Kenneth Perry v. the State of Georgia

Opinion

FOURTH DIVISION

MCFADDEN, P. J.,

WATKINS and PADGETT, JJ.

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.

https://www.gaappeals.gov/rules

September 10, 2026

In the Court of Appeals of Georgia A26A0859. PERRY v. STATE OF GEORGIA.

PADGETT, Judge.

Kenneth Perry was convicted of a 2014 possession of child pornography offense. After completing his sentence in April 2024, Perry filed a petition pursuant to OCGA § 42-1-19 requesting removal from Georgia’s sexual offender registry.1 The trial court found that Perry was ineligible for release from the registry under the current version of the statute and denied his petition. Perry filed an application for discretionary appeal, which this Court granted. Proceeding pro se, Perry argues on appeal that the trial court applied the wrong version of OCGA § 42-1-19 in denying

1 See OCGA § 42-1-12 et seq. (the “Registry Act”).

his petition. We agree and therefore vacate the trial court’s order and remand the case for further proceedings.

“A trial court’s decision whether to grant or deny a petition for release from the sex offender registration requirements is reviewed on appeal for an abuse of discretion. However, the interpretation of a statute is a question of law, which we review de novo.” Strickland v. State, 347 Ga. App. 216, 217 (818 SE2d 675) (2018).

So viewed, the record shows that Perry was indicted in the United States District Court for the Northern District of Georgia on one count of possession of child pornography that occurred in August 2014.2 Perry pleaded guilty in April 2019 and received a five-year probated sentence. As part of his sentence, Perry was required to register as a sex offender. Perry’s sentence terminated on April 8, 2024.

2 Perry was also charged with one count of distribution of child pornography as part of the same indictment but that count was later nolle prossed.

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On September 23, 2025, Perry filed a petition, under OCGA § 42-1-19, for release from the sex-offender-registration requirements. Perry included with his filing a March 2021 letter from the Sexual Offender Registration Review Board (“SORRB”) classifying him as a Level 1, or low risk for recidivism, sex offender.

Two days later, apparently without conducting a hearing, the trial court denied Perry’s petition in a one-page order “in accordance with OCGA § 42-1-19(c)(1)(A).” The trial court found that to be eligible for release, the statute requires that at least five years have elapsed since the individual completed probation for the offense that required registration, and that Perry’s probation was only terminated in April 2024. Perry filed an application for discretionary appeal with this Court, which we granted. This appeal followed.

In his sole claim of error, Perry contends that the trial court erred in denying his petition for release because it retroactively applied recent changes to OCGA § 42-1-19. More specifically, Perry asserts that the statutory provision relied upon by the trial court only applies to offenses committed on or after July 1, 2024, but his commission of the underlying offense occurred in 2014, and thus he is eligible for release under the law as it existed before the new provision went into effect.

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Under Georgia law, a defendant who is required to comply with the sex-

offender-registration requirements must do so for life. OCGA § 42-1-12(f)(6). However, a defendant may petition to be released from the lifetime registration requirements, as Perry did here, in accordance with OCGA § 42-1-19.3 See OCGA § 42-1-12(g).

As a threshold matter, we must determine which version of the statute applies.

In 2010, the General Assembly amended the Registry Act, “adding a new Code section,” OCGA § 42-1-19, with a May 20, 2010 effective date. Ga. L. 2010, pp. 184, 186, §§ 15, 16. From that date to June 30, 2024, OCGA § 42-1-19(c)(2) provided that a sex offender may be considered for release under OCGA § 42-1-19(a)(4) only if:

(A) Ten years have elapsed since the individual completed all prison, parole,

3 We note that before a petitioner may be considered for release from sex-

offender-registration requirements pursuant to OCGA § 42-1-19(c)(2), see supra, the petitioner must first show that he meets all of the criteria set out in OCGA § 17-10-6.2 (c)(1)(A) through (F). OCGA § 17-10-6.2(c) provides a list of circumstances that would allow a sentencing court to deviate from mandatory minimums for a person convicted of a sexual offense.

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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 [SORRB] as a Level I risk assessment classification ... .

See OCGA § 42-1-19(c)(2) (2010); OCGA § 42-1-19(c)(2) (2015).

Yet, in 2024, the legislature amended OCGA § 42-1-19(c)(2), which now provides that a petitioner may be considered for release pursuant to OCGA § 42-1- 19(a)(4) only if:

(A) Five 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; and (B) The individual has been classified by the [SORRB] as a Level I risk assessment classification ... .

See Ga. L. 2024, p. 228, § 2. This change to the law became effective “on July 1, 2024,” and applies “to all offenses committed on or after such date.” Ga. L. 2024, p. 229, § 4. Consequently, the legislature plainly expressed its intention that the 2024

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amendment to OCGA § 42-1-19(c)(2) apply prospectively. See State v. Randle, 331 Ga. App. 1, 5(1) (769 SE2d 724) (2015) (noting that when considering the meaning of a statute we “presume that the General Assembly meant what it said and said what it meant, and we afford statutory terms their plain and ordinary meaning” (punctuation omitted)).

Here, by its reference to the five-year waiting period for an individual to petition for release from registration requirements after his sentence has expired, it appears that the trial court applied the 2024 version of OCGA § 42-1-19(c)(2)(A) in denying Perry’s petition.4 But because Perry committed his underlying offense before July 1, 2024, the 2010 version of OCGA § 42-1-19(c)(2) applies to him. Under that version of the statute, Perry may be considered for release from the sex offender registry if he has been classified by SORRB as a Level I offender — regardless of the length of time

4 In what may have been a scrivener’s error, the trial court cited “OCGA § 42-

1-19(c)(1)(A)” in denying Perry’s petition. But no such subsection exists under the current or former versions of OCGA § 42-1-19. See Ga. L. 2010, p. 185, § 15; Ga. L. 2024, p. 228, § 2. OCGA § 42-1-19(c)(1), on the other hand, contains no time period and risk assessment classification pre-conditions before a petitioner may be considered for release from registration requirements, simply requiring that “[a]n individual who meets the requirements of paragraph (1), (2), or (3) of subsection (a) of this Code section shall be considered for release from registration requirements and from residency or employment restrictions.” OCGA § 42-1-19(c)(1) (2024).

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that has passed since the completion of his sentence. To the extent the trial court concluded that it had no discretion to grant Perry’s petition for release since his sentence only terminated in April 2024, it erred.

The State argues, in part,5 that the 2024 version of OCGA § 42-1-19 is not a substantive law but instead a procedural law that is to be applied retroactively absent a clear legislative intent.6 See Polito v. Holland, 258 Ga. 54, 55(2) (365 SE2d 273)

5 Alternatively, the State maintains that the General Assembly intended for the amended version of OCGA § 42-1-19 to apply to “petitions” filed after the July 1, 2024 effective date. But given the unambiguous language of the statute that it applies to petitioners whose “offenses” were committed on or after the effective date, this argument invariably fails. See Randle, 331 Ga. App. at 5(1) (“[W]here the language of a statute is plain and susceptible to only one natural and reasonable construction, we must construe the statute accordingly.” (punctuation omitted)).

6 In so arguing, the State relies partly on our opinion in Gardei v. Taylor, 375 Ga.

App. 402 (916 SE2d 212) (2025). There, a sex offender subject to registration requirements in Georgia based on out-of-state convictions from 1992 petitioned for declaratory and injunctive relief, alleging that continued enforcement of registration requirements violated his constitutional rights. Id. at 403–04. The trial court dismissed his petition as moot, observing that the 2024 amendment to the Registry Act provided an apparent vehicle for Gardei to seek removal from the sex offender registry. Id. at 405. We affirmed the trial court’s judgment under the “right for any reason” rule, see id. at 408 n.3, noting that “there [was] no indication in the record that Gardei has sought to petition a superior court for removal from the registry following the changes to OCGA § 42-1-19 effective July 1, 2024, or that a court has addressed Gardei’s eligibility for removal from the registry in light of the recent changes.” Id. at 407–08. We disapprove of Gardei to the extent that it can be relied upon to stand for the proposition that the 2024 version of OCGA § 42-1-19 should be

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(1988). But given the legislature’s explicit provision that the 2024 version of OCGA § 42-1-19 applies to all offenses committed on or after the July 1, 2024 effective date, we need not decide today whether the amendments to the statute are substantive or procedural in nature. See McConville v. Cotton States Mut. Ins. Co., 315 Ga. App. 11, 14–15 (726 SE2d 481) (2012) (Blackwell, J., concurring specially) (noting that analysis of whether change to underinsured-motorist statute was substantive or procedural in nature was “unnecessary” where the legislature specified that the amendment applied to policies issued on or after the effective date and the policy in question was issued before the amended statute’s effective date).

Notwithstanding our holding, we offer no opinion on whether Perry has otherwise satisfied the statutory requirements necessary for being released from the sex-offender registry.7 Rather, we leave these matters for the trial court to consider on remand in determining whether Perry is eligible for such release. See Yelverton v.

applied to sex offenders petitioning for release from registration requirements whose offenses pre-date the July 1, 2024 effective date. We circulated this decision among all nondisqualified judges of the Court to consider whether the disapproval of Gardei should be passed upon by all members of the Court, but fewer than the required number of judges voted in favor of a hearing en banc.

7 We likewise need not address whether the 2024 version of OCGA § 42-1-19 implicates the ex post facto doctrine, as Perry maintains.

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State, 300 Ga. 312, 317–20(1) (794 SE2d 613) (2016) (reversing denial of petition for release from sex offender registry and remanding for further proceedings, where trial court erroneously found that petitioner was ineligible for release).

Judgment vacated and case remanded. McFadden, P. J., and Watkins, J., concur.