Every now and then, I will read a case that just leaves me baffled as to failure of our criminal justice system. Chestnut v. State, No. A14A1626, 2015 WL 1057978, at *5 (Ga. Ct. App. Mar. 11, 2015), is just such a case. The charge of failing to register as a sex offender is becoming increasingly common in Georgia. For some reason, these cases are rampant with poor representation. I am not sure what the cause of the poor level of representation is, but it is recurring in this litigation. Chestnut is a prime example.
FIRST, CONSIDER THE ABSOLUTELY RIDICULOUS PERIOD OF TIME THAT MR. CHESTNUT SERVED IN JAIL PRIOR TO HIS TRIAL ON CHARGES OF FAILING TO PROPERLY REGISTER AS A SEX OFFENDER.
Although this case has a protracted procedural history, the relevant facts are undisputed and show that in November 2006, Chestnut was convicted of incest as a result of his relationship with an adult woman (S. C.), who was the legal daughter of Chestnut's brother Larry Chestnut (“Larry”).1 See Chestnut v. State, 287 Ga.App. 693 (652 S.E.2d 596) (2007). Upon being convicted of incest, Chestnut received a sentence of 10 years, with four years to be served in incarceration and the balance to be served on probation. As a result of Chestnut's incest conviction, OCGA § 42–1–12 required him to register with the State as a sex offender prior to his release from prison and to register as a sex offender with his local law enforcement agency within 72 hours following his release. See OCGA § 42–1–12(10)(a)(xii) (defining incest as a “dangerous sexual offense” and subjecting any person convicted of that crime to the registration requirements found in OCGA § 42–1–12); OCGA § 42–1–12(f)(1), (f)(2).
Chestnut was released from prison on April 11, 2009. Two days later, on April 13, he went to the Coffee County Sheriff's Office to register as a sex offender. Chestnut's probation officer, Mike Taylor, refused to allow Chestnut to register at the first address he offered because that residence was within 1,000 feet of a day care center and therefore did not meet the requirements of OCGA § 42–1–15(a) (2006).2 Recognizing that Chestnut “was homeless,” Taylor gave him an additional three days to find a different residence. On April 14, Chestnut returned to the Sheriff's Office and completed his registration, listing his residential address as “1014 N. Latitia St., Apt. B, Douglas, Ga.” Taylor approved this address after measuring to make sure that it was situated the statutorily-mandated distance from “day cares, churches, schools, etc.”
As part of his registration, Chestnut was required to sign a “Notification Form,” on which he acknowledged the restrictions placed upon him by OCGA § 42–1–12, including the requirement that he provide the sheriff's office with 72 hours prior notice before moving from the approved residential address. The notification form further provided that Chestnut understood that a residence address was a “street or route address” and that “[p]ost office box and homeless do not constitute an address.”
*2 On June 17, 2009, Taylor went to check on Chestnut at his registered address. Chestnut was not present at the apartment, but his brother, Howard Chestnut, was. Based on a conversation that Taylor had with Howard, Taylor contacted Chestnut. When Chestnut appeared at Taylor's office the following day, he told the probation officer that the apartment belonged to his brother and that Chestnut had been forced to leave when the brother's minor daughter moved into the residence, as Chestnut knew that the terms of his probation forbade him from living with minors. Chestnut explained to Taylor that his niece was going to return to live with her mother and that when the niece moved out, Chestnut would move back in with Howard. On July 21, 2009, Taylor made a second visit to Howard's apartment but found no one at home. The following day, Taylor returned to the apartment with Detective Jamie Hersey of the Coffee County Sheriff's Office and found Howard at the residence. With Howard's permission, Hersey and Taylor searched the apartment and found no evidence that Chestnut was living there. Hersey then obtained a warrant for Chestnut's arrest, charging Chestnut with violating OCGA § 42–1–12 by failing to inform the Sheriff's Office 72 hours before changing his residential address. Chestnut was arrested on July 27, 2009, and was indicted on October 1, 2009. An attorney with the Waycross Circuit Defender's office was apparently appointed to represent Chestnut3 and on November 18, 2009, that lawyer filed a motion to quash the indictment.4The trial court denied that motion on March 22, 2010.
On July 18, 2010, Chestnut wrote to the clerk of the Coffee County Superior Court, stating that he had not heard from his attorney since April 2010 and asking when his case would come to trial, noting that he had been in jail for a year on the pending charges. The clerk responded to Chestnut on July 23, telling Chestnut that he did not yet have a trial date. Trial was thereafter set for October 18, 2010, but the case did not go forward at that time.5 On October 27, 2010, Chestnut's attorney filed a second motion to quash the indictment that was almost identical to the first motion to quash. The trial court denied the second motion to quash on December 13, 2010. After that time, the case remained dormant for almost two years while Chestnut remained in jail. Although the Waycross Circuit Defender's Office remained counsel of record, it appears that during this two-year period, no lawyer in that office was actually assigned to the case. The record reflects that during this time, Chestnut had no contact with an attorney and believed himself to be without legal representation. Accordingly, Chestnut, who has an eighth-grade education, filed four pro se motions, including two motions seeking the appointment of an attorney to represent him.6
On November 19, 2012, while there was apparently no specific attorney assigned to represent Chestnut, the trial court entered an order setting trial for December 10, 2012.7 The trial did not go forward on that date, and on December 13, 2012, three days after the scheduled trial date, the circuit public defender's office was formally relieved of its representation of Chestnut and a new attorney was appointed. This attorney represented Chestnut at his trial, which occurred on February 20, 2013, and he also represents Chestnut on this appeal.8
Chestnut v. State, No. A14A1626, 2015 WL 1057978, at *1-2 (Ga. Ct. App. Mar. 11, 2015). After being held for almost 44 months in jail, Chestnut was finally brought to trial for failing to register as a sex offender.
SECOND, CONSIDER THIS PARAGRAPH FROM CHESTNUTTHAT DESCRIBES THE COMPLETE AND UTTER FAILURE OF ALL LAWYERS INVOLVED TO RECOGNIZE THE CONTROLLING AUTHORITY OF SANTOS.
Moreover, to the extent that the State is contending that Chestnut's arguments as to Santosshould have been raised at some point during the almost five years this case was pending in the trial court, we agree. As our opinion makes clear, Santos is the dispositive legal precedent with respect to this prosecution. Yet despite the fact that Santos controls any prosecution of a homeless sex offender under the former OCGA § 41–1–12(f)(5), and even though Santos was decided nine months prior to Chestnut's arrest and 52 months prior to his trial and conviction, the record shows that neither the State nor defense counsel ever cited that case prior to this appeal. Most notably, no mention of Santos was made in connection with either of the two motions to quash the indictment, and there was not a proposed jury charge based on Santos.15 In short, it appears that no fewer than four prosecutors (two district attorneys and two assistant district attorneys) and two defense lawyers somehow remained unaware of Santos until approximately six years after that case was decided. The failings of both the prosecution and defense counsel, however, cannot and did not relieve the State of its burden of proof under Santos; nor do these failings preclude Chestnut from relying on Santos to challenge his conviction.
Chestnut v. State, No. A14A1626, 2015 WL 1057978, at *6 (Ga. Ct. App. Mar. 11, 2015).
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