State v. Davis

• Decision Date: 21 May 2018
• Docket Number: S17G1333
• Citation: 814 S.E.2d 701
• Parties: The STATE v. DAVIS.
• Court: Georgia Supreme Court

303 Ga. 684

814 S.E.2d 701

The STATE

v.DAVIS.

S17G1333

Supreme Court of Georgia.

Decided: May 21, 2018

Lyndsey Hurst Rudder, Deputy D.A., Fulton County District Attorney's Office, Margaret Ellen Heap, District Attorney, Christine Sieger Barker, A.D.A., Office of the District Attorney Eastern Judicial Circuit, Attorneys for the Appellant

Amy Lee Ihrig, Robert Lawrence Persse, Office of the Public Defender, Eastern Judicial Circuit, Attorneys for the Appellee

Scott L. Ballard, Benjamin David Coker, District Attorneys, Griffin Judicial Circuit District Attorney's Office, Robert Wright Smith, Jr., Prosecuting Attorneys' Council of Georgia, Attorneys for the Amicus Appellant

James C. Bonner, Jr., Brandon Alexander Bullard, Georgia Public Defender Council, Elizabeth Ann Brandenburg, Law Firm of Shein & Brandenburg, Decatur, Robert G. Rubin, Peters, Rubin & Sheffield, P.A., Atlanta, Attorneys for the Amicus Appellee

Boggs, Justice.

We granted this petition for certiorari to consider two questions: First, whether this Court’s constitutional question jurisdiction is invoked by the issue of the authority of the Board of Pardons and Paroles to remove the requirements imposed upon sex offenders by OCGA § 42-1-12 under its constitutional power "to remove disabilities imposed by law," Ga. Const. Art. IV, Sec. II, Par. II (a). Second, if that question is answered in the affirmative, whether the trial court erred in concluding that the registration and reporting requirements of that Code section are not a "disability" within the meaning of the Board’s constitutional powers, and therefore denying Davis' general demurrer. For the reasons stated below, we answer both questions in the affirmative. We therefore must vacate the judgment of the Court of Appeals, decide the constitutional claims presented by this petition, and reverse the trial court’s judgment.¹

In 1995, Barry Craig Davis pled guilty to aggravated sodomy against his six-year-old daughter and was sentenced to ten years with two to serve in confinement. After the enactment of OCGA § 42-1-12 in 1996, he was required to register for life as a sex offender upon his release on probation. After his release from prison, Davis' probation terminated on July 15, 2005. On February 13, 2013, Davis obtained a pardon from the Board of Pardons and Paroles ("the Board"):

WHEREAS, an application for a Pardon has been filed by the above named individual; and

WHEREAS, having investigated the facts material to the pardon application, which investigation has established to the satisfaction of the Board that the pardon applicant is a law-abiding citizen and is fully rehabilitated;

THEREFORE, pursuant to Article IV, Section II, Paragraph II (a), of the Constitution of the State of Georgia, the Board, without implying innocence, hereby unconditionally fully pardons said individual, and it is hereby

ORDERED that all disabilities under Georgia law resulting from the above stated conviction(s) and sentence(s), as well as, any other Georgia conviction(s) and sentence(s) imposed prior thereto, be and each and all are hereby removed; and

ORDERED FURTHER that all civil and political rights, except the right to receive, possess, or transport in commerce a firearm, lost under Georgia law as a result of the above stated conviction(s) and sentence(s), as well as, any other Georgia conviction(s) and sentence(s) imposed prior thereto, be and each and all are hereby restored.²

Ga. Const. Art. IV, Sec. II, Para. II (a) provides:

Except as otherwise provided in this Paragraph, the State Board of Pardons and Paroles shall be vested with the power of executive clemency, including the powers to grant reprieves, pardons, and paroles; to commute penalties; to remove disabilities imposed by law; and to remit any part of a sentence for any offense against the state after conviction.

Shortly after receiving the pardon, Davis moved to North Carolina without providing notice within 72 hours to the Chatham County Sheriff as required of sex offenders by OCGA § 42-1-12 (f) (5). He was indicted for violation of that Code section by "fail[ing] to update his address, required registration information, with the Sheriff of Chatham County ... within 72 hours prior to such change of residence...." He filed a general demurrer to the indictment for failure to charge a criminal offense, contending that the requirement to register as a sex offender was removed by the pardon. After a hearing, the trial court, relying on Rainer v. State, 286 Ga. 675, 675-676 (1), 690 S.E.2d 827 (2010), held that the requirement to register is merely regulatory rather than punitive in nature, and therefore does not constitute a legal disability. It further concluded, based upon an opinion of the Attorney General, that "legal disability" within the meaning of the pardon extends only to the right to hold office, to vote, and to serve on a jury. 1954-1956 Op. Atty Gen. 508, 509 (Dec. 21, 1956). Accordingly, the trial court found that, in the absence of express language in the Board’s decree, Davis' pardon does not release him from the obligation to register as a sex offender. It therefore denied the general demurrer.

The trial court granted a certificate of immediate review, and Davis applied for interlocutory review with the Court of Appeals, which granted the application. In Davis v. State, 340 Ga. App. 652, 798 S.E.2d 474 (2017), the Court of Appeals conducted a thorough analysis of the pardon powers of the Board, finding that the plain language of the Constitution, Board rules, and the pardon itself "constrained [it] to conclude" that the requirement to register as a sex offender was a legal disability which was removed by the Board’s pardon. Id. at 660, 798 S.E.2d 474. It therefore reversed the trial court’s denial of Davis' motion for a general demurrer. Id. at 662, 798 S.E.2d 474.³

This Court granted certiorari on August 14, 2017, posing the following questions:

(1) Whether this Court’s constitutional question jurisdiction is invoked by the question of whether the authority of the Board of Pardons and Paroles to remove "disabilities imposed by law," Ga. Const. Art. IV, Sec. II, Par. II (a), encompasses the authority to remove requirements imposed on sex offenders under OCGA § 42-1-12 ; and

(2) Whether the sex offender registration requirements are a legal disability [and] are removed by the Board’s order granting a pardon and removing all disabilities other than to possess a firearm?

1. In its brief, the State argues that the Court of Appeals lacked jurisdiction to consider this case because it addresses a constitutional question of first impression.⁴ We agree.

The exclusive appellate jurisdiction of the Supreme Court of Georgia is established by Ga. Const. Art. VI, Sec. VI, Par. II :

The Supreme Court shall be a court of review and shall exercise exclusive appellate jurisdiction in the following cases:

(1) All cases involving the construction of a treaty or of the Constitution of the State of Georgia or of the United States and all cases in which the constitutionality of a law, ordinance, or constitutional provision has been drawn in question....

"[W]e have interpreted this jurisdictional provision to extend only to constitutional issues that were distinctly ruled on by the trial court and that do not involve the application of unquestioned and unambiguous constitutional provisions or challenges to laws previously held to be constitutional against the same attack." (Citation omitted.) Brinkley v. State, 291 Ga. 195, 196, 728 S.E.2d 598 (2012), disapproved on other grounds by Veal v. State, 298 Ga. 691, 701 (5) (d), 784 S.E.2d 403 (2016).

The Court of Appeals has limited jurisdiction to review constitutional questions. It has jurisdiction over cases that involve the application, in a general sense, of unquestioned

and unambiguous provisions of the Constitution to a given state of facts and that do not involve construction of some constitutional provision directly in question and doubtful either under its own terms or under the decisions of the Supreme Court of Georgia or the Supreme Court of the United States. The Court of Appeals has jurisdiction when the constitutionality of a state law is questioned if the law has been held to be constitutional against the same attack being made, as such a case requires merely an application of unquestioned and unambiguous constitutional provisions.

(Citations and punctuation omitted.) City of Decatur v. DeKalb County, 284 Ga. 434, 436-437 (2), 668 S.E.2d 247 (2008).

Davis argues, citing Ferguson v. Perry, 292 Ga. 666, 680, 740 S.E.2d 598 (2013), that this Court has already construed the meaning of the term "disability" with respect to the scope of the Board’s powers and authority under Ga. Const. Art. IV, Sec. II, Par. II, and the Court of Appeals therefore has jurisdiction. But that is true only when the facts of the case "do not involve construction of some constitutional provision directly in question and doubtful either under its own terms or under the decisions of the Supreme Court of Georgia or the Supreme Court of the United States." City of Decatur, supra, 284 Ga. at 436 (2), 668 S.E.2d 247. While the principles addressed in Ferguson are clearly relevant here as discussed in Division 2, below, the construction of the constitutional provision in question with respect to sex offender registration, as opposed to firearm rights, has not been addressed; as the Court of Appeals acknowledged, this is a case of first impression. Davis, supra, 340 Ga. App. at 654 n.5, 798 S.E.2d 474. This appeal therefore does not "require[ ] merely an application of unquestioned and unambiguous constitutional provisions." (Citations omitted.) Zarate-Martinez v. Echemendia, 299 Ga. 301, 304 (2), 788 S.E.2d 405 (2016).

"Because this Court has exclusive appellate jurisdiction over cases involving the construction of the state constitution, the Court of Appeals erred when it construed the constitutional provision" at issue here. City of Decatur, s...