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Court of Appeals Remands Molestation Case to Have Equal Protection Issue Heard

December 16, 2021

The Court of Appeals vacated the defendant’s sentence and remanded his case back to the trial court.

In Regan v. State, the Defendant pleaded guilty to one count of child molestation. After doing so, he filed a motion to vacate the conviction arguing that the molestation statute, as it applies to 17-year-olds, violates the Equal Protection Clause.

The defendant was 17 years old and was charged with engaging in a sexual act with a 13-year-old. He argued that for him to have to plead guilty to a felony constitutes cruel and unusual punishment. The basis for this is that had his conduct constituted the more serious offense of aggravated child molestation, he would have been subject to only misdemeanor punishment.

Inconsistency in the Georgia Statutes

Under Georgia’s child molestation statute, it is a misdemeanor if the victim is at least 14 years of age and the person convicted is 18 or younger and no more than 4 years older than the victim. However, for the offense of aggravated child molestation, the provisions for misdemeanor punishment are slightly different in that it applies when the victim is at least 13 years old.

Therefore, in this case, the defendant was being subjected to felony punishment because he was being charged with the lesser offense of child molestation involving a girl who was 13. Had he been charged with aggravated child molestation involving the same girl, the offense would be a misdemeanor.

Equal Protection Argument

The defendant argued that there is no way that the legislature truly intended to punish the offense of aggravated child molestation less harshly than child molestation when it occurs between people age 17 and 13. The purpose of the misdemeanor provisions was to protect high school students from felony prosecutions so there is no logical explanation for the difference in the age range between the two statutes.

As a result, the defendant contended that the disparity here violates the equal protection clause because he is the same age as other 17-year-olds who are subject to just misdemeanor punishment under the aggravated child molestation statute.

Plus, any conduct that is covered by the aggravated child molestation statute could also be prosecuted under the child molestation statute as well. Therefore, it allows the State to have unfettered discretion in deciding how it wishes to punish 17-year-olds in these circumstances.

Jurisdiction for the Appeal

First, the defendant filed the appeal in the Georgia Supreme Court, arguing that it had jurisdiction in this case due to the constitutional question that was being raised. However, it transferred the case to the Court of Appeals because the trial court’s order denying the motion did not address the defendant’s constitutional argument on the merits. Georgia Supreme Court jurisdiction requires that the constitutional issue be “properly raised and the merits distinctly ruled upon” by the trial court.

The Court of Appeals then similarly found that it too lacked jurisdiction to decide this issue on appeal. It explained that it could not rule on a constitutional issue unless the record clearly shows that the issue was directly ruled on by the trial court.

The Court did point out that it did have the authority to remand the case back to the trial court for a ruling on the defendant’s constitutional argument. It noted that it could do so because the record was clear that the defendant did raise this issue in the trial court.

State’s Argument That the Issue was Waived

The State argued that the case should not be remanded because the defendant did not raise this issue in a timely manner – pointing out that challenges to the constitutionality of a statute should be raised by defendants as early in the proceedings as possible.

The Court rejected this argument, stating that when it comes to a constitutional attack on a sentencing statute, the first opportunity to raise such an argument may not come until after the defendant has been found guilty. Since the defendant raised the argument immediately following his guilty plea but before he was actually sentenced, the Court found that the issue had been timely raised.

Therefore, the Court of Appeals vacated the defendant’s sentence and remanded his case back to the trial court for a ruling on his equal protection argument.

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