Wiggins v. State

• Decision Date: 08 November 2010
• Docket Number: No. S10A0813.,S10A0813.
• Citation: 288 Ga. 169,702 S.E.2d 865,10 FCDR 3628
• Parties: WIGGINS v. The STATE.
• Court: Georgia Supreme Court

702 S.E.2d 865
288 Ga. 169
10 FCDR 3628

WIGGINS
v.
The STATE.

No. S10A0813.

Supreme Court of Georgia.

Nov. 8, 2010.

702 S.E.2d 866

Mark Allen Yurachek, Atlanta, for appellant.

Leigh Ellen Patterson, District Attorney, for appellee.

BENHAM, Justice.

288 Ga. 169

Appellant Paul Wiggins, Jr., was found guilty of and sentenced for cruelty to children and violation of an oath of public office, and those convictions were affirmed on appeal. See Wiggins v. State, 280 Ga. 268, 626 S.E.2d 118 (2006); Wiggins v. State, 279 Ga.App. 901, 633 S.E.2d 381 (2006), and Wiggins v. State, 272 Ga.App. 414, 612 S.E.2d 598 (2005). Following his unsuccessful effort to obtain a writ of habeas corpus, appellant filed in the court of conviction a motion to strike what he alleged was an illegal sentence, asserting that the special condition of probation imposed by the trial court that required he register as a sex offender was illegal because the statute

288 Ga. 170

that authorized the special condition is unconstitutional. After the trial court denied the motion, he filed this appeal.

Appellant contends the sentencing court's imposition of a requirement that appellant register as a sex offender for the rest of his life is an illegal sentence because OCGA § 42-1-12(a)(9)(B)(xi), which authorizes a sentencing judge to require sex offender registration of one who is convicted of "[a]ny conduct which, by its nature, is a sexual offense against a minor[,]" is unconstitutionally vague. Appellant argues the statute's terms are not defined, the statute fails to designate the entity authorized to require an individual to register as a sex offender, and the requirement that appellant register as a sex offender violates his Sixth Amendment rights and constitutes cruel and unusual punishment prohibited by the Eighth Amendment. He also contends the lifetime registration requirement imposes a sentence for

702 S.E.2d 867

his crime which exceeds the sentence set by the General Assembly for those crimes.

1. The District Attorney of Floyd County seeks dismissal of the appeal on the ground that appellant's contentions were resolved adversely to him in the denial of his petition for a writ of habeas corpus.¹ In his habeas petition, appellant asserted several of the grounds he raised in his motion to strike illegal sentence: that the imposition of the special condition of probation made his sentence illegal, that the statute authorizing the trial court's action was unconstitutionally vague, and that the sentence imposed violated his constitutional rights protected by the Sixth and Fourteenth Amendments because the sentence exceeded the punishment authorized by OCGA § 16-5-70. The habeas court did not address the merits of appellant's contentions, but instead determined the grounds were procedurally defaulted. OCGA § 9-14-48(d).

"Three prerequisites must be satisfied before res judicata applies—(1) identity of the cause of action, (2) identity of the parties or their privies, and (3) previous adjudication on the merits by a court of competent jurisdiction." Waldroup v. Greene County Hosp. Auth., 265 Ga. 864, 866, 463 S.E.2d 5 (1995). Where a convict seeks post-conviction relief based upon grounds previously litigated in a habeas proceeding, i.e., were raised in a habeas proceeding and resolved by the final judgment of the habeas court, this Court has determined that the convict is collaterally estopped from pursuing those grounds in his effort to obtain post-conviction relief. Davis v. State, 287 Ga. 414, 415, 696 S.E.2d 644 (2010) (where habeas court in 1998 found that appellant was informed of his Boykin rights at 1975

288 Ga. 171

guilty plea hearing, appellant could not re-litigate the issue in a motion seeking out-of-time appeal to challenge a void judgment and sentence); Spiller v. State, 282 Ga. 351(2), 647 S.E.2d 64 (2007) (habeas hearing on claim of ineffective assistance of trial counsel and habeas court's ruling thereon precluded Spiller from relitigating ineffective assistance in out-of-time direct appeal); Simmons v. State, 276 Ga. 525, 579 S.E.2d 735 (2003) (inmate was collaterally estopped from seeking out-of-time appeal since a habeas court previously had determined that inmate was responsible for the loss of his right of direct appeal). Since the merits of the constitutional claims raised by appellant in his habeas petition were not ruled upon by the habeas court, appellant is not estopped from litigating the contentions in this action.

Contrary to the District Attorney's assertions, this case is not controlled by Jones v. State, 278 Ga. 669, 670-671, 604 S.E.2d 483 (2004). Appellant is not challenging sentencing procedure or sentence fairness, but is challenging the...