In the Supreme Court of Georgia



                                           Decided: November 17, 2014


                      S14A1334. OWENS v. URBINA.


      MELTON, Justice.

      Following the trial court’s ruling that permanently enjoined the Georgia

Department of Corrections (GDC) from requiring Mario Urbina to register as

a sex offender, Brian Owens, Commissioner of the GDC, appeals. For the

reasons set forth below, we affirm.

      The record shows that Urbina, a Georgia resident, taught piano lessons to

children in Alabama. On February 1, 2012, Urbina was indicted in Alabama for

(1) Enticing a Child to Enter for Immoral Purposes and (2) Sex Abuse of a

Child Less than 12 Years of Age. It was alleged in the indictment that Urbina

had sexual contact with a young female in a room at the church where he was

teaching piano lessons. On April 26, 2012, Urbina entered into a negotiated plea

with the State of Alabama to plead guilty to Interference with Custody, a Class
C felony in Alabama that is punishable for up to ten years in prison.1 Unlike the

initial indictment, which was nolle prossed, the information upon which Urbina

was charged and convicted for Interference with Custody states only that Urbina

“did knowingly take or entice a child under the age of 18, . . . from the lawful

custody of [her] parent, guardian, or other lawful custodian.” Urbina agreed to

serve four years imprisonment, but the trial court later reduced the sentence to

four years on probation. Subsequently, Urbina sought to transfer his probation

supervision from Alabama to Georgia so that he could return to his Georgia

residence and reunite with his wife and children.2 The GDC informed Urbina

that he would be required to register as a sex offender. Urbina then filed a

Petition for Declaratory Judgment and Permanent Injunction in Fulton County

Superior Court, seeking (1) a declaratory judgment stating whether he was

required to register as a sex offender in Georgia and (2) a permanent injunction

      1
        Ala. Code § 13A-6-45 (a) (1) provides: “A person commits the crime of
interference with custody if he knowingly takes or entices: . . . Any child under
the age of 18 from the lawful custody of its parent, guardian or other lawful
custodian.”
      2
        It is undisputed that, because Urbina was a resident of Georgia at the time
of his arrest, Georgia was required to accept his request to transfer his probation
pursuant to the Interstate Compact for Adult Offender Supervision. See OCGA
§ 42-9-80 et seq.
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to prevent GDC from requiring Urbina to register as a sex offender as a

condition of transferring his probation supervision from Alabama to Georgia.

On January 15, 2014, the trial court held, in relevant part:

      [Interference with Custody] is a felony in Alabama, but the
      elements of the offense are identical in substance to the Georgia
      crime of Interference with Custody, a misdemeanor. OCGA 16-5-45
      (b) (1) (A)[3]. . . . Under Georgia law - and regardless of the
      underlying facts - a misdemeanor conviction does not trigger the
      sex offender registration requirement. See OCGA 42-1-12 (9) (c),
      (10) (c) (exempting misdemeanors from the definitions of "criminal
      offense against a victim who is a minor" and "dangerous sexual
      offense"). The Court acknowledges a general rule permitting courts
      to look to the conduct underlying an offense to determine whether
      registration is warranted, see, e.g., Price v. State, 320 Ga. App. 85
      (2013). But this rule does not apply when the conviction at issue is
      for a misdemeanor, given the comprehensive exemption set forth in
      the statute. . . . The Court finds there is no rational basis for
      requiring [Urbina] to register as a sex offender when other persons
      convicted of the same crime would face no such conduct.

We reach the same judgment as the trial court, but employ different reasoning.

          In relevant part, registration as a sex offender is required for any

individual "convicted . . . of a criminal offense against a victim who is a minor"


      3
        OCGA § 16-5-45 (b) (1) provides: “A person commits the offense of
interference with custody when without lawful authority to do so, the person:
(A) Knowingly or recklessly takes or entices any child or committed person
away from the individual who has lawful custody of such child or committed
person.”
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or who is a resident of Georgia and intends to reside in this state who is

"convicted under the laws of another state or the United States . . . of . . . a

criminal offense against a victim who is a minor." OCGA § 42-1-12 (e) (1) and

(5). (Emphasis supplied.) A criminal offense against a victim who is a minor is

defined, in part, as any “conduct which, by its nature, is a sexual offense against

a victim who is a minor.” OCGA § 42-1-12 (a) (9) (B) (xi).4 However, a

“conviction for a misdemeanor shall not be considered a criminal offense

against a victim who is a minor.” OCGA § 42-1-12 (a) (9) (C). As pointed out

by the trial court, this misdemeanor exception appears to be without limitation.

      As a result, for purposes of registration in Georgia, the parties argue

extensively about whether Urbina’s crime should be considered a felony

pursuant to Alabama law or a misdemeanor pursuant to Georgia law. In

addition, Owens argues that, irrespective of the classification of the punishment,

the GDC should be allowed to impose registration requirements if the

underlying criminal act constituted conduct towards a minor that was sexual in

nature. See Price v. State, 320 Ga. App. 85 (4) (738 SE2d 289) (2013).


      4
       The preceding subsections of this paragraph of the Code refer to criminal
acts not relevant to this particular case.
                                        4
      Based on the record related to Urbina’s actual conviction for Interference

with Custody in Alabama as it now exists, which is limited to the facts contained

in the information and guilty plea form, it cannot be said that the crime in issue

is a “conviction resulting from an underlying sexual offense against a victim

who is a minor.” OCGA § 42-1-12 (a) (9) (A) (vii). The information, which is

the only factual basis of record for Urbina’s guilty plea, states that he “did

knowingly take or entice a child under the age of 18, . . . from the lawful

custody of [her] parent, guardian, or other lawful custodian.” Even if this act

could be considered a felony under Georgia law, it would not constitute a sexual

offense. As a result, the trial court correctly determined that Urbina cannot be

required to register as a sex offender in Georgia, though it employed different

reasoning. See Ellis v. Johnson, 291 Ga. 127 (3) (728 SE2d 200) (2012) (right-

for-any-reason rule).

      Owens’s arguments focusing on the underlying facts of Urbina’s original

indictment do not change this result. Though certainly troubling, those facts

were the basis for the indictment that the State of Alabama nolle prossed. The

factual basis set forth in the later information upon which Urbina was actually

convicted are quite different, and it is the facts related to the conviction, not the

                                         5
allegations relating to the abandoned indictment, which must control our

analysis.

      Based on this conclusion, we need not consider Owens’s remaining

arguments, including those requiring an equal protection analysis.

      Judgment affirmed. All the Justices concur.




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