Regan v. State

• Docket Number: S23A0686
• Decision Date: 02 November 2023
• Parties: REGAN v. THE STATE.
• Court: Supreme Court of Georgia

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REGAN v. THE STATE.

No. S23A0686

Supreme Court of Georgia

November 2, 2023

COLVIN, JUSTICE.

Appellant Cody Allen Regan appeals his sentence of 20 years in prison with one year to serve, for one count of felony child molestation, following his non-negotiated guilty plea.^[1] On appeal Appellant argues that he improperly received a felony sentence for child molestation, in violation of his rights to equal protection under the United States and Georgia Constitutions, because he is similarly situated to people receiving misdemeanor sentences for aggravated child molestation. Appellant also argues that his sentence constitutes cruel and unusual punishment, in violation of the United States and Georgia Constitutions, because his sentence is grossly disproportionate to his crime.

For the reasons that follow, we hold that the sentencing scheme for child molestation set out at OCGA § 16-6-4 (b), as applied to Appellant, violated his right to equal protection under the Fourteenth Amendment to the United States Constitution.^[2] These sentencing provisions provide for a misdemeanor sentence where the victim is at least 14 years old (among other conditions), but the misdemeanor sentencing provisions for aggravated child molestation provide for a misdemeanor sentence where the victim is at least 13 years old. Compare OCGA § 16-6-4 (b) (2), with 16-6-4 (d) (2). Because the victim in this case was 13 years old, Appellant did not qualify for the misdemeanor sentence he would have received if he had instead committed aggravated child molestation. See id. at (b) (2), (d) (2). There is no rational basis for such disparate treatment. We therefore reverse the trial court's order denying Appellant's motion in arrest of judgment, vacate Appellant's sentence, and remand the case for Appellant to be resentenced for misdemeanor child molestation under OCGA § 16-6-4 (b) (2). Because we resolve Appellant's challenges to his sentence on federal equal-protection grounds, we do not reach his cruel-and-unusual-punishment claims.

1. The facts in this case are uncontested. At the time of the crime Appellant was 17 years old, and less than four years older than his 13-year-old stepsister, A. M. In the early morning hours of May 28, 2017, Appellant entered the family living room, where he found A. M. asleep on the couch. Appellant then put his penis in A. M.'s hand. When A. M. awoke, Appellant covered himself and went back to his room. A. M. then reported this incident to her mother (Appellant's stepmother). Appellant admitted to his stepmother what he had done to his stepsister, and law enforcement officers were contacted.

2. As an initial matter, the State argues that Appellant failed to properly preserve his constitutional challenges for review because he abandoned his equal-protection claims and waived his cruel-and-unusual punishment claims in the trial court. We disagree with respect to Appellant's federal equal-protection claim, and we do not consider whether Appellant's other constitutional claims were properly preserved because, as explained above, we do not reach the merits of those claims.

A constitutional challenge to a sentencing statute is timely if it was made at the first opportunity. See Woods v. State, 279 Ga. 28, 29 (1) (608 S.E.2d 631) (2005) (holding defendant's constitutional challenge to a sentencing statute, which was raised after the verdict but prior to sentencing, was "made at the first opportunity and, therefore, was timely." (citation and punctuation omitted)). Because a challenge to a sentencing statute may not ripen until after the jury returns a guilty verdict or after the defendant enters a guilty plea, such a challenge "should normally be made no later than the sentencing hearing, at a time when corrective action is still possible." Jones v. State, 290 Ga. 670, 674 (3) (725 S.E.2d 236) (2012) (citation and punctuation omitted).

On the same day that Appellant entered his non-negotiated guilty plea, he filed a motion that expressly argued that his sentence violated the Equal Protection Clause of the Fourteenth Amendment. Though his concurrently filed brief did not cite the federal Equal Protection Clause or related decisional law, Appellant argued that the statutory sentencing scheme, see OCGA § 16-6-4 (b) (2), (d) (2) was "incongruous" and unfair, and that "[f]ailing to arrest judgment would result in an impermissible constitutional harm." Moreover, Appellant amply supported his federal equal-protection claim in his supplemental briefing to the trial court prior to re-sentencing, and the State was given adequate notice and opportunity to respond, which it did. See Woods, 279 Ga. at 29 (1) (noting that the defendant's constitutional challenge to his sentence, which occurred after the verdict but before sentencing, allowed time for "corrective action" and gave the State "adequate advance notice of the motion and the basis for the constitutional attack ...."). Appellant's federal equal-protection claim is also supported by argument and citations to authority in his briefing before this Court. We therefore conclude that Appellant's federal equal-protection claim was timely raised and properly preserved for our review.

Relying on Sulejman v. Marinello, 217 Ga.App. 319, 320 (1) (457 S.E.2d 251) (1995), the State argues that Appellant abandoned his federal equal-protection claim by failing to support it with argument and citations to the Constitution and related equal-protection case law in his initial briefing before the trial court, which was filed at the time of his guilty plea. Sulejman, however, is a Court of Appeals case that concerns the appellants' failure to support one of their enumerations of error in their appellate briefing, in violation of Court of Appeals Rule 15 (c) (2). See Sulejman, 217 Ga.App. at 320 (1) (citation and punctuation omitted). That rule did not apply in the trial court, which is instead governed by the Uniform Superior Court Rules, and those rules do not include an analogous provision. Further, as noted above, Appellant's initial brief-in-support before the trial court elaborates upon the constitutional argument expressly raised in his concurrent motion, albeit obliquely. The State's preservation argument therefore fails.

3. Having determined that we can review Appellant's federal equal-protection claim, we now turn to the merits of Appellant's equal-protection arguments. Appellant contends that he was subject to a felony sentence for child molestation even though he is similarly situated to certain defendants who receive only a misdemeanor sentence for aggravated child molestation. Appellant further argues that there is no rational basis for this discrepancy in the sentencing scheme. Accordingly, he argues that his equal protection rights were violated when he was not sentenced as a defendant would be under OCGA § 16-6-4 (b) (2). For the reasons that follow, we agree.

(a) OCGA § 16-6-4 defines both child molestation and aggravated child molestation. As relevant here, child molestation occurs when "[a] person . . . [d]oes an immoral or indecent act to . . . any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of . . . the person." OCGA § 16-6-4 (a) (1). The Criminal Code defines aggravated child molestation as an act of child molestation which also "physically injures the child or involves an act of sodomy." OCGA § 16-6-4 (c). Sodomy, in turn, occurs when a person "performs or submits to any sexual act involving the sex organs of one person and the mouth or anus of another." OCGA § 16-6-2 (a) (1). Persons convicted of aggravated child molestation have, by definition, also committed the offense of simple child molestation. See Dixon v. State, 278 Ga. 4, 7 (2) (596 S.E.2d 147) (2004) ("[S]imple child molestation is a necessary element of aggravated child molestation, so . . . the State cannot reach aggravated child molestation without first proving that [the defendant] is guilty of simple child molestation." (citation and punctuation omitted)).

Generally, a first offense of child molestation is punishable by imprisonment for a term of five to 20 years, whereas a first offense of aggravated child molestation is punishable by either imprisonment for life or by imprisonment for a term of at least 25 years followed by probation for life. Compare OCGA § 16-6-4 (b) (1), with OCGA § 16-6-4 (d) (1).

These felony sentences do not apply, however, in certain cases where the offender is 18 years of age or younger and the additional conditions set forth in the applicable misdemeanor sentencing provisions are met. OCGA § 16-6-4 (b) (2), (d) (2). Specifically, the misdemeanor sentencing provisions for child molestation apply when the victim is at least 14 years old, the defendant is 18 years of age or younger, and the defendant is no more than four years older than the victim. See OCGA § 16-6-4 (b) (2). The misdemeanor sentencing provisions for aggravated child molestation are similar but contain two key differences: they apply when the victim is at least 13 years old - rather than 14 years old - and the "basis of the charge . . . involves an act of sodomy." OCGA § 16-6-4 (d) (2) (A), (C). Thus, under these sentencing provisions, a 17-year-old defendant may receive a misdemeanor sentence for committing aggravated child molestation against a 13-year-old victim but may not receive a misdemeanor sentence for committing child molestation against the same victim.^[3]

OCGA § 16-6-4's statutory scheme reveals two legislative determinations made by the General Assembly. First, acts of child molestation involving sodomy generally warrant more punishment than those not involving sodomy. This determination is evident from the definitions of the offenses...