Humphrey v. Wilson

• Citation: 652 S.E.2d 501
• Decision Date: 26 October 2007
• Docket Number: No. S07A1606.,No. S07A1481.,S07A1481.,S07A1606.
• Parties: HUMPHREY, Warden v. WILSON. Wilson v. The State.
• Court: Supreme Court of Georgia

652 S.E.2d 501

HUMPHREY, Warden v. WILSON.

Wilson v. The State.

No. S07A1481.

No. S07A1606.

Supreme Court of Georgia.

October 26, 2007.

Thurbert E. Baker, Atty. Gen., Paula Khristian Smith, Asst. Atty. Gen., Mary Beth Westmoreland, Deputy Atty. Gen., for Appellant in no. S07A1481.

Brenda Joy Bernstein, The Bernstein Firm, P.C.; Rodney Samuel Zell, Zell & Zell, P.C., Atlanta, for Appellee in no. S07A1481 and Appellant in no. S07A1606; Franklin James Hogue, Macon, for Appellee in no. S07A1481.

David Balser, McKenna Long & Aldridge, L.L.P., Atlanta; Cleve L. Molette, East Point, Amicus Appellee in no. S07A1481.

James David McDade, Dist. Atty., Douglasville; Thurbert E. Baker, Atty. Gen., Dept. of Law, Atlanta, for Appellee in no. S07A1606.

SEARS, Chief Justice.

In Case No. S07A1481, the appellant, Warden Carl Humphrey, appeals from the grant of habeas corpus relief to the appellee, Genarlow Wilson, by the Superior Court of Monroe County (hereinafter referred to as the "habeas court"). For the reasons that follow, we conclude that the habeas court properly ruled that Wilson's sentence of ten years in prison for having consensual oral sex with a fifteen-year-old girl when he was only seventeen years old constitutes cruel and unusual punishment, but erred in convicting and sentencing Wilson for a misdemeanor crime that did not exist when the conduct in question occurred. Because the minimum punishment for the crime for which Wilson was convicted constitutes cruel and unusual punishment, this case must be remanded to the habeas court for it to enter an order reversing Wilson's conviction and sentence and discharging him from custody. Accordingly, in Case No. S07A1481, we affirm the habeas court's judgment in part and reverse it in part.

In Case No. S07A1606, Wilson appeals the denial, by the Superior Court of Douglas County (hereinafter referred to as the "trial court"), of his motion for release on bail during the pendency of the warden's appeal in Case No. S07A1481. Because the trial court properly denied Wilson's motion for bail, we affirm the trial court's judgment.

Facts:

1. In February 2005, Wilson was found guilty in Douglas County for the aggravated child molestation of T.C. Wilson was seventeen years old at the time of the crime, and the victim was fifteen years old. The sexual act involved the victim willingly performing oral sex on Wilson.¹ At the time of Wilson's trial, the minimum sentence for a conviction of aggravated child molestation was ten years in prison with no possibility of probation or parole; the maximum sentence was thirty years in prison.² The trial court sentenced Wilson to eleven years, ten to serve and one year on probation. In addition to the foregoing punishment, Wilson was also subject to registration as a sex offender. In this regard, under OCGA § 42-1-12, Wilson would be required, before his release from prison, to provide prison officials with, among other things, his new address, his fingerprints, his social security number, his date of birth, and his photograph.³ Prison officials would have to forward this information to the sheriff of Wilson's intended county of residence,⁴ and Wilson, within seventy-two hours of his release, would have to register with that sheriff,⁵ and he would be required to update the information each year for the rest of his life.⁶ Moreover, upon Wilson's release from prison, information regarding Wilson's residence, his photograph, and his offense would be posted in numerous public places in the county in which he lives and on the internet.⁷ Significantly, Wilson could not live or work within 1,000 feet of any child care facility, church, or area where minors congregate.⁸

After the trial court denied Wilson's motion for new trial, Wilson filed a notice of appeal to this Court. This Court transferred the appeal to the Court of Appeals, and that Court affirmed Wilson's conviction on April 28, 2006.⁹ On appeal, Wilson claimed that his trial counsel was ineffective for failing to contend that OCGA § 16-6-4 violated equal protection by imposing a minimum sentence of ten years in prison on a seventeen-year-old male who engages in oral sex with a female under the age of sixteen when a seventeen-year-old male who engages in intercourse with the same female is guilty of only misdemeanor statutory rape under OCGA § 16-6-3(b). Wilson also contended that his sentence constituted cruel and unusual punishment. In addressing Wilson's equal protection claim, the Court of Appeals stated that Wilson's equal protection challenge was effectively resolved against him in Odett v. State,¹⁰ and that, in any event, this Court's transfer order meant that "Wilson's constitutional challenge is untimely and thus waived."¹¹ The Court of Appeals did not address Wilson's contention that his sentence constituted cruel and unusual punishment. In a motion for reconsideration filed on May 8, 2006, Wilson stated that, two days before the Court of Appeals issued its opinion, Georgia Governor Sonny Perdue signed House Bill 1059, which amended OCGA § 16-6-4 effective July 1, 2006, by adding a new subsection (d)(2) to make conduct such as Wilson's a misdemeanor and which amended OCGA § 42-1-12 to relieve him from having to register as a sex offender. Wilson contended that this new law should lead to a different outcome on his equal protection and ineffective assistance of counsel claims. The Court of Appeals denied Wilson's motion for reconsideration. Wilson thereafter petitioned this Court for certiorari, contending that this Court should review his equal protection claim. Wilson did not pursue his cruel and unusual punishment claim on certiorari. This Court subsequently denied Wilson's petition for certiorari.

On April 16, 2007, Wilson filed the present application for writ of habeas corpus, contending that his sentence constituted cruel and unusual punishment due in large part to the fact that the 2006 Amendment to § 16-6-4 makes conduct such as his a misdemeanor, while the 2006 Amendment to § 42-1-12 relieved him from the requirements of the sex offender registry. In this regard, the 2006 Amendment to § 16-6-4 provides that, if a person engages in sodomy with a victim who "is at least 13 but less than 16 years of age" and, if the person who engages in the conduct is "18 years of age or younger and is no more than four years older than the victim," the person is guilty of the new crime of misdemeanor aggravated child molestation.¹² Moreover, the 2006 Amendment to § 42-1-12 provided that teenagers whose conduct is a misdemeanor under the 2006 Amendment to § 16-6-4 do not have to register as sex offenders.¹³

On June 11, 2007, the habeas court ruled that Wilson's claim of cruel and unusual punishment was not procedurally barred, reasoning that since "the aggravated child molestation statute was not amended until after [Wilson's] direct appeal was filed, [Wilson] could not have reasonably argued that the amended statute resulted in a constitutional violation of his right to be free from cruel and unusual punishment." Concluding that the extraordinary changes in the law reflected in the 2006 Amendments to § 16-6-4 and § 42-1-12 reflected this State's contemporary view of how Wilson's conduct should be punished, the habeas court ruled that Wilson's punishment was cruel and unusual. Finally, the habeas court, as a remedy, ruled that Wilson was guilty of misdemeanor aggravated child molestation under the 2006 Amendment to § 16-6-4, and it sentenced Wilson to twelve months to serve with credit for time served. On June 11, 2007, the warden filed a notice of appeal from the habeas court's grant of relief to Wilson.

That same day, pursuant to OCGA § 9-14-52(c), Wilson filed a motion to be released on bond pending the warden's appeal. As required by § 9-14-52(c), Wilson filed the motion for bond in the trial court. On June 27, 2007, the trial court denied Wilson's motion for bond on the ground that OCGA § 17-6-1(g) precludes the grant of an "appeal bond" when a person has been convicted of aggravated child molestation. Wilson appealed the denial of his motion. This Court subsequently expedited both the warden's appeal from the habeas court's grant of relief to Wilson and Wilson's appeal from the denial of his motion for bond pending the warden's appeal.

1. We first address Wilson's appeal from the denial of his motion for bond in Case No. S07A1606.

The State has moved to dismiss Wilson's appeal based on Bailey v. State,¹⁴ contending that Wilson's appeal is interlocutory and thus subject to dismissal since Wilson did not follow the interlocutory appeal provisions of OCGA § 5-6-34(b). It is difficult from the facts set forth in the Bailey opinion to determine why this Court labeled Bailey's "`motion for supersedeas bond pending post-conviction relief'" as interlocutory. However, it is clear from the record in the present case that the denial of Wilson's request for bail pursuant to OCGA § 9-14-52(c) is a final judgment. Moreover, we have permitted direct appeals from final judgments in cases involving appeal bonds.¹⁵ Accordingly, we conclude that Wilson has the right to directly appeal the denial of his motion for bail pending the warden's appeal, and we deny the State's motion to dismiss. To the extent that Bailey is contrary to our holding, it is overruled.

OCGA § 9-14-52(c), in plain language, provides that a habeas petitioner may seek bail during the warden's appeal "as is provided in criminal cases." The phrase "as is provided in criminal cases" is broad enough to evidence the General Assembly's intent that the petitioner's right to bail will depend on any bail provisions that the General Assembly has enacted or will enact to govern criminal cases. In this regard, the General Assembly has enacted OCGA § 17-6-1(g) to govern bail in criminal appeals, and as it prohibits bail on appeal for persons convicted of aggravated child molestation, Wilson is not entitled to bail pending the...