting attorneys, the Georgia Bureau of Investigation, the State Board of Pardons and Paroles, the Department of Corrections, the Department of Community Supervision, and the sexual offender himself. See OCGA § 42–1–14(a)(2)

. Such information may include "psychological evaluations, sexual history polygraph information, treatment history, [ ] personal, social, educational, and work history," criminal history, and court records. Id.15 Although the sexual offender is entitled to submit any information relevant to his classification, there is no provision for an administrative evidentiary hearing in connection with the Board's initial assessment and classification of a sexual offender. See id. Upon making a classification determination, the Board must notify a sexual offender of his classification in writing. See OCGA § 42–1–14(a)(3).

Sexual offenders classified as Level II risk assessments or sexually dangerous predators may seek administrative reevaluation, and in connection with that reevaluation, sexual offenders again have an opportunity to provide information relevant to their classification:

If the board determines that a sexual offender should be classified as a Level II risk assessment classification or as a sexually dangerous predator, the sexual offender may petition the board to reevaluate his or her classification. To file a petition for reevaluation, the sexual offender shall be required to submit his or her written petition for reevaluation to the board within 30 days from the date of the letter notifying the sexual offender of his or her classification. The sexual offender shall have 60 days from the date of the notification letter to submit information as provided in subsection (a) of this Code section in support of the sexual offender's petition for reevaluation. If the sexual offender fails to submit the petition or supporting documents within the time limits provided, the classification shall be final. The board shall notify the sexual offender by first-class mail of its decision on the petition for reevaluation of risk assessment classification....

OCGA § 42–1–14(b)

. Although a sexual offender is afforded an opportunity to submit documentary evidence in support of a petition for administrative reevaluation, there is no provision for an administrative evidentiary hearing in connection with the Board's consideration of such a petition. See id.

Sexual offenders classified as Level II risk assessments or sexually dangerous predators also may seek judicial review of their classifications, and yet again, they are afforded an opportunity to submit documentary evidence in connection with judicial review. Moreover, there is a provision for the reviewing court to hold an evidentiary hearing, but that provision is permissive, not mandatory:

A sexual offender who is classified by the board as a Level II risk assessment classification or as a sexually dangerous predator may file a petition for judicial review of his or her classification within 30 days of the date of the notification letter or, if the sexual offender has requested reevaluation pursuant to subsection (b) of this Code section, within 30 days of the date of the letter denying the petition for reevaluation.
The petition for judicial review shall name the board as defendant, and the petition shall be filed in the superior court of the county where the offices of the board are located. Within 30 days after service of the appeal on the board, the board shall submit a summary of its findings to the court and mail a copy, by first-class mail, to the sexual offender. The findings of the board shall be considered prima-facie evidence of the classification. The court shall also consider any relevant evidence submitted, and such evidence and documentation shall be mailed to the parties as well as submitted to the court. The court may hold a hearing to determine the issue of classification. The court may uphold the classification of the board, or, if the court finds by a preponderance of the evidence that the sexual offender is not placed in the appropriate classification level, the court shall place the sexual offender in the appropriate risk assessment classification....

OCGA § 42–1–14(c)

.

A sexually dangerous predator is subject to requirements and restrictions in addition to those requirements and restrictions that apply to sexual offenders generally. Most notably, OCGA § 42–1–14(e)

requires a sexually dangerous predator to submit for the rest of his life to electronic monitoring and tracking of his person and to pay the costs associated with that monitoring and tracking:

Any sexually dangerous predator shall be required to wear an electronic monitoring system that shall have, at a minimum:
(1) The capacity to locate and record the location of a
...

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