Miller v. State
| Decision Date | 12 May 2008 |
| Docket Number | No. A08A0173.,A08A0173. |
| Citation | 662 S.E.2d 261,291 Ga. App. 478 |
| Parties | MILLER v. The STATE. |
| Court | Georgia Court of Appeals |
Daniel, Hadden & Alford, Peter T. Alford, La Grange, Ajalon E. Daniel III, for Appellant.
Peter J. Skandalakis, Dist. Atty., Lynda S. Caldwell, William Doss Hocutt, Asst. Dist. Attys., for Appellee.
Phillip Michael Miller appeals from the trial court's order denying his petition for release from the requirement that he register as a sexual offender for life, pursuant to OCGA § 42-1-12(f)( 7). Citing OCGA § 42-1-12(g), Miller argues that he is thus entitled because the State failed to meet its burden of showing that he poses a substantial risk of reoffense in opposition to his prima facie case to the contrary. Alternatively, Miller argues that the foregoing duty to register is unconstitutional as an ex post facto law. Finding no abuse of discretion upon the trial court's denial of the instant petition and no merit in the claim that OCGA § 42-1-12(f) is an unconstitutional ex post facto law, we affirm.
Gilliam v State, 268 Ga. 690, 692(3), 492 S.E.2d 185 (1997). (Footnotes omitted.) City of McDonough v. Tusk Partners, 268 Ga. 693, 697(1), 492 S.E.2d 206 (1997) (Sears, J., concurring specially).
So viewed, the record shows that Miller pled guilty to three counts of child molestation in violation of OCGA § 16-6-4 on September 1, 1993. These involved inappropriate touchings and an act of fellatio as to his daughters, then ages seven, eleven, and fourteen. Miller was sentenced to ten years in confinement. He served three years thereof and was released on September 6, 1996 to serve the remainder of his sentence on probation. On November 30, 2006, following the tenth anniversary of his release from prison, Miller filed the underlying petition.
1. Miller contends that the trial court erred in failing to release him from the requirement to register as a sexual offender under OCGA § 42-1-12(g) because he made out a prima facie case that he no longer posed a substantial risk of reoffending, which the State failed to oppose by evidence to the contrary. We disagree, however, and find no abuse of discretion in the trial court's denial of Miller's petition for release from the registration requirements of OCGA § 42-1-12(g).
OCGA § 42-1-12, as enacted effective July 1, 2006, is applicable to persons convicted of child molestation prior to July 1, 1996 and released from prison on or after that date. OCGA § 42-1-12(e)(3). Subsection (g)(1) of that statute provides that the trial court "may issue an order releasing the sexual offender from further registration if the court finds that the sexual offender does not pose a substantial risk of perpetrating any future dangerous sexual offense." The sexual offender properly petitions the court for such release by showing that he or she was sentenced pursuant to OCGA § 17-10-6.2(c) and that ten years have elapsed from the date of his or her release from prison, parole, supervised release, or probation. OCGA § 42-1-12(g)(2).
a. First, the State argues that Miller failed to show that he was sentenced pursuant to OCGA § 17-10-6.2(c) because such statute did not exist at the time he was sentenced — this foreclosing any entitlement to petition the court for release from the registration requirement at issue. We cannot agree.
At issue is an apparent conflict inherent in OCGA § 42-1-12. On the one hand, the statute makes Miller eligible for relief thereunder as an individual convicted of child molestation prior to July 1, 1996 and released from prison after that date. See OCGA § 42-1-12(e)(3). Yet, on the other hand, the statute conditions his eligibility for such relief, in part, upon a showing that he was sentenced pursuant to OCGA § 17-10-6.2 (see OCGA § 42-1-12(g)(2)(A)), a statute which did not exist at the time Miller was sentenced. Like OCGA § 42-1-12, OCGA § 17-10-6.2 was enacted by the legislature effective July 1, 2006.
It does not follow, however, that we should construe statutory conflict as foreclosing, ab initio, eligibility for the relief that OCGA § 42-1-12 purports to provide. "It is the duty of the court to consider the results and consequences of any proposed construction and not so construe a statute as will result in unreasonable or absurd consequences not contemplated by the legislature." (Citation and punctuation omitted; emphasis in original.) Brooks v. State, 257 Ga.App. 515, 517, 571 S.E.2d 504 (2002).
While OCGA § 17-10-6.2 did not exist at the time Miller was sentenced, such Code section, by its own terms, is applicable to punishment for certain sexual offenses, among them, the offense of which Miller was convicted, child molestation. OCGA § 17-10-6.2(a)(5). OCGA § 17-10-6.2(c) sets out the criteria applicable to any upward or downward departure from the applicable mandatory minimum sentence to confinement and requires that the sentencing judge enter an order stating his or her reasons for such departure. OCGA § 17-10-6.2(c)(1) and (2), respectively. Because the trial court sentenced Miller to ten years confinement on three counts of child molestation, it is clear that the trial court departed downward from the mandatory minimum five-year sentence to confinement for each of his three convictions for child molestation1 — this as OCGA § 17-10-6.2(c) later authorized. The fact that the sentencing court did not then enter a written order setting out the basis for such departure does not make Miller's sentence any less a sentence imposed in a manner consistent with the terms of OCGA § 17-10-6.2 for purposes of seeking relief under OCGA § 42-1-12(g)(2). To construe that Code section otherwise would plainly contravene its objective to provide petitioners a basis for seeking relief from the continuing duty to register as sexual offenders. This we decline to do.
b. Given the foregoing and the fact that Miller filed his petition more than ten years from the date of his release from prison, we turn to the question of whether Miller supported his petition for release from the requirement to register as a sexual offender by prima facie evidence sufficient to shift the burden of proof to the State to show the contrary. See ...
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