☢ test - Í

stepdaughter while she was in the nude was by its nature a sexual offense against a minor or criminal sexual conduct toward a minor.” Jefferson v. State, 308 Ga.App. 549, 707 S.E.2d 496 (February 11, 2011). Trial court properly dismissed defendant’s petition to be relieved of registering as a sex offender under OCGA § 42-1-12 et seq., for lack of jurisdiction. Defendant was convicted of aggravated assault with intent to rape in Dekalb Superior Court. Defendant contends that jurisdiction of his petition lies in Dekalb under OCGA § 42-1-12(g) as the “jurisdiction in which the sexual offender is registered,” however the trial court correctly noted that defendant isn’t registered, in Dekalb or elsewhere. Subsequent to filing of defendant’s petition, the law was modified to allow filing of the petition “in the superior court of the jurisdiction in which the defendant was convicted” under OCGA § 42-1-19(b)(1), effective May 20, 2010; but Court of Appeals rules that defendant can’t avail himself of this provision since “Jefferson contends he was never required to register,” although the State has issued a warrant for him for failure to register. “Jefferson appears to have at least three options: register and then file a motion under OCGA § 42-1-12(g) in the Superior Court of DeKalb County; raise the need to register as a defense to the charge of failure to register, Thomas v. Warren, 284 Ga. 788, 789-790 (671 S.E.2d 837) (2009); or file a motion to vacate an illegal sentence. See, e.g., Jackson v. State, 299 Ga.App. 356 (683 S.E.2d 60) (2009).” Wiggins v. State, 288 Ga. 169, 702 S.E.2d 865 (November 8, 2010). Sex offender registration statute isn’t unconstitutionally vague for failure to define what offenses are covered, or terms such as “in the nature of” and “sexual offense.” “ ‘When the phrase challenged as vague has a commonly understood meaning, then it is sufficiently definite to satisfy due process requirements.’ Dunn v. State , 286 Ga. 238(1), 686 S.E.2d 772 (2009). ‘Where, as here, the challenged statute does not involve First Amendment freedoms, it is examined in the light of the facts of the case at hand. [Cits.]’ Baker v. State , [280 Ga. 822, 823, 633 S.E.2d 541 (2006).] It is commonly understood by persons of ‘common intelligence’ that criminal conduct which is a sexual offense is, at a minimum, criminal conduct which involves genitalia. Inasmuch as the offense of cruelty to children for which appellant was convicted is found in Title 16 of the Official Code of Georgia and appellant’s conduct that led to his conviction – requiring his victim to touch his penis and requiring her to permit him to touch her breast – is a sexual offense, the statute is not unconstitutionally vague.” In re: White, 306 Ga.App. 365, 702 S.E.2d 694 (October 6, 2010). Trial court properly denied defendant’s “petition for release from the requirement that he register as a sexual offender for life.” 1. Defendant could petition for release pursuant to OCGA § 42-1-12 although he wasn’t sentenced under “OCGA § 17-10-6.2 as the statute allowing the petition requires. But OCGA § 42-1-12 became effective on July 1, 2006, years after White was sentenced, and thus he could not have met the literal requirement that he be sentenced under that statute. This Court has held that a defendant sentenced before the effective date of OCGA § 17-10-6.2 may still petition the court for removal from the sex offender registry if he were sentenced to less than the mandatory minimum sentences of confinement for the eligible offense, even though his sentence did not cite OCGA § 17-10-6.2. Miller v. State, 291 Ga.App. 478, 480-481 (662 S.E.2d 261) (2008). “To construe [OCGA § 42-1-12(g)(2)] otherwise would plainly contravene its objective to provide petitioners a basis for seeking relief from the continuing duty to register as sexual offenders.” Id. at 481. Accordingly, the trial court did not err in determining that White met the requirement of OCGA § 42-1-12(g)(2)(A) (2009).” 2. “ Under the pre-2010 version of OCGA § 42-1-12, a successful petitioner must show two things: First, he must show that he was sentenced pursuant to OCGA § 17-10-6.2(c), which allows the trial court to deviate from the mandatory minimum sentences for specified sexual offenses if the offender meets certain criteria. Second, the petitioner must show that ten years had elapsed from the date of his release from ‘prison, parole, supervised release, or probation.’ OCGA § 42-1-12(g)(2).” Contrary to defendant’s contention, his release from Probation Detention Center didn’t start the ten year period running. “Because White was not released from ‘prison’ in 1999, the ten-year waiting period did not begin to run from that date but rather, began running in 2005, the date he was released from probation.” Notes that 2010 revision to statute “specifies that ten years must elapse ‘since the individual completed all prison, parole, supervised release, and probation for the offense which required registration’ before a petitioner may be released from the registration requirement.” Taylor v. State, 304 Ga.App. 878, 698 S.E.2d 384 (July 8, 2010). Trial court erred by denying defendant’s motion to withdraw guilty plea to child molestation; counsel’s failure to advise defendant of sex offender registry requirements attendant to plea was deficient representation. Applying Padilla v. Kentucky , 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (March 31, 2010). Trial court found that sex offender registration was a collateral consequence of defendant’s plea; Supreme Court in Padilla “noted that it had ‘never applied a distinction between direct and collateral consequences to define the scope of constitutionally reasonable professional assistance under Strickland.’ (Citation and punctuation omitted.) [Id.]. The Court went on to conclude that even if deportation is a collateral consequence of a guilty plea, the failure to advise a client of the risk of deportation in pleading guilty constitutes deficient performance, given the ‘unique

Made with FlippingBook Ebook Creator