Habeas corpus. Tattnall Superior Court. Before Judge Stewart.
Sarah L. Gerwig-Moore, Miller & Key, J. Scott Key, McKenna, Long & Aldridge, Leah M. Singleton, for appellant.
Samuel S. Olens, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Meghan H. Hill, Assistant Attorney General, for appellee.
BLACKWELL, Justice. All the Justices concur, except Hunstein, J., who concurs in judgment only.
In October 1998, Torrey Hill was tried by a Houston County jury upon an indictment that charged Hill with several crimes, including the forcible rape of A. G., who was fourteen years of age at the time of the alleged crimes. Although the indictment did not expressly charge Hill with the statutory rape of A. G., the trial court instructed the jury -- at the request of the State, and over Hill's objection -- that it could find Hill guilty of statutory rape as a lesser offense included in the crime of the forcible rape of A. G. The jury did just that, finding Hill not guilty of forcible rape, but guilty of the statutory rape of A. G., as well as a number of other crimes. Hill appealed, and he argued, among other things, that statutory rape is not included in forcible rape and that the trial court, therefore, erred when it instructed the jury about statutory rape as a lesser included offense. In Hill v. State, 295 Ga.App. 360 (671 S.E.2d 853) (2008), the Court of Appeals affirmed his convictions, reasoning that statutory rape sometimes may be included in forcible rape as a matter of fact, even if it is not always so included as a matter of law. See 295 Ga.App. at 363-364 (2).
Four years later, in Stuart v. State, 318 Ga.App. 839 (734 S.E.2d 814) (2012), the Court of Appeals reconsidered and decided that statutory rape is never included in forcible rape, overruling Hill as a precedent along the way. See 318 Ga.App. at 841-842. Within a few [296 Ga. 754] weeks of the decision in Stuart, Hill filed a pro se petition for a writ of habeas corpus, and in the habeas proceedings that followed, Hill claimed that his conviction for the statutory rape of A. G. not only reflected a misapplication of the state statutory law concerning the extent to which one crime is included in another, but also worked a denial of the due process to which he was entitled as a matter of constitutional law. In support of this claim, Hill argued that he was deprived at the time of his trial of fair notice that he could be convicted of the statutory rape of A. G. because his indictment did not expressly charge him with that crime and -- as shown by Stuart -- the statutory rape could not be included in the forcible rape of A. G. with which he was expressly charged. Hill further argued that he was prejudiced as a result, being unable to adjust his defense to meet a charge of which he had no notice. The habeas court denied the petition, and Hill appeals. For the reasons that follow, we affirm.
To begin, we note that Hill was right to frame the issue in habeas as a constitutional one, given that the writ of habeas corpus is available to remedy an error in a court of conviction only to the extent that the error worked a substantial denial of a constitutional right. OCGA § 9-14-42 (a). See also Bruce v. Smith, 274 Ga. 432, 435 (3) (553 S.E.2d 808) (2001) (" Our state habeas corpus statute provides relief only for a substantial denial of constitutional rights under the United States Constitution or the Georgia Constitution." ) (citations omitted). Without more, a claim that a court of conviction misapplied the statutory or common law of Georgia does not warrant habeas relief. See Parker v. Abernathy, 253 Ga. 673, 674 (324 S.E.2d 191) (1985). As such, framing the issue as a constitutional one was essential for Hill to state a claim cognizable in habeas.
As necessary as it may have been, however, framing the issue as Hill has framed it has important implications for the nature and scope of our review. In their briefs, Hill and the Warden argue about whether Stuart ought to be applied retroactively in this habeas proceeding. That is an interesting question, we suppose, but answering it is not essential to deciding this case. Indeed, for the purposes of this case, we will accept that Hill was decided incorrectly, that Stuart was right to overrule Hill, that statutory rape is never an offense included in forcible rape, see Mangrum v. State, 285 Ga. 676, 680 (5) (681 S.E.2d 130) (2009),
and that the court in which Hill was convicted [296 Ga. 755] was wrong to instruct the jury to the contrary. Even accepting these things, they show only a misapplication of the statutory law concerning lesser included offenses. They fail to make out the constitutional claim that Hill has pressed in these habeas proceedings.
In the first place, there was far more to Hill's indictment than the charge of forcible rape. The indictment expressly charged Hill with nine crimes, four of which were sex crimes against A. G., all alleged to have been committed ...