Jackson v. State

• Decision Date: 15 May 2017
• Docket Number: S16G0888
• Citation: 800 S.E.2d 356
• Parties: JACKSON v. The STATE.
• Court: Georgia Supreme Court

301 Ga. 137
800 S.E.2d 356

JACKSON
v.
The STATE.

S16G0888

Supreme Court of Georgia.

Decided: May 15, 2017

Russell Knighton Walker, RUSSELL K. WALKER, P.C., P.O. Box 933, Perry, Georgia 31069, Brian E. Brupbacher, Walker & Walker, LLP, 902 Carroll Street, Perry, Georgia 31069, for Appellant.

James C. Bonner, Jr., GEORGIA PUBLIC DEFENDER COUNCIL, Suite 600, 104 Marietta Street, Atlanta, Georgia 30303, Robert G. Rubin, PETERS, RUBIN & SHEFFIELD, P.A., 2876 North Decatur

800 S.E.2d 358

Road, Suite 245, Atlanta, Georgia 30033, Elizabeth Ann Brandenburg, LAW FIRM OF SHEIN & BRANDENBURG, 2392 North Decatur Road, Decatur, Georgia 30033, Brandon Alexander Bullard, GEORGIA PUBLIC DEFENDER COUNCIL, 104 Marietta Street, NW, Suite 400, Atlanta, Georgia 30303, for Amicus Appellant.

Marie R. Banks, A.D.A., George Herbert Hartwig, III, District Attorney, Daniel Patrick Bibler, Deputy Chief A.D.A., HOUSTON COUNTY DISTRICT ATTORNEY'S OFFICE, 201 North Perry Parkway, Perry, Georgia 31069, for Appellee.

Benham, Justice.

In 2004, appellant Prentiss Ashon Jackson entered a negotiated guilty plea to one count of statutory rape, registered with the sexual offender registry, and listed an address in Houston County. He was made aware of the requirement to update his registration information within 72 hours prior to any change of address. Nevertheless, in 2011, he moved to Bibb County without registering his new address within the required period of time. He was indicted, and the caption of the one-count indictment read: "Failure to register as a sex offender." The body of the count read as follows:

for that the said accused, in the State of Georgia and County of Houston, on or about September 15, 2011, did fail to register his change of address with the Houston County Sheriff's Office within 72 hours of the change as required under OCGA § 42-1-12, contrary to the laws of said State, the good order, peace and dignity thereof.

During trial, Jackson made an oral general demurrer to the indictment, which the trial court denied. Jackson was convicted by a jury and sentenced to 30 years, serving six years in prison without the possibility of parole and serving the remaining 24 years on probation. Jackson appealed and challenged, among other things, the sufficiency of the indictment against him. The Court of Appeals held the indictment was not fatally defective and affirmed his conviction. See Jackson v. State , 335 Ga.App. 597, 598-599 (1), 782 S.E.2d 499 (2016). This Court granted Jackson's petition for certiorari to examine whether the Court of Appeals erred in finding that the indictment was not fatally defective.

1. The standard applied by the Court of Appeals

In order to determine the sufficiency of the indictment in this case, we start with an examination of the statute referenced in it.¹ We note that OCGA § 42-1-12 encompasses numerous subparts, and even at the time of appellant's allegedly illegal actions in 2011, the whole of the statute covered fourteen pages of Volume 29A of the Official

Code of Georgia Annotated. Among other things, OCGA § 42-1-12 requires, as it did in 2011,² a person convicted of certain sexual offenses to register his or her residence address with an "appropriate official," as that term is defined in the statute. OCGA § 42-1-12 (a) (2) and (f) (1). The provision requiring a convicted and registered sexual offender to update the offender's registration information regarding a change of address is found at subsection (f) (5). It provides as follows:

(f) Any sexual offender required to register under this Code section shall:...

(5) Update the required registration information with the sheriff of the county in which the sexual offender resides within 72 hours of any change to the required registration information, other than where he or she resides or sleeps if such person is homeless. If the information is the sexual offender's new address, the sexual offender shall give the information regarding the sexual offender's new address to the sheriff of the county in which the sexual offender

800 S.E.2d 359

last registered within 72 hours prior to any change of address and to the sheriff of the county to which the sexual offender is moving within 72 hours prior to establishing such new address. If the sexual offender is homeless, and the information is the sexual offender's new sleeping location, within 72 hours of changing sleeping locations, the sexual offender shall give the information regarding the sexual offender's new sleeping location to the sheriff of the county in which the sexual offender last registered, and if the county has changed, to the sheriff of the county to which the sexual offender has moved[.]

Subsection (n) of the statute makes it a felony to fail to comply with the requirements of the Code section.

The Court of Appeals based its holding that the indictment against appellant was not fatally defective on two conclusions: first, that the indictment charged appellant with violating a specific penal statute, OCGA § 42-1-12, and incorporated the terms of that Code section; and second, that appellant "could not admit his acts violated OCGA § 42-1-12, i.e., that he failed to register as a sex offender, and still be innocent of the charged offense."

Jackson , supra, 335 Ga.App. at 599, 782 S.E.2d 499. The problem with this reasoning is that the indictment referenced the entire multi-part, 14-page Code section, which includes numerous requirements with which a convicted sexual offender must comply. In fact, the indictment did not set out or incorporate that portion of the language of subsection (f) (5) quoted in the Court of Appeals opinion. The indictment merely asserted that appellant failed to register a change of address with the Houston County sheriff's office within 72 hours of that change of address as required by OCGA § 42-1-12. But even subsection (f) (5), which sets out the steps that must be followed to update a sexual offender's registration information, contains multiple requirements. If the change of address is within the county in which the offender already is registered, the updated information must be provided within 72 hours prior to establishing the new address to the sheriff of that county. See OCGA § 42-1-12 (f) (5). If the change of address involves a move to another county, the updated information must be given within the allotted time not only to the sheriff of the county in which the offender last registered but also to the sheriff of the county to which the offender is moving. Id.

In support of its holding, the Court of Appeals relied upon its earlier opinions for the proposition that "[b]ecause an accused cannot admit an allegation that [his or] her acts were ‘in violation of’ a specified Code section and yet not be guilty of the offense set out in that Code section, such an accusation [or indictment] is not fatally defective." (Citation and punctuation omitted.) Dix s on v. State , 313 Ga.App. 379, 383 (2), 721 S.E.2d 555 (2011) (physical precedent only) (quoting State v. Shabazz , 291 Ga.App. 751, 752 (3), 662 S.E.2d 828 (2008) ). But as then-Court of Appeals Judge Blackwell cautioned in his special concurrence...