Regan v. State ( 2023 )

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.
In the Supreme Court of Georgia
Decided: November 2, 2023
S23A0686. REGAN v. THE STATE.
COLVIN, Justice.
Appellant Cody Allen Regan appeals his sentence of 20 years
in prison, with one year to serve, for one count of felony child
molestation, following his non-negotiated guilty plea. 1 On appeal,
1 The crime occurred on May 28, 2017. On September 8, 2017, a Newton
County grand jury indicted Appellant for one count of child molestation in
violation of OCGA § 16-6-4 (a). On June 28, 2018, Appellant entered a guilty
plea without a plea agreement and filed a motion in arrest of judgment
challenging in part the constitutionality of the child molestation statute as
applied to him. On April 30, 2019, the trial court denied his motion in a three-
page order that did not address the constitutional claim raised in the motion.
On May 14, 2019, Appellant was sentenced to a term of 20 years in prison, with
one year to serve.
Appellant timely filed a notice of appeal directed to the Court of Appeals
on June 5, 2019, and subsequently amended it twice to direct his appeal to this
Court. We transferred the case to the Court of Appeals, which vacated the trial
court’s order denying Appellant’s motion in arrest of judgment and directed the
trial court to rule on Appellant’s constitutional claims. See Regan v. State, 361
Ga. App. 156, 158 (863 SE2d 527) (2021). On remand, the trial court again
denied Appellant’s motion in arrest of judgment in an order dated May 4, 2022.
On May 24, 2022, following a hearing, the trial court reimposed Appellant’s
original felony sentence. Appellant filed a timely notice of appeal directed to
Appellant argues that he improperly received a felony sentence for
child molestation, in violation of his rights to equal protection under
the United States and Georgia Constitutions, because he is similarly
situated to people receiving misdemeanor sentences for aggravated
child molestation. Appellant also argues that his sentence
constitutes cruel and unusual punishment, in violation of the United
States and Georgia Constitutions, because his sentence is grossly
disproportionate to his crime.
For the reasons that follow, we hold that the sentencing
scheme for child molestation set out at OCGA § 16-6-4 (b), as
applied to Appellant, violated his right to equal protection under the
Fourteenth Amendment to the United States Constitution. 2 These
this Court. The case was assigned to our April 2023 term and submitted for a
decision on the briefs.
2 We decline to consider Appellant’s equal-protection claim under the
Georgia Constitution because neither the parties nor the trial court
distinguished Appellant’s federal equal-protection claim from his state equal-
protection claim and because Appellant does not argue that the federal Equal
Protection Clause should be construed differently than the Georgia Equal
Protection Clause. See Harvey v. Merchan, 311 Ga. 811, 825 n.13 (4) (b) (860
SE2d 561) (2021) (declining to consider the defendant’s federal and state equal-
protection claims separately where neither the defendant nor the trial court
below distinguished between those claims).
2
sentencing provisions provide for a misdemeanor sentence where
the victim is at least 14 years old (among other conditions), but the
misdemeanor sentencing provisions for aggravated child
molestation provide for a misdemeanor sentence where the victim is
at least 13 years old. Compare OCGA § 16-6-4 (b) (2), with
16-6-4 (d) (2). Because the victim in this case was 13 years old,
Appellant did not qualify for the misdemeanor sentence he would
have received if he had instead committed aggravated child
molestation. See id. at (b) (2), (d) (2). There is no rational basis for
such disparate treatment. We therefore reverse the trial court’s
order denying Appellant’s motion in arrest of judgment, vacate
Appellant’s sentence, and remand the case for Appellant to be
resentenced for misdemeanor child molestation under OCGA
§ 16-6-4 (b) (2). Because we resolve Appellant’s challenges to his
sentence on federal equal-protection grounds, we do not reach his
cruel-and-unusual-punishment claims.
1. The facts in this case are uncontested. At the time of the
crime, Appellant was 17 years old, and less than four years older
3
than his 13-year-old stepsister, A. M. In the early morning hours of
May 28, 2017, Appellant entered the family living room, where he
found A. M. asleep on the couch. Appellant then put his penis in
A. M.’s hand. When A. M. awoke, Appellant covered himself and
went back to his room. A. M. then reported this incident to her
mother (Appellant’s stepmother). Appellant admitted to his
stepmother what he had done to his stepsister, and law enforcement
officers were contacted.
2. As an initial matter, the State argues that Appellant failed
to properly preserve his constitutional challenges for review because
he abandoned his equal-protection claims and waived his cruel-and-
unusual punishment claims in the trial court. We disagree with
respect to Appellant’s federal equal-protection claim, and we do not
consider whether Appellant’s other constitutional claims were
properly preserved because, as explained above, we do not reach the
merits of those claims.
A constitutional challenge to a sentencing statute is timely if it
was made at the first opportunity. See Woods v. State, 279 Ga. 28,
4
29 (1) (608 SE2d 631) (2005) (holding defendant’s constitutional
challenge to a sentencing statute, which was raised after the verdict
but prior to sentencing, was “made at the first opportunity and,
therefore, was timely.” (citation and punctuation omitted)). Because
a challenge to a sentencing statute may not ripen until after the jury
returns a guilty verdict or after the defendant enters a guilty plea,
such a challenge “should normally be made no later than the
sentencing hearing, at a time when corrective action is still
possible.” Jones v. State, 290 Ga. 670, 674 (3) (725 SE2d 236) (2012)
(citation and punctuation omitted).
On the same day that Appellant entered his non-negotiated
guilty plea, he filed a motion that expressly argued that his sentence
violated the Equal Protection Clause of the Fourteenth Amendment.
Though his concurrently filed brief did not cite the federal Equal
Protection Clause or related decisional law, Appellant argued that
the statutory sentencing scheme, see OCGA § 16-6-4 (b) (2), (d) (2)
was “incongruous” and unfair, and that “[f]ailing to arrest judgment
would result in an impermissible constitutional harm.” Moreover,
5
Appellant amply supported his federal equal-protection claim in his
supplemental briefing to the trial court prior to re-sentencing, and
the State was given adequate notice and opportunity to respond,
which it did. See Woods, 279 Ga. at 29 (1) (noting that the
defendant’s constitutional challenge to his sentence, which occurred
after the verdict but before sentencing, allowed time for “corrective
action” and gave the State “adequate advance notice of the motion
and the basis for the constitutional attack . . . .”). Appellant’s
federal equal-protection claim is also supported by argument and
citations to authority in his briefing before this Court. We therefore
conclude that Appellant’s federal equal-protection claim was timely
raised and properly preserved for our review.
Relying on Sulejman v. Marinello, 217 Ga. App. 319, 320 (1)
(457 SE2d 251) (1995), the State argues that Appellant abandoned
his federal equal-protection claim by failing to support it with
argument and citations to the Constitution and related equal-
protection case law in his initial briefing before the trial court, which
was filed at the time of his guilty plea. Sulejman, however, is a
6
Court of Appeals case that concerns the appellants’ failure to
support one of their enumerations of error in their appellate briefing,
in violation of Court of Appeals Rule 15 (c) (2). See Sulejman, 217
Ga. App. at 320 (1) (citation and punctuation omitted). That rule
did not apply in the trial court, which is instead governed by the
Uniform Superior Court Rules, and those rules do not include an
analogous provision. Further, as noted above, Appellant’s initial
brief-in-support before the trial court elaborates upon the
constitutional argument expressly raised in his concurrent motion,
albeit obliquely. The State’s preservation argument therefore fails.
3. Having determined that we can review Appellant’s federal
equal-protection claim, we now turn to the merits of Appellant’s
equal-protection arguments. Appellant contends that he was
subject to a felony sentence for child molestation even though he is
similarly situated to certain defendants who receive only a
misdemeanor sentence for aggravated child molestation. Appellant
further argues that there is no rational basis for this discrepancy in
the sentencing scheme. Accordingly, he argues that his equal
7
protection rights were violated when he was not sentenced as a
defendant would be under OCGA § 16-6-4 (b) (2). For the reasons
that follow, we agree.
(a) OCGA § 16-6-4 defines both child molestation and
aggravated child molestation. As relevant here, child molestation
occurs when “[a] person . . . [d]oes an immoral or indecent act to . . .
any child under the age of 16 years with the intent to arouse or
satisfy the sexual desires of . . . the person.” OCGA § 16-6-4 (a) (1).
The Criminal Code defines aggravated child molestation as an act of
child molestation which also “physically injures the child or involves
an act of sodomy.” OCGA § 16-6-4 (c). Sodomy, in turn, occurs when
a person “performs or submits to any sexual act involving the sex
organs of one person and the mouth or anus of another.” OCGA
§ 16-6-2 (a) (1). Persons convicted of aggravated child molestation
have, by definition, also committed the offense of simple child
molestation. See Dixon v. State, 278 Ga. 4, 7 (2) (596 SE2d 147)
(2004) (“[S]imple child molestation is a necessary element of
aggravated child molestation, so . . . the State cannot reach
8
aggravated child molestation without first proving that [the
defendant] is guilty of simple child molestation.” (citation and
punctuation omitted)).
Generally, a first offense of child molestation is punishable by
imprisonment for a term of five to 20 years, whereas a first offense
of aggravated child molestation is punishable by either
imprisonment for life or by imprisonment for a term of at least 25
years followed by probation for life. Compare OCGA § 16-6-4 (b) (1),
with OCGA § 16-6-4 (d) (1).
These felony sentences do not apply, however, in certain cases
where the offender is 18 years of age or younger and the additional
conditions set forth in the applicable misdemeanor sentencing
provisions are met. OCGA § 16-6-4 (b) (2), (d) (2). Specifically, the
misdemeanor sentencing provisions for child molestation apply
when the victim is at least 14 years old, the defendant is 18 years of
age or younger, and the defendant is no more than four years older
than the victim. See OCGA § 16-6-4 (b) (2). The misdemeanor
sentencing provisions for aggravated child molestation are similar
9
but contain two key differences: they apply when the victim is at
least 13 years old — rather than 14 years old — and the “basis of
the charge . . . involves an act of sodomy.” OCGA § 16-6-4 (d) (2) (A),
(C). Thus, under these sentencing provisions, a 17-year-old
defendant may receive a misdemeanor sentence for committing
aggravated child molestation against a 13-year-old victim but may
not receive a misdemeanor sentence for committing child
molestation against the same victim. 3
OCGA § 16-6-4’s statutory scheme reveals two legislative
determinations made by the General Assembly. First, acts of child
molestation involving sodomy generally warrant more punishment
than those not involving sodomy. This determination is evident
from the definitions of the offenses themselves and the sentences
prescribed. See OCGA § 16-6-4. Second, the misdemeanor
sentencing provisions found in OCGA § 16-6-4 (b) (2) and (d) (2)
3 The sentencing provisions found in OCGA § 16-6-4 (b) (2) and (d) (2)
are mandatory: under both provisions, the defendant “shall” receive a
misdemeanor sentence if the respective statutory requirements are met.
10
reveal the General Assembly’s determination that acts of child
molestation are less deserving of punishment when the defendant
and the victim are within the prescribed age ranges than when the
same acts are committed by an older defendant or against a younger
victim: when the defendant is older than 18 years of age or the victim
is younger than 13 years of age, both child molestation and
aggravated child molestation are felony offenses. See OCGA
§ 16-6-4 (b), (d); Ga. L. 2006, p. 379, § 11 (amending OCGA § 16-6-4
to add misdemeanor sentencing provisions, among other changes).
(b) The Fourteenth Amendment to the United States
Constitution provides in relevant part that no state shall “deny to
any person within its jurisdiction the equal protection of the laws.”
U.S. Const., Amend. XIV, Sec. 1. “An equal protection challenge to
a criminal statute is examined under the rational basis test” if, as
here, the statute does not “discriminate[ ] on racial grounds or
against a suspect class.” Session v. State, 316 Ga. 179, 190 (3) (b)
(887 SE2d 317) (2023) (citation and punctuation omitted). Because
legislation is presumptively constitutional, the claimant carries the
11
burden of proving that a statute is unconstitutional. See id. at 191(4) (citation and punctuation omitted). To carry that burden in the
equal-protection context, the claimant must demonstrate that “he is
similarly situated to members of the class who are treated
differently from him” and that “there is no rational basis for such
different treatment.” Id. at 190 (3) (b) (citation and punctuation
omitted).
In requiring that similarly situated persons be treated alike,
the Fourteenth Amendment’s Equal Protection Clause forbids “all
classifications that are ‘arbitrary or irrational.’” Glenn v. Brumby,
663 F3d 1312, 1315 (I) (11th Cir. 2011) (quoting City of Cleburne v.
Cleburne Living Ctr., Inc., 473 U.S. 432, 446-447 (105 SCt 3249, 87
LE2d 313) (1985)). See Stegall v. Leader Nat. Ins. Co., 256 Ga. 765,
766 (5) (353 SE2d 484) (1987) (“The equal protection clauses of the
federal and state constitutions prohibit the state from creating a
classification which arbitrarily divides similarly situated citizens
into different classes and treats them differently.” (citation and
punctuation omitted)). See also State v. Holland, 308 Ga. 412, 414
12
(1) (841 SE2d 723) (2020) (“Where a criminal statute does not
discriminate on racial grounds or against a suspect class, equal
protection . . . concerns are satisfied if the statute bears a reasonable
relation to a proper legislative purpose and is neither arbitrary nor
discriminatory.” (citation and punctuation omitted)). “Of course,
most laws differentiate in some fashion between classes of persons.
The Equal Protection Clause does not forbid [all] classifications.”
Nordlinger v. Hahn, 505 U.S. 1, 10 (II) (112 SCt 2326, 120 LE2d 1)
(1992) (citation and punctuation omitted). It simply forbids those
classifications that fail to “promote a legitimate state purpose.”
Williams v. Vermont, 472 U.S. 14, 23 (III) (105 SCt 2465, 86 LE2d
11) (1985) (citation and punctuation omitted). See C & S Nat. Bank
v. Mann, 234 Ga. 884, 887 (2) (218 SE2d 593) (1975) (“[T]he equal
protection clause of the Constitution allows classification by
legislation when and only when the basis of such classification bears
a direct and real relation to the object or purpose of the
legislation . . . .” (citations and punctuation omitted)). In doing so,
the Equal Protection Clause “keeps governmental decisionmakers
13
from treating differently persons who are in all relevant respects
alike.” Nordlinger, 505 U.S. 1, at 10 (II) (citation and punctuation
omitted; emphasis supplied).
Given this analytical framework and the particular facts of
Appellant’s as-applied constitutional challenge, we must consider
whether Appellant, who was 17 years old at the time of the offense
and received a felony sentence for child molestation against a 13-
year-old victim, is similarly situated in “all relevant respects” to the
comparison class of defendants who have received misdemeanor
sentences for aggravated child molestation against a victim of the
same age. Nordlinger, 505 U.S. at 10 (II).
Both Appellant and members of the comparison class have
committed the underlying offense of child molestation. See Dixon
278 Ga. at 7 (2). Additionally, both Appellant and members of the
comparison class have satisfied the conditions set forth in two of the
three subparagraphs of the misdemeanor sentencing provisions for
aggravated child molestation: the victim in both instances is “at
least 13,” OCGA § 16-6-4 (d) (2) (A), and the defendant in both
14
instances is “18 years of age or younger and is no more than four
years older than the victim,” id. at § 16-6-4 (d) (2) (B). The only
difference between Appellant and members of the comparison class
is that the basis for Appellant’s charge of child molestation did not
“involve[ ] an act of sodomy.” Id. at § 16-6-4 (d) (2) (C). Whether the
commission of an act of sodomy is a relevant difference between
Appellant and members of the comparison class turns on whether
the classification scheme drawn by the General Assembly
concerning acts of sodomy “promote[s] a legitimate state purpose”
such that those classifications are neither arbitrary nor irritational.
Williams, 472 U.S. at 23 (III) (citation and punctuation omitted).
See also Holland, 308 Ga. at 414 (1).
As a general matter, it is not arbitrary or irrational to classify
acts of child molestation involving sodomy differently than those
that do not and to punish child molesters differently based on
whether or not they engaged in sodomy with their victims. See
Glenn, 663 F3d at 1315 (I) (holding that the Equal Protection Clause
forbids classifications that are “arbitrary or irrational” (citation and
15
punctuation omitted)). Indeed, the General Assembly is at liberty
to determine that acts of molestation involving sodomy are worse
than acts of molestation that do not and to prescribe different crimes
and punishments based on this distinction. See Rooney v. State, 287
Ga. 1, 6 (3) (690 SE2d 804) (2010) (“Traditionally, it is the task of
the legislature . . . to define crimes and set the range of sentences.”
(citation and punctuation omitted)). To that end, the felony
sentencing scheme found in OCGA § 16-6-4 (d) (1) promotes
Georgia’s legitimate interest in deterring acts of child molestation
involving sodomy by punishing such acts more harshly than acts of
simple child molestation. Compare OCGA § 16-6-4 (b) (1), with
OCGA § 16-6-4 (d) (1).
Generally speaking, the General Assembly also has a rational
basis for classifying acts of child molestation based on the ages of
the defendant and the victim and the difference in age between
them. As a general matter, both of the misdemeanor provisions
found in OCGA § 16-6-4 serve a proper legislative purpose insofar
as they reduce to a misdemeanor the punishment for certain sex acts
16
between teenagers within the prescribed age ranges who are less
than four years apart. See OCGA § 16-6-4 (b) (2), (d) (2).
Here, however, we are faced with a unique set of circumstances
that forces us to ask whether the otherwise generally sound
classification scheme found in OCGA § 16-6-4 remains rational
when applied to Appellant. As noted above, the General Assembly
has identified sodomy as one type of conduct that elevates the
offense of child molestation to aggravated child molestation, thereby
subjecting persons found to have engaged in such conduct to more
severe sentences. See OCGA § 16-6-4 (c), (d) (1). With respect to the
misdemeanor sentencing provisions, however, the General
Assembly has identified sodomy as the type of conduct that reduces
the offense of aggravated child molestation from a felony to a
misdemeanor when the victim and the defendant are within the
given age ranges. See id. at § 16-6-4 (d) (2). This contrast, in itself,
is not necessarily problematic. An issue arises only because the
victim-age-thresholds in the statute’s two misdemeanor provisions
are different: misdemeanor child molestation requires that the
17
victim be “at least 14” years old, but misdemeanor aggravated child
molestation only requires that the victim be “at least 13” years old.
Id. at § 16-6-4 (b) (2), (d) (2) (A). This statutory scheme allows for
the very particular circumstance in which Appellant finds himself:
because Appellant molested a 13-year-old victim, he was sentenced
to a more severe punishment than persons committing the
aggravated version of the same offense against a victim of the same
age, precisely because Appellant did not engage in the conduct (i.e.,
sodomy) that makes the offense aggravated.
When applied to Appellant, OCGA § 16-6-4’s statutory scheme
operates in a way directly at odds with its otherwise legitimate
purposes. Appellant did not engage in sodomy, but he is punished
more harshly than members of the comparison class that did.
Appellant was 18 years of age or younger, and less than four years
older than his 13-year-old victim, but his sentence was not reduced
to a misdemeanor. The fact that Appellant’s sentence would have
been so reduced if he had touched the victim’s mouth with his penis
(and thereby committed an act of aggravated child molestation
18
involving sodomy) rather than her hand (and thus committed simple
child molestation) is not only inconsistent with those legitimate
legislative purposes that we have identified above but also directly
contradicts them. And such a classification scheme promotes no
other proper legislative purpose that we can discern.4 Thus, the fact
that Appellant did not commit sodomy cannot be a relevant
difference between Appellant and the comparison class that renders
them dissimilarly situated and that warrants a difference in
treatment.
(c) The State argues that the misdemeanor sentencing
provisions for aggravated child molestation are rational because
4 Contrary to the dissenting opinion, we need not substitute our
judgment for that of the General Assembly to determine that Appellant has
received a more severe sentence than members of the comparison class for a
less culpable offense. Dissent at 48 (c) (“[N]othing in the Equal Protection
Clause . . . allow[s] courts to supersede legislative judgment about which
crimes should result in harsher penalties.” (citations and punctuation
omitted)). While it would be inappropriate to cast our gaze across the Criminal
Code to ensure it provides a scheme of punishment proportional to our own
perceived hierarchy of criminal offenses, we need not and do not exercise such
judgment here: when making this determination, we rely entirely on the
General Assembly’s definitions of child molestation and aggravated child
molestation and its designation of one offense as the aggravated version of the
other. See OCGA § 16-6-4 (a), (c).
19
they prescribe a reduced sentence for teenagers who engage in
consensual sodomy, and teenagers engaging in consensual sex acts
are less deserving of punishment than Appellant, who engaged in
non-consensual acts. The victim’s lack of consent, however, is an
element of neither child molestation nor aggravated child
molestation. See OCGA § 16-6-4 (a), (c). Indeed, Appellant would
remain ineligible for a misdemeanor sentence even if his victim’s
participation had been voluntary, which it was not. In other words,
the challenged classification here does not draw any line between
“consensual” acts and nonconsensual acts: under the statute, if the
victim is 13 years old, simple child molestation is a felony regardless
of whether the victim engaged in the conduct consensually. And the
State offers no reason at all to believe that the conduct that
comprises felony simple child molestation is somehow any less likely
to be voluntary than the conduct involving sodomy that is classified
as misdemeanor aggravated child molestation. Moreover, even
assuming that there was such a reason, it would not explain why the
victim-age-threshold for misdemeanor aggravated child molestation
20
is 13 years of age, but the victim-age-threshold for misdemeanor
child molestation is 14 years of age. Accordingly, the State’s
argument fails.
Nor can we see any other rational basis for prescribing
misdemeanor sentences for the aggravated child molestation of 13-
year-old victims, while also prescribing felony sentences for simple
child molestation of 13-year-old victims. As explained above,
permitting persons convicted of aggravated child molestation to
receive misdemeanor sentences while requiring a harsher felony
sentence for a defendant who is alike in all other respects except
that he did not engage in sodomy directly conflicts with the
otherwise legitimate purpose of the statutory scheme: punishing
child molestation involving sodomy more harshly. It is not rational
to use an act of sodomy to justify both a harsher felony sentence
generally and a more lenient misdemeanor sentence under the
particular facts at issue here, where the victim is between 13 and 14
years old.
(d) The dissenting opinion takes issue with both our similarly-
21
situated analysis and our rational basis analysis, but its arguments
fail in both regards.
The dissenting opinion claims that Appellant is not similarly
situated to members of the comparison class because he was
convicted under a materially different statutory provision and
because he did not commit an act of child molestation involving
sodomy. See Dissent at 42, 45 (b). As the dissenting opinion notes,
these two differences are closely intertwined: Appellant was
convicted under a different statutory provision than members of the
comparison class precisely because of his different conduct. See id.
at 45 (b). We disagree, however, with the dissenting opinion’s
assertion that the presence or lack of sodomy is always material.
For the reasons described above, whether Appellant’s particular act
of child molestation involved sodomy is not a relevant difference that
renders him differently situated than a person in the comparison
class, even if it would be a germane fact in determining that persons
convicted of child molestation and persons convicted of aggravated
child molestation are not similarly situated in other contexts. Here,
22
Appellant committed simple child molestation but received a more
severe punishment than the aggravated version of the same offense
because he did not engage in the type of behavior that makes the
offense aggravated. Under these narrow circumstances, whether or
not the basis of Appellant’s charge involved an act of sodomy does
not make him differently situated than a person in the comparison
class who receives a misdemeanor sentence for aggravated child
molestation against a victim of the same age.
With respect to our similarly-situated analysis, the dissenting
opinion also takes issue with the fact that we appear to do something
not done previously, namely rule in favor of a claimant “on an as-
applied equal-protection challenge to his sentence by comparing his
conduct to a hypothetical defendant’s different conduct, or by
comparing what Appellant actually did to what he might have done
differently.” Dissent at 40 n.9 (b). Though we have not cited cases
where we have engaged in this exact type of analysis previously, the
dissenting opinion also fails to identify cases in opposition where a
claimant has been subject to a statute that prescribes a more severe
23
punishment for certain instances of a simple offense than the
aggravated version of the same offense based only on the omission
of the conduct that makes the offense aggravated.5 This appears to
be the first time that we have encountered the coupling of the precise
5 Footnote 2 of the dissenting opinion lists numerous citations to support
the proposition that “the great weight of authority” rejects prior as-applied
equal-protection challenges “comparing [a defendant’s] conduct to a
hypothetical defendant’s different conduct.” Dissent at 40 n.9 (b). Most of
these cases bear no resemblance to this one. The one most similar to the facts
here appears to be U.S. v. Hughes, 632 F3d 956 (6th Cir. 2011). There, the
defendant pleaded guilty to one count of attempting to entice a minor to engage
in a criminal sexual act, in violation of 18 USC § 2422 (b). See Hughes, 632
F3d at 958. The defendant in Hughes alleged that his mandatory minimum
sentence of ten years in prison violated his due process and equal protection
rights under the Fifth Amendment to the United States Constitution because
persons convicted of the similar offense of transporting minors with intent to
engage in illicit sexual conduct in violation 18 USC § 2423 (b) are not subject
to a mandatory minimum sentence. See id. The defendant argued that if he
had driven out of state to meet the minor, rather than to a location within his
home state, he would have been charged with violating 18 USC § 2423 (b) and
therefore avoided the imposition of his mandatory minimum sentence. See id.
at 961 (II) (B). The Hughes court concluded that the defendant’s argument
failed because he “is not similarly situated to the theoretical defendant who
commits a violation of § 2423(b).” Id. (emphasis in the original). The court’s
issue was not with the defendant’s use of theoretical defendants as comparison
class, but the fact that the crime for which defendant was convicted included
an element that the comparison crime did not. See id. Though the Hughes
case appears to bear a superficial similarity to the case here at first glance,
this closer look reveals that it does not apply. The statutory provisions at issue
in Hughes did not involve the simple and aggravated versions of the same
offense, as they do here. Unlike the instant case, where the elements of the
statute under which Appellant was charged (i.e., child molestation) are
included in the statute to which the comparison class is subject (i.e.,
aggravated child molestation), the two offenses in Hughes were separate.
24
nature of Appellant’s crime with the particular oddities of a statute
such as this one.
The dissenting opinion’s rational basis argument also fails.
The dissenting opinion begins by pointing out that an appellant can
mount a successful equal-protection argument even if members of
the comparison class are not charged with the same offense. See
Dissent at 36 (a) (“In my view, where we have only required as
essential to an equal-protection claim that a criminal defendant be
charged with the identical offense as someone enjoying more
favorable treatment, we have missed the mark.”). But the
dissenting opinion later faults Appellant for failing to confine his
analysis to the statutory provision under which he was charged and
sentenced, and for instead comparing this provision to a “wholly
separate provision.” Id., at 51 (c). See also id. at 50 (c) (“Rational
basis review, however, does not require one provision of a law to be
rationally related to another provision; it requires the challenged
law to be rationally related to a legitimate government interest.”
(citations and punctuation omitted)). In faulting Appellant in this
25
manner, the dissenting opinion subjects Appellant to the very
bright-line rule from which it sought to distance itself initially. This
analysis is not only internally inconsistent, it is also incorrect: as-
applied equal-protection claims necessarily involve comparisons
between members of the different groups created by a classification
scheme, whether created by one or more statutory provisions, and
we are required to consider whether there is a rational basis for any
resulting difference in treatment between similarly-situated
members of such groups. 6 Because the dissenting opinion frames
the types of comparisons that can be made in viable equal-protection
challenges too narrowly, it misses the mark.
The dissenting opinion further argues that there is a rational
basis for OCGA § 16-6-4’s statutory scheme. Because the General
Assembly prescribed stern penalties for felony aggravated child
6 We do not contend that any apparent inconsistency in sentencing
between different statutes necessarily indicates that the General Assembly
acted without a rational basis. But see Dissent at 50 (c). Rather, here, we have
examined the classification scheme present in a single statute as it applies to
Appellant under the particular facts of his case to see if the sentencing
prescribed by the General Assembly lacks a rational basis as applied to him.
26
molestation, the dissenting opinion argues, it also had a legitimate
interest in crafting misdemeanor exceptions which ensure that
“youthful defendants who engage in acts of sodomy will not be
subject to the law’s harshest consequences.” Dissent at 53 (c). See
also OCGA §§ 16-6-4 (b), (d); 17-10-6.1; 17-10-6.2. On this point, we
agree: as we previously noted in Section 3 (b), supra, OCGA
§ 16-6-4’s misdemeanor sentencing provisions generally serve a
legitimate governmental purpose insofar as they reduce sentences
for youthful defendants when the age-related conditions for the
defendant and the victim are met. See OCGA § 16-6-4 (b) (2), (d) (2).
But in identifying this purpose, the dissenting opinion does little to
explain why the misdemeanor provisions for aggravated child
molestation apply when the victim is at least 13 years old, but the
misdemeanor provisions for child molestation require that the
victim be at least 14 years old. See id.; Ga. L. 2006, p. 379, § 11
(amending OCGA § 16-6-4 to add misdemeanor sentencing
provisions for child molestation and aggravated child molestation,
among other changes). Because the dissenting opinion fails to
27
adequately explain this discrepancy and thereby fails to supply a
rational basis for the statutory scheme, we remain unpersuaded.
4. Because Appellant is similarly situated to persons receiving
misdemeanor sentences for aggravated child molestation against a
13-year-old victim and because the higher age threshold for
misdemeanor child molestation bears no reasonable relation to a
proper legislative purpose, we conclude that the sentencing scheme
for child molestation set out at OCGA § 16-6-4 (b), as applied to
Appellant, violated his right to equal protection under the
Fourteenth Amendment to the United States Constitution.
Accordingly, we reverse the trial court’s denial of Appellant’s motion
in arrest of judgment, vacate Appellant’s sentence, and remand for
the trial court to resentence Appellant for child molestation under
OCGA § 16-6-4 (b) (2) rather than under OCGA § 16-6-4 (b) (1).
Judgment reversed, sentence vacated, and case remanded for
resentencing. All the Justices concur, except Bethel and LaGrua, JJ.,
who dissent.
28
PINSON, Justice, concurring.
I agree with the Court’s narrow holding that the sentencing
provisions of OCGA § 16-6-4 (b) (2), as applied to the defendant here,
violate his right to equal protection under the Fourteenth
Amendment to the United States Constitution. I write separately
only to note that I do not understand federal equal protection
analysis to require a separate, threshold determination whether a
claimant is “similarly situated” to members of the class who are
treated differently from him. In many equal protection decisions, the
United States Supreme Court does not even use the phrase
“similarly situated,” see, e.g., Romer v. Evans, 517 U.S. 620, 631 (116
S. Ct. 1620, 1627, 134 LE2d 855) (1996) (in setting out the standard
for assessing an equal protection claim subject to rational basis
review, stating only that “if a law neither burdens a fundamental
right nor targets a suspect class, we will uphold the legislative
classification so long as it bears a rational relation to some
legitimate end”), and when it does, it is a mere restatement of what
the Equal Protection Clause requires as a general matter, not a
29
separate or threshold test. See, e.g., City of Cleburne, Tex. v.
Cleburne Living Ctr., 473 U.S. 432, 439 (105 S. Ct. 3249, 3254, 87
LE2d 313) (1985) (“The Equal Protection Clause of the Fourteenth
Amendment commands that no State shall ‘deny to any person
within its jurisdiction the equal protection of the laws,’ which is
essentially a direction that all persons similarly situated should be
treated alike.”); Plyler v. Doe, 457 U.S. 202, 216 (102 S. Ct. 2382, 72
LE2d 786) (1982) (“The Equal Protection Clause directs that ‘all
persons similarly circumstanced shall be treated alike.’”).
And logically, we cannot reject a federal equal protection claim
based merely on a conclusion that some characteristic distinguishes
the claimant from the group that the government is treating
differently. Even under rational basis review, the ultimate question
is whether the government has a legitimate (i.e., not arbitrary)
reason for treating the claimant differently. See, e.g., Rinaldi v.
Yeager, 384 U.S. 305, 308-309 (86 S. Ct. 1497, 16 LE2d 577) (1966)
(“The Equal Protection Clause . . . imposes a requirement of some
rationality in the nature of the class singled out…. [L]egislation may
30
impose special burdens upon defined classes in order to achieve
permissible ends. But the Equal Protection Clause does require that,
in defining a class subject to legislation, the distinctions that are
drawn have ‘some relevance to the purpose for which the
classification is made.’” (citations omitted)). So if some characteristic
distinguishes the claimant from the group, that’s not the end of the
inquiry—we still have to determine whether that characteristic is a
legitimate basis for the different treatment. And if not, the proper
conclusion is that the classification lacks a rational basis, not that
the claimant loses because he is not “similarly situated.” On the
other hand, if that characteristic is a legitimate basis for the
different treatment, that’s just another way of saying that there is a
rational basis for the government’s classification. In short, the
“similarly situated” question may help isolate the possible factual
bases for the claimant’s different treatment compared to the
comparison group, particularly in an as-applied challenge where the
basis for a classification does not appear expressly on the face of a
31
statute. But the similarly-situated step is not an independent basis
for rejecting an equal protection claim.
I understand the Court’s opinion to be consistent with this
view. Although the Court assesses whether the defendant here is
“similarly situated” to the group he identifies as receiving better
treatment than himself, we frame that question as whether he is
similarly situated “in all relevant respects,” and we explain that
whether the distinguishing characteristic here is a “relevant
difference” turns on whether treating the defendant differently
based on that distinguishing characteristic “promote[s] a legitimate
state purpose.” Slip Op. at 15. In my view, that’s just rational basis
review using different words, as the balance of the Court’s analysis
shows. 7
7 Because the Court concludes that the defendant here is similarly
situated and that the classification as applied to him violated his right to equal
protection of the laws, we need not decide what to do with this Court’s decisions
that reject federal equal protection claims based on a preliminary
determination that the claimant was not “similarly situated” without
addressing whether there was a rational basis for treating the claimant
differently. See, e.g. Drew v. State, 285 Ga. 848 (684 SE2d 608) (2009). That
said, in a future case we may need to consider whether that approach conflicts
with U.S. Supreme Court precedent. In that vein, I note that at least some of
32
With this understanding, I join the Court’s opinion.
I am authorized to state that Presiding Justice Peterson,
Justice Warren, and Justice McMillian join in this concurrence.
our decisions taking that approach can be traced back to decisions from the
U.S. Court of Appeals for the Eleventh Circuit that are not grounded in U.S.
Supreme Court precedent. See, e.g., Stuart-James Co. v. Tanner, 259 Ga. 289,
290 (380 SE2d 257) (1989) (citing Price v. Tanner, 855 F.2d 820 (11th Cir. 1988)
for the proposition that an equal protection claim is analyzed under a “two-
prong” test which requires “as a ‘preliminary step’ a determination of ‘whether
persons who are similarly situated are subject to disparate treatment” and
holding that the claimants had not met their “threshold obligation” to show
they are similarly situated to the comparator group (citations omitted)). See
also Price, 855 F.2d at 822 (citing Circuit precedent for the idea that “[a]n equal
protection analysis…requires as a ‘preliminary step’ a determination of
‘whether persons who are similarly situated are subject to disparate
treatment.’” (citations omitted). Accord Jones v. State, 307 Ga. 505, 507-508
(837 SE2d 288) (2019) (analyzing only the “first prong” of the equal protection
analysis); Reed v. State, 264 Ga. 466, 466-467 (488 SE2d 189) (1998) (“Since
Reed failed to satisfy the threshold obligation in his equal protection challenge,
we do not consider whether the statute is rationally related to a legitimate
state interest.”); Sims v. State, 260 Ga. 782, 782-783 (399 SE2d 924) (1991) (“To
successfully launch an equal protection attack on a statutory provision, a
claimant must initially show that he is similarly situated to members of the
class who are treated differently from him.”).
33
BETHEL, Justice, dissenting.
Because I believe Appellant’s sentence is due to be affirmed, I
respectfully dissent. I agree with the majority’s description of the
proper test to be applied to Appellant’s equal-protection claim. I
believe, however, that the majority has identified an incorrect
theoretical comparator for that analysis. For what appears to be the
first time anywhere, the majority upholds an equal-protection claim
by referencing a theoretical defendant whose crime requires proof of
at least one act more than the act(s) committed by the person raising
the equal protection claim. Because Appellant is not treated less
favorably than any individual he has identified or theorized who
engaged in the same conduct, his equal-protection claim fails.
“The Equal Protection Clause of the Fourteenth Amendment
commands that no State shall deny to any person within its
jurisdiction the equal protection of the laws, which is essentially a
direction that all persons similarly situated should be treated alike.”
(Citation and punctuation omitted; emphasis supplied.) City of
Cleburne v. Cleburne Living Ctr., 473 U. S. 432, 439 (II) (105 SCt
34
3249, 87 LE2d 313) (1985). To succeed on an equal-protection
challenge, the claimant must demonstrate that he has been treated
differently from similarly situated persons.8 And as the majority
correctly recognizes, persons are similarly situated for equal-
protection purposes if they are alike “in all relevant respects.”
(Emphasis in original.) Maj. Op. at 14 (3) (b).
(a) I begin with a point of certainty. When this Court has had
occasion to consider equal-protection claims arising from allegedly
disparate sentencing schemes, we have consistently held that
“criminal defendants are similarly situated if they are charged with
the same crime.” Session v. State, 316 Ga. 179, 189-190 (3) (b) (887
SE2d 317) (2023). See also State v. Holland, 308 Ga. 412, 416 (2)
(841 SE2d 723) (2020); Jones v. State, 307 Ga. 505, 507-508 (2) (a)
(837 SE2d 288) (2019); Pitts v. State, 293 Ga. 511, 516 (2) (748 SE2d
8 When an as-applied petitioner does not claim differential treatment
based on membership in a suspect class, the petitioner must also establish that
there is no rational basis for his individualized differential treatment. See
Jones v. State, 307 Ga. 505, 507-508 (2) (a) (837 SE2d 288) (2019). Whether
this is a two-part inquiry or part-in-parcel with the similarly situated inquiry,
a claimant has the burden of proof as to the inquiry. See id.35
426) (2013); Drew v. State, 285 Ga. 848, 850 (2) (684 SE2d 608)
(2009); Hardin v. State, 277 Ga. 242, 243 (2) (587 SE2d 634) (2003);
Young v. State, 275 Ga. 309, 309-310 (1) (565 SE2d 814) (2002); State
v. Jackson, 271 Ga. 5, 5-6 (515 SE2d 386) (1999). Our analysis in
these cases suggests that, as a general proposition or even as an
absolute requirement, an appellant must have been charged with
the same offense as those criminal defendants with whom he
contended he was similarly situated.
To the extent this line of cases suggests an absolute
requirement that a claim be based on a comparator charged with the
same crime, I view it as in tension with the broader rule relied upon
by the majority, which requires courts to determine whether a
defendant and a given comparator are (or are not) similarly situated
in all relevant respects. In my view, where we have only required as
essential to an equal-protection claim that a criminal defendant be
charged with the identical offense as someone enjoying more
favorable treatment, we have missed the mark. On this point, the
majority and I agree. Indeed, our recognition here of the proper “all
36
relevant respects” standard should serve to redirect future analysis
away from the static rule suggested by some of our precedent and
properly toward a more comprehensive inquiry.
(b) My disagreement with the majority arises not from the
standard it has applied, but from the way in which it applies that
standard. The majority concludes that Appellant, who was convicted
of child molestation and sentenced for a felony under OCGA § 16-6-
4 (a) (1) and (b) (1), is similarly situated to a theoretical defendant
who was convicted of aggravated child molestation based on sodomy
and sentenced for a misdemeanor under OCGA § 16-6-4 (c) and (d)
(2). The majority has centered its analysis — incorrectly, in my view
— on the similarities of the statutory elements of child molestation
and aggravated child molestation, rather than on the actual facts of
Appellant’s case. And because of this misplaced focus, the majority
overlooks two controlling points of comparison that lead me to
conclude that Appellant is not similarly situated with the
comparative group. Turning first to the majority’s analytical
framework, by training its focus solely on the statutory elements of
37
the crimes, the majority functionally treats Appellant’s claim as a
facial challenge to the sentencing scheme but does not extend its
analysis to consider whether the statute would be unconstitutional
in all circumstances, as a proper facial analysis should. See Bucklew
v. Precythe, ___ U. S. ___ (II) (B) (139 SCt 1112, 1127, 203 LEd2d
521) (2019) (“A facial challenge is really just a claim that the law or
policy at issue is unconstitutional in all its applications.”).
Appellant’s claim, however, is not a facial challenge. He
instead challenges the sentencing scheme as it applies to him under
the facts of his particular case. See Jones, 307 Ga. at 509 (2) (b) (“An
as-applied challenge addresses whether a statute is
unconstitutional on the facts of a particular case or to a particular
party.” (punctuation omitted)). Because Appellant has raised an as-
applied equal-protection challenge to his sentence, he can prevail
only by showing, from his own identifying characteristics or his
actual conduct, that the government treated him differently based
on his membership in a suspect class, or that the government
arbitrarily singled him out for harsher punishment than persons
38
who engaged in his same conduct. See, e.g., Engquist v. Or. Dept. of
Agric., 553 U. S. 591, 601 (II) (B) (128 SCt 2146, 170 LEd2d 975)
(2008) (explaining that, when an equal-protection challenger is not
a member of a suspect class, his claim nevertheless may be
sustained where he has been “irrationally singled out as a so-called
‘class of one’”); United States v. Batchelder, 442 U. S. 114, 124-25
(III) (B) (99 SCt 2198, 60 LEd2d 755) (1979) (holding that, absent
evidence of selective enforcement based on a prohibited
classification, defendant’s right to equal protection was not violated
where he was prosecuted under a law with harsher penalties than
another law under which he also could have been prosecuted);
Campbell v. Rainbow City, 434 F3d 1306, 1314 (II) (C) (11th Cir.
2006) (An equal-protection challenge will fail where the claimant,
who must prove that he was “intentionally treated differently from
others similarly situated and that there [was] no rational basis for
the difference in treatment,” does not make the “necessary showing
of ill will or discriminatory purpose.”).
While we must apply the same “all relevant respects” inquiry
39
to both facial and as-applied challenges, see Bucklew, 139 SCt at
1127 (II) (B) (“[C]lassifying a lawsuit as facial or as-applied . . . does
not speak at all to the substantive rule of law necessary to establish
a constitutional violation[.]”), the analysis each requires is
necessarily distinct. Here, our analysis of Appellant’s as-applied
challenge must focus on the actual facts of Appellant’s case, not the
elements of two different statutory provisions, nor the facts as they
might have been had Appellant acted differently, and certainly not
the facts of a hypothetical defendant’s case.9 In other words, the
9 Neither Appellant nor the majority have cited, and I have been unable
to find, any decisional authority in which a claimant has prevailed on an as-
applied equal-protection challenge to his sentence by comparing his conduct to
a hypothetical defendant’s different conduct, or by comparing what Appellant
actually did to what he might have done differently. While the absence of such
authority does not disprove the possibility that such a claim may be successful,
the great weight of authority rejecting all such prior attempts gives me pause.
See, e.g., Mitchell v. Morton County, 28 F4th 888, 902 (II) (B) (3) (8th Cir. 2022)
(“[A]n equal protection violation cannot be founded on theoretical
possibilities.”); Carney v. Okla. Dept. of Pub. Safety, 875 F3d 1347, 1353 (D)
(10th Cir. 2017) (holding that equal-protection claim failed because defendant
could not prove that he was treated differently than persons convicted of the
same crime); Hughes, 632 F3d at 961 (II) (B) (holding that defendant was not
similarly situated to a “theoretical defendant” who violated a different law
because he “commit[ted] separate crimes encompassing different elements,”
and insofar that the defendant “claim[ed] an equal protection violation because
he was similarly situated to actual defendants prosecuted under [one law],
[but] who in fact committed all the elements of [another law], that is a claim
40
proper inquiry is whether the actual facts of Appellant’s case show
for selective prosecution”); United States v. Hancock, 231 F3d 557, 566 (III) (A)
(2) (9th Cir. 2000) (finding no equal-protection violation despite fact that a
statute could, in some hypothetical circumstances, “treat [] misdemeanants
more harshly than it treats some felons”); United States v. Carroll, 110 F3d
457, 461 (II) (7th Cir. 1997) (Because sentencing schemes “will necessarily
involve line-drawing likely to be offensive to the defendant who just misses the
cutoff,” to prevail on an equal-protection challenge, a defendant “must do more
than suggest a different line-drawing technique” by suggesting a hypothetical
which “favors his situation.”); State v. McEnroe, 309 P3d 428, 435 (IV) (Wa.
2013) (explaining that engaging in hypotheticals for purposes of equal-
protection analysis “unrealistically assumes that there are two identical
crimes and two identical defendants and thereby forecloses the possibility of
an individualized assessment by asking us to assume everything is equal” and,
therefore, “does not illustrate a realistic equal protection violation but
demonstrates exactly why we require individualized determinations from our
prosecuting attorneys”); State v. Taylor, 939 P2d 904, 908 (II) (Kan. 1997)
(holding that “speculation as to what sentencing outcomes multiple defendants
could face in hypothetical situations” was “insufficient to raise a denial of equal
protection claim”); State v. Sandifer, 679 So2d 1324, 1333 (La. 1996) (Because
defendant was not being prosecuted for a theoretical crime under a different
statute, “he had no standing to raise [an] equal protection claim.”); State v.
O'Connor, 194 NW2d 246, 250 (S.D. 1972) (refusing to reverse conviction based
“on the hypothetical contention that conceivably two persons under like
circumstances could be charged with different offenses arising out of the same
circumstances”). See also Del Marcelle v. Brown County Corp., 680 F3d 887,
897-898 (7th Cir. 2012) (Posner, J.) (explaining that “[c]lass-of-one claims
cannot be interposed as defenses to criminal prosecutions, convictions, or
sentences” because “[t]here would be chaos if persons charged with crime could
base a defense on the ground that a similarly situated criminal suspect had
not been charged, or if a person convicted of crime could knock out his sentence
by showing that a similarly situated criminal had received a more lenient
sentence”). Compare with People v. Montoya, 582 P2d 673 (Colo. 1978), and
Smith v. People, 852 P2d 420 (Colo. 1993), which support the proposition that
an equal-protection claim can successfully challenge a sentencing scheme
providing a more severe punishment for a less culpable mental state connected
to identical conduct.
41
that he, in fact, is similarly situated “in all relevant respects” with
the comparative group. See PBT Real Estate, LLC v. Town of Palm
Beach, 988 F3d 1274, 1285 (11th Cir. 2021) (“[W]e apply the
‘similarly situated’ requirement with rigor” and, as such, the
comparators “must be prima facie identical in all relevant respects.”
(citation omitted)); Douglas Asphalt Co. v. Qore, Inc., 541 F3d 1269,
1275 (11th Cir. 2008) (holding that an equal-protection petitioner
must be “similarly situated in light of all [relevant] factors” with the
comparative group). Applying this inquiry, I conclude that at least
two points of comparison control and, thus, that Appellant is not
similarly situated to the proposed comparative group.
First, Appellant and the comparators here were convicted
under materially different statutory provisions. At the time of
sentencing, 10 Appellant had pleaded guilty to the offense of child
10 The relevant time frame for purposes of determining whether
Appellant is similarly situated to the comparative group is at the sentencing
stage. See United States v. Green, 654 F3d 637, 651 (III) (B) (2) (6th Cir. 2011)
(“[B]ecause [appellant] appears to raise an equal protection claim based on the
government’s charging decision, he must prove that he was similarly situated
to [the comparators] at the charging stage.”); Moore, 543 F3d 897 (II)
(analyzing equal-protection challenge at charging and sentencing stages).
42
molestation under OCGA § 16-6-4 (a) (1), whereas members of the
comparator group were convicted of aggravated child molestation
based on an act of sodomy under OCGA § 16-6-4 (c). These statutory
provisions define separate crimes that proscribe different acts, with
subsection (c) covering the specific act of sodomy and subsection (a)
(1) covering the broader “immoral or indecent act to or in the
presence of or with” a child. While not a sufficient basis on its own
to conclude that Appellant and the comparative group are not
similarly situated, the fact that they were convicted of different
crimes is certainly relevant to the analysis. See United States v.
Hughes, 632 F3d 956, 960-961 (II) (B) (6th Cir. 2011) (concluding
that defendant was not “similarly situated to the theoretical
defendant who commits a violation [of a different statute] because
they commit separate crimes encompassing separate elements”
(emphasis in original)); United States v. Nagel, 559 F3d 756, 760 (II)
(A) (7th Cir. 2009) (“[C]riminal defendants who violate [one statute]
are not similarly situated for sentencing purposes with criminal
defendants who violate” a different statute. “An equal protection
43
violation occurs only when different legal standards are arbitrarily
applied to similarly situated individuals.” (citation and punctuation
omitted)).
Appellant is further distinguished from the comparator group
by the facts underlying his conviction. 11 At Appellant’s plea hearing,
the court required the State to provide the factual basis for
Appellant’s guilty plea. The prosecutor stated as follows: the victim
“had been asleep on the couch in the living room when she woke up
11 Curiously, the majority suggests that my analysis is limited to the
elements of the criminal offenses in question and that my analysis is too
“narrow” in assessing what points of comparison are properly considered in a
“viable” equal-protection claim. Maj. Op. at 25-26 (3) (d). On the contrary, my
view of what considerations may be a part of a viable claim is quite broad.
Nevertheless, that consideration terminates upon the finding of a material
difference between the Appellant’s conduct and that of the comparator he
wishes to be judged against. It would make no sense whatsoever for an “all
relevant respects” analysis to continue after having identified a material
difference. This is not a balancing test. Requiring further search for
similarities after the identification of a material difference would be like
continuing to search for a lost key after it was found – finding a material
difference necessarily terminates an all relevant respects analysis. As for the
suggestion that my analysis is limited to the elements of the crimes in question,
I agree that I emphasize the relevance of the elements, but I believe they are
essential to guiding the remainder of the analysis. For example, altering the
facts of this case would present a meaningful illustration. If, all else being the
same, Appellant had engaged in an act of sodomy and had nevertheless been
charged with child molestation as opposed to aggravated child molestation
(and its sentencing exceptions), I believe we would have a different analysis in
light of the fact that identical conduct would be present.
44
to her step-brother, [Appellant], beside her . . . and he had placed his
penis in her hand. . . . [Appellant] covered himself up and went back
to his room.” Under oath, upon questioning from the court,
Appellant affirmed the veracity of the State’s representations. These
facts show that, unlike the comparator group, Appellant did not
commit an act of sodomy.
Though the majority discounts this distinction, viewing it as no
impediment to the survival of Appellant’s equal-protection claim, I
cannot follow suit. Not only does the majority’s approach ignore the
very mandate it prescribes — which requires courts to consider “all
relevant respects” when deciding equal-protection claims — but this
difference in conduct is the reason Appellant received a different
sentence than a defendant convicted of and sentenced for
misdemeanor aggravated child molestation based on sodomy.
Indeed, when defendants engage in different conduct and, thus, are
convicted of different crimes, it should be no surprise that their
45
sentences also might differ.12 But that difference cannot establish an
equal-protection violation. See Stradford v. Secretary of Pa. Dept. of
Corrections, 53 F4th 67, 74 (III) (A) (3d Cir. 2022) (“Courts must
isolate the factor allegedly subject to impermissible discrimination.
Other factors explaining disparate treatment will usually preclude
persons from being similarly situated.” (citations and punctuation
omitted)). See also Griffin v. County School Bd., 377 U. S. 218, 230
12 The majority minimizes the importance of this distinction by
imagining how Appellant’s sentence might have been different if he had
committed an act of sodomy by placing his penis on the victim’s mouth, rather
than an act of molestation by placing his penis in her hand. But what Appellant
might have done differently to warrant conviction and sentence for a separate
crime serves only to confuse the analysis. We have no way of knowing how
Appellant would have accomplished an act of sodomy, and whether he would
have done so in a way that would expose him to charges for other crimes. For
instance, if Appellant used force to commit the act of sodomy, he could be
charged with aggravated sodomy, an offense that carries a much harsher
sentence and enjoys no misdemeanor exception for youthful offenders. See
OCGA § 16-6-2 (a) (2) and (b) (2). Nor do we know how the prosecutor would
have exercised her discretion in indicting Appellant under this imaginary set
of circumstances. Indeed, even under the majority’s hypothetical, the
prosecutor would have discretion to indict Appellant for simple child
molestation, as in the instant case. See Batchelder, 442 U. S. at 125 (“Just as
a defendant has no constitutional right to elect which of two applicable [ ]
statutes shall be the basis of his indictment and prosecution, neither is he
entitled to choose the penalty scheme under which he will be sentenced.”). This
illustrates the danger of the judicial branch’s venturing into the legislative
prerogative even where the legislature’s choices appear inconsistent or
illogical. Accordingly, our analysis must be confined to the facts as they
actually stand, and we should take the claimant as we find him.
46
(84 SCt 1226, 12 LEd2d 256) (1964) (“[S]howing that different
persons are treated differently is not enough, without more, to show
a denial of equal protection.”) (citations omitted)); Tigner v. Texas,
310 U. S. 141, 147 (60 SCt 879) (84 LE2d 1124) (1940) (“[T]he
Constitution does not require things which are different in fact or
opinion to be treated in law as though they were the same.”).
Therefore, under the facts of Appellant’s case, I would conclude that
Appellant is not similarly situated to the comparative group. 13
(c) My disagreement with the majority extends to its
assessment of the rationality of the differences articulated in the
statutory scheme. Appellant’s actual conduct in this case supported
a charge of child molestation, to which he pleaded guilty and for
which he was sentenced. If I were to consider my own personal view
or the apparent view expressed otherwise in the Georgia Code, I
13 Even if Appellant could prove that he had committed acts which would
similarly situate him with defendants who were sentenced under the
misdemeanor aggravated child molestation provision, however, Appellant still
would not be able to prove that he was singled out for harsher treatment than
them, which he must do to succeed on his as-applied challenge. See, e.g.,
Engquist, 553 U. S. at 601; Batchelder, 442 U. S. at 124-25 (III) (B); Rainbow
City, 434 F3d at 1314 (II) (C).
47
would concede that, in most circumstances, an act of sodomy could
be worse and more traumatic to the victim than an act that
constitutes simple child molestation. But nothing in the Equal
Protection Clause requires the legislature to treat offenders who
commit arguably worse crimes more severely, 14 nor does it allow
14 On that point, we should consider the current state of the Georgia Code
as it relates to sexual offenses, which is replete with apparent inconsistencies.
See, e.g., OCGA § 16-6-3 (c) (statutory rape) (“If the victim is at least 14 but
less than 16 years of age and the person convicted of statutory rape is 18 years
of age or younger and is no more than four years older than the victim, such
person shall be guilty of a misdemeanor.”); OCGA § 16-6-5 (c) (enticing a child
for indecent purposes) (“If the victim is at least 14 but less than 16 years of age
and the person convicted of enticing a child for indecent purposes is 18 years
of age or younger and is no more than four years older than the victim, such
person shall be guilty of a misdemeanor[.]”); OCGA § 16-6-5.1 (f) (2) (A) & (B)
(improper sexual contact by employee, agent, or foster parent) (“If at the time
of the offense the victim of the offense is at least 14 years of age but less than
21 years of age and the person is 21 years of age or younger and is no more
than 48 months older than the victim, such person shall be guilty of a
misdemeanor.” However, if the victim “is under the age of 16 and the act
physically injures the victim or involves an act of sodomy, the offense shall be
punished by imprisonment for not less than 25 nor more than 50 years and a
fine not to exceed $100,000.00[.]”); OCGA § 16-6-22.1 (f) (sexual battery)
(“When the alleged victim is under the age of 16 years and the conduct is for
the purpose of sexual arousal on the part of the alleged offender or alleged
victim, consent of the alleged victim shall not be a defense to a prosecution
under this Code section; provided, however, that if at the time of the offense
the alleged victim is at least 13 but less than 16 years of age and the accused
is 18 years of age or younger and no more than 48 months older than the
alleged victim, this subsection shall not be applicable.”); OCGA § 16-6-22.2 (d)
(aggravated sexual battery) (“When the alleged victim is under the age of 16
years and the conduct is for the purpose of sexual arousal on the part of the
48
courts to supersede legislative judgment about which crimes should
result in harsher penalties. See United States v. Meirick, 674 F3d
802, 805 (8th Cir. 2012) (“It is within the legislative prerogative to
determine, for example, whether child pornography offenses should
be punished more or less harshly than sexual offenses involving
personal contact with a child . . . . ‘[R]ational basis’ review of
sentencing provisions under . . . the Equal Protection Clause must
be highly deferential to legislative judgments about the most
effective way to protect the public from convicted criminals.”);
United States v. Hancock, 231 F3d 557, 566 (9th Cir. 2000).
To the contrary, where the petitioner is not a member of a
suspect class, the legislature’s work enjoys a “strong presumption”
of rationality, and the petitioner carries the heavy burden “to
negative every conceivable basis which might support it.”
(Punctuation omitted.) FCC v. Beach Communications, 508 U.S.
alleged offender or alleged victim, consent of the alleged victim shall not be a
defense to a prosecution under this Code section; provided, however, that if at
the time of the offense the alleged victim is at least 13 but less than 16 years
of age and the accused is 18 years of age or younger and no more than 48
months older than the alleged victim, this subsection shall not be applicable.”).
49
307, 314 (II) (113 SCt 2096, 124 LEd2d 211) (1993). The majority
inverts that burden — it identifies one sentencing provision that
appears facially inconsistent with another, then all but presumes
that the identified inconsistency is irrational, simply by virtue of its
existence. Rational basis review, however, does not require one
provision of a law to be rationally related to another provision;
rather, it requires the challenged law to be rationally related to a
legitimate government interest. See Williamson v. Lee Optical of
Oklahoma, 348 U. S. 483, 487-488 (75 SCt 461, 99 LEd 563) (1955)
(A “law need not be in every respect logically consistent” to be
rational or constitutional.); United States R. Retirement Bd. v. Fritz,
449 U. S. 166, 179 (101 SCt 453, 66 LE2d 368) (1980) (The process
of legislative line-drawing “inevitably requires that some persons
who have an almost equally strong claim to favored treatment be
placed on different sides of the line, and the fact the line might have
been drawn differently at some points is a matter for legislative,
rather than judicial, consideration.” (punctuation omitted)). Because
Appellant built his case by assessing the rational basis for the
50
differences between the provision under which he was sentenced
and a wholly separate provision under which he was not and could
not have been sentenced, Appellant, in my view, has not carried his
burden.
In any event, there is a rational basis for the difference in
treatment. Unless the misdemeanor sentencing exception applies,
persons convicted of child molestation are subject to the sentencing
and punishment provisions of OCGA § 17-10-6.2, see OCGA § 16-6-
4 (b) (1), while persons convicted of aggravated child molestation are
subject to the provisions of OCGA § 17-10-6.1, see OCGA § 16-6-4 (d)
(1). Under OCGA § 17-10-6.2 (b), a person convicted of child
molestation, a “sexual offense,” must be sentenced to a “split
sentence” which includes the “minimum term of imprisonment” —
that is, five years — specified by OCGA § 16-6-4 (b) (1). While OCGA
§ 17-10-6.2 (b) prohibits a trial court from suspending, staying,
probating, deferring, or withholding the mandatory minimum
sentence, subsection (c) of the same statute grants the trial court
discretion to deviate from that mandatory minimum. Deviation is
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permitted where “the prosecuting attorney and the defendant have
agreed to a sentence that is below such mandatory minimum” or
where the trial court finds that other circumstances identified in the
statute are present, even absent consent of the parties. OCGA § 17-
10-6.2 (c) (1). By contrast, under OCGA § 17-10-6.1 (b) (2), a person
convicted of aggravated child molestation, a “serious violent felony,”
must, unless sentenced to serve life in prison, be sentenced to “a split
sentence which shall include a mandatory minimum term of
imprisonment of 25 years, followed by probation for life.” A trial
court’s discretion to deviate from that mandatory minimum is
limited only to circumstances in which “the prosecuting attorney
and the defendant have agreed to a sentence that is below such
mandatory minimum.” OCGA § 17-10-6.1 (e).
These statutes reflect that the default sentence for a conviction
of aggravated child molestation is much harsher than that for child
molestation and that, in cases of aggravated child molestation, a
trial court’s discretion to fashion a more lenient sentence is greatly
circumscribed and may be implemented only with the government’s
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consent. In light of the significant punishment imposed in cases of
aggravated child molestation where sentencing is governed by
OCGA § 17-10-6.1, as well as the trial court’s circumscribed
discretion to reduce such sentences, the legislature had a legitimate
interest in crafting a scheme that helps ensure that youthful
defendants who engage in acts of sodomy will not be subject to the
law’s harshest consequences.15 Broadening the circumstances in
which the misdemeanor sentencing provision applies is at least
rationally related to that purpose. See Humphrey v. Wilson, 282 Ga.
520, 528-529 (3) (a) (652 SE2d 501) (2007) (amendment of OCGA §
16-6-4 to reduce the punishment for sodomy with a 13-, 14-, or 15-
15 The legislature has followed the same approach with other sexual
offenses. See, e.g., OCGA § 16-6-3 (b), (c) (person convicted of statutory rape is
subject to provisions of OCGA § 17-10-6.2, but misdemeanor sentencing
provision applies where victim was at least 14 but less than 16 years old);
OCGA § 16-6-5 (b) (c) (person convicted of enticing a child for indecent purposes
is subject to provisions of OCGA § 17-10-6.2, but misdemeanor sentencing
provision applies where victim was at least 14 but less than 16 years old);
OCGA § 16-6-5.2 (person convicted of second-degree improper contact by
employee or agent, person in position of trust, or foster parent is subject to
provisions of OCGA § 17-10-6.2, but misdemeanor sentencing provision applies
where victim was at least 14 but less than 16 years old); OCGA § 16-12-100 (f)
(person convicted of sexual exploitation of a child is subject to provisions of
OCGA § 17-10-6.2, but misdemeanor sentencing provision applies to specified
conduct where victim was at least 14 years old).
53
year-old child when the defendant is no more than four years older
than the victim “appears to be a recognition by our General
Assembly that teenagers are engaging in oral sex” and that such
“teenagers should not be classified among the worst offenders
because they do not have the maturity to appreciate the
consequences of irresponsible sexual conduct and are readily subject
to peer pressure”). See also Bunn v. State, 291 Ga. 183, 191 (2) (b)
(728 SE2d 569) (2012) (“[I]n areas subject only to rational basis
review, the legislature may address a problem one step at a time, or
even select one phase of one field and apply a remedy there,
neglecting the others, without violating equal protection.”
(punctuation omitted)).16
(d) For all these reasons, I conclude that Appellant is not
16 The majority complains that I have not “adequately” explained the
basis for the discrepancy between the misdemeanor sentencing exceptions for
child molestation and aggravated child molestation based on sodomy. Maj. Op.
at 27-28 (3) (d). I have not endeavored to explain this discrepancy because the
underlying factual basis of Appellant’s as-applied challenge reveals that he is
not similarly situated with a defendant subject to a charge of aggravated child
molestation based on sodomy. The majority certainly takes a different view on
that issue; I do not believe, however, that the majority means to suggest that
the judiciary is obligated to articulate a rational basis for all legislative
schemes that treat differently situated individuals differently.
54
similarly situated to defendants charged with and convicted of
aggravated child molestation and that he has failed to carry his
burden of proving that the law under which he was sentenced is not
rationally related to a legitimate government purpose. His equal-
protection claim should therefore fail, 17 and his sentence is due to be
affirmed.18 Accordingly, I respectfully dissent.
17 Given my conclusion above regarding Appellant’s equal-protection
claim, I would be obligated to consider his argument that his sentence
constitutes cruel and unusual punishment, which, like his equal-protection
claim, focuses on the sentencing incongruity between OCGA § 16-6-4 (b) (2)
and (d) (2). Setting aside the accuracy of Appellant’s understanding of the
statute, assuming that he properly preserved this claim for review, and
ignoring a possible error in sentencing that is favorable to the Appellant and
that the parties have not presented for our consideration, I would reject this
claim. See Jones, 307 Ga. at 510 (2) (b) (““[W]e do not review a claim of cruel
and unusual punishment based upon a sentence a defendant could have
received; instead, we review the sentence a defendant did receive.” (emphasis
in original)).
18 While I would affirm the existing sentence, I note my concern with the
remedy implemented by the majority, which directs the trial court on remand
to resentence Appellant pursuant to OCGA § 16-6-4 (b) (2). That provision, of
course, applies only in cases where the victim was “at least 14 but less than 16
years of age” — a factual basis not present in this case. Thus, in order for
Appellant to be sentenced under OCGA § 16-6-4 (b) (2), the majority has
effectively blue penciled the statute, substituting “13” for “14” for purposes of
Appellant’s case (and presumably all future cases). My concern with this
approach — which proceeds without discussion or citation to authority —
arises from the settled notion that this Court is not empowered to rewrite a
statute “to conform it to constitutional requirements”; that task is reserved to
the General Assembly. United States v. Stevens, 559 U. S. 460, 481 (III) (D)
(130 SCt 1577, 176 LE2d 435) (2010) (“We will not rewrite a law to conform it
55
I am authorized to state that Justice LaGrua joins in this
dissent.
to constitutional requirements, for doing so would constitute a serious invasion
of the legislative domain[.]” (citations and punctuation omitted)). See also
Domingue v. Ford Motor Co., 314 Ga. 59, 68 (2) (c) n.10 (875 SE2d 720) (2022)
(“Under our system of separation of powers this Court does not have the
authority to rewrite statutes.” (citation and punctuation omitted)). I confess
that it is not entirely clear to me why a statute declared unconstitutional as-
applied to a defendant can be judicially edited in a manner to preserve its
application to that defendant. I raise this concern primarily for the purpose of
noting that future cases following this case should include an analysis of the
proper remedy in the event of a finding of unconstitutionality.
56