It is always good to double- and triple-check things before committing too strongly to them. Because this is not something I have direct experience with, being a new area of practice that has not received much exposure, and being far from my ordinary field(s) of experience, I have added to and further revised the Petition for Removal from the Sex Offender Registry which I previously posted. The changes made are slight, but the discretion of a judge, once it has gone a certain way, is a difficult thing to change. The law allows that discretion to be exercised, but it is a rare thing for it to be exercised, and acting prematurely may cause the entire procedure to collapse upon itself – the philosophy tends to be “better safe than sorry”. With that in mind, the following is a final revision, prior to submission, of an intended Petition (edited for the general public, of course):
PETITION FOR REMOVAL FROM SEX OFFENDER REGISTRY
COMES NOW Petitioner [Petitioner], by and through undersigned counsel, and respectfully petitions this honorable Court to take into consideration all of the circumstances which contributed to the sentence under which he now labors, and give him a new opportunity to make better use of his life by removing his name from the Sex Offender Registry, pursuant to the power and discretion of this Court under Section 42-1-19 of the Official Code of Georgia to do so, and in support thereof states the following:
[Petitioner] pled guilty under a negotiated plea to two counts of XXXXXX on XXXXXXXX, in case number XXXXXXX. This plea was made under the decision of North Carolina v. Alford, 400 U.S. 25 (1969), with the express understanding that Petitioner would not admit to the charges, but would plead guilty and accept the negotiated sentence nonetheless, and were made following a jury trial of Petitioner which resulted in a hung jury. As part of the negotiated disposition of these charges, the State entered a disposition of nolle prosequi to two counts of Aggravated XXXXXXXXX. Though the State sought to prove through the contentions of the parents of the alleged victims that there was sufficient evidence to prosecute Petitioner for these crimes, XXXXXXXXXXX, who worked as a nurse at the XXXXXXXX where Petitioner was employed as the XXXXXXXXX, gave testimony which tended to exonerate Petitioner. Unfortunately, the guilty plea entered into by him to these charges required that he be included for all purposes on the Sex Offender Registry maintained by the State, and this has greatly impacted his ability to move to a different area, to obtain gainful employment despite his college education and qualifications, or to function as a full member of society. XXXXXXXXX is since deceased, and no transcript of her testimony can be located by either the County or any Court Reporter, despite the patient inquiries of Petitioner. The Affidavit of XXXXXXXX and XXXXXXXXX, who acted as counsel for Petitioner during these events, is attached hereto and incorporated herein as Exhibit “A”.
As a condition of the sentence to which he pled, Petitioner was required to serve 8 years and 6 months on probation, following a period of incarceration. Petitioner has completed all prison, parole, supervised release, and probation for the XXXXXXXX charges which required his registration pursuant to OCGA § 42-1-12.
Petitioner meets the criteria set forth in subparagraphs (c)(1)(A) through (c)(1)(F) of OCGA § 17-10-6.2.
- He 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 any 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;
- He 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;
- The court found no evidence of a relevant similar transaction;
- The alleged victims did not suffer any intentional physical harm during the alleged commission of the offense;
- The alleged offense did not involve the transportation of the victims; and
- The victims were not physically restrained during the alleged offense.
More than ten (10) years have elapsed since Petitioner was convicted for the offense which required registration pursuant to Code Section 42-1-12, as required by OCGA § 42-1-19(c)(2)(A).
Because of his inclusion on the Sex Offender Registry, Petitioner has been repeatedly ignored for many different employment possibilities, and has suffered the limitation of his ability to relocate. He has married, but his employment difficulties unfairly limit his ability to engage fully in the marital partnership. The defense witness who provided medical testimony contrary to the unsuccessful case which the State brought against him is since deceased, and her testimony is unavailable.
WHEREFORE, Petitioner [Petitioner] requests the following relief from the Court:
(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 both the sheriff and the district attorney of XXXX County, Georgia, to the Sheriff of XXXX County, Georgia, to the Department of Corrections, and to the Georgia Bureau of Investigation; and
(d) For such other and further relief as the Court in its discretion deems fit to grant.
Respectfully submitted, this ___ day of August, 2011.
To this Petition, I have made certain additions. Some evidence needs to be so persuasive that the sentencing judge, whom the statute grants discretion to for the removal requested, will consider and grant that Petition. In order for this to occur, without the judge appearing to be “soft on crime” (which can be political death in this geographical location, it would appear), the evidence available when the Petition is presented needs to show not just that the ongoing status of the convicted person as a convicted sex offender is making his or her life at present difficult – even unbearable – but that there was enough doubt at the time of conviction to justify the judge to reverse his or her decision to include this person on the registry in the first place. The amount of proof may or may not be, as a practical matter, impossible to achieve, but a reasonable person (and judges are, by the nature of their task in life, reasonable people) needs to be persuaded that the person convicted is no threat, from an objective stance.
Impatience on the parts of others has forced my hand to act, and the failure of evidence that is so persuasive that it could tip the scales has required that the best evidence available be used, instead. For these reasons, the above Petition contains certain important additions or changes that were not included in previous versions. Note that an Affidavit is to be included from the attorney(s) that represented the Petitioner in the trial that resulted in his or her conviction. This Affidavit needs to specify – without calling the conviction itself “incorrect”, but only susceptible to attack – the reasons behind a persuasive removal from the Sex Offender Registry. I have sought to include an Affidavit, but evidence such as a persuasive or compelling transcript would certainly be preferable; no matter what, objective evidence needs to show that the inclusion of the person on the Registry at sentencing was for the purposes of quashing potential, and not as punishment in and of itself. Note also that there are extensive requirements for release of a person from the Registry under OCGA Section 42-1-19(c)(2), which states that “[a]n individual who meets the requirements of paragraph (4) of subsection (a) of this Code section may be considered for release from registration requirements and from residency or employment restrictions only if:
(A) Ten years have elapsed since the individual completed all prison, parole, supervised release, and probation for the offense which required registration pursuant to Code Section 42-1-12; or
(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.
(emphasis supplied). For the clearest case to be presented (and for preservation of the arguments in favor of release from Registry requirements if the decision against that release needs to be appealed), it needs to be spelled out that a conviction based on the age of the judgment is, in fact, based on the passing of ten years.