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Davis v. State

Court of Appeals of Georgia, Fifth Division

March 10, 2017

DAVIS
v.
THE STATE.

          DILLARD, P. J., REESE and BETHEL, JJ.

          DILLARD, PRESIDING JUDGE.

         This appeal concerns the breadth of the "power of executive clemency" exercised by the Georgia Board of Pardons and Paroles ("Board"), especially the power to grant pardons and remove disabilities imposed by law.[1] Specifically, we are called upon to determine whether the Board's "unconditional" pardon of Barry Davis's aggravated sodomy conviction obviates his duty to register as a convicted sex offender. Because the separation-of-powers doctrine requires us to adhere to the decision of the Board to issue Davis a pardon, and the plain meaning of the sweeping language used by the Board in that pardon removes the duty of Davis to register as a sex offender, we are constrained to reverse the trial court's denial of Davis's motion for a general demurrer.

         On August 21, 1995, Davis was convicted of the aggravated sodomy of his minor (six-year old) biological daughter after entering a non-negotiated guilty plea to that charge in the Superior Court of Chatham County, which resulted in a sentence of ten years with two to serve in confinement. Approximately one year after Davis's conviction, OCGA § 42-1-12 was enacted, which required him to register as a sex offender.[2] Following his release from prison, Davis served the remainder of his sentence on probation until it terminated on July 15, 2005.

         At some point thereafter, Davis applied to the Board for a pardon, and on February 13, 2013, the Board granted his application. Specifically, the pardon provided:

Whereas, having investigated the facts material to the pardon application, which investigation has established to the satisfaction of the Board that [Davis] 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 pardons said individual, and it is hereby ORDERED that all disabilities under Georgia law resulting from the above stated conviction and sentence . . . are hereby removed; and ORDERED FURTHER that all civil and political rights, except the right to receive, possess, or transport in commerce a firearm . . . are hereby restored.

         Approximately one month after receiving the pardon, Davis moved to North Carolina, but he did not provide notice to the Chatham County Sheriff's Office that he was doing so. When the sheriff's office informed Davis of this failure, Davis asserted that his pardon obviated the previous requirement for him to register as a sex offender. Nevertheless, the sheriff's office obtained a warrant for Davis's arrest, and on February 26, 2014, the State charged Davis, via indictment, with failing to register as a sex offender as required by OCGA § 42-1-12.

         Subsequently, Davis filed a motion for a general demurrer, arguing that the indictment failed to charge an offense under Georgia law because, as he asserted previously, the requirement to register as a sex offender constituted a legal disability, which the Board's pardon had removed. Shortly thereafter, the State filed a response, and a few months later, the trial court held a hearing on Davis's motion, [3] which concluded with the court taking the matter under advisement. Then, on January 14, 2016, the trial court denied Davis's motion for a general demurrer, specifically finding that the requirement that Davis register as a sex offender was not a legal disability and, therefore, was not removed by the pardon. Davis then filed an application for interlocutory review, which we granted. This appeal follows.[4]

         At the outset, we note that an accused may challenge the sufficiency of an indictment by filing a general or special demurrer.[5] Specifically, a general demurrer, "challenges the sufficiency of the substance of the indictment, whereas a special demurrer challenges the sufficiency of the form of the indictment."[6] An indictment shall be deemed sufficiently technical and correct to withstand a general demurrer if it "states the offense in the terms and language of this Code or so plainly that the nature of the offense charged may easily be understood by the jury."[7] However, a demurrer to an indictment "does not reach matters not appearing on its face."[8] Indeed, a demurrer may "properly attack only defects which appear on the face of the indictment and a demurrer which seeks to add facts not so apparent but supply extrinsic matters must fail as a speaking demurrer."[9]

         In this matter, the indictment makes no reference to Davis's pardon. And in fact, Davis introduced the pardon as an exhibit during the hearing on his demurrer. Thus, Davis arguably challenged the indictment via a speaking demurrer. Nevertheless, the State did not object to the introduction of Davis's pardon during the hearing and likewise did not object generally to the method by which Davis challenged the indictment. Consequently, we find that the parties consented to the trial court's determination of whether Davis's pardon rendered insufficient the facts supporting the charge in the indictment, notwithstanding the general prohibition against speaking demurrers in criminal cases.[10] Indeed, essentially, Davis's challenge to the indictment could more accurately be characterized as a plea in bar, "which goes to bar the [S]tate's action; that is to defeat it absolutely and entirely."[11] Regardless, as is the case with a trial court's ruling on a general or special demurrer, [12] on appeal, we review the trial court's application of the law to the undisputed facts in a plea in bar de novo.[13] With these guiding principles in mind, we will now address Davis's claim of error.[14]

         Davis contends that the trial court erred in denying his motion for a general demurrer, arguing that the requirement to register as a sex offender constitutes a legal disability, which the Board's pardon of him removed, and thus, he committed no offense under Georgia law. We agree.

         As noted supra, the State charged Davis with failure to register as a sex offender in violation of OCGA § 42-1-12, specifically alleging that, having been convicted of aggravated sodomy, Davis was required to update the Sheriff of Chatham County regarding any change of residence within 72 hours prior to such change but that Davis moved from his Savannah residence without doing so. And indeed, OCGA § 42-1-12 (f) (5), in relevant part, provides that registered sex offenders shall

[u]pdate the required registration information with the sheriff of the county in which the sexual offender resides within 72 hours of any change to the required registration information. . . . If the information is the sexual offender's new address, the sexual offender shall give the information regarding the sexual offender's new address to the sheriff of the county in which the sexual offender last registered within 72 hours prior to any change of address[.]

         Here, Davis does not dispute that he moved without informing the sheriff but, rather, argues that the pardon he received from the Board obviated the previous requirement to register as a sex offender. Accordingly, we shift our focus to the Board's powers and the language of the pardon that it chose to grant Davis.

         The Constitution of the State of Georgia provides that "[t]here shall be a State Board of Pardons and Paroles which shall consist of five members appointed by the Governor, subject to confirmation by the Senate."[15] And our Constitution further provides that the Board "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."[16] Recognizing the importance of separation of powers and the Board's independence in order to effectively wield its clemency power, OCGA § 42-9-1 provides that

it is declared to be the policy of the General Assembly that the duties, powers, and functions of the State Board of Pardons and Paroles are executive in character and that, in the performance of its duties under this chapter, no other body is authorized to usurp or substitute its functions for the functions imposed by this chapter upon the board.

         And indeed, recognizing that the Board's independence similarly prohibited interference from the courts, we have held that

[a]ny attempt by a court to impose its will over the Executive Branch by attempting to impose as a part of a criminal sentence conditions operating as a prerequisite of or becoming automatically effective in the event of a subsequent parole of defendant by the State Board of Pardons and Paroles would be a nullity and constitute an exercise of power granted exclusively to the Executive Branch.[17]

         Given this constitutional mandate, our review in this matter does not-and cannot- concern the propriety of the pardon the Board granted Davis but rather only the scope of that pardon.

         The relevant regulation defines a pardon as "a declaration of record that a person is relieved from the legal consequences of a particular conviction, " which "restores civil and political rights and removes all legal disabilities resulting from the conviction."[18] And here, the pardon that the Board granted Davis-after "having investigated the facts material to the pardon application"-declares that he has "established to the satisfaction of the Board" that he is "a law-abiding citizen and is fully rehabilitated." The pardon then, "without implying innocence" of Davis's conviction for aggravated sodomy, "unconditionally pardons" him of that conviction, and orders that "all disabilities under Georgia law resulting from the above stated conviction and sentence . . . are hereby removed; and . . . all civil and political rights, except the right to receive, possess, or transport in commerce a firearm . . . are hereby restored." Nevertheless, in denying Davis's motion for a general demurrer, the trial court found that the requirement that Davis register as sex offender was merely regulatory and did not constitute a disability under the law that could be removed by the pardon. But although the trial court is correct that "sexual offender registry requirements such as those contained in OCGA § 42-1-12 are regulatory, and not punitive, in nature[, ]"[19] that does not end our inquiry unless one assumes that such regulatory requirements cannot also constitute legal disabilities. We can make no such assumption here.

         The term disability is defined, inter alia, as an "incapacity in the eye of the law, or created by law; a restriction framed to prevent any person or class of persons from sharing in duties or privileges which would otherwise be open to them; legal disqualification."[20] And in contrast to regulations such as requiring tavern owners to obtain operating licenses[21] or even weekend anglers to obtain fishing licenses, [22]"registration as a sex offender is intimately related to the criminal process in that it is an automatic result following certain criminal convictions."[23] Under OCGA § 42-1-12 (e), "[r]egistration shall be required by any individual who is convicted of certain designated criminal offenses, and we have emphasized that Georgia law makes registration mandatory for specified categories of convicted criminals."[24] Thus, unlike the majority of regulations, "our law has enmeshed criminal convictions and sex offender registration such that it is most difficult to divorce the requirement of registration from the underlying criminal conviction."[25]

         Indeed, comparing registration as a sex offender to deportation, this Court has held that it "is a drastic measure (albeit a totally understandable one) with severe ramifications for a convicted criminal."[26] A person who falls within the ambit of the sex-offender registry is "subject to lifetime registration and to the public dissemination of his name and other information identifying him as a registered sex offender."[27] A registrant must also provide-to the sheriff of the county in which the registrant resides-a significant amount of personal information, including social-security number, finger prints, address, place of employment, address of employer, and vehicle make, model, and license tag number, [28] as well as updates to that information within 72 hours of any change.[29] And the failure of a registrant to "comply with the requirements of the statute constitutes a felony offense."[30] Given that the registration statute requires one to provide law enforcement with significant details as to where one lives, where one works, and where one travels, it strains credulity to characterize compulsory registration as a sex offender as merely regulatory but not as an "incapacity" in the eyes of the law. Indeed, the ability of an American citizen to live freely without reporting to the government his or her every movement is a defining characteristic of our constitutional republic.[31] In this case, the question before us is not whether Davis is deserving of such freedom (that has already been answered by the Board), but only whether the requirement that Davis register as sex offender constitutes a legal disability that the Board's pardon obviated, and we are constrained to conclude that it is a disability and that the trial court erred in holding otherwise.[32]

         In addition to the erroneous reasoning posited by the trial court to support its denial of Davis's motion for a general demurrer, i.e., that the registration requirement does not constitute a legal disability, the State appears to also contend[33] that the Board's pardon did not absolve Davis of the responsibility to register as a sex offender because it did not explicitly state that the requirement was being removed. But this contention lacks merit unless we construe the Board's use of the phrase "all disabilities under Georgia law"[34] as meaningless. We are not at liberty to do so here.[35] Furthermore, given that the Board explicitly stated in its pardon that it was not restoring Davis's "right to receive, possess, or transport in commerce a firearm, " if the Board had wished to except the sex-offender registration requirement from the legal ...


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