Bradshaw v. State

Cedric Lavell Bradshaw was found guilty in a bench trial of failing to register as a convicted sex offender in that he had failed to provide his valid current address within 72 hours of changing his address. OCGA § 42-1-12 (f). It being his second violation of the registration law/ a mandatory sentence of life imprisonment was imposed. See OCGA § 42-1-12 (n). Prior to his bench trial, appellant filed a motion to dismiss the indictment on the ground that the mandatory sentence of life imprisonment for a second conviction of failing to register constituted cruel and unusual punishment, in violation of the Eighth Amendment to the Constitution of the United States and Article I, Section I, Paragraph XVII of the 1983 Georgia Constitution.1 2 Appellant asserts on appeal that the trial court erred when it denied his motion and sentenced him to life imprisonment after having found him guilty.3

1. The State presented evidence that appellant had been serving a sentence in the county jail for statutory rape.4 Within 72 hours of his release, appellant registered as a sex offender with the Bulloch County Sheriffs Department and listed his sister’s residence as his residential address. See OCGA § 42-1-12 (f) (2). After investigating the given address, the sheriffs department informed Bradshaw by letter that he could not live at the registered address because that residence was within 1,000 feet of a children’s recreation center. OCGA §§ 42-1-12 (a) (3); 42-1-15 (b). Bradshaw then provided his aunt’s address as his residence. The sheriffs department told him *676that address was unacceptable because it was within 1,000 feet of a church. OCGA § 42-1-15 (b). Bradshaw then provided the sheriffs department with a third address. Upon investigation six days later, the sheriffs department determined the address as given did not exist. The investigator found a nearby address which was occupied by a family friend of appellant who said appellant had inquired about living there, but was not residing there. When he could not locate appellant, the investigator contacted appellant’s sister, which resulted in appellant’s arrival at the jail where he was arrested for failing to abide by the registry law. Appellant testified he had inquired about living with the family friend but had been unable to contact the friend after their initial meeting, so he had stayed with his girlfriend while making efforts to establish contact with the friend. He did not provide the sheriffs department with his girlfriend’s address as his residence.

The evidence presented during the bench trial was sufficient for a rational trier of fact to find appellant guilty beyond a reasonable doubt of failure to register as a sex offender. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. The issue before us is the constitutionality of the mandatory sentence of life imprisonment which the trial court was required to impose upon appellant after finding him guilty of the offense.5 The Eighth Amendment to the United States Constitution is applicable to the States through the Fourteenth Amendment (Robinson v. California, 370 U. S. 660, 667 (82 SC 1417, 8 LE2d 758) (1962)), and its “protection against excessive or cruel and unusual punishments flows from the basic ‘precept of justice that punishment for (a) crime should be graduated and proportioned to (the) offense.’ [Cit.]” Kennedy v. Louisiana,_U. S._(128 SC 2641, 2649, 171 LE2d 525) (2008). The Eighth Amendment “prohibits not only barbaric punishments, but also sentences that are disproportionate to the crime committed.” Solem v. Helm, 463 U. S. 277, 284 (103 SC 3001, *67777 LE2d 637) (1983); Lambeth v. State, 257 Ga. 15,16 (354 SE2d 144) (1987) (the concept of “cruel and unusual punishment” embraces arbitrary and disproportionate sentences). The Eighth Amendment “contains a ‘narrow proportionality principle’ that ‘applies to non-capital sentences.’ [Cit.]” (Ewing v. California, 538 U. S. 11, 20 (123 SC 1179, 155 LE2d 108) (2003) (O’Connor, J., concurring)), and forbids “only extreme sentences that are ‘grossly disproportionate’ to the crime.” Harmelin v. Michigan, 501 U. S. 957, 1001 (111 SC 2680, 115 LE2d 836) (1991) (Kennedy, J., concurring).6

In order to determine whether a sentence set by the legislature is grossly disproportionate, the court initially addresses “the gravity of the offense compared to the harshness of the penalty.” Ewing v. California, supra, 538 U. S. at 28; Humphrey v. Wilson, supra, 282 Ga. at 525. If a threshold inference of gross disproportionality is raised, and it is “the rare case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality” (Harmelin, supra, 501 U. S. at 1005), the court then determines whether the inference of gross disproportion-ality is confirmed by a comparison of the defendant’s sentence to sentences imposed for other crimes within Georgia and for the same crime in other jurisdictions. Id. The U. S. Supreme Court has observed that there are “some common principles that give content to the uses and limits of proportionality review.” Harmelin, supra, 501 U. S. at 998 (Kennedy, J., concurring).

The first principle acknowledges that the fixing of penalties and prison sentences for specific crimes “involves a substantive penological judgment that, as a general matter, is properly within the province of legislatures, not courts.” [Id.] The second principle recognizes that the Eighth Amendment does not mandate the adoption of any particular penological philosophy [e.g., goals of retribution, deter-

*678rence, incapacitation, and rehabilitation] [id., 501 U. S. at 999]. The third principle is an understanding that “marked divergences both in underlying theories of sentences and in the length of prescribed prison terms are the inevitable, often beneficial, result of the federal structure.” [Id.] Finally, the fourth principle is a belief that, to the maximum extent possible, proportionality review should be guided by “objective factors,” including the framework established in Solem [v. Helm]. [Id., 501 U. S. at 1000.]

Crosby v. State, 824 A2d 894, 905-906 (Del. 2003).

(a) Citing the recognition in Humphrey v. Wilson, supra, 282 Ga. at 527, that the most “recent legislative enactments constitute the most objective evidence of a society’s evolving standards of decency and how a society views a particular punishment,” the State points out that the version of the statute at issue contains the latest legislative view, having been enacted in 2006. In Humphrey, this Court described the most recent legislative action, which modified the mandatory sentence imposed on the defendant after the defendant was sentenced, as a legislative determination that the sentence earlier imposed was grossly disproportionate to the crime committed by the defendant. Id. at 528-529. In contrast, in the case at bar, it is the legislature’s most recent enactment that stands charged as imposing a sentence that is grossly disproportionate. The suggestion that in all cases the most recent legislative pronouncement on punishment is evidence of an evolving standard of decency that supports a determination that the punishment contained therein is not grossly disproportionate leads to the anomalous result that, as a matter of law, the most recent legislative pronouncement does not impose cruel and unusual punishment. While a statute is presumed constitutional unless it manifestly infringes upon a constitutional provision or violates the rights of the people,

[t]he mere fact that the Legislature has spoken on the issue of the [sentence to be imposed for a particular crime] does not preclude or in any manner limit this Court’s evaluation of the [sentence] to determine whether it comports with the constitutional prohibition against cruel and unusual punishment.

Dawson v. State, 274 Ga. 327, 328 (2) (554 SE2d 137) (2001). We reiterate the observation we recently made in Terry v. Hamrick, 284 Ga. 24, 28 (663 SE2d 24) (2008), and decline “to engraft onto every statutory change enacted by the General Assembly an interpretation that the legislature is thus making a pronouncement of constitutional magnitude.”

*679(b) With the Supreme Court’s principles in mind, we begin our assessment of the gravity of appellant’s crime, his failure to give a valid current address within 72 hours of having settled in a new residence. We examine “the harm caused or threatened to the victim or society, and the culpability of the offender[,]” noting that “nonviolent crimes are less serious than crimes marked by violence or the threat of violence.” Solem v. Helm, supra, 463 U. S. at 292-293. We also take into account “[t]he absolute magnitude of the crime. ...” Id. at 293. In enacting the 2006 version of the statute that sets out the sexual offender registry, the General Assembly declared that registration of sexual offenders was necessary to protect the public, described the sexual offender registry as a “requirement that complete and accurate information be maintained and accessible for use by law enforcement authorities, communities, and the public[,]” and observed that “[t]he designation of a person as a sexual offender . . . [is] simply a regulatory mechanism and status resulting from the conviction of certain crimes.” Ga. L. 2006, p. 379, § 1. The failure to update information on the sexual offender registry, itself involving “neither violence nor threat of violence to any person[,]” is a “passive felony” (Solem v. Helm, supra, 463 U. S. at 296) that neither caused nor threatened to cause harm to society. The facts of appellant’s case accentuate the passivity of his failure to register his current address inasmuch as his failure was preceded by his registration of two addresses of relatives that were rejected by the sheriffs department as being in violation of the distance requirements of the sex offender registry law, and by appellant’s voluntary appearance at the jail within 24 hours of an investigator having informed appellant’s sister (the occupant of his first rejected registered address) that he needed to get in touch with appellant. Thus, despite appellant’s failure to register his current address, he was readily accessible to police upon their visit to the address where he initially planned to live upon his release from jail.

(c) In examining the sentence imposed on appellant, we note that a sentence of life imprisonment is the third most severe penalty permitted by law, exceeded in severity only by capital punishment and life imprisonment without the possibility of parole. Life imprisonment is the most severe sentence that can be imposed for a crime that does not involve murder or recidivist punishment for a serious violent felony.7 See OCGA § 17-10-7 (b). The State maintains we should treat appellant’s sentence of life imprisonment as one for a *680term of seven years since appellant would be eligible for consideration for release on parole after having served seven years of his life sentence. See OCGA § 42-9-45 (b), (f). We disagree. In Georgia, it is the Board of Pardons and Paroles that is constitutionally vested with the power to grant parole, and the power to make parole decisions is discretionary. Daker v. Ray, 275 Ga. 205 (2) (563 SE2d 429) (2002). While the General Assembly has required the Board to establish and use a parole guidelines system (OCGA §§ 42-9-40 (a); 42-9-42 (c)),

nothing in the applicable statutes mandates that the guidelines control the final parole decision.. . . [T]he ultimate grant or denial of parole to a prisoner who is eligible under the guidelines remains a discretionary matter for the Board ... in that the Board expressly reserved its discretion to deviate from the recommended parole date derived therefrom.

Id. Thus, appellant’s “inability to enforce any ‘right’ to parole precludes us from treating his life sentence as if it were equivalent to a sentence of [seven] years.” Rummel v. Estelle, 445 U. S. 263, 280 (100 SC 1133, 63 LE2d 382) (1980).8

Based on the foregoing factors, we conclude that the threshold inference of gross disproportionality is raised by the imposition of a mandatory sentence of life imprisonment for appellant’s second failure to amend his sex offender registration by providing his valid current address to the sheriffs department. Consequently, we next determine whether the inference of gross disproportionality is confirmed by a comparison of the defendant’s sentence to sentences imposed for other crimes within Georgia (intra-jurisdictional proportionality analysis) and for the same crime in other jurisdictions (inter-jurisdictional proportionality analysis). See Harmelin v. Michigan, supra, 501 U. S. at 1004-1005.

3. A guilty defendant in Georgia must be sentenced to life imprisonment only in a narrow set of circumstances. A mandatory life sentence is the minimum sentence that may be imposed for the crimes of murder (OCGA § 16-5-1 (d)) and feticide (OCGA § 16-5-80 *681(c)). Life imprisonment is the only punishment available for the crimes of hijacking an aircraft (OCGA § 16-5-44 (c)) and kidnapping for ransom or kidnapping with bodily injury not resulting in death. OCGA § 16-5-40 (b) (3), (4). A sentence of life imprisonment is mandated for lesser crimes when the defendant is sentenced as a recidivist after having committed a serious violent felony (see fn. 7, supra) or hijacking a motor vehicle (OCGA § 16-5-44.1), for being convicted for the second time of possessing or using certain firearms during the attempt to commit or the commission of certain crimes, or for wearing a bullet-proof vest during the attempt to commit or the commission of certain crimes. OCGA § 16-11-180 (c). All of these crimes are violent, more disruptive of society, and require manifestly more culpability of a defendant than the failure of a registered sex offender to make authorities aware of a recent change in address. Likewise, more violent crimes than the failure to register result in lesser punishment than life imprisonment. A person who commits voluntary manslaughter (OCGA § 16-5-2 (b)); aggravated assault with intent to murder, rape, or rob (OCGA § 16-5-21 (b)); or aggravated battery (OCGA § 16-5-24 (b)) may receive a sentence of as little as one year, and one who is convicted of attempting to commit a violent injury on another receives misdemeanor punishment. OCGA § 16-5-20. “The fact that these more culpable offenders may receive a significantly smaller or similar sentence buttresses our initial judgment that [appellant’s] sentence is grossly disproportionate to his crime.” Humphrey v. Wilson, supra, 282 Ga. at 531. The intra-jurisdictional proportionality analysis confirms the inference of disproportionality.

4. Finally, we turn to the inter-jurisdictional proportionality analysis in which we compare appellant’s sentence of life imprisonment to sentences imposed in other states for the same conduct. Harmelin v. Michigan, supra, 501 U. S. at 1005.

Every state has enacted a statute punishing the failure to register as a sex offender, but no state other than Georgia imposes a punishment of life imprisonment for a second infraction. Twenty-four states (including Georgia) have statutes that specify punishment for a second conviction for failing to register or maintain one’s sex offender registration. Of the other 23 states, one authorizes maximum punishment of imprisonment for less than a year for the second offense (Tennessee: 180 days); one authorizes a maximum sentence of one year imprisonment (South Carolina); another authorizes a maximum sentence of less than two years (Ohio: 6-18 months); 11 states provide maximum punishment of up to five years’ imprisonment (New Mexico (3 years); Virginia and West Virginia (1-5 years); Minnesota (2-5 years); Missouri (up to 4 years); Maine (3-5 years); Iowa, Maryland, Massachusetts, South Dakota, Vermont *682(up to 5 years)); six states provide maximum punishment of between 5 and 10 years’ imprisonment for the second offense (Illinois (3-7 years); Indiana (2-8 years); Kentucky (5-10 years); Michigan (up to 7 years); Texas (2-10 years); Wyoming (up to 10 years)); two states authorize maximum punishment in excess of 10 years’ imprisonment (Louisiana (5-20 years); Nebraska (1-20 years)), and New Hampshire authorizes a minimum sentence of seven years. Of the 25 states that provide a single penalty regardless of the number of previous convictions for failure to register, the maximum punishment is less than a year in Alaska and Wisconsin; the maximum penalty is between one and five years in 15 states (Arizona (6-18 months); Delaware (up to 2 years); California (up to 3 years); Colorado (1-3 years); North Dakota (90 days - 5 years); Connecticut and Kansas (1-5 years); New Jersey (3-5 years); and Florida, Hawaii, Mississippi, Montana, Oklahoma, Ohio, Washington (up to 5 years)). Seven states provide for a maximum punishment of between five and ten years’ imprisonment (Alabama (1 yr., 1 day -10 years); Arkansas (3-10 years); Nevada (1-6 years); New York (up to 7 years); Idaho, Pennsylvania, Rhode Island (up to 10 years). Utah authorizes a minimum sentence of 90 days.9

Based on this review, Georgia’s mandatory punishment of life imprisonment is the clear outlier, providing the harshest penalty and providing no sentencing discretion. This gross disparity between Georgia’s sentencing scheme and those of the other states reinforces *683the inference that the appellant’s crime and sentence are grossly disproportionate.

We conclude that the imposition of a sentence of life imprisonment is so harsh in comparison to the crime for which it was imposed that it is unconstitutional.10 However, the unconstitutionality of the sentence does not require the trial court to dismiss the indictment charging appellant with failure to register as a sex offender. Consequently, the judgment of conviction is affirmed and the case is remanded to the trial court with direction to vacate the sentence of life imprisonment and resentence appellant.

Judgment affirmed, sentence vacated, and case remanded with direction.