Wiggins v. StateWiggins v. State
- Reporters:
- , , ,
- Before:
- Benham
Appellant Paul Wiggins, Jr., was found guilty of and sentenced for cruelty to children and violation of an oath of public office, and those convictions were affirmed on appeal. See Wiggins v. State, 280 Ga. 268 (626 SE2d 118) (2006); Wiggins v. State, 279 Ga. App. 901 (633 SE2d 381) (2006), and Wiggins v. State, 272 Ga. App. 414 (612 SE2d 598) (2005). Following his unsuccessful effort tо obtain a writ of habeas corpus, appellant filed in the court of conviction a motion to strike what he alleged was an illegal sentence, asserting that the special condition of probation imposed by the trial court that required he register as a sex offender was illegal because the statute that authorized the special condition is unconstitutional. After the trial court denied the motion, he filed this apрeal.
Appellant contends the sentencing court’s imposition of a requirement that appellant register as a sex offender for the rest of his life is an illegal sentence because
1. The District Attоrney of Floyd County seeks dismissal of the appeal on the ground that appellant’s contentions were resolved adversely to him in the denied of his petition for a writ of habeas corpus.
1
In his habeas petition, appellant asserted several of the grounds he raised in his motion to strike illegal sentence: that the imposition of the special condition of probation made his sentence illegal, that the statute authorizing the trial court’s action was unconstitutionally vague, and that the sentence imposed violated his constitutional rights protected by the Sixth and Fourteenth Amendments because the sentence exceeded the punishment authorized by
“Three prerequisites must be satisfied before res judicata аpplies — (1) identity of the cause of action, (2) identity of the parties or their privies, and (3) previous adjudication on the merits by a court of competent jurisdiction.” Waldroup v. Greene County Hosp. Auth., 265 Ga. 864, 866 (463 SE2d 5) (1995). Where a convict seeks post-convictiоn relief based upon grounds previously litigated in a habeas proceeding, i.e., were raised in a habeas proceeding and resolved by the final judgment of the habeas court, this Court has determined that the conviсt is collaterally estopped from pursuing those grounds in his effort to obtain post-conviction relief. Davis v. State, 287 Ga. 414, 415 (696 SE2d 644) (2010) (where habeas court in 1998 found that appellant was informed of his Boykin rights at 1975 guilty plea hearing, appellant could not re-litigate the issue in a motion seeking out-of-time appeal to challenge a void judgment and sentence); Spiller v. State, 282 Ga. 351 (2) (647 SE2d 64) (2007) (habeas hearing on claim of ineffective assistance of trial counsel and habeas court’s ruling thereon precluded Spiller from relitigating ineffective assistance in out-of-time direct appeal); Simmons v. State, 276 Ga. 525 (579 SE2d 735) (2003) (inmate was collaterally estopped from seeking out-of-time appeal since a hаbeas court previously had determined that inmate was responsible for the loss of his right of direct appeal). Since the merits of the constitutional claims raised by appellant in his habeas petition were not ruled upon by the habeas court, appellant is not estopped from litigating the contentions in this action.
Contrary to the District Attorney’s assertions, this case is not controlled by Jones v. State, 278 Ga. 669, 670-671 (604 SE2d 483) (2004). Appellant is not challenging sentenсing procedure or sentence fairness, but is challenging the constitutionality of the statute which authorizes the court to impose sex offender registration as a condition of probation. Nor is the case cоntrolled by Collins v. State, 277 Ga. 586 (591 SE2d 820) (2004), where a convict contended a judgment of conviction was void because of the content of a jury instruction. Appellant is contending that his sentence is illegal because it is based on an unconstitutional statute (see United States v. Lightsey, 886 F2d 304 (11th Cir. 1989)), which is a colorable claim that the sentence imposed is void, and a direct appeal from the trial court’s ruling is authorized. Harper v. State, 286 Ga. 216, 217, n. 1 (686 SE2d 786) (2009). The District Attorney’s motion to dismiss the appeal is denied, and we address the merits of the appeal.
2. Appellant contends that the special condition of probation requiring that he register as a sex offender is illegal because that condition of probation lasts a lifetime and
3. Appellant also contends that the special condition of probation is punishment and is unconstitutional under Blakely v. Washington, 542 U. S. 296 (124 SC 2531, 159 LE2d 403) (2004) and Apprendi v. New Jersey, 530 U. S. 466, 490 (120 SC 2348, 147 LE2d 435) (2000) because it was imposed without appellant admitting or the jury finding the facts supporting the increased penalty. The special condition of probation does not fall within the ambit of Blakely and Apprendi. The sex offender registry requirement is regulatory and not punitive in nature. See Smith v. Doe, 538 U. S. 84, 99 (II) (B) (123 SC 1140, 155 LE2d 164) (2003); Rainer v. State of Ga., 286 Ga. 675, 676 (690 SE2d 827) (2010) (“the [sex-offender] registration requirements themselves do not constitute punishment. ..”). Furthermore, the facts supporting the requirement that аppellant register as a sex offender — that he committed conduct which was a sexual offense against a minor — were found by the jury when it found appellant guilty of the crime of cruelty to children, which was described in the indictment as maliciously causing a child under the age of 18 cruel and excessive mental pain “by requiring her to touch his penis and requiring her to permit him to touch her breast.”
4. Contrary to appellant’s contention, the rеquirement that he register as a sex offender does not violate the Eighth Amendment’s proscription against the imposition of cruel and unusual punishment. Rainer v. State of Ga., supra, 286 Ga. 675 (1).
5. Appellant next argues that the superior court lacked authority undеr
6. Appellant also contends that
The Due Process Clause of the Fourteenth Amendment “requires that a law ‘give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden.’ ” Baker v. State, 280 Ga. 822 (2) (633 SE2d 541) (2006). “When the phrase challenged as vague has a commonly undеrstood meaning, then it is sufficiently definite to satisfy due process requirements.” (Punctuation omitted.) Dunn v. State, 286 Ga. 238 (1) (686 SE2d 772) (2009). “Where, as here, the challenged statute does not involve First Amendment freedoms, it is examined in the light of the facts of the casе at hand. [Cits.]” Baker v. State, supra, 280 Ga. at 823. It is commonly understood by persons of “common intelligence” that criminal conduct which is a sexual offense is, at a minimum, criminal conduct which involves genitalia. Inasmuch as the offense of cruelty to children for which appellant was convicted is found in Title 16 of the Official Code of Georgia and appellant’s conduct that led to his conviction — requiring his victim to touch his penis and requiring her to permit him to touch her breast — is а sexual offense, the statute is not unconstitutionally vague. See Jenkins v. State, 284 Ga. 642 (3) (670 SE2d 425) (2008) (conviction for a crime “relating to rape” included attempted rape for purposes of sex offender registration requirements).
Judgment affirmed.
All the Justices concur.
Notes
Certified сopies of appellant’s habeas petition and brief, the Warden’s return and answer, and the habeas court’s final order were submitted to this Court.
Appellant seeks to limit the definition of “sexual offense” to that found by the Court of Appeals in
Sequeira v. State,
243 Ga. App. 718 (1) (534 SE2d 166) (2000) (construing what is now