DILLARD, Presiding Judge.
This appeal concerns the breadth of the “power of executive clemency” exercised by the Georgia Board of Pardons and Paroles (the “Board”), especially the power to grant pardons and remove disabilities imposed by law.
Specifically, we are called upon to
determine whether the Board’s “unconditional” pardon of Barry Davis’s aggravated sodomy conviction obviates his duty to register as a convicted sex offender. Because the separation-of-powers doctrine requires us to adhere to the decision of the Board to issue Davis a pardon, and the plain meaning of the sweeping language used by the Board in that pardon removes the duty of Davis to register as a sex offender, we are constrained to reverse the trial court’s denial of Davis’s motion for a general demurrer.
On August 21, 1995, Davis was convicted of the aggravated sodomy of his minor (six-year-old) biological daughter after entering a non-negotiated guilty plea to that charge in the Superior Court of Chatham County, which resulted in a sentence of ten years with two to serve in confinement. Approximately one year after Davis’s conviction, OCGA § 42-1-12 was enacted, which required him to register as a sex offender.
Following his release from prison, Davis served the remainder of his sentence on probation until it terminated on July 15, 2005.
At some point thereafter, Davis applied to the Board for a pardon, and on February 13, 2013, the Board granted his application. Specifically, the pardon provided:
Whereas, having investigated the facts material to the pardon application, which investigation has established to the satisfaction of the Board that [Davis] is a law-abiding citizen and is fully rehabilitated; THEREFORE, pursuant to Article IV, Section II, Paragraph II (a), of the Constitution of the State of Georgia, the Board, without implying innocence, hereby unconditionally pardons said individual, and it is hereby ORDERED that all disabilities under Georgia law resulting from the above stated conviction and sentence . . . are hereby removed; and ORDERED FURTHER that all civil and political rights, except the right to receive, possess, or transport in commerce a firearm ... are hereby restored.
Approximately one month after receiving the pardon, Davis moved to North Carolina, but he did not provide notice to the Chatham County Sheriff’s Office that he was doing so. When the sheriff’s
office informed Davis of this failure, Davis asserted that his pardon obviated the previous requirement for him to register as a sex offender. Nevertheless, the sheriff’s office obtained a warrant for Davis’s arrest, and on February 26, 2014, the State charged Davis, via indictment, with failing to register as a sex offender as required by OCGA § 42-1-12.
Subsequently, Davis filed a motion for a general demurrer, arguing that the indictment failed to charge an offense under Georgia law because, as he asserted previously, the requirement to register as a sex offender constituted a legal disability, which the Board’s pardon had removed. Shortly thereafter, the State filed a response, and a few months later, the trial court held a hearing on Davis’s motion,
which concluded with the court taking the matter under advisement. Then, on January 14, 2016, the trial court denied Davis’s motion for a general demurrer, specifically finding that the requirement that Davis register as a sex offender was not a legal disability and, therefore, was not removed by the pardon. Davis then filed an application for interlocutory review, which we granted. This appeal follows.
At the outset, we note that an accused may challenge the sufficiency of an indictment by filing a general or special demurrer.
Specifically, a general demurrer “challenges the sufficiency of the
substance
of the indictment, whereas a special demurrer challenges the sufficiency of the
form
of the indictment.”
An indictment shall be deemed sufficiently technical and correct to withstand a general demurrer if it “states the offense in the terms and language of this Code or so plainly that the nature of the offense charged may easily
be understood by the jury.”
However, a demurrer to an indictment “does not reach matters not appearing on its face.”
Indeed, a demurrer may “properly attack only defects which appear on the face of the indictment and a demurrer which seeks to add facts not so apparent but supply extrinsic matters must fail as a speaking demurrer.”
In this matter, the indictment makes no reference to Davis’s pardon. And in fact, Davis introduced the pardon as an exhibit during the hearing on his demurrer. Thus, Davis arguably challenged the indictment via a speaking demurrer. Nevertheless, the State did not object to the introduction of Davis’s pardon during the hearing and likewise did not object generally to the method by which Davis challenged the indictment. Consequently, we find that the parties consented to the trial court’s determination of whether Davis’s pardon rendered insufficient the facts supporting the charge in the indictment, notwithstanding the general prohibition against speaking demurrers in criminal cases.
Indeed, essentially, Davis’s challenge to the indictment could more accurately be characterized as a plea in bar, “which goes to bar the [Sjtate’s action; that is to defeat it absolutely and entirely.”
Regardless, as is the case with a trial court’s ruling on a general or special demurrer,
on appeal, we review the trial court’s application of the law to the undisputed facts in a plea in bar de novo.
With these guiding principles in mind, we will now address Davis’s claim of error.
Davis contends that the trial court erred in denying his motion for a general demurrer, arguing that the requirement to register as a sex offender constitutes a legal disability, which the Board’s pardon of him removed, and thus, he committed no offense under Georgia law. We agree.
As noted supra, the State charged Davis with failure to register as a sex offender in violation of OCGA § 42-1-12
Free access — add to your briefcase to read the full text and ask questions with AI
DILLARD, Presiding Judge.
This appeal concerns the breadth of the “power of executive clemency” exercised by the Georgia Board of Pardons and Paroles (the “Board”), especially the power to grant pardons and remove disabilities imposed by law.
Specifically, we are called upon to
determine whether the Board’s “unconditional” pardon of Barry Davis’s aggravated sodomy conviction obviates his duty to register as a convicted sex offender. Because the separation-of-powers doctrine requires us to adhere to the decision of the Board to issue Davis a pardon, and the plain meaning of the sweeping language used by the Board in that pardon removes the duty of Davis to register as a sex offender, we are constrained to reverse the trial court’s denial of Davis’s motion for a general demurrer.
On August 21, 1995, Davis was convicted of the aggravated sodomy of his minor (six-year-old) biological daughter after entering a non-negotiated guilty plea to that charge in the Superior Court of Chatham County, which resulted in a sentence of ten years with two to serve in confinement. Approximately one year after Davis’s conviction, OCGA § 42-1-12 was enacted, which required him to register as a sex offender.
Following his release from prison, Davis served the remainder of his sentence on probation until it terminated on July 15, 2005.
At some point thereafter, Davis applied to the Board for a pardon, and on February 13, 2013, the Board granted his application. Specifically, the pardon provided:
Whereas, having investigated the facts material to the pardon application, which investigation has established to the satisfaction of the Board that [Davis] is a law-abiding citizen and is fully rehabilitated; THEREFORE, pursuant to Article IV, Section II, Paragraph II (a), of the Constitution of the State of Georgia, the Board, without implying innocence, hereby unconditionally pardons said individual, and it is hereby ORDERED that all disabilities under Georgia law resulting from the above stated conviction and sentence . . . are hereby removed; and ORDERED FURTHER that all civil and political rights, except the right to receive, possess, or transport in commerce a firearm ... are hereby restored.
Approximately one month after receiving the pardon, Davis moved to North Carolina, but he did not provide notice to the Chatham County Sheriff’s Office that he was doing so. When the sheriff’s
office informed Davis of this failure, Davis asserted that his pardon obviated the previous requirement for him to register as a sex offender. Nevertheless, the sheriff’s office obtained a warrant for Davis’s arrest, and on February 26, 2014, the State charged Davis, via indictment, with failing to register as a sex offender as required by OCGA § 42-1-12.
Subsequently, Davis filed a motion for a general demurrer, arguing that the indictment failed to charge an offense under Georgia law because, as he asserted previously, the requirement to register as a sex offender constituted a legal disability, which the Board’s pardon had removed. Shortly thereafter, the State filed a response, and a few months later, the trial court held a hearing on Davis’s motion,
which concluded with the court taking the matter under advisement. Then, on January 14, 2016, the trial court denied Davis’s motion for a general demurrer, specifically finding that the requirement that Davis register as a sex offender was not a legal disability and, therefore, was not removed by the pardon. Davis then filed an application for interlocutory review, which we granted. This appeal follows.
At the outset, we note that an accused may challenge the sufficiency of an indictment by filing a general or special demurrer.
Specifically, a general demurrer “challenges the sufficiency of the
substance
of the indictment, whereas a special demurrer challenges the sufficiency of the
form
of the indictment.”
An indictment shall be deemed sufficiently technical and correct to withstand a general demurrer if it “states the offense in the terms and language of this Code or so plainly that the nature of the offense charged may easily
be understood by the jury.”
However, a demurrer to an indictment “does not reach matters not appearing on its face.”
Indeed, a demurrer may “properly attack only defects which appear on the face of the indictment and a demurrer which seeks to add facts not so apparent but supply extrinsic matters must fail as a speaking demurrer.”
In this matter, the indictment makes no reference to Davis’s pardon. And in fact, Davis introduced the pardon as an exhibit during the hearing on his demurrer. Thus, Davis arguably challenged the indictment via a speaking demurrer. Nevertheless, the State did not object to the introduction of Davis’s pardon during the hearing and likewise did not object generally to the method by which Davis challenged the indictment. Consequently, we find that the parties consented to the trial court’s determination of whether Davis’s pardon rendered insufficient the facts supporting the charge in the indictment, notwithstanding the general prohibition against speaking demurrers in criminal cases.
Indeed, essentially, Davis’s challenge to the indictment could more accurately be characterized as a plea in bar, “which goes to bar the [Sjtate’s action; that is to defeat it absolutely and entirely.”
Regardless, as is the case with a trial court’s ruling on a general or special demurrer,
on appeal, we review the trial court’s application of the law to the undisputed facts in a plea in bar de novo.
With these guiding principles in mind, we will now address Davis’s claim of error.
Davis contends that the trial court erred in denying his motion for a general demurrer, arguing that the requirement to register as a sex offender constitutes a legal disability, which the Board’s pardon of him removed, and thus, he committed no offense under Georgia law. We agree.
As noted supra, the State charged Davis with failure to register as a sex offender in violation of OCGA § 42-1-12, specifically alleging that, having been convicted of aggravated sodomy, Davis was required to update the Sheriff of Chatham County regarding any change of residence within 72 hours prior to such change but that Davis moved from his Savannah residence without doing so. And indeed, OCGA § 42-1-12 (f) (5), in relevant part, provides that registered sex offenders shall
[ujpdate the required registration information with the sheriff of the county in which the sexual offender resides within 72 hours of any change to the required registration information. ... If the information is the sexual offender’s new address, the sexual offender shall give the information regarding the sexual offender’s new address to the sheriff of the county in which the sexual offender last registered within 72 hours prior to any change of address [.]
Here, Davis does not dispute that he moved without informing the sheriff but, rather, argues that the pardon he received from the Board obviated the previous requirement to register as a sex offender. Accordingly, we shift our focus to the Board’s powers and the language of the pardon that it chose to grant Davis.
The Constitution of the State of Georgia provides that “[t]here shall be a State Board of Pardons and Paroles which shall consist of five members appointed by the Governor, subject to confirmation by the Senate.”
And our Constitution further provides that the Board “shall be vested with the power of executive clemency, including the powers to grant reprieves, pardons, and paroles; to commute penalties; to remove disabilities imposed by law; and to remit any part of a sentence for any offense against the state after conviction.”
Recognizing the importance of separation of powers and the Board’s independence in order to effectively wield its clemency power, OCGA § 42-9-1 provides:
[I] t is declared to be the policy of the General Assembly that the duties, powers, and functions of the State Board of Pardons and Paroles are executive in character and that, in the performance of its duties under this chapter, no other body is authorized to usurp or substitute its functions for the functions imposed by this chapter upon the board.
And indeed, recognizing that the Board’s independence similarly prohibited interference from the courts, we have held that
[a]ny attempt by a court to impose its will over the Executive Branch by attempting to impose as a part of a criminal sentence conditions operating as a prerequisite of or becoming automatically effective in the event of a subsequent parole of defendant by the State Board of Pardons and Paroles would be a nullity and constitute an exercise of power granted exclusively to the Executive Branch.
Given this constitutional mandate, our review in this matter does not—and cannot—concern the propriety of the pardon the Board granted Davis but rather only the scope of that pardon.
The relevant regulation defines a pardon as “a declaration of record that a person is relieved from the legal consequences of a particular conviction,” which “restores civil and political rights and removes all legal disabilities resulting from the conviction.”
And here, the pardon that the Board granted Davis—after “having investigated the facts material to the pardon application”—declares that
he has “established to the satisfaction of the Board” that he is “a law-abiding citizen and is fully rehabilitated.” The pardon then, “without implying innocence” of Davis’s conviction for aggravated sodomy, “unconditionally fully pardons” him of that conviction, and orders that
“all
disabilities under Georgia law resulting from the above stated conviction and sentence ... are hereby removed; and... all civil and political rights, except the right to receive, possess, or transport in commerce a firearm . . . are hereby restored.”
Nevertheless, in denying Davis’s motion for a general demurrer, the trial court found that the requirement that Davis register as a sex offender was merely regulatory and did not constitute a disability under the law that could be removed by the pardon. But although the trial court is correct that “sexual offender registry requirements such as those contained in OCGA § 42-1-12 are regulatory, and not punitive, in nature[,]”
that does not end our inquiry unless one assumes that such regulatory requirements cannot also constitute legal disabilities. We can make no such assumption here.
The term disability is defined, inter alia, as an “incapacity in the eye of the law, or created by law; a restriction framed to prevent any person or class of persons from sharing in duties or privileges which would otherwise be open to them; legal disqualification.”
And in contrast to regulations such as requiring tavern owners to obtain operating licenses
or even weekend anglers to obtain fishing licenses,
“registration as a sex offender is intimately related to the criminal process in that it is an automatic result following certain criminal convictions.”
Under OCGA § 42-1-12 (e), “[registration shall be required by any individual who is convicted of certain designated criminal offenses, and we have emphasized that Georgia law makes registration mandatory for specified categories of convicted crimi
nals.”
Thus, unlike the majority of regulations, “our law has enmeshed criminal convictions and sex offender registration such that it is most difficult to divorce the requirement of registration from the underlying criminal conviction.”
Indeed, comparing registration as a sex offender to deportation, this Court has held that it “is a drastic measure (albeit a totally understandable one) with severe ramifications for a convicted criminal.”
Aperson who falls within the ambit of the sex-offender registry is “subject to lifetime registration and to the public dissemination of his name and other information identifying him as a registered sex offender.”
A registrant must also provide—to the sheriff of the county in which the registrant resides—a significant amount of personal information, including social-security number, fingerprints, address, place of employment, address of employer, and vehicle make, model, and license tag number,
as well as updates to that information within 72 hours of any change.
And the failure of a registrant to “comply with the requirements of the statute constitutes a felony offense.”
Given that the registration statute requires one to provide law enforcement with significant details as to where one lives, where one works, and where one travels, it strains credulity to characterize compulsory registration as a sex offender as merely regulatory but not as an “incapacity” in the eyes of the law. Indeed, the ability of an American citizen to live freely without reporting to the government his or her every movement is a defining characteristic of our constitutional republic.
In this case, the question before us is not whether Davis is deserving of such freedom (that has already been answered
by the Board), but only whether the requirement that Davis register as a sex offender constitutes a legal disability that the Board’s pardon obviated, and we are constrained to conclude that it is a disability and that the trial court erred in holding otherwise.
In addition to the erroneous reasoning posited by the trial court to support its denial of Davis’s motion for a general demurrer, i.e., that the registration requirement does not constitute a legal disability, the State appears to also contend
that the Board’s pardon did not absolve Davis of the responsibility to register as a sex offender because it did not explicitly state that the requirement was being removed. But this contention lacks merit unless we construe the Board’s use of the phrase
“all
disabilities under Georgia law”
as meaningless. We are not at liberty to do so here.
Furthermore, given that the Board explicitly stated in its pardon that it was not restoring Davis’s “right to receive, possess, or transport in commerce a fire
arm,” if the Board had wished to except the sex-offender registration requirement from the legal disabilities it was removing, it certainly knew how to do so.
The State also fails to appreciate that even a “conditional pardon” is to be “construed most favorably to the grantee.”
Additionally, the State’s assertion that State Board of Pardons and Paroles Rule 475-3-. 10 limits the definition of disability to include only restrictions on the rights to vote, hold public office, and serve on a jury, is without merit. Rule 475-3-. 10 (6), entitled “Removal of Disabilities,” merely notes that, inter alia, “[ujnder Georgia Law a person convicted of a felony involving moral turpitude loses his civil and political rights,
including
the right to vote, the right to hold public office, and the right to serve on a jury . . . .”
Suffice it to say, our Supreme Court has previously noted that such regulatory text hardly supports the State’s sweeping claim that the meaning of “disability,” as used by the Board in issuing its pardons, is limited solely to these three specific disabilities.
Finally, the State claims that language from the Board’s website and the Georgia Innocence Project’s website should be considered by this Court to assist us in determining the meaning of the language
contained in the pardon issued by the Board to Davis.
We decline to do so. Here, our concern is with the actual text used in Davis’s pardon, not unattributable statements or pronouncements contained on one or more websites (even if one of those websites does belong to the Board). If legislative history is “the equivalent of entering a crowded cocktail party and looking over the heads of the guests for one’s friends,”
then using unattributable language on a website to inform the meaning of a statute, regulation, or pardon is the equivalent of leaving the cocktail party altogether, driving past establishments not to your liking, and going straight to the pub “where everybody knows your name”
and they always tell you what you want to hear. And if the former is cherry picking, then the latter is an endless orchard full of interpretive possibilities.
For all the foregoing reasons, we are constrained to reverse the trial court’s denial of Davis’s motion for a general demurrer.
That said, before concluding, we take this opportunity to express our sympathy with many of the concerns raised by the State and DAAG in this proceeding.
Like the State and DAAG, this Court is deeply troubled by the fact that neither the victim nor the District Attorney’s Office were ever notified that the Board was considering a pardon of Davis’s aggravated sodomy conviction.
Indeed, while the Board resisted the State’s attempts at every turn to unseal Davis’s pardon file, one of its members did agree to speak with the District
Attorney’s Office about the pardon process in general. And in doing so, this board member indicated that (1) the Board has no policy of contacting the District Attorney’s Office from the convicting circuit or the victim before granting a pardon,
(2) no real criteria exists for granting a pardon (“It’s very subjective”), and (3)
99% of all pardon requests are granted.
Suffice it to say, these averments, if true, are shocking—especially the assertion that 99% of all pardon requests are granted. To be sure, these revelations about the Board’s pardon process have no bearing on this appeal. As previously noted, the separation-of-powers doctrine does not permit this Court to overturn or in any way disturb the Board’s pardon of Davis. We are bound by the Board’s exercise of that exclusive executive power. Nevertheless, the General Assembly may very well wish to investigate the manner in which the Board is currently exercising its pardon power and then take any remedial measures that it deems necessary. And while perhaps some or even all of the Board’s members genuinely believed that their pardon of Davis did not relieve him of his duty to continue his registration as a sex offender, this Court is not at liberty to disregard the plain meaning of the words used by the Board in issuing that pardon or the applicable law detailed supra. Instead, we are duty bound to abide by the plain language used by the Board in its pardon of Davis, not the unexpressed intentions of one or more board members.
Decided March 10, 2017
Robert L. Persse, Amy L. Ihrig,
for appellant.
Judgment reversed.
Reese, J., concurs. Bethel, J., concurs fully and specially.
BETHEL, Judge,
concurring fully and specially.
“If you’re going to be a good and faithful judge, you have to resign yourself to the fact that you’re not always going to like the conclusions you reach. If you like them all the time, you’re probably doing something wrong.”
With a new appreciation for the sentiment expressed above, I concur and join fully in Presiding Judge Dillard’s opinion.
Meg E. Heap, District Attorney, Greg M. McConnell, Lyndsey H. Rudder, Assistant District Attorneys,
for appellee.
District Attorneys’ Association of Georgia, Scott L. Ballard, District Attorney, Robert W. Smith, Jr.; Georgia Association of Criminal Defense Lawyers, Brandon A. Bullard, James C. Bonner, Jr., Elizabeth A. Brandenburg, Robert G. Rubin,
amici curiae.