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Redacted Argument for Reconsideration – Removal from Georgia Sex Offender Registry

by merlin on August 17th, 2012
  • Sumo

This is a redacted version of the argument for a motion for reconsideration for a Petition for Removal from the Georgia Sex Offender Registry after a Court found that all evidentiary burdens were met and it would still deny relief (based, presumably, on the bald statement of opposition from the persons representing the State).  This is the last step before the appeal happens, as I try to secure a written Order that can be appealed (none has been issued yet).


Argument and Citation to Legal Authority

 “Justice delayed for even one day is justice denied.”  Adams v. Hebert, 279 Ga. App. 158, 159, 630 S.E.2d 652, 654 (2006).  The Court heard at length about the employment restrictions and recriminations that XXXXX has faced as a consequence of his guilty plea to the crimes with which he was charged and his consequential inclusion on the Georgia Sex Offender Registry.  It heard that he was convicted of a crime through a guilty plea made under the auspices of North Carolina v. Alford, 400 U.S. 25 (1969), with the express understanding that he would not admit to the charges, but would plead guilty and accept the negotiated sentence nonetheless, and it was made following a jury trial which resulted in a mistrial.  It heard that he suffered economic harm from the stigma of inclusion on the Georgia Sex Offender Registry as a consequence of the actual loss of business opportunities, and that he had actually been laid off from at least one place of employment as a consequence of his inclusion on the Registry.  His testimony was uncontradicted by the State and showed that he has been deprived of the ability to earn a livelihood over the course of more than a decade.  The statutory requirements of Section 42-1-19(b)(3) plainly state that a denial by the Court of his Petition would mean that he cannot Petition again until two years have passed, but the Court’s actions have not even allowed the timer to begin, and its actions are contrary to logic, common sense, and decency.

  1. A.    The Court Expressly Found That Petitioner Met His Statutory Burdens By a Preponderance of the Evidence.

Though the Court also heard of vague reservations asserted by XXXXX as to the Level I classification made by the voting members of the Georgia Sex Offender Registry Review Board, the record is entirely devoid of any concrete facts on which her expression of distrust for XXXXX was based.  What she did say was that she was opposed to the classification because of XXXXX’ refusal to declare his responsibility for the crimes of child molestation and aggravated child molestation.  He has never claimed responsibility for these acts, and he is not required to do so, pursuant  to the Supreme Court case under which he entered his guilty plea, North Carolina v. Alford, 400 U.S. 25 (1969).  The record does, however, contain express statements by Petitioner regarding the economic harm he has suffered from his inclusion in the Registry, including the withdrawal of existing clients and the loss of his last substantial employment due to the social stigma of inclusion on the Registry.  This stigma has been noted at the highest levels of the Court system.  “The publicity may cause adverse consequences for the convicted defendant, running from mild personal embarrassment to social ostracism.”  (concurrence of Thomas, J., Smith v. Doe, 538 U.S. 84, 99, 123 S.Ct. 1140 (2002)(concurrence of Thomas, J.)(emphasis supplied).  In short, the decision of the Court in this case was not made with reference to the facts, and was contrary to even the verbal factual findings of the Court, and there is no rational or logical basis available from the record that can support this.

”The cardinal rule in construing a legislative act is “to ascertain the legislative intent and purpose in enacting the law, and then to give it that construction which will effectuate the legislative intent and purpose.”  Cavalier Convenience, Inc. v. Sarvis, 305 Ga.App. 141, 142, 699 S.E.2d 104 (Ga. Ct. App. 2011)(quoting  RadioShack Corp. v. Cascade Crossing II, LLC, 282 Ga. 841, 843, 653 S.E.2d 680 (2007)).  This has been the rule in this State since at least 1965, when the Court of Appeals stated plainly in Undercofler  v. Capital Automobile Co., 109 Ga.App. 711, that ‘[t]he cardinal canon of construction of a legislative act is that the intention, when ascertained, governs, and all other rules of interpretation are subordinate”.  111 Ga.App. at 716In the case at bar, the Court explicitly affirmed that the legislative intent was to permit registered sex offenders a way to be removed from the Registry when they were found by the Court by a preponderance of the evidence to not pose a substantial risk of future dangerous sexual offenses.  It heard that evidence that XXXXX had almost no criminal record other than this unproven incident, and it heard no evidence at all that indicated he had any dangerous sexual tendencies.  It expressly found that he met this burden, and the representative of the State taking issue with this was rightfully verbally reprimanded by the Court.  Notwithstanding all of these factors in favor of a verdict of mercy in favor of XXXXX, the Court still verbally ruled in favor of the absurd stance taken by the representative of the State.  Its final ruling is contrary to its own statement of public policy, as if the Legislature’s decision to provide a method for removal from the Sex Offender Registry was misunderstood by the Court somehow.

“‘(I)t is well settled in this jurisdiction that all statutes are  presumed to be enacted by the legislature with full knowledge of the existing condition of the law and with reference to it; that they are to be construed in connection and in harmony with the existing law; and that their meaning and effect will be determined in connection, not only with the common law and the Constitution, but also with reference to other statutes and the decisions of the courts.’ [Cits.]” , Copher v. Mackey, 220 Ga.App. 43, 44-45, 467 S.E.2d 362 (Ga. 1996)(quoting  Wigley v. Hambrick, 193 Ga.App. 903, 905(4), 389 S.E.2d 763 (1989).  In this case, the discretion exercised by the Court went far beyond the bounds of the statute or of basic principles of fairness, and it cannot permit itself to serve as a tool for spiteful ends.  It should reverse its decision and enter a verdict removing XXXXX from the Registry.

  1. B.    The Court Heard Absolutely No Factual Evidence Contrary to Petitioner’s Requested Relief.

A decision in accordance with the facts and evidence in this matter would be upheld on appellate review, but a decision that lacks any support of any kind other than the vague trepidation of representatives of the State is contrary to the ends of justice and the goals of the legislature.  “[J]udicial review is generally limited to ascertaining whether the evidence relied upon by the trier of fact was of sufficient quality and substantiality to support the rationality of the judgment.”  Blackburn v. Blackburn, 249 Ga. 689, 693, 292 S.E.2d 821 (1982) (quoting Woodby v. Immigration and Naturalization Service, 385 U.S. 276, 282, 87 S.Ct. 483, 486, 17 L.Ed.2d 362 (1966).  However, in this case there was actually no valid evidence that supported the stance of the representative of the State and the decision of the judge, even credibility evidence, and there is certainly no evidence “of sufficient quality and substantiality to support the rationality of the judgment.”  Id.  Even though this was a bench trial, and the Court sat as the arbiter of both facts and law, it did not impugn the credibility of any witness and instead made a decision that was entirely contrary to the facts before it.   “During a nonjury trial, it is presumed that the court is able to sift the wheat from the chaff and select only the legal evidence. We will reverse the trial court only where there is no legal evidence to support the trial court’s ruling.”  Toombs v. Meyer M. Cardin Living Trust #2, 279 Ga.App. 682, 684 (Ga. Ct. App. 2006)(quoting In the Interest of E.C., 271 Ga.App. 133, 135(1), 609 S.E.2d 381 (2004))(emphasis supplied).  Here, there was no legal evidence at all to support the verdict of the Court.

While political considerations are evidently important to a judge facing re-election, this case was heard by a senior judge insulated from that consideration, and his determination of the law in this case lacked any basis; it would therefore be subject to being overridden on appeal.  On appellate review following a non-jury trial, the Court of Appeals will not disturb the trial court’s factual findings if there is any evidence to sustain them; however, the Court reviews the trial court’s conclusions of law de novo.  Airport Auth. of City of St. Marys v. City of St. Marys, 297 Ga. App. 645, 678 S.E.2d 103 (2009).  There is a complete transcript of this hearing for the Court of Appeals to review, but it is going to have to review the facts and to superimpose its own judgment of the law.  This is contrary to logic and the high standards of the XXXXX Judicial Circuit Superior Court, and there is no valid reason for it to take this action.

C.        The Findings Made by the Court Demand that Relief for Petitioner be Directed.

            O.C.G.A. Section 9-11-50(a) states in pertinent part that “[i]f there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict, such verdict  shall be directed.”  It is evident from the oral pronouncements of the Court at the conclusion of the hearing in this matter that the legislative intent was ascertained and was met, that Petitioner had successfully established all of the facts required for his release from the Georgia Sex Offender Registry by a preponderance of the evidence and had established to the Court’s satisfaction that he posed no substantial likelihood of ever committing a future dangerous sexual offense.  A judgment in his favor was demanded by the evidence, and the Court is respectfully requested to reconsider its arbitrary decision contrary to the legislative will, and instead to remove him from the Georgia Sex Offender Registry as having met the statutory burdens under O.C.G.A. Section 41-1-19.

            To continue to include him on this Registry is tantamount to punishing him for no good reason, and even probation alone is a substantial interference with the liberty of any man.  The goal of probation, which this restraint on liberty is approximately equal to, serves far more than simple punitive interests of society, because probation also permits the rehabilitation of an offender and their re-integration into the public.  “Probated…sentences, upon reasonable conditions, have traditionally been used by trial judges in Georgia as effective tools of rehabilitation.”  Kellam v. State, 271 Ga.App. 125, 126, 608 S.E.2d 729 (Ga. Ct. App. 2004).  This, however, does no such thing.  Here, Petitioner has been classified as a Level I Sexual Offender by the Sex Offender Registry and Review Board, and is therefore defined by O.C.G.A. Section 42-1-12(a)(12) as a person with “a low sex offense risk and low recidivism risk for future sexual offenses”.  While the State’s witness may personally disagree with that rating, she was expressly precluded from voting on that matter due to a plain conflict of interest, and – more importantly for the evaluation of the relief XXXXX has requested – she provided absolutely no basis for her personal belief.



The trial judge no longer had discretion to keep petitioner on the Georgia Sex Offender Registry after he had found that Appellant had met his burdens in establishing the necessary prerequisites for removal from the Registry by a preponderance of the evidence and did not pose a substantial risk of perpetrating any future dangerous sexual offense.  A statute which grants the person sitting as fact finder and arbiter of the law the power to find no threat from a person and still deny them release from the Registry grants supreme authority to a trial judge without any check on the individual prejudices or attitudes of that person, without regard for the policies of the State.  This is contrary to the facts and the law, as well as to the guarantees to XXXXX under the Georgia and the United States Constitution, and it demands that the Court direct a verdict in his favor and remove him from the registration requirement and the residency and employment restrictions of the Georgia Sex Offender Registry.

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