Sex offender registration. Fulton Superior Court. Before Judge Schwall.
Samuel S. Olens, Attorney General, Joseph J. Drolet, Senior Assistant Attorney General, Rebecca J. Dobras, Assistant Attorney General, for appellant.
Stephen R. Scarborough, for appellee.
MELTON, Justice. All the Justices concur.
Following the trial court's ruling that permanently enjoined the Georgia Department of Corrections (GDC) from requiring Mario Urbina to register as a sex offender, Brian Owens, Commissioner of the GDC, appeals. For the reasons set forth below, we affirm.
The record shows that Urbina, a Georgia resident, taught piano lessons to children in Alabama. On February 1, 2012, Urbina was indicted in Alabama for (1) Enticing a Child to Enter for Immoral Purposes and (2) Sex Abuse of a Child Less than 12 Years of Age. It was alleged in the indictment that Urbina had sexual contact with a young female in a room at the church where he was teaching piano lessons. On April 26, 2012, Urbina entered into a negotiated plea with the State of Alabama to plead guilty to Interference with Custody, a Class C felony in Alabama that is punishable for up to ten years in prison. Unlike the initial indictment, which was nolle prossed, the information upon which Urbina was charged and convicted for Interference with Custody states only that Urbina " did knowingly take or entice a child under the age of 18, ... from the lawful custody of [her] parent, guardian, or other lawful custodian." Urbina agreed to serve four years imprisonment, but the trial court later reduced the sentence to four years on probation. Subsequently, Urbina sought to transfer his probation supervision from Alabama to Georgia so that he could return to his Georgia residence and reunite with his wife and [296 Ga. 257] children. The GDC informed Urbina that he would be required to register as a sex offender. Urbina then filed a Petition
for Declaratory Judgment and Permanent Injunction in Fulton County Superior Court, seeking (1) a declaratory judgment stating whether he was required to register as a sex offender in Georgia and (2) a permanent injunction to prevent GDC from requiring Urbina to register as a sex offender as a condition of transferring his probation supervision from Alabama to Georgia. On January 15, 2014, the trial court held, in relevant part:
[Interference with Custody] is a felony in Alabama, but the elements of the offense are identical in substance to the Georgia crime of Interference with Custody, a misdemeanor. OCGA [§ ] 16-5-45 (b) (1) (A)[]. ... Under Georgia law -- and regardless of the underlying facts -- a misdemeanor conviction does not trigger the sex offender registration requirement. See OCGA [§ ] 42-1-12 [(a) (9) (C), (a) (10) (C)] (exempting misdemeanors from the definitions of " criminal offense against a victim who is a minor" and " dangerous sexual offense" ). The Court acknowledges a general rule permitting courts to look to the conduct underlying an offense to determine whether registration is warranted, see, e.g., Price v. State, 320 Ga.App. 85 (738 S.E.2d 289) (2013). But this rule does not apply when the conviction at issue is for a misdemeanor, given the comprehensive exemption set forth in the statute. ... The Court finds there is no rational basis for requiring [Urbina] to register as a sex offender when other persons convicted of the same crime would face no such conduct.
We reach the same judgment as the trial court, but employ different reasoning.
In relevant part, registration as a sex offender is required for any individual " convicted ... of a criminal offense against a victim who is a minor" or who is a resident of Georgia and intends to reside in this state who is " convicted under the laws of another state or the United States ... of ... a criminal offense against a victim who is a minor." [296 Ga. 258] OCGA § 42-1-12 (e) (1), (5). (Emphasis supplied.) A criminal offense against a victim who is a minor is defined, in part, as any " conduct which, by its nature, is a sexual offense against a victim who is a minor." OCGA § 42-1-12 (a) (9) (B) (xi). However, a " conviction for a misdemeanor shall not be considered a criminal offense against a victim who is a minor." OCGA § 42-1-12 (a) (9) (C). As pointed out by the trial court, this misdemeanor exception appears to be without limitation.
As a result, for purposes of registration in Georgia, the parties argue extensively about whether Urbina's crime should be considered a felony pursuant to Alabama law or a misdemeanor pursuant to Georgia law. In addition, Owens argues that, irrespective of the classification of the punishment, the GDC should be allowed to impose registration requirements if the underlying criminal act constituted conduct toward a minor that was sexual in nature. See Price v. State, 320 Ga.App. 85 (4) (738 S.E.2d 289) (2013).
Based on the record related to Urbina's actual conviction for Interference with Custody in Alabama as it now exists, which is limited to the facts contained in the information and guilty plea form, it cannot be said that the crime in issue is a " conviction resulting from an underlying sexual offense against a victim who is a minor." OCGA § 42-1-12 (a) (9) (A) (vii). The information, which is the only factual basis of record for Urbina's guilty plea, states that he " did knowingly take or entice a child under the age of 18, ... from the lawful custody of [her] parent, guardian, or other lawful custodian." Even if this act could be considered a felony under Georgia law, it would not constitute a sexual offense. ...