Can't Do the Time, Don't Do the Crime?: Dixon v. State, Statutory Construction, and the Harsh Realities of Mandatory Minimum Sentencing in Georgia
| Citation | Vol. 22 No. 2 |
| Publication year | 2010 |
Georgia State University Law Review
Article 5
12-1-2005
Can't Do the Time, Don't Do the Crime?: Dixon v. State, Statutory Construction, and the Harsh Realities of Mandatory Minimum Sentencing in Georgia
Suzanne Smith Williams
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Recommended Citation
Williams, Suzanne Smith (2005) "Can't Do the Time, Don't Do the Crime?: Dixon v. State, Statutory Construction, and the Harsh Realities of Mandatory Minimum Sentencing in Georgia," Georgia State University Law Review: Vol. 22: Iss. 2, Article 5. Available at: http://digitalarchive.gsu.edu/gsulr/vol22/iss2/5
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CAN'T DO THE TIME, DON'T DO THE CRIME?: DIXON V. STATE, STATUTORY CONSTRUCTION, AND THE HARSH REALITIES OF MANDATORY MINIMUM SENTENCING IN GEORGIA
Introduction
In 1994, the Georgia legislature passed the Sentence Reform Act ("Act") mandating sentencing guidelines to prohibit lenient punishment for offenders convicted of violent crimes referred to as the "seven deadly sins."1 In 1998, the legislature amended the Act to prohibit lenient sentencing for first-time offenders when the offense was one of the violent felonies enumerated within the Act.2
The legislature amended the Act in 1998 to deal specifically with State v. Allmond.3 In Allmond, the Georgia Court of Appeals upheld the trial court's ten-year sentence that required only eight years of confinement for a first-time offender found guilty of six counts of armed robbery and two counts of possession of a firearm during a felony.4 There, the Georgia Court of Appeals held that the First Offender Act gave the sentencing court discretion in sentencing a first-time offender, even when the offense was one of the enumerated seven deadly sins.5
With the 1998 amendment the legislature mandated that, contrary to the Allmond court's interpretation, "it is the expressed intent of the General Assembly that persons who commit a serious violent felony specified in the 'Sentence Reform Act of 1994' shall be sentenced to
1. See O.C.G.A. § 17-10-6.1 (2005) (establishing mandatory minimum ten-year sentencing for murder or felony murder, armed robbery, kidnapping, rape, aggravated child molestation, aggravated sodomy, and aggravated sexual battery).
2. O.C.G.A. § 42-8-66 (2005).
3. See HB 1164, 1998 Ga. Gen. Assem. (codified as O.C.G.A. § 42-8-66 (2005)); see generally State v. Allmond, 484 S.E.2d 306 (Ga. Ct. App. 1997), overruled by Fleming v. State, 504 S.E.2d 543 (Ga. Ct. App. 1998).
4. Allmond, 484 S.E.2d 306, 307.
5. See id. at 307 (holding that O.C.G.A. § 17-10-6.1(b) does not limit the court's discretion in sentencing first time offenders under more lenient first offender guidelines).
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a mandatory term of imprisonment of not less than ten years and shall not be eligible for first offender treatment."6
In light of the Act's limitation on judicial sentencing discretion, Georgia's provisions regarding aggravated child molestation proved especially problematic in one recent Georgia case.7 Code section 16-6-4(c), defining aggravated child molestation as simple child molestation accompanied by either sodomy or injury to the child, works with Code section 16-6-4(d)(l) to mandate ten-year minimum sentencing according to the Act.8
The 1998 amendment allows no safe harbor for first-time offenders convicted of aggravated child molestation regardless of any mitigating circumstances.9
Should a prosecutor decide to charge a defendant with aggravated child molestation when the victim sustains even a slight and arguably predictable injury, and the jury finds that the State has proven the injury requirement of Code section 16-6-4(c), the court has no discretion regarding the minimum ten-year sentence.10 The Act essentially grants the prosecutor discretion that was once left to the courts.11 One commentator opined that, at least in federal courts, mandatory sentencing guidelines have turned prosecutors into the "800-pound gorilla[s] of the criminal process."12 While federal and
6. HB 1164, § 1(3). 1998 Ga. Gen. Assem. (adding O.C.G.A. § 42-8-66 to the First Offender Provision, removing first offender treatment for serious violent felony convictions as defined in the Sentence Reform Act).
7. O.C.G.A. § 16-6-4(c), (d)(1) (2005); see Dixon v. State, 596 S.E.2d 147 (Ga. 2004).
8. O.C.G.A. § 16-6-4(a) (2005) (defining simple child molestation as the commission of "any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person"); O.C.G.A. § 16-6-4(c) (2005) (providing that "[a] person commits the offense of aggravated child molestation when such person commits an offense of child molestation which act physically injures the child or involves an act of sodomy"); O.C.G.A. § 16-6-4(d)(l) (2005) (providing in pertinent part that one convicted "of aggravated child molestation shall be punished by imprisonment for not less than ten nor more than 30 years" under the mandatory sentencing provisions of O.C.G.A. §§ 17-10-6.1 and 17-10-7).
9. HB 1164, § 2, 1998 Ga. Gen. Assem. (codified as O.C.G.A. § 42-8-66) (2005) ("No person convicted of a serious violent felony as defined in . . . this Code section shall be sentenced as a first offender....")
10. See Dixon, 596 S.E.2d 147.
11. See William J. Powell & Michael T. Cimino, Prosecutorial Discretion Under the Federal Sentencing Guidelines: Is the Fox Guarding the Hen House?, 97 w. va. l. rev. 373, 382 (1995) (analyzing the prosecutor's role under the Federal Sentencing Guidelines).
12. Id. at 384.
2005] dixon v. state 521
state sentencing guidelines have attempted to create uniformity, some members of the judiciary question the wisdom of leaving sentencing discretion in the hands of prosecutors.13
Under the Act, Georgia prosecutors enjoy a felony sentencing discretion privilege that was once left to the judiciary, provided they can prove the elements of the deadly sin that predicates the mandatory sentence.14 Mitigating or unique circumstances have no relevance in determining sentence length under the Act.15 Additionally, under the current statutory scheme governing mandatory minimum sentencing, a juror may vote to convict, unaware of the sentencing consequences that accompany the verdict.16
Though Georgia's statutory rape law contains a "Romeo and Juliet" exception that affords misdemeanor rather than felony punishment in cases involving an offender not more than three years older than a 14-year-old or 15-year-old consensual partner, complications arise when even slight injuries accompany nonforcible sexual relations between teenagers covered by the provision.17 Under the current statutory scheme, even slight injuries, including those routinely sustained by a female during first-time sexual intercourse,
13. Id. (quoting Judge McNichols of the Eastern District of Washington: "Congress has thus shifted discretion from persons who have demonstrated essential qualifications to the satisfaction of their peers, various investigatory agencies, and the United States Senate to persons who may be barely out of law school with scant life experience and whose common sense may be an unproven asset.").
14. See O.C.G.A. § 17-10-6.1 (2005).
15. See id.
16. E.g., Andrew Jacobs, Student Sex in Georgia Stirs Claims of Old South Justice, n.y. times, Jan. 22,2004, at A14.
Although a jury acquitted Mr. Dixon of rape, sexual battery, aggravated assault and false imprisonment, they found him guilty of statutory rape, a misdemeanor, and because of the girl's injuries, the more serious charge of aggravated child molestation. Bound by Georgia's sentencing laws, the judge gave Mr. Dixon the minimum 10 years. After learning of the sentence, five of the jurors said that they would not have voted to convict Mr. Dixon if they had known that he would spend so much time in prison.
Id.
17. O.C.G.A. § 16-6-3(b) (2005) (providing misdemeanor qualification for statutory rape when a "victim is 14 or 15 years of age and the person so convicted is no more than 3 years older than the victim"); O.C.G.A. § 16-6-4(c), (d)(1) (2005); see also Byron Williams, The Incarceration of Marcus Dixon, Mar. 8, 2004, http://www.workingforchange.com/article.cfrn?ItemID=16557 (explaining "Romeo and Juliet" laws as decriminalizing the behavior or minimizing the offense to misdemeanor status for consensual teenage relations).
specifically tearing or bruising of the hymen, may substantiate a claim of aggravated child molestation and elevate what would normally constitute misdemeanor statutory rape to felony aggravated child molestation.18 The unique facts of Dixon v. State prompted the Georgia Supreme Court to reevaluate Dixon's conviction in light of the sentencing conflict between Georgia's aggravated child molestation and statutory rape provisions.19
This Comment will examine the Georgia Supreme Court's decision in Dixon. Part I will provide the factual background of Dixon and the Floyd County jury decision that sent Marcus Dixon to state prison for a term of no less than ten years. Part II will discuss the court's statutory construction analysis, giving special consideration to the court's finding that in cases of conflict, the more recent statute should prevail in order to best effectuate legislative intent.22 Part III will discuss the court's statutory construction analysis, focusing on the rule of lenity. Part IV will discuss the constitutionality of the mandatory minimum sentence accompanying a conviction under Code section 16-6-4(d)(l) under the unique facts of the Dixon case. Lastly, this Comment will...
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