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Apr 24 16

John Breakfield for State Court Judge

by merlin

Although this site is largely informational by design, I ran into my friend, John Breakfield, yesterday afternoon, and wanted to say something on his behalf, as he is running for State Court Judge in Hall County, Georgia.  Based on my own experiences with him, I find him to have a strong sense of fairness and an agile mind, and I think he would make a good judge.  I seldom practice in that Court, but I would be comfortable that Justice was being administered there.

BreakfieldLogo

Apr 22 16

Heavily-Redacted Form Brief in Support of Motion for Default Judgment (Georgia Sex Offender Registry Removal)

by merlin

This is heavily redacted, and I have discovered a few grammatical errors.  I believe in the basic idea, though, and I encourage other attorneys to examine this route.

___________________________________________________________

BRIEF IN SUPPORT OF MOTION FOR DEFAULT JUDGMENT

            COMES NOW Petitioner XXXX XXXXX, by and through undersigned counsel, and makes and files this, his Brief in Support of Motion for Default Judgment as a supplement to the Motion for Default Judgment filed concurrently with this, more particularly laying out the specific reasons why he is entitled to judgment by default in the case at bar, and in support thereof states the following:

Questions Presented

  • May default judgment be granted in response to a Petition for Removal from the Georgia Sex Offender Registry?
  • Is it appropriate to grant removal from the Georgia Sex Offender Registry by default judgment to XXXX XXXXX? 

Short Answers

            There are no procedural bars provided by the statutory or case law preventing a grant of default judgment in favor of a person seeking removal from the requirements of the Georgia Sex Offender Registry (hereinafter referred to as “the Registry”), and this method is appropriate in the case of XXXX XXXXX; no defensive pleadings of any kind were made by the State of Georgia to his Petition in the case at bar, and he has met the conditions placed on his release from the Registry by the Superior Court.

Relevant Procedural History

            On XXXXX XX, 20XX, XXXX XXXXX filed and served his Petition for Removal From the Sex Offender Registry.  This petition was served pursuant to Section 42-1-19(b)(2) of the Official Code of Georgia, which reads as follows: “Such petition  shall be served on the district attorney of the jurisdiction where the petition  is filed, the sheriff of the county where the petition  is filed, and the sheriff of the county where the individual resides. Service on the district attorney and sheriff may be had by mailing a copy of the petition with a proper certificate of service.”  There have been absolutely no responsive pleadings made by any other person or entity since the date of filing and service.

Argument and Citation to Legal Authority

I.   DEFAULT JUDGMENT IS THE PROPER PROCEDURAL VEHICLE FOR THE RELIEF SOUGHT.

       “The sex offender registry requirement is regulatory and not punitive in nature. See Smith v. Doe, 538 U.S. 84, 99 (II)(B), 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003); Rainer v. State of Ga., 286 Ga. 675, 676, 690 S.E.2d 827 (2010) (“the [sex offender] registration requirements themselves do not constitute punishment….”).”  Wiggins v. State, 288 Ga. 169, 172 (2010).  In fact, the Sex Offender Registry itself is civil in nature.  Taylor v. State, 304 Ga. App. 878, 883 (Ga. Ct. App. 2010).  Section 9-11-1 of the Official Code of Georgia states that “[t]his chapter governs the procedure in all courts of record of this state in all actions of a civil nature whether cognizable as cases at law or in equity, with the exceptions stated in Code Section 9-11-81.”  Section 9-11-81 does not exclude this procedural mechanism from those actions that are governed by the Civil Practice Act.  Default Judgment is a procedural mechanism embraced by Section 9-11-55 of the Official Code of Georgia, and therefore falls under the provisions of the Civil Practice Act.

       According to Section 9-11-55(a), “[i]f in any case an answer has not been filed within the time required by this chapter, the case shall automatically become in default”.  That section further states that “the plaintiff at any time thereafter shall be entitled to verdict and judgment by default, in open court or in chambers, as if every item and paragraph of the complaint or other original pleading were supported by proper evidence…”  This statement leaves little room for interpretation.

      There are exceptions to default judgment built into the statute itself, such as a statutory time period involved, a “grace period” prior to which a default judgment may be opened for good cause, or evidence that places damages in issue.  However, “[t]he plain language of that Code section “entitles” a plaintiff to default judgment where, as here, a defendant has failed to serve an answer timely, 15 days have elapsed from the time an answer was due without an answer served and costs paid, the defaulting defendant has made no attempt to open the default, and the action does not fall within any of the exceptions set forth in that Code section.”  SRM Realty Services Group, LLC v. Capital Flooring Enterprises, Inc., 274 Ga.App. 595, 604 (Ga.App. 2005).  In the case at bar, damages have never been requested or considered; Petitioner’s only request has been removal from the Registry.

II.  THE PURPOSES OF BOTH OCGA §§ 9-11-55 AND 42-1-19 ARE SERVED BY RELEASE OF PETITIONER FROM THE REGISTRY.

       Section 42-1-19(c)(2)(B) of the Official Code of Georgia requires that a person be given a Risk Assessment Classification by the Sexual Offender Registration and Review Board prior to any consideration of release from the Registry.  Section 42-1-14(a)(1) states that “The board shall determine the likelihood that a sexual offender will engage in another crime against a victim who is a minor or a dangerous sexual offense.”  OCGA Section 42-1-12(a)(12) defines a Level I Risk Assessment Classification as meaning “a low sex offense risk and low recidivism risk for future sexual offenses.”

    Section 9-11-54(c)(1) reads as follows, and it indicates that default judgment is exactly appropriate in this circumstance:

“A judgment by default shall not be different in kind from or exceed in amount that prayed for in the demand for judgment. Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings; but the court shall not give the successful party relief, though he may be entitled to it, where the propriety of the relief was not litigated and the opposing party had no opportunity to assert defenses to such relief.”

            Default Judgment as a procedural mechanism should serve its purpose now.

Conclusion

       Though the area of law which releases from the Georgia Sex Offender Registry occupy is uncertain and fraught with obstacles and complications, it is certainly civil in nature.  Taylor, 304 Ga. App. at 883.  As such, it is susceptible to civil law methodology.  The complete lack of any response or acknowledgment of any kind by the Office of the District Attorney or the State of Georgia to the request of XXXX XXXXX for removal from the registration, employment, and residency restrictions arising from his inclusion on the Georgia Sex Offender Registry entitle him under the provisions of the Civil Practice Act to default judgment on the issue and closure of this chapter of his life.

This XXst day of XXXXX, 20XX.

Apr 21 16

Heavily-Redacted Form Motion for Default Judgment (Georgia Sex Offender Registry)

by merlin

I had an idea about the Georgia Sex Offender Registry, and today I took a step toward realizing the idea.  I simply have not seen it done blatantly elsewhere.  In many places, I see the burden of civil law cases – a preponderance of the evidence – discussed, and the cases tend to recognize that the Sex Offender Registry is a civil penalty, and not a criminal penalty.  However, it occurred to me that it should logically be subject to the civil remedy of default judgment.  Today, after considerable research into the possible impediments to that, I made and filed a motion for default judgment and a supporting brief on behalf of a qualified client.

The form for a Motion for Default Judgment which I set out below is heavily redacted, but I encourage others to pursue this line of thought.  I intend to post the redacted form supporting brief tomorrow.  I am afraid that, while redacting this to post it, I discovered so many spelling and grammatical errors in the motion I submitted today that I would rather take them in two steps.  However, the thought that underlies it is valid, as far as I can tell.   Please make good use of this!

IN THE SUPERIOR COURT OF XXXXX COUNTY

STATE OF GEORGIA

XXXXX XXXXX,                                       §

                   Petitioner,                                 §        CIVIL ACTION

            v.                                                           §        CASE NO. XXXX CV XXXX

STATE OF GEORGIA,                                §

                   Respondent.                               §

 

MOTION FOR DEFAULT JUDGMENT

 

         COMES NOW Petitioner XXXX XXXXX, by and through undersigned counsel, and makes and files this, his Motion for Default Judgment, again respectfully petitioning this honorable Court to release him from the registration, employment, and residency restrictions of the Georgia Sex Offender, and having waited the requisite forty-five days after service to make said motion and seeking relief as provided for by the Civil Practice Act and the Official Code of Georgia, in support thereof states the following:

1.

            The standards for granting a default judgment are laid out in Section 9-11-55(a) of the Official Code of Georgia.  According to that Code section, “[i]f in any case an answer has not been filed within the time required by this chapter, the case shall automatically become in default”.  That section further states that “the plaintiff at any time thereafter shall be entitled to verdict and judgment by default, in open court or in chambers, as if every item and paragraph of the complaint or other original pleading were supported by proper evidence, without the intervention of a jury”.

2.

            The only conditions made on said judgment by the law is a time limit standard.  An answer must be made within the time provided by law for said answer – thirty (30) days – and fifteen (15) days remain after that limit before a judgment can automatically be granted by default.   Petitioner initially filed his Petition for Removal from the Sex Offender Registry on XXXXX XX, 20XX.  54 (Fifty-Four) days have passed since the document was filed.  There has been no dispute regarding whether it was properly served and filed; in fact, there has been no defensive pleading filed by the State even acknowledging this action.

3.

            Petitioner is entitled to judgment by default under the express provisions of the Civil Practice Act, and specifically under the terms of Section 9-11-55(a) of the Official Code of Georgia, “as if every item and paragraph of the complaint or other original pleading were supported by proper evidence”.

            WHEREFORE, Petitioner requests the following relief:

(a)     That he be found by a preponderance of the evidence to not pose a substantial risk of perpetrating any future dangerous sexual offense;

(b)       That an Order be issued removing him from registration and registry requirements from the Sex Offender Registry maintained by the State, and any equivalents thereto, including federal equivalents;

(c)       That a copy of said Order releasing Petitioner from any requirements or restrictions be given to the Sheriff of XXXXX County, Georgia, to the Department of Corrections, and to the Georgia Bureau of Investigation;

(d)     That the Court expressly rule on the Constitutionality of Petitioner’s continued inclusion on the Georgia Sex Offender Registry as a merited and proportionally appropriate condition of the guilty plea entered by him; and

(e)       For such other and further relief as the Court in its discretion deems fit to grant.

 

Apr 20 16

Default Judgments in Georgia (In General)

by merlin

The mechanism for the grant of a judgment by default in Georgia is laid out in Section 9-11-55 of the Official Code of Georgia:

(a) When case in default; opening as matter of right; judgment. If in any case an answer has not been filed within the time required by this chapter, the case shall automatically become in default unless the time for filing the answer has been extended as provided by law. The default may be opened as a matter of right by the filing of such defenses within 15 days of the day of default, upon the payment of costs. If the case is still in default after the expiration of the period of 15 days, the plaintiff at any time thereafter shall be entitled to verdict and judgment by default, in open court or in chambers, as if every item and paragraph of the complaint or other original pleading were supported by proper evidence, without the intervention of a jury, unless the action is one ex delicto or involves unliquidated damages, in which event the plaintiff shall be required to introduce evidence and establish the amount of damages before the court without a jury, with the right of the defendant to introduce evidence as to damages and the right of either to move for a new trial in respect of such damages; provided, however, in the event a defendant, though in default, has placed damages in issue by filing a pleading raising such issue, either party shall be entitled, upon demand, to a jury trial of the issue as to damages. An action based upon open account shall not be considered one for unliquidated damages within the meaning of this Code section.

(b) Opening default. At any time before final judgment, the court, in its discretion, upon payment of costs, may allow the default to be opened for providential cause preventing the filing of required pleadings or for excusable neglect or where the judge, from all the facts, shall determine that a proper case has been made for the default to be opened, on terms to be fixed by the court. In order to allow the default to be thus opened, the showing shall be made under oath, shall set up a meritorious defense, shall offer to plead instanter, and shall announce ready to proceed with the trial.

The procedural circumstances surrounding a judgment by default come with a few formalities, including the inclusion of what is called a Certificate of Default.  Its contents are governed in Georgia by Uniform Superior Court Rule 15.  That Court Rule reads as follows:

“The party seeking entry of a default judgment in any action shall certify to the court the following: the date and type of service effected; that proof of service was filed with the court within 5 business days of the service date, or, if not filed within 5 business days of the service date, the date on which proof of service was filed; that no defensive pleading has been filed by the defendant as shown by court records; and the defendant’s military status, if required. This certificate shall be in writing and must be attached to the proposed default judgment when presented to the judge for signature.”

The importance of this Certificate is not supreme, however, and its limits have been explored in the caselaw.  Williams v. Contemporary Services Corp. et al., A13A1464, heard by the Court of Appeals of Georgia on November 13, 2013, holds generally that this Certificate of Default specified by USCR 15 is not a matter of life or death, so long as the information it contains appears on the record, and that in such a case, the failure to include it does not constitute such a nonamendable defect as would entitle a party to reopen a default judgment.  The case is as follow:

        FIRST DIVISION
PHIPPS, C. J.,
ELLINGTON, P. J., and BRANCH, J.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed.

        Branch, Judge.

        Nora Williams appeals the trial court’s decisions to set aside a default judgment and to open default in favor of Contemporary Services Corporation (“Contemporary”). For the reasons stated below, we reverse.

        The record shows that Williams filed her complaint for damages on March 3, 2010; that Williams caused Contemporary’s registered agent in Georgia to be served on March 11, 2010; that on June 3, 2010, Williams filed proof of service of process; and that as of June 30, 2010, Contemporary had failed to answer. On June 30, 2010, the trial court issued a rule nisi for a hearing to be held on August 13, 2010, and on that day the trial court held a hearing and a bench trial on damages, following which it entered a  judgment by default in the amount of $85,000 plus interest.1

        On October 20, 2010, Contemporary filed a motion to set aside the judgment and to open default, as well as a certificate of counsel, supporting affidavits, and a proposed answer. Eight months later, on June 21, 2011, the trial court granted Contemporary’s motion, set aside default judgment, and opened default. On June 27, 2011, Contemporary filed its answer and paid the costs to open default. Williams thereafter moved for reconsideration, but the court denied the motion.

        The case proceeded to a bench trial. Following opening arguments, Williams rested her case without introducing evidence. Contemporary moved for a judgment on the grounds that Williams failed to introduce any evidence and failed to prosecute the case. The trial court directed a verdict in favor of Contemporary and subsequently entered a final judgment in favor of Contemporary on August 22, 2012. Williams filed a notice of appeal from this judgment on August 30, 2012.

  1. Williams contends the trial court erred by setting aside the default judgment. “A trial court’s decision regarding a motion to set aside a judgment will not be reversed absent a showing of manifest abuse of discretion.” (Citation omitted.)Kent v. State Farm Mut. Auto. Ins. Co., 233 Ga. App. 564, 566 (2) (504 SE2d 710) (1998).

        Outside of the term of court in which a judgment has been entered,2 it may be set aside only for one of three reasons:

(1) Lack of jurisdiction over the person or the subject matter; (2) Fraud, accident, or mistake or the acts of the adverse party unmixed with the negligence or fault of the movant; or (3) A nonamendable defect which appears upon the face of the record or pleadings.

OCGA § 9-11-60 (d); The Pantry v. Harris, 271 Ga. App. 346, 347 (2) (609 SE2d 692) (2005) (“the first and essential step against any final  judgment, including a default judgment, is a motion to set aside the  judgment under OCGA § 9-11-60 (d)”). In this case, the trial court set aside the default judgment on the ground that a nonamendable defect appeared on the face of the record in that “[h]aving reviewed the record, it appears that no Certificate of Default was ever filed by Plaintiff” in compliance with Uniform Superior Court Rule (“USCR”) 15.3 Williams contends this ruling was error. We agree.4

        In attempting to secure a default judgment, Williams was required by USCR 15 to “certify to the court” in writing two items of information: the date and type of service effected on Contemporary and that the court records show no defensive pleading had been filed. The rule provides that the certificate “must be attached to the proposed default judgment when presented to the judge for signature.” The plain terms of the rule show that the certificate is intended to assure the judge who has received a proposed default judgment that the defendant was in fact served and in fact failed to answer, information already available in the record.5 In fact, in the Rule Nisi issued by the trial court, the judge “noted” that service had been perfected but that no answer had been filed. Based on the apparent purpose of Rule 15 and the fact that the same information required in the Rule 15 certificate can be found in the record, we conclude that the failure to file a Rule 15 certificate is not a nonamendable defect in the record sufficient to authorize the trial court to set aside a default judgment under OCGA § 9-11-60 (d).6 Cf. Hardeman, 214 Ga. App. at 485 (failure to notify trial court pursuant to USCR 4.8 that action was a renewed action was not a nonamendable defect appearing on the face of the record under OCGA § 9-11-60 (d) (3)) (physical precedent only). Compare SRM Realty Servs. Group v. Capital Flooring Enterprises, 274 Ga. App. 595, 604-605 (3) (617 SE2d 581) (2005) (holding that Rule 15 certificate at issue satisfied the requirements of that rule but not addressing whether a complete failure to file a Rule 15 certificate constitutes a nonamendable defect in the record).

        Moreover, the Civil Practice Act provides that when the defendant has not filed a timely answer, “the case shall automatically become in default ” and if the case is still in default after the expiration of the statutory period of 15 days for opening default as a matter of right, “the plaintiff at any time thereafter shall be entitled to verdict and  judgment by default, in open court or in chambers . . . unless the action is one ex delicto or involves unliquidated damages.” OCGA § 9-11-55 (a) (emphasis supplied). See, e.g., H. N. Real Estate Group v. Dixon, 298 Ga. App. 124, 126 (679 SE2d 130) (2009) (where defendant did not answer and did not move to open the default within the statutory time period, plaintiff “was entitled to verdict and  judgment it its favor”) (citation omitted); Lewis v. Waller, 282 Ga. App. 8, 11 (1) (a) (637 SE2d 505) (2006) (trial court erred in failing to grant default judgment where defendant failed to answer or open default within 15 days thereafter). As stated by this Court,

The plain language of [OCGA § 9-11-55] “entitles” a plaintiff default judgment where, as here, a defendant has failed to serve an answer timely, 15 days have elapsed from the time an answer was due without an answer served and costs paid, the defaulting defendant has made no attempt to open the default, and the action does not fall within any of the exceptions set forth in that Code section.

SRM Realty, 274 Ga. App. at 604 (2).

        And when court rules conflict with statutory law or case law, the court rules must yield to substantive law. See USCR, Preamble (“It is not the intention, nor shall it be the effect, of these rules to conflict with the Constitution or substantive law, either per se or in individual actions and these rules shall be so construed and in case of conflict shall yield to substantive law.”). See also Russell v. Russell, 257 Ga. 177 (356 SE2d 884) (1987) (case law precedent controlled over provisions of USCR 24.6 (D)); Wyse v. Potamkin Chrysler-Plymouth, 189 Ga. App. 64, 65 (1) (374 SE2d 785) (1988) (provisions of USCR 6.2 must yield to provisions of OCGA § 9-11-56 (c)).

        Because Contemporary failed to establish the presence of a nonamendable defect on the face of the record, the trial court abused its discretion by granting Contemporary’s motion to set aside the default judgment, and we therefore reverse. See, e.g., H. N. Real Estate, 298 Ga. App. at 126. Because the trial court erred by setting aside the default judgment, we need not reach Williams’s remaining enumerations of error, including that the trial court erred by opening default for Contemporary under OCGA § 9-11-55.

        Judgment reversed. Phipps, C. J., and Ellington, P. J., concur.

Notes:

  1. The judgment explains that at the hearing, the court heard evidence regarding Williams’s unliquidated damages.
  2. See Bridgestone/Firestone North American Tire v. Jenkins, 261 Ga. App. 20, 21 (2) (582 SE2d 9) (2003) (“[A] court may exercise its discretion for meritorious reasons to set aside a  judgment within the same term of court. . . . Once that term of court has ended, however, a  judgment may only be set aside under the procedures in OCGA § 9-11-60 (d).”) (citations omitted). Here, Contemporary filed its motion to set aside the  judgment outside of the term in which the default judgment was entered.
  3. The party seeking entry of a default judgment in any action shall certify to the court the date and type of service effected and that no defensive pleading has been filed by the defendant as shown by court records. This certificate shall be in writing and must be attached to the proposed default judgment when presented to the judge for signature.      Uniform Superior Court Rule 15.
  4. In the trial court, Contemporary moved to set aside the judgment on the second and third bases of OCGA § 9-11-60 (d): fraud/accident/mistake; and nonamendable defect in the record. Contemporary never argued that the trial court lacked jurisdiction over Contemporary. On appeal, Contemporary has abandoned its argument based on OCGA § 9-11-60 (d) (2) (fraud/accident/mistake). Thus the only issue on appeal regarding the trial court’s decision to set aside the default judgment is whether there was a nonamendable defect in the record. And “[t]he alleged nonamendable defect must be apparent from the face of the record in the absence of the additional evidence.” (Citation omitted.) Hardeman v. Roberts, 214 Ga. App. 484, 485 (448 SE2d 254) (1994).
  5. See OCGA § 9-11-4 (h) (“The person serving the process shall make proof of such service with the court in the county in which the action is pending within five business days of the service date.”).
  6. By our holding, we do not mean to suggest that Rule 15 should be ignored; rather, parties and their counsel should abide by its terms. We hold only that where the information required by Rule 15 is found in the record, the failure to provide a Rule 15 certificate in connection with a proposed default judgment does not constitute a non-amendable defect in the record.

 

Apr 16 16

Good-Time Credit Cannot be Avoided by Probation

by merlin

This entry concerns the Executive Branch’s independence in its decisions concerning administration of those matters solely left to its discretion from interference by the judiciary.

This case is Hutchins v. State, 243 Ga.App. 261, 533 S.E.2d 107 (Ga. Ct. App. 2000), and it involves a dispute between the two branches.  Defendant was sentenced to serve a minimum amount of time.  After serving less time than that and being given good-time credit, he served the amount of time specified in his sentence on probation and then sought early release.  The Court tried to avoid that, since he had been given about two months of Good Time credit, but the Court of Appeals disagreed with their efforts, since it is solely up to the Executive Branch (the jail and Sheriff’s Office, in this case) to decide to terminate his incarceration early.  The case makes for interesting reading on the separation-of-powers issue.

Closson, Bass & Tomberlin, J. Michael Bass, Valdosta, for appellant.

        Richard W. Shelton, Solicitor, for appellee.

        MILLER, Judge.

        Having pled guilty to driving under the influence, James Hutchins was sentenced to 12 months in the county jail, “[p]rovided, that after the service of 180 days in confinement, the balance shall be probated.” The sheriff awarded him 60 days credit for good time and released him following 120 days confinement. After serving probation for 185 days, Hutchins moved to have his sentence terminated, which the court denied on the ground that the 60 days of “good-time” credit had to be served on probation. The question on appeal is whether a sentence which orders a defendant to serve part of the sentence in jail with the balance probated can require that “good-time” credit resulting in an early release from confinement be served on probation. We hold it cannot and reverse.

        1. The State’s complaints about the imprecise wording of Hutchins’ enumeration of error are without merit.1 The enumeration adequately describes the ruling appealed.

        2. Johns v. State2 is dispositive. The defendant in Johns was sentenced to ten years (two to serve, eight on probation). The judge further ordered that any “good-time” credit be served on probation. Holding this was improper, Johns referred to former Code Ann. § 77-320.1(c), which directed that a prisoner be released at the expiration of his sentence less the time earned as “earned time” allowance.3 Johns explained that a sentence of confinement is fully served at the time the custodian releases the prisoner.4 “Any attempt by a court to impose its will over the Executive Department as to what constitutes service of a period of confinement would be a nullity and constitute an exercise of power granted exclusively to the Executive. [Cits.]”5 Beyond violating the Georgia Constitution, Johns held that imposing additional probation as a result of an early release date contravened the intent of the statutory language directing that “earned time” credit be deducted from a prisoner’s sentence. 6

        OCGA § 42-4-7(b)(3) employs almost identical language: “An inmate sentenced to confinement as a county inmate shall be released at the expiration of his or her sentence less the time deducted for good-time allowances.”7 Based on Johns, we hold that this language prohibits a judge from imposing probation on any time by which confinement is shortened due to good-time credit. The legal consequence of that credit is that the related portion of the original sentence has been served. Because our holding is based on this statute, the State’s attempt to distinguish the separation of powers clause of the Georgia Constitution8is moot.

        3. In the same ruling the court stated that the start date of the sentence was July 7, 1998. But since the State stipulated that as of October 10, 1998, Hutchins had served 120 days of the 180 days sentenced, the start date necessarily was no later than June 12, 1998. The period of confinement was served as of October 10, and the 185 days of lawful probation expired on April 13, 1999, the day before the filing of Hutchins’ motion to terminate. Thus, the motion to terminate should have been granted.

        Judgment reversed.

        POPE, P.J., BLACKBURN, P.J., RUFFIN and ELDRIDGE, JJ., concur.

        ANDREWS, P.J., and SMITH, J., dissent.

        SMITH, Judge, dissenting.

        I respectfully dissent.

        In my view, the majority inappropriately applies the decision of Johns v. State, 160 Ga.App. 535, 287 S.E.2d 617 (1981), for several reasons. First, Johns addressed multiple felony sentences to a term of years in the state penitentiary, followed by a term of probation. This court held that the prison sentence was fully served at the time of Johns’s release by the department of offender rehabilitation under “good time” rules and that “[a]ny attempt by a court to impose its will over the Executive Department as to what constitutes service of a period of confinement would be a nullity and constitute an exercise of power granted exclusively to the Executive. [Cits.]” Id. at 536, 287 S.E.2d 617. In contrast, here we consider a relatively brief misdemeanor sentence to be served in the county jail, in which the trial court balances the need for confinement and the need for continued supervision by the court, with the assistance of the probation department. Because of the different considerations inherent in the administration of misdemeanor sentences through county jails and probation departments, applying Johns in this case could interfere significantly with the ability of trial courts in this state to fashion effective misdemeanor sentences.

        Second, Johns was sentenced on each of three counts to “two years in the penitentiary and eight years on probation.” Johns, supra at 535, 287 S.E.2d 617. In contrast, the trial court here sentenced Hutchins to “confinement for a period of 12 months in the Lowndes County Jail…. Provided, that after the service of 180 days in confinement, the balance shall be probated.” (Emphasis supplied.) The distinction in the wording of these sentences is significant. Here, the trial court made a determination that Hutchins required the supervision of the trial court in some form for 12 months, and we should not interfere with that determination.

        For these reasons, I respectfully dissent.

        I am authorized to state that Presiding Judge ANDREWS joins in this dissent.

——–

        

Notes:

        1. Cf. Felix v. State, 271 Ga. 534, 539-540, 523 S.E.2d 1 (1999).

        2. 160 Ga.App. 535, 287 S.E.2d 617 (1981).

        3. Johns used the terms “good time” and “earned time” interchangeably. Id. at 536, 287 S.E.2d 617.

        4. Id.

        5. Id.; see Stephens v. State, 207 Ga.App. 645, 647-648(2), 428 S.E.2d 661 (1993).

        6. Johns, supra, 160 Ga.App. at 537, 287 S.E.2d 617; see Davis v. State, 181 Ga.App. 498(1), 353 S.E.2d 7 (1987) (court could not withhold good-time credit on grounds fines were unpaid).

        7. OCGA § 42-4-7(b)(1) expressly authorizes a county sheriff to award good-time allowances based on institutional behavior.

        8. Cf. Bldg. Auth. of Fulton County v. State of Ga., 253 Ga. 242, 247(5), 321 S.E.2d 97 (1984) (separation of powers clause applies to state and not counties); see generally Ga. Const. of 1983, Art. I, Sec. II, Par. III.

——–

 

Apr 14 16

Sex Offenders Are Not Eligible For Post-Conviction First Offender Treatment

by merlin

The statute that governs First Offender Discharges in Georgia is Section 42-8-62.  In 2004, the Georgia General Assembly made certain persons convicted of sex offenses ineligible for First Offender status, and then made that include an even broader swath of people.

The statute is as follows:

“(a) Upon fulfillment of the terms of probation, upon release by the court prior to the termination of the period thereof, or upon release from confinement, the defendant shall be discharged without court adjudication of guilt. Except for the registration requirements under the state sexual offender registry and except as otherwise provided in Code Section 42-8-63.1, the discharge shall completely exonerate the defendant of any criminal purpose and shall not affect any of his or her civil rights or liberties; and the defendant shall not be considered to have a criminal conviction. It shall be the duty of the clerk of court to enter on the criminal docket and all other records of the court pertaining thereto the following:

“Discharge filed completely exonerates the defendant of any criminal purpose and shall not affect any of his or her civil rights or liberties, except for registration requirements under the state sexual offender registry and except with regard to employment providing care for minor children or elderly persons as specified in Code Section 42-8-63.1; and the defendant shall not be considered to have a criminal conviction. O.C.G.A. 42-8-62.”

Such entry shall be written or stamped in red ink, dated, and signed by the person making such entry or, if the docket or record is maintained using computer print-outs, microfilm, or similar means, such entry shall be underscored, boldface, or made in a similar conspicuous manner and shall be dated and include the name of the person making such entry. The criminal file, docket books, criminal minutes and final record, and all other records of the court relating to the offense of a defendant who has been discharged without court adjudication of guilt pursuant to this subsection shall not be altered as a result of that discharge, except for the entry of discharge thereon required by this subsection, nor shall the contents thereof be expunged or destroyed as a result of that discharge.

(b) Should a person be placed under probation or in confinement under this article, a record of the same shall be forwarded to the Georgia Crime Information Center. Without request of the defendant a record of discharge and exoneration, as provided in this Code section, shall in every case be forwarded to the Georgia Crime Information Center. In every case in which the record of probation or confinement shall have been previously forwarded to the Department of Corrections, to the Georgia Crime Information Center, and to the Identification Division of the Federal Bureau of Investigation and a record of a subsequent discharge and exoneration of the defendant has not been forwarded as provided in this Code section, upon request of the defendant or his attorney or representative, the record of the same shall be forwarded by the clerk of court so as to reflect the discharge and exoneration.”

The Court is not permitted to sentence a person under the First Offender Act after the fact if they were sentenced from a plea of guilty or nolo contendre.  The rationale appears to be their own voluntary consent in the sentence given, so it is the sort of thing that has to be raised at or before sentencing, because it is lost if the opportunity is missed!  The statute that puts this idea forward is § 42-8-60:

“(a) Upon a verdict or plea of guilty or a plea of nolo contendere, but before an adjudication of guilt, in the case of a defendant who has not been previously convicted of a felony, the court may, without entering a judgment of guilt and with the consent of the defendant:

(1) Defer further proceeding and place the defendant on probation as provided by law; or

(2) Sentence the defendant to a term of confinement as provided by law.

(b) Upon violation by the defendant of the terms of probation, upon a conviction for another crime during the period of probation, or upon the court determining that the defendant is or was not eligible for sentencing under this article, the court may enter an adjudication of guilt and proceed as otherwise provided by law. No person may avail himself or herself of this article on more than one occasion.

(c) The court shall not sentence a defendant under the provisions of this article and, if sentenced under the provisions of this article, shall not discharge the defendant upon completion of the sentence unless the court has reviewed the defendant’s criminal record as such is on file with the Georgia Crime Information Center.

(d) The court shall not sentence a defendant under the provisions of this article who has been found guilty of or entered a plea of guilty or a plea of nolo contendere for:

(1) A serious violent felony as such term is defined in Code Section 17-10-6.1;

(2) A sexual offense as such term is defined in Code Section 17-10-6.2;

(3) Sexual exploitation of a minor as defined in Code Section 16-12-100;

(4) Electronically furnishing obscene material to a minor as defined in Code Section 16-12-100.1;

(5) Computer pornography and child exploitation, as defined in Code Section 16-12-100.2; or

(6)(A) Any of the following offenses when such offense is committed against a law enforcement officer while such officer is engaged in the performance of his or her official duties:

(i) Aggravated assault in violation of Code Section 16-5-21;

(ii) Aggravated battery in violation of Code Section 16-5-24; or

(iii) Obstruction of a law enforcement officer in violation of subsection (b) of Code Section 16-10-24, if such violation results in serious physical harm or injury to such officer.

(B) As used in this paragraph, the term “law enforcement officer” means:

(i) A “peace officer” as such term is defined in paragraph (8) of Code Section 35-8-2;

(ii) A law enforcement officer of the United States government;

(iii) A person employed as a campus police officer or school security officer;

(iv) A conservation ranger; and

(v) A jail officer employed at a county or municipal jail.”

Notice that the statute specifically says that the First Offender Act cannot be used to sentence a Defendant for a guilty or nolo contendere plea for a sexual offense “as such term is defined in Code Section 17-10-6.2”.  That statute seems pretty comprehensive as regards sexual offenses.  It provides as follows:

“(a) As used in this Code section, the term “sexual offense” means:

(1) Aggravated assault with the intent to rape, as defined in Code Section 16-5-21;

(2) False imprisonment, as defined in Code Section 16-5-41, if the victim is not the child of the defendant and the victim is less than 14 years of age;

(3) Sodomy, as defined in Code Section 16-6-2, unless subject to the provisions of subsection (d) of Code Section 16-6-2;

(4) Statutory rape, as defined in Code Section 16-6-3, if the person convicted of the crime is 21 years of age or older;

(5) Child molestation, as defined in subsection (a) of Code Section 16-6-4, unless subject to the provisions of paragraph (2) of subsection (b) of Code Section 16-6-4;

(6) Enticing a child for indecent purposes, as defined in Code Section 16-6-5, unless subject to the provisions of subsection (c) of Code Section 16-6-5;

(7) Sexual assault against persons in custody, as defined in Code Section 16-6-5.1;

(8) Incest, as defined in Code Section 16-6-22;

(9) A second or subsequent conviction for sexual battery, as defined in Code Section 16-6-22.1; or

(10) Sexual exploitation of children, as defined in Code Section 16-12-100.

(b) Except as provided in subsection (c) of this Code section, and notwithstanding any other provisions of law to the contrary, any person convicted of a sexual offense shall be sentenced to a split sentence which shall include the minimum term of imprisonment specified in the Code section applicable to the offense. No portion of the mandatory minimum sentence imposed shall be suspended, stayed, probated, deferred, or withheld by the sentencing court and such sentence shall include, in addition to the mandatory imprisonment, an additional probated sentence of at least one year. No person convicted of a sexual offense shall be sentenced as a first offender pursuant to Article 3 of Chapter 8 of Title 42, relating to probation for first offenders, or any other provision of Georgia law relating to the sentencing of first offenders.

(c)(1) In the court’s discretion, the court may deviate from the mandatory minimum sentence as set forth in subsection (b) of this Code section, or any portion thereof, when the prosecuting attorney and the defendant have agreed to a sentence that is below such mandatory minimum or provided that:

(A) The defendant has no prior conviction of an offense prohibited by Chapter 6 of Title 16 or Part 2 of Article 3 of Chapter 12 of Title 16, nor a prior conviction for any offense under federal law or the laws of another state or territory of the United States which consists of the same or similar elements of offenses prohibited by Chapter 6 of Title 16 or Part 2 of Article 3 of Chapter 12 of Title 16;

(B) The defendant did not use a deadly weapon or any object, device, or instrument which when used offensively against a person would be likely to or actually did result in serious bodily injury during the commission of the offense;

(C) The court has not found evidence of a relevant similar transaction;

(D) The victim did not suffer any intentional physical harm during the commission of the offense;

(E) The offense did not involve the transportation of the victim; and

(F) The victim was not physically restrained during the commission of the offense.

(2) If the court deviates in sentencing pursuant to this subsection, the judge shall issue a written order setting forth the judge’s reasons. Any such order shall be appealable by the defendant pursuant to Code Section 5-6-34, or by the State of Georgia pursuant to Code Section 5-7-1, unless the sentence imposed was pursuant to an agreement by the prosecuting attorney and the defendant.

(d) If the court imposes a probated sentence, the defendant shall submit to review by the Sexual Offender Registration Review Board for purposes of risk assessment classification within ten days of being sentenced and shall otherwise comply with Article 2 of Chapter 1 of Title 42.”

Even if a person was sentenced as a First Offender before the date that the statute was modified to include earlier offenses, if the person was adjudicated guilty of a sexual offense, they must still register on the Georgia Sexual Offender Registry.  The case that governs this situation is Watkins v. State, 283 Ga.App. 635, 642 S.E.2d 328 (Ga. Ct. App. 2007).  The opinion is below:

“MIKELL, Judge.

*Roger Lee Watson appeals from a trial court’s order that he register as a sex offender, arguing that the statute requiring such registration does not apply to him and is unconstitutional. We affirm.

On August 16, 2000, Watson entered an Alford 1 plea to charges of aggravated child molestation and sexual battery. Noting his status as a first offender, the trial court sentenced him to ten years probation. First offenders were not required to register with the state sexual offender registry at the time Watson entered his plea.

In 2005, the General Assembly amended the sexual offender registry statute, OCGA § 42-1-12, by removing language from the 2004 version stating that it applied only “to sentences imposed on or after July 1, 2004.”2 Instead, the 2005 version provided that first offenders “shall be subject to the registration requirements of this Code section[,]”3 and that “[o]n and after July 1, 1996, a person who is convicted of a criminal offense against a victim who is a minor … shall register as a sex offender within ten days after his or her release from prison or placement on parole.”4 As before, the 2005 statute also specified that “[a]ny person who is required to register under this Code section and who fails [to do so] or who provides false information shall be guilty of a felony” punishable by imprisonment for at least a year.5 These amendments became effective on July 1, 2005.6

On July 26, 2005, Watson moved the trial court for an order that he was not subject to the registration requirement. After a hearing, the trial court denied his motion.

1 1. In Peters v. Donald,7 we considered and rejected the argument that the registration requirement imposed in 2005 does not apply to convictions entered before that time. As we explained in Peters, the General Assembly amended OCGA § 42-1-12 in 2004 so as to require first offenders to register, and applied this requirement to “sentences imposed on or after July 1, 2004.”8 But the 2005 amendment struck this limitation on the retroactivity of the registration requirement. After the effective date of the 2005 amendment, then, and as we held in Peters, “even first offenders convicted before July 1, 2004, … were required to register.” 9 Watson was convicted in 2000, and is therefore subject to the registration requirement of OCGA § 42-1-12.10

2  2. We address the merits of Watson’s constitutional challenge by authority of Pollard v. State, 11 under which the Court of Appeals has jurisdiction to decide cases that involve the application, in a general sense, of unquestioned and unambiguous provisions of the Constitution to a given state of facts and that do not involve construction of some constitutional provision directly in question and doubtful either under its own terms or under the decisions of the Supreme Court of Georgia or the Supreme Court of the United States.12

3 There is no doubt about the meaning of the statutory provision at issue here, its application to a first offender convicted after July 1, 1996, or its validity in the face of Watson’s attack on it as an ex post facto law. In Thompson v. State, 13 the Supreme Court of Georgia upheld OCGA § 42-1-13’s mandate that any convicted child molester who continued to reside within 1,000 feet of any area where children congregated would be guilty of a felony. The Court reasoned that because such a person’s failure to abide by the statute would give rise to “a new crime based in part on an offender’s status as a child molester,” the statute was not retrospective and therefore was not an ex post facto law.14 The same rationale applies where, as here, Watson would be guilty of a felony entirely distinct from those of which he was convicted in 2000 if he failed to register with the sexual offender registry. 15

Because Watson is subject to OCGA § 42-1-12, and because that statute is not an ex post facto law, the trial court did not err when it ordered Watson to register as a sex offender.

Judgment affirmed.

BLACKBURN, P.J., and ADAMS, J., concur.”

Apr 9 16

Child Welfare Continuing Legal Education Seminar Notes

by merlin

Child Welfare Attorney Training

Continuing Legal Education – State Bar of Georgia HQ

Morning Panelists: Mary Hermann and Judge Lovett (Fulton County Juvenile Court)

April 8, 2016

 

Ashley Wilcott:

Laws are different for Superior Court Guardian Ad Litems and Juvenile Court Guardian Ad Litems.

  • Juvenile Court GALs must assist in DEPENDANCY proceedings

 

Case Scenario: Paperwork/Overview is in the Supplemental Materials

  • Section 15-11-1: Juvenile Court Code PURPOSE
  • Page 22 of materials – info on the MANDATORY TIMELINES that drive Juvenile Court proceedings
  • Time limits are enforced because they are tied to funding!
  • Under the NEW CODE – it is MANDATED that every child have an attorney; Children are RECOGNIZED as a party to a dependency action
    • Note that this is ONLY when a child COMES TO COURT

LOOK OVER THE NEW DISCOVERY LAWS IN THE JUVENILE CODE!

According to the judge, Discovery requests can and should be made, and will be granted, in Juvenile Court.

It is important to get a record made of proceedings in Juvenile Court because cases have to be appealed there, too, and the results can be extreme.

  • “This is not a meeting at a bar; this is Court.” – DRESS APPROPRIATELY

 

Mary Hermann:

These parents DO care; might be one paycheck away from disaster or already there.

 

SO MANY OF THESE CASES ARE POVERTY-DRIVEN.

 

  • If you are representing the child and they need to talk to the judge immediately, what should be done?
    • Meeting can happen in chambers; bring Court Reporter in to record and let attorneys sit in (judge says he treats it like part of the hearing)
    • Whatever the child says needs to go on the record if the judge is going to base part of their decision on that.

 

Judge W. Lovett:

  • Section 15-11-2(22): Definition of “dependency”
  1. “Removal Authorization” – immediate; allows them to remove from the home
  2. Complaint filed
  3. PPH (Preliminary Protective Hearing): If there is reason to believe the child is dependent…

Petition goes to Adjudication goes to Disposition (these are ALL individual stages, that happen 72 hours, 5 days, and 30 days)

  • Have 5 days after case plan is presented (at dispositional hearing) for parents to object, but can make the objection any time (and SHOULD) – this sounds like it is iffy (because every County is fundamentally different – do objections IN WRITING, and make sure that it is done IMMEDIATELY)

 

Caseplan is developed and Initial Periodic Review at 75 days, with Additional Period Review

  • Everything needs to keep moving FORWARD to get the child back in the home
  • There are additional reviews by request, and a HEARING ON THE PERMANENCY PLAN

 

Prior to a petition being filed, a judge CAN order a parent to submit to a drug test (because of a change in the law), but are they LEGALLY able to?

  • Inference can be made, and it is the threat that keeps this practice going with no definite answer from ANYONE here
  • If DFCS wants it, they should pay for it.
  • Also, DFCS tends to use the same experts over and over and over again, so IS THERE A SAY IN WHO DOES THE TEST?

 

Judge Lovett:

PPH (Preliminary Protective Hearing)

First time that the parties, parents, etc. are in front of the judge

  • An opportunity for parent attorneys that will/intend to argue the case that they can begin to present their defense, BUT
  • STANDARDS FOR REMOVAL ARE SOOOOO LOW!!!!
  • Really, unless the child is a member of an Indian tribe, the removal will probably be upheld
  1. Who are the parties?
  2. Are all parties entitled to an attorney?
  3. Waiver versus Stipulation
  4. Notification requirements
  5. Venue and Jurisdiction
  6. Placement pending adjudication
  7. Visitation
  8. Limits/Rules on Continuances

The basic inquiry: 

  • Can the child be returned home OR must the child be removed?

          (Is this even a dependency case?)

 

Findings that MUST be made from the PPH:

  1. Reasonable grounds exist to believe that the allegations are true
  2. Reasonable Efforts were made to prevent removal and preserve the family by DFCS – PRIOR TO REMOVAL
  3. It is contrary to the welfare of the child to continue in the home

 

(There are 2 more that I did not copy in time)

 

GAL and Attorney for Child can serve both roles, but conflict could arise (in which case GAL must withdraw, because the other duty is higher)

 

DFCS “policy”: In the trial notebook materials, and it is IMPORTANT!

  • The prerequisites for removal, etc., are EXPLICITLY SPELLED OUT (cross examination material if removal is not wanted)
  • Parents have to be NOTIFIED of the PPH; if notification is done improperly, this may be one of these topics to cross on, also.
  • Hearsay IS admissible in a PPH (in other words, character witnesses, etc., might be useful)
  • PPH can be WAIVED, and hearsay might not be in your favor (so use the next 15 days to put your case together)

 

Waivers versus Stipulations (waive probable cause but DO NOT STIPULATE – stipulations are ADMISSIONS).

 

The Adjudicatory Hearing

  • Evidence rules apply, and this is the FORMAL HEARING
  • Hearsay is NOT admissible, and a proper foundation needs to be laid for everything submitted
  • CAN ask for continuances; must be for good cause and in the child’s best interests!
  • Is past history with this person considered “BUSINESS RECORDS”? An objection can be made.
  • Standards will be CLEAR AND CONVINCING EVIDENCE.

 

REMEMBER: DFCS MUST PROVE THAT CHILD IS IN A DEPENDANT CONDITION AT THE TIME THAT IT IS ARGUED! (There needs to be “present dependency”)

 

  • Section 15-11-146(b) and disposition: If case is dismissed, then DFCS is OUT OF THE CASE!

 

After Adjudicatory Hearing:

  • This is where the idea of a PROTECTIVE ORDER comes into play, since placing the children back with the parents is paramount

 

Remember: YOU ARE ENTITLED TO DISCOVERY

  • (keep a HIPAA waiver for parents in your paperwork, so you can get copies of any reports produced)

 

The Dispositional Hearing (§ 15-11-210)

CONCURRENT CASE PLANS (they work on both reunification AND termination at the same time?)

They make a CCFA (comprehensive child-family analysis?) – done by PRIVATE CONTRACTORS, so check this over especially

 

  • Section 15-11-203: Department must make “reasonable efforts”; make sure that parents know about (AND NOTIFY DFCS OF) ANY possible relatives to place child with as early as possible

 

EVERY Order the Court issues must have BOTH findings of fact AND conclusions of law.

 

Possible Disposition Results:

  • Reunification
  • Non-reunification
  • Permanent Guardianship
  • Adoption
  • APPLA (Another Planned Permanent Living Arrangement)

PUP funds (Prevention of Unnecessary Placement) – these are available to facilitate

 

“Reasonable Efforts”

  1. To achieve goals of the Case Plan
  2. To preserve and reunify families prior to placement in DGCS custody
  3. To prevent the need for removal of the child from the home
  4. To make is possible for the child to RETURN to the home

 

Avoid a finding of NO REASONABLE EFFORTS

REVIEW HEARINGS

  • Section 15-11-102(d) – INITIAL periodic review hearing
  • Section 15-11-216 – Initial 75-day periodic review hearing
  • Section 15-11-217 – judicial panel review
  • Section 15-11-218 – Court Order following review

 

Judge wants to see PROGRESS TOWARD THE CASE PLAN GOALS

  • Idea is to check on this.
  • If it is still appropriate, proceed; if inappropriate, what must be done to change to meet the progress needs (BEST INTERESTS OF CHILD ARE PARAMOUNT)

 

If you want something, FILE A MOTION FOR IT!

 

EPAC (Educational Processing Assessment Consultation)

  • State will set up tutoring, etc., for the child – GET THIS DONE!!!  It is supposed to be done within 7 days by the case manager after the child is taken into custody (and if they don’t respond within 7 days then can contact them directly)
  • Assessment MUST be done even if there is no evidence of educational deficit
  • GET THE REFERRAL!

Termination of Parental Rights

  • Section 15-11-260 (purpose of TPR)
  • Section 15-11-264 (Discovery in TPR)
  • Section 15-11-280 (petition contents)
  • §§ 320-321, contents of Court TPR Order and placement following TPR
  • § 310 is a list of factors that MUST BE PROVED
  • § 311 is what the judge MUST FIND

 

  • §15-11-310 as a guide:

Must be clear and convincing proof of the grounds for TPR (written consent or voluntary surrender, or evidence of misconduct and/or parental unfitness [DEPENDANCY] AND that termination is in best interests of child) AND dependency is LIKELY TO CONTINUE

 

Case Law Update

Hon. Gerald Bruce

Many cases are still being decided under the Old Code, so it is good to keep those standards in mind.

  • TIME FRAME -72 hours to have dependency hearing
  • 15-11-5(a) and (c)
  • THESE PROVISIONS GOVERN THE TIME CALCULATION

 

J.C., 344 Ga.App. 526

  • If counsel is waived off the record, make sure the Court made findings that reflect that it is KNOWING and VOLUNTARY
  • Juvenile Court CANNOT split legal and physical custody!
  • Court based its findings on mother’s BALD stipulations, only. No findings of fact.

 

N.J., 335 Ga.App. 477

  • Permanent Guardianship has specific requirements, and THEY MUST BE STRICTLY OBEYED
  • notification of parents that cannot be located
  • Without that information, the Court cannot show why the proposed Guardian is the MOST APPROPRIATE person to be the Guardian

 

N.T., 334 Ga.App. 732

  • The foster situation doesn’t matter for purposes of TPR – issue is solely the suitableness of the BIOLOGICAL PARENT

 

S.B., A15A1427 (Jan. 20, 2016)

  • Love, EXPRESSED CONSISTENTLY and DILIGENTLY, is more important than poverty.

 

Ethical Considerations for the Child Welfare Attorney

Jennifer Carreras (DeKalb County Child Advocacy Center)

 

Remember: A child’s attorney owes THE SAME duty of care and of zealous representation as the attorney owes to any other client.  THIS MEANS A LAWYER IS NOT A GUARDIAN AD LITEM.

Model Rule 2.1 [Advice]:

Attorney has to exercise independent professional judgment and give candid advice to the client, regardless of whether client finds it palatable or not.

Model Rule 1.6 [Confidentiality]:

Have a duty to client to maintain in confidence all information gained in representation, including putting client in a position where client is embarrassed or disclosure is detrimental to client

b.1: Lawyer MAY reveal info that lawyer reasonably believes is necessary to prevent further harm

Model Rule 1.7 [Conflict of Interest]:

Remember, a lawyer’s duties to a FORMER CLIENT continue (so, if a conflict arises, then can’t continue representation)

At the point that a dual role as attorney and GAL for a child conflict, MUST withdraw as GAL (seek to have a new one appointed ASAP).

Model Rule 1.14 [Diminished Capacity]:

  1. Maintain normal attorney-client relationship as much as possible, BUT
  2. If you believe DIMINISHED CAPACITY, and risk of substantial harm exists if action is not taken, AND client cannot adequately act in their interests, a lawyer CAN take reasonably necessary protective action, including consulting with other professionals and seeking appointment of a GAL

 

WHAT ABOUT THE DANGER OF CONSULTING WITH MANDATORY DISCLOSERS LIKE THERAPISTS???

Mar 29 16

Redacted Form Motion and Form Brief in Support to Apply Civil Practice Act (Georgia Sex Offender Registry)

by merlin

The following is the general form of a motion and a brief in support of that motion that I have begun to use in any and every case that I argue concerning the Sex Offender Registry.  A Petition for Removal – and any and every kind of associated matter – must be served on the Office of the District Attorney for that particular jurisdiction, but the laws that apply (and, I believe, the burden of proof that accompanies such action) are civil in nature.

The following requires, of course, the addition of the case style, date, and signature block, as well as a certificate of service.  It necessarily requires that it be carefully tailored and modified to address the unique circumstances of any case in which it is employed.  I do not grant permission to others to adopt this form wholly, but the idea of this needs to be more widespread.

______________________________________________________________

MOTION TO APPLY CIVIL PRACTICE ACT PROVISIONS

            COMES NOW Petitioner XXXXX XXXXX, by and through undersigned counsel, and makes and files this, his Motion to Apply Civil Practice Act Provisions and incorporated supporting brief.  Said Motion is made to ensure the availability of all needed Discovery tools that should lawfully be made available for Petitioner’s use in the full prosecution of this action, and to ensure that the Sex Offender Registry Review Board (hereinafter referred to as “the Board”) receives the accurate information that it requires to make an objective, informed decision concerning the appropriate Risk Assessment Level to assign Petitioner on the Georgia Sex Offender Registry.  These reasons are further detailed in the supporting brief submitted herewith.  In support thereof, he states the following:

1.

            The Sex Offender Registry is civil in nature.  See Smith v. Doe, 538 U.S. 84, 99 (II)(B), 123 S.Ct. 1140155 L.Ed.2d 164 (2003)Rainer v. State of Ga., 286 Ga. 675, 676690 S.E.2d 827 (2010) (“the [sex offender] registration requirements themselves do not constitute punishment….”); Wiggins v. State, 288 Ga. 169, 172 (2010); Taylor v. State, 304 Ga. App. 878, 883 (Ga. Ct. App. 2010).

2.

             Section 9-11-81 of the Official Code of Georgia expressly makes the Civil Practice Act applicable to all proceedings that are civil in nature “except to the extent that specific rules of practice and procedure in conflict herewith are expressly prescribed by law”.  The rules for Discovery outlined by the Act are specifically included in the list of statutorily-applicable mechanisms, and none of the “specific rules of practice and procedure” the statute describes apply.  Because the registration scheme is civil in nature, and because a petition for removal from the Registry would, therefore, seek civil relief, the provisions of the section must apply, and civil Discovery tools are therefore available to Petitioner.

 3.

            Petitioner’s status on the Sex Offender Registry arose from a guilty plea entered to the crime of _______________ after he was involved in ___________________ with __________________, and the prosecution was criminal in nature and involved the gathering of evidence pertaining to the issues of guilt and innocence.  Though there is no question that the actions of the Office of the District Attorney complied with applicable criminal Discovery rules according to the standards of Brady v. Maryland, 373 U.S. 83 (1963) and the long line of cases that have followed from it, the personnel are necessarily limited in their selection of material appropriate to the issue now before the Court precisely because they are oriented toward material that is criminal in nature.  It is inapplicable to evaluate the ability of an individual on the Registry to return to society as a full member of that society and to continue to abide by its standards, which is the essence of the Risk Assessment Level assigned to a person on the Registry.

           The tools available under the Civil Practice Act’s laws governing Discovery allow for carefully-tailored information searches, including Requests to Admit and Interrogatories, that allow for a greater picture of the truth in this case, and would likely manifestly demonstrate the propriety of a Level I Assessment.

4.

             As explained above, and more fully elaborated in the supporting brief attached hereto, the set of rules used by the criminal Discovery procedure unfairly limits the material Discoverable by Petitioner and, therefore, limits the revelation of relevant information upon which the Court may base its decision.  The Civil Practice Act should govern this action, including the burden of proof it entails.

            WHEREFORE, Petitioner XXXXX XXXXX humbly requests the following relief:

  1. For the institution of all relevant Discovery procedures permitted under the Civil Practice Act, and any other applicable rules and procedures that may be determined to be applicable to this action;
  2. For the application of the burden generally applied in all civil matters – preponderance of the evidence – rather than the higher burden necessary for criminal conviction – beyond a reasonable doubt; and
  3. For such other and further relief as this Court in its discretion deems fit to grant.

 

[DATE AND SIGNATURE LINE]

______________________________________________________________

BRIEF IN SUPPORT OF

MOTION TO APPLY CIVIL PRACTICE ACT PROVISIONS

 

            COMES NOW Petitioner XXXXX XXXXX, by and through under signed counsel, and makes and files this, his Brief in Support of Motion to Apply Civil Practice Act Provisions, as a supplement to the Motion to Apply Civil Practice Act Provisions submitted herewith, and more fully elaborates the principles upon which this reasonable and necessary request is made, and in support thereof states the following:

Factual Background

              On October XX, 20XX, Petitioner XXXXX XXXXX entered a negotiated plea of guilty to one count of __________________ stemming from __________________________ with _____________________.  The sentence which he was given in exchange for entry of a plea of guilty involved five years of probation, and did not involve incarceration.  As a consequence of the guilty plea entered by him, he must be subject to the registration, residency, and employment restrictions of the Georgia Sex Offender Registry (hereinafter referred to as “Registry”).  If a person is incarcerated as a result of a criminal sexual act, they are given a Sex Offender Risk Assessment Level (hereinafter referred to as “Level”), which Level indicates their likely propensity to commit any further sexually criminal acts.  However, Petitioner was never incarcerated, and the instant Petition seeks the determination of his Level for future purposes involving the Registry.

            The Risk Assessment Level evaluates the capability of XXXXX XXXXX to be free from inclusion on the Georgia Sex Offender Registry by indicating the likelihood that he will engage in criminal sexual acts.  The only way this can be accomplished is by rehabilitation and evaluation, and the evidence necessary to establish this is only found in the possession or control of the Office of the District Attorney, if at all.  Therefore, the mechanisms of Discovery under Title 17 of the Official Code of Georgia, which are concerned primarily with issues of guilt or innocence, are not able to properly evaluate the redemption and rehabilitation of XXXXX XXXXX, and it is instead the Civil Discovery provisions found in Title 9 and the civil law that provide the proper mechanism for evaluating the State’s actions thus far.  Mechanisms such as Interrogatories and Requests to Admit provide a manner by which it may be discovered whether appropriate therapeutic efforts are being made to return a human being into productive society, and what those efforts are.  With Court permission, depositions may be conducted that plumb the methods by which XXXXX XXXXX’s sexual issues must be resolved.

Issue Presented

Should a petition seeking removal from the Georgia Sex Offender Registry Be governed by the criminal law Discovery provisions or by the Civil Practice Act and applicable Civil Discovery mechanisms? 

Argument and Citation to Legal Authority

            Petitions for removal from the Sex Offender Registry are civil in nature, and determining the Risk Assessment Level of a Petitioner is a necessary step in seeking this removal.  These actions are therefore properly governed through the use of the applicable civil burden of proof, and are properly evaluated not by the applicable criminal Discovery mechanisms but instead through civil Discovery mechanisms.  This will be explained more fully in the following brief.  “The sex offender registry requirement is regulatory and not punitive in nature. See Smith v. Doe, 538 U.S. 84, 99 (II)(B), 123 S.Ct. 1140155 L.Ed.2d 164 (2003)Rainer v. State of Ga., 286 Ga. 675, 676690 S.E.2d 827 (2010) (“the [sex offender] registration requirements themselves do not constitute punishment….”).”  Wiggins v. State, 288 Ga. 169, 172 (2010).  It can be taken further, though, because this type of action is not just regulatory, but is, in fact, civil in nature.  Taylor v. State, 304 Ga. App. 878, 883 (Ga. Ct. App. 2010).

  1. Discovery is the search for truth.

        In fact, the Official Code of Georgia sets out the essence of what Discovery is all about in Section 24-1-1, which plainly states that “[t]he object of all legal investigation is the discovery of truth. Rules of evidence shall be construed to secure fairness in administration, eliminate unjustifiable expense and delay, and promote the growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.”  If it is necessary to make further evaluation of this issue, then one need only examine the Federal Rules on which the Georgia Code revisions were based, to determine some precedent for greater, rather than more restricted, disclosure.  FRCP 26, which governs general provisions of civil Discovery between parties, mandates a wide variety of voluntary disclosures by parties, covering many different aspects of a suit.  These provide a model of disclosure that is inclusive, rather than exclusive, and this model of greater disclosure should also govern the instant action.  Is the State trying to hide something?

    2. Petitions to remove civil disabilities should properly be subjected to civil mechanisms, rather than criminal law.

            “Current law makes clear that registration as a sex offender does not constitute punishment.” See Taylor, 304 Ga.App. at 883 (also, cf., Hollie v. State, 287 Ga. 389, 391 (3) (696 S.E.2d 642) 2010 Ga. LEXIS 497 (2010)Rainer v. State, 286 Ga. 675 (1) (690 SE2d 827) (2010)).  The difference between the criminal law and its purposes and uses and the civil law and its purposes and uses can be demonstrated by a quick examination of the difference between criminal contempt and civil contempt, and it shows that the difference can be stated simply as the difference between punishment and rehabilitation.  “The distinction between criminal and civil contempt is that criminal contempt imposes unconditional punishment for prior acts of contumacy, whereas civil contempt imposes conditional punishment as a means of coercing future compliance with a prior court order.” (Punctuation omitted.) Rolleston v. Cherry, 237 Ga.App. 733, 739 521 S.E.2d 1(Ga. Ct. App. 1999)(quoting Rapaport v. Buckhead Coach, 234 Ga.App. 363, 364(1), 506 S.E.2d 690 (Ga. Ct. App. 1998)).

The grammatical definition of “punishment”, taken from Merriam-Webster at http://www.merriam-webster.com/dictionary/punishment, is as follows:

1: the act of punishing

2a:  suffering, pain, or loss that serves as retribution b :  a penalty inflicted on an offender through judicial procedure

3: severe, rough, or disastrous treatment

                 However, regardless of the nature of the actions taken by the Court with regard to XXXXX XXXXX, “[b]y contemplating distinctly civil procedures, the legislature indicated clearly that it intended a civil, not a criminal, sanction.”  Smith v. Doe, 538 U.S. 84, 86 (2003) (quoting United States v. Ursery, 518 U. S. 267, 289 (1996)).  As such, it is evident that the civil Discovery rules, geared toward discovering what has happened regarding non-punitive means of rehabilitating an individual, rather than the criminal Discovery laws, which are solely focused on relevant issues related to guilt and innocence, be applied fully.  The truth cannot be presented otherwise.

      3. The criminal law Discovery rules govern culpability issues, but are not sufficient to properly evaluate a request for removal from the Sexual Offender Registry.

          The issue of culpability is not at issue in this case, but rather whether XXXXX XXXXX, already found guilty, punished as pronounced by law, and now seeking to be properly assessed and thereby eventually to remove his civil disability, has been sufficiently rehabilitated to entitle him to his request, and the basic criminal Discovery rules are insufficient.  This issue can be fairly stated by comparing the two Discovery codes:

             “The goal of civil discovery, similar to the rules governing sporting events, is to ensure a level playing field for all parties. No one side should possess a procedural or evidentiary advantage beyond that which is particular to the specific facts of a case. The rules of civil procedure promote reciprocity and equal access to evidence.

                 On the other hand, one of the main goals in criminal law is the protection of a defendant’s constitutional right to a fair trial. The prosecution’s corresponding right is consequently limited. This difference affects trial strategy, particularly from the perspective of the party that bears the burden of proof.”

                 This plain-language statement sums up the situation before the court accurately.  It comes from the American Bar Association’s online guide, at the following address: https://www.americanbar.org/publications/tyl/topics/criminal-law/discovery_criminal_and_civil_theres_difference.html

            A quick examination of the general nature of the information requested under criminal Discovery tools will reveal its complete inability to provide any clarity in this matter.  OCGA § 17-6-4(a)(1) requires disclosure of relevant written or recorded statements made by the defendant and statements of coconspirators, and § 17-6-4(a)(2) requires the disclosure of the Defendant’s GCIC.  An examination of Section 17-6-4(a)(3)(A) shows the greatest flaw in this Discovery law scheme with regard to its application to this kind of action.  It asks for “photograph books, papers, documents, photographs, tangible objects, audio and visual tapes, films and recordings, or copies or portions thereof and to inspect and photograph buildings or places which are within the possession, custody, or control of the state or prosecution AND are intended for use by the prosecuting attorney as evidence in the prosecution’s case-in-chief or rebuttal at the trial or were obtained from or belong to the defendant” (emphasis supplied).  This is nothing more than a game, in which a man’s liberty is at stake, and if a piece of information won’t be used by the prosecution – who is not concerned with rehabilitation efforts under the statutory scheme, but rather with culpability, which is not at issue in this kind of action – then it does not need to be disclosed by them in the Discovery process.

Conclusion

            The criminal law provides a thorough mechanism for disclosing information related to the limited, relevant issue of culpability, but it is completely unequipped to assess the degree of rehabilitation and the kinds and types of efforts made to meet the conditions of the Court in assessing a request for Risk Assessment Level on the Georgia Sex Offender Registry.  Because the Registry itself if civil in nature, it can best be evaluated by use of the Civil Practice Act, and it cannot be properly evaluated by using the parallel criminal law provisions governing Discovery.  The petition of XXXXX XXXXX must be processed under the rules and provisions of the Civil Practice Act according to all applicable legal standards.

            WHEREFORE, Petitioner respectfully requests the following relief:

  1. That the Court pass an Order declaring this action to be governed by the provisions of the Civil Practice Act;
  2. That the Civil Law Discovery mechanisms be made available and exclusive for the use of the parties to this action, regardless of the involvement of the Office of the District Attorney; and
  3. For such other and further relief as the Court in its discretion deems fit to grant.

[DATE and SIGNATURE LINE]

 

Mar 25 16

Redacted Petition for Risk Assessment – Levelling (Georgia Sex Offender Registry)

by merlin

Prior to this case, I have never filed this kind of action as an independent matter.  However, there is nothing that says it cannot be done, and this is a prerequisite under Georgia law prior to filing  petition for release from the Sex Offender Registry.  A person’s Risk Assessment level must first be determined by the Georgia Sex Offender Registry and Review Board.

The following is the text of Section 42-1-19(c)(2)(B) of the Official Code of Georgia:

“(B) The individual has been classified by the board as a Level I risk assessment classification, provided that if the board has not done a risk assessment classification for such individual, the court shall order such classification to be completed prior to considering the petition for release.”

PETITION FOR ASSIGNMENT OF RISK ASSESSMENT LEVEL

            COMES NOW Petitioner XXXXX XXXXX, by and through undersigned counsel, and in compliance with the requirements set for evaluation by the Georgia Sex Offender Registry and Review Board by Section 42-1-19(c)(2)(B) of the Official Code of Georgia, hereby moves this Court to evaluate the pertinent facts of his case and provide with an appropriate Sex Offender Risk Assessment Level.  In support thereof, he states the following:

1.

            On XXXXX XX, 20XX, Petitioner XXXXX XXXXX entered a negotiated plea of guilty to one count of incest stemming from consensual sexual intercourse with his adult stepdaughter.  A copy of the Final Disposition Felony Sentence With Probation form summarizing this is attached hereto and incorporated as if restated in full herein as Exhibit “A”.  The sentence which he was given in exchange for entry of a plea of guilty involved five years of probation, and did not involve incarceration.  However, a consequence of the guilty plea entered by him is that he must be subject to the registration, residency, and employment restrictions of the Georgia Sex Offender Registry (hereinafter referred to as “Registry”).  If a person is incarcerated as a result of a criminal sexual act, they are given a Sex Offender Registration Level (hereinafter referred to as “Level”), which Level indicates their likely propensity to commit any further sexually criminal acts.  However, Petitioner was never incarcerated, and the instant Petition seeks the determination of his Level for future purposes involving the Registry.  His lack of any prior sexual crimes and any sexual crimes since then would logically urge the Court to classify him as a Level I risk.

2.

            Section 42-1-19(c)(2)(B) of the Official Code of Georgia describes a necessary prerequisite for any person seeking release from the registration, employment, and residency restrictions of the Registry.  That subsection mandates that

“[t]he individual has been classified by the board as a Level I risk assessment classification, provided that if the board has not done a risk assessment classification for such individual, the court shall order such classification to be completed prior to considering the petition for release.”

            A copy of an undated letter from XXXXX XXXXX, PhD, DABFSW, a licensed social worker who performed a thorough psychological and sexual evaluation of Petitioner following the case described above, is attached hereto and incorporated herein as Exhibit “B”.  In the letter, Dr. XXXXX, based on her psychological and emotional evaluation of Petitioner and the facts of the incident and of his past actions, states that “Mr. XXXXX does not present with a sexual disorder, deviant sexual arousal, or inappropriate sexual fantasies or urges.  Based on the evaluation, Mr. XXXXX is highly unlikely to commit inappropriate sexual acts , deviant sexual behavior, or that he will commit a sexual crime against others.  He can be effectively treated in group and individual psychotherapy where cognitive-behavioral psychotherapy will be provided” (emphasis supplied).

            Section 42-1-12(a)(12) of the Official Code of Georgia states that a “Level I risk assessment classification” means “the sexual offender is a low sex offense risk and low recidivism risk for future sexual offenses.”  Based on Exhibit B, Petitioner would be justified in seeking this classification.

3.

            Petitioner pleaded guilty to the crime of incest, and his defense to that crime echoed the situation involving sodomy that was used by the majority decision in Powell v. State,  270 Ga. 327 (Ga. 1998).  “We conclude that OCGA § 16-6-2, insofar as it criminalizes the performance of private, unforced, non-commercial acts of sexual intimacy between persons legally able to consent, “manifestly infringes upon a constitutional provision” (Miller v. State, supra, 266 Ga. 850(2), 472 S.E.2d 74) which guarantees to the citizens of Georgia the right of privacy. Appellant was convicted for performing an unforced act of sexual intimacy with one legally capable of consenting thereto in the privacy of his home.” Powell, 270 at 336.

             The same reasoning applies in this case and justifies a finding that Petitioner should be given a Level I risk assessment classification.

            WHEREFORE, Petitioner respectfully requests the following relief:

  1. For the Court to direct that Petitioner’s risk assessment Level classification be determined;
  2. For a risk assessment Level I classification finding, permitting him to seek release from the Registry at the appropriate time; and
  3. For such other and further relief as the Court in its discretion deems appropriate and necessary for the resolution of this matter.
Mar 17 16

Happy Saint Patrick’s Day!

by merlin

 

May the road rise to meet you, and may the sun always be at your back.

 

Happy Saint Patrick’s Day from Merlinus Goodman Monroe, LLC!